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Category Archives: case law

Revoking adoption and IVF mistakes (again)

 

 

 

The President of the Family Division has been at the forefront of the litigation about IVF clinics that managed to make a mess of the paperwork such that people who fully intended to both be legal parents of a child conceived in that way have ended up not being legal parents and having to go through cost and emotional turmoil. Purely due to failures in using the correct forms. It is a trivial mistake, but one (as you can see from this piece) has huge emotional consequences and cost for those involved.

Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273 (Fam) (13 September 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2273.html

 

The President notes that there are approximately 90 cases of such anomalies, where due to failure with forms and paperwork parents who intended in good faith to become legal parents of the child they were conceiving with help of the clinic did not actually become the legal parent.

 

In this case, when the parents were told of the mistake, the child had not yet been born.

 

 

 

 

17.When told by the clinic of the mistake which had been made, X and Y were, to use X’s word, “devastated.” Y was at home – in fact she was far advanced in her pregnancy with C2 – when Barts telephoned:

 

 

 

“They told me that I was not [C1’s] legal parent … I rang [X], instantly, I was sobbing. I could not believe what I had been told. Fortunately [she] was very close to home. When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [C1’s] mummy. This still remains very raw.”

 

X remembers Y telephoning:

 

“[She] called me, [she] was sobbing and I could barely make out what she was saying.”

 

The legal advice they got at the time (which was probably right at the time – or at least what most lawyers would have said was the only answer) , before Theis J found the alternative route) was that there would have to be an adoption.

 

 

18.X and Y were told both by the clinic and by the solicitors they instructed – not those involved in the present proceedings – that the only solution was for Y to adopt C1. I have referred on previous occasions to how utterly inappropriate adoption is as a remedy in cases like this: see In re A, para 71(vii), and Case I, para 24. However, as I observed in Case I, para 23, my impression is that this erroneous view, shared at the time both by the HFEA and by the clinics whose actions I have had to consider, and, I might add, by many family lawyers, was based on assumptions, derived from Cobb J’s judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, which were widespread until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.

 

 

19.Y accordingly made an application to the Family Court to adopt C1. X and Y found the adoption process – and I can well understand why – very intrusive, very hurtful and a total invasion of their privacy. Y’s account is telling: “I felt I was stared at and judged. I felt that everyone analysed us.” But more fundamentally, as X put it, “the whole adoption process felt wrong.” Y’s anguished words are heart-breaking:

 

 

 

“I feel like a piece of me has been taken away from me. I cannot even start to explain the pain it has brought to us all. We tried our hardest to do things properly and yet it’s like I no longer feel like I am [C1’s] mummy. I was [C1’s] mummy but now I am [C1’s] adoptive mummy. We do not want [C1] to be different to [C2] … We feel disappointed and let down by Barts. We planned our family carefully. We want [C1’s] parenthood to be what it should have been. Adoption is not what we wanted.”

 

X’s words are equally raw:

 

“It broke my heart when I had to hand in [C1’s] original birth certificate. I am so upset that [C1] now has a different status as an adopted child. [C1] is now different to [C2], when [this] should not have been.”

20.The report of the adoption social worker prepared for the adoption proceedings contains this important passage:

 

 

 

“This application is quite unique.” After setting out the circumstances, the writer continued: “The couple have sought legal advice and have been advised that the only way to remedy this is for [Y] to formally adopt [C1]. The couple have found this situation extremely distressing and in all honesty do not want this process. However they want everything for [C1] to be proper and legal and for [Y] to be recognised legally as [C1’s] parent, as was always intended.”

21.In due course – this was all in 2014, before Theis J had given her important judgment – the District Judge made an adoption order. It was not a happy occasion for X and Y. In her report prepared for the present proceedings, C1’s guardian records their feelings:

 

 

 

“The description of that day was very emotional. “There were lots of other couples there celebrating. It was a special day for those families. It was a miserable day for us, a defeat, a horrible occasion.””

 

Having learned of the newer approach of the Family Courts, to fix the deficiencies in the process and make declarations of parentage which would achieve the legal status as the child’s parents without adoption, the couple sought advice and made an application to revoke the adoption order.

 

As readers of the blog will know, that’s a very rare application, and less than a handful of such cases have ever succeeded. Most reported attempts have failed.

 

 

22.The guardian’s report is insightful, empathetic and humane. It is a powerful and moving exploration of what has gone wrong:

 

 

 

“[The adoption] was an unwelcome, unwanted and intrusive process but one in which [Y] and [X] felt compelled to participate for they wanted legal certainty for [C1] and were told they had no other options. They are now, understandably, further distressed to learn that other remedies may have been available to them. They are seeking a Declaration of Parentage and a revocation of the adoption order. I unequivocally support their applications.

 

… The adoption application was made with great reluctance. Particularly cruel was having to hand in the original, and very precious, birth certificate. “We are private people. It was horrible having to talk to strangers about such a personal part of our lives. It was like being public property.” [Y] talked about being asked to leave the room by the Cafcass Reporting Officer who witnessed [X’s] consent. She described sitting in the kitchen and crying.”

23.The guardian comments that at no point in the process did anyone raise any queries about the unusual background circumstances or ask whether there might be a different route to securing parenthood for C1. She continues:

 

 

 

“[C1] now has a new birth certificate and a new status as an adopted child – something [Y] and [X] now know to be completely unnecessary, having been made aware that an alternative could have been made available to them … [They] feel a level of stigma about the adoption and an acute awareness of [C1’s] difference to [C2]. They are concerned that [C1] will worry about why [C1] was adopted and [C2] is not. They are concerned about how to explain this … They are upset and angry on [C1’s] behalf – and anyone hearing their account cannot help but be moved. “We are honourable, honest people. We believed the system and we did what we were told.” They are disappointed that other professionals at the time did not question the adoption process or suggest they seek alternative advice. They feel as if the adoption was entered into under false pretences. I consider their sentiments are both understandable and entirely justified and that [C1] should not have been adopted.”

24.Recognising that revocation of an adoption order is “a most unusual step”, the guardian is nonetheless unequivocal in her recommendations:

 

 

 

“However, from [C1’s] perspective, I can identify absolutely no need or justification for an adoption order, given that a realistic alternative would certainly have been pursued at the time had the parents received different legal advice … On [C1’s] behalf, I have no hesitation in recommending that the court revoke the adoption order and replace it with a Declaration of Parentage – the latter order being one that will equally meet [C1’s] welfare needs and interests. It will afford [C1] the permanence and security that all children should have, and will give effect to the legal relationship that had always been intended when the parents had the fertility treatment. It will remove the unnecessary stigma of [C1’s] status as an adopted child and afford [C1] parity with [C2].”

 

The guardian concludes with the hope that the original birth certificate be returned, this document having, as she says, “enormous significance” for X, Y and C1.

25.I wholeheartedly agree with the guardian’s observations and unequivocally accept her recommendations. For all the reasons she gives, C1’s welfare demands that the adoption order be revoked. Common humanity to X and Y demands the same. They have suffered very greatly from failings in the ‘system’. In the circumstances I have described, to deny them the relief they seek would seem an affront to justice. But does the law enable me to make the desired order? In my judgment, it does.

 

 

26.I have been taken to the authorities: see In re F(R) (An Infant) [1970] 1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182, In re F (Infants) (Adoption Order: Validity) [1977] Fam 165, Re M (Minors) (Adoption) [1991] 1 FLR 458, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 (affirming Re B (Adoption: Setting Aside) [1995] 1 FLR 1), Re K (Adoption and Wardship) [1997] 2 FLR 221, Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, Re PW (Adoption) [2013] 1 FLR 96, Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, and PK v Mr and Mrs K [2015] EWHC 2316 (Fam). See also, in relation to the revocation of a parental order made under section 54 of the 2008 Act, G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286.

 

 

27.There is no need for me to embark upon any detailed analysis of the case-law. For present purposes it is enough to draw attention to a few key propositions:

 

 

 

  1. i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption) [2013] 1 FLR 96, para 1.

 

  1. ii) The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, paras 11-12.

 

iii) However, “The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances””: Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 14, “public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so.”

 

  1. iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378).

 

  1. v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.

 

 

 

28.I bear in mind, also, two important observations that appear in the authorities. The first is the observation of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, page 251:

 

 

 

“The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.”

 

The other is that of Hedley J in G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, para 33:

 

“the adoption authorities show that the feelings of an injured party are not germane necessarily to consideration of an application to set aside. The hurt of the applicants in both In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 … and Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, was immeasurably greater than here and it availed them nothing.”

29.The present case is unprecedented, indeed far removed on its facts from any of the previously reported cases. The central fact, even if no-one recognised it at the time, is that when Y applied for the adoption order she was already, not merely in fact but also in law, C1’s mother. It follows that the entire adoption process was carried on while everyone, including the District Judge, was labouring under a fundamental mistake, not, as in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, a mistake of fact but a mistake of law, and, moreover, a mistake of law which went to the very root of the adoptive process; indeed, a mistake of law which went to the very root of the need for an adoption order at all. The entire adoption proceeded upon what, in law, was a fundamentally false basis.

 

 

30.Flowing also from this is that the consequence of an order revoking the adoption order will in this case be fundamentally different from in any of the other cases. There will be no uprooting of C1 from one set of parents and return to another set of parents; C1 will remain, as hitherto ever since birth, with the same people, the people who, to C1, as also to X and Y, are and always have been C1’s parents in every sense of the word, parents emotionally, psychologically, socially and legally. X and Y always intended to be, and in law always were, C1’s parents.

 

 

31.To make an order revoking the adoption order, as I propose to do, will not merely right a wrong; it will recognise a legal and factual reality and put an end to a legal and factual fiction, what Ms Fottrell rightly described as a wholly contrived position. And it will avoid for the future – and this can only be for C1’s welfare, now, into the future and, indeed throughout life – all the damaging consequences to which X, Y and the guardian have drawn attention. As Ms Fottrell put it, C1’s welfare will be better served by restoring the status quo ante and setting aside the adoption order. I agree. I can detect no convincing argument of public policy pointing in the other direction; on the contrary, in this most unusual and highly exceptional case public policy marches in step with justice to X, Y and C1; public policy demands that I make the order which so manifestly is required in C1’s best interests.

Woman kept in a cage

 

This case, involving an 18 year old woman who had lived in England until she was nearly 17 and then went to live with her father in Saudi Arabia, attracted a lot of press attention – the headline of this piece is how it was portrayed in a lot of the Press coverage. The story was that this woman was locked up by her father, to keep her away from men, and was locked up in a cage – the High Court made orders that she be released (although with an acknowledgment that there was nothing the English Court could do if the father didn’t comply)

 

The case is now reported, so we can see the facts.  Al Jeffery v Al Jeffery (Vulnerable Adult : British Citizen) 2016

 

Not "JEFFREY"  - Al-Jeffrey (But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don't use gavels)

Not “JEFFREY” – Al-Jeffrey
(But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don’t use gavels)

 

 

(Let’s be honest, when the other members of Rainbow zipped up Zippy’s mouth, it is hard not to see that as a deprivation of Zippy’s liberty)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2151.html

 

In a similar way to the “woman who sparkled” case, once again, the Press don’t come out of it too well – they had access to this information, and of course used it to doorstep the woman’s relatives. Stay classy, San Diego.

 

I am aware that this has led to considerable publicity in print and online, much of it under a headline “Woman kept in a cage” or words to that effect, the accuracy of which I will later address. I was told (and if it is true, I regret it) that this led in turn to press harassing members of the family in Wales

 

The ‘cage’ element is obviously the major motif of the story,  but there is perhaps more to that than one might think from the Press coverage

 

 

The “cage”

 

  • I refer under a discrete heading to the issue of a “cage” because I am aware that this has given rise to some rather sensational headlines in the media. Further, in two national newspapers last Saturday (it may have been in more) I myself saw large colour pictures of the photograph now at bundle p.C84. It is the case that Amina herself has referred to her being kept “in a cage” or “in a massive cage”. This may have led headline writers and/or their readers to visualise that she was being kept actually in a cuboid cage of the type that an animal might be kept in with some form of bars all around and on top of it. That is not what happened; and the purpose of this section of this judgment is to create some objectivity and proportionality, and to describe as best I can what appears actually to have happened. I stress, however, that I have not heard any oral evidence and I have only seen the two photographs at pp.C84 and 85.
  • Within the father’s flat there were two vertical barred panels. One, now seen at p.84, is yellow. It is a large metal framework of bars upon which is affixed, probably by welding, a metal diamond shaped lattice grille. Each diamond shape in the lattice is smaller than an adult hand. It is the sort of security structure that could be fixed over windows or doors to prevent entry, or could be used as a security partition in, for instance, a store room. It is a form of caging, but not itself a cage. The other, now seen at p.C85, is, in the photograph, a mid-brown colour. It is roughly the size and shape of a full height vertical door. It consists of a hinged metal frame with metal vertical bars through which an adult could not squeeze. It is the sort of security structure that is occasionally seen as an added security door or gate outside a front door, or could be used as a security door or gate in a corridor. It, too, is caging, but not itself a cage.
  • The father admits that both these structures were affixed within his flat. He says through Mr. Scott-Manderson that the yellow lattice grille is simply affixed over external windows to prevent Amina from shouting out to the street below, the flat being on the fourth floor. From the appearance in the photograph at p.84 I am sceptical about this. Amina herself is in the foreground, with the grille beyond her, so the windows could not be in the foreground but off the photograph. Beyond the grille there does, indeed, appear to be a wooden framework which appears to contain glass panes, but they do not have the appearance of external windows. They do have the appearance of an internal glazed screen or partition, like a “room divider”. I say that, because it appears from the photograph that in part of the area beyond the grille there is a hanging cupboard or something similar, and above that the appearance of artificial electric light shining through from beyond. The father says that the glass panes are, indeed, external windows and that the light is merely a reflection from a light within the room. The father says that the purpose of the brown barred door or gate seen at p.C85 was, indeed, to restrict Amina’s access to parts of the flat, including the front door, but that it was removed several months ago. He describes it as a “barrier partition”.
  • On the father’s own account, the purpose of both these structures was to restrict Amina, whether from access to parts of the flat and the front door, or from simply looking or calling out of the window. Further, the father does admit that when he himself leaves the flat to go to his part time work he does lock her in. I conclude that Amina was not literally in a cage, but that her freedom of movement was, and is, admittedly constrained in a way that I would regard as severe, having regard to her age and full capacity. She was, and, so far as I am aware, still is, deprived of her liberty and could be described as “caged”, although not “in a cage”.

 

 

It reads more as being in a room that had a barred window and that she was not permitted to leave the home and had very restricted access to the outside world – as Holman J says, she was deprived of her liberty and could be described as being caged, but she was not ‘in a cage’

 

[Google image has let me down here – I really wanted a picture of Andromeda from Clash of the Titans (1981) in her gilded cage that Calibos was keeping her in.  With a vulture jailer, no less, who would pick up the cage in his beak and carry her off… But no joy. Bah. Anyway, here’s a picture of her as she is awaiting for Poseidon to “UNLEASH THE KRAKEN”  and her liberty is definitely being deprived]

 

There was no doubt in my mind aged 11 that I wanted to rescue this lady

There was no doubt in my mind aged 11 that I wanted to rescue this lady

 

The Judge had made as part of his order that the father must allow his daughter to speak to her solicitor in confidence to provide instructions. That did not happen

 

 

  • Notwithstanding the father’s position as recited in the order and summarised above, the order made three orders, each qualified as being “without prejudice to the issue of jurisdiction”: [i] continuing forced marriage protection orders; [ii] for the immediate return of Amina to England and Wales; and [iii] directing the father to make Amina available for an interview at the British Consulate prior to the fact finding hearing. By the time of the next directions hearing on 5 July 2016, Amina and the father were represented respectively by Mr. Henry Setright QC and Mr. Marcus Scott-Manderson QC who represent them again at this hearing. The order recited that the court had determined that “arrangements must be made for [Amina] to give instructions without fetter or any perception of fetter to her solicitors privately and confidentially” at the British Consulate in Jeddah. Paragraph 15 of the order itself ordered the father to facilitate the attendance of Amina at the consulate “… in order to enable her to speak privately and confidentially to her solicitors from those premises, for the purpose of giving instructions for, and approving, the statement” which another part of the same order ordered Amina to file and serve. I will for convenience refer to that particular provision of the order with regard to attendance at the consulate as “the paragraph 15 order”. Overarchingly, the order of 5 July repeated by reference the order to cause the immediate return of Amina to England and Wales.
  • The father has not returned Amina to England and Wales and has not complied with the paragraph 15 order. As a result, Miss Hutchinson has not been able to speak privately and confidentially and without fetter or any perception of fetter to Amina, and she has not in fact been able to communicate at all with Amina since June 2016. As to the father’s non-compliance, Mr. Scott-Manderson said at the hearing that:

 

“The father consciously decided in breach of paragraph 15 not to take her to, or make her available at, the consulate, although he knew all the detailed arrangements which had been made and no excuse or explanation (e.g. ill health, car breakdown etc.) is put forward. There is an impasse.”

The result was that the fact finding element of the hearing which had been fixed for last week was completely ineffective. Mr. Setright and Miss Hutchinson have no recent instructions from their client. They have no “proof of evidence” from her. They have been unable to take her through, or seek her instructions upon, the several statements and exhibits filed by or on behalf of the father. And, of course, they have been unable to prepare any statement from her. The father did, as required by another paragraph of the order of 5 July 2016, take Amina to the Hilton Hotel in Jeddah last Monday at the start of the hearing, from which evidence was to be given by each of them by video link (or, as I was told on the day, by Skype) to the Royal Courts of Justice. However, Mr. Setright was, in my view quite rightly, unwilling to embark on any consideration of oral evidence in those circumstances. It is elementary that a client is not, as it were, put into the witness box blind. It is elementary that an advocate does not cross-examine without having his own client’s instructions as to what the case is. There were in any event no safeguards of any kind as to the circumstances of Amina in the hotel or what pressures, influence or “fetter” she might be under. For these reasons, too, I myself would in any event have been quite unwilling to embark upon the projected “fact finding” exercise.

 

  • I wish, therefore, to make crystal clear that the reason I did not, and could not, embark upon the “fact finding” that had been scheduled for this hearing was, and is, entirely because of the conscious decision of the father not to comply with the paragraph 15 order. It is his responsibility, not mine, that I am impelled to decide the outcome of this hearing on a consideration of the documents, untested and un-supplemented by any oral evidence. Precisely because that evidence is lacking, I do not by this judgment make any considered judicial finding as to any of the disputed facts. I merely record them, although I must comment upon them.
  • Although the father consciously did not comply with the paragraph 15 order, with its more rigorous terms and safeguards and the express purpose of enabling unfettered communication with Miss Hutchinson, he had complied with the earlier order of 12 May to the extent of permitting Amina to have a meeting at the Hilton Hotel in Jeddah with a British consular representative, Amna Ghulam. The father personally was not in the room. However, he insisted on a lady being present who has been described during the hearing as “the father’s representative”. That lady made a note, which has since been typed up in English and is now at bundle p.C165, and she has made a statement that her note is accurate. In view of para.6(b) of the order of 5 July 2016, I will omit parts which make or include allegations against individuals other than the father who is now the sole respondent to these proceedings, but the note requires to be read in full by any court subsequently engaged in this case.

 

“Note: Amina appears dishevelled, strangely unlike her sister covered with a niqab. She appears to have written ‘kill’ or ‘killing’ on her right wrist with blue ink and red or pink ink.

When asked what were her (Amina’s) future plans, if she wanted to stay in Saudi Arabia or if she wanted to leave the country, Amina responded that she would like to leave the country but her family are not allowing her to leave.

Amina stated that she has been locked up in her room for over a year.

Amina stated whilst the British court case is continuing in the UK her family have informed her that she will only get her freedom (study and work) only after the case in the UK closes.

… Since [she dropped the last case] Amina stated she was abused and locked up, which is why she would like to return to the UK.

When asked why is her older sister allowed to have a phone and she is dressed well and not covered, Amina responded that two years ago she kissed a guy (in KAUST [a university in Saudi Arabia]) who proposed to her twice but her family refused him.

Amina stated her family manipulated her younger sister even before she came to Saudi Arabia that Amina is an evil girl and that she should not speak to Amina. Amina continued to say that when her younger sister came to Saudi she already had a bad image of [Amina] but when she came to Saudi Arabia she found a locked up girl with a shaved head.

… [Her father] is the one who locks me up. And the reason for that is because she had kissed a guy two years ago.

Amina was asked if she is still locked up. She responded that the metal bars are no longer in her room but she is still locked up in the house and she is not allowed to use the phone or internet.

… Amina confirmed that the reason why she ran away and build a case … is because she wants to study, work and get married.

When asked if she wants to get married by her way or her family way, Amina responded that she does not care who she marries, she wants to get out in any way possible …

When asked why she chose to come back and live with her family after running away and not choose the shelter, Amina responded that she did not have the choice, the police threatened her with jail if she did not return to her father. She continued to say that her father has the choice to take her to prison and that he always threatens her with it, she also added that the Saudi police advised her father to take her to prison after hearing what she did.

Amina stated that she would like to inform the judge that she is put in a difficult situation because she will get in trouble with her family if the case does not end. But at the same time she does not trust her family.

When asked to clarify what she wanted, Amina responded that her family wants her to say that she lied about her accusations. She stated that it is not true. And that the judge should know that she is not lying. Amina is afraid that if the case continues her father will continue to hit her.

When asked if her father still hits her Amina responded yes. She stated that her father recently threatened her that if she decides to leave he would take action against her.

Amina continued to say that her father pretends to be cooperative with the Saudi authorities, she stated that he once informed a Saudi judge that if she wanted to complain about him he would take her to the police himself. Amina stated that she had asked her father to take her to the police station after he hit her and strangled her, but he refused.

When asked again if her father hits her, Amina responded yes …

Amina is afraid for her safety if she cannot leave Saudi Arabia. She asked that the court would allow the British Embassy to check up on her every month … She also stated that [she was] prevented from going to the bathroom for one month, she was forced to urinate in a cup. She stated that she would get punished when she used her room as a toilet.

Amina requested to speak with her lawyer.

By the end of the meeting Amina had a phone conversation with her lawyer in the UK.

A note was passed under the table to the British representative.”

 

  • The conversation with the lawyer in the UK was not with Miss Hutchinson but with her assistant, Mrs. Wendy Ramus. I do not know what was said, being privileged, but in any event it was not the private, confidential and lengthy opportunity to take instructions without fetter which the later paragraph 15 order required. The consular representative, Amna Ghulam, with whom the meeting took place, has supplied to Miss Hutchinson by email her own account of the meeting. The existence of the email has been disclosed to the court and to the father’s lawyers but the contents are stated by Mr. Setright to be privileged, as the intended purpose of the meeting (thwarted by the presence of the father’s representative) had been to provide a conduit for information and instructions from Amina to her solicitor, and her lawyers here (who cannot obtain her instructions) do not consider that they can, or should, waive the privilege. As the father’s representative’s note was, of course, prepared in the first instance for the father, I do not know what else may have been said which the father’s representative decided not to record. Mr. Setright indicated in veiled terms, but in open court, that Amina’s team consider that Amina could be at heightened risk if her father saw the consular representative’s own email. The note of the father’s representative refers at the end to “a note was passed under the table to the British representative”. As I understand it, that note has not itself been transmitted here to London. Photo shots of it made by a mobile phone have been. They are apparently hard to decipher, but in any event Mr. Setright asserts that similar considerations apply to it as to the consular representative’s own email record and they claim privilege. I have not seen it and I do not know what it says.

 

 

Far from what was needed, which was the chance for this woman to talk in private with her lawyers, to be able to speak freely and to obtain advice.

 

It was a very difficult scenario. On the one hand, the Court was looking at someone who was an adult living in another country – a country where rules and law and customs are not exactly the same as ours and the potential of interfering with that sovereign state, and on the other there was a British citizen crying out for help and no prospect of it arriving if the English Courts did not intervene.

 

Discretion

 

  • The question now is whether, in my judicial discretion, I should actually exercise jurisdiction and make an order and, if so, what order. I have, indeed, approached this case with very great caution and circumspection. I have had firmly in mind from first to last the risk of exorbitance. Caution and circumspection obviously do not depend on the length of hearing alone, but I did hear this case over four long days, during which I heard sustained argument from very experienced leading counsel. I have had very considerable “thinking time”, both during the hearing and since, while preparing this judgment. I have in fact moved during the course of the hearing from a starting position in which I openly expressed extreme doubt and reservation whether I should actually exercise a discretion to make an order, to the position (which, anticipating the outcome, I now disclose) that I should do so. In my view, the admitted or core facts of this case all point to Amina being under a constraint from her father which, having regard to her age, is severe. Her father admits to locking her in the flat for several hours when he goes out. He admits that until recently the barred door in the photograph at p.C85 was in position, restricting her access to parts of the flat, including the kitchen. He admits that the yellow grille at p.C84 is still in place, and although he says that its purpose is only to prevent her from shouting out of the window, that in itself is a constraint upon her means of communication with the outside world. As I explained at para.33 above, I am sceptical that that grille is not in fact restricting her movement within the flat as well.
  • I agree with Mr. Setright that the terms of the document of the Saudi Arabian court dated 12 April 2016 at bundle p.D12 themselves indicate a person under severe constraint. Although now aged 21, she undertakes not to challenge her father’s authority over all her affairs and not to leave the house without his permission. The father’s own evidence in para.15 of his statement dated 16 June 2016 is that if she were to run away, the police, far from offering her protection from her father, would put her in prison. The very recent events in this case, and the father’s refusal to comply with para.15 and to allow Amina even to have unrestricted confidential and secure access to her consul and her own solicitor, vividly illustrate and underline the degree of continuing control and constraint being exercised. Overarchingly, she is under constraint if, at the age of 21, she wishes to leave Saudi Arabia, whether to travel to Britain or anywhere else, and is being prevented by her father from doing so.
  • In all these ways, Amina is disabled from functioning as an independent adult, not merely just out of childhood at the age of 18, but already aged 21. Amina is a citizen of Saudi Arabia. These constraints may be acceptable and even the norm under the law and culture of Saudi Arabia. But she is also a British citizen, and under the law and culture of Britain they are not. They are, indeed, totally unacceptable, and do represent in the words of Munby J in Re SA “… some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do”. If Amina chooses voluntarily to remain in Saudi Arabia, of which she is a citizen, she must, of course, respect and adhere to the law and culture of that society. But the current constraint is denying to her the right to choose to be British and to live in Britain and to respect, adhere to and be regulated by the law and culture of British society. It is true that she is currently present and habitually resident in Saudi Arabia, but that results from her obedience to the will of her father in 2012. It is accepted that she did not travel there voluntarily and of her own free will.
  • In my view, the current circumstances are such that this British person does require protection, in the language of Lady Hale and Lord Toulson in Re B at para.60; and she is currently in a peril from which she requires to be “rescued”, in the language of Lord Sumption in that case at para.87. Nevertheless, I must exercise great caution and not be exorbitant. There are other factors which weigh in favour of exercising jurisdiction. They include that not only is she British, but she was born and brought up and educated in Britain until the age of almost 17. This is a very significant factor. I would take a very different view of this case if Amina had been born and lived her whole life in Saudi Arabia but happened to be British by descent. Her mother and several of her siblings currently still live in Britain and, although she may be estranged from them, their presence here still indicates the continuing connections between this family and Britain.
  • However, there are also powerful factors which militate against exercising jurisdiction. Her father is Saudi and Saudi alone. She herself has dual nationality. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws done at the Hague on 12 April 1930 provides at Article 4 that “a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses”. Britain is a signatory to that Convention, although Saudi Arabia is not. The view of the British Government, expressed in para.3.2 of its Home Office Nationality Instructions, is that:

 

“Commonly known as the ‘Master Nationality Rule’, the practical effect of this Article [viz Article 4] is that where a person is a national of, for example, two States (A and B), and is in the territory of State A, then State B has no right to claim that person as its national or to intervene on that person’s behalf …”

This may in part explain the position taken by the Foreign and Commonwealth Office in their letter of 14 December 2015 that “Amina is a dual national … there is little that we can do to assist her”. But I am being asked to make an order against the father personally. I am not being asked to “afford diplomatic protection” or in any way to act “against” the State of Saudi Arabia in the language of Article 4, and there is no question of my doing so. In any event, in Re A the child concerned had dual British and Pakistani nationality and that was not suggested by the judgment of Baroness Hale to represent an obstacle to the exercise of jurisdiction, save to the extent that dual nationality was one of the considerations which had been raised by Mr. Setright and referred to in para.64.

 

  • The fact that Amina is present and habitually resident in Saudi Arabia undoubtedly militates against the exercise of jurisdiction, but is tempered in this case by the circumstances in which she came to be there: her father’s insistence and command, from which she has since been unable to escape. In Re B at para.59 Lady Hale and Lord Toulson identified “three main reasons” for caution when deciding whether to exercise jurisdiction. First, that to do so may conflict with the jurisdictional scheme applicable between the countries in question. There is no jurisdictional scheme between Britain, or Wales and England and Saudi Arabia. Second, that it may result in conflicting decisions in the two countries. In view of the proceedings in Saudi Arabia in April 2016, this is, of course, a weighty consideration in the present case. As I understand it, however, the “decision” in the Saudi court in April was not so much a decision imposed by the court in the exercise of its own judgment; rather, it was that court expressing its approval of that which the parties themselves had agreed. Whilst Mr. Scott-Manderson argues that Amina’s more appropriate remedy is to make some application of her own to that court, her ability freely to gain access to that court may itself be limited by the constraints, and she certainly has no means with which to fund a lawyer. Further, I regret that I lack confidence that that court would permit and enforce against the father that she is able to return to Britain, since Saudi Arabia does not recognise dual nationality. The court might not, therefore, recognise what might be the fundamental basis of her application, namely her British nationality.
  • The third reason identified by Lady Hale and Lord Toulson is that it may result in unenforceable orders. In relation to that reason, they said on the facts of that case that “it is possible that there are steps which an English court could take to persuade the respondent to obey the order”, although, so far as I am aware, those steps were not further identified. Enforcement is undoubtedly a significant issue in the present case. Generally, courts do not make orders which they cannot effectively enforce, although almost daily judges of the Family Division do just that in relation to children who have been abducted to countries which are not parties to the Hague Convention on the civil aspects of international child abduction. I accept that there is little or nothing that this court could do to enforce against the father in Saudi Arabia any order which it may make if he was determined not to obey or comply with it. There are no conventions in operation between Wales and England, or Britain and Saudi Arabia. There is no reciprocity. The courts of Saudi Arabia would not even recognise the basis upon which I claim and assert jurisdiction, namely the British nationality of Amina, since the State of Saudi Arabia does not recognise dual nationality and, therefore, her British nationality.
  • The father has no assets here of which I am aware, unlike in the case of Re B (see para.21 of the judgment of Parker J at [2013] EWHC 3298 (Fam) at the remitted hearing), but that does not preclude the persuasive force of an order, particularly one made after a very full and thorough hearing in which, although not personally present, the father engaged and fully participated and was fully heard throughout. The situation that will pertain after this judgment is very different from the situation that pertained under the earlier orders, many of which were expressed to be “without prejudice to the issue of jurisdiction”. By this judgment the issue of jurisdiction has been resolved. Further, the father himself voluntarily chose to live for many years in Wales; to educate and to bring his children up here; and to subject himself to both the protection of, and the constraints of, the laws of Wales and England and the legal system of Wales and England. His wife, from whom he is not estranged, and several of his children continue to live here. He may later, if not sooner, wish or have reason to visit Wales or England again, but he could not safely do so if he remained in breach of a significant order of this court, for he would be liable to be punished (if still in breach) for his continuing contempt of court.
  • For all these reasons, I consider that, although the father may ultimately decide to defy any order I make, this court does have considerable moral and also practical “hold” over him. There is no reason why I should assume or suppose that he will not obey any proportionate order which I may make; and I consider that I should proceed on the assumption that he will obey it.
  • There is one further factor to which I should refer. In Re A at para.65(vi) Baroness Hale referred to the absence of any enquiry being made about how the children in that case were. In Re B at para.86 Lord Sumption referred, rather similarly, to an independent assessment of the situation of the child abroad and said “unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country”. This led Mr. Scott-Manderson to submit that, before making any stronger order, this court should first direct or request some similar assessment of Amina by some appropriate authority in Saudi Arabia. There is, however, the significant difference that Re B concerned a child aged seven by the time of the hearing in the Supreme Court who could not speak for herself. The present case concerns an adult aged 21 who (subject to the constraints) can and does.
  • Balancing all these considerations, I have come slowly and cautiously, but ultimately very firmly, to the conclusion that I should exercise the jurisdiction and should make such orders as I can to protect Amina. If citizenship means anything at all, it does include the right to seek help and protection and, weighing all those factors, I should not deny help and protection to Amina. To do nothing at all would, in my view, amount to a dereliction towards Amina and in effect just giving up on her.

 

What order?

 

  • The next and final question is what order I should actually make. There was much discussion during the hearing about my simply repeating an order in the terms of para.15, hoping that now that a full hearing has occurred the father would permit a private meeting to take place at the consulate. He has, however, persisted in his position that he will not do so unless the Foreign and Commonwealth Office give a prior written assurance that if Amina were to seek diplomatic protection or “sanctuary” in the consulate, the consulate would not give it to her, but would hand her over to the Saudi authorities of the Ministry of the Interior. I see little point or purpose in repeating a para.15 order. Its main purpose when made on 4 July was to enable instructions to be taken from Amina so that a detailed up to date statement could be prepared for her, and an effective fact finding hearing could take place. That having been thwarted by the father, I am not now willing to set up another projected fact finding hearing in inevitably several months’ time. There has been far too much delay already in proceedings which ultimately concern liberty and which were commenced now almost eight months ago last December.
  • There has also, incidentally, been far too much expense. I was told by Mr. Setright that the costs and disbursements of Amina, all funded by English legal aid, are already of the order of £50,000. The litigation has not yet cost the father personally anything, since his costs and disbursements are apparently all being funded by or through the Saudi Arabian Embassy, although he may be required later to repay them.
  • In my view, I should, rather, move directly now to an order against the father personally that he must permit and facilitate the return of Amina, if she so wishes, to Wales or England and pay the air fare. He must at once make freely available to her both her British and her Saudi Arabian passports. She needs the former to enable her freely to enter Britain. She needs the latter to enable her freely to re-enter Saudi Arabia if later she wishes to return there for any purpose. I will specify the date by which Amina must be enabled to return as Sunday 11 September 2016. That allows about five and a half weeks for the father to reflect on this judgment and to make orderly arrangements. I myself will be sitting again here at the Royal Courts of Justice from Monday 12 September 2016, and very shortly after that date this case must be listed again before me. If Amina is, indeed, here, she must attend and I will decide what further orders, if any, should be made. If she is not here, I will similarly decide what further orders should be made or action taken.
  • As I require Amina personally to attend, that hearing will, in the first instance, be listed in private so she is not initially burdened by the presence of the media. However, at or before the conclusion of the hearing I will in some way (by judgment or by a statement) inform the public and any interested representatives of the media the gist of what has occurred between now and then. I wish to make crystal clear that, apart from requiring her attendance before me at that hearing, if she has indeed voluntarily returned to Wales and England, I do not make any order whatsoever against Amina herself. The purpose is not to order her to do anything at all. Rather, it is to create conditions in which she, as an adult of full capacity, can exercise and implement her own independent free will and freedom of choice. To that end, I will give further consideration with counsel after this judgment to what mechanism can now be established to enable her freely to state, if that be her own free decision and choice, that she does not now wish to avail herself of the opportunity provided by my decision and this order to return to Wales or England.
  • I conclude this judgment by expressing my sincere thanks to Mr. Setright QC and his junior counsel Mr. Michael Gration, and to Mr. Scott-Manderson QC for their sustained and distinguished written and oral arguments in this case; and to the solicitors on both sides who instruct them.

 

 

Tape recording of an expert (a SHOCKING case)

Truly, absolutely shocking.

This was a set of care proceedings, transferred up to the High Court before Mr Justice Hayden. A  consultant clinical psychologist, Dr Ben Harper, was instructed by the Court to assess the mother. The mother unknown to him, tape recorded their sessions. After the report of Dr Harper arrived, containing words set out in quotation marks attributed to the mother that she says she did not say, those tape recordings were transcribed and showed that she was correct.

 

Re F (A Minor) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2149.html

 

Here are the findings that mother’s team invited the Court to make – you’ll see that they are very powerful  (perhaps even career-damaging stuff)

 

  1. Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:
    1. 1. Dr Harper has either misread or exaggerated the mother’s presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.

2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these ‘quotations’ by the mother to form his conclusions and recommendations.

3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.

4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.

5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.

6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.

7. Dr Harper inaccurately quotes other experts’ reports in a manner that presents a negative impression of the mother.

8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.

9. It is asserted that neither Dr Harper’s handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.

  1. As these findings were particularised it became clear that the allegations extended to: ‘false reporting’; ‘inaccurate quoting’ designed to present the Mother in a ‘negative light’; ‘fabrication of conversations’ and deliberate ‘misrepresentation’. In cross examination Ms Lee accused Dr Harper of ‘lying’.

 

 

Holy wow.

 

Dr Harper was invited to intervene in the proceedings, and was represented by Fenella Morris QC.

 

The Judge did not approach the matter on the basis of the schedule of findings drawn up  (that’s rather annoying for me, as it would have helped to look at such particularised findings, but that was a judicial decision)

 

  1. Whilst I am full of admiration for the industry which underpins the extensive schedule prepared by the Mother’s team and the equal energy expended in the detailed response document, I am bound to say that the two do not provide a user friendly framework to negotiate the contested issues. Partly for this reason but primarily because I consider it to be a distraction, I do not propose to address many of the minute allegations which, as I have indicated during the course of exchanges with counsel, are of varying cogency and forensic weight. What I propose to do is to analyse, in what I consider to be a proportionate manner, those allegations which it is necessary for me to determine in order properly to resolve the issues in the care proceedings. Thereafter I must consider a further important question: are the findings made out against Dr Harper sufficiently serious so as to render his evidence in these proceedings unreliable?

 

  1. Dr Harper’s report is dated 11th April 2016, it is 70 pages in length. At its conclusion it contains the following, now standard, declarations:
  2. i) ‘I have exercised reasonable care and skill in order to be accurate and complete in preparing this report’;

ii) ‘I understand that this report will form the evidence to be given under oath or affirmation’;

iii) ‘I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above’;

iv) ‘I confirm that I have acted in accordance with the Codes of Practice for Experts’.

  1. Finally, the ‘STATEMENT OF TRUTH’ appears at the very end of the report. Familiar though it is, it requires to be repeated here:
    1. “I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true”

 

Responding directly to the schedule of findings sought by mother’s team, Dr Harper said this

 

  1. Responding directly to the schedule Dr Harper makes this concession:
    1. 12. There are a number of occasions where I have referred to Mrs Mother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”

 

Yes, if I read a report from an expert that said

 

Mother said she was sorry for all the trouble she had caused

I would think that there was an apology along those lines but not that this represented a verbatim account but

 

Mother said “I’m sorry for all the trouble I’ve caused”

 

I would read as being, the expert is reporting the words that she used and is stating with confidence that she used those words.

So having remarks in quotation marks that mother did not actually say is a significant deficiency.

What did the Judge say about that?

  1. I have read this paragraph a number of times. It seems to me to do Dr Harper no credit at all. It is crafted in a way that seems designed to minimise the extent of the very significant failing it represents. When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such ‘quotations’ in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper’s experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of ‘a number of sentences’ is a complete distortion of the reality of the document. The report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus, the material supporting the ultimate conclusion appears much stronger than it actually is. Given the forensic experience of Dr Harper and his extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.
  2. In the course of the public law proceedings the Court authorised interviews between one of the children and Dr Harper. I very much regret to say that the purported quotations in that report i.e. presented as if they were the words of the child himself are also nothing of the kind. Dr Harper used the same approach there. They are in fact a jumble of phrases extracted from jottings and / or perceived recollection. Dr Harper voluntarily submitted his notes to scrutiny, they can properly be characterised as minimal. They prompted this submission on behalf of the children’s Guardian by Mr Cohen QC and Mr Edwards:
    1. “It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process.”

 

 

I am genuinely shocked by this. It undermines a lot of credibility of expert witnesses, if an expert attributes quotations to a parent and a child that they did not say, that were ‘impressions’ and that the note keeping was minimal.

 

As these ‘quotations’ were not present in the tape-recorded formal sessions, there was some consideration of whether they were instead conversations or discussions that took place at one meeting on 6th April, which appears to have been a contact session and two discussions on the way in and way out of the session

 

  1. Ms Lee and Ms Weir pitch the findings they seek very highly indeed, they are of the utmost gravity. It is for this reason that I required counsel to be very clear about the legal framework. Ms Lee has, in the proper presentation of her case, repeatedly impugned Dr Harper’s integrity and honesty during the course of her cross examination. It is alleged that he has fabricated the fact of the discussions between himself and the Mother and, says Ms Lee, where there is no written note of any topic of discussion it has been, in effect, invented by Dr Harper. There is no ambivalence in the way Ms Lee advances her case. In her closing written submission she asserts:
    1. “For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper’s account of the ‘discussions’ that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon.”
  2. Given that the earlier meetings were recorded and transcribed it must follow that the purported quotations from the Mother not covered on those sessions must therefore have taken place at the meeting at the contact centre on the 6th April 2016. This inevitably therefore has been the focus of the dispute at this hearing. The first conflict of evidence is as to the length of the meeting. There were in fact two meetings, one before the children arrived for an observed contact session and a second later encounter in the car park at the conclusion of the session.
  3. The 6th April was a day on which plans went awry. The Mother had been led to believe that her meeting with Dr Harper was to provide her with advice on how best to manage the eldest child’s challenging behaviour. On Dr Harper’s account he had decided to change the agenda and look at what he has referred to as ‘the inconsistencies of the Mother’s various narrative accounts’. He had, to my mind, settled on the view, for reasons that I will come to below, that this was the key issue in this case. The undoubtedly discrepant histories of her own childhood and relationships recorded from the Mother are, as Ms Morris QC (on behalf of Dr Harper) describes them, ‘polar opposites’ and ‘at a 180 degrees to each other’. Essentially, there is both a light and benign version of these issues alongside a dark and abusive account. In any event what is clear is that the Mother finds discussion of both these areas to be highly unsettling and distressing. That she would do so was anticipated by Dr Harper but nonetheless so important was this issue to him that he forced it through in circumstances which were, in my judgement, insensitive to the Mother. Of course it follows from this comment that I have accepted his account of the 6th April, at least in part. In fairness I should record that Dr Harper offered the Mother a further appointment which she did not take up.
  4. In addition, building work was being undertaken at the contact centre and it was necessary to shorten the contact. This had not been communicated to the Mother, Dr Harper or I assume the children either. The conditions both in which to observe contact and to undertake important features of the assessment of the Mother were inimical to constructive and fair assessment. I am satisfied that the Mother was understandably upset and that Dr Harper’s account of her as agitated is an honest expression of his perception.
  5. The second meeting in the car park was cursory and ended peremptorily in the rain. The first meeting was, on either party’s view no longer than 15 minutes. It is not necessary for me to resolve the conflict as to the duration of the meeting, there is very little between the Mother’s recollection and Dr Harper’s. What is significant is that in this period Dr Harper contends that he dealt with somewhere between 13 and approximately 20 significant points of assessment.

 

 

[That does not sound terribly plausible]

 

  1. From his notes of assessment it is clear that some of the issues were discussed. The notes are silent on other issues. In his analysis Mr Cohen submits that Dr Harper ‘has produced no satisfactory explanation of the inconsistencies nor is his credit enhanced by what seems to us to be an unwillingness to recognise the effect of his wrongdoing’. This leads Mr Cohen further to submit:
    1. “We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so.
  2. Ms Morris vigorously resists this approach, she contends that the burden of proof rests on the applicant and does not shift. I agree. Certainly Dr Harper’s admissions require him to explain his admitted misconduct but they do not cast upon him some additional burden of proving the accuracy of his notes of what he contends the Mother said to him in interview.
  3. I do not propose further to burden this judgment with a list of the various topics which Dr Harper contends were discussed on the 6th April. In response to Mr Cohen Dr Harper accepted that there were 13 topics. I simply fail to see how this range of challenging and difficult material could have been covered to the extent that Dr Harper purports in such a limited time. It would have involved rapid fire question and answer on each topic. Given the circumstances and the nature of the material, such a process would have also required a degree of brutality or at least gross insensitivity. The subject matters ranged across e.g. domestic abuse, childhood experiences, sexual issues. Having listened to Dr Harper in the witness box he does not strike me for a moment as a man capable of such crassness. His work has been widely respected. I do consider that there was an enthusiastic effort by him to cover some of the material that day. I entirely accept his evidence that his notes are genuine and not fabricated, as Ms Lee contends, but I find on the balance of probabilities that some, though not necessarily all, of the material which is not corroborated by the notes was most likely drawn from other sources and incorporated into the report again as if it were direct speech from the Mother to Dr Harper.

 

 

The Judge’s overall impression and his decision about whether Dr Harper’s report could be relied upon in the care proceedings :-

 

  1. The overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness. It simply cannot be reconciled with those duties which I have pointedly set out above at para 10 and 11. Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Ipso facto this is a case of unique gravity and importance. Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper’s professional failure here compromised the fairness of the process for both Mother and children. These are fundamental principles emphasised in Re B-S [2013] EWCA Civ 1146 and Re A [2015] EWFC 11.
  2. Mr Rowley, on behalf of the Local Authority, submits that Dr Harper’s central thesis is probably correct. He summarises it succinctly thus:
    1. “Dr Harper’s concern about the mother’s inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk.”
  3. Mr Rowley may very well be right. He goes on to suggest that notwithstanding the significant criticisms made of Dr Harper, his report should be allowed to stand, with the Judge who hears the case entitled to give it such weight, if any, as he thinks fit. I disagree. These are such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions. Furthermore, there is an inevitable risk that were I not to order that a new expert be instructed the Judge might at the conclusion of the hearing find a lacuna in the evidence in consequence of his being unable to rely on Dr Harper’s opinion. That would result in further delay for the children in a case where I have been told the final hearing is now unlikely to be effective in any event. The delay in this case in already unacceptable, the harm caused to the children because of it is the responsibility of the professionals not, I emphasise, the Mother.
  4. I should say that my conclusions here are predicated substantially on my evaluation of Dr Harper’s evidence and the available written material. I have found myself unable to place a great deal of weight on the Mother’s own evidence even where my findings are essentially in her favour. I agree with Ms Morris, who advances the point sensitively and elegantly, when she says that the issue in the Mother’s evidence is ‘reliability’ not ‘credibility’. Her reliability is sadly compromised by her inconsistent accounts which may well be, as Dr Harper has postulated, a facet of her psychological distress. I have in mind Re H-C ( Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720.
  5. Finally, there has been much discussion at the Bar as to how I should characterise Dr Harper’s professional failings. Ultimately I have come to the conclusion that the language or nomenclature is irrelevant. What matters is the substance of my findings and their impact on these children.
  6. Ms Lee is right to emphasise the observations of Butler-Sloss (P) in Re U: Re B (serious injury;standard of proof) [2004] 2 FLR 263 at para 23iv:
    1. “The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice”
  7. I do not consider that Dr Harper has developed a scientific prejudice nor that he is jealous to guard his amour-propre but I do consider that his disregard for the conventional principles of professional method and analysis displays a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.

 

 

[I’m not sure why the Courts have felt that amour-propre is an expression in common use, but basically ‘reputation’ would do the trick just as well – the self-esteem that comes from the opinion of others]

 

It is a bitterly ironic twist that part of the disputed attributed quotations were Dr Harper stating that the mother had been critical of other (past) experts, calling them liars.

 

This concept of an expert taking an impression but then attributing quotations to the mother that she did not say and that the notes could have given no indication of her having said is a truly shocking one.  As the Judge says, doing this gives the conclusions and recommendations of the report far more weight as it seems to come directly from mother, she condemning herself out of her own mouth, rather than the expert stating that he had the impression  (which of course can be cross-examined as to the forensic basis of this)

Let us be honest – if the mother simply asserted that she had not said this, and had not tape-recorded the sessions, who would have been believed? We have to be able to trust experts – they may genuinely form the wrong opinion, and may be shifted in cross-examination, but there has to be trust that if a report says  Mother said “X Y Z” that she actually said those things.  Future of children is at stake here.  We must demand higher standards from experts than we would of political journalists, surely.

 

(I’m reminded a little of the Overegging the Pudding case  https://suesspiciousminds.com/2014/11/28/over-egging-the-pudding/    though of course this goes still further, from cherry-picking only the negatives to flat out creation of quotations that the mother did not in fact say)

 

It is also an interesting comparison, given that both were Hayden J to the criticism he made of the ISW in the radicalisation case (which were about competence rather than integrity) and the fairer process here where the expert had the opportunity to be represented and respond to the criticisms – in both cases they could have a serious impact on livelihood of the experts, for whom reputation is a vital component in them obtaining future instructions.

Law for social workers (part 2)

Ah admit it, you skipped straight here, didn’t you?  In which case, you missed a lot of cool stuff about lizards, that’s for sure.

 

In this part, I’ll tell you the key tests and principles from the Acts and case law, for each sort of order.  I will keep this up to date if the law changes, and it will be up on the front page on a tab.

 

Let’s start with the thing that is changing more dramatically than anything else at the moment, and it ISN’T an order.

 

Section 20 accommodation

 

Section 20 is the voluntary agreement of a parent for the child to come into foster care.  For almost 22 years of the Children Act 1989 it was completely ignored by the Court and barely got a mention. Then all hell broke loose.

It started with a decision by Mr Justice Hedley, where a mother was asked to agree section 20 consent immediately after a C-section. She also had learning difficulties and was basically scared into signing it by threats that if she didn’t, the social worker would go to Court and get an EPO.

From that case, which you can read about here,

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

the following principles were derived.  These are REALLY important for all social workers to know. I would seriously recommend having them on a piece of paper that you have on your person when doing any visit – because if the issue of section 20 comes up, it is on YOUR shoulders to evidence that you knew about all of this and took it all into account – the records are going to need to show all of it.

 

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

At the moment, Human Rights Act damages are being paid out by Councils not just for misuse of section 20 to get a child INTO care, but delaying too long in making decisions about a child’s future once they are IN care – an issue called section 20 drift.

 

The law has developed still further, with the Court of Appeal in Re N suggesting that section 20 agreements should always be in writing and that it is not sufficient for a Local Authority to rely on an absence of objection.  Also that if a parent withdraws their consent, the LA have to either get an immediate Court order (very very hard at present due to Court access) or return the child. I’d suggest that Re N is a major factor in the volume of care proceedings going up 20% this year, and it is going to keep going up.

Re N is here http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html  (don’t read it, because 98% of it is unintelligible stuff about international law, but if you MUST, skip straight to para 157

 

Be REALLY aware that going to a maternity ward to ask for s20 consent with a police officer there as back up is liable to make the s20 consent invalid as made under duress

  1. Surrey County Council –v- M, F & E [2012] EWHC [2400] a decision of Mrs. Justice Theis and at paragraph 60 she said this:-

“To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order.”

 

And that leads us nicely into

 

Police Protection

 

 

First things first-  EVERYONE calls these PPOs  (because they sort of sit beside Emergency Protection Orders EPOs) but there’s no O. There is no Order. This is the police exercising their power to remove a child

http://www.legislation.gov.uk/ukpga/1989/41/section/46

 

46 Removal and accommodation of children by police in cases of emergency.

(1)Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—

(a)remove the child to suitable accommodation and keep him there; or

(b)take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.

 

And you can see from the statute that the test for this is pretty low. It is an administrative decision taken by a police officer at the time, on the scene.  There’s no filing of evidence, no legal argument, no representation of a parent, no voice of the child, and no Judge weighing things up

It is for that reason that the Court’s don’t like them and have made it clear that “Wherever possible, a decision to remove a child from a parent should be made by a Court not as an administrative decision”.   Police Protection should be reserved for situations where the risk can’t even be managed long enough to go to Court and seek an EPO. That’s a LOT rarer than their actual use.

Be warned, if a Court scrutinises use of Police Protection and thinks that the LA were involved and used it as a short cut or an easy way to get the child into foster care without having to go to Court, damages can and will be made.

 

Misuse of police protection – human rights claim

“Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court.”

 

The lead case is Langley v Liverpool 2005, so these issues are not exactly new.  The Home Office Guidance above makes it really clear that s46 is an emergency power only, not to be used if the Court can make a decision instead.

 

Emergency Protection Order

 

The bare statute just says this:-

44 Orders for emergency protection of children.

(1)Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a)there is reasonable cause to believe that the child is likely to suffer significant harm if—

(i)he is not removed to accommodation provided by or on behalf of the applicant; or

(ii)he does not remain in the place in which he is then being accommodated;

 

[It is quite often overlooked that actually ANY person can apply for an EPO – unlike care orders, where only the LA or NSPCC can apply. In 25 years, I’ve only seen a parent apply once for an EPO, but it can happen]

The Courts set a much higher test for EPOs than the Act does.

The lead case is Re X and B Council 2004

 

http://www.bailii.org/ew/cases/EWHC/Fam/2004/2015.html

There are 14 points in there which the High Court say MUST be drawn to the attention of a Court considering an EPO application – the case law has to be produced and the Court referred to these 14 points when making the application.

Critically for social workers

An EPO, summarily removing a child from his parents, is a “draconian” and “extremely harsh” measure, requiring “exceptional justification” and “extraordinarily compelling reasons”. Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child’s safety; “imminent danger” must be “actually established”.

 

If your statement or evidence in relation to an EPO does not ‘actually establish’  ‘imminent danger’ then you can’t have your order.

and

 

The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.

 

It is probably the HARDEST order to obtain, and many would argue rightly so. The test set down by the High Court in re X and B, compared to what the Act says is the difference between a limbo bar and a pole vault.

 

Removal under an Interim Care Order

 

Again, the bare statute doesn’t say much

 

38 Interim orders.

(1)Where—

(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

(b)the court gives a direction under section 37(1),

the court may make an interim care order or an interim supervision order with respect to the child concerned.

(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).

 

The Courts though have set a higher test for removal under an Interim Care Order, and THAT is the test that social workers must address in their written and oral evidence

 

 

“that separation is only to be ordered if the child’s safety demands immediate separation.”

It may do no harm to invite particular attention to Wall LJ’s definition of “safety” in this passage in Re B and KB. The concept of a child’s safety, as referred to in the authorities which I have cited, is not confined to his or her physical safety and includes also his or her emotional safety or, as Wall LJ put it, psychological welfare. Indeed, it may be helpful to remember that the paramount consideration in the court’s decision as to whether to grant an interim care order is the child’s welfare, as section 1 Children Act 1989 requires, and as Wall LJ shows when he says that in his view “KB’s welfare did demand her immediate removal from her parents’ care”.

 

Re GR and Others (Children) 2010

http://www.bailii.org/ew/cases/EWCA/Civ/2010/871.html

 

I was going to squeeze adoption into this part, but it has already been pretty long, and my Chinese food has arrived, so I’ll clean up adoption over the weekend.

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

Law for social workers (Part 1)

This piece is aimed at social workers, but it isn’t exclusively for them. Basically, the law has moved very fast in care proceedings since I started writing this blog, and on Twitter yesterday there was a conversation about there not being an easy place for social workers to find out what they now need to know.  So the idea here is two short(ish) pieces that tell you all of the important legal principles and then in part 2, what the specific tests are for each sort of order.

 

None of this is intended to be a substitute for getting legal advice from your own lawyer, it is just a guide to what sort of things the Court is looking for, and what tests they are applying. If you’re very confident about the basics, you can skip to Part 2  (though not immediately, because I am still writing it!)

 

The Acts

 

We all know, I think, that there are two main pieces of legislation involved in care proceedings.

 

The Children Act 1989

http://www.legislation.gov.uk/ukpga/1989/41/contents

 

and The Adoption and Children Act 2002

http://www.legislation.gov.uk/ukpga/2002/38/contents

 

There are a few others that come up occasionally – the Mental Capacity Act 2005,  the Care Act 2015, the Children and Families Act 2014 and various mental health Acts, Housing Acts, if you’re really really unlucky Education Acts.  And of course, the Human Rights Act 1998 permeates everything. In terms of the Human Rights  Act – the big bits that you need to know is that a social worker, as part of the State, owes parents duties under the Human Rights Act – they owe parents an article 6 right to fair trial (which is not limited just to Court, but involves fairness in all decisions) and interference by the State with parents Article 8 rights to private and family life, which can only be done where it is PROPORTIONATE and NECESSARY.

 

Key principles of the Acts

 

  1.  The Child’s Welfare is the Court’s paramount consideration when making any decision – it won’t be the only consideration, but it is the main one.
  2. The Court can only make an order if satisfied that doing so is better for the CHILD than making no order  (the ‘no order principle’)
  3. Any delay is harmful to the child, and has to be justified (the ‘no delay principle’)
  4. The Court should try to make the least serious of the orders available to it, if that will meet the child’s needs  (‘the least interventionist principle’)
  5. There’s a set of guidance of the main issues for the Court to consider when making decisions about children – the Welfare Checklist. Parliament has given us that as a valuable toolkit to reach the right decisions, and you stand the best chance of making the right decisions if you use it.

 

And from Human Rights, the key principles are :-

FAIRNESS  – in all decisions, strive to be fair – take things into account, even when they don’t fit with your hypothesis or initial thoughts, listen to what parents have to say, be honest about what you are seeing, recognise change when it is happening, be willing to consider that you might be wrong. Try to approach the task of working with a family in the way that you would hope someone would work with you if the roles were reversed. Recognise that for a parent, the State can be a scary and powerful force – you might not feel powerful yourself, but be alive to the possibility that that is the way the State can come across. Imagine someone coming into YOUR home, looking in YOUR cupboards, criticising YOUR relationship. It might need to be done, but be aware that it doesn’t feel nice to be on the receiving end.

NECESSITY – is it NECESSARY to do X or Y?  Not just is it helpful or useful or desirable, but did it NEED to be done? And even if it NEEDED to be done, did it NEED to be done in that particular way?

PROPORTIONALITY – looking at what you’re worried about and what you want to do about it, and thinking hard about whether what you want to do is proportionate to the worries that you have.

All of those principles really boil down to being a REASONABLE person – if you are reasonable, and try to do the job in a REASONABLE way, the Court’s are more likely to be receptive to what you’re saying and you are going to be less exposed in the witness box than someone who goes around like a bull in a china shop.

 

The threshold criteria

 

In order for the Court to make an Emergency Protection Order, or a Care Order or Supervision Order, or Interim Care Orders or Interim Supervision Orders, they need to be satisfied that the threshold criteria is met. If there’s no threshold criteria, the Court CANNOT make the order.

The burden of proof (who has to prove it) is on the Local Authority. It is for the Local Authority to PROVE that the child has suffered significant harm, or is at risk of such harm, NOT for the parent to prove that the child isn’t.

The standard of proof (how sure does the Court need to be) is the BALANCE OF PROBABILITIES.  If a Court thinks that something is MORE LIKELY THAN NOT to have happened (in percentage terms 50.000001% or higher) then that is sufficient.  If a Court thinks that the LA has NOT proved that, even if there’s a 49.99999999% chance of it having happened, then in law it did NOT happen. When it comes to factual issues, the law is binary – if it is MORE LIKELY THAN NOT to have happened, then it happened, if not, it DIDN’T.  And if it is exactly 50-50 (which doesn’t happen often, but it HAS happened) then the burden of proof means that the LA failed to prove it was more likely than not, so it DIDN’T happen.

The threshold criteria itself

 

s31 (2)A court may only make a care order or supervision order if it is satisfied—

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

The likely to suffer has been quite tricky to resolve over the years – basically, if you’re going to say that a child is LIKELY to suffer significant harm, you need to :-

 

(a) Prove some facts

(b) Prove that those facts mean that there is a risk of significant harm

(c) Prove that it is MORE LIKELY THAN NOT that the risks involved ‘cannot sensibly be ignored’

 

So you don’t HAVE to show that the risk is MORE LIKELY THAN NOT to materialise.  Sometimes, if the level of the possible risk would be very serious, there can be a lesser chance of it happening as long as there is a FACTUAL basis for saying that the risk exists and it cannot be ignored.

 

Case law

The Acts themselves only give you so much – most of the legal arguments are about how to intepret those Acts – what precisely does such and such a word mean, what has to be taken into account when deciding whether such and such applies. Rather than different Courts across the country having the same arguments over and over and coming to different decisions in different places, when an important point of principle is decided  (for example – WHEN does the threshold criteria have to be satisfied? When proceedings were issued? When they finish? What if the child was in foster care for 2 months before issue – the child wasn’t at any risk in that placement…)  a senior Court – the High Court, the Court of Appeal, the Supreme Court decides a case that deals with that point, and that’s the answer from then on  (in this example, threshold has to be satisfied when the Local Authority ‘took protective measures’  – that could be by issuing, or it could be by a section 20 placement or written agreement)

The next time THAT issue comes up, the Court is able to say ‘well, that’s been decided now, there’s a PRECEDENT for it, and we’ll follow that’.   The Children Act has been around for over 25 years and you would think that all of these technical and interpretation questions would have been sorted out years ago now, but they still keep coming, and occasionally the interpretations change or shift a bit.

For basically ALL of the things that a social worker might want to do, or ask the Court for, knowing what the Act itself says is just the tip of the iceberg. The really important information, and the wording that you are working to is set out in case law.  And as I said, it changes.

 

Part 2 is going to tell you what the current case law says about the various tests – and I’ll keep this up to date when it changes. The law is moving quickly at the moment, particularly in relation to adoption.

 

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

 

Absconding and secure accommodation

This Court of Appeal decision hasn’t come up on Bailii yet, and I’m grateful to Graham Cole from Luton’s LA legal team for alerting me to it.

 

RE W (A CHILD) (2016)

 

[2016] EWCA Civ 804

 

A lawtel link is here, but that’s only good if you have access codes to it. Will keep an eye out for it on Bailii.

 

https://www.lawtel.com/MyLawtel/Documents/AC0151488

 

It relates to an application for a Secure Accommodation Order for a girl who was 17 years and 8 months old.  There’s a common misconception that you can’t have a Secure Accommodation Order on a child over 17  (in fact, what the Secure Accommodation Regs prohibit is secure accommodation for a child accommodated under s20 (5) of the Children Act 1989.

 

Secure Accommodation Regulations 1991

Children to whom section 25 of the Act shall not apply

5. –

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983(1) or in respect of whom an order has been made under section 53 of the Children and Young Persons Act 1933(2) (punishment of certain grave crimes).

(2) Section 25 of the Act shall not apply to a child–

(a)to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

 

So a 17 year old accommodated because of a Care Order, or under s20(3) is okay.

However, when you look at the definitions of s20(3) and s20(5) side by side

 

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

 

and

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

Then you can see that determining which one was used for any given young person is tricky, as there’s a waffer-thin mint between them, AND it all hinges on what was in the LA mind at the time of accommodation and whether they correctly alloted the young person to the (reasonable and proportionate) type of accommodation.   IF the accommodation is to stop their welfare being seriously prejudiced, then they can securely accommodate. If the accommodation was just to safeguard or promote welfare, they can’t.

 

Initially, I thought “Well, any s20 where the concerns are sufficient to want to go for secure, will trigger s20(3)”  but remember, one is looking at the reason for the provision of accommodation in the first place, not necessarily immediately before the secure accommodation application. If a young person leaves home and is accommodated under s20(5)  to prevent them having to sofa surf or be homeless, then when there’s a later deterioration in behaviour that triggers the secure criteria, the option wouldn’t be open to the LA.   Can the LA discharge the s20(5) and immediately convert it to s20(3) ?  That sounds a bit iffy to me.  (My legal summary of ‘a bit iffy’ is not necessarily the way I would express it in the Court of Appeal. Let us instead say “has the hallmarks of an abuse of process)

 

Be grateful I went for THIS image rather than the many others available

Be grateful I went for THIS image rather than the many others available

 

What has always been a bit dubious/uncertain, if you don’t have a Care Order on the 17 year old, is the power of the LA to accommodate a young person against their will, and specifically by then locking them up, if accommodated under s20(3) and a Secure Accommodation Order is obtained.

The statute doesn’t say anything about a young person’s capacity to discharge THEMSELVES from s20 accommodation. It says specifically that a parent has the right to discharge them by objecting or removing, and it says specifically that post 16 a parent can’t do that if the young person wants to remain in s20. But it says nothing about a young person saying “I don’t want to be here, I’m checking out.”

Well, maybe you can check out any time you want, but you can never leave….

 

W’s lawyers were saying that W DID NOT consent to being accommodated under s20(3), and thus could not be accommodated, and if she wasn’t accommodated, she couldn’t be SECURELY ACCOMMODATED.

The LA lawyers said, the statute doesn’t say that W has to consent.   (It doesn’t say that the parents have to consent either, but that particular ship has sailed with the caselaw on s20 over the last year)

The Court of Appeal on this point said  (and curse it not being on Bailii, because I’m having to TYPE this rather than cut and paste it as normal)

 

“A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a Local Authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child’s consent is not a pre-requisite of the making of a secure accommodation order”

They also indicate that for secure based on s20(3), the parents have to be consenting to the s20 accommodation  (the s20(11) provision that a 16 year old can block parents removing them from s20 if they want to stay there doesn’t apply, because it is not removal but entry that is up for debate)

The Court of Appeal also had to look at whether the secure accommodation criteria were met, and there’s a novel argument there.  W’s lawyers argued that W was not ‘absconding’ from placements. She was absenting herself and then returning, whereas absconding carries the connotation of ‘escape’  and this was developed into ‘escape’ has a connotation of an intent to be absent indefinitely.

 

Now, that’s very very important. An awful lot of the ‘absconding’ that you see in application for Secure Accommodation Orders is a young person going missing for a few days and coming back of their own free will – and them putting themselves in danger in the interim. You do see some absconding which fits the classic ‘escape with intent to avoid recapture’ where the child is missing for weeks or even months and generally gets picked up by the police not entirely voluntarily, but those are rarer.   The very modern post Rochdale phenomenon of Child Sexual Exploitation leading to secure is very much a young girl not returning to placement after school and staying away for a few days (with abusive and exploitative men) and then returning home.  This case is raising the important issue of whether that actually IS absconding.  If it ISN’T, then the first of the two possible limbs to satisfy the Secure Criteria is not made out.

 

25 Use of accomodation for restricting liberty.

(1)Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—

(a)that—

(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii)if he absconds, he is likely to suffer significant harm; or

(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

 

So if the Court of Appeal rule that ‘absconding’ for s25 means some intent to escape with intent to stay away, then ground (a) can’t be made out for a lot of young people in Secure, because although they are AWOL a lot, and missing a lot, they are coming back and intended to, rather than had the intent to ‘escape’.   Ground (b) might still apply, but most Secures are dealt with on ground (a).

 

This could be very big.

What did the Court of Appeal decide?

 

21. Miss Judd QC’s arguments in relation to the Judge’s definition of ‘absconding’ arose in the fact-specific circumstances of the case and did not persuade us that it was necessary to define the term beyond its everyday meaning.

 

[That noise you just heard was 500 LA lawyers breathing out. Don’t jump the gun – the Court of Appeal might SAY that they don’t think it’s necessary, but they are probably still about to do it anyway]

 

Munby J (as he then was)

 

[500 LA lawyers just said ‘oh god, no’]

 

in Re G (Secure Accommodation Order) 2001 FLR 884 at 895 relied on the definition of ‘abscond’ found in the Concise Oxford English Dictionary. This accords with the usual application of the term to connote the element of ‘escape’ from an imposed regime.  Mr Tyler QC’s reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps borne of the need to support his argument that Keehan J’s approach to the issue was correct.  Although trite to say, the facts will speak for themselves.  As it is, we are satisfied, as we indicate below, that the Judge wrongly categorised W’s absences from the Unit in which she had been placed since January 2016 as absconding.

 

This particular girl had NOT absconded.

 

We don’t have Keehan J’s judgment to look at the facts, but the Court of Appeal say at para 7 that she has from a variety of placements and units, absented herself at all hours to pursue her own ends and has not followed the rules in any of the placements, when absent she has been with risky adult males and come back with sums of money. It looks, therefore like the sort of CSE case I discussed earlier.  Lots of short-lived absences without leave, which the Court of Appeal concluded did not amount to absconding.

Eep.

22 . In determining that W had absconded, Keehan J invoked the facts that W had ‘disengaged’ with the Unit, returning “not just a few hours later but well into the following day”.  I do not consider that this meant that W was ‘absconding’ from the Unit, in terms of  escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.

 

The Court of Appeal went on to say that in W’s case, they considered that the second criteria (b) was made out in any event and thus a Secure Accommodation Order could legitimately be made.

 

But the first criteria is now in tatters for a lot of cases  –  the Court of Appeal are looking for evidence that the young person ‘escaped indefinitely from an imposed regime’   rather than ‘deliberately absenting themselves for  limited period in breach of rules.  Obviously, the shorter the period of absence the harder it will be to prove that the young person ‘escaped indefinitely’, particularly if they return of their own volition.  Ground (b) will be the criteria to inspect chronologies for in the future – the absconding ground just became very tough to prove in 80% of cases.

 

 

If you enjoyed this piece, or like the blog generally – my novel which is set in a Children’s Secure Accommodation centre, is available to pre-order and should be out around Christmas time.  I’d LOVE your support, which you can provide by pre-ordering here

 

https://unbound.com/books/in-secure

 

Re W – no presumption for a child to be brought up by a member of the natural family

 

This was a Court of Appeal case decided today.  It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.

 

Re W (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/793.html

 

The facts

A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made.  A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.

In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.

They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them.  [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]

The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.

 

A powerful comment

 

This is not legally significant, but it was very punchy and wise, from Jackson LJ

 

 

  • As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

 

i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or

ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?

 

  • If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
  • I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
  • I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
  • The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

 

Powerful stuff.  I hope that heed is taken of it.

 

Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much.  So HOORAY for this

 

 

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

 

Issues for the appeal

 

 

  • This appeal raises the following issues which may be of general importance:

 

a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’   (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled  “WORMS, Do not open”

Because they can can can

Because they can can can

The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?

All of them had approached the case in this way :-

A) This is an adoption application

B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job

C) There is nothing to rule them out as a carer for A

D) To make the adoption order, the Court must be satisfied that “nothing else will do”

E) Unless the risks of moving A are too great, she should be moved

I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters.  And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible.  (That’s exactly the way that Bodey J –  one of the smartest men I’ve ever been in a room with – looked at it as well)

The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals.    [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one.  If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]

So these are the critical passages. They need a LOT of careful reading

“Nothing else will do”

  • Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

  • Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Natural family presumption/right

  • With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
  • The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.

[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test.  My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]

  • In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
  • It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
  • The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
  • As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

The problem with that formulation, of course, is that ‘necessary’  in the context of Adoption, means  “nothing else will do”  or to put it fully from Re B  “We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.  ”      .    It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption.  If there’s not that overriding requirement, the child would be with the birth family.

One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order.   Para 74  iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

 

After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.

 

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales.

 

At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or  presumption)  – but all things being equal, the scales will tip that way.  However, AFTER a Placement Order has been made and the child is placed with prospective adopters

 

Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

So in a post placement case, the issue becomes that of welfare of the child  with both sides to be weighed in the balance.  (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. ..   Possibly the last sentence  of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible.  Man, that’s a LOT of weight to carry.)

 

 

The Court of Appeal also looked at the article 8 issues

 

 

  • The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
  • If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

 

[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]

 

 

So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.

 

And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?

The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.

 

What's in the box, Jokey? What's IN THE BOX?

What’s in the box, Jokey? What’s IN THE BOX?