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“The father is to have no contact while the investigation is ongoing”

 

This is an interesting case, decided by Recorder Baker.  It was a private law case, which had considerable Local Authority involvement.  Many of the issues may seem familiar to practitioners, but the Recorder has grabbed the facts and issues and put them together in a very pleasing and digestible way.  And produced some useful guidance for other similar cases.

 

Re V (A child) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/58.html

 

The facts are painfully familiar.  [Not how ALL cases go, by any stretch of the imagination, but we’ve all seen ones pretty much like this before.]

Man and woman meet each other. Love each other very much. When a man and a woman love each other very much they have a special cuddle, and lo a baby is born. Man and woman fall out of love.  Man and woman stop living together.  Quarrels ensue. Woman makes allegation about man. Man’s contact with child stops.

Here the allegation was that the man had been ‘massaging’ the child, who was about six.  Eueeww, creepy, you’re all thinking. Massaging a child. Creepy.

Well not so much when you know that the child has a medical condition that requires massage as a treatment and the dad is a physician. Not quite so creepy.

 

Let’s make it very plain at the start that the Judge in this case did not find that the father had done ANYTHING wrong to the child. Nor did he find that the mother had made up the allegations or been malicious or deliberate in any way.  It is just a series of events that got out of control, and a series of failings from professionals to look at the evidence for the mother’s suspicions and tell her frankly and plainly that there was nothing in them.  As a result of which, a father lost contact with his son for 42 weeks.

 

 

  • On a day in January 2016 the mother and V were at home with a family friend who was visiting. The family friend heard V make some comments about the time he lived with his father including comments about massages that he and his father had given each other. The family friend, who asserts experience in child protection matters, spoke to the mother on the telephone after her visit and informed the mother that she was going to make enquiries with respect to “intervention” with V on the basis that she was concerned by what she had heard. On the same day she telephoned the child’s school and told them about her concerns.
  • The school initiated safeguarding procedures and 6 days later V was seen in school by the Investigating Police Officer and a Social Worker. Prior to speaking to V they spoke to V’s school teacher. Amongst other things the teacher told them the school did not have any particular concern about V, that they had witnessed a good relationship between V and his father and that they had observed him to look forward to his father picking him up from school. The school were aware that V was awaiting a corrective medical procedure and that they were aware that V’s father, a medical professional, did massage V in connection with this condition. They confirmed that V had made no allegations of sexually inappropriate behaviour to them.
  • When the Investigating Police Officer and the Social Worker spoke to V, he made no allegations against his father and told them that there were no bad things about living with his dad or mum. When asked if his father ever did anything that makes him feel confused, upset or angry, he said that his father did not.
  • The Social Worker and the Investigating Police Officer communicated the contents of their conversation with V. It is recorded that the mother was not happy and was asking about stopping “contact” between V and his father. V was due to return to live with his father in the next few days. At that time it is recorded that she was advised that she would “struggle” to justify preventing V seeing his father and would be in breach of the extant court order. It is recorded that the mother was advised that she should not question V further.
  • The following day the mother attended at the local police station with a relative. She was initially spoken to by a police officer who was staffing the front desk. That police officer made a record of her attendance and sent a note to the Investigating Police Officer relating the encounter. It records that the mother was asking V to tell the police officer what he had told her. It records that the mother was asking V leading questions to elicit answers from V. She was asked to return later in the day when the Investigating Police Officer (who had attended the school the day before) would be on duty.
  • When the relative, mother and V returned to the police station the same day the Investigating Police Officer spoke to them. The Investigating Police Officer’s note records that during discussions with the mother, she reported that she had been undertaking research on the internet about how to speak to a child and that she had been asking V questions about what his dad had done. It is noted that it appeared to the Investigating Police Officer that the mother had been asking leading questions of V but when this was raised with the mother the relative became angry and aggressive and was asked to leave.
  • V was then video interviewed. I will return to the contents of that interview below.
  • After the interview the Investigating Police Officer noted that the mother “was keen to contact her solicitor and appeared to be checking that [V] had stated everything he needed to”. Thereafter the Investigating Police Officer advised the mother that the matter would be passed to a different police station for further investigation.
  • The transcript of the video interview of V makes for interesting reading. It can be asserted that he makes a number of allegations about his father massaging him, possibly involving the child and the father’s private parts. However, in a letter from a Detective Inspector written to the father’s solicitors 6 months later the contents of the interview are described thus:

 

“[V] did provide an account on video interview, and it was noted by officers that he did present in a very different manner compared to the previous [the school visit]. His account changed numerous times and he failed to make any clear or concise disclosures.”

 

  • That brief description is accurate and encapsulates the fact that the interview of V, even taking into account his age, is muddled and inconsistent. It does not provide a strong foundation for assertions of sexually inappropriate behaviour by the father. In the end it was the only evidence that could possibly have been taken as any evidence of inappropriate behaviour by the father.
  • On the same day (i.e. the day that the mother attended the police station in the morning and those events summarised at paragraphs 13 and 14 above occurred) the mother applied to court for a prohibited steps order preventing the father from removing V from her care. That application was made without notice to the father and was granted.

 

Despite there being not a grain of truth in the allegations, and pretty much every professional who looked at the evidence reaching that conclusion, it still took 43 weeks for this father, who had been having shared care of this child, to have any contact with his son again.

 

Here is the bit that is troubling, yet still sadly familiar

 

  • At some time after Day 6 and before the completion of the section 47 investigation the local authority had presented the mother with a written agreement. That was not in the Court Bundle so when I invited the local authority to attend the final hearing I also asked them to bring a copy of the written agreement. It is undated so it is only possible to estimate when it was signed by the mother. It asks the mother to ensure that:

 

“[The Father] is to have no contact with [V] whilst the investigation is ongoing.”

 

The Judge notes that of course the mother placed reliance on that written agreement – even if I WANTED to allow contact, I can’t, because the social workers have made me sign a written agreement not to allow any contact.

 

Even after both the Local Authority AND the police had closed their case, nobody tore up that Written Agreement, so it was being relied upon by mother months after any investigation was done and dusted. There being no evidence whatsoever of abuse, of course the investigation was going to fizzle out. Nobody took steps to revoke it though.  (And cynically, one might say that its existence rather suited the mother)

 

 

  • The decision to have an Initial Child Protection Case Conference having been rescinded, the local authority continued a ‘Child and Families Single Continuous Assessment’ as it is referred to in the document. The use of the word ‘continuous’ is ironic in the circumstances, because it turned out to be anything but. The assessment document itself makes it difficult to determine when it actually concluded, however I suspect it was within 3 ½ weeks of the initial phone call to the school. The decision to close the case was reviewed and ratified by a social worker manager one month after its’ conclusion.
  • The assessment recounts a number of things. It repeats the account of V’s video interview in the same terms as identified at paragraph 25 above. It notes however that when V is seen by the social worker 2 ½ weeks after his video interview, he again expresses no concern about being in the care of either parent. It records some of the things I have related above that might have at least alerted the writer or the manager to the possibility that this was not simply a case of child sexual abuse and that there were other risk factors to consider. However, it recommends no further action is taken by the local authority. When that decision is ratified by the Social Work Manager it is recorded in the following terms:

 

“I agree with the social workers (sic) recommendations to close this case… From the information collated during the assessment process, it is considered that the likelihood of significant harm posed to [V] is considerably reduced given that [the mother] has obtained a Prohibited Steps Order as well as agreed via a working agreement to ensure that he does not maintain contact with his father… if [the mother] were to breach this agreement such would undoubtedly increase the risk posed to [V] and, in turn, impact upon his developmental needs.”

 

  • It is difficult to read that paragraph as anything other than a conclusion that (i) in the view of the local authority V had been sexually abused by his father and (ii) that if he were to have contact with his father he would be at risk.

 

The Judge is quite right – of course you can’t read that as being anything other than a professional assessment that this child was safe because mum had agreed to stop contact and would be at risk if contact resumed.  Which would be a solid assessment IF it were based on an analysis that was supported by the actual evidence in the case. But it wasn’t.

 

 

  • The local authority did not become involved with V again until the Court made a section 37 direction, some 7 months later. That section 37 report, which was completed by a social worker who had not previously been involved, concluded that there was little or no evidence to substantiate any allegations of sexual abuse. The writer also observed that there was considerable evidence of a hardening of V’s views against the father, contrary to the situation that existed when he was living with the father and mother jointly and indeed contrary to the situation when his relationship with his father had only been interrupted for a few weeks. The writer concludes that V has suffered significant harm but that harm emanates from the acrimonious dispute between the parents rather than any form of direct sexual or physical abuse. The analysis of the factual matrix is compelling and thorough. Whilst neither I nor the parties entirely accepted all of the recommendations made within the report, that does not detract from the value of the work undertaken. It is right that I acknowledge that the author was employed by the same local authority that this judgment criticises.

 

The Judge goes on to discuss the role of Local Authorities in private law proceedings.  And it is right that when I receive notification that I myself am dragged (as an LA lawyer) into private law proceedings my reaction is much like THIS

 

Why God, why? Why have you forsaken me?

Why God, why? Why have you forsaken me?

 

 

  • I have every sympathy for and understand only too well the limited resources available to local authorities. Some local authorities, in my experience, display considerable reluctance to become involved in private law disputes and it is possible that there is an instinctive wish to withdraw from meaningful involvement as soon as possible, believing that private law disputes will ultimately be resolved by the courts. Local authorities do, after all, have many children whose welfare they are charged with protecting. However, local authorities have statutory duties and the way in which those duties are carried out have significant and lasting ramifications even if they do not become directly involved in any court proceedings that follow.

 

The Judge then goes on to give some very careful, thoughtful, measured and helpful guidance for Local Authorities in this situation, and decries the approach of “Allegation against dad >  get mum to stop contact > so no risk = close the case”  without a proper consideration of the allegation.

 

 

  • In any dispute between two parents where an allegation of abuse of any nature is made, instigated or supported by one parent against the other it is, in my view, incumbent upon a local authority receiving a referral to have in mind all the possible risks that may be inherent in any such allegation.
  • There is of course the risk that the allegation, whatever its nature, is true. There is the risk that that the allegation is not true. There are also the risks that the allegation is in some way mistaken, mistakenly encouraged or deliberately fabricated.
  • There are of course very serious welfare consequences for a child if allegations of, for example, sexual abuse are true. However, there are also serious welfare consequences if the allegations are not true. Those consequences include the possible temporary or permanent cessation of a relationship between a child and a parent. They include the inculcation of false events within a child’s memory and belief system. They include one parent portraying a negative and inaccurate view of another parent, with possible long term consequential psychological damage to a child who is led to believe that part of his or her genetic make-up is in some way ‘bad’ or unworthy.
  • It strikes me that in circumstances where the backdrop is a dispute between parents, the words of Baroness Hale in Re B [2008] UKHL 35 at [29] should be at the forefront not only of the Court’s mind but also of any investigative authority:

 

“…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”

 

  • It is notable that Baroness Hale refers to the local authority as being “neutral and expert”. In my view and with respect, in this context it seems to me that ‘neutral and expert’ implies a professional detachment that is alive to all the risks and weighs all the evidence in a balanced way bearing in mind all the reasonable possibilities. It does not imply an abandonment of a precautionary approach to child protection but acknowledges that ‘child protection’ encompasses protection for children from mistaken and false allegations as well as those that may be true.
  • It also occurs to me that where local authorities act in a way that purports to restrict the relationship between a parent and a child, under pain of legal action (as in this case, condensed into the written agreement) they must bear in mind that they may be interfering as a public body in a relationship that has, for want of a better term, special status. That ‘special status’ is reflected in the following observations about this case, which I doubt are exhaustive:

 

a. This father had parental responsibility for V;

b. This father had a court order that ensured that V lived with him and the mother;

c. This father had an ongoing relationship with his son about which there was ample evidence of a positive nature;

d. V had an Article 8 right to family life with his father that should only be interfered with if justified and proportionate; and

e. The father had an Article 8 right to family life with his son that should only be interfered with if justified and proportionate.

 

  • When interfering with such powerful imperatives it, in my view, behoves the local authority to record the situation carefully and accurately, formulating an assessment of the risks on all the evidence reasonably available, even if that assessment still concludes that for the time being the child should not see the accused parent. Simply to say ‘the child will not see the alleged perpetrating parent and is therefore safe’ and thereafter close the case, is an abrogation of the responsibility placed on local authorities by Parliament.
  • Failure to assess the circumstances properly has far reaching effects, even if the local authority do not themselves initiate protective court proceedings. In this case alone there are two obvious examples. First, when a private law case comes before the court Cafcass complete a ‘Safeguarding’ letter, a process that involves a Family Court Reporter quite literally telephoning the local authority to find out if they have had any involvement with the child or their family. Someone at the local authority looks on the computer and relates the contents of the information contained therein. The conclusions and nuance of that information informs the contents of the Safeguarding Letter which then informs the judge at a First Hearing Dispute Resolution Appointment. Decisions taken at the early stages of a case are of vital importance and can determine the direction of travel for the court process. Re-visiting the conclusion of the local authority assessment set out at paragraphs 33 and 34 above, it is not difficult to imagine the message that would be conveyed to the court by such a conclusion. Neither is it difficult to imagine the different approach that might have been taken by a court had that conclusion recorded a more balanced examination of the risks in this case.
  • Secondly, I have already alluded to the possible effect of the Written Agreement entered into between the mother and the local authority (paragraph 31). Again it is not difficult to imagine how a court, bereft of the complete picture, would approach a situation where it is informed that the local authority have told the mother that she must not allow the child to see his father. The impact was doubtless magnified by the lack of an end or review date in the agreement, allowing it to be said quite accurately that the agreement apparently still applied.
  • In addition, an approach that lacks balance and objectivity allows a parent who is more than willing to believe, subjectively and possibly inappropriately, that the other parent has sexually abused their child, to invest in that belief. It prevents them coming to terms with the possibility that the other parent may not have sexually abused their child. It reinforces both parents’ negative belief about the other parent which in turn is likely to impact adversely upon the child. Ultimately it increases the difficulty of putting the situation right and allows parents to get ‘stuck’ in a conflict that could have been defused much earlier.

 

You know that bit in figure skating competitions where bouquets of flowers get thrown onto the ice?  The extract above is deserving of similar treatment. It is important, fair and easy to follow.  If someone had given this passage to me and said “Which Judge wrote that?”  I’d have said unhesitatingly Mr Justice Peter Jackson. This Recorder is one to watch.

 

If you work in a social work team, particularly a duty team or one that does section 7 or 37 investigations, please share this judgment. If you represent parents, print it out and put a big post it note on it that says  “Helpful stuff”

 

Don't skate over them!

Don’t skate over them!

 

 

 

 

 

Legal aid, Court of Protection and ‘contrivance’

 

This is a Court of Protection case, and it is a Charles J judgment, which means that although it is important, it is complicated and challenging. If you aren’t working in the COP field, you can probably skip most of it and just go to the bits where Charles J is erm direct in his views about the Legal Aid Agency and the Secretary of State, who were both joined as parties.  That’s towards the bottom – and it is good stuff so worth a read purely for schadenfreude about those two massively popular bodies being taken down a peg or two.

The case involved a man who as a result of a road traffic accident in July 2015 had been unconscious since that time, and whether he should continue to have Clinically Assisted Nutrition and Hydration (CANH)

Clearly the man lacked capacity, so an argument about this would have to be dealt with under the Mental Capacity Act 2005 and in the Court of Protection. There’s absolutely and undoubtedly a valid argument to be had about whether the continuation of this treatment is in his best interests or not.

The case isn’t really about THAT argument, it is about a preliminary argument.

Is the application before the Court for :-

 

(a) section 5 and section 16 of the MCA  which allows the Court to consider all of the welfare issues set out in the MCA and make a best interests declaration ;

 

or

(b)  A challenge under s21A of the MCA – which relates to the Court’s powers to consider any aspect of P’s life or plans or arrangements for P if his liberty is being deprived.  I.e is it a DOLS case?

 

That seems to be sterile and academic, but actually it isn’t.  Because answer (b) can potentially attract non-means legal aid and answer (a) cannot.  So if the Legal Aid Agency granted legal aid on the basis of (b) it would be free to P’s wife to make the challenge and be represented in Court, and if they granted it on the basis of (a)  she would have to make a contribution, and in this case the level of those contributions would be at a level where she could not afford it and thus have to represent herself in proceedings about whether in effect her husband should be allowed to die.  (P’s wife and his family would like the CANH to be withdrawn and P provided with palliative care, the hospital would wish to continue the feeding treatment)

 

I have to say that my immediate view on this was that whilst P is not free to get up and leave the hospital, and he does not enjoy the same liberty as you and I, it is EXTREMELY hard to argue that the restrictions on his liberty is imposed on him by the State. They are surely a natural consequence of his medical condition.

Briggs v Briggs and Others 2016  EWCOP 48

http://www.bailii.org/ew/cases/EWCOP/2016/48.html

Charles J says this:-

 

 

  • The case has been argued before me on the premise that:

 

i) applying the decision of the Supreme Court in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19; [2014] AC 896 (“Cheshire West”) Mr Briggs is being deprived of his liberty at the Walton Centre, andii) the Deprivation of Liberty Safeguards (the DOLS) apply to Mr Briggs (and so the point referred to in paragraph 101 of my judgment in LF v HM Coroner [2015] EWHC 2990 (Admin); [2016] WLR 2385 was not advanced).

One of the reasons for this was that the LF case is listed to be heard in the Court of Appeal before Christmas.

 

  • In any event, if I am right in AM v South London & Maudsley NHS & Secretary of State for Health [2013] UKUT 365 (AAC); [2013] COPLR 510 the DOLS may well continue to apply for some time to the circumstances in which Mr Briggs finds himself in the hospital (and on any move to another hospital) on the basis that he may be being deprived of his liberty.
  • I accept that this approach is a sensible one but record that it was made for and limited to the preliminary issue before me in this case. At least one of the parties indicated that it was not accepted that Mr Briggs was being deprived of his liberty and all parties reserved their right to argue that one or both of the underlying premises is incorrect.
  • I also make the general comments that:

 

i) the circumstances in which Mr Briggs finds himself flow inexorably from his accident, the damage that caused to his brain and body and the package of care and treatment that damage necessitated on and after his admission to hospital, and soii) to my mind, it follows that it cannot be said that his deprivation of liberty in hospital is imposed by others as, for example might be said in respect of the consequence of decisions made to admit and detain a person in hospital under s. 3 of the Mental Health Act 1983.

 

 

  • A standard authorisation under the DOLS in respect of Mr Briggs has been granted by the relevant supervisory body at the request of the Walton Centre. It expires in December.

 

I will cut to the chase – Charles J did decide to treat this case as a s21A case, and thus has found that Mr Briggs (P) is being deprived of his liberty and is entitled to make use (through his family) of the Deprivation of Liberty Safeguards.

 

  • 74. So if the result of the CANH issue is that it should be part of Mr Briggs’ treatment, I consider that:

 

i) pending a move to a rehabilitation centre, the authorisation of his deprivation of liberty at the hospital should no longer be governed by the standard authorisation (continued if necessary by the COP) but by the welfare order made by the COP although a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A (6) and (7) may need to be considered, and

iv) how the deprivation of liberty at the rehabilitation centre is to be authorised should be addressed by the COP and it may be that any court order should end on the transfer and that reliance should then be placed on s. 5 of the MCA and a DOLS authorisation.

 

  • 75. Alternatively, if the conclusion of the COP on the CANH issue is that it should not be part of Mr Briggs’ treatment I consider that:

 

i) the position relating to Mr Briggs’ deprivation of liberty pending a move to another placement where Mr Briggs receives palliative care should be covered by a court order although if the treating team change their position authorisation under a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct result of the best interests decision as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A(6) and (7) will need to be considered, and

iv) how the deprivation of liberty at the new placement (probably a hospice) is to be authorised should be addressed by the COP.

 

  •  So I agree that the determinative or central issue is whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2). But, in my view the consequences set out in the last two paragraphs mean that the determination of that issue by the COP founds and so is directly relevant to its consideration of its exercise of its functions under s. 21A (which it can exercise whether or not proceedings above have been issued under s. 21A).

 

 

{I’m very glad that I don’t work in a hospital legal department, because it is now very unclear to me whether every patient they have in an unconscious state or coma requires a DOLS authorisation. It is certainly a possible interpretation of this case}

 

Mrs Briggs argued in the case that s21A did apply . The Official Solicitor, the Secretary of State and the Legal Aid Agency argued that it didn’t, and that even if this WERE a DOLS case, there should be one non-means certificate to deal specifically with the issue of whether P’s liberty should be deprived, and another to deal with best interests decision about his care plan and treatment. The Hospital Trust were entirely neutral. It seems rather odd to me that nobody argued before the Court that the s21A issue is a contrivance using complicated legal finesse to attract non-means public funding to a situation where it doesn’t really apply.  (Perhaps they didn’t argue it because it appears that the idea emerged from decisions made by Charles J himself in other cases…)

 

 

  • It was not argued the proceedings issued by Mrs Briggs were an abuse or a contrivance. Indeed it was accepted that:

 

i) they were not,ii) the COP can grant relief under other sections of the MCA (and so under ss. 15 and 16) in an application under s. 21A (see Re UF [2013] 4289 at paragraph 11 and CC v KK [2012] EWHC 2136 (COP)), and so

iii) the COP could have granted relief in this case under ss. 15 and 16 if the only application before it had been that made by Mrs Briggs in reliance on s. 21A, and it could do this without directing that a further application be made,

iv) Practice Direction 9E, and no other Rule or provision, provided that an application “relating to” a best interests decision about serious medical treatment should be commenced in any particular way,

v) there was no difficulty in complying with Practice Direction 9E in proceedings issued in reliance on s. 21A and, in any event, Rule 26 of the COP Rules 2007 enables the COP to depart from it,

vi) whatever the result on the CANH issue Mr Briggs will continue to be deprived of his liberty and so when the COP determines that issue it will need to address how that deprivation of liberty is authorised, and

vii) on the approach taken in Re UF the authorisation under the DOLS (or a replacement) would remain in existence until the COP had decided the CANH issue and a decision about it under ss. 21A (3), (6) and (7) would or may be needed.

 

  • The points listed in the last paragraph are important because they mean that:

 

i) Mrs Briggs’ proceedings are proceedings under s. 21A and that applying Re UF until this case is decided by the COP an authorisation under the DOLS will remain in existence and so on any view those proceedings have an authorisation to bite on, and in my viewii) the COP can grant relief under s. 21A in an application brought for orders under ss. 15 and 16 of the MCA (the mirror image of Re UF and CC v KK).

 

  • Re UF addressed the same Legal Aid Regulation and identified a route (accepted by the LAA) that:

 

i) continued eligibility for non means tested legal aid although the COP (rather than the supervisory body) took the relevant decisions, andii) meant that what happened to that authorisation was a live issue at the end of the case.

 

  • My understanding is that the approach set out in Re UF has been applied in a number of proceedings brought under s. 21A which have turned on a detailed assessment of the relevant package of care, support and treatment, possible alternatives and which of them the COP has concluded will best promote P’s best interests.
  • So Re UF identified a route that the LAA accepted was not a contrivance by which non means tested legal aid was available albeit that the COP took over all decision making and could make decisions under ss. 15, 16 and 21A. Here Mrs Briggs’ proceedings came first and in Re UF separate proceedings seeking a welfare order and/or declarations had not been issued. Whether proceedings under s. 21A could be issued second to trigger eligibility to non means tested legal aid was not argued before me, but it would be surprising if the order of issue affected the application of Re UF and so the availability of non means tested legal aid. Also, it was not argued before me whether applying Regulation 5 non means tested legal aid could be given to both P and an RPR or only to one of them. I expressed the preliminary view that it could be given to both.
  • Experience indicates that many if not most cases brought under s. 21A in respect of a DOLS authorisation turn on the best interests assessment made by the COP and many lead to changes in the package of care, support and treatment to make it less restrictive rather than a change of circumstances that result in P no longer being deprived of his physical liberty and that these are implemented by or reflected in orders made under s. 21A varying the DOLS authorisation directly or by reference to the care plan it is based on or imposing conditions as a direct result of the best interests conclusion reached by the COP.

 

Charles J had THIS to say about the legal aid agency

 

 

  • The positions of the Secretary of State, the LAA and the Official Solicitor varied on the availability of non means tested legal aid for representation to present arguments on issues relating to the care, support or treatment of a P and so his care plan and needs assessment, and so on what the COP could properly consider and grant relief in respect of under or applying s. 21A:

 

i) the Official Solicitor submitted that non means tested funding for such representation was not available for any of such issues because they all related to the conditions of a detention and so were outside the ambit of the DOLS and s. 21A,ii) the Secretary of State submitted that such funding was available for representation on such issues if they related to “physical liberty”. As I understand the Secretary of State’s position that includes an examination of less restrictive conditions relating to physical liberty even though they also create a deprivation of liberty within Article 5 in the same or a different placement (e.g. a change from locked doors to door sensors and greater freedom of movement within a Care Home). But if that understanding is wrong, it is clear that the Secretary of State distinguishes between conditions that relate to physical liberty and those that do not – which, in the context of alternative regimes at the only available Care Home, it was submitted include the availability of en suite bathrooms or food choices or things of that nature. That distinction flows from the way in which the Secretary of State advanced his argument by reference to what is and is not covered by and so justiciable under Article 5, and

iii) although at the hearing it adopted the arguments of the Secretary of State on the meaning and effect of s. 21A and Regulation 5, the LAA was not prepared to commit to any circumstances in which it accepted that such funding was available for representation on such issues.

 

  • That stance of the LAA and experience of its general approach founds the conclusion that there is a real risk that:

 

i) it will seek to advance any point it considers to be arguable to avoid paying legal aid on a non means tested basis in respect of issues relevant to the circumstances of a P who is the subject of a DOLS authorisation,ii) in doing so, it will change its existing approach in such cases and so challenge Re UF and/or change the stance it adopted in that case,

iii) in doing so, it will adopt the position of the Official Solicitor and not that of the Secretary of State set out in paragraph 36 (i) and (ii) respectively.

 

  • After the hearing I was helpfully provided with further information by counsel for the LAA about its approach in the past and the future. This refers to the reliance placed on what the LAA is told and indicates that the approach in Re UF is being and will continue to be accepted and applied with the result that if the COP continues the DOLS authorisation non means tested legal aid will continue to be available in respect of applications about it. But it asserts that non means tested legal aid is (and has only been made) available in respect of matters that “relate directly to the discharge or variation of the standard or urgent authorisation” and that providers should always apply for a separate certificate to carry out non means tested services as and when these arise alongside a non means tested matter. This does not fully accord with the understanding of the solicitors acting for Mrs Briggs on the existing approach of the LAA and, more importantly it does not explain:

 

i) what matters the LAA says are directly related to the discharge or variation of a continuing DOLS authorisation, andii) whether it adopts the position of the Secretary of State or the Official Solicitor.

To my mind, although it seems to show that Re UF will continue to be applied this further information perpetuates uncertainty and so compounds the risk that the approach of the LAA will give rise to serious and possibly insurmountable hurdles being put in the way of challenges being made by Ps and/or their RPRs to a DOLS authorisation, and so the lawfulness of P’s deprivation of liberty, with the benefit of representation or at all because of the difficulties they would face in respect of contributions and as litigants in person.

 

 

Charles J also had this to say about the Secretary of State and the failure to provide proper scheme for legal representation in the avalanche of DOLS cases since the Supreme Court’s decision in Cheshire West opened the scope of such cases far wider than they had historically been.

 

 

  • The representation of P has been an issue in a line cases that do not fall within the DOLS but in which, applying Cheshire West, P is being deprived of his liberty and so that detention should be authorised by an order made by the COP. The last in the line is Re JM [2016] EWCOP 15. Those cases show the limitations on the availability of legal aid in such cases if they are not disputed. After the JM case, the Secretary of State has acknowledged in correspondence that, contrary to his stance in that case, a resource of people and/or of resources to provide people to act as representatives for Ps who are deprived of their liberty in such cases is not readily available. This means that:

 

i) in that type of case the COP cannot lawfully authorise the deprivations of liberty, and soii) such cases are being stayed, and

iii) many (probably in the thousands rather than the hundreds) of such cases are not being brought in part because they will be stayed and the costs of issuing them can be better spent.

 

  • We are all only too aware of problems flowing from austerity. But assessed through my eyes as Vice President of the Court of Protection the stance being taken by the Secretary of State in this case, and in and after Re JM, demonstrates the existence of a continuing failure by the Secretary of State to address an urgent need to take steps to provide resources that would enable the COP to deal with cases relating to probably thousands of Ps in a lawful way, and so in accordance with the procedural requirements of Article 5 and the requirements of Article 6. The result of this sorry state of affairs is that in probably thousands of cases not covered by the DOLS deprivations of liberty are not being authorised under the amendments made to the MCA by the MHA 2007 to comply with Article 5.

 

I think that most people practising in this area of work know that this is what is happening on the ground, but damn, it is nice to see the Secretary of State being told it in such clear terms.

 

For my part, I think legally that this is a pure device to get around the much loathed LASPO and it is a contrivance; but that it is surely the right outcome in terms of fairness. If anyone found themselves in the dreadful position that Mrs Briggs was in, surely they should have legal representation to help with the Court’s decision as to whether her husband should be fed via artificial means to keep him alive or whether he should be allowed to die with dignity in accordance with his family’s wishes.  Whatever stance you take on the right to die issue, surely it is unacceptable for the State to expect someone to have those difficult arguments without the benefit of legal representation.

 

 

Knock knock knocking on Judges’ doors

 

This is a case involving surrogacy – yet another private surrogacy arrangement which unravelled and left a huge wake of ugly disaster behind it.

Re X (a child) no 2 (private surrogacy) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/55.html

 

There’s a part 1 here

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/54.html

 

Where Holman J refuses the application of the birth mother to reopen the decision of Her Honour Judge Singleton that the child should remain with the commisioners of the surrogacy arrangement – permission to appeal already having been refused.

 

This case has interest for two reasons, really.  The first is that we hear bad things about MacKenzie Friends from time to time  (for example THIS guy, who acted as a MacKenzie Friend in family proceedings and got the partner in his business, who was also his girlfriend, to write a psychological assessment to benefit his client – said girlfriend was not actually a psychologist – not that it would have been okay if she was, but it compounded things. He’s now in prison.   https://www.lawgazette.co.uk/law/mckenzie-friend-jailed-for-deceit-in-family-court/5058352.article )

 

But I’ve met good, decent MacKenzie Friends, who work damn hard and give valuable assistance to parents who have nowhere else to turn, so it is nice when a High Court Judge gives a good news story about one

There was a strong objection on behalf of the father and mother to Mr Culshaw acting as McKenzie Friend since he, too, is undoubtedly a campaigner, who participated in several of the protests I have mentioned. But many people who are willing and motivated to act as McKenzie Friends are indeed campaigners, and if they were all prevented from doing so on that ground alone, many rather helpless litigants, like the sister in this case, might be left with no effective help or support at all. I wish to record that within the four walls of this courtroom, which is, of course, the extent of my observation of him, Mr Culshaw has acted impeccably and within the proper boundaries of a McKenzie Friend. He has shown respect and courtesy to the court. He has been a model of restraint. He has not sought to become an advocate and nor would I have permitted him to do so, but he has provided visible and obvious help and support to the sister, and he has helped her to formulate sensible and well judged questions.

 

 

The second point of interest is that the birth mother campaigned against Her Honour Judge Singleton’s decision, and did so in creative ways

 

 

  • In August 2015 Her Honour Judge Singleton decided that the child should move from living with the birth mother to living with the father and the mother, and she has done so ever since. The birth mother had changed her mind during the pregnancy and before the birth, and wished to keep and bring up the child herself. There is no doubt that she very bitterly opposed that decision and she has never, at least until this week, accepted that decision. She tried to appeal it. She very actively publicised and campaigned against it online and by protests at the homes of the former Prime Minister, David Cameron, the President of the Family Division, Sir James Munby, the Minister for Children, Edward Timpson, the previous guardian, Alexandra Sayer, and Her Honour Judge Singleton herself. She issued in May 2016 an application, which was before me this week, for the decision and order of August 2015 to be reversed so that the child returned to live with her. After hearing submissions from the birth mother, I summarily dismissed that application for reasons which I gave in my short judgment last Tuesday, 8 November 2016 at [2016] EWFC 54.

 

She was actually convicted of harassing the Judge, which shows the extent of her behaviour, since Judges don’t make complaints to the police lightly.

Mr Justice Holman discussed that the original Judge had wanted there to be some direct contact between the child and the birth mother, and that he wanted to open the door to that, despite the campaigning, which had clearly crossed the line

 

    1. Like Judge Singleton in August 2015, Mr Sanders does consider that it is in the best interests of the child to have some direct contact with her birth mother and her sister, provided that can be done without destabilising the child or destabilising the father and the mother. I agree with Mr Sanders. He has generously offered to engage in a very active way in this case for at least a year under the provisions of a family assistance order, and with his help the very detailed provisions of the order have been negotiated.
    2. The birth mother has repeatedly said during this hearing that she now absolutely accepts that the child will live with the father and the mother. She has said that she will stop the protesting and campaigning, and will abide by all the detailed provisions of the order.
    3. The father and mother clearly remain very sceptical about that. They both said in evidence yesterday that they remain very scared of what the birth mother may do. They say that if she can campaign with the intensity that she has, including by placing so much material online and by protesting at the homes of so many people, several of them quite unconnected with the case, they cannot have any confidence that she will not carry the campaign to their own home or into the course and content of any contact.
    4. I perfectly understand their position, but I do believe that this hearing has offered an opportunity – albeit only a start – for each side to this dispute to begin to have a greater appreciation and acceptance of the other. All parties have expressed their confidence in Mr Sanders, and said that they will engage with him and move contact forward in line with his recommendations and plan, and with his assistance. In my view it would do a great disservice to the longer term needs and welfare of the child to cut out now any further direct contact with her birth family, for the reason only of the events, however destabilising, of the last year or so.
    5. For these reasons I will make an order in the very detailed terms and conditions which have been drafted, which essentially provides for two occasions of supervised direct contact each year between the child and her birth mother and, on quite separate occasions, her sister, together with forms of indirect contact in the intervening periods.
    6. There are very detailed terms and conditions and “rules” which all parties clearly understand and must adhere to. The birth mother in particular must understand that this is a last chance. She is, of course, entitled in a free society to campaign and to protest, provided she does not break the criminal law. But if she does do so again, the pressure that that puts upon the father and mother will be just too great, and inevitably all the contact which I have so painstakingly striven to promote this week will be jeopardised, probably for ever. I sincerely hope that these long, painful and rather exhausting few days can represent a new beginning, from which all parties can move forward and begin to work together in the best interests of this child whom they all undoubtedly love very dearly.

 

 

I hope it works out for all of them.

 

Judge making findings about a witness – fair trial

This is a very tricky one – I have to say that my eventual conclusion is that the Court of Appeal are entirely right about the principles and the decision that they came to, but it leaves me feeling uncomfortable and queasy that allegations as important as this about professional misconduct end up being dealt with on a technicality. What was alleged (and found by the Judge who heard all the evidence) was very serious stuff indeed.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1140.html

 

 

In this case, at the end of a 4 week hearing, the Judge delivered a judgment that said that the SW and Police Officer had embarked on a deliberate calculated exercise of getting ‘evidence’ to prove sexual abuse without any relation to whether or not the allegations were true, that they had drawn other professionals in, that both had lied to the Court and that the SW had caused considerable emotional harm to the child.  The Judge also directed that the judgment be sent to their employers.  The Judge delivered this judgment as a bullet point ‘draft’ and allowed the SW and PO to make representations about it before it was finalised, but it ended up in the same form.

 

  • Permission to appeal was granted by this court to the local authority, the named social worker (“SW”) and the named police officer (“PO”). Their appeal, if successful, will lead to the passages complained of being excised from the judgment, it is therefore plainly inappropriate to offer any more than a mere gist of those matters within this judgment. On that basis, and in short, the complaint relates to the judge’s finding that SW and PO, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her. In addition to the specific adverse findings made against the local authority, SW and PO also complain that there was no justification for the judge deploying the strong adjectives that he used in describing the scale of his findings in a judgment which, in due course, in its final form, will be made public.
  • It is necessary to stress that the issues canvassed in this appeal relate entirely to process. This court has not been asked to analyse the evidence underpinning the judge’s adverse findings nor to determine whether or not the judge was justified in criticising the professionals as he did. The central point raised by each of the three appellants is that the prospect of them being the subject of such adverse findings was made known to them, for the very first time, when the judge gave an oral “bullet point” judgment at the conclusion of the hearing. It is submitted that individual and collective adverse findings of the type that the judge went on to make in his judgment, did not feature at all in the presentation of the case of any of the parties and were not raised in any manner by the judge during the hearing. In short terms it is said that these highly adverse findings “came out of the blue” for the first time in the judgment. The findings both in nature and substance have the potential to impact adversely upon the standing of the local authority and/or the employment prospects and personal life of each of SW and PO, yet none of the three had been given any opportunity to know of or meet the allegations during the course of the trial process. They therefore seek a remedy from this court to prevent the inclusion of these adverse and extraneous findings in the final judgment that has yet to be handed down formally and published as the judge intended it to be.

 

 

As a result, the SW has been suspended ever since and the police officer had to be taken off all criminal investigations (a bit of a problem for a police officer) because this judgment would be discloseable to the defence in ANY case involving that officer.  If the process in making the findings was fair, then those consequences would be utterly justified by the findings. But what if the process was NOT fair?

 

  • In the context of potential “legal consequences”, Mr Brandon draws specific attention to the requirement, as he submits it is, for the judge’s findings with respect to PO, if they stand, being “disclosable” material in relation to any criminal proceedings in which PO may be involved as a police officer in the future on the basis of the approach described in R v Guney (Erkin Ramadan) (Disclosure) [1988] Cr. App. R. 242. It is also at least arguable that these findings would amount to “reprehensible behaviour” (R v O’Toole (Patrick Francis) [2006] EWCA Crim 951) and, he submits, they are also capable of being adduced as evidence of “bad character” pursuant to Criminal Justice Act 2003, s 100 by the defence in a criminal trial. Mr Brandon went on to explain that it is common practice amongst constabularies in England and Wales to remove officers who are the subject of adverse judicial findings from the “evidential chain” as their participation in the investigation and prosecution of offences may jeopardise the prospect of convicting those whom they are investigating. If this occurred, PO would not be permitted to be concerned in obtaining evidence in criminal investigation thereby compromising her ability to continue to work as a police officer.
  • For SW, Mr Zimran Samuel, who acts on a pro bono instruction and to whom the court is most grateful for taking on this substantial case, has informed the court that SW who, following these proceedings went to work for a different local authority, has been suspended as a consequence of the judge’s findings and has been unable to work for any other authority since that time. He argues that that circumstance alone is sufficient to amount to a legal consequence sufficient to bring her appeal within the boundaries established by Cie Noga. Mr Samuel adopted the submissions that had been made on behalf of the local authority and PO before making detailed submissions on behalf of SW focussed upon the specific findings of fact made against her. It is not necessary in this judgment to consider that level of detail, although the court fully understands the importance to SW of the points that have been made on her behalf.

 

 

Both of them appealed, so the Court of Appeal had to look at :-

 

  1. A) Can a witness appeal at all? (and the vexed question of whether you appeal against FINDINGS, or ORDERS – an issue that the Court of Appeal change their mind on just about every time the issue comes up)
  2. B) Does the Court as a public body owe article 6 and article 8 duties to WITNESSES ?
  3. C) Was the process adopted here fair?
  4. D) Is there guidance to Judges in similar situations?

 

The Court of Appeal held that in the circumstances of this case, where the witnesses lives were significantly and materially affected by the process, they could appeal, and that they could appeal against the findings. (Those bits are all quite legalistic and compex, so I’ve just given you the answer. The working out is at paras 19-65)

 

Process and fairness

Unfairness

 

  • It is plainly necessary to consider what elements of procedural fairness are required by Art 8 in this context. In my view, however, for the purposes of deciding this appeal, it is unnecessary to go beyond what must be an essential factor to be included on any list of the elements of procedural fairness, namely giving the party or witness who is to be the subject of a level of criticism that is sufficient to trigger protection under Art 8 (or Art 6) rights to procedural fairness proper notice of the case against them.
  • Mr Brandon submits that it is a basic element of fairness for a judge to ensure that criticisms of the nature that he came to find proved are put to the witness rather than appearing for the first time ‘out of the blue’ (to use Mr Brandon’s phrase) in the judgment. Reliance is this regard is placed upon the Court of Appeal decision in Markem Corp v Zipher Ltd [2005] EWCA Civ 267, which was a patent case that included an assertion of procedural unfairness. Lord Justice Jacob, giving the main judgment, drew attention to a 19th century House of Lords decision of Browne v Dunn (1894) 6 R 67. The case report of Browne v Dunn is sparse, but Jacob LJ sets out in full the relevant parts of their Lordships’ opinions at paragraph 59 of his own judgment in Markem. Of particular note is the following in the speech of Lord Herschell LC:

 

‘Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’

Other members of House of Lords gave speeches that expressly concurred with the Lord Chancellor on this point and the authority of Browne v Dunn was fully endorsed by this court in the course of its decision in the Markem case.

 

  • The statement of the law in Browne v Dunn must however be read alongside the authoritative description of the role of a judge given by Lawton LJ in Maxwell v Department of Trade and Industry [1974] QB 523 at page 541 B-D:

 

“The researches of counsel have not produced any other case which has suggested that at the end of an inquiry those likely to be criticised in a report should be given an opportunity of refuting the tentative conclusions of whoever is making it. Those who conduct inquiries have to base their decisions, findings, conclusions or opinions (whichever is the appropriate word to describe what they have a duty to do) on the evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more.”

 

  • During the detailed submissions made on behalf of PO by Mr Brandon and of SW by Mr Samuel, we were taken to the transcript of the oral evidence which demonstrated beyond doubt that the matters found by the judge were not current, even obliquely, within the hearing or wider process in any manner. None of the key findings that the judge went on to make were put by any of the parties, or the judge, to any of the witnesses and there is a very substantial gap between the cross examination, together with the parties’ pleaded lists of findings sought, and the criticisms made by the judge. In this respect this is not a matter that is finely balanced; the ground for the criticisms that the judge came to make of SW, PO and the local authority, was simply not covered at all during the hearing.
  • For my part it became clear from reading the transcript that the cross-examination of SW and PO had been entirely conventional in the sense that it dealt with ordinary challenges made to the process of enquiry into the allegations of sexual abuse and was conducted entirely, to use Mr Geekie’s phrase, within the four corners of the case. At the conclusion of the oral evidence, in closing submissions no party sought findings that went beyond those conventional challenges. At no stage did the judge give voice to the very substantial and professionally damning criticisms that surfaced for the first time in the bullet-point judgment.
  • It can properly be said that by keeping these matters to himself during the four week hearing, and failing to arrange for the witnesses to have any opportunity to know of the critical points and to offer any answer to them, the judge was conducting a process that was intrinsically unfair.
  • For my part, in terms of the decision in this appeal, it is not necessary to go further than holding that, unfortunately, this is a fundamental and extreme example of ‘the case’, as found by the judge, not being ‘put’ to SW and PO. However, out of respect for the thoughtful and more widely based submissions that have been made, and because the ramifications of this decision may need to be considered in other cases, I would offer the following short observations on other aspects of procedural fairness in the context of Art 8 in answer to the rhetorical question: ‘what should the judge have done?’.

 

 

To give you an illustration of this point, if I am cross-examining a witness, let’s say David Kessler, I may ask him questions as to whether his appetite for meat has increased in recent times, whether he has visited London Zoo recently, whether he is familiar with a pub called the Slaughtered Lamb.  But if I intend to ask the Judge at the end of the case to find that David Kessler is a werewolf, I have to actuallly put the allegation to him, and not just join up those dots. I have to ask him “Are you in fact a werewolf?” or words to that effect – SO THAT HE HAS THE CHANCE TO DENY IT and give an alternative explanation which might fit those other facts.

Similarly, if as in this case, nobody had actually asked the Judge to find that David Kessler is a werewolf, but the Judge is joining those dots for himself, it is not fair to David Kessler (whether he is a werewolf or not) that the first time he hears of the possibility is when the Judge delivers a judgment.

 

In a case like this, where the Judge was considering (and did) make a finding that the social worker had lied and entered into a conspiracy, that question has to actually be put. It isn’t sufficient to join the dots – the bald question has to be asked.

 

The SW and Police officer won the appeal, the process had not been fair.  (Note in particular that at no point did anyone in the case seek these findings or declarations and the first anyone knew of it was in the judgment).  The Court of Appeal also interestingly said that the Court owes an article 6 right to fair trial to the Local Authority   (the LA is not owed any art 8 rights, though the witnesses were)

 

By way of general guidance

95.Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

 

 

 

  1. a) Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence;

 

  1. b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;

 

  1. c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.

 

 

 

Article 8: Conclusions

97.In the light of the law relating to ECHR Art 8 as I have found it to be, it is clear that the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on whether or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of whether the judgment is given wider publication. In short terms, the reasons supporting this conclusion are as follows:

 

 

 

  1. a) In principle, the right to respect for private life, as established by Art 8, can extend to the professional lives of SW and PO (R (Wright) v Secretary of State for Health and R (L) v Commissioner of Police for the Metropolis);

 

  1. b) Art 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights (Turek v Slovakia and R (Tabbakh) v Staffordshire and West Midlands Probation Trust);

 

  1. c) The requirement of a fair process under Art 8 is of like manner to, if not on all-fours with, the entitlement to fairness under the common law (R (Tabbakh) referring to Lord Mustill in R v Secretary of State for the Home Department, Ex Pte Doody);

 

  1. d) At its core, fairness requires the individual who would be affected by a decision to have the right to know of and address the matters that might be held against him before the decision-maker makes his decision (R v Secretary of State for the Home Department, Ex Pte Hickey (No 2));

 

  1. e) On the facts of this case protection under Art 8 does extend to the ‘private life’ of both SW and PO for the reasons advanced by their respective counsel and which are summarised at paragraphs 61, 86 and 87;

 

  1. f) The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.

98.As will be apparent from this analysis of the issues in the context of ECHR Art 8, I regard the process adopted by the judge in the present case to have fallen short by a very wide margin of that which basic fairness requires in these circumstances. The occasions on which such circumstances may occur, or develop during proceedings, will, I anticipate, be rare. This judgment should be seen by the profession and the family judiciary to be a particular, bespoke, response to a highly unusual combination of the following factors:

 

 

 

  1. a) a judge considering himself or herself to be driven to make highly critical findings against professional witnesses, where

 

  1. b) such findings have played no part in the case presented by any party during the proceedings, and where

 

  1. c) the judge has chosen not to raise the matters of criticism him/herself at any stage prior to judgment.

 

99.The fact that, so far as can be identified, this is the first occasion that such circumstances have been brought on appeal may indicate that the situation that developed in the present case may be a vanishingly rare one. For my part, as the reader of very many judgments from family judges during the course of the past five years, I can detect no need whatsoever for there to be a change in the overall approach that is taken by judges.

 

 

100.The present case is, unfortunately, to be regarded as extreme in two different respects: firstly the degree by which the process adopted fell below the basic requirements of fairness and, secondly, the scale of the adverse findings that were made. This judgment is, therefore, certainly not a call for the development of ‘defensive judging’; on the contrary judges should remain not only free to, but also under a duty to, make such findings as may be justified by the evidence on the issues that are raised in each case before them.

 

 

 

All of the adverse findings were set aside and were to be removed from the judgment before it was published – so not mere redaction, but actual removal of them as legal findings.  [This is where I have the difficulty, since those original findings were grave, and I think to simply ignore them on a technicality is uncomfortable.  Of course, unless the Judge’s decision on the child was wrong and being appealed, it is hard to come up with a framework to have a re-hearing of the allegations about the professional witnesses, but it still doesn’t sit well with me. It looks like a whitewash]

 

Remedy on appeal

119.Where, as I have found to be the case here, the adverse findings complained of have been made as a result of a wholly unfair process and where, again as here, the consequences for those who are criticised in those findings are both real and significant, it is incumbent on this court to provide a remedy and, so far as may be possible, to correct the effect of the unfairness that has occurred. In the present case what is sought is the removal from the judgment of any reference to the matters that were found by the judge against SW, PO and the local authority that fell outside the parameters of the care proceedings and had not been raised properly, or at all, during the hearing.

 

 

120.Mr Feehan accepts, as I understand it, that if this court reaches the stage that, in my judgment, it has indeed reached, then redaction from the judgment must follow, subject to any submissions as to detail. I agree that that must be the case. So that there is no ambiguity as to words such as ‘removal’ or ‘redaction’ in this context, I make it plain that the effect of any change in the content of the judge’s judgment that is now made as a result of the decision of this court is not simply to remove words from a judgment that is to be published; the effect is to set aside the judge’s findings on those matters so that those findings no longer stand or have any validity for any purpose. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge.

 

 

 

 

 

And general guidance for other cases:-

 

 

108.Looking at this issue in general terms, it must, in some cases, be possible, where a court is contemplating making findings which may have arisen outside the original focus of the case, for the court to embark on a process which allows for those affected to make submissions and/or submit evidence in relation to those matters before final judgment is given. I have already described some of the basic elements in such a process at paragraph 95. For those additional steps to be an effective counter-balance to a process which might otherwise be seen as a whole to be unfair, they need, in my view, to be undertaken before the judge has reached a concluded decision on the controversial points. Whilst not impossible, it is difficult to conceive of circumstances where the overall fairness of the hearing could be rescued by any form of process after the judge has reached and announced his concluded decision. Where a court is considering making findings that have not, thus far, been foreshadowed in the proceedings I would suggest that, at the very least, the judge should alert the parties and, if necessary any affected witness, to the potential for such an outcome so that the steps in paragraph 95, and any other relevant additional matters, can be openly canvassed during the hearing and before any judgment is given.

 

 

The Court of Appeal went on to consider criticism of expert witnesses (and of course this year we have seen the very different approach to the radicalisation case where the Judge savaged the ISW in the judgment without her knowing in advance that this was possible, and the psychologist who made up quotes who had the chance to be represented by a Silk at a hearing where the declarations sought were all set out in advance)

“Fell far short of the promise foreshadowed in her CV” (radicalisation, Tower Hamlets)

 

Tape recording of an expert (a SHOCKING case)

 

Both of these experts had their reputation, and integrity, and livelihood put in doubt by these judgments – and the processes were wildly different.

 

Criticism of Expert witnesses

101.It is, unfortunately, sometimes the case that a judge in civil or family proceedings may be driven to criticise the professional practice or expertise of an expert witness in the case. Although what I have said with regard to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert witness, it will, I would suggest, be very rare that such a witness’ fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such a legal advice or representation during the hearing. That this is so is, I suspect, obvious. The expert witness should normally have had full disclosure of all relevant documents. Their evidence will only have been commissioned, in a family case, if it is ‘necessary’ for the court to ‘resolve the proceedings justly’ [Children and Families Act 2014, s 13(6)], as a result their evidence and their involvement in the case are likely to be entirely within the four corners of the case. If criticism is to be made, it is likely that the critical matters will have been fully canvassed by one or more of the parties in cross examination. I have raised the question of expert witnesses at this point as part of the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to witnesses in general, and expert witnesses in particular.

 

 

The Court of Appeal were trying to be as clear as possible that they weren’t asking Courts to approach the issue of assessment of witnesses and criticisms of witnesses differently or defensively, and that the issues in this case arose really because the specific allegations that led to the findings weren’t actually put to the witnesses, or sought by the parties. If the social worker and police officer had been asked the direct questions and known that such findings were sought, then the Judge’s findings could have been upheld.

Cryogenics and the Courts

 

 

 

This case has attracted a lot of Press attention, and as ever, not all of it is terribly accurate reporting. Most of the headlines have been along the theme of “girl wins right to be frozen after death”

 

If you haven’t heard yet, this is a High Court case where a decision was taken about a girl who had terminal cancer and who wanted to be cryogenically frozen after her death so that if there was a chance in the future of her being cured that this could happen. And the conclusion of the Court was that steps could be taken after her death to comply with her wishes.

As this is a Justice Peter Jackson judgment, it is very clear and readable, and tells you lots of things that you didn’t previously know. So well worth a read.  Justice Peter Jackson is on the sort of roll that the Beatles were on between Rubber Soul and Sergeant Pepper, his entire output is extraordinary in its quality.

Re JS (Disposal of Body) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2859.html

 

I think I’ll start with the very simple steer he gave to the Press which they ignored

 

 

 

 

 

 

 

25.The first thing to note is that much of the current problem arises from the fact that JS is a child, albeit a legally competent one. If she was 18, she would be able to make a will, appointing her mother as her executor, and it would then be for the mother to make arrangements for the disposal of JS’s body, no doubt in accordance with her wishes. However, children cannot make wills. My approach is therefore to try to remove the disadvantage that JS is under as result of her age. I do not intend to go further than that, as JS cannot be in a better legal position than she would be if she was an adult.

 

 

 

26.Next, it is important to approach a problem of this kind on the basis of a real situation as opposed to theoretical possibilities. When the application first came before the court, it was not clear that JS’s wishes could be carried out, because there was no information from the hospital or from the US authorities. Now that this and other information has been gathered, there is a practical plan that can be considered.

 

 

 

27.Thirdly, the court is not making orders against third parties. The position of the various organisations and authorities has been set out above. All the court is doing is to provide a means of resolving the dispute between the parents.

 

 

 

28.Fourthly, this case does not set a precedent for other cases. If another health trust was ever to be faced with a similar situation, it would be entitled to make its own judgment about what was acceptable in respect of a patient in its care, and it might very well reach a different conclusion, as might another court. There are clearly a number of serious ethical issues, and I have received information about procedures performed on the body after death that would be disturbing to many people.

 

 

 

29.Fifthly, I am acutely aware that this case gives rise to a large number of issues that cannot be investigated in the course of a hearing of this kind. If regulation is required, there would need to be consultation with a wide range of interested parties. That is a matter for others. This court is faced with a situation that needs immediate determination on the basis of the best available information. For the future, I shall direct that the papers in this case shall be released to the HTA on the basis that the identity of the family and the hospital trust will remain confidential.

 

30.Lastly, I cannot emphasise enough what this case is not about. It is not about whether cryonic preservation has any scientific basis or whether it is right or wrong. The court is not approving or encouraging cryonics, still less ordering that JS’s body should be cryonically preserved.

 

31.Nor is this case about whether JS’s wishes are sensible or not. We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS’s position – what they must think.

 

32.All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.

 

 

It is also important to know that whilst JS was a pivotal part of the case and the way it was resolved, the actual legal structure here is a dispute between her parents.  When I was hearing the case reported on the radio and TV this morning, without having read the judgment, it made no sense to talk of the child winning this ‘right’ because of course someone has to pay for the cryogenic freezing. This was a dispute between the mother who was supporting JS’s wishes, and the father who was not.

The Court was therefore resolving which of the parents’ views should prevail.  {The father’s position was quite nuanced and it is overly simplistic to just say that he was against it – after a lot of thinking, the dispute really came down to a desire to see his daughter’s body after she died, which doesn’t sound that unreasonable – but in the context of their relationship having completely broken down, it is understandable that the case couldn’t quite come to a settlement by agreement, which is a shame}

 

6.Over recent months, JS has used the internet to investigate cryonics: the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future.

 

 

 

7.The scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications. On the other hand, cryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. Cryonics is cryopreservation taken to its extreme.

 

 

 

8.Since the first cryonic preservation in the 1960s, the process has been performed on very few individuals, numbering in the low hundreds. There are apparently two commercial organisations in the United States and one in Russia. The costs are high, or very high, depending on the level of research into the subject’s case that is promised. The most basic arrangement (which has been chosen here) simply involves the freezing of the body in perpetuity. Even that will cost in the region of £37,000, according to the evidence in this case – about ten times as much as an average funeral. Although JS’s family is not well-off, her maternal grandparents have raised the necessary funds.

 

 

 

9.There is no doubt that JS has the capacity to bring this application. She is described by her experienced solicitor as a bright, intelligent young person who is able to articulate strongly held views on her current situation. Her social worker says that she has pursued her investigations with determination, even though a number of people have tried to dissuade her, and that she has not been coerced or steered by her family or anyone else.

 

 

 

10.JS has written this: “I have been asked to explain why I want this unusual thing done. I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”

 

 

The Court had to look first at whether cryogenic freezing was actually legal in the UK, and as the storage would be in America, whether there were legal problems with shipping a frozen person to America.

 

 

 

 

 

16.I have also been taken to the old authorities on the unlawful treatment of dead bodies (see Archbold 2017 at 31.54 onwards) but it does not appear that an offence would be committed in this case; in other words, what JS wants does not seem to be illegal.

 

 

 

17.Enquiries have now been made of the United States authorities, who have confirmed that there is no prohibition on human remains being shipped to the US for cryonic preservation provided that the UK funeral director and the US commercial organisation are in communication to guarantee that local, state and federal requirements are complied with.

 

Having been quite interested in cryogenics in my younger days, I’m aware that there are considerable schools of thought that the process works better if the person undergoes the procedure whilst they are still alive, but I think that’s going to be a step too far for the Family Courts.

 

 

 

 

 

23.It is no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law. Faced with such a tragic combination of childhood illness and family conflict, the court must remember that hard cases make bad law, and that natural sympathy does not alter the need for the application to be decided in accordance with established principle, or with principle correctly established.

 

 

I’m disappointed that nobody took the Judge to a comparable, if opposite case from India in 2014, which is about whether a man who has been in a freezer for several years is in fact dead or whether he is instead in ‘deep meditation’  – because his family want his remains released so they can cremate them, but the followers of this guru say he is still alive. The fact that if he is alive, the followers retain control of his $170 million fortune plays no part in that, of course.

According to one of his aides, who asked not to be named, “Maharaj has been in deep meditation. He has spent many years meditating in sub-zero temperatures in the Himalayas, there is nothing unusual in it. He will return to life as soon as he feels [ready] and we will ensure his body is preserved until then,” he said.

 

Court to Decide Whether Guru Is Dead or Just “In Deep Meditation”

 

Frozen Guru Update II

 

Sorry, sidetracked.  I’m fairly sure there has been a case this century in English law involving parents who were in dispute as to whether their son’s remains should be kept in the UK or taken to the River Ganges to be scattered, but I can’t find it. I have a strong recollection of it. Maybe it will emerge and I can add it in.  No luck so far, though there’s this sticky piece of litigation where a man took Newcastle to Court for refusing to allow open air funeral pyres http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html

 

It turns out that a person cannot control what happens to their body after their death – because a dead body is not property, so you can’t state in a will what is to happen to it.  Williams v Williams 1882.  The wishes of the deceased may be relevant, but they don’t bind third parties.  So if you, like me, were thinking of putting in your will that you want your ashes blown into Bono’s eyes after your death, your Executors can just smile wryly and stick your ashes  in a cookie jar with a picture of Ian Rush on it, despite this being wholly against your wishes. It will be your Executors who make the arrangements for your burial/cremation/cryogenic/being shot into space like Ken Kesey.  Now, an adult can make a will and appoint someone they trust as Executor, and if JS was 18, that’s what she would have done, made a will and appointed her mother as Executor, leaving clear instructions. But as established earlier, a child can’t make a will (not even if they are Richie Rich or Mustafa Millions out of Cheeky), so that option was not available.

Thus, the mechanism here is that a person, such as a minor, who dies without a will, is that someone will apply for Letter of Administration, which then lets that person make decisions, including about arrangements for the body.

 

What the Judge did here (simplifying it as much as possible) is to make a Specific Issue Order that in relation to the dispute between the mother and father as to arrangements for JS that the mother can carry out her proposal, and that she is to have the Letters of Administration and that the father cannot apply for them, so that in effect means that JS’s wishes will happen.

 

There’s a rather sad and shabby postscript to the whole affair.

 

 

Postscript

 

65.On 7 October, the day after the hearing, I received a message from JS through her solicitor saying that she would like to meet the judge who had decided her case. I visited her in hospital that evening in the presence of her mother and we had a good discussion. I was moved by the valiant way in which she was facing her predicament.

 

 

 

66.On 17 October, JS died.

 

 

 

 

 

Part 3 – 10 November 2016

 

67.On 8 November, I received a detailed note from the solicitors for the hospital trust in which the events surrounding JS’s death are described from the point of view of the hospital. It records that JS died peacefully in the knowledge that her body would be preserved in the way she wished.

 

 

 

68.However, the note makes unhappy reading in other ways. The Trust expresses very real misgivings about what occurred on the day of JS’s death. In brief and understated summary:

 

 

 

 

(1) On JS’s last day, her mother is said to have been preoccupied with the post-mortem arrangements at the expense of being fully available to JS.

 

 

(2) The voluntary organisation is said to have been under-equipped and disorganised, resulting in pressure being placed on the hospital to allow procedures that had not been agreed. Although the preparation of JS’s body for cryogenic preservation was completed, the way in which the process was handled caused real concern to the medical and mortuary staff.

 

69.These proceedings have come to an end and I make no findings about the above matters, on which I have in any event not heard other views. I nonetheless approve the intention of the Trust to send a copy of the note and its accompanying documents to the Human Tissue Authority. It may be thought that the events in this case suggest the need for proper regulation of cryonic preservation in this country if it is to happen in future.

When I’m sixty-four (bundles)

 

A permission to appeal hearing in the Court of Appeal. Where the parents did not have legal aid and

 

(A) There were Court orders that said that they couldn’t have a copy of the judgment ; and

(B) There were sixty four Court bundles  (and even whittling it down for the appeal there were still 27 just to decide the permission application)

 

Re A and B (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1101.html

 

 

 

The impact of confidentiality on the appeal process

 

  • For sound reasons, which are not challenged in the course of these two applications for permission to appeal, Theis J imposed a highly restrictive regime aimed at maintaining total confidentiality as to the content of her fact finding judgment and the subsequent welfare determinations that she made. In short terms mandatory orders are in place which prevent any of the lay parties from having a copy of the judgments, or any part of them, in their possession at any time. The solicitors acting for the various parties, and indeed the other professionals in the case, were required to retain any copies of the judgments securely in their possession and not to pass a copy of a judgment, or any part of it, to any of the lay parties.
  • The three applicants for permission to appeal no longer have the benefit of legal representation funded by Legal Aid. They appear before this court as litigants in person. The difficulties that they face as litigants in person attempting to challenge the judge’s highly detailed and sophisticated analysis of the factual evidence is, sadly, compounded by the fact that Mr A and Miss B in particular and, to a lesser extent, Mrs A are said to suffer from learning difficulties.
  • I considered the applicants’ applications for permission to appeal on paper soon after they had been issued. The difficulties facing each one of the three applicants was plain. The suggested “Grounds of Appeal” put forward with respect to each of the two applications was, understandably, in the most general and superficial terms. The challenge for this court and for the parties was to consider how each of these three individuals, with their limited intellectual resources and acting as litigants in person, could possibly present an effective application for permission in circumstances where they were denied personal access to copies of the judgment. The applications were therefore listed on notice to the local authority for hearing before me on 19th May 2016 so that attempts could be made to enable each of the applicants to present their proposed applications for permission through a process which was as fair and as effective as could be achieved within the parameters set by the confidentiality orders made by Theis J.

 

That would make it impossible for the appellants to run their case. For those reasons, the Court and the other parties helped the appellants to liaise with the Bar Pro Bono Unit.

However, the sheer volume involved made that difficult  – doing legal work for nothing is one thing, but reading 64 bundles of evidence  is quite another (that by the way amounts to reading 21 books as long as War and Peace or The Stand. Or reading the entire Harry Potter series SEVEN times. No, I wouldn’t do that for nothing either. They did eventually find someone, but given that they were doing all of this reading for free, in between their paid job it took a little longer)

 

 

 

28th July 2016 hearing

 

  • Unfortunately, the timetable leading to a hearing on 7th July slipped, despite the apparent best efforts of all concerned, and the matter was listed once again before me on 28th July. At that hearing a number of matters were apparent. Firstly, despite the genuine endeavours of the Bar Pro Bono Unit, to whom I am most grateful, it had not been possible to engage a barrister who was willing and able to take on the very substantial task of familiarising themselves with the details of this case. To put the matter in perspective, Theis J had no fewer than 64 lever arch files of documents for the fact finding hearing and this court has already been provided with 27 lever arch files of material simply to support the decision at the pre-permission stage.
  • It was also apparent that the limited time that had been available to the applicants at their respective solicitors’ offices had been insufficient for them to engage with the detail of the judge’s judgment so as to be able to identify potential grounds of appeal.
  • In the event the court was therefore obliged to adjourn the matter further on the basis that the applicants would have additional time to consider the judgment at the various solicitors’ offices and the hope was that they would be supported in that process by an advocate or other support service. On that basis the case was adjourned until September.

 

9th September 2016 hearing

 

  • The final hearing of the permission to appeal applications took place before me on 9th September 2016. By that time the paperwork submitted by the applicants indicated that they had each spent sufficient time with a copy of the judgment to enable them to draw up a list of grounds of appeal. That the applicants and the court were able to achieve that state of affairs is undoubtedly due to a good deal of hard work on their part and, at the same time, a good deal of support and goodwill shown to them by their former solicitors and the advocates who have assisted them. So far as the former solicitors are concerned, I do not anticipate that the facilities and staff that they have made available to the applicants will be remunerated in any way and I am therefore particularly grateful to them for their contribution to this process which, without their help, may well have failed to achieve its target of enabling the applicants to engage with the detailed substance of Theis J’s decision.
  • It is also right to record that throughout this process the court has been very significantly assisted by the thorough, calmly presented and well informed submissions of Miss Sally Stone, counsel for the local authority. Having undertaken the professionally taxing role of presenting the local authority’s case before Theis J, Miss Stone was well placed to assist this court in understanding the various issues raised by the applicants. I am also grateful to the legal services department of the local authority who have provided the court with very well prepared bundles to support this process. That the applications for permission to appeal have taken over six months to determine is, understandably and rightly, a source of great frustration to those who are required to focus upon the welfare of the children. Despite that high level of professional frustration, Miss Stone has presented the local authority’s case in careful and measured terms, as opposed to taking a confrontational stance towards the applicants, in a way which has displayed insightful professionalism of the highest order and which is in the best traditions of the family Bar. Both the local authority and the children’s guardian submit that there are no arguable grounds of appeal.
  • At the conclusion of the 9th September hearing I announced my decision which was to refuse permission to appeal to all three applicants on all grounds. I reserved this judgment in order, firstly, to explain the reasons for that decision and, secondly, to do so in the form of a judgment which will be publicly available so that the details of this process can be made known. In order for the judgment of this court to be public, but at the same time in order to protect the confidentiality of the content of the proceedings before Theis J, it is necessary for this judgment to do no more than refer to the detailed allegations and the circumstances of the family members in the most general of terms. In the event, as I shall explain, because my conclusion is that the potential grounds of appeal do not really engage with the scale of the findings made against these three applicants by Theis J, it is not necessary to descend to fine detail in explaining my reasons for determining the applications as I have done.

 

The appeal itself is not that absorbing – you can read about it in the linked judgment if you wish, but this case really does throw up in a very sharp way just how daunting the task of appealing is for litigants in person and how much fairness in our system is now depending on amounts of goodwill and charity that just wouldn’t be expected in any other line of work.

If you imagine that three bundles is about average (some High Court cases go more than that), then the barrister advising these parents did the equivalent in man hours of working twenty cases for free. Can you concieve of us expecting a heart surgeon to do twenty operations for free? The Pro Bono Bar Unit and the people who help out do remarkable and extraordinary work and it is worth thinking about someone giving up their free time to do the equivalent of twenty normal cases for absolutely no money. Worth thinking about that the next time you read a Daily Mail piece on fat cat legal aid lawyers.

 

 

Human Rights claims and statutory charge – an answer? Sort of

In the words of Erik B and Rakim

 

It’s been a long time, I shouldn’ta left you, without a strong rhyme to step to

 

But now, to paraphrase the one-hit wonder gangster rapper from Leicester,  “Return of the Pack – oh my god, Return of the Pack, here I am, Return of the Pack, once again, Return of the Pack, Pump up the world”

 

Which is a more heavy rap-related intro than intended, but basically, now I’m back, to show you…

 

P v a Local Authority 2016

High Court y’all.  Keehan J in da House.

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html

This one is actually a Keehan J shout out to the old skool, if by old skool, you mean (and I do),  the return of a case from March 2016

Child in care wanting parents to have no information or involvement

 

That was the case where the young person did not want his adoptive parents to know anything about the process of gender reassignment, and the LA went to Court to ascertain whether that was in conflict with their duties under the Children Act 1989 to consult with parents when they are looking after a child.

Unfortunately, this happened

 

Background

 

  • In September 2015 P moved to a local authority unit for semi-independent living. Although there were concerns about his mental well being and general welfare, P settled in to this accommodation. He was and is a vulnerable young person with a history of repeated episodes of self harm, taking overdoses and extremely poor mental health.
  • On 11 January 2016 an employee of the local authority disclosed personal information about P, including his forename and transgender status, to third parties who are friends of P’s adoptive parents. P was originally told that the address of the unit where he was living had also been disclosed: this later appears not to have been the case.
  • The impact of this wrongful disclosure on P was immediate and dramatic. He felt unsafe at the unit and left. He first stayed with his girlfriend and then at a number of residential units provided by the local authority. P’s mental health was very severely compromised: he made a number of suicide attempts and there were several episodes of self harm.
  • In more recent months P’s mental health has stabilised. I was very pleased that he was well enough to attend the last court hearing on 26 August 2016.
  • Although the local authority promptly told P of the disclosure of his personal information, I regret that it was slow in (a) giving P a full account of what had happened and (b) giving P a full and unreserved apology. In February the then Director of Children and Family Services wrote a letter of apology to P and offered to meet with him to answer any questions he may have had. P did not take up the offer of a meeting.
  • The member of staff who made the wrongful disclosure was suspended by the local authority and a formal investigation was undertaken pursuant to the council’s disciplinary policy. I do not know the outcome of that process.
  • Regrettably, and notwithstanding that P is a ward of this court, the local authority did not bring this breach of P’s privacy to the attention of this court. The matter was raised with the court by P’s lawyers.
  • The local authority, very sensible and rightly, decided to concede it had, by the inexcusable actions of one of its employees, breached P’s Article 8 rights to respect for his family and private life. They agreed to pay P damages in the sum of £4750. I am satisfied that in light of the very considerable distress suffered by P and the immediate adverse impact on his mental health, this appears to be an appropriate level of damages to be awarded to P.

 

That all seems straightforward. The LA messed up, and they agreed a sum of compensation to pay to P and P was content with that sum, and the Judge felt it was the right amount.

So why is this even a thing?

Well, it is because the Legal Aid Agency (having by the way refused to give P funding to make a claim for damages) wanted to take that £4750 and use it to repay the legal aid that P had had in the original wardship proceedings. This is called the Statutory Charge, and it comes up most often in divorce cases about money. The point there is that if you get legal aid (or ‘free’ legal representation paid by the taxpayer and you win money out of the case, you have to pay the legal aid back out of that money. ) That makes sense with divorce. It doesn’t make a lot of sense here.

It was P’s legal rights that were breached, and the £4,750 is compensation for that breach. Obviously he should get the money.

 

But no, the statutory charge bites on the compensation and P would get nothing.

That’s because of our dear old friend LASPO, the Statute that keeps on giving (if by giving you mean stealing pennies from the eyes of corpses)

 

  • Its current statutory basis is set out in s. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which provides:

 

“Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

 

And the killer words her are “in connection with”  – basically the Legal Aid Agency position is that the statutory charge bites (and thus they can take the compensation and take all of the legal aid costs spent on other stuff and P just gets anything left over) if there’s a connection between the cases at all.

There’s one exception in the LASPO Act (none of which apply to compensation from Human Rights claims) and the Lord Chancellor has power to exempt the statutory charge in certain cases

 

 

  • The Lord Chancellor has authority to waive the statutory charge, in whole or in part, where she considers it equitable to do so and two conditions are met.

 

Those conditions are:

(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and

(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings:

see regulation 9 of the CLA(SC)R 2013.

 

  • The phrase ‘significant wider public interest’ is defined as being a case where the Director of the LAA is satisfied that the case is an appropriate case to realise real benefits to the public at large, other than those which normally flow from cases of the type in question, and benefits to an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family: see regulation 6 of the Civil Legal Aid (Merits Criteria) Regulation 2013 (the ‘LA(MC)R 2013’).
  • The LAA asserts that the two conditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the application for funding is made and the Director makes the determination that the application qualifies for funding. The purpose of the waiver is to allow legal aid to be granted for a single test case without disadvantaging the applicant should he or she fail to secure damages and/or all of their costs.

 

 

The Lord Chancellor and the Legal Aid Agency were both represented in these proceedings and were clear that Reg 9 had not been sought at the time the application for funding was made (of course it hadn’t, because the breach hadn’t happened at that point)  and so it couldn’t now be applied.

Their very reasonable solution was that P would get his damages, provided that his solicitors, silk and junior counsel agreed to waive all of their fees from the wardship case (i.e having represented P in a very complex and legally difficult case and got everything that he wanted and advanced the law in a way that will help others in similar circumstances, they should not get paid for any of it)

 

 

  • In taking a broad and pragmatic approach leading counsel for the local authority submits that the adverse consequence of the statutory charge, that P will receive not a penny in damages, is unfair and makes no sense. I have a very considerable degree of sympathy with those sentiments.
  • In this context I deprecate the stance taken by the LAA that the issue of P receiving any of the awarded HRA damages would be alleviated if his leading counsel, junior counsel and solicitor simply waived their professional fees for acting in this matter.

 

 

The Judge mooted the idea that if there was a break between the two cases (this is my solution so I’m interested in it)  i.e

  1. The solicitors and counsel deal with the wardship or care proceedings on legal aid

2. Separately and without charging for it, they write to the LA about human rights breach and ask for compensation

3. LA settles the HRA claim (and possibly pays the costs of step 2 into the bargain)

 

Then why is the money recovered as a result of step 2 ‘in connection with’ step 1?  And why should the LAA get their money back from step 1 if step 2 is nothing to do with it, and no legal aid money was spent in getting step 2 achieved?

I think this is a damn good point (immodestly, because I’ve been saying it for ages). The LAA unsurprisingly disagree

 

 

  • The principal supplementary submissions of the LAA may be distilled into the following 10 points:

 

(a) it was common ground between the parties at the hearing on 26 August 2016 that any damages recovered in relation to the breach of P’s Article 8 rights (the ‘HRA claim’) would be damages recovered in the wardship proceedings;(b) the creation of new proceedings avowedly for the purpose of avoiding the statutory charge would not be an appropriate use of the court’s powers. It would be wrong to seek to bring about the disapplication of the statutory charge by changing the previously contemplated approach to the scope of this judgment or disapplying certain rules of civil procedure.

(c) The issues raised by the court about the application of the statutory charge cannot be resolved in a factual vacuum.

(d) Even if P’s damages were awarded in freestanding proceedings which were not funded by the LAA, the statutory charge would still apply to those damages if they were recovered in “proceedings in connection with which the [civil legal] services were provided.” The language of ‘in connection with’ is obviously very wide. I was referred to the case of Cassidy v. Stephenson [2009] EWHC 1562 (QB) where Holman J. held that money recovered from the settlement of professional negligence proceedings brought as a result of a failed clinical negligence (which was funded) was not property recovered in a dispute “in connection with which” the legal services for the clinical negligence claims were provided.

(e) The propositions set out in paragraphs 7 to 10 of the email of 20 October 2016 are correct, save that the LAA is not privy to the full background to this case (eg the local authority’s response to P’s letter before action).

(f) The HRA claim cannot be said to be ‘wholly unconnected’ to the subject matter of the wardship proceedings. The LAA asserts that:

“As the LAA understands the position, the Court considered P’s circumstances and the extent to which information about him and his whereabouts should be disclosed in the inherent jurisdiction proceedings. The HRA Claim arose, as the LAA understands it, as a result of conduct by the LCC that was not consistent with the way in which that issue was resolved, with the Court’s assistance, in these proceedings. It was therefore reliant on matters determined in RA’s favour in the wardship proceedings, for which funding for civil legal services was provided.

Civil legal services were provided for the wardship proceedings, in which RA was made a ward of the Court, and restrictions were imposed on disclosure of information in relation to RA. It was the fact that LCC acted contrary to the resolved position that has given rise to the HRA Claim. The LAA funded the wardship proceedings, including for a declaration that there had been a breach of the injunction imposed by the Court. “

(g) It would be artificial to say than any recovery of damages was not made in the wardship proceedings.

(h) Even if the award of damages was made or approved outwith the wardship proceedings, the damages were still recovered in proceedings in connection with which “legal services were provided” (i.e. the wardship proceedings). The LAA relies on the assertion by P’s counsel that the authorities state that HRA claims should be brought within wardship proceedings viz. Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160.

(i) The answer to the question posed in paragraph 15 of the email of 20 October 2016 is “yes” there are reasons why the court should not permit the issue of a freestanding HRA claim. Such a device would be inappropriate and would not result in the disapplication of the statutory charge because, as asserted above, the damages would be recovered in (unfunded) proceedings which were “in connection with” the (funded) wardship proceedings.

 

 

The Judge decided otherwise and ruled that in this case steps 1 and 2 were not ‘connected with’ each other and the statutory charge did not arise on the compensation payable to P. Hooray!

 

 

 

  • It is appropriate for me to deal with each of those points in turn. First, the court is neither bound nor fettered in its determination of the legal issues or the factual matrix of a case by the submission of counsel. In any event counsel were afforded the opportunity to agree or disagree with the alternative analysis proposed by the court and to make submissions. P and the local authority have decided to agree with my propositions and questions. The LAA have had a full opportunity to respond and I can discern no procedural or substantive unfairness in the course I have adopted.
  • Second, to characterise the alternative analysis the court has suggested is ‘avowedly for the purpose of avoiding the statutory charge’ is quite wrong. Rather my objective is to secure, if at all possible, by any legitimate and lawful route P’s receipt of the damages he maybe awarded for the breach of his Article 8 Rights by an organ of the state.
  • Third the factual matrix of this case should be well known to all parties including the LAA. The same is comprehensively set out in the parties’ written submissions and in a detailed chronology prepared on behalf of P. I do not accept the court is considering the legal issues in this case in a factual vacuum.
  • Fourth, with reference to paragraph 64(d) above, I accept the phrase “in connection with which the [civil legal] services were provided” can be given a very wide interpretation. I was not referred to any authority to support a submission that I must give it a very wide interpretation.
  • Fifth, with reference to paragraph 64(e) above, I do not understand the submission that the “LAA is not privy to the full background to this case.” For the purposes of this judgment I have not taken account of nor have I been furnished with material not available to all counsel, save perhaps for one matter which I refer to in the next paragraph.
  • Sixth, with reference to paragraphs 64(f) and (g) above, the LAA appears to have proceeded and proceeds on the basis of a fundamental misunderstanding of the order I made in August 2015: see paragraph 46 above. I did not make an injunction or other order prohibiting the local authority from disclosing personal or private details about P to other persons, save against the local authority disclosing information to P’s adoptive parents: see paragraph 8 above. I made a declaratory order that the local authority was relieved of its statutory duty to give information about P to or to consult with P’s adoptive parents about P or his welfare. The LAA has proceeded and proceeds on the following assumptions:

 

(a) that I made an injunctive order against the local authority;(b) that the employee of the local authority breached the terms of that injunction;

(c) and that P’s claim against the local authority was based on a breach of that injunction.

None of the foregoing assumptions are factually correct. The LAA’s mistake does explain the funding decision of 8 February 2016, set out at paragraph 38 above, to permit P to bring a claim for a declaration for breach of an injunction.

 

  • P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings. This court was not notified of that alleged breach (now admitted) by an employee of the local authority which it should have been because P is a ward of this court and because of the adverse consequences of the wrongful disclosure on P. Furthermore the wrongful disclosure, insofar as it is relevant, was made to third parties and not to P’s adoptive parents. The local authority asserts that the third parties did not, in fact, pass on the disclosed information to P’s adoptive parents.
  • Seventh, with reference to paragraphs 64(h) and (i) above, in light of the correct factual matrix set out above I am not satisfied that the (unfunded) HRA claim in which damages are sought could be said to be “recovered in proceedings in connection with which legal services were provided” (i.e. the funded wardship proceedings). I go further, I am wholly satisfied that the damages resulting from the HRA claim are not “recovered in proceedings in connection with which legal services were provided”. There is no legal or factual connection between the wardship proceedings and P’s HRA claim.
  • The mere fact that P’s counsel in submission referred to the case of Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 which advises that HRA claims may or should be made in existing proceedings, does not require this court to conclude that P must or may only make a HRA claim in ongoing wardship proceedings. No claim form was issued. The HRA claim and the quantum of damages were settled before a claim was issued. As referred to in paragraphs 58 and 59 above, rr. 21.10 and 8 of the CPR set out the appropriate procedure when a settlement is reached concerning a child or young person prior to the issue of proceedings.
  • I can discern no legal impediment or other reason why I should not permit P by his solicitor to issue a claim form as required by r. 8.2 of the CPR and upon that basis, in due course, proceed to approve the agreed award of damages to P in respect of his HRA claim in those proceedings. The approval of damages can be submitted by email and be dealt on the papers without the need for a hearing. I am confident that the local authority would agree to pay the costs of that process incurred by P’s legal team.

 

Conclusions

 

  • I am bound to find that the Lord Chancellor, by the director of the LAA, has no discretion or power to waive the statutory charge, if applicable, in this case. The preconditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the determination of funding is made and a decision to waive the statutory charge must be made at the same time. That did not happen in this case and thus the preconditions are not satisfied.
  • I do not understand why the CLA(SC)R 2013 regulations placed that limitation on the time when a decision whether to waive the statutory charge must be made. I am not aware of any public interest or policy reasons for the same. It is regrettable that the discretion to waive the statutory charge is so fettered.
  • The manner in which the LAA has made determinations on public funding in these proceedings is extremely unfortunate. In some aspects the decisions are plainly wrong and/or unreasonable and in others the reasoning of the LAA is difficult to understand, if not incomprehensible.
  • In my view it would be extremely regrettable if P were to be denied the benefit of the damages awarded to him as a result of the considerable emotional distress and harm to his mental well being he has suffered as a result of the wrongful conduct of an organ of the state.
  • In light of the fact, however, that the LAA refused to fund a HRA claim for damages it appears me that the damages to be awarded to P under the Part 8 procedure were recovered in a claim that did not have the benefit of a public funding certificate. Further I am wholly satisfied that any damages awarded to P in Part 8 proceedings were not recovered “in proceedings in connection with which [civil legal] services were provided.” Accordingly, however erroneous or muddled the LAA’s decision making was on this issue, in my view, for the reasons I have given above the statutory charge is not and cannot be applicable to P’s award of damages.

 

 

Is this the end of it? Not really. Whilst the Judge here paints a route-map for others to follow, there are two major differences from other HRA cases notably the s20 damages cases.

 

  1. The HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all. P’s rights would have been breached by what the rogue member of staff did, whether or not there had been a Court hearing. (The Court hearing made it sharper and more vivid and allowed P to easily tap into legal advice from his legal team whom he already knew, but the breach was a breach regardless. It was  a breach of his article 8 rights, NOT as the LAA mistakenly thought a breach of a Court injunction)
  2. The LAA had been asked to fund a damages claim and had refused. That is a material factor in the Judge being able to rule that there was no connection between the two cases.

 

(On the plus side for children and parents, this case probably makes it more likely that the LAA will STOP refusing to fund such damages cases, since if they do, they leave the door open to not being able to recover their original costs out of any winnings, but that in turn means that they will argue that this case doesn’t have broader application)

 

I suspect this is an issue that only the Court of Appeal or Parliament can resolve. It simply can’t be right that where a child or parent has their human rights breached by the State and compensation is paid that they will not get a penny of it. Equally it can’t be right that where the HRA claim is accepted and settled swiftly, that the LA get hit with costs of care proceedings which would be massively more than the legal costs of dealing with the HRA claim itself (and that is a collision course with Supreme Court decisions in Re S and Re T about where costs orders can be made in care proceedings)

Not for the first or last time, the answer is that LASPO is badly drafted and poorly constructed and unfair to real people, and it needs to be reworked.