Author Archives: suesspiciousminds

Inconsistent statements and eating more porridge than Orinoco Womble

Posted on September 19, 2013 by suesspiciousminds

The decision of the Court of Appeal in Re L-R (Children) 2013, which was an 18 month sentence for not giving evidence

http://www.familylawweek.co.uk/site.aspx?i=ed117035

The case involved the appeal of a father from a committal for contempt for his refusal to give evidence in care proceedings during a finding of fact hearing and he received an 18 month custodial sentence as a result of the committal.

I have written before about where section 98 stands, now that section 119 of the Criminal Justice Act 2003 allows for evidence of inconsistent statements to be used in criminal proceedings.

Section 98 is designed to do two things – firstly in subsection (1) to compel a parent to give evidence in care proceedings and (2) to ensure that their right to silence in criminal proceedings is preserved by ensuring that the evidence they give in care proceedings can’t be used against them in criminal proceedings.

“98 Self incrimination
(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.”

In the writer’s humble opinion, the intention of section 98 is a very important one. In order to properly and fairly decide matters relating to children it is vital that the Court hear frank and candid evidence from parents, and in order that they feel able to give that evidence with candour and honesty it is vital that they be able to do so without fear.

The father in this case, and other parents in other cases where criminal proceedings are pending or contemplated, are receiving conflicting legal advice. Their family lawyers are telling them of the need for frankness and candour, and the criminal solicitors are warning them that if they speak frankly and candidly, those words might come back to bite them in criminal proceedings.

It is therefore very disappointing that when given the opportunity to resolve this tension, or to indicate that in relation to evidence given in court in family proceedings, s119 CJA might be incompatible with Article 6, the Court of Appeal firmly pushed the problem over to the criminal courts.

16. In this appeal we have been invited to give guidance on the approach to be taken in this regard where there are concurrent criminal proceedings and family proceedings. For my part I do not see that the issue arises in any form on the facts of the present case where, as I will in due course relate, Mr K effectively provided no material information to the Family Court that might fall for disclosure into the criminal process.

17. Going further, and looking at the matter more generally, the position as a matter of law and practice in the Family Court has been well settled since Re EC. If problems are to arise, they are much more likely to surface in front of the criminal judge in the Crown Court and relate to how any disclosed material is to be deployed in the criminal process.

18. As such it seems to me that this civil court, both on the facts of this case where the issue simply does not arise and more generally, should resist the encouragement to give general guidance on this topic.

In doing this, and in upholding both the committal for contempt for not giving evidence and the sentence, the Court of Appeal have put parents and those representing them in a considerable spot.

In the family proceedings, the parent must give evidence – if they do not, not only will adverse inferences be drawn, but they may be committed for contempt and face a custodial sentence. That sentence might be 18 months. Their family lawyer MUST therefore advise them to give evidence.

But it is uncertain whether that evidence can be deployed by the police and CPS in a criminal prosecution IF it shows that the parent has given an inconsistent statement. (If father gives a no comment answer in police interview, but answers the same or similar question in the family case, that appears to me to be capable of being an inconsistent statement)

That being the case, their criminal lawyer would have to advise them that for the purposes of the criminal trial, it would be better for them not to give evidence in the family court.

Until such time as a criminal court decides – yes, s119 CJA 2003 overrides s98 Children Act 1989 and that the evidence of an inconsistent statement can be used in the prosecution of a parent for an offence other than for perjury, OR determines the opposite, a parent may very well be unwillingly waiving their right not to self-incriminate and their right to silence. They are at least taking the risk that they might be.

Imprisoning someone for following legal advice doesn’t sit too well with me. I hope that the criminal courts do address this issue soon. I suspect that if and when they do, it will be in favour of s119, not s98 – the criminal courts are certainly far more familiar with the former than the latter.

The other approach is for the family courts to row back from the previous policy of generously giving the police information and material that might inform their investigation, pace Re EC [1996] 2 FLR 625 which established that the Family Court can and often does disclose transcripts of oral evidence given, or copies of witness statements provided by parents or other records in expert reports or social work documents of what parents have said into the criminal process.

That case of course, was decided on the basis that the parents were protected wholly from self-incrimination by s98, which may no longer be the case.

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The Daniel Pelka serious case review

Posted on September 19, 2013 by suesspiciousminds

In case you are not aware, a Serious Case Review is an inquiry conducted after the death of a child known to professionals, headed by an independent chair, with the aim being to look at what happened, whether anything went wrong and whether anything can be learned from the process.

The Serious Case Review is here http://www.coventrylscb.org.uk/files/SCR/FINAL%20Overview%20Report%20%20DP%20130913%20Publication%20version.pdf

Most of you will have heard of Daniel Pelka. The Serious Case Review summarises the tragic story like this:-

2.1 Daniel was murdered by his mother and stepfather in March 2012. For a period of at least six months prior to this, he had been starved, assaulted, neglected and abused. His older sister Anna was expected to explain away his injuries as accidental. His mother and stepfather acted together to inflict pain and suffering on him and were convicted of murder in August 2013, both sentenced to 30 years’ imprisonment.

2.2 Daniel’s mother had relationships with 3 different partners whilst living in the UK. All of these relationships involved high consumption of alcohol and domestic abuse. The Police were called to the address on many occasions and in total there were 27 reported incidents of domestic abuse.

2.3 Daniel’s arm was broken at the beginning of 2011 and abuse was suspected but the medical evidence was inconclusive. A social worker carried out an assessment but no continuing need for intervention was identified.

2.4 In September 2011, Daniel commenced school. He spoke very little English and was generally seen as isolated though he was well behaved and joined in activities. As his time in school progressed, he began to present as always being hungry and took food at every opportunity, sometimes scavenging in bins. His mother was spoken to but told staff that he had health problems. As Daniel grew thinner his teachers became increasingly worried and along with the school nurse, help was sought from the GP and the community paediatrician.

2.5 Daniel also came to school with bruises and unexplained marks on him. Whilst these injuries were seen by different school staff members, these were not recorded nor were they linked to Daniel’s concerning behaviours regarding food. No onward referrals were made in respect of these injuries. At times, Daniel’s school attendance was poor and an education welfare officer was involved.

2.6 Daniel was seen in February 2012 by a community paediatrician, but his behaviours regarding food and low weight were linked to a likely medical condition. The potential for emotional abuse or neglect as possible causes was not considered when the circumstances required it. The paediatrician was unaware of the physical injuries that the school had witnessed.

2.7 Three weeks after the paediatric assessment Daniel died following a head injury. He was thin and gaunt. Overall, there had been a rapid deterioration in his circumstances and physical state during the last 6 months of his life.

Whilst one is tempted to cry that this is unique and will never happen again, and that the idea of a child being deliberately starved and this being allowed to happen is a once-in-a-lifetime case, we sadly know that it is not. We all know that it happened in Birmingham just a few years ago, and there’s a criminal trial ongoing on yet another infant that this happened to, right now.

The findings

Daniel’s mother and stepfather set out to deliberately harm him and to mislead and deceive professionals about what they were doing. They also involved Daniel’s sister Anna in their web of lies and primed her to explain his injuries as accidental.

 A pattern of domestic abuse and violence, alongside excessive alcohol use by Ms Luczak and her male partners, continued for much of the period of time from November 2006 onwards, and despite interventions by the Police and Children’s Social Care, this pattern of behaviour changed little, with the child protection risks to the children in this volatile household not fully perceived or identified.

 Missed opportunities to protect Daniel and potentially uncover the abuse he was suffering occurred:-

at the time of his broken arm in January 2011, which was too readily accepted by professionals as accidentally caused,

when the school began to see a pattern of injuries and marks on Daniel during the four months prior to his death, and these were not acted upon, and

at the paediatric appointment in February 2012 when Daniel’s weight loss was not recognised, and child abuse was not considered as a likely differential diagnosis for Daniel’s presenting problems.

At times, Daniel appeared to have been “invisible” as a needy child against the backdrop of his mother’s controlling behaviour. His poor language skills and isolated situation meant that there was often a lack of a child focus to interventions by professionals.

In this case, professionals needed to “think the unthinkable” and to believe and act upon what they saw in front of them, rather than accept parental versions of what was happening at home without robust challenge. Much of the detail which emerged from later witness statements and the criminal trial about the level of abuse which Daniel suffered was completely unknown to the professionals who were in contact with the family at the time.

 A number of critical, significant lessons have been identified by this SCR, which are detailed later, and it is now of utmost importance that they are translated into action by front line professionals and adopted for inclusion within relevant child protection processes and systems and as part of the support and supervision that these professionals require in their day to day work with vulnerable children.

(Eileen Munro has made some interesting comments in the media over the last few days about the tendency of Serious Case Reviews and the media to work backwards from the known tragic and awful outcome to then look at things that in the light of that seem obvious indicators that a tragedy was imminent, without necessarily recognising that similar things do happen in families without such awful consequences. I think her interview is both timely and brave http://communitycare.rbiblogs.co.uk/childrens-services-blog/2013/09/eileen-munro-admits-i-cant-say-i-would-have-done-better-in-protecting-daniel-pelka/ . The natural human reaction when hearing a story like Daniel’s is that we MUST be able to prevent this sort of thing happening to a child and that if we didn’t then it MUST be due to a professional having screwed up. Sadly, it’s a bit more complicated than that. What Munro says about bruises here is very important – you can’t reverse-engineer back that each of those bruises ought to have prompted a reaction without considering what the prevalence of bruising is in children generally)

The information from the body of the report about Daniel’s experiences in that home are heart-rending

It is difficult to speculate what sort of feelings and physical effects Daniel experienced in terms of his issues about food – often referred to as his “obsession”. Certainly the eventual post mortem identified that he was very malnourished and had been subject to serious neglectful care. The school were clearly concerned about his weight and how thin he was, his deterioration since starting school, and of his habit of seeking out food at every opportunity, so much so that it was difficult to control. Daniel however never said he was hungry or spoke about his home life. In reality however no professional tried sufficiently hard enough to engage him to enable him to talk about his experiences at home. Additionally at the paediatric appointment three weeks before his death, he did not communicate in any way with the paediatrician. The injuries at the time of his death were evidence of the high level of trauma that Daniel must have suffered in the later stages of his life, and yet he still attended school on occasions and disclosed nothing of concern. Despite arriving at school with facial injuries on at least two, or more likely, three occasions in late 2011/early 2012, no arrangements were made to speak with him directly or formally about these in relation to any child protection concerns. Without proactive or consistent action by any professional to engage with him via an interpreter, then his lack of language and low confidence would likely have made it almost impossible for him to reveal the abuse he was suffering at home, potentially for fear of retribution if he did disclose anything.

5.11 Additional information gleaned from the range of evidence which became known to the SCR Panel and was then presented at the criminal proceedings, demonstrated that the children’s experience, especially for the period from autumn 2011 until Daniel’s death in early March 2012, was considerably more traumatic than was known to professionals at the time. From early October 2011 there was evidence that Daniel was on occasions locked in an upstairs “box room” in the house which had no furniture and smelt of urine, but had a damp carpet and floorboards. There was a mattress which was soiled and there was no heater or toys in the room. This was apparently used as a form of punishment which was referred to in text messages between Ms Luczak and Mr Krezolek. Although Daniel was also said to have usually slept with Anna in her room, which was appropriately clean and furnished, it was unclear how often Daniel was made to sleep or stay in the box room. It was later acknowledged by Ms Luczak that it was in this room that Daniel died.

5.12 It was evident that Daniel experienced a harsh degree of scapegoating and emotional abuse by Ms Luczak and Mr Krezolek and he was often the sole subject of physical abuse and neglect, which included deliberately depriving him of food, serious physical abuse, feeding him salt and putting him in a cold bath, on one occasion according to Ms Luczak at the time in early February 2012, leaving him temporarily unconscious because he had nearly drowned. There were further disclosures in the court that Mr Krezolek gave out punishments to Daniel which included making him do sit-ups for an hour, or stand in the corner, as well as do squats or running on the spot. What was most concerning was the apparent deliberate way that such punishments were planned in advance. In her statements and in her evidence at the criminal trial, Ms Luczak apportioned responsibility to Mr Krezolek for the abuse and neglect of Daniel saying that if it was found that Daniel had taken other food whilst at school, that Mr Krezolek would not allow him to be fed that evening or that he would be fed salt so as Daniel would vomit up the food that he had taken while at school. This must have been a most terrifying and dreadful ordeal for Daniel to face at the hands of those who should have been caring for him.

5.13 It is challenging to describe Daniel as being neglected physically or emotionally, in that this implies some passivity on the part of his abusers. It is apparent that everything done to Daniel was calculated and deliberate, even his non-school attendance. He did not suffer physical neglect in the ordinary use of the term as he went to school clean and well dressed with a packed lunch, albeit a very frugal one. He likely existed in a constant state of stress and anguish as a result of his terrible treatment at the hands of his mother and Mr Krezolek.

The pattern in the case seems to be one of each incident of concern having been treated in isolation, and of no professional collating and gathering the constellation of concerns and recognising that what was going on here was appalling abuse on a systematic level; despite Strategy Meetings and Core Assessments.

Overall, the “rule of optimism” appeared to have prevailed in the professional response to Daniel’s fracture and to his other bruises. This appeared to reflect a “tendency by social workers and health care workers towards rationalisation and under responsiveness in certain situations. In these conditions workers focus on adult’s strengths, rationalise evidence to the contrary and interpret data in the light of this optimistic view”23 . The explanation of the cause of this injury was too readily accepted as accidental and the initial concerns about the injury quickly downgraded – it remained the case that there was delayed presentation of the injury by a day, and that the medical view was that Daniel would have been in considerable pain, and additionally, that based on medical knowledge and research, the most likely cause of an oblique fracture was physical abuse.

It appeared that the medical diagnosis or evidence was deferred to as being the most significant to any assessment of whether abuse was a cause or not of the fracture. It was understandable that the medical opinion could not be certain of the causation, and once there was the comment from the doctor that the mother’s explanation could be plausible, this appeared to quickly reduce concerns and actions by the Police and CLYP. In fact there were some inconsistencies in the explanations given. What was missing from the Strategy Meeting was recognition that the medical view was not necessarily the most significant contribution to whether physical abuse had taken place. There were the social factors of family life to take into account, the parent/child relationships, the role of the male in the home etc. which all would have added to the overall understanding of whether there was the likelihood of physical abuse within the home.

On the majority of occasions in these sorts of situation, the medical evidence is inconclusive, as it was on this occasion, but to then have accepted this to mean that the injury was accidentally caused, without further robust enquiries, represented that the “rule of optimism”24 was at play in this situation. It might help to prevent this occurring in future similar situations, if the medical view was presented as saying that on the balance of probabilities, the injury was likely to be the result of abuse, (according to research), rather than to report that an accidental cause was plausible.

(This is perhaps the Eileen Munro point – whilst one can adopt a safety first, child preservation approach and that might have saved Daniel Pelka, there is fallout in adopting such an approach across the board, that one ends up intervening at too high a level in other families where things would not have played out as they did here. Whilst the press would have social workers save all children such as Daniel, they are also quick to criticise where action is taken – see the recent headlines as a result of Re J)

I think the SCR do try to take into account the difficult balancing act that has to be undertaken, particularly in this section

14.7 This was a complex case for a number of reasons and it would be too simplistic to identify failings by individual practitioners as the reasons why Daniel was not protected. No individual practitioner works in a vacuum and that was true for this case in that the actions or inactions by individuals was at least partly informed by the management support and advice they received, the efficiency of the systems and processes within which they were working, the training they received, and their workload and organisational context. Nevertheless for future learning, it is important to try to identify some of the reasons why Daniel’s abuse was not recognised and acted upon earlier by practitioners who came into contact with him. These were likely to have included:

– Ms Luczak presented as plausible in her concerns, presented on many occasions as a capable and caring parent (when not in the midst of domestic abuse incidents) and took an assertive stance with professionals. Her manipulation, avoidance of contact with practitioners, deceit and actions (as well as that of Mr Krezolek) were not recognised for what they were and her presenting image was too readily accepted.

– Ms Luczak’s male partners did not regularly present themselves to practitioners and were hardly ever the focus of proactive intervention or enquiry.

– There were no specific concerns about the care of either Anna or Adam; in fact at times they were viewed as well cared for. This did not fit with the pattern that neglect usually impacts upon all children in a family.

– It is relatively rare in cases of child abuse that one child is singled out and scapegoated in the way that Daniel was. The apparent good care of the other children appeared to give a false reassurance that Daniel’s problems were not related to abuse.

– Daniel’s presentation of scavenging for food and his excessive eating when he found any sort of food, as well as being linked to weight loss, was rare to see in a child, and assumptions were then too readily made that his problems were medically based.

– Compared to other forms of abuse, emotional abuse is the most difficult to detect.

– In these circumstances, the practitioners involved were not prepared to “think the unthinkable” and tried to rationalise the evidence in front of them that it did not relate to abuse. The words of a philosopher were particularly relevant in this case in which he says “we see things not as they are, but as we are”42. If practitioners were not prepared to accept that abuse existed for Daniel, then they would not see it.

– No concerns were expressed about the care of Daniel to CLYP or to the school by neighbours or the community. If there were, then these might have added weight to the mounting concerns.

– Neither Anna nor Daniel ever expressed any concern about their care at home.

– Multi agency child protection systems such as Joint Screening for domestic abuse, Strategy Meetings, recording requirements and assessment practice, sometimes failed to support effective coordinated interventions between organisations and practitioners.

14.8 The above list is not meant to explain away the lack of protection that Daniel was afforded by professional interventions, or to give excuses for such practice. It aims to give some possible insight into the way that a particular set of circumstances and dynamics can lead to referrals for child protection not being made and ineffective interventions undertaken which are not sufficiently child focussed, by practitioners who were otherwise committed in their wish to address Daniel’s needs and protect him. Unlike the UK, some countries have a process for mandatory reporting of child care concerns to government departments43, which raises the question that if it existed here, whether injuries seen upon Daniel would have been independently reported by individuals to the authorities

The Lessons Learned are interesting, but one can’t help but read them with a heavy heart, thinking how many times other such Serious Case Reviews or public inquiries have said that we have to learn these lessons.

Is it that workers on the ground aren’t implementing these lessons and taking them on board, or is it that in order to balance a system where the actions of unpredictable people have to be predicted and anticipated and where the State is urged simultaneously both to leave children at home and to remove them, sometimes things will go horrendously wrong?

15. Lessons Learned

15.1 When concerning childcare incidents take place or a crisis arises for a family, these provide key opportunities to intervene at a time when parents may be responsive to change, or children are able to speak of their experiences. To not take proactive interventions at such times will create missed opportunities to protect the children, which may not recur again in such circumstances. Each opportunity which presents itself to protect a child must be taken.

15.2 Reassurances by parents about domestic abuse ceasing and that the children are not affected, need to be robustly challenged and responded to with respectful uncertainty by professionals.

15.3 Sole reliance on a parent’s explanation of events and views about family relationships and associated risks to the children, must be balanced with the presenting objective information available or evidence sought to support or challenge parental assertions. To not do so will potentially leave children at continuing or un-assessed risk.

15.4 Domestic abuse/violence is always a child protection issue and must always be approached with this as the mind-set of professionals.

15.5 No assessment of risks within a family or to a particular child can ever be effective without direct engagement of that child as an integral part of the professional interventions, and in working hard to gain an understanding of their experiences, wishes and feelings. There must be a child focus to all interventions.

15.6 To focus on concerning incidents in isolation and only deal with the “here and now” will not make it possible to take a holistic approach and therefore consider other similar incidents or other concerns at the same time. To be too incident-focussed will mean that the ability to develop an understanding of patterns of behaviour and family lifestyle will be seriously compromised.

15.7 Professional accountability for record keeping, timely reports and recording of key actions from multi agency meetings, is central to professional childcare practice, and to fail to complete appropriate records will significantly compromise inter agency working and reduce the collective ability of agencies to protect children.

15.8 Any facial injuries to a child must be viewed with concern, with physical abuse needing to be actively considered as a possible cause, and clear records, interventions or referrals made accordingly. To have no efficient system to collect and collate details of such injuries and actions will compromise later attempts to protect a child.

15.9 Even small units of service delivery to children and families, such as small schools, require a robust system to ensure collation of child protection concerns and appropriate actions, rather than rely on informal forms of communication within a small staff group.

15.10 Whilst a prominent injury to a child will inevitably attract the greatest professional attention (as occurred with Daniel’s fractured arm), the injury must be seen in the context of any other injuries or bruises, however minor they may be, and for their causation to be separately and then collectively considered.

15.11 For professionals from Children’s Social Care or the Police to defer to medical staff for the provision of the primary evidence to confirm or otherwise whether an injury to a child was the result of abuse or not, could be unhelpful, particularly when no definitive view one way or the other can be given. To do so could lead to any following investigation being inappropriately downgraded and implies that other aspects of the child life are less significant for the purposes of assessing the existence of child abuse.

15.12 When faced with significant and complex concerns about a child‘s welfare, it is essential that professionals “think the unthinkable” and always give some consideration to child abuse as a potential cause of the presenting problems. To not do so would be a disservice to the child involved and potentially leave him/her at increasing levels of risk.

15.13 Professional optimism about a family and of their potential to change or improve their parenting must be supported by objective evidence and that any contra indicators have been fully considered prior to any optimistic stance being taken.

15.14 For any professional to make a decision about their own interventions based on assumptions about the actions or views of other professionals without checking these out, is professionally dangerous practice.

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Lucy in the Skype with diamonds

Posted on September 19, 2013 by suesspiciousminds

Picture yourself in a boat on a river…. The High Court decision in Re ML (Use of Skype Technology) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2091.html

The judgment here is pretty short, but involves two cases where Skype was used to assist in Court proceedings. In one, whilst the Court was wary about using Skype as a vehicle for hearing evidence, a solution was brokered, and the solution ended up being far more cost effective than the traditional video-link method. In the other, Skype was helpfully used to allow the witnessing of the parents signing a consent document (which normally has to be done in the presence of a Guardian) avoiding the need to try to fly a Guardian out to Tibet.

Pragmatic approaches on both cases, and Skype (in the right circumstances, and with the right safeguards) can now be a part of the available toolkit for problem solving.

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“This is some serious B-S….”

Posted on September 17, 2013 by suesspiciousminds

The Court of Appeal decision in Re BS (Children) 2013 is out

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1146.html

This case involved an appeal against a decision to refuse leave for a parent to oppose an adoption application, a Placement Order having already been made. Prior to Re B, this would have been an appeal unlikely to have been given permission, let alone succeed. The law on the test for leave to oppose an adoption application is well-established, and is plainly a very high test for the parent to satisfy. (Some might possibly argue that the existing case law sets a test that is nigh on insurmountable)

The Court of Appeal however, set out the wider context of an appeal dealing with adoption post Re B, and the general mood music of the higher courts in recent days that not sufficient attention is being given to what a serious and grave order a Placement Order or adoption order is.

Adoption – the wider context

· Lurking behind the present case, and indeed a number of other recent cases before appellate courts which we refer to below, one can sense serious concerns and misgivings about how courts are approaching cases of what for convenience we call ‘non-consensual’ as contrasted with ‘consensual adoption’; that is, cases where a placement order or adoption order is made without parental consent. Most frequently, parental consent is dispensed with in accordance with section 52(1)(b), on the footing that the welfare of the child requires the consent to be dispensed with. But we must not forget the not inconsiderable number of cases where parental consent is dispensed with because the parent lacks capacity.

· We – all of us – share these concerns.

The Court of Appeal go on to set out the law as refreshed and refined by Re B, that adoption is the last resort and that it can only be the plan where “nothing else will do”

But this is new , though using Lady Hale’s judgment in Re B as a beginning:-

29 It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.

Hmmm. That seems sensible on the face of it, but of course a Local Authority could manage any risk at all whilst keeping the family together, if they kept the family together in a residential assessment centre permanently, or they had the family living at home with 18 hours a day visiting from professionals. So clearly there has to come a point in which resources play a part. It would not be reasonable for a Local Authority to spend millions on one family, probably not reasonable for them to spend half a million on one family, just to keep them together. The crunch therefore comes at where what a parent and Court consider to be reasonable allocation of resources to keep a family together clashes with what the Local Authority consider reasonable.

It seems not quite right to me to suggest that the LA cannot run such an argument – of course, the Court must have the ability to reject it and tell the Local Authority that their plan is refused, to make a less interventionist order and that the LA then have to make the best of it. But this formulation rather suggests that the Court can dictate the plan of support in the community.

I am struggling to fathom why a Local Authority should not press for adoption where they are unable or unwilling to support another form of order – surely that is the exact situation in which they would. The Local Authority can’t seek a Placement Order UNLESS they are satisfied that nothing else will do.

In layman’s terms, what this really means is that if the Court is faced with a plan that allows the family to be together, the LA cannot oppose that plan on the basis that the resources required to make the plan work would be unreasonable. That is a major development.

It seems to me that this would hold up for reasonable resource expenditure, but particularly in times of austerity, I suspect that Local Authorities won’t be quietly taking the “blank cheque” approach hinted at here. I also suspect that Barry comes into play in any later challenge.

Moving on, the Court of Appeal gave guidance about the evidential requirements for the Court to make a Placement Order and endorse a plan of adoption. It is fair to say that the Court of Appeal hint that Courts have become too lax, and too reliant on stock phrases and formulas

Adoption – essentials: (i) proper evidence

· First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”.

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”.

We agree with all of this.

· Too often this essential material is lacking. As Black LJ said in Re V (Children) [2013] EWCA Civ 913, para 88:

“I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271. Care should always be taken to address this question specifically in the evidence/ reports and that this was not done here will not have assisted the judge in his determination of the issue.”

In the Plymouth case she had said this (para 47):

“In some respects the reports of the guardian and the social worker, and the social worker’s statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings. However there is surprisingly little detail about the central issue of the type of placement that will best meet the children’s needs … In part, this may be an unfortunate by-product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker’s placement report, of the required pro forma. However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children, and a fully reasoned recommendation.”

· Black LJ has not altered the views that she expressed on these earlier occasions and the other members of the court agree with every word of them. We draw attention in particular to the need for “analysis of the pros and cons” and a “fully reasoned recommendation”. These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. We suggest that such an analysis is likely to be facilitated by the use – which we encourage – of the kind of ‘balance sheet’ first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.

· It is particularly disheartening that Black LJ’s words three years ago in the Plymouth case seem to have had so little effect.

The Court of Appeal go on to address specificially a type of formulation in social work or guardian evidence as to why adoption is required and reject it as being wholly insufficient. Raise your hand if you’ve never seen the case for adoption set out in this type of way

23 The allocated social worker in her written statement recommended that [S] needed:

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

24 With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

25 The independent social worker did not support adoption or removal but did describe the options which were before the court when the mediation opportunity was allowed:

“Special Guardianship Order: This is the application before the Court and which would afford [S] stability, in terms of remaining with the same primary carer and the opportunity to be raised within her birth family. I do not consider that the situation within the family is suitable at present for this Order to be made.

Adoption: [S] could be placed with a family where she should experience stability and security without conflict. This may be the best option for [S] if current concerns cannot be resolved in a timely manner.”

26 In order to choose between the options the judge needed evidence which was not provided. The judge’s conclusion was a choice of one option over another that was neither reasoned nor evidenced within the proceedings. That vitiated her evaluative judgment which was accordingly wrong.”

· Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

· This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

I don’t disagree with any of this – we do need to move away from simply dealing with the enormity of adoption by the stock phrase “It is a draconian order, however” and actually dealing with the rigorous arguments for and against, for the particular children in question. That is going to require substantially more detailed social work and Guardian statements (at exactly the time when the push is towards slimmer and shorter statements)

Next topic – not just the LA making their case better, but judges producing much better judgments.

Adoption – essentials: (ii) adequately reasoned judgments

· The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

· The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

· In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

We need not quote the next paragraph in McFarlane LJ’s judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

· We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

· McFarlane LJ added this important observation (para 53) which we respectfully endorse:

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

· We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

I again, don’t disagree with any of this. I do wonder whether in reality this means that Placement Orders can’t be determined by the Family Proceedings Court – whilst they could make the right decisions, that level of intensity and rigour and analysis in a judgment seems very arduous for a Bench.

At this point, the Court of Appeal clearly recognised that their direction of travel might be perceived as oppositional to the revised Public Law Outline, and are at pains to point out why it isn’t. (Many people, myself included, considered the revised PLO to be largely about a rush to adoption)

Adoption – the current reforms to the family justice system

· First, however, we need to see how all this fits in with the current reforms to the family justice system and, in particular, with the revised Public Law Outline.

· Our emphasis on the need for proper analysis, argument, assessment and reasoning accords entirely with a central part of the reforms. In his ‘View from the President’s Chambers’ the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see ‘The process of reform: the revised PLO and the local authority’, [2013] Fam Law 680, and ‘The process of reform: expert evidence’, [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.

· We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.

My quick view on this – we might finish cases in 26 weeks, but they will be coming back for another round after LA plans rejected and a trial at home hasn’t worked (I hope I am wrong)

With all of that in mind, it isn’t entirely surprising that the Court of Appeal looked at the Warwickshire and Re P tests for leave to oppose adoption, and wrote a slightly new one reinforcing a rather different emphasis

Section 47(5) of the 2002 Act – the proper approach

· Subject only to one point which does not affect the substance, the law, in our judgment, was correctly set out by Wall LJ in Re P, though we fear it may on occasions have been applied too narrowly and indeed too harshly. The only qualification is that the exercise at the second stage is more appropriately described as one of judicial evaluation rather than as one involving mere discretion.

· There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.

· In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent’s ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child’s welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:

i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent’s care.

ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child’s welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.

v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.

viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.

x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: “the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”

I suspect one would see more successful leave to oppose applications. What that will mean for adoptive parents is yet to be seen – also what it means for the Legal Aid Agency who historically don’t fund these applications is yet to betested.

The Court of Appeal go on to set out that the test for the appellant court was whether the Judge was “wrong” rather than plainly wrong, but actually dismiss the appeal itself.

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I’m so mean I make medicine sick

Posted on September 16, 2013 by suesspiciousminds

Ward and Brown’s response to Wastell and White; and Neuroscience in the family justice system begins to be as much about the smack-talk as it does about the experiments and data.

I’ve written before about the scientific research presented to the judiciary by Ward and Brown, and then by the response to that from Wastell and White which basically questioned the conclusions drawn in the Ward and Brown research.

I also more recently did a piece suggesting that if decisions in family courts are to be influenced by developments and research in neuroscience, it might be helpful to clear up this debate and have an idea as to which camp is right or whether the state of the science is just not sufficiently there yet to say definitively. {If you want to read any of those, pop “neuroscience” into the search box to your left}

I will preface all of this by saying that I don’t have a neuroscience background and my only interest is in ensuring that any science informing court decisions is fair; I don’t have a boxer in this fight and am not taking sides. I am instead just a young person by the school gates, watching two others go at it and shouting “Scrap Scrap, Scrap! ” rather than pledging support for one side or another.

What I have now seen is Ward and Brown’s response, which will be published in the September issue of Family Law. That of course, is copyrighted to Jordans, so I can’t post it here, and though a summary of the article is up online, the full copy is not available online for me to link to.

If you can get hold of it, however, it is worth a read.

It would be fair to say that Ward and Brown come out swinging, and basically say that their original research is valid and robust and that Wastell and White are lone voices saying the reverse. (They say that they reviewed 482 pieces of research or papers, and say that the only controversy in this field is that authored by Wastell and White).

I am going to repeat what Ward and Brown say about what their original research says, and what it does not say. I hope that this counts as fair use, and is not intended to impinge on Jordan’s copyright of it (in fact, I hope it whets the reader’s appetite for reading the full piece)

Given that we know that the judiciary have all had Ward and Brown’s paper, I think it is very important that we see what Ward and Brown themselves say about the conclusions, and the possible mischaracterisation of the conclusions.

WHAT BROWN AND WARD (2012) SAYS AND WHAT IT DOES NOT SAY

The research summarised in Brown and Ward shows that the first 3 years are an important phase in early childhood, that neurobiological development is shaped by the environment both before and after birth and that, because infants are so dependent on their caregivers for survival, a key feature of the environment is the attachment relationship. It also shows how extreme abuse and neglect in these early years may shape the way in which children develop in all areas: physically, emotionally, socially and cognitively. Children who experience extreme abuse and neglect in these years are more likely to fall behind their peers and develop a wide range of problems in later life. In addition, the longer the maltreatment continues the more likely it is to have a negative impact on development and the more difficult will it be to overcome the consequences.

The report does not say that these developments are inevitable or irreversible. It does not say that all children who experience poor parenting or grow up in poverty will develop problems. It does not say that children whose development is compromised by abuse and neglect cannot overcome the consequences. It does not say that parents with problems such as substance misuse, domestic violence and poor mental health cannot change. It certainly does not make the claim that courts should remove children from ‘a home environment where their brains are “shrunken” as a result of abuse and/or neglect’ (D Wastell, S White and A Lorek, ‘The child’s timeframe – a neuroscientific perspective’ (unpublished, 2013), at p 45). What the report does suggest is that if these children are to remain at home, proactive engagement with social workers and other professionals needs to begin early.

[When I look at those assertions, they seem fairly uncontroversial and probably right, and frankly almost to the point of being so obvious/bland that they tell me nothing new or useful at all. There you go, something for both camps to like/hate in my summary there. On the formulation above, it is hard for me to imagine a lawyer for either the LA or the parents urging the Court to make use of the research in the decision-making process ]

They robustly defend themselves from the critiques made by Wastell and White, and whilst criticising Wastell and White for intemperate language they don’t seem to shy away from it themselves. The passages in particular about Wastell and White’s criticisms of Harvard’s Centre for the Developing Child, might be considered pretty bullish. To describe this site as ‘selective’, ‘campaigning’, ‘a priori’ and ‘lurid’ is a travesty; no doubt Harvard will be dealing appropriately with these allegations

In effect, by the end of this response, what the non-neuroscientist takes away from it is that we have two camps – both of whom effectively accuse the other of coming to the table with a political agenda and misrepresenting the science in order to further that agenda. The agenda being either the furthering of more and faster adoptions, or an anti-adoption campaign. (Brown and Ward do point out in their response that they have spoken out about the rush for more and faster adoptions)

Perhaps this only looks like a scientific dust-up from the outside, and the real differences between the camps are very important to the scientists, but relatively minor for family lawyers and judges – or perhaps the intensity of the debate is illustrative of those differences being very large and important.

[It seemed to me previously that the fundamental dispute was about plasticity and the difficulty of RECOVERING from neglectful experiences that occurred before the age of 3 – I don’t know whether that dispute has dissipated given what Brown and Ward say that the research does NOT say. ]

We family lawyers are simple folks, but we do have a recipe for dealing with experts who have differing opinions. Firstly, we ask them to meet up, with an agenda and some agreed questions, to see if they can narrow any differences and identify where there is genuine dispute.

And secondly, if that does not result in a consensus, we have the evidence tested before someone independent, like a Judge.

Some Judges even adopt a novel Australian approach called “hot-tubbing” where the experts effectively get into the witness box at the same time (which can be a tight squeeze) and give their evidence concurrently, as more of a panel discussion than sequentially. Perhaps the time has come for a neuroscience hot-tub time machine?

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You have the right to remain silent (or do you?)

Posted on September 13, 2013 by suesspiciousminds

The decision to give permission to appeal in Re K (children) 2013 might well become an important one, when the full appeal is heard.

I have written about whether the statutory position that a parent can give evidence in care proceedings and that evidence may only be used in a criminal trial for perjury – thus giving a preservation against self-incrimination, has been badly eroded

Is there a meaningful right to silence in care cases?

and Re K is a very good example of how this can make a massive difference in the case.

http://familylawhub.co.uk/default.aspx?i=ce3473

The father in Re K had been at the wrong end of a fact-finding hearing about what appear to be very grave allegations (there’s reference to a stabbing and a fire) in private law proceedings – it appears that the original allegations and original findings were that mother had stabbed father and set his home on fire, but these findings were fundamentally reversed at a later hearing, finding that father had done these things himself in order to ‘frame mother’

The Court then adjourned for further assessment, having given the judgment in the fact-finding hearing that father had done things that he ought not to have done. Part of that further assessment inevitably covers whether father has reflected on the findings and come to terms with them. At the final hearing, the Judge formed the view that father had not, and that his unwillingness to move forward was indicative of problems in the future. The father’s position was that he was inhibited by the pending criminal proceedings, and knowing that whatever he said could be reported to the police and ‘shape their enquiries’

The father’s statement made reference to his right to avoid self-incrimination and that as a result he was not able to say anything about the fire and the stabbing, on the grounds that to do so would have potentially incriminated him in criminal proceedings. That obviously made it difficult for him to make admissions or be frank about the circumstances in which those serious incidents occurred, his part in them and why he says that they would not occur again.

Initally, McFarlane LJ hearing the permission hearing was sceptical about the self-incrimination point, believing as so many of us have done, that the provisions in the Children Act 1989 are sufficient to allow a parent to speak freely and frankly without fear that their words will be used against them in criminal proceedings. He made a point of asking father’s counsel whether, if self-incrimination had been removed as a factor, the father’s position was that he would have given clearer answers to the judge and those conducting the assessment, and the answer was “yes”

Although it seems from the permission that McFarlane LJ simply felt that the legal advice that father was following was wrong, and that s98 was a complete protection, he accepted that the father’s statement made it very plain that his position was based on that legal advice about self-incrimination and that there was an argument to be had about whether the trial judge had dealt with this properly or whether the decisions made about father’s contact were based on an incorrect conclusion that father was utterly in denial about the events. Permission was thus granted for the appeal.

It may be that the Court of Appeal either identify that the provision for evidence of inconsistent statements to be used in a criminal trial clashes with s98 and there is a live problem here to be addressed in cases of this kind, or that they conclude that s98 trumps any provision about inconsistent statements and thus what is said by parents in the family court CAN’T be used against them. Either course, frankly, is helpful and preferrable to the current situation where a parent can be criticised for not being frank and forthcoming and has to do so at the potential expense of having what they say used against them in criminal proceedings if it contradicts any previous statement made to the police.

21. I considered it appropriate to ask Miss Nartey during the course of submissions to take instructions on whether, if self-incrimination had not been a factor in the case, the father would have given clearer answers to the judge as to his involvement with one or other or both of these two key incidents, and the answer came back directly on instructions from the father, “yes”, he would. Plainly if he was going to deny matters, then legally and evidentially the matter would be much more straightforward, but he does not take that course. It is a more sophisticated matter. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

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The Delights of a Chemical Smile

Posted on September 13, 2013 by suesspiciousminds

The inherent oddness in prescribing opiate based painkillers to people (and specifically parents) who have had a history of opiate addiction.

The title is drawn from Suede’s classic song, Animal Nitrate, which is probably the poppiest song that appears on the face of it to be about abuse (Suzanne Vega’s “My name is Luka” being the only real competition I can think of right now)

The issue of opiate based painkillers has been on my mind for a while now; there are a raft of them, and those working within child protection will have become pretty familiar with them over the last five years. DF118 being the name that comes up most frequently (dihydrocodeine). More and more often I am seeing this serious painkiller being prescribed to adults who have had a substantial history of opiate addiction, which would be well documented in their medical records. Unlike, say, diclofenac (most commonly known by the brand-name Voltarol) which does not produce any opiate-based sensations, these prescribed medications do induce some of the pleasurable sensations (though on a much lesser level if taken at the correct dosage). If you have had to take them for genuine conditions, you may recall the fluffy sensation rather like being cuddled by a particularly friendly cloud.

I am tending to encounter it (a LOT) with parents, who have become clean for a time from heroin, and have then fallen back into heroin use. When one looks at the test results, or medical records, or very often their own statements, a prescription of dihydrocodeine for back pain, leg pain etc, preceded the relapse into heroin use. Of course, correlation is not causation, but invariably the parent who has relapsed into heroin use then has the twin difficulty of having to detox from heroin AND wean themselves off the prescribed opiate-based medication. Frankly, at present, a parent who is a heroin user who DOESN’T also have terrible back pain or leg pain leading to the need for such a prescription is a rarity.

I do understand chronic and awful pain, I had a very good friend who was very young but had dreadful problems with her hips leading to the need for replacement hips in her thirties, and I am sure that medication like dihydrocodeine absolutely has its place for dealing with pain management at that high end of the spectrum. But I do wonder how much thought is being given to a history of opiate misuse/addiction being a contra-indicator for prescribing this sort of medication. It isn’t doing these people, these parents, any favours, to have a readily available source of opiates.

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Posted in substance misuse and tagged df118, dihydrocodeine, heroin addiction as contra-indicator for opiate based painkillers, opiate-based painkillers. Bookmark the permalink.

Historical amputations and lessons

Posted on September 10, 2013 by suesspiciousminds

Warning, yet again this blog post contains testicles – like the last one (and no doubt, some critics would say, most of them so far have been b******s throughout)

In the early days of surgical procedure, one man stood as a giant amongst his fellow professionals. Liston, often called “The Fastest Knife in the West End”. In those days, prior to anaesthetics, the priority was to get the job done quickly, to get the ordeal over with as soon as possible and hopefully leave the patient alive. One of Liston’s specialities was limb amputation, and he was well reknowned for being able to remove a limb in less than two and a half minutes. Of course, during one of his lightening fast amputations he took the patients testicles along with the leg. On another, it is said that he was sawing and cutting so fast that he took his assistant’s fingers off in the process, and also accidentally cut a nearby spectator. As the patient, spectator, and assistant ALL died of their wounds, this is said to be the least successful operation in history, having had a 300% death rate.

BUT overall , the death rate in Liston’s procedures was 1 in 10, as opposed to the usual 1 in 4. And of course, Liston left medicine with one of the biggest advances ever, being the man who introduced anaesthesia to British medicine and gave it world-wide credibility (the chloroform he used was in practice in America, but Liston popularised its use). Ironically of course, this made his lightening fast surgical skills rather redundant, as for the first time a surgeon could work with care and precision without risking the patient’s life.

It occurs to me, therefore, and this little vignette seemed a decent illustration of it, that speed isn’t always the best measure of something, and that being faster and faster for the sake of it doesn’t necessarily achieve the best results. The Family Justice Review looked very carefully and thoughtfully at how we could make care proceedings more efficient – meaning both faster and less costly, taking as an unspoken premise that our system was already getting good results and what we had to do now was just get them quicker and cheaper. We already had the leg amputation techniques down pat, we just needed to get more efficient at it.

As has been evident to me from writing this blog, and thrown into even sharper focus with the furore about the decision of the President in Re J 2013, there’s a counter opinion to that unspoken premise. There are plenty of voices saying that actually, we aren’t currently getting the core function of family justice (to achieve the right and fair outcome in cases) and that speeding up the process isn’t going to put that right.

Now, I happen to believe that in the overwhelming majority of cases, if one looked at them independently, they would be achieving the right and fair outcomes. One can’t realistically expect a parent who loses their child to feel anything other than hurt and aggrieved and devastated. You’re not ever going to reach a system whereby every parent nods at the end of the case and says “Yeah, that was a fair cop”, but are those who speak out about the system just parents who haven’t come to terms with an awful and painful (but objectively fair decision) or are they actually as they report, the victims of injustice? Are even some of them?

I don’t mean do social workers sometimes make mistakes? Of course they do. All professions make mistakes. I mean, do we have confidence that the system we have in place – which gives the parents the chance to see the evidence against them down on paper, to see all relevant records, to have free legal advice, to question witnesses who accuse them of things, to call their own witnesses to support them, and all of that being determined by a Court who are unbiased and fair and start from the principle that children ought to be at home with parents if at all posible – does that system, catch the times when social workers have got it wrong, have come to a conclusion that might not be the best for the child?

I personally believe and hope that our system does that, but it doesn’t really matter what I believe and hope. We deal in evidence. When the State is given power by the Government, to make recommendations about whether children should live with families, or be adopted, and where the Court is given power by the Government to make the decisions about whether those recommendations are correct; we need to remind ourselves that those powers are exercised in the name of the public, and it is therefore essential that the public have confidence that a system is in place that whilst individual errors might sneak through from time to time, is not inherently flawed or failing.

This is a debate which needs to take place. Not just ‘how can we do it cheaper, how can we do it faster’ – but is the system strong enough to get things right and learn from those cases where mistakes are made? It was very easy in Re J to allow criticism of social workers to take place in the public domain, but did the Court really “own” their own decision-making? That child was removed, and remained in foster care because the Court decided so. The LA ask for the orders, but the Court decide whether or not to make them. If there’s blame there (and we really don’t know about Re J, because no information about the case is in the public domain) part of that blame rests with the Court too.

With that in mind, I can see why the President is in favour of greater transparency, both in his plans to publish anonymised judgments as a matter of routine and in the RE J case of allowing criticisms of the system in language that might seem emotionally loaded to remain in the public domain (so long as the identity of the child remains secret). In doing so, an awful lot changes, and as yet, we don’t know how much will change and in what ways. As the ruler of China said about his thoughts on the French Revolution “It is too early to say”

With these changes, the 26 week timetable, the financial pressure on family law solicitors and the prospect of more and more advice deserts spreading across the country, these are watershed moments for family justice. I’ve seen in a relatively short few years, cases move from the occasional parent being a heavy cannabis smoker to large proportions of cases being about heroin and crack addiction; I’ve seen the internet move from dial-up and “Page not found” – effectively a slower form of Ceefax, to becoming a fixture in most people’s lives, somewhere that can make publishers, documentary makers, journalists of almost anyone who chooses to be one. The times, they are a changing.

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Posted in family justice modernisation and tagged 26 weeks, Public Law Outline, Re J, transparency. Bookmark the permalink.

Transparency and vampire-ish creatures

Posted on September 6, 2013 by suesspiciousminds

Where we are following the President’s decision in Re J (A Child) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2694.html

(Or, as the Daily Mail have reported it, on their front page, providing a link to the contentious video in question “Top Judge’s War on Secret Courts” – I note with interest that their online version of the newspaper in amongst promoting this story heavily also speculates as to whether testicle-chomping piranhas are about to invade English rivers. I didn’t read that article, but I suspect the answer is no)

The broad sweep of the case appears to be that a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable.

I suspect the hearts of the Local Authority sank when they realised that their application for an injunction was to be heard by the President, much as those people long ago who brought their case about nuisance and cricket balls from the local cricket club breaking their coldframes must have had a sinking feeling when Lord Denning strode into Court wearing his MCC tie.

The narrow issue in the case was whether the Court should grant an injunction preventing the publication in the Press or on the internet, of material and in particular a video showing the moments of removal of a baby from the parents by social workers and police officers.

As one can see from the Daily Mail coverage, the application was not entirely successful, and had pretty much the Streisand Effect (the term given when an attempt to avoid bad publicity brings instead an avalanche of even more publicity).

Where the Court ended up was that an injunction until the child’s 18^th birthday was made in these terms

“3 This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service for the purposes of preventing the identification (whether directly or indirectly) of the child of:

(a) The names and addresses of:

(i) The Child, whose details as set out in Schedule 1 to this order;

(ii) The Child’s parents (“the parents”), whose details are set out in Schedule 2 to this order;

(Leaving completely hanging the “whether directly or indirectly” element. Once the video appears on the website of a national newspaper, even if it pixellates the faces of the parents, you get to see an awful lot that would allow their neighbours to identify the parents and thus the child, particularly given that the date of birth of the child and home county is now in the national public domain. I suspect that the ‘indirectly’ part of this is where the difficult semantic arguments are going to be had in future. What if, for example, the father now puts on his Facebook page or Twitter “Can’t believe I’m in the Daily Mail today!” – is he indirectly identifying himself as the father in the case, and hence identifying the child?)

The case is quite important, because it involves a campaign of publicity which the Court has effectively endorsed (short of anything which directly or indirectly identifies the child) NOT following a judgment which concludes that the parents criticisms and complaints are bourne out (such as in Webster or Al Alas Wray) but in the midst of proceedings. The Court has not yet reached any decisions about the future of the child, or whether the parents complaints are justified.

I suspect the view of some of my regular commenters will be that this case is long overdue (and perhaps even that the restriction on names goes too far)

Here is a particularly good soundbite from the parents facebook and video campaign cited in the judgment. It has a sort of Poe / Lovecraftian quality about it.

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.”

The judgment sets out the details of the child’s birth and the parents efforts to publicise the injustice that they considered was occurring

J was born at home on 4 April 2013, the local authority says against medical advice. The father announced J’s birth on Facebook. It included these words: “SS banging on the door we’re not answering” and “ss gone to get epo”. I very much doubt that ‘SS’ was here being used as an innocent acronym for the local authority’s social services. The internet is awash with strident criticism of local authorities, described as “the SS” or “SS”, where it is quite clear from the context that the reader is meant to link the activities of the local authorities being criticised with those of Hitler’s infamous SS. The comparison is grotesque and is, and I have little doubt is intended to be, offensive and insulting – grossly so. I make no such finding against the father in relation to this particular publication but I am willing to proceed on the assumption, though without finding, that the father’s intent was indeed to encourage readers to make the comparison.

Subsequently the father posted on Facebook what the local authority says was the “covert” filming of the execution of the emergency protection order later the same day. J was referred to by name. The next day, 5 April 2013, it was picked up by a website called UK Column Live, which published it via You Tube. It has subsequently been much ‘shared’ on Facebook. Two days later, UK Column Live filmed an interview with the father which it uploaded to You Tube on 11 April 2013. The father and the mother are referred to by name. On 12 April 2013 the father gave an undertaking to remove all the material posted on the internet and within his control that would identify any of the children as being or having been subject to care proceedings. On 1 May 2013 he further undertook to use his best endeavours to secure removal of such material from the internet. Footage of an interview with the parents in the precincts of the court on that occasion was subsequently put on the internet by UK Column Live. W and J were identified by name. Further orders were made on 10 May 2013.

As those who use the internet know, once something has been published on the internet, it can never be 100% scrubbed clean. If J’s name was published on the internet by UK Column Live, then even if it is now removed, it is discoverable by anyone who really wants to find it.

One might think that the audience for UK Column Live, a website run from Plymouth, campaigning hard about what is often called forced adoption, would be fairly limited (though undoubtedly much larger than my own), probably to fellow campaigners and parents who have felt aggrieved by their own experiences. The Daily Mail front page is a rather different matter – anyone who walks into a newsagent or supermarket today will see it. Once the circulation of the story increases, the potential for someone identifying the child as a result increases exponentially.

The judgment deals with some very interesting aspects – the first is really the case for transparency, an issue dear to the President’s heart and one which he has adjudicated on several times in the past. This is the furthest he has gone – he makes a number of points here with which I agree, when setting out how vital it is for the public to be able to know what is being done in its name. (I have underlined what I consider to be the most important passage)

The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction: Re X; London Borough of Barnet v Y and X [2006] 2 FLR 998, para [166].

I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

Almost ten years ago I said this (Re B, para [103]):

“… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.”

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.

The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism. So far as concerns principle I can do no better than repeat what Lord Steyn said in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, where, having referred to Holmes J’s dissenting judgment in Abrams v United States (1919) 250 US 616, he continued:

“freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. … It facilitates the exposure of errors in the … administration of justice of the country.”

This takes me on to the next point. It is vital that public confidence in the family justice system is maintained or, if eroded, restored. There is a clear and obvious public interest in maintaining the confidence of the public at large in the courts. It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism. This principle, as the Strasbourg court has repeatedly reiterated, is protected by both Article 6 and Article 10 of the Convention. It is a principle of particular importance in the context of care and other public law cases.

In relation to the pragmatic realities, I repeat what I said in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, para [133]:

“… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise.”

The family lawyer’s reaction to complaints of ‘secret justice’ tends to be that the charge is unfair, that it confuses a system which is private with one which is secret. This semantic point is, I fear, more attractive to lawyers than to others. It has signally failed to gain acceptance in what Holmes J famously referred to as the “competition of the market”: Abrams v United States (1919) 250 US 616, 630. The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts. As I went on to say:

“… where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77:

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.”

In short, the remedy is publicity, “more speech, not enforced silence.”

The second matter is this. The workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466, 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system require open and public debate in the media. I repeat what I said in Harris v Harris, Attorney–General v Harris [2001] 2 FLR 895, paras [360]-[389], about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system. And the same goes, of course, for criticism of local authorities and others.

This takes me to the third matter. It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish. As I explained in Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89]:

“A judge can assess what is lawful or unlawful, a judge in the Family Division may be called on to assess whether some publication is sufficiently harmful to a child as to warrant preventing it. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting … And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895, at [373]), the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neill LJ recognised [in Re W (Wardship: Publication of Information) [1992] 1 FLR 99] a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public.”

As the Strasbourg court has repeatedly said, “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation:” see, for example, Bergens Tidende v Norway (2001) 31 EHRR 16, para 49.

Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language: see on all this Harris v Harris, Attorney–General v Harris [2001] 2 FLR 895, para [372] and Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89].

It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory or because its dissemination involves the commission of a criminal offence. If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction. If a criminal offence has been committed, the appropriate course is the commencement of criminal proceedings. If it is suggested that publication should be restrained as involving a criminal offence, that is a matter for the Law Officers.

The publicist – I speak generally, not of the present case – may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving. As Lord Oliver of Aylmerton robustly observed in Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248, 1320:

“the liberty of the press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved.”

The remedy, to repeat, is publicity for the truth which lies concealed behind the unfounded complaints, “more speech, not enforced silence.”

(I do think, however, that a fairly simple case for the distinction between privacy and secrecy can be drawn, in relation to preserving the anonymity of children’s identities. Although the vast majority of the public will never go anywhere near care proceedings or social services and thus the issues are outside their usual experience, most people have known someone who has divorced. In a divorce case, most people would agree that it would be wrong for their neighbours or work colleagues to be able to read the lurid and scurrilous allegations set out in the divorce petition or to read the details of what the husband has paid out in his bank statements disclosed into the ancillary relief proceedings. They would understand that the public don’t get to see that because it is PRIVATE. )

The Judge goes on to make some comments about the Internet, and the massive changes it has made to the world of transparency.

It is probably far too soon to be assessing the true implications of all this, and there is no need for me even to attempt to do so. It suffices for present purposes to make three points, building on what Tugendhat J said in MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB), para [11]. First, the internet allows anyone, effectively at the click of a mouse, to publish whatever they wish to the entire world – or at least to everyone who has access to the internet. No longer does the campaigner have to persuade a publisher, newspaper or broadcaster to disseminate the message. So there is very little editorial control. The consequence is that the internet is awash with material couched in the most exaggerated, extreme, offensive and often defamatory terms, much of which has only a tenuous connection with objectively verifiable truth. Second, material once placed on the internet remains there indefinitely and, because of powerful search engines, is easily accessible by anyone wanting to track it down. Third, internet providers are often located outside the jurisdiction, in countries where practical difficulties or principled objections stand in the way of enforcing orders of this court.

All of this, it goes without saying, poses enormous challenges. The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies. We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles. For example, and despite the highly objectionable nature of much of what is on the internet, we must, at least in the forensic context with which I am here concerned, cleave to the fundamentally important principles referred to in paras [37]-[40] above.

The Judge then goes on to consider the ability of injunctions to control what is published in other countries. I think that these passages will be particularly interesting to one of my regular commenters, whose website is hosted in Monaco

But at the outset I make clear that there is, in principle, no objection to the English court in an appropriate case granting injunctive relief against a foreign-based internet website provider. Mr MacDonald has helpfully drawn my attention to XY v Facebook Ireland Limited [2012] NIQB 96, HL (A Minor) v Facebook Incorporated and others [2013] NIQB 25 and Tamiz v Google Inc , affirmed [2013] EWCA Civ 68, [2013] 1 WLR 2151. Other relevant cases are G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), [2010] EMLR 14, and Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753.

I can likewise see absolutely no reason why the same principle should not apply equally in the case of what has come to be known as a contra mundum injunction. In my judgment there is, in principle, no objection to the English court in an appropriate case granting a contra mundum injunction against the world at large, including against foreign-based internet website providers.

(In short, a UK court CAN injunct a publisher, or internet site in another country not to publish material, but one then has to consider the ability of the Court to ENFORCE that injunction if it is breached. The Judge effectively raises the issues but says that resolution of them is for another day, but gives guidance on what the applicant would NEED to do if seeking an injunction to take effect against a person or organisation outside of the UK jurisdiction)

I turn to the question of discretion. There is a tension here. On the one hand the starting point is that the courts expect and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent’s likely disobedience to the order. Romer LJ put the point forcefully in Re Liddell (page 374):

“It has been further contended that even so this order can never be enforced against Mrs Liddell if she chooses to disobey it and that the sequestration of her income would not be for the benefit of the children. It is not the habit of this Court in considering whether or not it will make an order to contemplate the possibility that it will not be obeyed.”^[2]

On the other hand, and because equity does not act in vain, the court will not grant an injunction which is ineffectual or, to use the Latin, a mere brutum fulmen. As Kerr LJ put it in the passage from which I have already quoted, “our courts will not make orders which they cannot enforce.”

What approach should the court adopt in coming to a decision as to how to exercise its discretion? This is a matter for another day, when there is fuller argument than was appropriate in the present case. Here I merely note that in Wookey Butler-Sloss LJ said that “there must be a real possibility that the order, if made, will be enforceable,” while in Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, para [35], Arden LJ said that “the court must be astute to see that there is a real prospect that something will be gained.”

Drawing the threads together, the court is going to need evidence on two distinct matters. First, in relation to jurisdiction, the court will expect the applicant to put before the court evidence that service by email or letter or as the case may be is permitted by the law of the relevant foreign country: Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753, para [53]. Second, in relation to discretion, the court will need evidence as to the applicable law and practice in the foreign court, evidence as to the nature of any proposed proceedings to be commenced in the foreign jurisdiction, and evidence as to whether the foreign court would be likely to enforce the injunction: compare Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499. Where the injunction, as here, engages freedom of speech, the evidence will also have to detail the foreign jurisdiction’s approach to such matters. Given the First Amendment, this is obviously particularly important in the case of the United States of America: cf the comments of His Honour Judge Parkes QC in Davison v Habeeb and others [2011] EWHC 3031 (QB), para [69].

If what is being sought is an injunction against named defendants it will usually be appropriate for all this evidence to be available before the court is invited to grant the injunction. If, however, what is being sought is, as in the present case, an injunction in contra mundum form, it may be more appropriate to adopt the same procedure as with worldwide freezing (Mareva) orders: see Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, and the form of freezing injunction in the Annex to CPR PD 25A.

There the practice is to require the applicant to give the court an undertaking that “The Applicant will not without the permission of the court seek to enforce this order in any country outside England and Wales” and to include the following in the order:

“Persons outside England and Wales

(1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court –

(a) the Respondent or his officer or agent appointed by power of attorney;

(b) any person who –

(i) is subject to the jurisdiction of this court;

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

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

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

The detailed evidential investigation of foreign law and procedure can then be postponed until such time as the applicant seeks permission from the English court to enforce abroad.

On the final matter, that of whether publication of the video was lawful given that the baby’s face could be seen, the Judge said this :-

There is, however, in my judgment, a crucial difference in a case such as this, where we are concerned with a baby a day old (though the same point will no doubt apply to somewhat older children), between restraining publication of the child’s name and restraining publication of visual images of the child. There are three reasons for this. First, the reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual. Third, in a case such as this, although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.

Assessing these three factors together, there is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.

Leaving us with the situation where the Daily Mail and other newspapers, can run the story of this case on their front page, provide stills from the video and use their websites to link to the video PROVIDED that they do not give the child’s name.

Short of defamation actions (which are not at all easy to get off the ground), given that the injunction here did not restrict the publication of the details of social workers names and the Court ruled that

I simply fail to see how naming the local authority, the social workers, the local authority’s legal representative or the children’s guardian, or even all of them, can in any realistic way be said to make it “likely” that J will be identified, even indirectly. The risk is merely fanciful

This case is obviously a major shift for campaigners and a major headache for Local Authorities.

It is also very clear that in any application for an injunction or Reporting Restriction Order in future, this case is going to be cited as a compelling reason NOT to make such an order, and the evidence of harm or risk of harm to the child will need to be very clearly set out.

It is, to me, really interesting to compare this case with the Vicky Haigh judgments. In that case, Vicky Haigh ran the risk of prison for her internet campaigning and a friend of hers who was assisting her in the campaign DID actually go to prison (albeit briefly). That judgment was made by our last President, only two years ago, and related to a mother who was running a campaign on the internet about her court dispute, including making allegations which were unfounded about the father being a sexual risk to children.

http://www.bailii.org/ew/cases/EWHC/Fam/2011/B16.html

One can’t help but wonder the extent to which these two cases differ so vastly in such a short space of time.

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Posted in case law, transparency. Bookmark the permalink.

Triborough a little tenderness

Posted on September 2, 2013 by suesspiciousminds

A dash through the evaluation of the Tri-borough project aimed at completing care proceedings within 26 weeks.

This is a valuable assessment, being the first evaluation of how the new PLO 26 week timetable works in the wild , and you can find it here

http://www.uea.ac.uk/ssf/centre-research-child-family/news-and-events/news/2012-13/Triborough

The Tri-boroughs are Hammersmith and Fulham, Kensington and Chelsea and Westminster, and they rolled out a plan to achieve the 26 week timetable in care proceedings.

Caveat to all of this – I couldn’t find anything that indicated that ALL of the cases in those boroughs were included in the pilot – clearly if there was an “opt-in to the Pilot” then the findings become less valuable, since it would be simple to ‘weed out’ the cases that appear complex or problematic so that they never went into the pot. It is also worth noting that over the course of the Pilot, one of the Boroughs had reduced their LAC numbers by 30%, which may have had some influence on volumes of proceedings.

Their findings are useful. The first thing to note is that whilst all professionals and the local judiciary were throwing the kitchen sink at finishing these cases within 26 weeks, by the end of the pilot period, as many cases took LONGER than 27 weeks as had finished within 27 weeks.

The timescales for concluding proceedings had however gone down massively with the new way of working – although they hadn’t hit the target of 26 weeks in over half the cases, they had cut the average duration of proceedings down from 49 weeks to 27 weeks. And for the longest running cases – the outliers, they had cut these down by almost half, from 99 weeks to 52 weeks. That is impressive, by any standards.

I think that these comments from the key summary points are helpful, and worth quoting in full

The fact that the median length of proceedings is now around 26 weeks means, of course, that half the cases are still taking longer than 26 weeks. This should not necessarily be viewed in a negative light since some case-by-case flexibility about the length of proceedings is surely necessary in the interests of children’s welfare and justice. The pilot demonstrates that some flexibility can coexist with meaningful efforts to bear down on unnecessary court delay.

 Proceedings involving a single child were shorter (median 25 weeks) than those involving sibling groups (32 weeks). Proceedings resulting in a care order, with or without a concurrent placement order were shorter (median 20 weeks) than cases resulting in an SGO (26 weeks) or in the child returning or remaining at home on a supervision order, with or without a residence order (29 weeks).

A lot of the professionals who were interviewed during the evaluation had been concerned (as am I) that attempting to artificially constrain the duration of proceedings might result in unfairness in individual cases even whilst it might be good for the system overall. In reality in the pilot, it appears that those cases that NEEDED more time were given it. That is a scheme that I would be behind, but the fear remains that pressure is being applied based on raw numbers and data to drive the duration down with unfairness in some individual cases being an acceptable collateral damage. I hope this lesson from the Tri-borough pilot is taken on board by The Powers That Might Be Giants, but am slightly doubtful.

What also interested me in the summaries above was confirmation that a longer duration of proceedings doesn’t automatically mean a bad thing. One can see that you can finish proceedings more quickly if you get what many would consider to be the WORST option (child adopted by strangers) and it takes the longest time to get the BEST option (child being successfully placed with a parent). I also hope that THIS lesson is taken on board – I am rather more doubtful about that.

I suggest moving through the report to the graph at figure 2.4. This shows where at each stage, time savings have been achieved.

The time from pre-proceedings to issue was about the same. The time from issue to CMC was about the same. The time from CMC to IRH sped up from 26 weeks to 15 weeks, a big reduction in time.

But, look at the next bit – the time from IRH (the hearing at which all the evidence should be ready, and the case can either be concluded, or a final contested hearing take place) to final order – this reduced from 15 weeks to 5.5 weeks.

This is an ODD figure. Nothing that was going on in the pilot ought to have affected the waiting time between IRH and final hearing.

Here are the five possible explanations that my cynical mind has come up with:-

A) s the figure is an average, the Pilot massively increased the proportion of the cases that concluded at IRH rather than final hearing. But the text discounts that, saying that actually the reverse is true – nearly one in six pilot cases finished at IRH, whereas nearly one in three pre-pilot cases finished at IRH. So it isn’t that.

B) The time estimate for contested final hearings went down, thus giving the Court more hearings in the same time period, and making it quicker to list. (reducing the waiting time from 15 weeks to 5.5 weeks seems a LOT for this) . The report doesn’t give me the data on duration of final hearings pre-pilot and during the pilot, which might be interesting for that.

C) Because there were less experts, the Court didn’t have to provide dates which suited that limited expert availability. (Under THIS theory, the Court had previously been offering dates quicker than 15 weeks which had, pre-pilot, been turned down due to not being suitable for the expert, but during the pilot could be made use of)

D) There were additional judicial resources in terms of sitting days in the Tri-boroughs during the pilot.

E) When deciding the date for the final hearing at IRH, pilot cases were getting priority over non-pilot cases (that’s my polite way of saying ‘queue jumping’

I would rather like to know more about this, because the 9.5 week saving here represents quite a big chunk of the 22 week time saving the Pilot had achieved as an average. I genuinely hope that it is as a result of B and C, and not the other factors.

One would need to know whether that was replicable across the country (i.e it was done fairly) before one could get excited about it. Without that saving of time at the back-end, the average duration of care proceedings would be stuck at the 35-38 week point.

There’s an interview with a family law solicitor that expresses just this point, I think rather well (it isn’t me)

Now I am aware that the Ministry of Justice is going through a process of trying to make large savings in terms of judicial sittings and appointment of full-time judges, and I also wonder whether the courts can deliver on making courts available, judges available, to make decisions on time, so that we are not waiting four to five months for court time. Because if we are going to be faced with courts saying, ‘Well from the point of an IRH to when a care final hearing is listed, you have to wait four to five months,’ which is very common in the recent past and is not uncommon now, then any savings you make are just going to fly straight out of the window. You are sitting there everybody with their arms folded, the case beautifully presented and no court available to make the decision. So…it is not just the local authorities, it is also court availability and that seems to me problematic. The thing is we are going to be told I am sure, that with a unified court, that’s going to solved, I am doubtful personally, from what I see day in day out in court….And I fear that courts won’t be able to deliver on this in the year. (Family solicitor, Int 3)

And

I think where it won’t be sustainable is in the ability of the court to accommodate hearings as quickly as they did. (Local authority solicitor, Int 9)

Both make me suspicious that the savings on the “Wait from IRH to final hearing” weren’t necessarily achieved by replicable means.

Of course, if in the headline Pilot study, where the suspicion exists that extra judicial resources AND priority status was given to listing final hearings, it is pretty worrying that it STILL took 5 ½ weeks from IRH to get a final hearing. Since we know that for run-of-the-mill work, we have six weeks from IRH to find a final hearing…. cough, cough… ooh look everyone, an elephant!

And the report also touches on the ever present difficulty of Pilot studies, that being part of a Pilot tends to focus and energise people and that knowing whether that could be sustained in a national roll-out.

The concern then is that the pilot has benefitted from unusually favourable conditions (relatively wealthy boroughs, changes in staffing levels at Cafcass, special treatment in the courts), and that it has required, as we discussed earlier, if not more actual time, then higher than average levels of commitment, effort, focus. We discussed previously the fact that views were surprisingly diverse as to whether the pilot added or subtracted from staff workloads in terms of time but it does seem clear that more effort (also described by participants in terms of being ‘strong’ or ‘robust’ or having ‘energy’) is needed to work in this new way.

The report also echoes the findings of Masson, that the duration of pre-proceedings work had no positive bearing on the duration of the proceedings. In fact, oddly (and this may just be a quirk of a relatively small sample size), the cases where the formal Pre-Proceedings Protocol was used took slightly longer to conclude than those where it wasn’t. (figure 5.2)

One of the fears of the new PLO was that delay would be shifted to pre-proceedings rather than during court proceedings, but the pilot evaluation showed that not only did this not happen, there seemed to be a sharper focus on issuing proceedings at an earlier stage. For cases other than newborns, the time between issue of Letter Before Proceedings and issue of proceedings came down from an average of sixteen weeks to an average of six weeks. (Figure 5.3)

(One might query whether six weeks is long enough for a parent to turn anything around, but clearly this figure isn’t showing that the delay was just moved to pre-proceedings)

The time children had spent on child protection plans before proceedings were issued had also come down, quite considerably.

Pre-proceedings drift, a major worry for many professionals, does seem to have been avoided by the Tri-boroughs pilot, and for that, if nothing else, there must be some valuable lessons to be learned.

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Posted in family justice modernisation and tagged 26 weeks, plo, time waiting for final hearing, triborough pilot, triborough project. Bookmark the permalink.

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