Author Archives: suesspiciousminds

“The award-losing family law blog”

Posted on October 8, 2013 by suesspiciousminds

 

 

The Jordans Family Law Awards are Wednesday night (or tomorrow, at the time of writing). At this point, I don’t know which of the four people nominated for my category are going to win – so frankly, being nominated has helpfully confirmed that you don’t get told in advance whether you have won or lost.

 

There are many very good people, in multiple categories, nominated for awards, and at the end of the evening, seventy-five per cent of them are not going to have won an award.

 

The chances are high that I am going to be in that seventy-five per cent, just on pure maths. And I know that I am going to get asked over and over “how do you feel about not winning?”

 

 

So, in the spirit of a beleaguered England football manager, I’m going to get my excuses in early, just in case.  This is by way of being a “rejection speech” on losing the award.

 

[“Well, Gary, the plucky Lilliputians have come a long way in recent years. Yes, their big centre-half is only seven inches tall, yes their population is so small that they had a pool of twelve adult males to draw from, yes as a result their holding midfielder is eighty-two years old, but there are no easy games at this level – they’ll be tough to break down, and for them getting a result against England is their cup-final” ]

 

 

I’ve decided to break my advance excuses/ gallant loser speech into three categories, the first two being serious, the last very much tongue in cheek (I am honestly not genuinely placing myself on a par with the people I namecheck in this speech)

 

1.    It was amazing to be nominated

2.    The competition is fierce, and whoever wins is a deserving winner

3.    Huh, who wants to win an award anyway? Much cooler to NOT win.

 

 

 

  1. It is/was amazing to be nominated

 

It truly, truly is. I’ve never been up for an award for writing before (I won an award for tae-kwon-do back in my twenties, but that was much more about my prowess to kick people quite hard in the head with unerring accuracy than my brain).  I’ve never been to an award ceremony, still less one being held in a posh hotel in Mayfair, a place so expensive that I can’t help but think that landing in a hotel there is going to bankrupt me…

 

More importantly, it has brought people to the blog who might never have heard of it. Some of them have no doubt backed away nervously and never come back, but some have visited again and told friends. The visitors to the site have basically doubled since the nomination, and it is astonishing to me that anyone reads my stuff, let alone in the numbers I’m now getting.

 

Many thanks to Lucy Reed, not only for getting me on the shortlist but for inspiring me to blog in the first place. I kept reading her Pink Tape blog and drafting comments that I then never dared send, and then I sent some, and from there I realised I should get out and start writing my own blog. So it is all her fault, really.

 

And also to John Bolch over at Family Lore, for sending so much good information and visitors my way; and to the folks at Twitter without whom the site would be just me and the spambots inviting me to buy cheap Oakley sunglasses.

 

 

 

  1.  The competition is fierce, and whoever wins is a deserving winner

 

 

True in pretty much all the categories, and my piece here is for all of the seventy-five per cent. It is not as bad as being nominated for Best Actor Oscar in a year that Daniel Day-Lewis has made a film, it feels more to me like some very well-balanced nominations and that there are no overwhelming favourites (even the Lionel Messi of family silks, Jo Delahunty QC is up against Paul Storey QC, who is at the very least CR7) and no rank outsiders.   [With the exception of 4 Paper Buildings winning chambers of the year – with seven nominees in various categories, they look a shoe-in to me]

 

In my own category, any of the people nominated would be worthy winners and there’d be no shame in whichever of the three of us form the unlucky nominees.  

 

David Burrows is an amazing lawyer, who has a presence on the bookshelves of almost every family solicitor’s offices and is a name we all know. He’s the go-to guy for almost every difficult question that crops up in family law.

 

Vanessa Llloyd-Platt is someone who crosses over into a world outside of just law, and makes difficult legal concepts understandable to ordinary real people in her work in national television and newspapers. In a time when lawyers are regularly portrayed as fat cats, ambulance-chasers or rottweilers with lipstick, it is really important to have people like Vanessa being visible to show that lawyers can be helpful and approachable.

 

Jacqueline Renton is a great barrister, working at one of the best sets around and provides the best resource out there for international family law, a subject so complicated it makes my temples throb just thinking about it, never mind commenting on it.

 

All worthy winners, without a doubt.

 

 

 

 

  1. Huh, who wants to win an award anyway? Much cooler to NOT win.

 

 

[Tongue in cheek, remember – I don’t actually mean this]

 

 

How tiresome to win an award for which one is nominated, to be recognised by the Establishment and absorbed within it. Richie Cunningham from Happy Days would have been delighted to win an award, but Fonzie would not.  Woody Allen doesn’t even go to the Oscars. Better to be the outsider, cocking a snook at the Establishment and their recognition.

 

We remember very few people who won an MBE, but we remember John Lennon returning his. Is John Lennon not cooler than a hedge fund investment manager, or a Permanent Under Secretary to the Department of the Environment? Indupitably.

 

Way cooler.

 

The history of prizes and awards shows that things go wrong, and that the most deserving winner (like me, and the other 75% who didn’t win at the Family Law Awards) doesn’t end up with the trophy.  Just as Ecclesiastes 9.11  foretold (surely talking about “Disciple of the Year Award”  22AD, which was controversially bagged by Mr Iscariot) 

 

Again I saw that under the sun the race is not to the swift, nor the battle to the strong, nor bread to the wise, nor riches to the intelligent, nor favor to those with knowledge, but time and chance happen to them all.

 

 

It is important to recall that Einstein never won the Nobel Prize for the Theory of Relativity – probably the most important piece of physics since Faraday, nor for the only physics formula that most people can recite – E = Mc2    

 

They finally gave him a Nobel Prize for discoveries in photo-electricity, work which hardly set the world alight.

 

Winston Churchill lost the General Election after winning World War II.

 

Goodfellas did not win the Best Picture, or Best Director Oscar, losing out to Dances with Wolves.  That’s right, Kevin Costner won Best Director over Martin Scorsese.

 

Taxi Driver lost to Rocky  (and I LOVE Rocky, but hell, it isn’t a better piece of film making than Taxi Driver).  Rocky, incidentally, lost to Apollo Creed in the first film. Plucky underdog loser for the win there, too.

 

Apocalypse Now didn’t win Best Picture or Best Director – losing out to Kramer versus Kramer (which I won’t slag off, because I’m sure many family lawyers watch it for light relief / illustration of a happy amicable residence and contact dispute in comparison to their own caseloads)

 

Citizen Kane, widely regarded as the best film of all time, didn’t win best Picture or Best Director, losing out to a film about Welsh coalminers, ffs.

 

The great Brazilian football team of 1982, containing Zico and Socrates, never won the World Cup. The Greek team who did nothing but valiantly defend and pray for a spawny goal, did however, win an international tournament.

 

And so, it is clear therefore, that in not winning this award, I (and the other 75%) are rubbing shoulders with some greats.

 

We are Zico, we are Scorsese, we are Citizen bloody Kane, we are Einstein.

 

Those people with the trophies – they are Kevin Costner, they are Titanic, they are Richie Cunningham, they are Greece, they are a film about Welsh coalminers.

 

Let us gallant losers revel in being Winston Churchill and John Lennon – wouldn’t we rather be “award losing”, with the connotations that we were just too dark, too edgy, too ahead of our time to be given the award, or even better to have had the award almost in our hands but then had it ripped away by those who feared we weren’t “mainstream enough” ? 

 

Long live Fonzie!

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Being a deputy is not a licence to loot

Posted on October 8, 2013 by suesspiciousminds

A Court of Protection case has recently tackled the issue of a person with considerable financial means but no capacity to manage her affairs, and the deputies appointed by the Court having made extensive ‘gifts’ from her financial estate and seeking retrospective approval for them.

MJ and JM v The Public Guardian 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2966.html

This was the background to the appointment of MJ and JM as deputies

 

9.       GM has vascular dementia, which was first formally diagnosed in 2007.

10.   On 25 August 2010 the court made an order appointing MJ and JM jointly and severally to be her deputies for property and affairs.

11.   The order required the deputies to obtain and maintain security in the sum of £275,000. The premium for the security bond, which is payable from GM’s estate, is £550 a year, and the purpose of the bond is to restore to GM’s estate any loss that may have arisen as a result of the wrongful acts or omissions of her deputies.

12.   Paragraph 2(c) of the order gave the deputies the following authority to make gifts:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

The case sets out very clearly the parameters in which deputies can operate, particularly with regard to ‘gifts’  and ‘deputyship expenses’

  1. The scope of a deputy’s authority to make gifts
  1. Section 16(2)(b) of the Mental Capacity Act 2005 provides that the court may appoint a deputy to make decisions on behalf of ‘P’, which is the shorthand term used in the Act for the person who lacks capacity or to whom the proceedings relate.
  1. Section 16(3) states that the powers of the court under section 16 are subject to the provisions of the Mental Capacity Act 2005 and, in particular, sections 1 (the principles) and 4 (best interests).
  1. Section 16(4) provides that the court may “confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).”
  1. Section 18(1)(b) provides that the powers of the court under section 16 extend to making a gift or other disposition of P’s property.
  1. Paragraph 2(c) of the order of 25 August 2010 appointing JM and MJ as GM’s deputies defined the scope of their authority to make gifts in the following terms:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

  1. Similar wording appears in almost every order appointing a deputy for property and affairs, and the intention of the court is that deputies should have the same powers to make gifts as attorneys acting under an Enduring Power of Attorney (‘EPA’) or a Lasting Power of Attorney (‘LPA’).
  1. It is important that deputies and attorneys should:

(a) realise that they have only a very limited authority to make gifts;

(b) understand why their authority is limited; and

(c) be aware that, in an appropriate case, they may apply to the Court of Protection for more extensive gift-making powers

  1. Deputyship expenses
  1. Section 19(7) of the Mental Capacity Act 2005 provides that:

“The deputy is entitled –

(a) to be reimbursed out of P’s property and affairs for his reasonable expenses in discharging his functions, and

(b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.”

  1. The Act distinguishes between two kinds of entitlement: the reimbursement of expenses, on the one hand, and remuneration, on the other. A deputy is entitled, as of right, to be reimbursed for the expenditure he incurs in carrying out his functions, though a ‘reasonableness test’ arises as to the amount he can actually recover.
  1. The Office of the Public Guardian publishes a booklet called A guide for Deputies appointed by the Court of Protection (OPG510), which is available in both hard copy and on the OPG website. Page 22 of this guide states as follows:

“Will I be reimbursed for my expenses?

The Act allows you to be reimbursed for reasonable expenses incurred when acting as a Deputy. Examples of expenses include telephone calls, travel and postage.

Expenses are not payment for your time spent while acting as a Deputy – this is called remuneration and can only be claimed if the Court order specifically states it. If you wish to receive remuneration you should ask the Court to consider this in your initial application.

 

The expenses you are entitled to claim and what is considered reasonable will vary according to the circumstances of each case. It depends on what you are required to do and also the value of the estate of the person who lacks capacity.

The OPG expects that you will only claim reasonable and legitimate expenses. If you claim more than £500 in expenses per year the OPG may require you to explain your expenses in detail and frequently.

If your expenses are considered unreasonable you may be asked to repay them, and in extreme cases the OPG may apply to the Court to cancel your appointment.”

So, in this case, what sort of “expenses” had been claimed?

£46,552.24 for ‘cars and computers’

Flick back – acceptable expenses £500 a year, and they went for nearly £50,000, out by several orders of magnitude.

It is no surprise that the Court considered that these were not ‘expenses’ at all, but the deputies making unauthorised gifts to themselves, and thus decided that they were obliged to refund GM’s estate with the money.

Let’s look at the gifts now

MJ personally had received ‘gifts’ from GM’s funds totalling £55,856  – including an £18,000 Rolex watch, a £16,000 ring, perfume, an Alexander McQueen handbag and £20,000 in cash.

JM personally had received ‘gifts’ from GM’s funds totalling £48,396.50, including a £17,000 Omega watch, two rings costing over £11,000, 2 Mulberry handbags and £20,000 in cash.

These were, of course, people who had been appointed by the Court to safely manage the estate of a very vulnerable woman and who had sworn an oath to do so properly.  I don’t think that I can actually find the words to describe how loathsome I consider their conduct to be, and I am amazed that the Judge was able to be as circumspect as she was.

They also made gifts of £62,500 to other friends and family members, all of whom seem to receive a Vivienne Westwood handbag, apart from one man who received a DerbyCounty season ticket.

GM had not been consulted about any of these ‘gifts’, nor had her wishes been explored by MJ and JM in any way.

  1. The Public Guardian’s position is that the deputies have made unauthorised gifts totalling £171,407.50 from GM’s estate to themselves and their immediate family.

The Public Guardian believes that this level of gifting by the deputies is excessive, not in the best interests of GM and is inconsistent with the deputies’ fiduciary duty of care. In addition, the deputies have exceeded the authority given to them to act on GM’s behalf in respect of her property and affairs and have exposed themselves to allegations of self-dealing.

In addition, the Public Guardian also questions if the deputies had the authority to spend a total of £46,553.14 in purchasing a car and computer each and then claim them as ‘deputyship expenses’. It is the Public Guardian’s opinion that the cars and computers are further unauthorised gifts which the deputies had no authority to make to themselves.

The Public Guardian has calculated that almost 44% of GM’s total assets have been disposed of by way of gifts made by the deputies to themselves and their family where they had no authority to do so. Therefore, the Public Guardian cannot recommend to the court that the gifts shown below can be approved retrospectively.

Detail

Amount

 

 
Gifted to immediate family

£67,155.00
Gifted to MJ

£55,856.00
Gifted to JM

£48,396.50
Deputy ‘expenses’

£46,553.14
Total

£217,960.64

Damn. Right

GM has £177,230.96 left in her estate

I don’t usually make comments about the individuals who appear in cases, over and above the judgments, but this particular case is making that rule of mine very hard to stick to. My opinion of these people, and it is merely a personal opinion based on the reading of the judgment, could not be much lower.

  1.  I do not accept that the gifts they made were in GM’s best interests. They are completely out of character with any gifts she made before the onset of dementia. There was no consultation with her before they were made and there was no attempt to permit and encourage her to participate in the decision-making process, or to ascertain her present wishes and feelings.
  1. Nor do I accept the applicants’ argument that they believed that the order appointing them allowed them to make gifts on such an extensive scale. They should have been aware of the law regarding their role and responsibilities. Ignorance is no excuse.
  1. The fact that GM’s remaining assets were in the names of one or other of the applicants, rather than in GM’s name, is a further example of what is, at best, ignorance, and, at worst, stealth.
  1. I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.
  1. If they had made a proper application for the prospective approval of gifts, I would possibly have allowed them to make gifts to themselves and their families to mitigate the incidence of IHT on GM’s death, but only if they had been the residuary beneficiaries under her will.

The applicants were seeking approval of gifts and expenses totalling £277,811.74. The approval of only £73,352 has left them personally liable to GM’s estate in the sum of £204,459.74, which they must pay back.

 

The Judge was then alive to the fact that GM did not have a will and that an application might be made for a statutory will, and that in doing so, JM and MJ might become the beneficiaries, allowing them to avoid repayment AND gain the remaining funds into the bargain.

  1. I shall not attempt to prejudge the outcome of any statutory will application, but, if an order is made for the execution of a will on GM’s behalf, there is a possibility that MJ and JM could become her residuary beneficiaries, in which case their liability to her estate may become less relevant.
  1. On the other hand, the judge who considers the statutory will application may take the view that, if she had testamentary capacity and was fully aware of what has been going on, GM would be outraged by the applicants’ conduct and would make no provision for them at all.
  1. Alternatively, the judge may find that GM’s intestate heirs have had closer contact with her than the applicants suggest, or that certain charities, such as the Christadelphian Church, the Scottish National Trust or the National Deaf Children’s Society, have a more meritorious claim on her bounty and should receive the lion’s share of her estate.

Applauding

And just for good measure, discharging them as deputies

  1. For the purposes of section 16(8) of the Mental Capacity Act, I am satisfied that the deputies have behaved in a way that contravened the authority conferred on them by the court and was not in GM’s best interests.
  1. I am not persuaded by any of Miss Bretherton’s submissions on their behalf, and I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.

One of those cases where just reading it makes you want to take a long shower and despair about the ability of human beings to be craven and opportunistic.   Sadly there is nothing in the judgment about PC Plod being at the back of the Court with some handcuffs – I suppose one could make a case on obtaining by deception (since they would never have had the lawful access to GMs funds as a result of being appointed deputies if the Court had had any inkling that rather than looking after GM, they were simply going to enrich themselves at her expense)

 

Some days, I am afraid that I hope that the medieval world view of what happens after one dies is actually true.

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Are we learning anything?

Posted on October 7, 2013 by suesspiciousminds

 

A discussion on Serious Case Reviews, Keanu Williams and Professor Ray Jones.

 

Tragically, Serious Case Reviews seem to be piling up at the moment. We have just had Daniel Pelka’s, Keanu Williams’ came out last week. No doubt we will have one soon on Hamza Khan and I have already read today of another mother charged with the death of one child and neglect of another three. As we know from recent articles, most social workers don’t manage to find time to read them, and anyone who does read them finds the same themes continuining to crop up.

                   

The Keanu Williams one is here   http://www.lscbbirmingham.org.uk/images/stories/downloads/executive-summaries/Case_25__Final_Overview_Report_02.10.13.pdf

 

 

{This one actually identifies really early on that Keanu’s death could not have been PREDICTED, but that he ought to have been identified as a child who was at risk of significant harm. We actually know from reading the Serious Case Review that his social worker took the case to Child Protection Conference, with a report identifying why Keanu was at risk of significant harm and why he should be placed on the register and have a child protection plan – the Conference took a different view and decided Keanu was a child in need, instead

 

“A well-argued social work report, stating the risks and concerns that had been assessed for Keanu, formed the basis for the Child Protection Conference. However, the Conference concluded that Keanu did not require a Child Protection Plan but was a Child in Need requiring a family support service such as the nursery place as the focus of the meeting changed.

 

 

The outcome of the Child Protection Conference led to a loss of focus on Keanu, because the Child in need services moved the attention towards practical matters such as the lack of settled accommodation and provision of the nursery place.

 

Paradoxically the services failed to consider precisely what the impact was on Keanu’s development and welfare of being moved around and cared for by many different people.” }

 

But what also interested me was Professor Jones take on Serious Case Reviews, as reported in the Daily Telegraph

 

http://www.telegraph.co.uk/news/uknews/law-and-order/10355475/Theres-no-more-learning-left-to-be-done-says-child-protection-expert-in-wake-of-Hamzah-Khan-death.html

 

 

(A brave thing to say, since the gut instinct when reading “we have no more learning left to be done” is  to retort – then why are these cock-ups continuing to happen?)

 

I can sort of see where Professor Jones is coming from. With every child death of this kind there is a clamour for ‘lessons to be learned’ and ‘we must ensure that no other child has to go through this again’  and of course the media clamour that someone in authority must have bungled and they should be identified and sacked. That’s backed very often by central government (at least some element in David Cameron’s rise to power was on his tough handling of Baby P) and their demand that all Serious Case Reviews should be made available to the media and public.

 

The media of course, take a long and dense document, and strip out the bits that show that “Professionals had X chances to save baby Morris” , because that’s what makes the good story. Never mind that any of those chances would only have been a real chance if (a) the professionals could see into the future or (b) were so risk averse that they were removing children with similar histories left,right and centre, most of whom would have been okay at home. 

I will defend professionals from unfair criticisms that they didn’t accurately predict the unpredictable, but mistakes do get made in child protection and where those mistakes are due to sloppy practice or laziness then those responsible ought to be dealt with. If a child died because professionals didn’t make referrals, or the referrals got ignored or visits weren’t made (or you were a paediatrician that can’t spot a broken back), then yes, those involved ought to be rethinking their career – I just don’t believe that having failed to identify that of your thirty kids with bruises and low-level neglect THIS was the one where it was going to go awfully wrong is that sort of mistake.

 

{On the same basis, given how many times serial killers are described as ‘quiet blokes who wouldn’t harm a fly and was nice to his mum’ we could be cutting down serial killing by imprisoning in advance every person like that… Or blaming the police for every such bloke who goes on to commit murder, on the basis that it was obvious that he would turn into a serial killer one day}

 

 

And of course all of those Serious Case Reviews start with the known fact that the child died, and works backwards from that foundation, which allows them to in part discount the very thing that makes social work hard – the tension between family preservation and child rescue.

 

If the child has died, then we KNOW that the child ought to have been removed from home before then and that the family ought not to have been preserved. So the Serious Case Review can just look for any opportunities professionals had to break up that family unit and rescue the child.

 

Here are the things that a Serious Case Review CAN potentially do

 

(a)  Handwringing  (lessons have to be learned)

(b)  Finger-pointing/witch-hunting

(c)  Identifying whether there were flaws in local procedures, or in following those procedures

(d)  If there have been serious and genuine bad practice or negligence, taking action as a result

(e)  Extracting lessons of general principle to be learned in other cases

 

I think that our current system is pretty good at (a), not bad but not great at (b),  pretty poor at (d), okay at (c)  and it THINKS that it is very good at (e) but actually isn’t.

 

So I agree with Professor Jones that most of the ‘lessons to be learned’ are already well-established and well known. We know in advance that common themes from an investigation into a child death will include

 

(i)            That information held by different agencies was never really shared properly and that had one person known all of it, different decisions could have been made

(ii)          That a rule of optimism was applied

(iii)         That a history of low level neglect or bruising continued over time and nobody took it seriously enough

(iv)         That the voice of the child was overlooked or the child simply wasn’t seen enough

(v)          That too much of professional attention was focussed on the adult

 

 

And that having report after report say that, really doesn’t help.

 

I don’t think that the Keanu Williams one is particularly bad, it is fairly typical of these reports (and is to my mind, a better one than Daniel Pelka’s, for example)

 

So do Serious Case Reviews tell us anything at all? Or are they just handwringing and witch-hunting?

 

[I would disagree with Professor Jones on two categories of inquiries  – I think that the Victoria Climbie inquiry did genuinely tell us new and important things about the dangers of walking on eggshells around respecting differences in culture and losing sight of child protection, and I think that all of the inquiries relating to situations where ‘child rescue’ went too far – Rochdale, Cleveland, Orkney Islands, tell us a great deal of significance about what happens not in an individual case where a judgment call went wrong but when there is a systematic failure to properly balance evidence, risk and the desire to keep families together]

 

 

I would myself like to see Serious Case Reviews focussing on whether what had happened in the case throws up issues of poor practice amongst the professionals involved (not that they failed to predict the future correctly, but whether they weren’t alive to the possibility that their prediction might be wrong) or where local procedures need to be improved, and shy away from the ‘broad lessons to be learned’ unless it is a case like Victoria Climbie which genuinely has something new and important to say.

 

Frankly, the only real way to tell whether it was bad luck or bad social work in a Serious Case Review is to run them blind – the board are given information on two cases with children of similar ages and length of professional involvement. One is the child death in question and one is a child who remains at home unharmed.  If child deaths are caused by bungling professionals missing the obvious, then the Serious Case Review ought to have no problem at all in identifying the bad social work that led up to the child death, without knowing which case is which.

 

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Capacity to consent to sexual intercourse

Posted on October 7, 2013 by suesspiciousminds

Another useful case on this issue from Baker J sitting in the Court of Protection.

A Local Authority v TZ  2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2322.html

There are a few unusual features of this case – firstly that the Local Authority and the Official Solicitor representing TZ were in agreement that TZ DID have capacity to consent to sexual intercourse and it was the expert who was not, thus leading to the need for a Judge to make the determination.

Secondly, as illustrated very neatly by Baker J, there is the potential line of conflict between authorities decided in the Court of Protection and authorities decided in the Supreme Court, as to whether capacity to consent to sexual intercourse was merely ‘act specific’  (as the Court of Protection have said) or whether it is ‘act and person specific’  (as Baroness Hale said in R v Cooper 2009 which was a criminal prosecution)

  1. How is a court to determine capacity to consent to sexual relations? It is well established that capacity to marry is to be assessed in general and as a matter of principle and not by reference to any particular proposed marriage: see the decision of Munby J (as he then was) in Sheffield City Council v E [2005] Fam 326, approved by the Court of Appeal in the PC case (supra) at paragraph 23 of McFarlane LJ’s judgment. It is act specific and status specific rather than person specific or spouse specific. In a further case, Local Authority X v MM [2007] EWHC 2003 (Fam), hereafter referred to as ‘MM‘, Munby J adopted the same approach to capacity to consent to sexual relations, holding that it, too, is act specific rather than person specific. At paragraph 86 Munby J said:

“The question [capacity to consent to sexual relations] is issue specific, both in the general sense and…in a sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.”

 

  1. This approach was, however, disapproved by Baroness Hale of Richmond in R v Cooper [2009] UKHL 42 [2009] 1 WLR 1786 in the context of a criminal prosecution for an offence of sexual activity with a person with a mental disorder impeding choice, contrary to the Sexual Offences Act 2003. In paragraph 27 of her speech in that case, Baroness Hale observed:

“My Lords, it is difficult to think of an activity which is more person-and situation-specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so. This is entirely consistent with the respect for autonomy in matters of private life which is guaranteed by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The object of the Sexual Offences Act 2003 was to get away from the previous ‘status’ – based approach which assumed that all ‘defectives’ lacked capacity, and thus denied them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.”

Mostyn J grappled with this tension in D Borough Council v AB 2011

  1. In D Borough Council v AB [2011] EWHC 101 (Fam), [2011] COPLR Con Vol 313, [2011] 2 FLR 72, a case involving a man with a moderate learning disability, whom the judge referred to as ‘Alan’, Mostyn J grasped the nettle of addressing the conflict between Munby J’s decision in MM, a case that pre-dated the Mental Capacity Act, and Baroness Hale’s observations in R v Cooper, a Supreme Court case that post-dated the Mental Capacity Act but were made in the context of a case involving a different statutory provision. Mostyn J came down firmly on the side of Munby J’s approach. Having acknowledged the correctness of Baroness Hale’s observation quoted above that ‘it is difficult to think of an activity that is more person-and situation-specific than sexual relations’, he added (paragraph 35):

“but the same is true (if not truer) of marriage. But it does not follow that capacity to marry is spouse-as opposed to status- specific. Far from it. I do think, with the greatest possible respect, that there has been a conflation of capacity to consent to sex and the exercise of that capacity. There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent to sex with him or her?”

And Baker J notes that there is the possibility of the Court of Protection line coming into difficulties if a case ever goes to the Supreme Court, but concludes that in this case   (particularly since what TZ intended was to embark on sexual relationships with persons he considered suitable in the future who he had not yet met, rather than with a single known partner) it was more proportionate to look at whether TZ had capacity on an ‘act specific’ way, rather than whether he had capacity to consent to sex with particular individuals.

I can see merit on both sides – if for example, a person with difficulties was in a relationship with a partner who was very alive to his issues and very skilled in explaining things to the person and had no intention of taking advantage of them, that might require slightly less capacity than a partner with very different approach and morals. I think that on the issue of intrusion, however, Baker J was right.

The next interesting aspect is the three-tier test of capacity to consent to sexual intercourse as devised by Munby J and endorsed by Mostyn J in D Borough Council v AB 2011

  1. 27.   “I therefore conclude that the capacity consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissable infections; that sex between a man and a woman may result in the woman becoming pregnant.”

 

There has been speculation, including within judgments as to whether all three elements are applicable where there is no risk of pregnancy (particularly with regard to a homosexual relationship)

The issue arose specifically in this case, as TZ’s sexual orientation was homosexual, and he wished to have sex with men, rather than women.

I believe that this is the first time that the Court of Protection have decided the issue, rather than simply speculated about it. So, this is the key passage

  1. I therefore conclude that in the case of a person in respect of whom it is clearly established that he or she is homosexual – gay or lesbian – it is ordinarily unnecessary to establish that the person has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy.
  1. Having said that, it goes without saying that human sexuality is profound and complex and there are many people, such as Alan in D Borough Council v AB and indeed TZ in the current case, who have, at times, been attracted to both men and women. In those circumstances, it will be necessary to establish an understanding and awareness of the fact that sex between a man and a woman may result in pregnancy as part of the assessment of capacity to consent to sexual relations.

Having established the appropriate test (did TZ understand the mechanical action and the health risks?) the Judge then considered whether TZ met that test

  1. TZ spoke frankly about his own sexuality. He said that he had come out as gay about a year ago. Before that, he had been a bit confused but now was not. There are some reports in the local authority records suggesting that he may have been attracted to women at one stage since he moved into H Home. TZ was clear that this was no longer the case. “I’m not attracted to women at all, just men.” He said that it was important to be friends first with someone before moving onto a sexual relationship. Asked what he would get out of such a relationship, he identified sexual pleasure, but also thought it was important “to be happy and healthy, not be abused, and not be let down”. It seemed to me that he was referring back to unhappy experiences in previous relationships. “It’s not just the sex, it’s about being happy and safe and secure in the relationship.”
  1. TZ described in simple terms the physical acts of sex both between a man and a woman and between two men. He indicated that he understood that, “if men and women have sex, the woman can get pregnant”. He knew that a man cannot become pregnant. He was aware of the health risks from sexual activity, and listed the names of several sexually transmitted diseases. He said that the way of avoiding catching any of these diseases was to use a condom. He said that he knew there was a risk of the condom splitting, and in those circumstances he would get himself tested. He has been tested twice before for HIV. On each occasion, the test was negative.
  1. He said that he would like to have the opportunity to meet a man, by going to places such as gay bars. He said that he had learned to take his time because “you can’t judge a book by its cover”. He said he would rather not rush things, but would rather wait to see if he could trust the man. He would not have sex on a first encounter but would wait until he knew the man a little better. “Sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.”

The expert’s view seemed to be that TZ did not meet the test because he was not able to use and weigh information before making a decision in relation to sexual intercourse and did not have an understanding of the emotional consequences involved.

The Judge rejected that argument.

  1. It seems to me, with respect, that Dr. X is making a similar error as that made by the expert in D Borough Council v AB when he stipulates that the ability to use and weigh relevant information before consenting to sexual relations involves “a complex analysis of risks and benefits often in the abstract and hypothetical”. In D Borough Council v AB, the expert suggested that one essential ingredient of capacity to consent to sexual relations was “an awareness that sex is part of having relations with people and may have emotional consequences”. Mostyn J observed in response (at paragraph 37):

“This criterion is much too sophisticated to be included in the low level of understanding and intelligence needed to be able to consent to sex. Apart from anything else, I would have thought that a great deal of sex takes place where one party or the other is wholly oblivious to this supposed necessity.”

  1. Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.
  1. In any event, I am satisfied in this case, having spoken to TZ myself, that he does have an understanding of the need to weigh up the emotional consequences of having sexual relations. This was evident to me from his comment that he would rather not rush things, but would rather wait to see if he could trust the man and by his observation that “sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.” This insight seemed to me to be well above the level of “rudimentary” ability required.
  1. Overall, I find that TZ does have the capacity to use and weigh the information to the degree required for capacity to consent to sexual relations. I think he has been significantly helped in that regard by the sensitive programme of sex education he has received. Like most people, he may behave impulsively at some point in the future, and in his case that tendency may be accentuated by his ADHD, but I do not consider that this tendency means that he lacks the ability to use and weigh the relevant information.
  1. I therefore declare that TZ has the capacity to consent to and engage in sexual relations

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“Eggs, eggs, damn all eggs!”

Posted on October 2, 2013 by suesspiciousminds

Judicial wrath about the pervasiveness of the word “concerns”  in a care case, and the word being used to mask the lack of substantiated evidence or allegations.

Re Avon, North Somerset and Gloucestershire Public Law Case 2013

 http://www.familylawweek.co.uk/site.aspx?i=ed117568

(The title is taken from the Master, P G Wodehouse, who described Bertie Wooster’s uncle, Lord Worplesden, as having one day come down to breakfast, lifted the silver platter and shouted “Eggs, eggs, damn all eggs!” before fleeing home and never being seen again.   I just like it as a pithy way to convey the feelings of sheer hopeless exasperation)

The Judge in this case made a number of complaints about issues that had arisen in the case – he anonymised the LA involved, by naming all three who regularly appear before him  (nice for the one in trouble, who got to hide in the shadows, but rather rough on the two completely innocent ones who get tarred with the brush of suspicion when they had nothing to do with it)

 

Many of the complaints, though made about the LA, also relate to judicial decision-making (the listing of a finding of fact hearing, the absence of a proper schedule of allegations, the delay, the proliferation of expert evidence – none of which can be done by an LA in isolation, the Court has to shoulder some of the responsibility for this)

 

But then it gets into interesting territory, where the Judge talks about the reasons given by professionals for not wanting to place the children with grandparents

 

 

10.  Time and again I was told that the Local Authority had ‘concerns’ about issues (the word ‘concern was used by the Local Authority advocate more than twenty times in one day). Those ‘concerns’ were not substantiated by direct evidence and should have been. I give this very clear example. The head teacher of a school was called to give evidence about events relating to the other children in the grandmother’s household. Her statement was about events in July 2013 and suggested difficulties within the grandmother’s home then. I asked [sic] whether the events of which she was speaking were representative of the school’s perception of the grandmother’s overall care of those children. I was told from the witness box that there were many other things that the school could say and would want to say. They were not contained in any statement but, I was told by counsel for one of the Respondent parties, reference to them could be found ‘dotted around’ the four lever arch files. Evidence was also available from the health visitor (but did not feature in any statement). If a Local Authority seeks to substantiate an important contention it must do so on direct evidence where that evidence is available. Hearsay evidence is admissible but that does not mean that a Local Authority can dot its contentions around a bundle and then expect a court to reach satisfactory conclusions on issues of such fundamental importance to children and families.

 

 

That does, to me, raise two very important issues.

 

Firstly that the word concern can be waved around in Court and be emphasised and repeated so much that ‘concerns’  (which end up being rather less than ‘allegations’ and far far less than “proven or determined facts”) begin to morph from an insubstantial wisp to solid reasons for not doing something.  I think the Court is right to drag everyone back to the foundation that we work on evidence and proven or provable FACTS, not flights of fancy.  Even where a risk is put as being one that “Cannot sensibly be ignored”   that determination has to be made on the Court establishing that facts that lead up to that risk are made out on the balance of probabilities.

 

Secondly, we are back on the issue that “Judges are not forensic ferrets”  – if the nub of the case is not gathered together in one place (with cross-referencing) but is dotted around the papers hither and thither, to be found by only assiduous reading, that simply won’t do.

 

 

This led on to the Judge’s proper criticism that what seemed to happen with the assessment of the grandparents is that professionals devoted all of their attention to negative criticisms and gave no thought or weight to the potential advantage of a child being cared for within the family or the potential disadvantages to the child of being cared for by strangers (the very heart of Re BS)

 

11. the unprincipled approach to welfare issues. Entirely omitted from the special guardianship report and much of the other welfare analysis were two matters which were of utterly elementary and fundamental importance:

i) The effect now of removing the boy from the grandmother. In welfare checklist language, what would be the effect on the boy of the proposed change in his circumstances that would arise if removed from his current home and what are his emotional needs to remain a part of his current household?

ii) The significance of the boy maintaining his place as a child cared for within his natural family. The boy has an established family life with his grandmother (Article 8 of the Convention was therefore engaged). He had spent the majority of his life in a household with other children there (aged 10, 12 and 15). His step grandfather had played a very full role in his upbringing. By remaining in his family he would continue to see his mother in structured contact.

12. I found it deeply demoralising that these simplistic issues could pass without even being mentioned. What happened in the hearing is that all possible negative points about the grandmother were explored in evidence. At least some of them had no foundation at all. Some of these negative ‘concerns’ were expressed in superlative, wholly unjustifiable and internally contradictory terms, especially within the special guardianship report. For instance I heard in oral evidence that the grandmother was not child focussed and did not co operate with professionals; that was not borne out by the report of the person who said it (or by the evidence of others) and was manifestly unbalanced. It is to the credit of the grandmother that she maintained her decorum whilst this whirl of ill considered evidence was being given about her.

 

Following Re BS, the obvious remaining piece of the jigsaw is going to be how the Court approach the assessment of family members and having a much more robust approach to testing the Local Authority’s assessments where these are ‘negative’   – and indeed whether there ought to be some ‘test’ that ought to be applied by the Court to determining whether a child could be placed with a relative notwithstanding that this is not the Local Authority’s plan.

 

I believe that the Court of Appeal might be mulling this issue at present…

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“Your Honour, may I hand up my case summary, and a pastrami on rye?”

Posted on September 30, 2013 by suesspiciousminds

Do judicial decisions fluctuate with extraneous factors, such as how hungry the Judge is?   Of course not, you foolish Suesspicious Minds…   Or rather, maybe they do, but only for those American judges, and even then only when they do criminal cases…  Or rather, gosh, I don’t want to be last case on before lunch anymore…

One of the joys of writing this blog is that as a result, smart people send me things. One such smart person has sent me this lovely piece of psychological research, by Danziger, Levav, and Avnaim-Pesso

http://www.pnas.org/content/early/2011/03/29/1018033108.full.pdf+html

I love that one of the tags on the research is “legal realism”  – I want to become a researcher into legal realism – how do you start, where do you go, who do you need to know?

What these researchers did, was gather information from Israeli criminal courts considering applications for parole.  They looked at whether the timing of the parole application had any statistical bearing on the outcome, and judged a “positive outcome” as parole being granted.

Now, the timing ought not to have any impact on this, the cases come in randomly and each case will be judged entirely on its merits.

But that isn’t what the study showed. What they say is that at the start of the day, the positive outcomes were around 65% of cases, and then as the cases got closer to the lunch interval the positive outcomes sank to almost zero. And then after lunch, the positive outcomes went back up to around 65%.

They weren’t able to say for certain whether it was the break that led to the positive outcomes going back up or whether it was the Judge being able to eat during that break, but it was clear that there was a clear decline in favourable decisions for defendants as the sessions went on, with that being wiped clean after a break.

They also look at previous research that suggests that “making repeated judgments or decisions depletes individuals executive function and mental resources which can in turn influence their subsequent decisions”

(If you are interested in whether Judges are creatures of pure reason, that sentence is a bit worrying – suggesting that the more judging you ask one to do in a given period of time, the worse they might do at it.)

This is also interesting – this mental depletion over time tends to lead to the decision that reinforces the status quo being made more often than a decision which significantly changes the situation. Obviously if you are in prison and want the judge to agree to parole, you don’t want the Judge to be drained and plumping for the easy option of the status quo.

Finally, our findings support the view that the law is indeterminate by showing that legally irrelevant situational determinants—in this case, merely taking a food break—may lead a judge to rule differently in cases with similar legal characteristics.

 

Although our focus has been on expert legal decisions, we suspect the presence of other forms of decision simplification strategies for experts in other important sequential decisions or judgments, such as legislative decisions, medical decisions, financial decisions, and university admissions decisions. Our findings add to the literature that documents how experts are not immune to the influence of extraneous irrelevant information

 

 

 

I am of course sure that our own judiciary are utterly immune to these matters and are made of sterner stuff than our Israeli cousins, but nonetheless, if you are aiming for the status quo to continue, try to get in at about 12.30, and if you want to persuade the Judge to make a change, either get in at ten, or stall until 2.00pm.

And if you have a Judge who is floating the idea of sitting straight through and not having a lunch break at all, you may want to politely decline.

[Suesspicious Minds will buy a pastrami on rye for the first person who can genuinely confirm and independently verify that they have addressed a Judge and handed up this research]

 

 

[Edited because I had stupidly put that the study was of American judges, when it was in fact of Israeli judges… ]

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Always/never

Posted on September 29, 2013 by suesspiciousminds

I’ve been reading a book by Eric Schlosser recently, called “Command and Control”  – it is primarily about the history of incidents and accidents in America with nuclear weapons, Schlosser’s research turning up an eye-watering number of hushed-up accidents with nuclear bombs and missiles in America, including the centrepiece of his story a fire in a nuclear missile silo where workers battled to stop the fire detonating the warheads.

 

http://www.amazon.co.uk/Command-Control-Eric-Schlosser/dp/1846141486/ref=sr_1_1?s=books&ie=UTF8&qid=1380449302&sr=1-1&keywords=command+and+control

It is a great book, with there being something good on every page (following the Raymond Chandler edict of “put a diamond on every page”) – whether that be Fermi’s calculations about the possibility of the first nuclear explosion potentially going wrong and setting fire to every atom of oxygen in earth’s atmosphere (that would be a bad thing), the fact that in the early days of the Cold War whilst US media politicians and military spoke about how the US military stockpile of nukes could wipe Russia off the map they actually had just one functioning nuclear weapon (“for all the talk about the stockpile, there was no stock, and there was not even a pile”), the naming of the early computer system to plan nuclear conflict being called M.A.N.I.A.C, the British nuclear bunker to plan for life after the apocalypse having a pub called “The Rose and Crown” in it, and much more.

But the bit that struck me, and is applicable to this blog generally, is the battle that the US had over this dilemma, “Always/Never”.  They wanted to make nuclear weapons that would ALWAYS detonate and work when they wanted them to, but would NEVER go off when they weren’t intended to. That means that they had to be reliable and ALWAYS detonate when fired, but had to be sturdy and strong enough to survive maintenance, fires, the planes they were in crashing or being shot down, even accidents with testing.

And that was a goal on paper, but the reality was that the show was being run by the military, and thus the “ALWAYS” part had priority. For them, it was more important that they knew that if the Russian planes or missiles went up, they could launch and hit their own targets and get the job done; than the risk that an accident might occur. Whilst the calculations on “NEVER” seemed pretty good – a one in ten million chance that any individual nuke would go off accidentally, when multiplied by the number that they ended up with, the risk ended up feeling pretty unpalatable. (And as Schlosser identifies, there ended up being hundreds of incidents where things went wrong with nukes, sometimes quite badly wrong)

 

Now, in child protection, we also run an “ALWAYS/NEVER” ideal.  Children who are going to be seriously hurt or killed by their parents should ALWAYS be protected and kept safe, and children who ought to be at home with their parents should NEVER be removed.  As Munro and others have identified, this ideal is never going to actually work 100% of the time in practice. The myth for a long time was that with more information, more assessment, more structure, more procedures, more rigour, we could get very very close to that 100% figure, but that’s only a myth.

At the moment, like the US military in the Fifties and Sixties, we are more focussed on the “ALWAYS” portion of the equation – we strive for ALWAYS/NEVER but the ALWAYS bit is more important. I can’t really think of a time when the fear of getting another child death has been higher, post Baby P, but as you can see, even with that heavy focus on child rescue, individual tragedies still occur.  Looking at the Looked after Children statistics recently published by the Department for Education https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/244872/SFR36_2013.pdf  in amongst the (imho wrongly triumphalist) boasting about the increase in number of adoptive placements found for children, is the incredible statistic that the numbers of children currently the subject of Placement Orders   (the legal order which sanctions an adoptive placement being found for the child) has gone up by 95% since 2009.   Ninety-five per cent.

 

Even against that backdrop, the Serious Case Reviews and child deaths continue to happen. Even when everyone is very heavily focussed on ALWAYS, the truth is that you can’t keep all children safe.

 

And of course, whilst a mistake in the ALWAYS part of the equation is easy to detect – the child dies, there is an inquest, a criminal trial, a serious case review – everyone knows that something went badly wrong;  any mistake in the NEVER part of the equation is harder to pick up. You can tell if you took too much of a risk with a child, because something awful happens. But you can’t tell if you were far too cautious with a child, because that child doesn’t go home, the family is broken up and you never know whether that was the right call or not.

Our legal system is intended to be the check and balance on the NEVER part of the equation – we have laws and case law which makes it plain how important family preservation is, and a forensic process that gives parents free legal advice, the opportunity to present their own evidence and to test the evidence against them, with independent judges to make decisions, and an appeal process as a safeguard for those individual judgments getting it wrong.

 

All of that isn’t foolproof though. It would be hard to devise a foolproof system – I know that some of my regulars believe that the threshold for child protection intervention ought to be more like criminal offences, and that cases should be decided by juries not judges. That may or may not help, but we only have to look at criminal trials to realise that things go wrong with those – the wrong people do get convicted; and undoubtedly a criminal definition of threshold, a criminal standard of proof, a jury system would be moving much more towards the NEVER side of the equation.  ( In our criminal justice system we accept the possibility that guilty people may go free as an acceptable price for ensuring that innocent people are not punished – and even then sometimes it still goes wrong and innocent people go to prison)

 

I don’t have any solutions – I think really my point is that there isn’t a solution that will deliver ALWAYS/NEVER in child protection – you’ll make mistakes on both sides of that equation, and lurching too much to either side produces more mistakes on the other.  It is important to remember that you are trying to balance family preservation and child rescue, and that this is a difficult task and there’s no easy shortcut to getting it right, and that sometimes with all the best intentions, individual mistakes will happen and get past the system. Each of those individual mistakes is life-destroying for families and for children.

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Some people think I’m conkers, but I just think I’m free

Posted on September 25, 2013 by suesspiciousminds

 

(No law at all, skip if you are busy)

 

I was walking my excitable (and occasionally rumbunctious) dog this morning and we came across our first conker of the year. It was nothing special, just a small brown sphere, but it took me back over twenty years (who am I kidding, nearly thirty) to a time when conkers were the most important thing in the world to me for a few short months.

I spent my autumns collecting conkers, getting out early at the weekends and spending hours either looking down at the leaves on the ground to see if amongst them lay the spikey green case that promised conkers, or up in the branches to see the ones gathered that offered promise of being a good one. I gently prised them open (if they are hard to open, they aren’t ready, so I would leave them) and hoped that they would open cleanly and produce a shiny glistening perfect conker, not the ones coated in sticky white goop. Then I would go home with my haul, usually a couple of carrier bags and sort through them, finding the best ones. By winter, it wouldn’t be unusual for me to have two hundred or more that had made it to the “keep” pile. Then they would harden and wizen like wooden balloons and my mum would throw them away.

I have never played a game of conkers in my life. Not once did I ever pierce one and hang it by a shoelace, or coat one in nail varnish, or bath one in vinegar or bake one in the oven.

Looking back now, I can recall the delight and sheer joy of finding the perfect conker – it has to be very round, a good size, the flat part has to be entirely on the bottom (I hated lop-sided conkers), no cracks along that base, the perfect deep shade of brown and the shiniest surface you could encounter. I remember that feeling very vividly, but I can’t find any recollection as to just why it brought me such joy – why I spent so many hours foraging for them and sorting through them every time I had a new batch to see if some of the previous “Keeps” were now overtaken by new ones.  Why did I do it? Why did I bother? I honestly have no idea now, years later.

I spend my professional life now, trying to understand and predict people who are strangers to me, but I can’t perfectly understand the person I lived as for many years. There are limits to what all of the knowledge and information and documents will ever give you about another human being – I don’t even think we really get to know ourselves totally.

The writer Neil Gaiman speaks about the perfect story in your mind, when you first imagine it, being like a bubble – perfect and spherical and shiny and ever so fragile, and that almost all writing is about trying to get farther away from the lumpy flawed version that comes from your mind onto paper and closer and closer to the perfection you imagined it might be.  That’s what I was searching for with my conkers, I suppose, the idyllic perfect one of my imagination.

 

Sorry for being all flowery and Pseud’s Corner on you, but the memories and recollections of what Chesterton called “numinous” – those times when you can just feel awe and wonder and delight in something which appears so simple are something dear to my heart. We get only flashes in adulthood of the wonder and delight that came to us so frequently when we were children.

 

(If you want to read a proper writer describing a numinous experience, G K Chesterton’s essay “On a Piece of Chalk” is linked here, and it is probably one of my favourite ever pieces of writing.

http://www.gutenberg.org/files/8092/8092-h/8092-h.htm#link2H_4_0003 )

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May it please you – more legalese

Posted on September 24, 2013 by suesspiciousminds

 

Focussing on cross-examination this time.  

You’re not an accurate historian  (you are a liar)

 

Your recollection of those events doesn’t entirely accord with the documentary evidence (you’re a liar and I can prove it)

 

What I don’t understand about your account is how it fits with this entry in the records here  (you’re a liar, I AM proving it, but I am also a bit worried that you might hit me when we leave the Court room)

 

You’re a liar  (I am far enough away from you at the moment to be confident that you won’t hit me, but I wouldn’t say that to you at the coffee machine outside)

 

You’re wrong, aren’t you  (I am pretty confident in myself, but haven’t really got a good fallback plan when you say “no” to this…)

 I’d like to suggest to you, if I may   (I am myself a bit embarrassed at having to make this dumb point, and as a lawyer, I don’t embarrass that easily)

 Could it, in fact be the case that  (it isn’t, but please humour me)

 It’s right, isn’t it ?   (It’s not right, but it COULD be, in a world where slightly different laws of physics apply, surely)

 I put it to you  (Hello, this is my first case!)

 On the night in question  (Hello, this is my first case, and I watched Law and Order last night!)

 I put it to you that on the night in question   ( “I watched Matlock in a bar last night. The sound was off, but I think I got the gist of it”  © Lionel Hutz, Attorney at law)

 It’s possible, isn’t it?  (This is pretty fanciful, but I have to ask you… i.e a really big gust of wind blew the cot over? And then another one blew from the other side and blew it back, so nobody could tell by looking at it?)

 It’s not impossible, is it? (This is really fanciful, but I am running out of other options.  I may well be suggesting now that a dog, or a burglar caused these injuries)

 It’s not completely impossible, is it?  (So, the burglar HAD a dog… After this, my next best explanation is that “A wizard did it”)

 It’s not outside the realms of possibility  (So, a guy in a grey robe with a long beard appeared, and told my client “I’m going to do this bad thing, and then you will get the blame for it, bwah-ha-ha”)

 You couldn’t absolutely rule out, could you?  (So, basically, a wizard did it, and then turned invisible, leaving no trace that they were ever there)

 Are you sure?  ( Hey, I’m dumb enough to take a bad answer and allow you to emphasise it and make the point stronger)

 Are you quite sure ?  (Maybe the Judge didn’t hear your damaging evidence the first two times, so let me REALLY reinforce how bad this is for my client)

 Are you absolutely sure of that? (“I watched Matlock in a bar last night…”)

 I think I’ll move on to another topic (I thought I had some more questions on this, but I’ve lost that bit of paper)

 Moving on to another topic  (Your evidence on that bit has sunk me, so I need to get out of that area quickly.  BEEEP BEEEP BEEEP  – this barrister is reversing, this barrister is reversing)

Let’s leave that, shall we  (As above, but I am much much calmer and better at hiding my impending sense of panic. Hey, have you ever played poker? We have a friendly game once in a while…)

 

Setting aside x, y and z for a moment   ( Pretending that all of the possible bad bits of the case don’t exist, that would make my client look better than if all those bad bits were true, wouldn’t it? )

 

Without a shred of evidence   (If there wasn’t evidence, I wouldn’t have to make this point histrionically, would I?)

 Without a scintilla of evidence  (as above, but with the added risk that a Judge might ask me what a ‘scintilla’ actually is and I’ll have to bluff and say that it is Latin for a really, really really tiny piece; or that I mispronounce it and that if you went to the right schools the “c” isn’t really silent)

Whilst that may be mainstream thought on this issue at the time….    (On my ninth page of results on Google, I found this article that might help me)

 

There is a body of opinion that says   (Okay, it was on my twelfth page of Google results, and frankly this might be some lone nutjob saying this)

 

Our understanding of medical science develops and changes over the years, and it might be that things we think we understand fully now we will acknowledge in years to come that there were really huge gaps in our knowledge   (There MIGHT really be wizards  /  I am a High Court judge)

You shall NOT PASS  (I am a wizard)

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Top Judge slams telly chef’s Quickie Divorce

Posted on September 23, 2013 by suesspiciousminds

 

 

I have grumbled from time to time on Twitter about how there only seem to be two sorts of Judges in England according to the Press  – “Top Judge” if they are saying something the newspaper agrees with / are involved in a saucy scandal, and “Out of Touch Judge” if they are saying something the newspaper doesn’t agree with.  I am also pretty regularly driven to ire by the formulation “Quickie Divorce” which newspapers routinely state celebrities are getting, as though there were some special Matrimonial Causes Act which applies only to celebrities and not to mere mortals – those people on television can get their “quickie divorce” whereas you ordinary folk have to make do with divorce at a snails pace, probably with the petition being carefully prepared by Dickensian lawyers with quill pens. For heaven’s sake, the Matrimonial Causes Act which let people divorce on the grounds of unreasonable behaviour without having to prove adultery or wait two years is only forty years old.   It’s hardly some new-fangled initiative.

 

Having grumbled, I have now stumbled – upon this book which deals with “journalese” the strange mangling of the English language which feels the need to use the expression “innocent victims”  (as opposed to those ones who were asking for it), “slide rule pass” – using a metaphor for a type of mathematical calculating device that hasn’t been used in schools for 40 years, and the curious conceit by which hot temperatures are still expressed in Fahrenheit (which again, left common use thirty to forty years ago) whilst cold ones are expressed in centrigrade

 

Romps, Tots and Boffins

http://www.amazon.co.uk/Romps-Tots-Boffins-Strange-Language/dp/1909653438/ref=sr_1_1?s=books&ie=UTF8&qid=1379960559&sr=1-1&keywords=romps+tots+and+boffins

 

It is very funny, and a rattlingly good read.

It did get me thinking of “legalese” – not the stuff like “Easements” and “Notwithstanding”, but the expressions that seem to only be used by lawyers, a job which after all is 50% communication (the remainder being paperwork and worrying) and which are fairly impenetrable.  The stock word “draconian” for example, I think only sees usage now in Court rooms and for most non-lawyers who hear it means either next to nothing or “A bit like that blonde nasty lad in Harry Potter”

 

Here are some of my legalese suggestions – others gladly received

 

On all fours with  (It’s quite similar to another case in precedent)

At first blush  (I originally thought X, and I bet you did too, but you’re wrong, and here’s why)

Not all my geese are swans (my client turns out to be a liar/wife-beater/back on heroin)

Getting my ducks in a row (I haven’t read much of this yet, and I need to sort things out)

I know not   (I do love this one, it is the only way to say “I don’t know” in a way that sort of makes you sound smart)

This debate has generated more heat than light  (This is a stupid argument, and I’m bored of it)

My client has yet to crystallise their position  (I did steal and use this myself – again, it sounds much better than “We haven’t made up our mind yet”)

My client is entitled to a fair hearing, you know  (I have already decided what I’m spending this brief fee on, so I’m not giving up)

The situation remains somewhat fluid  (Your Honour, if you had been outside court, you would have seen that all hell is breaking loose)

The Court has yet to get under the bonnet of this case (we haven’t so far been in front of a Judge who has read any of the papers)

That is of course, an option (are you mad?)

Perhaps the inherent jurisdiction offers a solution  (I can’t think of an order that will let the Court do what I’m asking for)

I hear what you’re saying  (no)

Let me get back to you on that (no)

Let me just run that past my client (no)

Having taken instructions on that issue (warning, forthcoming no)

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