Author Archives: suesspiciousminds

“Rubric’s cube”

Posted on August 1, 2013 by suesspiciousminds

Anonymity and human interest stories. And Re K – part 3

There’s an interesting new judgment up on Bailli – Re K (A Child: Wardship: Publicity) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B11.html

I can’t write much about the case because of a tangential involvement, but it raises some interesting principles, particularly given where we are with the President’s consultation on transparency and publishing anonymised judgments as a matter of course. So, I’ll be discussing the issues in the case, rather than the merits of what the parents were arguing.

I wrote about the care proceedings here

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

And a later follow-up on the Court of Appeal decision that Wardship was the right answer for the child, not the Care Order made at first instance.

The case I am most pleased about this year

Keeping things very short, the parents in the case obtained a judgment that was very very critical of the Local Authority and the way that the Local Authority had treated them. The parents say that this has continued, even after those damning judgments. This was obviously something that the press were interested in, and because the judgment was reported and available on Bailli in an anonymised transcript, the press could legitimately report the facts of the case; PROVIDED that they did not name or take steps that would lead someone to be able to identify the true names of the people concerned.

So far so good. But of course, the Press are more interested in the human element of the story, and it becomes a more interesting story if they are able to report and the readers are able to read, how the mother and father in that case felt about their experiences – what was it like to be in that position, how did it feel, how did they have to struggle . The bare facts, without any human element to bring those bare facts to life is a less compelling story.

We are people, and we are interested in people, not merely bare facts. If you are Holly Willoughby (and if you are, I love your work, ma’am) then discussing this case on “This Morning” is a damn sight more interesting and compelling if the parents in the case are on the sofa next to you, or even in a video-link as silouhettes that you can interact with.

So, in this case, the parents were keen to campaign about their experiences, whilst preserving anonymity, and spread what many people might consider to be a vital two pronged message about family justice – 1. That professionals can get things badly wrong and 2. That by fighting your case properly you can nonetheless achieve justice through the courts. And even, the third – that doing that can be exhausting, draining, expensive and it takes many many months before the truth is reached.

If that can be done whilst preserving the anonymity of the child, that would be a good thing. These parents have a judgment setting out the facts and they in essence won their case and it is no longer an argument about how the Local Authority behaved but an established fact that they behaved badly towards these parents.

Now, in order to disseminate that message, the parents really need to be able to speak out, to give interviews, to give comments, to give statements. Can they do that, on the existing law, provided that they don’t identify the child ?

I’m going to use the analogy of Bruce Wayne and Batman here, to make it a bit easier to follow. Bruce Wayne can never go on television and say that he is Batman. Batman can never go on television and say that he is Bruce Wayne. But Batman can go on television and talk about what it is like to be Batman – PROVIDED he doesn’t say that he is Bruce Wayne. (I’m sorry if you don’t know who Bruce Wayne or Batman are, the analogy won’t help you at all. Think instead, that the parent wants to be on tv saying “I am Mr X, from this particular case about Mr X” but that he doesn’t want to say “I am [My real name] and I am also Mr X, from this particular case about Mr X”)

In this analogy, the published judgment is all about Batman, and talks about Batman and never mentions Bruce Wayne, the identity of Bruce Wayne is completely concealed in the judgment and cannot be disclosed.

So, can a parent go on television and say “I am the parent in this reported case, here’s my story – I AM BATMAN” as long as they do so as Batman, and don’t mention that they are Bruce Wayne? If they would be recognised from a visual image, they might have to be dressed as Batman (metaphorically – some element of disguise that stops them being readily identified)

That all seems to hinge on what is called the ‘rubric’ – that is effectively the basis on which the anonymised judgment is made public. In this case, it said this :-

‘The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.’

So, the parents in the case manifestly and plainly can’t go on television and say “Hello everyone, I am Bruce Wayne, and I am also Batman” ( I am the Father in the celebrated case of X, and my real name is whatevertherealnameis).

But can they go on television and say “I am the father in the celebrated case of X, where the father is referred to as Batman. I am Batman”

The parents sought clarification from the Court as to what was acceptable, of course not wanting to breach any confidentiality or commit contempt of Court. From the point of view of statutory law, them going on television as Batman, to talk about being Batman was fine.

The whole notion of the rubric is a bit perplexing. It of course isn’t a creature of statute, although it borrows the words and the concepts of those pieces of statute that provide a cloak of anonymity to the identity of the true names and identifying information about the parties and more importantly the child. So, is the rubric anything more than just words – does it have any effect in law?

This is what the President said in a reported case, which touched on what the legal standing of the rubric was :-

The legal effect of this rubric is uncertain. That is an issue that was considered by Munby J in Re B, X Council v B and Others [2008] 1 FLR 482. At para [12] he said:

‘Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.’

[I admire that chutzpah of identifying that there is an important issue and then without drawing breath deciding not to consider that issue]

That therefore, is that, for the time being. Where a judgment is published on the basis of a rubric, those wanting to make use of the information contained in the judgment are bound by it. (I wonder idly, whether once the Presidents changes come in, and judgments are routinely published, whether rubrics will still be issued – it will no longer be a situation of the Court generously agreeing to publish the judgment on the basis of a rubric, but a blanket assumption that all judgments would ordinarily be published)

But that still leave us, and more importantly, the parents, in doubt as to whether they can speak as Batman, and wearing Batman’s cloak of anonymity, providing they do nothing that lets slip that they are REALLY Bruce Wayne.

The LA in this case were arguing that the parents were prohibited from declaring that they were Batman, and that they could give interviews saying that they had been involved in A CASE but could not point towards them being the parents in THIS CASE (which of course would be an insanely dull interview)

. It is worth also reading the judgment for the issue of the child’s very strong views that publicity of any kind about her case was not something she wanted and considered would be damaging.

I have to say, that the judgment could be plainer towards the end, but it seems to me that the Judge comes down in support of the parents being able to declare that they were Batman (i.e that they were the parents in THIS CASE and could talk about THIS case, as long as they did so in that character, and not using their real identities or anything that might identify them)

· So far as concerns the actions of this local authority, in my earlier judgment I set out a catalogue of poor social work practice, of failure to engage appropriately with these parents, of failure to keep them informed, of arriving at hasty, ill-informed and flawed judgments about them and of marginalising them. Against that background, not only do the parents have a legitimate interest in telling their story, the public has a right to hear their story.

· The case also raises wider issues of equal if not greater importance, particularly when seen in the context of the current public debate about delays in adoption and the shortage of prospective adopters. As I noted earlier these wider issues include, for example, the importance of providing prospective adopters with full, detailed and relevant information about a child’s background before placing her for adoption, the level of post-adoption support available to adopters of children with complex needs and challenging behaviours, the vulnerability of late adoptions to placement breakdown, the significance and impact of RAD on a child’s behaviour and the therapeutic support required by such children. These are all issues which are of genuine and legitimate public interest.

Conclusions

· In A v Ward at para [133] Munby LJ made the point that “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…has to be brought into account as a very weighty factor in any application of the balancing exercise.” In this case I am in no doubt that the balance comes down in favour of allowing the parents to discuss the case with the media.

· Miss Moseley seeks to persuade me that I should attach conditions to any permission I grant to the parents. I have given that careful consideration. I have come to the conclusion that the rubric set out at the beginning of my earlier judgment is sufficient. That rubric makes it plain that in any media reporting K, her parents and her adoptive sisters may not be identified by name or location. The additional requirement that “in particular the anonymity of the children and the adult members of their family must be strictly preserved” means that the media must take particular care not to report information not contained in the published judgment if that information may lead to the identification of K and her parents.

There remain gray areas, and this will become more and more pressing once judgments are routinely available.

What if, whilst giving their interview in the cloak of Batman, a neighbour recognises their voice or their style of speech? What if that neighbour comes up to them and says “Hey, Bruce Wayne, I saw Batman being interviewed on tv today – that was you! You’re Batman”

Is it a breach of the rubric for the parent to say “Yes, you’re right, that was me, I am Batman?”

Is it a breach if the neighbour then tweets “Hey everyone, you know that bloke who was on This Morning – the Batman guy. He’s really my neighbour Bruce Wayne”?

[My last substantial law blog was about defamation, and here’s an interesting one, which ties into the next one I’m going to write. If I, or someone like me, writes about a person named as Mr X in a published judgment, and I say things about Mr X which go further than the judgment, those things are capable of being defamatory. But they are only defamatory if some of the readers know who Mr X is. Given that he is anonymous, am I only defaming the legal creature of Mr X, rather than the real human being who lies behind that pseudonym, whose true identity is not known to anyone? Can the real Mr X sue me for defamation? Is he breaching the rubric by sending me a solicitors letter saying “Our client Bruce Wayne, who is the Mr X you refer to in your article, is of the view that your words about him were defamatory” ? Is all hypothetical, since I don’t go further than the judgments, but I of course do have my own opinion when I join the dots of the judgments as to what sort of person Mr X might be, I just don’t voice it. I do wonder though, whether it is possible for me to defame Bruce Wayne by what I say about Mr X, when nobody knows that Bruce Wayne and Mr X are the same person]

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Posted in case law, transparency and tagged anonymised transcript of judgment, can a parent give interviews about care proceedings, confidentiality in family court, contempt of court, identifying subject of court proceedings, press and care proceedings, reporting care proceedings, rubric, transcript of judgment, transparency. Bookmark the permalink.

“Bechtel the Future”

Posted on August 1, 2013 by suesspiciousminds

A non-law discussion about the portrayal of women in fiction and the Bechtel Test.

Will try to keep this one short, to cater for those readers who prefer short blogs.

Some thoughts have been percolating in my head for a while, and they came together when I was reading an article on whether the new Doctor Who should be a woman. The two camps basically set out their stall this way – Stay a Man went with the fact that Dr Who is a strong male character who tackles problems by listening and thinking and talking and not by blowing things up or shooting them or punching them or shouting, and is actually a damn good role model for young boys. The Change to a Woman camp said that it was apparent as a woman watching television, particularly as a mother of young girls, how few shows there are where the females represented are anything other than love interests, shrews or helpless females there to push the plot along by being captured or needing to be saved or have the plot explained to them.

And the latter struck a chord with me. I become increasingly exasperated when in film after film, there is one female character and her role is to look pretty, perhaps be a bit sassy, and then get put in jeopardy (often by her own foolish behaviour) so that the hero has to save her. It’s a real throwback to both the playground and the culture of the 1950s. Or even way back to silent films with women getting tied to railway tracks by moustache-twirling villains. Haven’t we moved a bit beyond that? Can’t films reflect a bit more of the reality that women are more than lipstick and getting captured? Even the shows where the female character is smart and independent and capable (think Lois Lane, Emilia Fox in Silent Witness, Gwyneth Paltrow in Iron Man) they still invariably end up being captured and needing to be rescued. The two dominant characteristics of women in fiction are Sexy and Helpless.

I work predominantly with women – it’s either 80-20 or even 90-10, and those woman have the spread and range of personalities, characteristics, features, interests, passions that you would expect of people. I wouldn’t describe a single one of the women that I know and work with as their dominant feature being that they are “helpless”.

And then, pondering this, I came across a nice little test, called the Bechtel test. It was coined in a comic strip in 1985. The test is this

Take the piece of fiction – a film, a TV show, a book and ask these 3 questions

1. 1. Does it have at least two women in it?

2. 2. Do those two women have a conversation?

3. 3. Is that conversation about something other than men?

That’s SUCH a low test. Half of the world’s population is female, so unless your work of fiction has barely any characters in it, there should be two women, it would be natural for them to talk, and you’d have to be the most old-fashioned sexist jerk in the world (the sort of person who might speak to Jeremy Clarkson and have Clarkson say “God mate, that’s a bit sexist, the world isn’t like that”) to think that women can only have conversations about men. It is almost impossible to concieve of any piece of fiction (unless set in an all girl’s school or a nunnery) failing that test if you swapped “women” and “men” over.

If the answer to all three is yes, the fiction has passed the “Bechtel test” which is the most ludicrously low bar.

The sad thing is (and it’s really the point of the test, to illustrate this) most of what we see and consume in terms of films, tv and books, don’t pass the Bechtel test.

If I was pulling out an episode of a tv show at random and being very confident that it would pass the Bechtel test, I’d be confident about Buffy the Vampire Slayer, Coronation Street, probably Friends, probably Mad Men, probably Game of Thrones and relatively little else that I can think of. (Medical dramas being the exception, because the female doctors get the glory of asking female patients “Where does it hurt?” or “Have you had this happen to you before” thus passing the test, similiarly with cop shows, where a female officer says to a female suspect “What time did you leave the flat?” or such. Not really conversations though….)

Heck, take a show like Sex and the City – which is aimed at a female audience, and has four female leads and the show is 90% about those women talking, I think there are some episodes that would pass the Bechtel test, but I wouldn’t bet money that any one drawn out at random would.

Back to the Future, a film I absolutely love, doesn’t pass the Bechtel test – women characters in it get to say about twenty words to each other, and none of it about anything other than men.

What fictional world are we consuming where either only one character gets to be a woman, the women in the world don’t talk to each other and on the rare occasions that they do, they don’t talk about anything other than men?

Now you know about the test, just have a think about it for the next film you watch or tv show that’s on. How happy do you feel about a world in which fifty per cent of the population get shown in fiction in a way that doesn’t get past such a ludicrously low bar.

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Posted in stuff that isn't law at all and tagged back to the future, bechtel test, buffy the vampire slayer, dr who, iron man, silent witness, women in fiction. Bookmark the permalink.

“I’ll sue you for every penny you’ve got!”

Posted on July 29, 2013 by suesspiciousminds

Has the principle of judicial proceedings immunity been eroded following Singh v Moorlands Primary School 2013? And if so, how? What CAN you do if someone lies about you in Court?

Ah, the resonant phrase “I’ll sue you for every penny you’ve got” – it was fairly common place in my school days to hear this as a vehicle for avoiding a fight that the speaker thought they might lose – the retort for a fight invitation that you think you might win is of course “Four o’clock, school gates – no karate”

As an adult, the times I tend to hear it now is when a person takes umbrage to something contained in the court papers – more often than not a grandfather who is appalled that the parent has made allegations about their childhood, and threatens to sue everyone for defamation.

Such threats are of course idle – firstly, because there is no legal aid for defamation and bringing a case is liable to cost you many thousands of pounds with no guarantee of success [My stock response when I dabbled in that branch of law was “You want to sue someone for defamation – how do you feel about selling your house to pay for that?”], and secondly because of a principle called “judicial proceedings immunity”

This was established way back in 1585 – Cutler v Dixon.

This means that no action for defamation can be brought against a person for something said in evidence in Court or in a witness statement prepared for Court proceedings – nor for something said in preparation of such evidence (i.e you can’t sue the mother for saying to her solicitor “This is what my dad did to me when I was little, and I want you to put it in my statement”, or counsel who prepares a document saying “mother alleges that the maternal grandfather abused her when she was a child”)

Here’s a neat little summary of why the principle exists

“The reasons why immunity is traditionally conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence”

Of course, if you could sue a person who said in Court something defamatory about you, then it would be impossible to conduct any criminal trials; since in all criminal trials the Prosecution have to say to the defendant in effect “you’re a thief, aren’t you?” and the Defence have to say to the Prosecution witnesses in effect “when you say you saw my client steal something, you are lying” – and after the verdict, if the Defendant is guilty, the prosecution witnesses could sue the Defence barrister, and if not guilty, the defendant could sue the Prosecution barrister who called him a thief (or worse). So you need to be able to put the case and deal with the allegations without every case descending afterwards into civil claims for defamation against the losing side.

If you were in the UK in 2012, you may well remember that an MP was able to sidestep all the super-injunctions that were in place by naming the person they were protecting, whilst the MP was in Parliament. Something an MP says in Parliament has the same sort of protection – you can’t sue an MP for defamation in Parliament (although of course if an MP started abusing this to start for example making allegations that x or y was a war criminal or ‘friend of Jimmy Saville’, there would probably be internal disciplinary issues). Judicial proceedings immunity is a bit like the immunity an MP has when speaking in Parliament – although not so absolute, as we shall see later.

Anyway, Singh v Moorlands Primary School 2013 is a civil case, specifically an employment one, so it may have not appeared on the radar of family lawyers, but might have some significance.

In this case, the claimant, Ms Singh had been a head teacher and had become embroiled against her will in disciplinary proceedings and a key witness against her was a woman named Sue Heath. Ms Singh had been anticipating that Sue Heath might in fact give evidence on her behalf, supporting her case, and for that reason formed the view that it had been pressure by the Council that had made Sue Heath file a false witness statement.

Ms Singh claimed that the Council had put pressure on Sue Heath to file a damning witness statement, and further that the witness statement was a tissue of lies. She then claimed that the Council acting in this way (pressurising a witness to file a negative and inaccurate statement) was a breach of their duty towards her as an employee and it thus formed part of her case.

(I.e it wasn’t just a question of cross-examining Sue Heath and getting the truth out of her, but an allegation that the very act of the statement having been prepared in the way it was formed a civil claim against the Council, Ms Singh’s employers)

The Council argued that this allegation ought not to be investigated nor form any part of the employment tribunal, because their actions in preparing the case and witness statements all had the shield of judicial proceedings immunity, and the claimant could not try to pierce that shield.

The Court reminded itself that expert witnesses can now be sued for negligence [Smart v The Forensic Service 2013 and earlier cases] and an advocate can be sued for negligence arising from their preparation and conduct of a case [Arthur JS Hall and Co v Simons 2002] and that therefore a blanket immunity could no longer be said to be the case.

The position that a witness and those involved in preparing the witness statement and advancing their case is protected from claims of defamation arising from the evidence remains valid, but that judicial proceedings immunity did not necessarily cover all other matters. For example, a claim could potentially be brought for malicious prosecution where those bringing the prosecution knew that it was based on falsehood.

[The tort of malicious prosecution – a pretty obscure one, now can apply to civil proceedings as well as criminal ones – Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd 2013]

There’s an interesting, if esoteric debate about whether a police officer who gives evidence that he found a brick of cannabis in the defendants possession is entitled to judicial proceedings immunity, or whether he is immune from a defamation claim about what he SAID in evidence, but not immune from a civil claim if it emerges that he planted the brick of cannabis there. The Court took the view that what is said and done in the assembly of the case is covered by judicial proceedings immunity BUT NOT where what is done is the deliberate fabrication of evidence.

The Court of Appeal thus determined that Ms Singh was permitted to run the argument at Employment Tribunal that the Council had breached their duties as an employer by compelling or pressurising witnesses to give false evidence against her. (That’s very different, of course, to the Court deciding that this WAS what the Council had done, merely permitting the argument and enquiry to be part of the case)

The distinction isn’t perhaps the easiest to follow, but it seems that a witness or party is protected from defamation claims that might otherwise arise from their evidence or preparation of their evidence, but MIGHT not be protected against claims of negligence, employment duties or malicious prosecution.

I think getting one of those claims off the ground in a family case would be tricky. The claimant would have to have WON the family case and won it pretty overwhelmingly (not “finely balanced”) and to have got findings that the witnesses were not merely mistaken or inaccurate, or not accepted but had actually lied and made false and malicious claims. And then you have to have the other side actually be people who have money, to make it worth suing them.

And then the amount of compensation you have to be capable of winning be worth the costs of the litigation it would take to go and get it (this is colloquially termed “is the game worth the candle?”) as there’s no point spending £25,000 on legal costs to try to win £10,000 compensation.

Malicious prosecution, tempting as it may sound, only allows the successful claimant to recover economic losses in damages; there isn’t a compensation for emotional hardship or suffering, which would really be more applicable in family law cases.

And then, gulp, you read what the Privy Council said about bringing a claim for malicious prosecution in the Crawford Adjusters case – underlining mine :-

Lord Sumption suggests that the fact that few may succeed will not deter the many who will allege malice. I cannot share his confidence in that assertion. True it may be, as he suggests, that litigation sharpens men’s conviction of their own rightness and their suspicion of their opponents’ motives. But those who launch proceedings rarely do so without regard to the possibility of failure. And the possibility of failure in all but the clearest cases of malicious prosecution is very real indeed.

[That’s pretty transparent Judge code for “you’ve got very little chance of being able to prove malicious prosecution in all but the most blindingly obvious cases”]

So overall, your remedy for someone lying about you in Court is to prove them wrong, and as a result persuade the Court to find in your favour. There isn’t that much the law will do for you beyond that.

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Posted in case law and tagged can you be libelled in court papers, can you sue someone for what they say in court, defamation and family law, defamation in a witness statement, defamation in court, judicial proceedings immunity, libel and family law, protection for witnesses, slander and family law. Bookmark the permalink.

“You’ve lost your lipgloss honey”

Posted on July 22, 2013 by suesspiciousminds

Whether the test is “wrong” or “plainly wrong” for an Appeal, and we shall know definitively after Re BS, when deciding whether to give permission, where is the bar set? What does the appellant have to demonstrate in order to get permission to appeal?

The High Court looked at this in Re H v G (adoption appeal) 2013 http://www.bailii.org/ew/cases/EWHC/Fam/2013/2136.html

And the Judge, Mr Justice Peter Jackson, pretty much layeth the smackdown on the gloss that was put on the test by the judge who granted permission for the appeal (I won’t name said Judge, but you can read it in the judgment, which was delivered on 13 June 2013 and NOT as the transcript would seem to indicate 13th June 2013 hint hint)

The test, which appears at Rule 30.3(7) of the Family Procedure Rules 2010 is that an applicant must show ‘a real prospect of success.’

As so often happens with any sort of test laid down by Statute or statutory instruments, judges tend to add their own gloss on it, and that gloss then gets adopted and absorbed into part of the legal test. We had a VERY long-running issue with this on the “soundbite” of “imminent risk of serious harm” and whether that was, or was not a gloss; and if so, whether it should or should not be followed.

What happened in THIS case is that the Judge who granted permission put a gloss on the “real prospect of success” as meaning that the case wasn’t “fanciful” or “capricious, whimsical or absurd”

(Of course, if that gloss were accepted, the test for the appellant would be relatively low, meaning really that there were just SOME argument to be had, rather than that the grounds for appeal showed a real prospect of success)

The High Court Judge hearing the appeal felt that this ought to be nipped in the bud.

I respectfully suggest that to allow permission to appeal in any case where the application is not capricious, whimsical or absurd is to set the threshold too low. It does not, in my view, give effect to the rule that simply requires a real prospect of success to be shown.

The Judge then referred to the case of CR v SR 2013, which dealt carefully with this point

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1155.html

In THAT case, the Court were dealing with a debate as to whether “real prospect of success” meant that the appellant seeking permission had to show that it was more likely than not that they would succeed in the appeal.

(So in CR v SR 2013, the issue was whether the ‘gloss’ on the test pushed it higher, and made it more difficult for the appellant, and in Re H v G 2013, whether the ‘gloss’ on the test pushed it lower and made it easier for the appellant. I have again removed the name of the Judge who originally set the gloss that CR v SR was addressing, cough cough, same Judge glossed the test in two different directions)

The “more likely than not to succeed gloss” was set in NLW v. ARC [2012] 2 FLR 129.

Our anonymised judge says, in para. 8: (underlining mine)

“In his skeleton argument Mr. Chamberlayne has suggested that the object of the test is only to weed out the hopeless appeal. I would not go that far. I would suggest that the concept of a real prospect of success must mean, generally speaking, that it is incumbent on an appellant to demonstrate that it is more likely than not that the appeal will be allowed at the substantive hearing. Anything less than a 50/50 threshold would of course, by linguistic definition, mean that it is improbable that the appeal will be allowed and in such circumstances it would be hard to say that any appeal had a real prospect of success; rather, it could only be said as a matter of logic that it had a real prospect of failure“.

The Judge in CR v SR disagreed, and relied on some Court of Appeal authority to prove the point.

In a later decision, AV v. RM (Appeal) [2012] 2 FLR 709, Moor J. reaches a different conclusion to that of [NAME REMOVED]. as to the meaning of the phrase “a reasonable prospect of success”. He says at paras. 9 and 10 of his judgment:

“9) It has been on said on many occasions that judges should not place a judicial gloss on the words of either the statute or the rules. With the greatest of respect to [NAME REMOVED]., it may well have been that this aspect was not argued fully before him and that his attention was not, in particular, drawn to a decision of the Court of Appeal, of Tanfern Limited v. Cameron MacDonald & Anor. [2000] 1 WLR 1311, in which Brooke LJ. said the following (at para.21):

“21. Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard. Lord Woolf MR has explained that the use of the word of ‘real’ means that the prospect of success must be realistic rather than fanciful [see Swain v. Hillman, The Times, 4th November 1999; Court of Appeal (Civil Division) Transcript No. 1732 of 1999].

10) The test for permission to appeal is, of course, exactly the same in the Court of Appeal. It, therefore, follows that this court is bound by Tanfern Limited v. Cameron-MacDonald and I consider that there should be no gloss placed on the words of the rules other than to say that ‘real’ means that the prospect of success must be realistic rather than fanciful”.

So there you have it, a Judge considering permission to appeal (and that can of course include the trial Judge who made the decision, as that is the first port of call when seeking permission to appeal) hears the application to appeal and decides

Does this appeal have a real prospect of success, OR is there some other compelling reason why the appeal should be heard?

And does not interpret “Real prospect of success” as being either – more likely than not, OR that it is not capricious absurd or fanciful.

Of course, if BS confirms that the test for almost every appeal in children cases, following the Supreme Court in Re B, is has the appellant shown that the Judge was “wrong” rather than “plainly wrong”, there MUST be an argument that the ability of the appellant to have a real prospect of success must increase, as the test is lowered.

Perhaps the Court of appeal in Re BS will take the view, as is hinted at by some of the Judges in Re B, that the difference between “wrong” and “plainly wrong” is a small crevice rather than a grand canyon.

So both Judges considering an application to appeal AND the lawyer advising their client as to whether there is a real prospect of success in appealing are, for the moment, slightly in the dark, but will need to consider that it is PROBABLY at least slightly easier to pass the test for permission than it previously had been.

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Posted in case law and tagged appeal, gloss, meeting the test for an appeal, permission to appeal, Re H v G, real prospect of success, what does real prospect of success mean. Bookmark the permalink.

“Sunlight is the best disinfectant”

Posted on July 19, 2013 by suesspiciousminds

Transparency, openness and the family Courts, and the President’s proposal for changes.

The title of this piece comes from an American Supreme Court Justice, Louis Brandeis, and is a remark often quoted by the President of the Family Division, meaning that exposing something to scrutiny is the best way to make sure that it is clean.

The President has long been a believer that the best way to manage the family Courts beleaguered reputation is to have the information about the way cases were decided out in the open, rather than remaining secret. Having transparency means that an informed debate can be had, rather than one based on supposition and partial accounts, and suspicion.

There’s obviously the balance and tension between making cases public and preserving the confidentiality of the children concerned, but the constant cry from the Press and commentators that the secrecy of the family Courts is proof that miscarriages of justice are routine and that the system is flawed, perhaps even corrupt, means that transparency was always going to be required at some point.

If the system is flawed and children are being removed by the State for the sort of reasons that the Christopher Brookers of this world claim, then it is vitally important that the evidence and information that would allow that claim to be proved is out there and available to those campaigners. That is important even if it is only a few cases where these things are happening.

This is the DRAFT practice guidance, issued by the President on 13^th July [sorry 13 July]. It is not in force yet, but I would anticipate it coming into force in the foreseeable future.

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-b-draft-transparency-in-family-courts.pdf

Unlike the other guidance published the same day, which for some inexplicable reason considers that what words are capitalised and whether one writes 17 May 2013 or 17^th May 2013 is the pressing issue facing the family courts (rather than financial meltdown, injustice etc) http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-c-family-orders-project-house-rules.pdf

I am actually rather supportive of the transparency proposals.

The draft guidance effectively proposes that the STARTING point in all care proceedings, adoption cases or deprivation of liberty cases should be that an anonymised version of the judgment should be published, and posted to Bailii unless there are compelling reasons not to do so. [I would be slightly interested to know whether the MOJ are going to give Bailii some money for this project, I hope so]

Other categories of cases should have anonymised judgments available on request.

I happen to believe that it is appropriate (providing that the anonymisation process is done carefully so that the identity of children cannot be deduced) that the public are able to see the reasons for the State making orders, particularly Care Orders or Placement Orders about children.

At the moment, anonymised judgments are available only where the case involves an important legal principle, or is an appeal hearing.

This proposal of all judgments being published will be across the board, not limited to cases of a particular type, and will allow firstly, journalists reporting on a case to actually read the judgment in the case to have an INFORMED understanding of what happened, and secondly, allow for proper analysis of the reasons for State interventions and patterns, themes and trends that emerge.

It will also give researchers the opportunity to collate information from cases overall, mapping out whether there are trends, differences in areas, differences over time.

It will also allow for proper, evidence-based research and debate over things such as emotional harm, when we can see the extent to which emotional harm (or obesity, membership of UKIP, or any other “hot-topic”) is a factor in State intervention.

I have 3 thoughts that come to mind :-

1. There does need to be some thought as to how these cases will be searched for or stored on Bailii – the signal to noise ratio problem. At the moment, practitioners know that every family law case posted on Bailii has something of potential significance and wider principles on it, and can read it (or read the summary of such cases that family law bloggers write).

But those cases of wider significance are a very small proportion of the cases being decided every day (and soon to be published every day). Each and every one of those cases is deeply significant for the people involved, and will be statistically significant for research purposes, but in terms of practitioners spending time reading them most of them are very fact-specific and not of wider interest.

Do we increase the chance of the cases of wider significance being missed or drowned out by a volume of material?

In amongst all of the other judicial duties, including the much more robust case management ones being imposed by the revised PLO, will the Judges be allocated time to the careful anonymisation work that is necessary?

This one is undoubtedly more fanciful, but it might be worth some thought. Knowing your tribunal is always helpful, but this system would allow the carefully prepared to look at the decisions and judgments that an individual judge has made, and to pick up on themes, trends, perhaps even idiosyncrasies. Perhaps Judge Anderson seems to very often go with the conclusions that Dr Burner reaches, but doesn’t care much for Dr Honeydew. Perhaps Judge Broad seems to be quite hard on substance misuse cases, but has a soft spot for parents who had been in care themselves. Perhaps it appears that Judge Finn prefers local counsel to out of towners – perhaps even that Judge Trott has certain counsel who always seems to do well in front of him, and you should book them for your case, but that they really don’t like Alastair Smoothie of local chambers. All of this is currently about by hints and anecdotes and suspicion, but if the hard empirical evidence of all the cases were known it would be a bit different.

[Of course, one might say that Judges ought not to have those little foibles and idiosyncrasies and should come to each individual case as a tabula rasa and judge each case entirely on its own merits; and the overwhelming majority of them do, but one might argue that it would be a GOOD thing that the MOJ could potentially work out where this was not the case.]

If that raw data is there, one could also extrapolate, if one had the time and resources, some actual league tables – of the 81 cases that Alastair Smoothie represented parents on, what were the outcomes? How does that compare to Juliet Handwringer? That could be a good thing, if parents and solicitors had hard data on which barristers are more likely to produce good outcomes – it could also be a bad thing, if counsel fight shy of taking on the more difficult cases to win if they are worried about their place in the informal league tables.

[In reality, I don’t think that anyone will have the time and resources to undertake those exercises with the raw data, but just in case, I’m going to trademark Compare The Counsel. Simples]

None of my 3 thoughts are, in my humble opinion, good reasons not to go ahead with transparency. It is an idea whose time has come.

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Doncaster, so much to answer for *

Posted on July 16, 2013 by suesspiciousminds

The report into the failings of Doncaster Children’s Services has been lodged and Michael Gove has announced that he accepts the recommendations to take responsibility for child protection away from Doncaster Council and give it to a new arms-length trust.

The report is here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/212598/Ways_forward_for_children_s_services_in_Doncaster.pdf

There’s a good news article on the story at Community Care here

http://www.communitycare.co.uk/articles/16/07/2013/119339/doncaster-children39s-services-outsourced-for-five-years-after-damning.htm

The report then…to say it is damning is a wincing understatement. You really, really don’t want, when you are on special measures and have been regularly monstered by Ofsted, to have the independent review say things like this :-

“There is little hard evidence showing any improvement in the performance and outcomes of children’s social care services between the publication of the Ofsted Report in November 2012 and the beginning of this Panel’s work in April 2013.”

or this

“But, perhaps more importantly, our judgments, and the recommendations based on them, are derived from the history of Doncaster children’s services. As we have seen, there have been many attempts to tackle the problems within the service, mostly involving changes of senior management similar to those currently under way, all of which have promised much, but have delivered little. If the lack of leadership or appropriate senior management was the problem, then we might expect the difficulties associated with Doncaster children’s services to have already been resolved. But despite numerous new leaders, significant additional resources and the many commitments to improve made by the Council’s decision makers, the problems remain. Fundamentally the problem seems to be one of culture: there is a culture of failure and disillusion that pervades the service and that serves to obstruct every attempt at reform”

I’m not going to comment on whether the review is a fair one or not, I simply don’t know enough either way. Nor do I have any axe to grind, I don’t know anyone at Doncaster to say that they are good or bad. I feel sorry for the individuals working there, and of course the families that are working with the department.

Nor is it abundantly plain to me that simply detaching the service from the control of the Council and giving it a new name will fix these problems. There’s a horrible cycle you can get in when you are at a Council with a bad reputation for child protection – your best social workers leave, the ones you are interviewing for new posts aren’t really that keen on joining up, and the ones who stay can feel ground down and disillusioned. I imagine that Doncaster, for the last few years, hasn’t been a fun place to work, and I would hate people to go away with the depression that its workers are no good. I think there’s far, far more to it than that.

But it is a startling state of affairs that as a result of this report and Michael Gove’s response to it, that child protection services in Doncaster will no longer be run by local government but to an outsourced independent trust, and that this will be for the next ten years – there’s a review after five years to see whether Doncaster Council should get it back (but I can’t see how, given that they will no longer have any managers or staff in the interim, they can demonstrate that they are in better shape in five years then they are now)

I was going to say that it was a unique state of affairs, but I suspect that this may not be the case for that much longer. It is unique today, it may not be a unique solution this time next year. [There’s a very large city in England that has had a spate of child deaths and serious case reviews and has gone through Directors of Children’s Services and poor Ofsted reports, for example]

This is also a clear indication that all of the sabre-rattling about adoptions and councils who don’t hit the Government aspirations about pace of adoption and approval of adopters IS going somewhere. There’s a lot of sabre-rattling, but there’s definitely a sabre in there.

Doncaster was of course famously one of the first Local Authorities to take the view that it was okay to have a Director of Social Services who had never done any social work, or managed a social worker or knew anything about social work, or indeed local government work, or education work, or work involving children. The background in question being managing a frozen food company. That was back in 2004, that person leaving in 2007.

“Management skills are management skills” was the mantra, and a belief that those core transferrable skills of managing were more important than knowing anything about the service that’s being managed.

Perhaps it turns out that this is true when you’re dealing with groceries – there’s not much difference managing Asda and Tescos, but maybe you can’t simply move from frozen Mini-Kievs to Social Workers. In defence of that Director, the report suggests that there hasn’t been a turnaround since various changes in the head of the service.

How is the shift from local government to the trust going to work?

Well, the new service will start in April next year. It won’t be controlled by Doncaster Council, just funded by it, and the Director of Hackney’s social services department will be the “commissioner of Children’s services” for the new trust ( one might think he would already be pretty busy running Hackney).

The start-up costs and funding aren’t clear, and nor is it clear what will happen to all the existing staff and management. Ordinarily, if a Local Authority tendered out its services, TUPE would bite on existing staff and they would either transfer across on protected pay and conditions or be made redundant. You’d need to be an employment lawyer to have any idea what happens when it isn’t a tendering out, but a ripping out of the service by central government. My best guess is that TUPE still bites.

Or indeed what happens to the £1.8 million contract Doncaster Council had just entered into with IMPOWER to provide some key children’s services functions.

What happens if the new trust overspends its budget? Can they come to Doncaster Council and ask for more resources? Who will SET the budget? Will it be set by Gove, with a figure for how much it will alter each year? What happens if/when Gove is not the responsible minister for setting that budget? Or is the budget set by Doncaster Council? And if so, can they make cuts if they are under budgetary pressure elsewhere?

Who is responsible if someone sues for negligence? Does Doncaster’s Monitoring Officer have any sway over the trust? Does the Local Government Ombudsman?

The report suggests that the trust should be owned by its staff. Well, that works brilliantly with a Mini-Chicken-Kiev factory, since the staff can share in the profits that are made; but the trust won’t be making any profits (or will it?) and thus why the hell would anyone working for children’s services in Doncaster through the trust want to part-own it? What’s the up-side for having shares in it?

And on a wider political basis of accountability, how comfortable do we feel with the idea that central government can take control of local services away from a democratically elected local council? This is thrown into even sharper focus when one realises that Michael Gove is obviously true blue Tory and Doncaster Council is firmly Labour.

[Doncaster’s problems with central government over this issue do massively predate the coalition government, to be fair, Labour were giving them a hard time too]

If the people of Doncaster think that that their council is not much cop at running children’s services, isn’t that really a matter for them and their ballot box?

Obviously something had to be done, if Doncaster was under such scrutiny for so many years and independent reviews kept finding the same problems. The Government can’t just keep saying “If you don’t get better, something bad will happen to you” , eventually something bad has to happen. This is the equivalent of “If you don’t look after your toys, I’ll take them off you”

But somebody still has to look after those toys.

[* Yes, I know the Smiths song is “Manchester, so much to answer for” but if you can find a pop culture reference to Doncaster, let me know. “Don-caster spell on you” is a bit tenuous, even for me]

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Good Samaritan

Posted on July 15, 2013 by suesspiciousminds

One of the sad things about law is that it often shows you people at their worst.

You don’t often get cases about genuinely good people doing something brave and amazing. Legal cases are usually either about good people in tough spots or people who have done bad or foolish things, or even good people triumphing over the wickedness of the State. When you read the facts of the case, although you don’t often envisage everyone in the case wearing a black hat, like the bad guys in a Western, what you envisage is more differing shades of gray – some light gray, some dark gray, and at most one person in a white Stetson, showing you that they are the hero. You don’t read a case and see a court room packed full of white Stetson-wearing participants.

Once in a while though, comes a case that doesn’t show you the bad side of human nature, but humanity at its best.

This is one of those. There is no bad guy in this story, no black hats. All of the characters are wearing white Stetsons.

Sad case, but it still made me feel that people, even in the combative white heat of Court proceedings, can sometimes all be good people.

CM v The Executor of the Estate of EJ and Others 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1680.html

CM was a doctor and professor, driving home from work, when she saw a body in the street, EJ who had fallen from a building. CM stopped her car, got out and did what she could to save EJ’s life, sadly without success. There was, tragically, a lot of blood as a result of the fall.

When CM got home, she noted that she had abrasions on her palms, due, she surmised, to the regular washing of her hands at work with anti-bacterial gel. Given that she had broken skin on her hands and had been exposed to EJ’s blood whilst trying to save her life, CM had to contemplate the possibility that she had been exposed to serious blood-bourne diseases.

This would have an impact not only on her own health, but her ability to practice medicine, due to the risk of exposing patients to these diseases. It was therefore vitally important that CM learn whether EJ had any such diseases. In the meantime, she began a course of antiretroviral medication as a precaution, which made her nauseated and unwell.

The Coroner was willing for EJ’s blood to be tested, as long as there was consent to do so. The police tried to find EJ’s relatives and learned that they lived abroad and the closest that they could encounter was a cousin of the mother, OP.

OP wrote to the Coroner in these terms

7. “It took a while for me to learn about the passing away of [EJ]. Her parents live [abroad] and they don’t know about the situation yet. I will be contacting them to let them know. Although I am not the legal next of kin, I will be the go between as I am the closest relative she has got here. Her mother is my first cousin and on her parents’ behalf I am willing to give my permission for the doctor who helped [EJ] at the scene to be provided with her blood sample. I would also like to take this opportunity to thank the said doctor for her efforts in trying to help [EJ].“

The Coroner remained concerned about whether that consent was sufficient for a legal basis for blood/tissue samples to be taken. That is a legitimate concern, since the Human Tissue Act 2004 makes it plain that taking samples without consent is a criminal offence; not something the Coroner wants to become embroiled in. (Like I said, no bad guys in this story)

Human Tissue Act 2004

Collection, removal, storage and use of human tissue (defined as material that has come from a human body and consists of, or includes, human cells) in these circumstances is governed by the provisions of the Human Tissue Act 2004; the 2004 Act creates a range of offences for removing, storing or using human tissue for purposes without appropriate consent. Under the 2004 Act the Human Tissue Authority (“HTA”) was established to regulate activities concerning the removal, storage, use and disposal of human tissue; the HTA has in turn published helpful Codes of Good Practice to which I have had regard when considering this application.

‘Consent’ is the fundamental principle of the 2004 Act, and the associated HTA Codes; consent underpins the lawful removal, storage and use of body parts, organs and tissue.

The arrangements for removing, storing and using samples lawfully in these circumstances are to be found in Section 1, Section 3, Section 5, Section 53(1) and Schedule 1, Part 1(4) of the 2004 Act. It is not necessary for me to set out these statutory provisions in full in this judgment; put simply, when read together, these sections establish that consent is required for material (such as blood or human tissue) to be removed, stored or used for “obtaining scientific or medical information, which may be relevant to a person including a future person.”

In the absence of requisite consent, the removal, testing, or storing of human tissue would be a criminal offence (section 5). As the HTA Code of Practice [1] makes clear:

“If there is no-one available in a qualifying relationship to make a decision on consent (and consent had not been indicated by the deceased person or nominated representative), it is not lawful to proceed with removal, storage or use of the deceased person’s body or tissue for scheduled purposes“.

The sources of appropriate consent (in relation to the removal, storage or use of relevant human tissue of deceased adults) are set out in Section 3 of the 2004 Act. Where the person from whom the human tissue or blood is to be removed has died, ‘appropriate consent’ means:

i) his (or her) consent (if the consent was in force immediately before he/she died);

ii) if (i) does not apply, a person appointed to deal with the issue of consent in relation to the specific activity;

iii) if neither (i) nor (ii) apply, the consent of a person who stood in a qualifying relationship to him/her immediately before he/she died.

In this case it is of course impossible to ascertain EJ’s wishes as to the removal, storage or use of her relevant human material, and there is no evidence that she had appointed another person as her ‘nominated representative’ in this regard. It is necessary therefore to consider those who fall within the relationship of ‘qualifying person’. These persons are listed in hierarchy with “spouse, civil partner or partner” uppermost in the list, through a range of family relationships (i.e. “parent or child, brother or sister … step-father or step-mother, half-brother or half-sister” etc) to “friend of long-standing” at the end of the list (section 27(4)(h)). The legislation provides that consent should be obtained from the person whose relationship to the person concerned is accorded the highest ranking (section 27(6)).

In applying these principles, the person’s relationship with the deceased shall be left out of account if “having regard to the activity in relation to which consent is sought, it is not reasonably practicable to communicate with him within the time available if consent in relation to the activity is to be acted on.” (section 27(8)).

The Coroner can consent to tissue samples being used and taken in relation to the cause of death, but not for the benefit of third parties, which is what this would be.

Therefore, the Coroner, wanting to get the testing done to benefit CM (and her patients) but not wanting to commit a criminal offence or fail in the duties towards EJ, put the case before the High Court for guidance about what to do.

It won’t surprise you, given the tone of this story (and also knowing that the Judge was Mr Justice Cobb) that the Judge isn’t going to turn out to be a bad guy either.

The Court found that it wasn’t reasonably practicable to seek consent from EJ’s closer relatives, that OP was a person in a qualifying relationship for the purposes of the Human Tissue Act 2004, and that OP had genuinely consented to the taking of tissue samples from EJ to clarify the situation for CM, which was a deeply important one.

The samples were duly taken and tested. The Judge adds a post-script to the judgment to confirm that EJ was not suffering from any blood-borne diseases, meaning that CM was free from them and could resume care of her parents and end the antiretroviral medication.

A very tragic and sad case, but an unusual one in which everyone concerned had acted decently, nobly, selflessly, and lawfully throughout.

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Posted in case law and tagged antiretroviral medication, CM v EJ 2013, CM v Executor of the Estate of EJ, coroner, human tissue act, testing tissue samples, tissue samples. Bookmark the permalink.

It’s as plainly wrong as the nose on your face

Posted on July 15, 2013 by suesspiciousminds

In family cases now, is the appeal test “plainly wrong” or “wrong?” – Court of Appeal to grapple with this issue.

I remarked during my commentary on Re B, that I thought the Supreme Court might come to regret their decision that where an appellate Court is considering an appeal about threshold, there was no distinction between wrong and plainly wrong.

I didn’t think it might happen so quickly.

In Re BS (Children) 2013, Permission was granted by MacFarlane LJ for an appeal from a decision of Parker J to refuse leave to oppose an adoption hearing, and it seems, from the reading of his decision, that he probably would have refused permission to appeal prior to Re B.

http://www.familylawweek.co.uk/site.aspx?i=ed114967

In particular, MacFarlane LJ felt that the issue of whether the test for appellate Courts now dealing with family appeals had lowered, in the light of Re B, from “has the applicant shown that the Judge was plainly wrong” to “has the applicant shown that the Judge was wrong”

The first of those two formulations has always been the test, and of course is a much higher hurdle, both in the appeal, and any application for permission. It reflects that with the majority of judicial decisions, a Judge might reasonably decide the case one way or another, providing that they give a detailed and reasoned judgment considering those things that are relevant and not considering things that are irrelevant, and applying the correct legal tests. With that in mind, a Court of Appeal can have all three Judges look at the case and think that they would have made a different decision to the original Judge, but still refuse the appeal, if the decision was within a reasonable spectrum of the decisions that the original Judge could have made. In essence, an appeal ought to be allowed if the Judge made a decision that on the facts before them a Judge could not have reasonably made.

You might well think that an appeal court ought to just decide if they think the judge got the case right, and that’s certainly a legitimate public debate to be had, but it isn’t what the law is.

Or at least, it wasn’t.

The problem with the Supreme Court hearing a case is that if they decide something, that can override any other previous decisions, and whilst they might, as in Re B, believe that they are making a very narrow qualification and adjustment to the law, it can result in far far bigger consequences.

Here’s what MacFarlane LJ said in the permission judgment

17. The short description of the matters I have in mind are as follows. Firstly, at two stages in her judgment, the judge apparently referred to the test that she had to apply being a three stage test. The judge quoted from Re W (paragraph 18), as I have just done, and then went on to say: “The second and third hurdle are conflated into one test”. Then later in the next page of the judgment, she said again, “2^nd and 3^rd test have to be looked at together”. I consider it is arguable that that displays an erroneous understanding of the test. My reading of Re W is that the third fence that Thorpe LJ describes is one that is only faced by the parent if they succeeded in getting leave to oppose the adoption and they are sitting in court arguing the point in the full hearing. That justifies to a degree granting permission to appeal, but if that was the only point in the case, I would have been reluctant to grant permission because the judge’s general approach to the determination of the issue before her seems to have been more generally in line with Re W and the threshold described there.

18. The second reason for granting permission to appeal arises from Re B. First of all, in the judgments both of Lord Neuberger and of Baroness Hale, in particular at paragraphs 82 and 104 in the former, and 145, 198 and 215 in the case of the latter, very clear and firm descriptions are given of the high level of evidence that has to be established before a court can go on to make an adoption order in circumstances where the child’s parents do not consent to adoption. Having read those judgments, and having read the Court of Appeal decision in Re W, I am concerned that the test in Re W may now need to be reconsidered in the light of the approach to adoption which has been restated in these very clear terms by the Supreme Court. In particular, I am concerned that the words of my Lord, Thorpe LJ, that I have quoted from paragraph 17, where he describes as “exceptionally rare” a parent succeeding in an application of this sort may no longer be tenable. Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged. Those are the very circumstances that trigger the jurisdiction under section 47(5).

19. There is justification therefore in my view in giving leave so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level.

20. Thirdly, and in a different context, each of the Justices in the Supreme Court describes the approach that is now to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge, but are decisions which impact upon Convention rights, the human rights, of one or more of the parties. Where an appeal takes place, Re B makes it plain that the appellate court has a duty to review the first instance judge’s compliance or otherwise with her obligation not to determine the application in a way that is incompatible with the Article 8 rights that are engaged. Arguably such a review is, in my opinion, justified on the facts of this case.

21. Previously I would have applied a test of considering whether the prospective appellant here has a reasonable prospect of establishing that Parker J was “plainly wrong” in refusing permission to oppose. Now it seems that the test is one that is potentially lower, namely of considering whether Parker J was “wrong”. There is a need first of all to clarify which of those two tests does apply to an appeal of this sort on this topic, and if the lower level is applicable, namely that the judge was “wrong”, then on the facts of this case it becomes less clear that the mother has no reasonable prospect of persuading the full court that Parker J was indeed “wrong”. That is particularly the case where, as I remind myself, the issue here is not the ultimate question of whether or not an adoption order should be made, but simply whether the mother can oppose the making of the order at a full hearing where the issue of parental consent is then determined afresh in the light of all the current circumstances.

Let’s look quickly at what the Supreme Court decided on the issue of the test for an appellant Court on threshold

They refer to all of the important cases on the test for appellant courts – G v G, Piglowska .

The Supreme Court then drew a distinction between cases where the Judge was exercising a discretion (presumably meaning that in those cases, Piglowska et al still applied, and the formulation was ‘plainly wrong’) and cases where the Judge was not exercising a discretion, such as in answering the question as to whether threshold was met

(The underlining in this quotation from Re B is all mine, and it may help in your reading if you imagine me raising my eyebrows on those bits)

44. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been “open” to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been “plainly wrong” to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJ’s reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judge’s determination had been “open” to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been “plainly wrong”. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.

Given that the Supreme Court is binding on all of us, unless and until either Parliament changes the law, or the European Court of Human Rights says that the Supreme Court were wrong in Re B (cough, cough), the effect of that passage is fourfold

Indisputably, the test for an appeal about threshold is NOW whether the Judge was wrong, not whether the Judge was plainly wrong.

As determining threshold often arises from the way a Judge determined FINDINGS of fact about an alleged injury or alleged abuse, an appeal about a Judge concluding that as a result of those findings, threshold is met, might well now be decided on “wrong” rather than “plainly wrong”

The Supreme Court have developed a two tier test for appeals – one where the Judge was exercising a discretion (where they have to be plainly wrong) and one where they are not (where they just have to be wrong)

Given that the Supreme Court forgot to set out a test for which category any given decision would fall into, there is going to be satellite ligitation, as here as to which category the case falls into.

For what it is worth, my own view is that on the Re B “plainly wrong v wrong” issue, the existing caselaw on refusing / granting leave to oppose an adoption order is extraordinarily plain that the Judge is exercising a discretion and thus I believe that it is untouched.

Having said that, I still cannot FATHOM why the Supreme Court considered that in determining whether threshold was met, the Court was not exercising judicial discretion, still less that this was the case “on any view” and when one looks at what a Judge has to do when determining if given behaviour or allegations of such behaviour constitutes the threshold criteria, it is hard to argue that such process is markedly different to the test in the leave to oppose adoption (does the change warrant a reopening of the case).

I can see potentially that if a Court found that there HAD BEEN NO change in circumstances (the first limb of the test in leave to oppose adoption), post Re B, an appeal about that would probably be on the basis of whether the Judge was wrong, the second limb (given that change, is it in the child’s interests to reopen the case) would, in my mind, be on the basis of whether the Judge was plainly wrong.

But until the Court of Appeal tell us what they think about any suggestions that the Re B formulation will bleed out beyond simply threshold cases, we won’t know. Nor do we know whether that ‘wrong’ versus ‘plainly wrong’ formulation will bleed out into cases much wider than the Children Act 1989 and Adoption and Children Act 2002.

I remain amazed, that the Supreme Court ever considered that introducing a two tier test for appeals, and not clearly setting out how one is to sift categories, was something that they needed to do, or that it was ‘little more than nuance’

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Posted in adoption, case law, supreme court, threshold criteria and tagged appeal, discretionary v evaluation, permission to appeal, Re B, Re BS, test for appeal, the test for appeals, what is the test for an appeal, wrong v plainly wrong. Bookmark the permalink.

Voice of the child in pre-proceedings work

Posted on July 13, 2013 by suesspiciousminds

Work done with the Local Authority and parents before the case ever gets to Court (and ideally with the view of the case never needing to come to Court) has been important for a few years now, and will become even more important when the new PLO comes in, and there’s even more emphasis on what happened before the case got into the Court-room.

There have been many people saying for a number of years, that not having a Guardian, representing the child’s interests and being either the check-and-balance to a Local Authority who may be being zealous or oppressive OR an independent person who is able to impartially communicate to the parents that they are in a perilous situation if improvements are not made, is a major flaw in the pre-proceedings system.

It is for that reason that a pilot was set up in Coventy and Warwickshire, to have a Guardian involved in pre-proceedings meetings between the social worker and the parents.

The pilot is complete now, and the report is available here http://www.cafcass.gov.uk/media/167143/coventry_and_warwickshire_pre-proceedings_pilot_final_report_july_4_2013.pdf

{There was a third pilot area, Liverpool, and there will be a report on that in due course}

The positive aspects of the pilot was that the diversion rate of pre-proceedings cases where a Guardian was involved was fifty per cent (by diversion rate, they mean, cases that ended up with the problems being sufficiently resolved by the parents that the case did not have to go to Court). That’s a decent figure, comparing favourably to the existing Masson studies of pre-proceedings work generally diverting about 25% of cases, and the other cases in the samples in those Local Authorities where Guardians were not involved.

Of the cases that do go to Court, are they dealt with any faster? Well, the sample sizes are frankly very small to draw conclusions from – one or two “long runners” could skew the figures very badly, but they do claim that the Pre proceedings cases where there WAS a Guardian (CAFCASS Plus) finished more quickly than the ones where there was not

The overall average (mean) duration of the care proceedings for the Cafcass PLUS cases (excluding the complex cases) is 36.3 weeks (based on 11 cases). The duration of the comparator cases is 42.6 weeks (18 cases). There is a distinct differencebetween the Warwickshire Cafcass PLUS and comparator cases in respect of careproceedings duration. There are fewer longer running cases (more than 40 weeks) in the Cafcass PLUS sample as a whole.

I really think the sample size is far too small to get excited about that. And actually, is the over-arching aim of having a voice for the child in pre-proceedings work speed of resolution, as opposed to fairness and getting the work done right?

The positive diversion rates, the pilot considers largely due to two things – (1) galvanising extended family members to assist the parents, and this seems to me to be a very laudable aim and (2) parents engaging in reparative work.

It would have been interesting to know whether the involvement of a Guardian either increased the reach out to family members OR somehow made it more likely that the family members ‘stepped up to the plate’. And also whether the reparative work was either better focussed, or the parents more committed to making use of it. That would be something I would hope is focussed on more, if the pilot is enhanced in numbers.

This bit is interesting

However, the pilot also provides clear evidence that where cases progressed to court on an unplanned basis and local authority work is

incomplete, then the FCA was not able overturn deficiencies in pre-proceedings practice.

[i.e, where the pre-proceedings work hasn’t been done very well, having a Guardian on board didn’t fix that. That seems to me rather disappointing, that’s clearly what one would hope that a Guardian would be doing during this pre-proceedings work, making sure that the LA did the work properly and covered all of the bases, with the benefit of that fresh pair of eyes and an independent pair of eyes.]

The pilot report raises some very good questions about systemic causes of delay, two of the four of which rest on the shoulders of the Courts rather than other professionals

Systemic factors include:

1. the enduring problem of variability in the quality of social work

assessment but equally failure of courts to recognise good social work

practice which creates something of a ‘chicken and an egg’ situation;

2. that a number of cases appear to enter the pre-proceedings process too late, such that the window for further assessment and attempt to effect change is missed and cases then progress to court on an

unplanned/emergency basis;

3. the difficulty of making effective decisions about, and providing effective support to parents with fluctuating mental capacity who are not deemed to warrant the services of the Official Solicitor;

4. difficulties in timetabling contested final hearings due to insufficient court sitting time and problems of co-ordinating the diaries of very busy

professionals.

The Official Solicitor issue is a perennial one, and becoming even more important as we have a hard cap of 26 weeks – if you can’t fairly work with parents or ask them to make decisions/agree assessments/sign written agreements because they don’t have capacity to do so, and you can’t get the Official Solicitor representing them until you are in proceedings, it will mean that all parents who lack capacity will have less time to turn their problems round than ones who do have capacity. That seems to me to be a decent Disability Discrimination case to run at some point.

The pilot report echoes many of the issues already raised in the Masson report about pre-proceedings work, chiefly the overwhelming feeling of professionals involved that the Court didn’t really pay any attention to it and that Courts simply routinely commission fresh assessments with the view that any parenting or risk assessment only counts if it takes place within Court proceedings.

Independence is an important issue – there’s an obvious risk that a Guardian who participates in pre-proceedings work that culminates in care proceedings being issued might be felt by the parents to have come to the care proceedings with a view of the case already formed (rather than being completely fresh and impartial at the time that proceedings are issued)

The FCA’s Independence: was it in question?

The question of whether pre-proceedings involvement of the FCA compromised the FCA’s independence was raised by a range of stakeholders encountered during the course of this project. A review of parents’ statements did not reveal any concerns about this from their representatives in the Cafcass PLUS sample. The FCAs themselves stated that they did not feel their independence was compromised by

earlier involvement, they felt able to assert an independent perspective regardless of when they became involved in a case. Of course, in a small number of cases, because the FCA who was involved in pre-proceedings had left the service, in actual fact the

case was then allocated to another FCA as described above.

[If you’ll forgive me, I’ll continue to use the word “guardian” rather than Family Court Advisor or FCA, I just don’t like it… I still miss “Guardian ad Litem” to be frank]

The report overall is positive about the benefits to be achieved by involving Guardians in pre-proceedings work. I am afraid that given the costs and resources that rolling it out nationally would require, the pilot study would have needed to be much more glowing and triumphant. And that in particular, it would have needed to show that Guardian involvement pre-proceedings had a real bearing on the success of cases being concluded within 26 weeks.

I think in the current climate and the agendas that are being pursued, I don’t see this pilot being positive enough to be rolled out. But it is still an interesting report and the issues that it touches on of just how hard hitting those 26 week targets will be until there is genuine systemic change are important ones.

[Voting link for Suesspicious Minds in the Family Law awards – you can vote for me – or any of the other candidates, who incidentally are not offering to save your life at some unspecified point in the future, here

http://www.familylawawards.com/ShortlistedNominees2012 ]

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Posted in cafcass, research, social work, timescales and tagged family court advisor, guardian, guardians in pre-proceedings work, Masson, plo, pre proceedings, warwickshire pilot. Bookmark the permalink.

Coughs politely, looks down at floor

Posted on July 12, 2013 by suesspiciousminds

Well, says Suesspicious Minds with a blush, it is very nice to find myself nominated for one of the Jordans Family Law awards, as Family Law Commentary of the year.

You can find the awards here,

http://www.familylawawards.com/ShortlistedNominees2012

and a bit of information about each of the candidates. I was feeling a bit happier about being nominated until I saw the other people I was up against. I think it would be fair to say that I am at best a dark horse amongst some proper thoroughbreds there.

The voting is online, so I’d urge you to have a look at the candidates and have a vote if you like. You aren’t obligated to vote for me, you may well think that one of the other nominees are much more deserving of your support *.

*Although don’t vote for them, for goodness sake, I am just trying to be fair-spirited and nice, I don’t MEAN that you should vote for the others, unless they are like a godparent to your children, or once gave you the Heimlich manouvre when you were choking on a mushroom vol-au-vent.

I am totally available to be a godparent to your child if that’s what it takes…. The Heimlich thing slightly more difficult to organise – frankly, if that’s your only reason for voting against me, I think you’re being a bit unfair, it is just sheer luck whether I happen to be in your radius at the appropriate time. Rest assured, I totally would save your life if the opportunity arose. Trust me.

Anyway, the main thing is that it is nice to be nominated, and hopefully we may see a few new people coming to the site to check it out before backing away quietly and hurriedly.

As I am being shameless this afternoon (self-promotion is a bit awkward to me, so am just diving into it hard and then we’ll forget it ever happened), if you do read the blog and think that you know someone else who might like it, please pass a link on to them. And feel free to post a comment up on anything that takes your fancy, there’s some lively debate here from time to time.

7 Comments

Posted in stuff that isn't law at all. Bookmark the permalink.

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Coughs politely, looks down at floor

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