Category Archives: adoption

Can a Court make a Placement Order of its own motion?

Posted on February 23, 2015 by suesspiciousminds

 

I know, that sounds a lot like one of those questions that you get in newspapers like  “Was Ed Milliband responsible for Diana’s death?” in which you read the article and the answer buried towards the bottom is “no”

But I’m not so sure.

In a purely theoretical sense, you MIGHT have a Guardian who disagrees with the Local Authority care plan of rehabilitation to a parent / SGO and who supports a plan of adoption.  You MIGHT also have a Judge who disagrees with the LA plan, or more possibly is trying to cut out the stage of the process where there is a decision by the Agency Decision Maker to wait for as to whether adoption is the plan, and wants to have the final hearing without waiting for that.

You MIGHT even have a Local Authority social worker who believes that adoption is the right plan, but is prohibited from applying for a Placement Order because the Agency Decision Maker has said no to adoption or an application for a Placement Order.

In all of those circumstances, I would have said, well hard luck. The Court can only make a Placement Order where there is an application for one, and only the Local Authority can apply, and they can only apply when their Agency Decision Maker authorises it. [I have had each of those hypothetical situations happen, and on each, the Court accepted that there was no power to make a Placement Order without an application]

There’s no such thing as the Court making a Placement Order of their own motion.

 

That was, until I fell over this clause in the Family Procedure Rules.

4.3( 1) Except where an enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

So rather than our long tradition of the Court only being able to make orders of its own motion if Parliament expressly gave them that power, we now proceed in the opposite direction – they have the power to do so, unless the statute expressly prohibits it.

And I’ve checked the Adoption and Children Act 2002, and it does not expressly prohibit the Court making a Placement Order of its own motion.  Why would it? It was written at a time when if you wanted to give the Court that power, you’d explicitly make the provision.

The Court can only make a Placement Order if satisfied that the test is met (which can just be that threshold is satisfied) and that the parents consent is dispensed with, and of course the making of the Placement Order is subject to the welfare paramountcy principle, the welfare checklist and the no order principle. But it does not say expressly in the Act, only on an application.

s21 2)The court may not make a placement order in respect of a child unless

(a)the child is subject to a care order,

(b)the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c)the child has no parent or guardian.

(3)The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied

(a)that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b)that the parents or guardians consent should be dispensed with.

This subsection is subject to section 52 (parental etc. consent).

 

So, theoretically, a Court could entertain the request of a social worker (acting without ADM approval) or a Guardian, or their own desire, and make a Placement Order even though the Local Authority have not applied, using rule 4.3.

I’m talking purely theoretically here – I strongly suspect that the first Court to attempt this would find themselves in the Court of Appeal as to whether it was article 6 and article 8 compliant to make such a dramatic and serious order without a formal application being before the Court.

Let’s see what else rule 4.3 says:-

(2) Where the court proposes to make an order of its own initiative

(a)it may give any person likely to be affected by the order an opportunity to make representations; and

(b)where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes

(a)to make an order of its own initiative; and

(b)to hold a hearing to decide whether to make the order,

it must give each party likely to be affected by the order at least 5 days  notice of the hearing.

 

Well, that’s nice – the Court isn’t actually obliged to tell the parties that it is going to make an order of its own initiative or to have a hearing to hear what the parties have to say about this plan. But if they do decide to have a hearing, they should give the parties notice of that.

You are saying to yourself, well surely that’s not right. The Court would HAVE to tell the parties and listen to their views before making an actual order, as opposed to directions.

Nope

(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.

[Although if they do that, the order must say on its face that the parties have the right to apply to vary or set aside the order]

 

Again, for Placement Orders, this is purely theoretical. If I thought that a Court making a Placement Order without an application for one, at a final hearing, having heard evidence, would end up in the Court of Appeal, the idea that any Court would do so in the absence of a hearing is inconcievable.

[But it is theoretically possible]

 

This reminds me of my favourite story about the mathematician and logician, Kurt Godel.  Kurt Godel basically proved that in any formal system, there will be things that you intuitively know are true but that can’t be proved  – on a deep mathematical level there’s a difference between truth and proof.  Godel’s Incompleteness Theorum is probably my favourite thing in the world that is not a person or my spaniel.

If you want to know more, read Douglas Hofstadter’s “Godel, Esher, Bach, an eternal golden braid” – but be warned, it took me about five read throughs to have even a vague grasp of the Theorum, and that is an author trying to make it as user-friendly as possible. I dread to think what it is like to read the actual Theorum paper itself cold, with no background knowledge.

In a time of huge upheaval and totalitarian governments in Europe, Godel’s friends convinced him to leave his home country of Austria and come to America. During his immigration interview, the American customs officers asked him why he was leaving his own country. He told them about the oppression and that Austria had become a dictatorship. The customs officer said “Well, thanks to our constitution, that could never happen in America” , and it was at that point that Godel told him of the loophole he had found in the Constitution that could allow just that.

Not the best thing to say to an immigration official, but fortunately Godel’s explanation was so involved and complex that they didn’t follow it and waved him through.

 

It is also worth remembering that a Placement Order is permissive. It allows the Local Authority to place a child with prospective adopters. It doesn’t mean that they HAVE to.  So if a Court did make one against the wishes of the Local Authority, it wouldn’t mean that the child WOULD be placed with prospective adopters.

[It might well make things tough for a Local Authority if a Judge gave a judgment saying that placement with the mother was unsafe and doomed to failure and would be too dangerous for a child, if the LA ignored this and went ahead anyway. That would be a very tough Serious Case Review if it went wrong]

 

Although in the context of a Placement Order, rule 4.3 is largely theoretical, it might be handy for all sorts of other orders where you realise that you failed to make an application and invite the Court to make the orders of their own motion.

In case you are wondering about Care Orders –  I think that the construction of s31, wording underlined, means that Parliament envisaged there being an application made by a Local Authority. Is it expressly forbidding the Court to do it without? No, but it implicitly suggests not, and for a Care Order, suggests that the order can’t be made without an application.  [I’d also argue that the s37 provisions are a clear suggestion that a power and boundary as to the circumstances in which the Court could make ICOs without an application have been expressly provided for in the Act]

Care and Supervision

s31 (1)On the application of any local authority or authorised person, the court may make an order

(a)placing the child with respect to whom the application is made in the care of a designated local authority; or

(b)putting him under the supervision of a designated local authority

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Leave to revoke a Placement Order, successful appeal

Posted on February 23, 2015 by suesspiciousminds

 

Re G (a child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/119.html

 

The mother was appealing a refusal to grant her leave to apply to revoke a Placement Order (i.e to get her child back). She was in person in the Court of Appeal (and did a very good job) and won her appeal.

 

There are  few big points from this appeal which have wider application.

 

1. Change doesn’t have to be recent

(I think what the Court of Appeal say here rather destroys Mostyn J’s declaration that change has to be ‘unexpected’ because they are explicit that one shouldn’t read words into the statute that aren’t there)

I do not accept Mr Tughan’s submission that the nature and degree of the change of circumstances which a parent does successfully establish, is demoted by it being a recent change. This does add gloss to the words of the statute and should be resisted

 

2. Change doesn’t have to be change in the parent  – it can be change in the life of the child, or in the life of the child’s carers.

 

[This one interests me, because as far as I know, Mrs Suesspicious Minds was the first counsel to persuade a Court of that, so it is nice to see that she was right – as usual]

The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.

 

3. Take care in using a note of judgment as if it were a transcript

 

In this case, the Care Order and Placement Order had been made by a District Judge, and the leave to oppose hearing was heard by a Circuit Judge. The CJ had been given counsel’s note of the hearing / judgment, but read it into the judgment on leave to oppose as though quoting the District Judge directly.

The only document that assists is Counsel’s “note of final hearing” prepared by Mr Hepher on 20 August 2012 for his Instructing Solicitor. It has not been approved by the DDJ Johns.

Contrary to what HHJ Levy said in her judgment, the note does not pretend to be a note of the judgment; rather it is the subjective assessment of the hearing and its outcome, giving a potted version of the judge’s conclusions. Counsel who appeared for the Local Authority could have no idea or intention that it would be referred to in any future proceedings or appellate jurisdiction. However, HHJ Levy placed reliance upon it and, it seems to me, elevated Counsel’s written opinion that “the evidence did not go well for [the mother]. She became upset and gave loud, aggressive and frequent inconsistent and confrontational answers when challenged” into findings made by the first instance judge and thereafter cited Counsel’s summary of a part of the judgment in quotation marks, giving the appearance that the same were spoken by the DDJ Johns.

The fact of its quotation by HHJ Levy leads me to conclude that it was instrumental in her decision and I therefore refer to it in full. HHJ Levy said that “[t]he judge had concluded by summing up the mother as: ‘…angry, resentful and accusatory of professionals…blaming of others, was unable to explain the impact of domestic violence and undesirability of drug use, and had a casual disregard to telling the truth. She had no insight into the magnitude of the risks the father might pose, nor the impact of her own behaviour. She was not able to sustain motivation for any meaningful change”.

…Quite apart from the issues raised in the grounds of appeal, I would express my great concern at other aspects of the procedure that was adopted at first instance and which are capable of further infecting the outcome. That is, HHJ Levy was disadvantaged in the absence of DDJ John’s judgment and “agreed threshold criteria” and was wrong to accept counsel’s unapproved “note of the hearing” as a sufficient substitute, even though I am sure she was well intentioned in seeking to avoid delay. She could not possibly establish the true base line in the absence of the “agreed threshold criteria” document, which itself recorded some issues of fact and differing interpretation of others, without reconstructing the evidence that had been available in the court below. In doing so she appeared to rely entirely upon the reports submitted by the social worker and guardian.

 

4. You need to be quite careful about ruling that a parent had not satisfied the first limb of the two stage test (has there been a change in circumstances?)

The Court of Appeal here sent the case back for re-hearing, but were very plain that their view was that the first limb had been crossed and quite comfortably.

5. Fresh evidence

The Local Authority had brought to the Court of Appeal a statement that gave information about family finding – in effect, providing evidence that an adoptive placement was on the cards. The Court of Appeal deprecated this practice.  This was really a request to introduce fresh evidence to the appeal, and if so, a proper application needed to be made, with all of the Ladd v Marshall principles argued  (it is REALLY  hard to get fresh evidence in on appeal, other than in criminal proceedings where the fresh evidence is something like an alibi, or CCTV footage or some sort of CSI test which would undermine the conviction)

 

  1. Shortly before coming into court, a statement prepared by Ms Faith Connell, J’s social worker, unsigned but dated 9 January, 2015 was sent through uninvited. There is no application to admit fresh evidence. I am told by Mr Tughan that it is intended to update the court on ‘family finding’ for J. This practice is becoming increasingly common and I think it entirely inappropriate. If the statement contains fresh evidence which is pertinent to the appeal then leave should be sought in accordance with normal procedure to admit it. If it does not, it may appear as an attempt to influence the outcome of the appeal. Mr Tughan assures me that that is not intended, but that it was submitted with a view to assisting the court if it wished to substitute its own order for that of the court below.
  2. As it is, this is not a court of first instance and is not in a position to determine the disputed factual issues raised in the mother’s application before HHJ Levy, let alone fresh facts on the unilateral presentation of what may be challenged evidence and opinion going to inform the discretion stage. I have refused to read the statement in those circumstances and particularly since the mother is unrepresented.

 

6. You can only ‘shore up’ a judgment so far

In discussion, Mr Tughan was obliged to concede that he was attempting to “shore up” the judgment of HHJ Levy. He accepted the absence of any findings in the judgment that were directly relevant to the adverse findings apparently made against the mother by DDJ Johns and upon which HHJ Levy relied. He argued that some issues that were recorded in the judgment had been ‘resolved’ during the course of the proceedings – entirely, I observe, in favour of the mother’s contentions – and that it was unnecessary to make certain other findings, including whether the mother’s relationship with her previous partner had ended, the extent if any of her drug use, and whether she had threatened the current social worker with violence. He accepted that the Court would “struggle to piece together” HHJ Levy’s thought processes, but that they could be “pieced together” when analysed in the round. He argued that the bar had been set at a high level by reason of the findings made in the original care proceedings and that the self reported changes by a mother, whose credibility had been doubted in the past and, implicitly I think he was suggesting, was in any event so emotionally compromised in relation to an objective consideration of J’s best interests, had inevitably led the judge to conclude that she still had a “long way to go”.

 

The mother was of course appealing the judgment that was made, not the shored up version that counsel for the Local Authority was skilfully presenting. She won her case, and that was the right decision. Nobody knows how the re-hearing will go.

 

6. Threshold post Re A

 

The Court of Appeal here accepted that the threshold were ‘more than satisfied’ and that they had no doubt about that.

Let’s have a look at the threshold then.

A document headed “Agreed Threshold Criteria – 17.7.12” gives some indication of the circumstances of J’s removal. In summary, J’s father has previous convictions for serious drugs and violence. In June 2009, the mother attempted to prevent his arrest for the offence of armed robbery. The father was subsequently jailed. The mother commenced a new relationship. Her new partner also had previous convictions and was a serial offender. Regrettably he was violent to the mother. She continued with the relationship and was said to prioritise her relationship with her partner over her own and J’s safety. The mother disagreed but there is objective evidence that she found it difficult to separate from her partner, refusing an injunction and visiting him in prison whilst he was serving a sentence for assaulting her. The mother was said to continue to “minimise and excuse the extent and impact of the domestic violence and conflict to which J had been exposed”. She herself smoked cannabis but denied that she had used class A drugs. It is clear that she was not co-operative with social services and would routinely deceive them about her home circumstances.

 

Reading this document I have no doubt that the so called threshold criteria imposed by section 31 of the Children’s Act 1989 were more than satisfied.

A lot of this looks like the sort of thing that the President threw out on its ear last week. This isn’t a case where the mother herself posed a risk.  At best, or worst, her partner might have.  But he seemed to be in prison.  Cannabis – gone. Not co-operative with social services – gone.  Assisting father three years earlier to resist arrest – what’s the risk to the child? gone. . Violence from former partner – well, the President seemed to be suggesting that there are people who have had dv in their relationships who would not cross threshold – it would depend on the extent and nature of it.  Minimising dv – gone. Visiting former partner in prison – well, if he wasn’t established to be a risk of harm to the child, so be it.

Too early to say whether the Court of Appeal are going to take a different view to the President on Re A, but if you apply the Re A principles the threshold here is either not crossed or it just limps over the line. Yet the Court of Appeal consider that there is no doubt that it was more than satisfied. Hmmm.

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Tales of the unexpected

Posted on February 18, 2015 by suesspiciousminds

 

Mr Justice Mostyn, in dealing with an application for leave to oppose the making of an adoption order, raised a curious (and to my mind rather unique) point.

Prospective Adopters and SA 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/327.html

 

The statutory test is that in order to challenge the making of an adoption order if a Placement Order has already been made, the parent needs leave, and to get leave, they need to show a change of circumstances.

Most of the case law on leave (notably Re P and Re B-S) focus on the second limb of the test – if a parent shows a change of circumstances, is it in the child’s interests to allow the leave and hear a full challenge to the making of an adoption order.

 

Mr Justice Mostyn focuses largely on the first limb – what consitutes a change of circumstances?

For him, the change HAD to be something that was unexpected. Something that had not been foreseen, or forseeable at the time that the Placement Order was made.   (for my part, I don’t think that he is right here, but he makes the argument with significant force)

  1. Where, as here, the second condition applies because the child was placed for adoption under a placement order there is a threshold condition of “a change in circumstances since the placement order was made”. The applicant parent has to prove this before the court can move to consider whether leave should be granted to oppose the making of the adoption order.
  2. Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.
  3. In the well-known case of K v K [1961] 1 WLR 802 the court was concerned with section 1(3) of the Maintenance Orders Act 1950 which provided:

    “Where an agreement to which this section applies is for the time being subsisting … and on an application by either party the High Court … is satisfied either (a) that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made … the agreement should be altered so as to make different … financial arrangements … the court may by order make such alterations in the agreement … as may appear to the court to be just in all the circumstances …”

  4. In its judgment the Court of Appeal held that changes which were foreseen or foreseeable at the time of the agreement did not fall within the terms of section 1(3). Holroyd Pearce LJ stated:

    “We think that a change in “the circumstances in the light of which any financial arrangements were made” means something quite outside the realisation of expectations. The parties make their bargain upon certain basic facts and expectations. When those facts unexpectedly change, or those expectations are not realised, there is then a change of circumstances which may produce unfairness. Had the legislature intended to give a power to the court to vary agreements as it may vary maintenance orders, it could have said so in terms similar to the sections which regulate variation of maintenance. It did not, we think, intend to remove entirely the stability of agreements, but only to do so when injustice was caused by a change in certain circumstances.”

  5. This decision led the Law Commission in 1969 to recommend that the provision be altered to include a change of circumstances which the parties had actually foreseen when they made their agreement. This change was duly enacted in section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970 (now section 35(2)(a) Matrimonial Causes Act 1973). The fact that Parliament had to intervene in this specific case shows to my mind that where a provision talks of a change of circumstances it is talking about an unexpected change in the basic facts and expectations on which the court founded its original decision.

 

I’m not at all sure that I am with the Judge here, but he has clearly given it a great deal of thought and consideration, and delved deep into the legal framework and underpinnings. For myself, I would think that if Parliament had meant in 2002 that the change needed to be ‘unexpected’ it would have been a fairly simple matter to say so (yes, it needs to be something more than simple passage of time) but I think Parliament would have said ‘unexpected’ rather than relying on everyone realising that as a result of a 1961 case about some different 1950 legislation the word ‘unexpected’ would be implicit.

 

There are situations, in fact they come up fairly regularly, where a parent is said to be unable to make the necessary progress within the child’s timescales. Take for example a parent who is in a relationship with someone abusive and is struggling to leave them or has left them but it comes so close to the final hearing that the Court can’t have confidence that the separation will be maintained. If two years later, that parent comes to Court having been separated from the violent partner for two years, is that an unexpected change?  Or is it rather something that could have been envisaged as a possibility but the Court could not make the child wait for the parent to show that?

Or a case where a parent is wrestling with drugs or alcohol and is endeavouring to become abstinent? Two years later, the parent has the sort of period of abstinence that would give rise to confidence about the future prognosis that didn’t exist at the time the Court had to make its decision.  Is the parent’s abstinence an unexpected change?  Or was it a possibility that the Court countenanced, but given the child’s timescales, the child could not wait for the parent to achieve this?

I think that I would instead rely on the Court of Appeal in Re T (Application to Revoke a Placement Order : Change of Circumstances) 2014 where an test with the same wording was considered, and the Court of Appeal said this:-

We do not think it permissible to put any gloss on the statute, or to read into it words which are not there. The change in circumstances since the placement order was made must, self-evidently and as a matter of statutory construction, relate to the grant of leave. It must equally be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings. In our judgment,however, the phrase “a change in circumstances” is not ambiguous, and resort to Hansard is both unnecessary and inappropriate.

 

Looking at the facts of the case, the father asserted four changes to his circumstances since the Placement Order was made

 

34. Miss Markham relies on the following changes of circumstances since the placement order was made on 17 January 2011:

i) He has formed a second (invalid and polygamous) marriage to SSB by whom he has had two children YSY and ISS who he is caring for as a secondary carer. YSY is no longer subject to a protective order and ISS never has been. Although he does not share a home with SSB his marriage to her is stable. No-one has ever suggested that domestic violence has featured in it.

ii) Contrary to the plan and expectation that SHT would be adopted this has not happened, because he has acute needs that have prevented him from being found new adoptive parents. He will stay with his current foster parents who either cannot or will not adopt him. Therefore adoption for SSM is a unique treatment which is not to afforded to any of his full siblings. The effect of adoption is to sever legal ties with all his siblings. They will no longer be his legal brothers and sisters.

iii) He has shown that, in contrast to the findings of Judge O’Dwyer, that he can work closely and co-operatively with professionals. He particularly relies on the report of the social worker Tony Stanley dated 2 February 2015 who had been assigned to the case concerning YSY. There have been no concerns regarding his conduct during contact sessions.

iv) He has successfully completed the first year of a two year NVQ childcare course

 

Mr Justice Mostyn felt, applying his ‘unexpected’ criteria, that changes 2, 3 and 4 didn’t count, but that ther first one did. The first one, that he was caring for children without State intervention is clearly the most important.

 

  1. I am not satisfied that the second, third or fourth grounds amount to qualifying changes of circumstances. In order to explain why it is necessary for me to set out certain key passages from the judgment of Judge O’Dwyer

    “14. I am satisfied that taking the above matters into account the welfare of the boys both emotional and physical requires that the boys should be placed for adoption. No lesser order will do or can be managed for the welfare of the children.

    …

    51. The father has not been able to change. He has not recognised his problems. His own evidence adamantly affirms this. It is clear he is not able to work successfully with professionals to assist the children. Despite some protestations in his oral evidence that he would accept assistance from professionals and work with them, it was clear that this would only be on his own terms.

    52. It was clear from the Coral assessment that he is not able to accept and act on advice given to him without becoming angry and defensive. They concluded: “Based around our observations of contact, we gave advice and made suggestions to Mr A to support him to develop his parenting skills, but he was unable to accept these, however innocuous. We remain deeply concerned for the welfare of all the children during contact as our observations indicate that their father struggles to provide them with a safe and contained environment, even within a contact centre and with a supervisor present. He presented at times as very angry and controlling, and the behaviour of the children indicates that they are regulating their behaviour so as to optimise their interactions with their father, rather than that he is adapting and responding to their needs.”

    53. The Local Authority submit and I accept that Mr A lacks empathy and understanding of the children’s needs or an ability to react flexibly in order to provide for them both practically and emotionally. They refer to the Coral Assessment “Given Mr A’s presentation over the course of this assessment, the extent of his denial regarding the concerns in the judgement, and his tack of insight into, and attunement with, his children’s needs, it seems very unlikely that he would be able to provide ‘good enough’ caring for any of his children, even within the context of a robust ongoing professional presence within the family home.” In my judgment that is manifestly well founded.

    54. The Local Authority submit that the court can conclude upon all the evidence and taking into account the welfare checklist that care orders should he made in respect of all four children upon the final care plans proposed. The contact proposed between the parents and the children is appropriate (and approved by the children’s guardian). Placement orders are appropriate in respect to the boys. They are vital in order to pursue the long term placement proposals of the Local Authority. Applying Section 52(1) (b) Adoption and Children Act 2002 it is submitted that the children’s’ welfare requires that parental consent is dispensed with. I find it is imperative that it is dispensed with as the boys require the long term placement plan for adoption as proposed by the Local Authority and supported by the children’s Guardian. As will have been seen I accept these propositions.”

  2. I do not accept that because the plan for SHT has altered that this amounts to an unexpected change in the basic facts or expectations that underpinned the placement orders. By its nature a placement order does no more than to allow the adoption process to commence; it does not mandate that it must be concluded by an adoption order. It is known that sadly many children cannot be placed for adoption because of their needs.
  3. I do not accept that because the legal effect of adoption in a technical, as opposed to natural, way cuts the formal ties of brotherhood, that this in any way can amount to a qualifying change of circumstance. The plan accepted by Judge O’Dwyer would have had that effect anyway so far as SSM was concerned. That his brother SHT will retain the formal legal tie of brotherhood with his sisters is to my mind neither here nor there.
  4. I do not accept that because the father has worked better with professionals that this amounts to a qualifying change of circumstances. It is worth my noting that in my Court of Protection judgment at para 11 I recorded some disturbing aspects to the father’s conduct when he had contact with the mother. Mr Stanley however said this in his report:

    “I found Mr A increasingly able to manage his moods and behaviours at times of stress. I experienced him, on the whole, to be willing to work with me. Mr A explained to me that he felt powerless and voiceless in a system of social services and courts, where decisions affected him so gravely. Nevertheless, earlier reports of his aggression and anger toward professionals was not my experience. Mr A conducted himself in case conferences, core groups and other meetings in a calm manner. I directly challenged him on several occasions, as did Ms B (about the money he had promised) and he maintained his calm.”

  5. This is to be set against Judge O’Dwyer’s finding that “it is clear he is not able to work successfully with professionals to assist the children.” It is much to the father’s credit that he has been able to mend his ways in this regard. However, such an improvement is surely not unexpected. Even if it were it does not follow that this was a change in the basic facts and expectations that underpinned the order. Put another way, had Judge O’Dwyer known that four years on the father would have conducted himself with professionals in a calm manner it would not have altered his decision in any respect.
  6. The father’s NVQ course is not a relevant change of circumstances. This was not even mentioned in his witness statement.
  7. I do however find that the first ground does amount to a qualifying change of circumstances. The key finding in para 53 was that “it seems very unlikely that he would be able to provide ‘good enough’ caring for any of his children, even within the context of a robust ongoing professional presence within the family home”. Had Judge O’Dwyer been able to foresee that four years on he would be successfully co-parenting two very young children, he might (and I emphasise might) have reached a different decision about making a placement order although I have no doubt that he would have reached the same decision about making a final care order.

 

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A tottering edifice built on inadequate foundations

Posted on February 17, 2015 by suesspiciousminds

The President’s decision in Re A (a child) 2015 in which the Court were asked to make a Care Order and Placement Order on a child who was not quite a year old, and refused to do so – even more significantly finding that the threshold criteria for making such orders were not made out, and castigating professionals for sloppy thinking and lack of rigour in their analysis of significant harm.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html

 

(It comes pretty close to how I expected the Supreme Court to have dealt with threshold in the Re B case, but in the event, Baroness Hale was the only one who went near that)

 

Skipping ahead to the core analysis and decision on threshold and the applications:-

 

  1. I have gone through the local authority’s various concerns in some detail. As I have explained, many of the local authority’s allegations have been abandoned or cannot, for the reasons I have given, be substantiated. What is left? I can summarise it as follows:

    i) The father is immature and can sometimes act irresponsibly. As the history of his relationships with both the mother and J illustrate all too clearly, he seems to have a tendency to fall very quickly into unsatisfactory and short-lived relationships.

    ii) In some instances, though not to the extent alleged by the local authority, the father has minimised or played down matters which were properly of concern to the local authority. He has not always been open and honest with professionals. He failed to appreciate the significance of his actions in relation to J.

    iii) To an extent the father is lacking in insight regarding A’s needs and minimises some aspects of his character and behaviours which may bear adversely on A.

    iv) On occasions the father drinks to excess. On occasions he has taken cannabis. There have been episodes of domestic discord between the father, his mother and his step-father, involving the police and, on occasions, actual violence.

    As against that, I should record that on matters of fact I found the father to be a truthful and, for the most part, reliable historian.

  2. What does this amount to? Does it suffice to establish a real possibility that A will suffer significant harm? Even if it does, has the local authority established that A’s welfare requires that he be adopted, that “nothing else will do”?
  3. In my judgment, the answer to each of these latter two questions is No. My essential reasoning is two-fold. First, the many flaws in the local authority’s case to which I have already referred go a very long way to weakening its case. Taking account of all the evidence, and surveying the wide canvass, the real picture is very different from that which the local authority would have had me accept. Secondly, and having had the advantage of hearing the father and his mother give evidence, I cannot accept that the father presents the kind of risk to A which gives rise to a real possibility of A suffering significant harm, let alone the degree of risk which would have to be demonstrated to justify a plan for adoption. I say that taking full account of all the father’s faults but also factoring in the positives identified by SW1 and giving appropriate weight to the degree of commitment to A the father has demonstrated in contact.
  4. I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.

 

And later

I am very conscious that in coming to this conclusion I am departing from the views and recommendations not merely of the local authority (that is, of SW1, SW2 and TM) but also of A’s guardian, CG. But I have to have regard to a number of factors to which I have already draw attention:

i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.

ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.

iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.

iv) The local authority failed to link the facts it relied upon with its assertions that A was at risk. Nor did CG.

v) The local authority and CG did not sufficiently reappraise the case once it had become clear that the father was no longer in a relationship with either the mother or J.

For all these reasons I am entitled, in my judgment, to come to a different conclusion. My duty is to come to my own decision having regard to all the evidence, and, for reasons which will by now be apparent, I am driven to conclusions other than those shared by the local authority and CG.

 

 

A lot to cover in this, but let’s start with the Children’s Guardian. This read to me like a Guardian who saw which way the wind was blowing and jumped off “HMS Adoption Full Speed Ahead” and onto the “good ship Naughty Local Authority”   (this is one of my pet hates – by all means criticise a Local Authority and challenge them on poor work, but don’t do it after the event)

We have a Guardian who was saying to the President that she was “appalled” by the social work assessments and evidence, but in her written evidence to the Court was supporting their conclusions and saying there wasn’t a need for any further assessments.

  1. On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step-grandfather. Nothing of this is to be found, however, in her initial case analysis. Having summarised what was reported by the local authority, she turned to the assessment of the father, which she described as “negative” and as highlighting various concerns, which she then enumerated. She said:

    “Taking into consideration all of the information contained within the documentation filed with the Court by the Local Authority I do not consider that any further assessment of either parent will assist in determining the long term plans for A.”

    Having expressed concerns about the local authority’s delay from 17 February 2014 to 16 September 2014 in issuing proceedings, she identified the need for any other potential kinship carers to be identified and assessed and recommended the making of an interim care order.

  2. The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments. The order made following the hearing recorded the guardian only as having “significant concerns regarding the delay” and as wishing matters to be concluded “swiftly”.

 

The Authority is named, but social workers are not. . I know that this vexes people, so given that it was the President who wrote the guidance saying social workers should be named AND that this judgment is a mullering, I’ll allow him to say in his own words why he decided that

 

  1. It will be noticed that I have, quite deliberately, not identified either SW1 or SW2 or TM, though their employer has, equally deliberately, been named. There is, in principle, every reason why public authorities and their employees should be named, not least when there have been failings as serious as those chronicled here. But in the case of local authorities there is a problem which has to be acknowledged.
  2. Ultimate responsibility for such failings often lies much higher up the hierarchy, with those who, if experience is anything to go by, are almost invariably completely invisible in court. The present case is a good example. Only SW1, SW2 and TM were exposed to the forensic process, although much of the responsibility for what I have had to catalogue undoubtedly lies with other, more senior, figures. Why, to take her as an example, should the hapless SW1 be exposed to public criticism and run the risk of being scapegoated when, as it might be thought, anonymous and unidentified senior management should never have put someone so inexperienced in charge of such a demanding case. And why should the social workers SW1, SW2 and TM be pilloried when the legal department, which reviewed and presumably passed the exceedingly unsatisfactory assessments, remains, like senior management, anonymous beneath the radar? It is Darlington Borough Council and its senior management that are to blame, not only SW1, SW2 and TM. It would be unjust to SW1, SW2 and TM to name and shame them when others are not similarly exposed.
  3. CG stands in a rather different position. I have expressed various criticisms of her: see paragraphs 39-40, 49 and 97 above. But it would be unfair and unjust to identify her if others are not.

Looking now at some of the detail, although much is fact specific, the President is really attacking a wider malaise, in that there was an approach here in relation to threshold which put in almost everything negative about the parents that one could think of, without proper consideration of these two issues:-

1. Could those things be proved? And proved properly, not merely relying on hearsay?

and

2. Even if proved, did they go to establishing that the child had suffered harm or was at risk of suffering harm?

To highlight one example, the father in the case had a conviction, when he was 17 for having sex with a girl who was 13. He accepted that, although said that he had not known her age at the time. The offence was nine years ago.

In her witness statement SW1 said much the same. I need not set it all out. Two passages suffice:

“[He] has failed to work openly and honestly with the Local Authority, as has his mother and her partner. [His] acceptance and understanding of the severity of the offence … continues to cause the Local Authority significant concern …

Despite several attempts of advising [him] that the Local Authority acknowledge that this offence was committed a significant period of time ago, he was unable to acknowledge the significance of this. A requires appropriate role models within his life whereby he is given the opportunity to learn socially acceptable behaviours. It appears [the father] fails to acknowledge the immoral nature of this offence, and as he did not receive a criminal conviction, feels this incident is not significant, nor is it in the interests of A for this to be explored further.”

 

That is the sort of thing that one does see in social work statements and assessments fairly often, and it is perhaps not a huge surprise that the social workers considered this something of a roadblock to their work with father and whether they could trust him.

The President puts them right, as falling foul of the second question above. They could prove it, yet, but did it MATTER? Was it harm?

  1. There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was “immoral”? The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the “current risk he poses” to “vulnerable young women”? What has that got to do with care proceedings in relation to the father’s one year old son? It is not suggested that there is any risk of the father abusing A. The social worker’s analysis is incoherent.
  2. The schedule of findings asserts (W1) that the father “minimises the significance of these events”. Perhaps he does. But where does this take the local authority? I sought elucidation from both TM and SW2. Their answer was two-fold. First, that the father’s trivialisation of what he had done would inhibit his ability to protect A were A to be at risk of future sexual abuse by others. Secondly, that it would prevent him instilling in A a proper understanding of society’s values. With all respect to those propounding such views, the first is far too speculative to justify care proceedings and the second falls foul of the fundamental principle referred to in paragraphs 14-17 above.
  3. It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child A. It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.
  4. Many children, unhappily, have parents who are far from being good role models. But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders.

 

That is an illustration of the sort of thing that peppered the threshold, and the President really encapsulates the issue in this line here

 

9. It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

 

and then in paragraph 10

The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.

  1. Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.

12. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.

What we don’t know, to be fair, is whether this mealy-mouthed threshold document which was a tottering edifice was as drafted by the Local Authority, or the composite document that ends up being produced as an ‘agreed threshold’  – I often see responses to threshold which purport to be an agreed threshold but the revised version is so watered down and wishy washy that it no longer meets the test.  “seemed”, “appeared”  “the child said X but father denies it”, are all the sorts of things that either end up being inserted in an “agreed” threshold to remove argument and dispute OR to be put in to the document in the first place with a view to the threshold not being controversial.

After the opening bit of a threshold document that tells you the child’s name and date of birth and parents, every other paragraph should be  sharply focussed on:-

This is an allegation that can be proved and if proved would demonstrate that the child had suffered significant harm, or is at risk of significant harm.

 

As the President points out, where the case becomes dominated by the fringe issues of whether a parent has insight, or is truthful, or is open and honest, or is working with professionals, one loses sight of the actual statutory test that we are working to.  These things may have some value  (though less than is believed) when deciding on the right orders ONCE threshold is crossed, but they have no probative weight in deciding WHETHER threshold is crossed.

 

I have noticed over the last fifteen years a real shift in litigation about care proceedings from scrapping over every single allegation and inch of threshold to a rush to get threshold accepted and resolved, ideally at the first hearing, and all of the litigation being about future disposal and care plan. The President is right – it is rigour in analysing threshold and whether it is met and how which enables the Court to properly decide whether the State should be intervening at all.

 

Going back to detail, there was substantial play made of the father’s membership of the English Defence League, and it gets crowbarred into the threshold document.

  1. In her statement SW1 returned to the same theme. I need set out only the key passages:

    “the immoral nature of the values and beliefs of members of the EDL and the violence within the protests EDL members engage in is inappropriate and supports inflicting violence injury to innocent members of the Muslim heritage …

    … it is commonly known that this barbaric protestor group promote ignorance and violence in respect of the muslim community … By all means, the assessing social worker supports equality, difference of opinion and that not all races and cultures agree with one another’s beliefs and views. What cannot be condoned however is expressing these beliefs through violence, irrational behaviour and inflicting physical and psychological pain against others due to their religion, the core beliefs and subfocus of the English Defence League. A should reside within an environment that supports difference, equality and independence. He needs to be taught how to express his views systematically and in a socially acceptable way. A should not reside within an environment whereby violence is openly condoned, supported and practiced. [The father] and J need to appreciate this is the twenty first century, the world is a diverse place whereby all individuals should feel accepted, regardless of their ethnic background, race and origin.”

  2. In the schedule of findings the allegation (paragraph 5) is that the father “has been a member of the English Defence League” and that the mother “has previously stated that he has been the target of serious threats to his person and home.”
  3. As in relation to what is said about the father’s previous sexual activity, I find much of this quite extraordinary. The mere fact, if fact it be, that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour. I refer again to what was said in In re B, both by Lord Wilson of Culworth JSC and by Baroness Hale of Richmond JSC. Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings. Very properly, by the end of the hearing Mr Oliver had abandoned this part of the local authority’s case. Not before time: it should never have been part of its case. That the local authority should have thought that it could, and that its case should have been expressed in the language used by SW1, much of it endorsed by TM, is concerning.
  4. If it really were the case that the father was at risk of serious threats to his person and home, that might be a very different matter, though it is not easy to see why the appropriate remedy for such threats should be the adoption of A rather than the provision of suitable security arrangements. Be that as it may, the local authority has in my judgment failed to establish that such threats were ever uttered with any serious intent, that, if they were, there remains any continuing risk to either the father or his family, or that the risk, if any, is such as to justify its concerns. It is, after all, noteworthy that there is no suggestion that there has been any actual attempt either to harm the father or to damage his home.

 

The President was also dismissive of the items in the threshold relating to the father drinking and smoking cannabis

  1. It is further said that the father “has a history of use of illegal drugs”, that “alcohol played a part in an incident on 3 December 2014”, that his mother “says that it [alcohol] affects his temper” and that he “failed to disclose that there was a police search of the property … where he was a tenant during which there was discovered 4 cannabis plants and 18 buds on 24 April 2014”.
  2. I have no doubt that the father on occasion drinks to excess, but not to such an extent as to justify care proceedings. He may have taken cannabis on occasions, but the reality is that many parents smoke cannabis on occasions without their children coming to any harm. The police search was of a property which at the time was tenanted and there is nothing to suggest that the father was in any way complicit. These allegations take the local authority nowhere. Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.

 

Okay, say the Local Authority – you’re going to strike out the sexual offence, the lack of insight, the lack of honesty, the alcohol and drug misuse – but we’d still rely on the domestic violence. Not so fast…

I accept, and find, that there have on occasions been episodes of domestic discord between the father, his mother and more particularly his step-father, that drink has played a significant part in this, that the police have on occasions been called out, and that there was a particularly physical confrontation with violence on 3 December 2013. I accept also that there was some lack of frankness on the part of both the father and his mother in relation to the accounts they gave the local authority of that incident. This history, however, needs to be kept in perspective. Neither the number nor the frequency nor the gravity of these incidents is such, in my judgment, as to cause any major concern. Moreover, it is clear to me, having heard their evidence and watched them carefully throughout the hearing, that, despite their differences and notwithstanding these incidents, the relationship between the father and his mother is, overall, positive and mutually supportive.

 

This is probably the most significant thing about this case – it wasn’t a Local Authority who felt they were on thin ice with dad and were scratching around for threshold – they instead probably legitimately felt that there were a raft of concerns in a number of areas and that the threshold was crossed quite comfortably. As the President showed, if you dissect each and every part of the foundations with that two fold approach – (i)can you prove it? and (ii) if you can prove it, how does it establish harm or likelihood of harm, all of those foundations crumble away leaving the Local Authority with nothing.

This case would have very little to say if it were a case where the LA were “trying it on” but as it relates to a body of thinking where the threshold can be made up of ‘concerns’ or ‘worries’ or ‘issues’ rather than allegations that (a) can be proved and (b) can be shown have a direct bearing on harm or likelihood of harm to the child, it has much broader implications.

If you are a lawyer reading this case in thorough detail, I’d be surprised if you weren’t picking up a red pen and looking through some recent threshold documents.

Where does that leave a parent who has conceded the threshold as being met (given that the PLO and the case management orders press the parties to resolve this issue at the very first hearing)? Well, you’d probably argue that the President’s clarification and sharper focus might warrant looking at the threshold again. I doubt whether this alone would justify an appeal of orders already made, but it might involve some recalibration of threshold documents in cases yet to be concluded.

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A tale of two Telegraphs

Posted on February 16, 2015 by suesspiciousminds

 

Two recent stories in the Telegraph about Court cases.

 

The first, here

 

http://www.telegraph.co.uk/comment/11412971/Why-dont-the-family-courts-obey-the-law.htmlr

 

is from a writer that you all know Christopher Booker.

 

Mr Booker’s story here is that a mother in care proceedings lost her child at an interim stage because of ‘one small bruise’ and was not allowed into the Court room during most of the hearings, and that this was because of their lawyers.

 

On a court order, the two boys were taken into care, and over the following months, through several court hearings from which the parents were excluded by their lawyers

 

Last April, the couple were summoned to a final hearing to decide their sons’ future. The mother was represented by lawyers she had been given by Women’s Aid, which works closely with the local authority. As an intelligent woman, studying for a university degree, she and her partner arrived early at the court, for what was scheduled to be a five-day hearing. They were armed with files of evidence and a list of witnesses they wished to call, all of which they believed would demolish the local authority’s case.

But the mother describes how they were astonished to be told by their lawyers that again they would not be permitted to enter the court. Half an hour later, the barristers emerged to say that the judge had decided that their two boys should be placed for adoption. There was no judgment for them to see, and no possibility of any appeal against his decision. This Wednesday the couple will have a final “goodbye session” with their sons, never to see them again.

 

 

Mr Booker names His Honour Judge Jones as the judge behind this story. [He doesn’t quite give him that courtesy, instead assuming that he is on first name terms with a Judge who he’s about to rip apart in a national newspaper]

 

Now, there are two distinct possibilities here.

 

  1. Everything that Mr Booker reports here is true.
  2. What Mr Booker reports is not what happened and something has gotten lost in the telling of the story.

 

As ever with Mr Booker, he doesn’t make it explicit that there’s a single source for his story, but I can’t see a second source anywhere. Now, that doesn’t mean that it won’t turn out to be true, but I’d feel happier when dealing with extraordinary claims to see confirmation of the story from more than one source.

 

We simply don’t know until we see the judgment from His Honour Judge Jones. In fact, if the latter of those two possibilities is true, we may not even recognise the judgment as relating to this case at all.

 

It would be utterly wrong, and utterly appealable, for a Judge to make an Interim Care Order removing a child from parents without letting them into the court-room, and utterly wrong, and utterly appealable for a Judge to make a Care Order and Placement Order without allowing the parents into the Court room and allowing them to have their opportunity to fight the case if they wished to. If this happened, it would be tremendously wrong.

 

If what Mr Booker says is what actually happened, then he is utterly right to rage against it and I would join him in his rage. If I was a betting man, my money would be on the second possibility, and that he has not been given a full and complete account of what happened.

 

HOWEVER, and I will be absolutely fair to him, if he had told the story of the case before HH J Dodds where the parties attended the first hearing and the Judge made three Care Orders in a five minute hearing, I would not have believed that either, and Mr Booker would have been right and I would have been wrong.

 

I would have said so had that happened. He is also right to draw attention to that Court of Appeal decision about HH J Dodds, and it does highlight that sometimes things happen in Courts that fly in the face of everything you believe and that really unfair things can happen to people. If it happens to you, it is small consolation that it is rare and shouldn’t happen, it must be utterly devastating. Some of the people who come to Mr Booker, or any of the other campaigners, are coming with completely truthful accounts of dreadful injustice, and it is important that they have somewhere to turn, someone who will listen to them.

 

As George Orwell said – We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.

 

And although I’m not asserting that Mr Booker or any of the campaigning groups are either rough men, or would be willing to visit violence on anyone, you hopefully get the general thrust of the point. In being willing to listen to the stories of injustice that people tell them, they provide a mechanism for injustice to come to light, and that is an important thing.

 

I hope that Mr Booker is wrong here, but I accept that he could be right, and if he is, it is important that people hear of it.

 

Sometimes Judges do behave in appalling ways. Sometimes social workers do too. So sometimes, the sort of stuff that Mr Booker rages about does happen, and when it does, he is right to be bloody cross. Even if I think that sometimes Mr Booker is the boy who cries wolf, there are wolves in the world, and that boy was eventually right.

 

If and when I see a case from HH Judge Jones that relates to Care Orders, involving Denbighshire Social Services, two boys and a bruise, I will update you. Perhaps Mr Booker is right. If he is, it is a scandal and I will commend him for bringing it to light. If he is mistaken, then no doubt there will be a correction and an apology, not least to a Judge who has been accused of acting in a way that would make anyone reading it think much less of him.

 

 

[Here is an idea, which I’m sure won’t be taken up – if a parent comes to a journalist with a story that sounds extraordinary about the way they were treated in Court, get the parent to sign an authority allowing the journalist to approach the solicitor representing them, and for the solicitor to read the proposed article and tell the journalist whether that’s an accurate depiction of what really happened, or if the facts have got a bit mixed up]

 

 

Second case

 

http://www.telegraph.co.uk/news/health/news/11412861/Judge-refuses-mothers-plea-to-treat-terminally-ill-son-saying-he-should-be-allowed-to-die.html

 

In which Mrs Justice Hogg, sitting in the Court of Protection made a declaration that the hospital could lawfully stop treating an 18 year old with a brain tumour, even though that withdrawal of treatment would end his life and his parents were arguing that the treatment should continue.

 

Now, this is a story which feels much more solid. It is easier to believe when reading it that what it says happens is what happened. (Booker’s story may well turn out to be true, but it has question marks over it that this one does not)

 

The hearing was in public, which makes it a lot easier for a reporter to put out a strong story with sources – in this case, there are quotations from the judgment and comments from both sides, and the report gives the sense of what a difficult decision this must be either way. It also has the sense of being the sort of thing that happens in the Court of Protection – these are the sort of decisions that have to be taken, the evidence heard and issues raised are consistent with the way one might imagine such a hearing to take place.

 

Again, until we get the judgment, it is difficult to analyse whether the Judge was right or wrong in making that decision – we simply don’t have enough of the key pieces of information or to see how the Judge balanced the competing arguments. So when it comes up, I will share it with you, and we can have the debate – hopefully it won’t be long.

 

It is hard not to have an emotional response however, and my sympathies on an emotional level are with the parents. I don’t think there tend to be many such decisions that go with the heart rather than the head (or with the parents rather than the medics) and I tend to think that the wishes of the family ought to carry rather more weight than they often seem to at the moment, as an overall criticism of these decisions rather than saying that the Judge in this particular case got it wrong.

 

It will be interesting to see how the Judge dealt with the right to life issue, article 2 being something that binds the Court as a public body, and that being an unqualified right. There are previous decisions which do sanction this withdrawal of treatment, largely connected to the right to die with dignity

 

It does make me somewhat uncomfortable that where a family want that for a person it is generally resisted, but when the medics want it and the family oppose it, it generally happens. Is the judiciary too deferential to the views of medical professionals? That’s a much wider debate.

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Is the Child Protection system fit for purpose – a conference on 1st June

Posted on February 6, 2015 by suesspiciousminds

 

This conference has been set up by members of the Transparency Project   http://transparencyproject.org.uk/  of which I am a tiny part  (a cog who is not pulling his weight at the moment)

 

You may know Lucy Reed from Pink Tape http://www.pinktape.co.uk , or Sarah Philimore from Child Protection Resource http://www.childprotectionresource.org.uk/ who are the driving force behind this conference. They are the Mary Berry / Paul Hollywood combo – not necessarily in that order.  Many of you may also know Jerry Lonsdale,  who is like the James Bond of the MacKenzie Friend world. And there are many other cool people involved – I’m particularly looking forward to hearing from Sir Mark Hedley and  Kristy Seddon (who is a remarkably impressive care leaver)

So this conference is open to anyone – lawyers, Judges, journalists, social workers, guardians, experts and most importantly real people.

It is going to be like the Glastonbury of family justice. As such, for the small bit I am doing, I will be writing in a blue counsel’s notebook with it behind my back, then with my pen in my teeth and finally setting fire to the notebook.

 

Policing Parents? Protecting Children? Promoting Adoption?

Do we get the child protection system we deserve

The Transparency Project is pleased to announce a multi-discliplinary conference, on 1st June 2015, which will discuss the different views and perspectives from experts, lawyers, social workers, parents and care leavers in an attempt to re-position the current unhealthily polarised debate around the child protection system.

We will be joined by Dr Lauren Devine of UWE who is currently undertaking research into the evidence base for our current system and by Brigid Featherstone, co-author of ‘Re Imagining Child Protection’.

The conference will take place at the NCVO facilities, near Kings Cross in London

Register for tickets – until Feb 28th 2015.

To register for tickets, please email sarah.phillimore@stjohnschambers.co.uk.

Please let us know which afternoon workshop you would like to attend and if you want a vegetarian meal option.

We want to keep costs low but need to charge to cover costs of venue hire and catering. Lunch and refreshments will be available on the day.

Professionals 5 + years PQE £100/Professionals 0-5 years PQE £50 – discount of 20% if 3 or more members of the same organisation book together.

Waged £30

Unwaged £5

We will be seeking accreditation for CPD points for both the Bar and solicitors.

Topics for afternoon discussion

Suggestions are coming in for the issues most likely to require debate/discussion. Please feel free to contact us to add more.

  • Section 20 agreements – the drift and delay problems. Are there adequate mechanisms in place for review of these? What’s the IRO doing?
  • The anti-authority parent – does disagreeing with or failing to co-operate with a social worker equate to being a ‘bad parent’? What can be done to improve relationships between parents and social workers? These issues are highlighted in the recent Hertfordshire case and discussions over at suesspicious minds.
  • Risk of future emotional harm – Re B [2013] is this an acceptable basis for removing children for adoption?
  • Perception of experts as independent – what should happen if experts in a case are on a ‘paid retainer’ with a LA? also an issue raised in the Hertfordshire case above.
  • Problems with ‘working together’ – example of recent disjunction between family and housing law discussed by Nearly Legal. How do we make sure family courts have the best information about issues they may not be familiar with nor fully understand?
  • Opening up the family courts – the impact on children. Is it likely to be a serious as some fear? What lessons can we learn from other jurisdictions?
  • Impact on care proceedings of the rise of litigants in person – what can be done to improve position for people who won’t get legal aid? see discussions by John Bolch on Marilyn Stowe’s blog.
  • Funding for therapeutic intervention- what options should or could be available for parents who are advised they need lengthy therapy/counselling?
  • How is the UK system viewed in Europe? – note the recent report ‘Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States’, in particular para 74 which criticises the refusal of the UK system to reverse adoption orders as a ‘misunderstanding’ of what is in the best interests of a child.

Timetable

9.15-9.45 Registration
9.45 -10.00 Introduction and welcome Sir Mark Hedley
10.00-10.30 Evaluation of the Evidence Base for current practice Dr Lauren Devine UWE
10.30-11.00 Re-Imagining Child Protection Brigid Featherstone
11.00-11.30 Coffee break
11.30-12.00 Expert reports and assessments; new directions for 2015. Lisa Wolfe and colleagues
12.00-12.30 Care leavers’ perspectives Kirsty Seddon
12.30-1.15 Parents’ perspectives on the system Introduction by Jerry Londsdale .
1.15-2.00 Lunch Invitations to complete a ‘next steps’ questionnaire online.
2.00 – 3.15 Parallel discussion groups/workshops See below
2.45-3.15 refreshments and informal discussions Post-it note ‘instant’ feedback wall
3.15-4.15 Top table panel lead Q&A discussion Top table of morning’s plenary speakers
4.15 – 4.30 Closing summary, distil the day and key outcomes – call to action? Sarah Phillimore
PM parallel discussion groups/workshops from 2pm to 3.15pm

A. Intervention versus interference: To what extent should we safeguard? Northumbria University.
B. Family Law Toolkit: how language influences outcomes, achieving best evidence. Update on case law when adoption is ‘necessary’; advice on appeal, Legal aid and exceptional funding, ‘hidden LiPs’ and issues of transparency Alice Twaite, Sarah Phillimore, Lucy Reed and Dr Kate Harrington
C. Therapeutic interventions and community support Angela Markham, Jane Auld, National Parenting Initiative, Families In Care
D. Is good enough, good enough? – expectations around parents with learning disabilities, what kind of support needed? Beth Tarleton and Nadine Tilbury, University of Bristol

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Adoption seminar (featuring Rihanna)

Posted on January 26, 2015 by suesspiciousminds

[Seminar itself not featuring Rihanna. She will not be attending, or singing, or play any role in it whatsoever. She won’t even be an image on a slide.  But she will be there in spirit.   She will not actually be there in spirit]

I am told by teh interweb that Seminar originally meant ‘breeding ground’ or ‘plant nursery’ and so I am becoming the Monty Don of Adoption this Thursday when I deliver an adoption seminar.

 

It is available as a webinar, and you can claim CPD points for it, if you want to watch what I have to say about adoption, or you are incredibly desperate for CPD points, or if you just want to see what happens when your laptop screen cracks from the inside once my fizzog appears on it, then NOW is your chance.

 

NOTHING ELSE WILL DO – WHERE ARE WE NOW WITH Re B AND Re BS?

 

SEMINAR/WEBINAR

 

5.00pm – 6.30pm

 

on Thursday, 29 January 2015

 

 to be held at Crown Office Row Chambers, 119 Church Street

Brighton, BN1 1UD

followed by a Drinks Reception

 

 

Andrew Pack (Guest Speaker) who is the award-winning Legal Commentator of the year 2014 and author of “suesspiciousminds” blog will look at the rapidly developing jurisprudence relating to placement orders and adoption.

 

“Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course is possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails” – Munby LJ in Re BS

 

There have been 5 Court of Appeal decisions in the last 5 weeks on this principle – is it now dead and buried?

 

 

Adam Smith will look at the British tradition of adoption orders, how Re B impacted on the UK system, and how other European States provide long term care for their children:

“The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard, the rest of Europe would have hastened to have adopted it.“ – Mostyn J in Re D.

 

This Seminar/Webinar has been registered for 1.5 CPD and will cost £15 per person.

Please make cheques payable to “One Crown Office Row”

Joining instructions and materials for the webinar will be emailed on the day

Please register with the clerks on 01273 625625 or email: clerks@1cor.com

 

If it is popular, I might end up doing some more of these webinar things, which I don’t know whether you will take as a promise or a threat.

I had better stress to you again that Rihanna and the Wombles do not specifically* endorse this seminar, but I know for a fact that neither of them are going to any OTHER adoption seminars this year, so read into that what you will.

 

Oh also, you don’t get the drinks reception bit if you attend by Webinar only – we haven’t invented some sort of alcoholic Willy Wonka thing where you can reach out to your ipad and get a glass of white wine come through the screen. If we’d invented that, we’d be out of the law game and be busy being millionaires. If you are utterly committed to having a Drinks Reception alongside your webinar, you will have to supply and serve your own drinks. Sorry.

I could maybe invent you some sort of Adoption Seminar drinking game, where you have to take a gulp every time I say “the President”  and down your glass in one every time I say “proportionality”, if that helps.  [Please don’t actually do this, particularly if you are attending the live event – I fear it might  kill most mortals]

 

*or indeed at all. They are at best oblivious of it. Though if they have one of those PR agencies who do scrapbook clippings of every piece of information that mentions their client, they will be utterly baffled by this whole thing.

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FGM – an important authority

Posted on January 14, 2015 by suesspiciousminds

The President has given judgment in care proceedings where alleged Female Genital Mutilation was the sole issue

Re B and G  (Children ) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/3.html

Being the first reported case on this issue, it is significant anyway, but I think the President really comes into his own when he is giving a judgment of this kind  (I’m less keen on Views and Practice Directions and model orders, but this sort of thing he excels at)

It is going to be worth holding in mind that B was male, and G female. This will become important later on.

Firstly, and importantly, one should note that the Court found that the allegation that G had been subjected to Female Genital Mutilation was not proven, and thus did not happen. This despite two experts who examined G reaching that conclusion.

A lay person might well think that the factual issue of whether or not a procedure to remove a part of the body happened would be fairly straightforward, it turned out not to be.

The medical professionals in the case were criticised by both the parents advocates and ultimately by the Court.

  1. Mr Myers and Mr Ekaney invited me to accept Professor Creighton’s evidence. Mr Myers suggested that Dr Share’s evidence demonstrated the lack of awareness and training within the medical profession on the issue of FGM. Despite being a respected and experienced consultant community paediatrician with expertise and extensive experience in conducting child protection investigations, she openly and honestly admitted to having made significant errors in her reports. Mr Ekaney made similar points, questioning her expertise, whether clinical or forensic, in FGM cases. In relation to Dr Momoh neither pulled their punches. Mr Myers submitted that both her report and her oral evidence were “well below the standard required of an expert witness”. He described her evidence as “confused, contradictory and wholly unreliable” and submitted that I should attach no weight at all to her evidence on scarring. Mr Ekaney characterised her oral evidence as “unclear, dogmatic and unreliable”.
  2. It is unavoidable that I make findings about the expertise and reliability of the three experts.
  3. Dr Share is an experienced and highly regarded consultant community paediatrician but did not put herself forward as having particular expertise in FGM. She very candidly admitted that her initial findings were wrong and that she had changed her mind even after the second examination. In giving oral evidence she was an entirely honest, open and frank witness. The critical question is how reliable a witness she was in terms of what she thought she had seen when examining G.
  4. I regret to have to say that Dr Momoh merited all the harsh criticism expressed by Mr Myers and Mr Ekaney. Whatever her expertise in relation to FGM in pregnant women, in relation to young children it was extremely limited. Her inability in the witness box to provide explanations for matters that cried out for explanation was striking. Her report dated 23 April 2014 was a remarkably shoddy piece of work. A report that says, without further explanation or elaboration, and this is all it said, “It appears that [G] has been subjected to some form of FGM as her vulva does not appear normal”, is worse than useless. In my judgment her report and her oral evidence were well below the standard required of an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory.
  5. In contrast, Professor Creighton merited all the encomiums she received from Mr Hayes, Mr Myers and Mr Ekaney. She was the only one of the three with real experience of FGM in a paediatric context. Her evidence, both written and oral, was clear and measured; it did not change; it was delivered with authority; it carried conviction.
  6. I make every allowance for the fact that Dr Share and Dr Momoh examined G with the naked eye, Dr Share twice, whilst Professor Creighton did not, but I nonetheless find it quite impossible to rely upon their evidence as reliably establishing, even on a balance of probabilities, that G had been subjected to FGM.
  7. The fundamental problem is that, on their own evidence, neither Dr Share nor Dr Momoh has been able to give a clear, accurate or consistent account of what it is they thought they were seeing when examining G:

    i) Dr Share began off thinking that what she had seen was the removal of tissue, that is, FGM WHO Type I and possibly Type II; she ended up thinking that what she had seen was a scar, FGM WHO Type IV.

    ii) Dr Momoh recorded missing tissue; she also ended up thinking that what she had seen was a scar.

  8. An equally significant problem is presented by the fact that Dr Share and Dr Momoh disagree about the features of the scar they both say they saw. Dr Share described it as “curved” and “raised”, Dr Momoh as “straight” and not raised. As Mr Ekaney observed, they cannot both be right.
  9. Another significant problem is presented by the difficulties both Dr Share and, in much greater measure, Dr Momoh had in explaining the content of Dr Momoh’s notes of their joint examination.
  10. For all these reasons, and having regard also to all the other troubling aspects of their evidence to which I have drawn attention, I find it quite impossible to rely upon Dr Share’s and Dr Momoh’s evidence as establishing the local authority’s case. I am not persuaded of the presence of the scar which is now the only feature relied upon by the local authority in support of its allegation of FGM.

 

The President went on to give some specific guidance for the medical assessment process

i) There is a dearth of medical experts in this area, particularly in relation to FGM in young children. Specific training and education is highly desirable. As Professor Creighton explained (Transcript pages 23, 27-28), there is an awareness problem and a need for more education and training of medical professionals, including paediatricians. In answer to my question, “presumably we need more paediatric expertise than we have at present?” (Transcript page 29), she said “Yes, definitely”. She told me (Transcript pages 28-29) that there are at present only 12 specialist FGM clinics throughout the country, of which six are in London, and that her clinic at University College Hospital is the only specialist paediatric FGM clinic in the country.

ii) Knowledge and understanding of the classification and categorisation of the various types of FGM is vital. The WHO classification is the one widely used. For forensic purposes, the WHO classification, as recommended by Professor Creighton (Transcript page 2), is the one that should be used.

iii) Careful planning of the process of examination is required to ensure that an expert with the appropriate level of relevant expertise is instructed at the earliest opportunity. Wherever feasible, referrals should be made as early as possible to one of the specialist FGM clinics referred to by Professor Creighton. If that is not possible, consideration should be given to arranging for a suitably qualified safeguarding consultant paediatrician to carry out an examination recorded with the use of a colposcope so that the images can be reviewed subsequently by an appropriate expert.

iv) Whoever is conducting the examination, the colposcope should be used wherever possible.

v) Whoever is conducting the examination, it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. If an opinion is expressed in relation to FGM, it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed, which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely, by reference to what is recorded as having been observed.

I heard on the radio this morning criticism that despite many reported cases of FGM there had not yet been a criminal prosecution – this case perhaps illustrates that it isn’t going to be as easy to prove to a criminal standard whether it occurred as the press and public might think.

The Local Authority having not proved their central allegation (that G had been subjected to FGM) they were also not able to prove that there was a likelihood of this in the future, and thus threshold was not proved and no orders were made. Although the family had probably spent 6 months or so under suspicion with substantial impact upon them.

Of wider impact, however, are the President’s observations on two points.

Firstly, does FGM if proven, amount to significant harm?  (One might think that this is a no-brainer, but the President had to consider the cultural issues and the fact that male circumcision is something that does not routinely trouble anyone, let alone the Courts; and thus if FGM was the sole issue how would significant harm for the male child B be established IF G had been subject to FGM? Also, remember that the significant harm test includes a component of “not being what it would be reasonable to expect a parent to provide”  – so if FGM is part of the parents cultural matrix, are they being unreasonable?)

It is quite a long analysis, paras 54-73, so I’ll skip to the conclusion (but it is worth reading in full)

  1. Moving on to the second limb of the statutory test, Mr Hayes submits that in assessing whether the infliction of any form of FGM can ever be an aspect of “reasonable” parenting, it is vital to bear in mind that FGM involves physical harm which, it is common ground, has (except in the very narrow circumstances defined in section 1(2)(a) of the Female Genital Mutilation Act 2003, not relevant in a case such as this) no medical justification and confers no health benefits. The fact that it may be a “cultural” practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So, he submits, it can never be reasonable parenting to inflict any form of FGM on a child. I agree.
  2. It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two.[2] FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.
  3. I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with section 31 of the Children Act 1989; male circumcision without more will not

 

The next key proposition was that the LA involved had been saying that if the allegation that the parents had been involved in FGM relating to G, the appropriate care plan would be adoption of both B and G.  The Judge expressed doubts as to that as a general proposition. But one can see the real problem – it might be justification to adopt the female child but it obviously can’t be justification to adopt the male sibling, and that leads to splitting the siblings.  And the obvious point that once the FGM has been carried out, the horse has bolted – the parents can’t carry out that form of abuse on the child in the future, so future harm is non-existent.  [In the absence of evidence about harsh treatment or neglect in other regards]

 

  1. Since in the circumstances the point was only briefly explored in submissions, I propose to say very little about it. No generalisations are possible. Much will obviously depend upon the particular type of FGM in question, upon the nature and significance of any other ‘threshold’ findings, and, more generally, upon a very wide range of welfare issues as they arise in the particular circumstances of the specific case. Arriving at an overall welfare evaluation and identifying the appropriately proportionate outcome is likely to be especially difficult in many FGM cases.
  2. There are two particular problems. The first is that once a girl has been subjected to FGM, the damage has been done but, on the evidence I have heard, she is unlikely to be subjected to further FGM (though of course female siblings who have not yet been subjected to it are likely to be at risk of FGM). How does that reality feed through into an overall welfare evaluation? The other problem is that, by definition, FGM is practised only on girls and not on boys. In a case where FGM is the only ‘threshold’ factor in play, there will be no statutory basis for care proceedings in relation to any male sibling(s). Suppose, for example, that the FGM is so severe and the circumstances so far as concerns the girl are such that, were she an only child, adoption would be the appropriate outcome: what is the appropriate outcome if she has a brother who cannot be made the subject of proceedings? Is her welfare best served by separating her permanently from her parents at the price of severing the sibling bond? Or is it best served by preserving the family unit? I do not hazard an answer. I merely identify the very real difficulties than can arise in such a case. In cases where there are other threshold factors in play, balancing the welfare arguments as between the girl(s) and the boy(s) may be more than usually complex, particularly if FGM is a factor of magnetic importance.
  3. The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.
  4. I add a final observation. Plainly, given the nature of the evil, prevention is infinitely better than ‘cure’. Local authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. And, as I have already said, the court must not hesitate to use every weapon in its protective arsenal if faced with a case of actual or anticipated FGM. An important tool which lies readily to hand for use by local authorities is that provided by section 100 of the 1989 Act. The inherent jurisdiction, as well as all the other jurisdictions of the High Court and the Family Court, must be as vigorously mobilised in the prevention of FGM as they have hitherto been in relation to forced marriage. Given what we now know is the distressingly great prevalence of FGM in this country even today, some thirty years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, I suspect, if not the first one of only a handful of FGM cases that have yet found their way to the family courts. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil but they have an important role to play and a very much greater role than they have hitherto been able to play.

I’ll repeat para 77, because it is key

The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.

I’ve never had an FGM case so I haven’t had cause to think about it in this amount of detail, but being honest with myself, I think I would have considered that (a) it would be easy to prove (b) I wouldn’t even have questioned whether it crossed threshold and (c) adoption would have been in my mind. So, this case is helpful in getting practitioners (and even Judges) to look at the situation in more detail.

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Nothing else will do – Scotland

Posted on January 11, 2015 by suesspiciousminds

I’ve had to look up Scottish adoption law today, and found this little piece from the 1995 legislation  (Children Act Scotland Act 1995)

 

 

96 Duty of adoption agency to consider alternatives to adoption.

After section 6 of the 1978 Act there shall be inserted—
“6A Duty to consider alternatives to adoption.

In complying with its duties under section 6 of this Act, an adoption agency shall, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of that child or whether for him there is some better, practicable, alternative; and if it concludes that there is such an alternative it shall not proceed to make those arrangements.

 

If you just added “And the Court” each time that this says “adoption agency”, it is a pretty workable solution to the whole “nothing else will do” debacle that has had everyone tied up in knots.

I know that in English family Courts, “the Scottish system” is whispered with an air of dread and menace much like actors referring to “the Scottish play”  but I’ll point out that this was in their legislation nearly twenty years ago AND three years before the Human Rights Act was adopted. It looks pretty progressive to me.

 

[We don’t have anything like that in our English or Welsh adoption statutes – this principle of adoption being last resort is purely as a result of judicial interpretation. Be quite nice to have this principle set out in statute, and particularly in such a clear way.]

 

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Re D (part 2) a damp squid

Posted on January 7, 2015 by suesspiciousminds

 

 

The President’s judgment in Re D  (part 2) is up.  The blog post about part 1 is here:-

Everyone really ought to read Re D

Re D is the case in which parents had a care order at home, the LA removed under the Care order, there was no legal aid to challenge that decision despite father lacking capacity to instruct a solicitor. Then the LA lodged an application for a Placement Order, and as it was not joined up with care proceedings, there was no legal aid for THAT either.

Father’s legal team were not only acting for free, but they had to write the Official Solicitor an indemnity that if a costs order was made against the O/S they would pay it. Which is above and beyond.

So Part 2 is all about whether Legal Aid would be granted for the father under s10 LASPO (exceptional circumstances) and if not, what would happen.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/2.html

 

Annoyingly, as keeps happening before the President, the Legal Aid Agency eventually blinked and granted funding, thus avoiding a judgment that might declare that s10 LASPO as being practiced is incompatible with article 6.  So we don’t get a valuable precedent because there was no live issue to try. Grrrr.

 

However, note that the public funding granted here is still subject to an ongoing merits review  (that’s NOT what happens in care proceedings – even if your case looks hopeless you are still entitled to have a lawyer fight it for you)

 

The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows:

“The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place.

The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications, whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”

 

So it could be that if all of the professional evidence is against the parents, they will have no legal aid to have lawyers to challenge and test that evidence at a final hearing, although what is at stake is adoption.

 

The President has strong views about this (though note that parents routinely don’t get lawyers to help them on applications for leave to oppose the making of adoption orders, which also feels pretty shabby to me)

I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:

“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”

A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.

 

The really sad thing about this case is encapsulated by the mother

  1. This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
  2. I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:

    “The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”

    They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?

 

Hear hear.

Equally, it can’t be a decent solution to this situation that we have to get a case before the President before the Legal Aid Agency will blink and see sense. He can’t hear all of them.

The annexe is shocking- it has taken nine months of wrangling to sort out legal aid for something that most people would assume was automatic.

I completely agree with the position of the ALC (Association of Lawyers for Children) and ADCS  (Association of Directors of Childrens Services)  – parents facing an application for a placement order should get non-means, non-merits public funding regardless of when the application takes place.

 

…the ALC makes these two assertions:

    1. “Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
    1. Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”
  1. I draw attention to two of the points made by the ADCS. The first is that:

    “From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings

    In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.”

     

    [For the benefit of pedants, yes, I know it is ‘squib’, but I like that particular eggcorn. Actually, this case isn’t quite as damp as it appeared when I first read it, because there’s a rap over the knuckles for LASPO here, although it doesn’t end up being the declaration of incompatibility that many were hoping for]

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