Category Archives: case law

Leave to oppose adoption test – the new test

Posted on May 2, 2023 by suesspiciousminds

The last time the Court of Appeal really grappled with the test on leave to oppose adoption it was Re BS 2013, which some of you may, just may, have heard of.

So it was with some trepidation that I read this case

M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404 (18 April 2023)

https://www.bailii.org/ew/cases/EWCA/Civ/2023/404.html

A few big things arising from it :-

Firstly that the Court of Appeal say that in all cases where a Placement Order or Care Order is made, the Local Authority should obtain at its own expense a transcript of judgment and share with the parties. There is no analysis in this paragraph as to why, given the importance of the transcript to all, that the costs should not be shared between the LA and legal aid agency. I don’t know if this was the subject of argument, but it obviously places a substantial additional expense on LA budgets – luckily at a time when the Government coffers are very much overflowing and they are desperate to get all of that surplus money out to Local Authorities, whose biggest problem with that are building extensions to the Scrooge McDuck-esque swimming pool of gold coins that are presently too small.

Transcripts of judgment in placement order proceedings

A decision to approve adoption as a child’s care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices’ reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.
Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.

Anyway, that’s done now – get transcripts in all cases with placement orders or care orders (though you may remember that the transparency guidance was that that Judges should publish all such judgments on bailii – and that seems to be a custom honoured in the breach more than the observance and would have rendered this moot)

Second is the refined test

I would therefore state the essential questions for the court when it decides an application for leave to oppose the making of an adoption order in this way:

  1. Has there been a change in circumstances since the placement order was made?
  2. If so, taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

More detail on the two limbs later

Third is the continuing judicial equivalent of a Wikipedia edit war, where the Court of Appeal give a decision, Mostyn J then gives a decision ‘correcting it’ and the Court of Appeal then overturn the Mostyn J decision though not on an appeal of that case but just the next time a case comes up that refers to it. (see earlier post today)

In this case, it is the decision by Mostyn J that a ‘change of circumstances’ has to mean something that wasn’t present or foreseen/foreseeable at the time.

I also reject the suggestion that the change must be unexpected or unforeseen. This proposition was advanced in obiter dicta in the decisions in Prospective Adopters v SA [2015] EWHC 327 (Fam) at [16-19] and in Prospective Adopters v London Borough of Tower Hamlets [2020] EWFC 26 at [5]. In the earlier case, Mostyn J stated:
“Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.”
While in the later case he added:
“Obviously, changes that were clearly either foreseen or which were foreseeable at the time of the original order cannot qualify. Otherwise, the provision would be just another variation power.”
This approach finds no support in Re P, something that Mostyn J addressed in Re SA at [28]:
“Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order.”
There are several reasons for rejecting this approach:
(1) The language of the sub-section is simple and there is no reason to gloss it.
(2) In Re SA at [14] Mostyn J said that he intended to look at the provisions from first principles, but there was no occasion for him to do that. The issue of whether change must be unexpected, unforeseen or unforeseeable (and the concepts are not the same) did not arise in Re SA or in Tower Hamlets. The law had been recently and authoritatively stated in this court’s decisions in Re P and in Re B-S.
(3) The proposition was inspired by an analysis of statutory provisions relating to the court’s power to vary maintenance agreements: Re SA at [17-19]. Those provisions are irrelevant to legislation about the adoption of children. They concern changes of circumstance that occur following bargains made between the parties. The Act concerns placement orders imposed by the court for reasons of child welfare. The proper approach to construction will in each case be conditioned by the very different statutory purposes of these unrelated pieces of legislation.
(4) In the absence of a relevant contrary indication, the only conclusion that can reliably be drawn from the fact that a statute does not say whether a change of circumstances is foreseen or unforeseen is that it can be either. There is also a false logic to the argument that, because Parliament has amended one statute to provide that a change of circumstances may include a foreseen change of circumstances, every statute that does not do the same must mean the opposite.
(5) In the context of the Act, there is no reason whatever to raise the bar by burdening parents with the additional obligation of showing that the changes they rely upon were unexpected or, put another way, to deprive them of the opportunity to rely on changes that were foreseen or foreseeable. As Lord Justice Holroyde observed during argument, that would be very unfair. Expectations are not binary, foresight cannot be calibrated, and there may be a number of future possibilities of varying degrees of likelihood. For example, a parent may say at the placement order hearing that he will achieve sobriety or become drug-free, but the court may not be convinced. If, by the time of the adoption proceedings, he is sober, that cannot sensibly be regarded either as unexpected, unforeseen or unforeseeable simply because it was uncertain or because the alternative was more likely. Why should he be worse off for having achieved something the court foresaw as possible but did not consider probable?
(6) To introduce a requirement relating to expectations would be unworkable and add needless complication to what is no more than a threshold test. When it makes a placement order, the court reaches a conclusion about the need for adoption. It cannot state every expectation it may have for the future, and it cannot know when the adoption application will be made. Trying to decide what was or was not expected, foreseen or foreseeable could only distract from the simple question of whether there has been a change between the facts that existed then and the facts that exist now.
For these reasons, the proposition in Re SA is wrong and should not be followed.

For my part, I can see some sense in Mostyn J’s view, but that’s pretty academic now.

Fourthly, and this is really good news, there’s a change to LASPO which should make it easier for parents to get legal aid to make these applications – HUGE !!

There is further refinement to the second limb of the test, which has always been the much more difficult element to grapple with.

Here the Court of Appeal say that the prospect of success of the opposal to the adoption order being made is an important factor but it is not a test, still less a determinative one.

From this, it can be seen that the prospect of success in opposing adoption if leave is granted is an important element to which the court must have regard, but it is not a test in itself, still less an exclusive one. It is helpful as a reminder that the question to be answered is whether or not there should be an opposed adoption hearing. However, the expressions ‘more than just fanciful’ and ‘solid’ are not true opposites, in that something that is not fanciful may fall short of being solid. This may lead to the court being pressed with different formulations and can cause inconsistency if the court treats prospects of success as the only benchmark.
I also note that there will be cases, of which the present one is an example, where the distinction between opposition to an adoption order and rehabilitation to a parent collapses. That situation will arise, and not uncommonly, where adoption and rehabilitation are the only possible outcomes.
Drawing matters together, I suggest that the essential question for the court at the second stage is this: Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order? By asking this question, the court ensures that it focuses firmly on the individual child’s welfare in the short, medium and long term with reference to every relevant factor, including the nature and degree of the change that it has found, the parent’s prospects of success, and the impact on the child of contested proceedings.
In framing the essential question in this way, I do not overlook the fact the parent is seeking leave to oppose the making of this specific adoption order. However, in the great majority of cases, the basis of the proposed opposition is that the child should not be adopted at all. Much less frequently, the opposition may involve an objection to the specific identified adopters, and in those cases, the factors to be taken into account when answering the question will need to be adapted accordingly.
Finally, the application for leave to oppose must be decided on proper evidence but experience confirms that oral evidence is not usually necessary. The court will want to take a broad view of the evidence before it, as befits a decision at the leave stage. There has been a very recent and welcome change to the availability of legal aid for parents making applications to oppose adoption: see Regulation 5 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023. This should enhance the fairness of the process and assist the parties and the court to focus on the issues, but at the same time the court must ensure that hearings and timetables are not unduly lengthened.

So the Court of Appeal approved way of looking at the second limb of the test is this

Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

That seems easier to follow than the previous principle of ‘solidity’ which I must confess I’ve never had a ‘solid’ grasp on.

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Reopening findings of fact

Posted on May 2, 2023 by suesspiciousminds

This is a Court of Appeal decision, which tidies up an area of law where the Court of Appeal has given a decision and then the High Court has ‘clarified’ and amended the test set out. (and yes, this is not the first time this blog has written about that sort of thing in the last few years, and also yes, there’s going to be another one on exactly the same point later today)

Probably the most important thing to arise from the judgment is this:-

48. A judge’s main responsibility is to decide the case in hand. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054, [2015] WLR(D) 425. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.

49. More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children’s cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at [28], cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context.

If you are wondering which particular High Court Judge decided Re RL, you might well be able to make an educated guess.

In this particular case

Re J (Children: Reopening Findings of Fact) 2023

https://www.bailii.org/ew/cases/EWCA/Civ/2023/465.html

There had been a previous set of private law proceedings involving the Father and a child A, his stepdaughter, who had made allegations of sexual assault against him. He was found not guilty in the Crown Court (2020) and no findings were made in the private law case against him (2021)

His daughter with another woman, D, made an allegation of sexual assault against him in 2022, and the Local Authority issued care proceedings.

Its case is that the threshold is met on three possible bases: assault on D in 2022, assault on A in 2019, or emotional abuse by M, including by fostering false allegations by D and/or by A. Meanwhile the children are living with M and contact between F2 and C and D is not taking place. The picture is of a complex and deeply unhappy family situation in which the threshold of significant harm has surely been crossed: the questions for the court are how, and with what consequences. The forensic effect of the earlier family proceedings is that the alleged assault on A is taken as not having occurred

The LA applied for those findings of fact (or absence thereof) in the private law proceedings to be reopened.

The Court at first instance were taken to the Court of Appeal authorities on the point

5. The law in relation to reopening findings of fact in children’s cases is settled. It is to be found in the decisions of this court in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, [2019] 1 WLR 6765 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316, [2020] 4 WLR 140. These authorities endorse the decisions of Hale J in Re B (Minors)(Care Proceedings: Evidence) [1997] 2 All ER 29, [1997] Fam 117, [1997] 1 FLR 285, [1997] 3 WLR 1 and Munby P in Re Z (Children) (Care Proceedings: Review of Findings), [2014] EWFC 9, [2015] 1 WLR 95, [2014] All ER (D) 143.

6.In summary, the test to be applied upon an application to reopen a previous finding of fact has three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.
In relation to the first stage: (i) the court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other; (ii) it should weigh up all relevant matters, including the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence; and (iii) above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.

7.As Mr Aidan Vine KC rightly submitted, the requirement for ‘solid grounds’ is a part of the evaluation that the court must carry out. It is not a shorthand substitute for it.

8. In Re W (Children: Reopening: Recusal) [2020] EWCA Civ 1685, [2021] 2 FCR 793 at [28], I said this:
“It is rare for findings of fact to be varied. It should be emphasised that the process of reopening is only to be embarked upon where the application presents genuine new information. It is not a vehicle for litigants to cast doubt on findings that they do not like or a substitute for an appeal that should have been pursued at the time of the original decision. In Re E at [16] I noted that some applications will be no more than attempts to reargue lost causes or escape sound findings. The court will readily recognise applications that are said to be based on fresh evidence but are in reality old arguments dressed up in new ways, and it should deal with these applications swiftly and firmly.”

9. As I noted in Re E at [50], the approach to applications to reopen is now well understood and there is no reason to change it. During the hearing of this appeal, counsel agreed that the judge in the case, Her Honour Judge Skellorn KC, directed herself correctly and they confirmed that in their experience the courts are having no difficulty in applying the guidance that has been given. That is also the experience of this court: applications for permission to appeal give no indication that the practice of the last 25 years needs revision.

The Court at first instance was also taken to the High Court authority of Re RL , where Mostyn J was considering an application to reopen findings of fact and looked specifically at the ‘solid grounds requirement’,

L v Nottinghamshire County Council

This was an application by a mother to reopen a finding, made five years previously, that injuries to a baby had been inflicted by her or by the child’s stepfather. It was not a strong application and, after a careful analysis of the facts, Mostyn J dismissed it. However, his judgment contains a lengthy exegesis of the doctrine of res judicata in family proceedings, leading to a different version of the applicable test for reopening findings:
“42. The authorities identify two types of case where justice provides an exception to an estoppel preventing re-litigation of the same issue between the same parties:
i) First, and obviously, an anterior judgment can be challenged on the grounds that it was fraudulently obtained: Takhar v. Gracefield Developments Limited [2019] UKSC 13, [2020] AC 450.
ii) Second, an anterior judgment can be challenged on the ground that new facts have emerged which strongly throw into doubt the correctness of the original decision. In Arnold v National Westminster Bank Plc [1991] 2 AC 93 at 109 Lord Keith of Kinkel stated:
“….there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result …”
This exception echoed the well-known decision of the House of Lords in Phosphate Sewage Company Limited v Molleson (1879) 4 App Cas 801 where Lord Cairns LC held that an anterior judgment can be challenged where additional facts had emerged which ‘entirely changes the aspect of the case’ and which ‘could not with reasonable diligence have been ascertained before.’ In Allsop at [26] the continuing validity of this exception was affirmed by the Court of Appeal.

  1. It therefore seems to me that Jackson LJ’s test of “there must be solid grounds for believing that the earlier findings require revisiting”, ought to be interpreted conformably with these exceptions if a divergence from the general law is to be averted. This would mean that “solid grounds” would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before.
    …
  2. For my part looking at the matter from first principles I cannot see any reason why the general substantive law of res judicata should not apply to children’s cases. …
    …
  3. I naturally accept that Jackson LJ’s test is binding on me. I completely agree that there should be a Stage 1 form of permission filter. I completely agree that on a rehearing application mere hope and speculation will never be enough to gain permission. I am merely suggesting an interpretative reconciliation between the solid grounds test and the general law such that solid grounds will normally only be demonstrated where either the fraud exception, or the special circumstances exception, is satisfied.”

Effectively deciding that ‘solid grounds’ would mean in an application to reopen findings of fact either that there has been fraud OR that there is new evidence available which entirely changes the aspect of the case and could not with reasonable diligence have been ascertained before.

The Court of Appeal disagree and say that Re RL is an authority which should no longer be followed.

In this particular case, the Court of Appeal agreed with the decision of the first instance Judge to grant the reopening and refused the father’s appeal.

There are a number of cases potentially affected by para 48 of this judgment – one has been resolved (the test for change of circumstances in leave to oppose adoption – which will be the subject of a later post today, but one is the changes to the Court of Appeal test for circumstances which warrant a finding of fact hearing – the Court of Appeal having said that ‘benefits to the child of establishing the truth of the allegations’ and ‘risks to future children’ should be added to the list of factors to be considered and Mostyn J having determined that the Court of Appeal decided that wrongly having not referred to the proper authorities and taking them out.

Occasionally – as in the leave to oppose, my heart rather tends to agree with the Mostyn J analysis, but it clearly isn’t a satisfactory way for practitioners and Judges at the coalface to have to interpret law to have a steer from the Court of Appeal and then a change to fundamental issues of the test be reported as High Court decisions and have to wait for an appeal to clarify whether the original or current test is the one to be followed.

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Stay with me ! Stay applications, some further guidance

Posted on January 5, 2023 by suesspiciousminds

A stay, for my non-lawyer readers, is where a Court makes a decision (say for example that the child should have contact with the father twice per week) and one party wants to appeal the order and asks the Court for an order that pending the appeal the Court’s decision should not take effect.

Up until today, the best guidance on the legal tests for stays and process had been the Mostyn J decision in NB v London Borough of Haringey 2011

https://www.bailii.org/ew/cases/EWHC/Fam/2011/3544.html

First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.’

Mostyn J encountered a stay application again in this case, Re HH (A Child :Stay of Order pending appeal) 2022 and expands on that guidance

https://www.bailii.org/ew/cases/EWHC/Fam/2022/3369.html

In this case, the Court at first instance had reached a decision that a father should have unsupervised contact for one hour twice a week. The contact had been stopped for 2 years. The mother sought to appeal that order and sought a stay of the order about contact.

As Mostyn J points out, whereas in a money case the money can be paid and then paid back if the appeal succeeds in an appeal about resuming contact if the contact happens before the appeal can be heard, that can be difficult. If the contact is happening before the appeal takes place it could materially affect the outcome of the appeal or the benefit of it.

Mostyn J says that when the Court is considering the application for stay at the same time as permission to appeal, the NB principles, derived from a case called Wenden in the Hong Kong Courts (so Mostyn J calls them the Wenden principles) should apply.

He says that in a case where the Court is asked to determine a stay application BEFORE the permission to appeal application is resolved, it is not practicable to consider the last point – the prospects of the appeal succeeding – because that’s treading on the toes of the permission to appeal application.

He says further that in such circumstances, the Court should consider granting a stay UNTIL the permission to appeal application can be dealt with, if the appeal is not fanciful and the order taking place would irreversibly extinguish the purpose of the appeal (i.e as here where the issue was the resumption of contact between a child and a parent)

Where the issue is whether a parent should have direct contact to their child the refusal of an interim stay, resulting in such direct contact taking place, in effect decides the very subject matter of the appeal. In this case, whatever I may think about the reasonableness of the mother’s stance, and the likelihood of her being awarded PTA, it is an undeniable fact that without an interim stay pending determination of PTA, the viability of mother’s proposed appeal is pre-emptively extinguished.
Therefore, if that would be the consequence, the court should normally award such an interim stay. It should not be seen as being of the same character as a full stay of execution awarded at the same time as the grant of PTA. Such a full stay should only be awarded if the Wenden Engineering principles are satisfied. By contrast, the award of an interim stay pending determination of PTA should be seen more in the character of a suspension of the order under appeal, doing no more than holding the ring pending that determination. It should not be seen as establishing any precedent for, or any indication as to the outcome of, the full stay application.
I emphasise that the appeal court should only award an interim stay pending the decision on PTA where (a) the grounds of appeal are not fanciful and (b) implementation of the order pending the PTA decision would irreversibly extinguish the viability of the proposed appeal. If this latter criterion is not met, because, for example, conditions can be imposed to ensure that any implementation of the order in the meantime can be effectively reversed, then the appeal court should leave the question of a stay to the judge determining the PTA application.
Where such an interim stay is awarded the court should give directions to bring the PTA application before the court at the soonest opportunity. Further, I would suggest that in such circumstances the appeal court should allow the respondent to the appeal to make submissions in writing under FPR PD 30A para 4.22 as to whether PTA should be granted and/or a full stay of execution awarded.

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The family Court learning from criminal Courts

Posted on December 8, 2022 by suesspiciousminds

Trigger warning – this post contains discussion of the law around rape – I will not be going into any detail about allegations and confine the post to legal principles, but I’m aware that both the subject and the whole issue of how rape has been dealt with by the Courts may be triggering for some.

Over the last two years, the family Court has been rather tying itself up in knots about the interelationship between the criminal law about rape and how such cases are dealt with and how allegations of rape are dealt with in the family Court.

I’d thought that Re HN had largely resolved this, with this guidance

In Re H-N, the Court of Appeal was addressed at length by a wider range of parties and interveners than were present in these appeals on whether the family court should analyse factual issues within the criminal law framework. At [71], the Court of Appeal reaffirmed the general principle that:
“The Family Court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of “rape”, “murder”, “manslaughter” or other serious crimes.”
At [65] of Re H-N, the President emphasised that there was a clear distinction between (a) family judges needing to have a sound understanding of the potential psychological impact that serious sexual assault may have on a victim’s behaviour, both during and after the event, and in the way that they may give their evidence and present in court and (b) family judges avoiding being drawn into an analysis of factual evidence based on criminal law principles and concepts. However, issues concerned with process in the family court such as the conduct of the hearing and the scope of cross examination could potentially draw upon good practice in the criminal court [74]:
“The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, be clear-cut. That is particularly so when the judge in the Family Court must conduct their own analysis of issues such as consent, and must do so in the context of a fair hearing. In this regard, the procedural manner in which the hearing is conducted and, in particular, the scope of cross examination of an alleged victim as to their sexual history, past relationships or medical history, justify consideration separately from the general prohibition in determining the substantive allegation. Nothing that is said in Re R, or endorsed in this judgement, should inhibit further consideration of such procedural matters. They are beyond the scope of this judgement and are more properly to be considered elsewhere.”

But Knowles J was asked in this case to give some further guidance

https://www.bailii.org/ew/cases/EWHC/Fam/2022/3089.html

Re A and Another v B and Others 2022

These were the issues the High Court was asked to give a view on :-

A) Whether the family court should apply a consistent definition of (i) rape, (ii) sexual assault or (iii) consent, making clear the difference between consent and submission;

B) Whether the failure to have a consistent approach to these issues was in breach of the Article 6, 8 and 14 rights of the Appellant mothers;

C) Whether the definitions of rape, sexual assault and consent used in the criminal justice system should be either a starting or finishing point for judges in the family court;

D) What the approach of the family court should be to a complainant’s sexual history when determining allegations of rape or sexual assault; and

E) Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.

The Court addressed A) and C) together

23. In my view, the correct starting point is that the family court must not import criminal definitions as an aid to fact-finding. Its focus, as Re R and Re H-N made clear, is to determine how the parents of a child behaved towards each other so as to be able properly to assess risk and determine the welfare issues in each case. I note that Parliament recently passed the Domestic Abuse Act 2021 and, in so doing, expressly replicated in the family court some provisions applicable in the criminal courts, for example, in relation to cross-examination by litigants in person. However, Parliament declined to legislate for a framework in the family court within which to determine allegations of rape and sexual assault: it was not invited to do so during the passage of the Act. In those circumstances, it is difficult to conceive that this court might now attempt to do so.
At first instance, the family court determines allegations of rape and sexual assault without a legislative definition or framework. That is consistent with the purpose of a fact-finding exercise in family proceedings, which is to determine only such factual issues as are necessary to assess risk and to illuminate the welfare issues. That approach in private law proceedings is consistent with the approach in public law proceedings in which the family court conducts fact-finding in circumstances where, for example, a parent is alleged to have caused the death of a child, or where a parent is alleged to have inflicted injury on a child.
The Appellants placed reliance on examples of variable approaches taken by first instance judges sitting in the family court to the factual determination of allegations of rape or sexual assault. It is unnecessary for me to identify the judgments in issue since the relevance of those decisions was not the characterisation of behaviour by reference to concepts of consent or submission to sexual intercourse but rather that the court had accurately determined narrative findings which could inform the subsequent risk and welfare analysis. In that regard, I am very clear that the comments of the Court of Appeal at [71] in Re H-N are crucial in underscoring the clear distinction between the family and the criminal court, namely that:
“Behaviour which falls short of establishing “rape”, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to “not guilty” in the family context. For example, in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the borderline as between “consent” and “submission” may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault”.

It is my firm view that a focus on seeking to characterise or establish behaviour as meeting a particular definition runs the risk of the court becoming “unnecessarily bogged down in legal technicality” (see [29] of the decision of Cobb J in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) and [66] of Re R in the Court of Appeal). Applying criminal definitions narrows the court’s focus inappropriately away from the wider consideration of family relationships at play in a fact-finding hearing. In Re R, albeit in the context of findings of “murder” or “manslaughter”, McFarlane LJ identified at [62] the scope and purpose of a fact-finding hearing in the family court as follows:
“The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination of facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare…
… In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established”.
Thus, a family judge must consider a “wide canvas” and scrutinise the family relationships – whether of adult to adult or adult to child – over a period of time in order to arrive at a factual determination relevant to both risk and welfare. Whilst I recognise the effort which Mr Metzer KC and Dr Proudman have invested in their framework for determining allegations of rape and sexual assault/abuse, that framework is too narrowly focused on the specifics of whether a sexual relationship is “willing” or not. In essence, it substitutes the word “willing” for “consent” and would be as prescriptive as applying the concepts used in the criminal courts. It is, in my view, too narrow a prism through which to view and investigate the true nature of an adult relationship.

The danger of adopting too narrow a focus on the sexual relationship between two adults was evident in the decision of the Court of Appeal in K v K [2022] EWCA Civ 468 where, amongst other matters, the Court of Appeal was critical of a family judge for failing to stand back and take account of the whole of the evidence before him. In [61], the Court of Appeal stated this:
“In this case, however, by failing to step back and take into account the whole of the evidence before him, the judge placed unjustifiable weight on the issue of whether the mother had had a conversation with the father about her unhappiness at his initiating sex when she was asleep. He elevated that issue into the determinative one, saying that if it were proved, the allegations would themselves be made out. The judge failed to bring the various points of challenge made by the father into his evaluation. Those failures meant that there cannot be said to have been a fair consideration of these important allegations from the father’s perspective. At no stage did the judge step back and consider the mother’s credibility in the round, bringing into account his findings that the mother had put forward false allegations of reporting to Dr C, of financial control, and (also) of isolation from her family when in fact the family had lived with her parents between 2004 and 2012.”
K v K is also of importance because it emphasised yet again what ought to be the focus of a fact-finding exercise in children cases where there are allegations of domestic abuse, namely whether the adult relationship was characterised by coercion and/or control. In [51] of Re H-N, the Court of Appeal was at pains to emphasise that “consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined”. Barely a year after Re H-N was determined, K v K sought to clarify a perception that it was a requirement for a family judge to determine each and every allegation of domestic abuse during a fact-finding exercise. In robust terms, the Court of Appeal stated this was not the case and that a family court should determine “only those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, on what terms” [67]. That steer from the Court of Appeal underscores my view that as wide a canvas should be brought to the determination of specific allegations of sexual abuse as is brought to any overarching allegations of coercive and controlling behaviour.
As to any criticism of PD12J for a failure to contain a framework to assist in determining specific allegations of sexual abuse, that is, in my view, misplaced. PD12J sets out a specific procedural framework for managing and determining allegations of domestic abuse within private law children proceedings. It includes definitions of the sorts of behaviour which constitute domestic abuse and general principles by which the court should be guided but, rightly, does not contain a detailed framework to assist the family court either in evaluating evidence or in determining what might constitute domestic abuse in an individual case. As I have already indicated, the inclusion of the type of framework advocated for by Mr Metzer KC would inappropriately narrow the court’s focus and run the risk of becoming a tick box exercise rather than a holistic evaluation of the evidence in a particular case.
I also acknowledge that there are examples of the family court analysing evidence by reference to principles established in the criminal court. Thus, the Lucas direction with respect to lies (R v Lucas (1981) QB 720) is firmly established as a principle in the family court and, when determining allegations as to whether an injury is inflicted, the family court not infrequently relies upon the guidance in R v Henderson and Others [2010] EWCA Crim 1219 and R v Cannings [2004] 2 Crim Ap Reports 63, namely that the court should resist the temptation to believe that it is always possible to identify the cause of injury to a child. Finally, in F v M [2021] EWFC 4, Hayden J had regard to s 76 of the Serious Crime Act 2015 when considering allegations of coercive and controlling behaviour. The first two examples do not concern definitions of criminal concepts or frameworks for establishing an offence. As Miss Fottrell KC submitted and I accept, these relate to the broader task of evaluating evidence more generally. Although in F v M, Hayden J considered the substantive framework for the offence of coercive and controlling behaviour, he analysed such behaviour by reference to the definitions contained in the FPR, specifically disapproving of an overly formulaic analysis which might tend “to obfuscate rather than illuminate” the nature of such behaviour within family proceedings (see [108]).
A recent example of the family court’s approach to allegations of sexual abuse within private law children proceedings is the case of Re B-B (Domestic Abuse: Fact Finding) [2022] EWHC 108 (Fam). This judgment followed a re-hearing of allegations of domestic abuse following the Court of Appeal’s decision to allow an appeal against the original first instance decision (see Re H-N at [78]-[115]).
Thus, for the reasons set out above, I reject the need for the family court to apply consistent definitions of rape, sexual assault, and consent. I also hold that the definitions of rape, sexual assault, and consent used in the criminal justice system should have no place in the family court.

The Court considered the Article 6, 8 and 14 rights point B) at paras 33 and 43 of the judgment and concluded that there was no basis for concluding that the approach of the family Courts in relation to allegations of rape or sexual assaults was a breach of those rights.

In relation to D) – guidance about introduction of evidence of sexual history, the Court was in agreement that some guidance would be beneficial – Practice Direction 12 J did not provide specific guidance on these matters.

Having reflected on the invitation to give some guidance on this issue, I do so mindful of the comments in [74] of Re H-N which did not inhibit further judicial consideration of procedural matters such as the scope of cross-examination of an alleged victim as to their sexual history and past relationships. The framework I offer for determining these issues is firmly grounded in the established approach to evidence in the family court.
My starting point is that the established approach to evidence in the family court can accommodate circumstances in which a parent, either making or facing allegations of sexual abuse, seeks to adduce evidence of the other person’s sexual history, or their own sexual history or their shared sexual history. To summarise, this involves the following process:
(a) An assessment of the relevance of the evidence for which permission is sought to be adduced, having regard to the need for the court to consider the “wide canvas” of evidence;

(b) Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;

(c) At all times, consideration of the breadth of the court’s powers to control the manner in which evidence is to be placed before it.

Going into more detail as the process, the High Court said this:-

When considering these matters, the first step must be to consider the admissibility of the evidence in question. Admissibility is determined by relevance and the question of relevance is one of fact, degree, and proportionality (see [23] of Dunn v Durham County Council [2013] EWCA Civ 1654).
When considering the question of relevance and evaluating the weight to be afforded to evidence which crosses that threshold, the family court applies well established principles, many of which were developed in the context of public law proceedings, but which are equally applicable to private law proceedings:
(a) The court must consider the “wide canvas” of evidence.
(b) Evidence cannot be evaluated and assessed in separate compartments but must be considered in its totality. The court must consider each piece of evidence in the context of all the other evidence (see [33] of Re T [2004] EWCA Civ 558 per Butler-Sloss P).
(c) The decision on whether the facts in issue have been proved to the requisite standard must be based on all the available evidence and falls to be assessed against the wider context of social, emotional, ethical, and moral factors (see [44] of A County Council v A Mother, A Father, and X, Y and Z [2005] 2 FLR 129).
(d) The assessment of credibility generally involves more than mere demeanour, the latter being mostly concerned with whether the witness appears to be telling the truth as s/he believes it to be. Memory becomes fainter with every day that passes and the imagination becomes correspondingly more active. Thus, contemporary documents are always of the utmost importance (see [29]-[30] of A County Council v M and F [2012] 2 FLR 939).
The second step, where a party objects to the admission of otherwise relevant evidence, is to undertake a balancing exercise. Though determined in the context of an application for disclosure against the local authority, the approach articulated by Maurice Kay LJ at [23] in Dunn v Durham County Council is the correct one. It was followed by MacDonald J in R v Secretary of State for the Home Department (Disclosure of Asylum Documents) [2019] EWHC 3147 (Fam). I observe that the Court of Appeal in Secretary of State for the Home Department and G v RH [2020] EWCA Civ 1001 at [52]-[54] endorsed the approach to disclosure taken by MacDonald J and confirmed that it had application to a wide range of documents where disclosure was sought in family proceedings.
The approach in Dunn v Durham County Council is as follows [23]:
“What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined. We determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or such other order. Again, the limitation or restriction must satisfy the test of strict necessity.”

53. Insofar as an application might be made by an alleged perpetrator of sexual abuse to adduce evidence of a complainant’s sexual history with another individual, I find it difficult to envisage circumstances in which this would satisfy the test of relevance. How might such evidence about behaviour with person A make a complainant’s allegation of rape or sexual assault against an alleged perpetrator, person B, more or less probable? In making that observation, I do not intend that this should operate as an absolute bar on adducing such evidence since it is ultimately a matter for assessment by a particular court dealing with a particular case
More complicated is the question of relevance in relation to evidence of a complainant’s sexual history with the alleged perpetrator. The fact that adult parents had previously or subsequently engaged in consensual sexual activity of any sort does not mean that they were not raped or sexually assaulted on another occasion. However, evidence as to the parents’ sexual relationship may be logically probative of an allegation of partnership rape or sexual assault. Thus, communications between the parties of a sexual nature may well be relevant as may communications between them either before or after the relevant incident or time period. That approach is in keeping with the court’s obligation to consider the wide canvas of evidence and its duty to have regard to patterns of behaviour – both of the complainant and the alleged perpetrator – as described in Re H-N. It does not give an alleged perpetrator permission to produce any material that they wish if it is irrelevant and, if relevant, where it fails to meet the approach articulated in [23] of Dunn v Durham County Council.
Mr Metzer KC invited me to state that there would be a strong presumption against the admission of evidence relating to a complainant’s sexual history with an alleged perpetrator and to declare that the circumstances should be exceptional. I decline to do so. First, that approach runs contrary to current practice in the family court which has been centred on relevance and is free from presumption or starting point. It also runs contrary to the basic principle that, by adopting an inquisitorial approach, the court requires the best relevant evidence before it to assess both the risk posed by a parent or the welfare best interests of the child. Second, and practically speaking, the Appellant’s approach runs the risk of depriving the court of evidence relevant to its factual determination. I observe that there may well be circumstances in which evidence of sexual history as between partners is relevant to the court’s assessment of the dynamic, their respective patterns of behaviour and the nature of their relationship.
Based on the analysis above, I do not regard it as necessary for a party wishing to rely on evidence of sexual history between partners to make a specific application to the court for permission to do so. Practically speaking, this would add complexity and cost to already contentious children proceedings where a high proportion of litigants are self-representing.
Though not addressed in either the written or oral argument because it is not a matter at large in these appeals, I note that a complainant may wish to adduce evidence of an alleged perpetrator’s sexual history with other individuals to demonstrate a pattern of allegedly abusive behaviour (such evidence being described as similar fact evidence). The Court of Appeal in R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 set out the approach to be taken to the admissibility of such evidence at the case management stage in [19], and [23]-[24], emphasising the test of relevance and the need for the court to have available the best evidence to illuminate the subtle and persistent patterns of behaviour involved in coercive control, harassment and stalking.
In conclusion and to assist family judges in their case management task, I offer the following procedural framework, loosely based on that I articulated in Re M (A Child) (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), namely:
(a) If a party wishes to adduce evidence about a complainant’s sexual history with a third party, a written application should be made in advance for permission to do so, supported by a witness statement;
(b) It is for the party making such an application to persuade the court of the relevance and necessity of such material to the specific factual issues which the court is required to determine.
(c) Any such application will require the court’s adjudication preferably at a case management hearing.
(d) The court should apply the approach set out above at [45]-[49].
(e) If a party wishes to rely on evidence about sexual history between partners, they do not need to make a specific application to do so unless reliance is also placed on intimate images. In those circumstances, the party must issue an application in accordance with the guidance at [77]-[78] in Re M (Intimate Images).
(f) If a party objects to evidence of sexual history between parents/parties being filed, it should make an application to the court in advance, supported by a witness statement explaining why this material is either irrelevant or should not be admitted.
(g) Any such application will require the court’s adjudication preferably at a case management hearing.
(h) The court should apply the approach set out above at [45]-[49].

Finally, and probably the most interesting, the “rape myths” point. Should the Family Court Judge give themselves a similar reminder about some of the common misconceptions surrounding rape and alleged rape that a criminal Judge would give to a jury to provide valuable context?

Proposition 5: Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.

Mr Metzer KC submitted that family court judges needed to have a full understanding about the types of rape myths/stereotypes which had been pervasive in the judicial system for a long time. He noted that Crown Court judges were advised to give specific directions to juries about the types of stereotypes which were common in cases of sexual assault. He drew my attention to the relevant passages of the Equal Treatment Bench Book (July 2022), to the Crown Court Compendium and to the Crown Prosecution Service Guidance found at “Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes”. The latter guidance contained a comprehensive list, outlining various rape myths by category and which contained subsections dealing with intoxication, victim behaviour, sexual history, inconsistent accounts and a victim’s response to sexual assault. The CPS Guidance is a dynamic document which is regularly updated in accordance with new case-law. Mr Metzer KC submitted that this Guidance would be a useful starting point for judges to remind themselves of rape myths and stereotypes before and during any fact-finding exercise.
In response, Miss Fottrell KC noted that family judges are now required to have Judicial College training in relation to sexual assault awareness as well as to attend extensive training programmes on domestic abuse. If this court considered that there were further training issues which may benefit family judges, the appropriate course was to bring this to the attention of the head of the Judicial College, Lady Justice King. However, if the court considered that the CPS guidance and the Equal Treatment Bench Book were useful, it was invited to say so for the benefit of judges in the family court.
None of the other advocates suggested anything markedly different from the submissions made by Mr Metzer KC and by Miss Fottrell KC. All the advocates accepted that, anecdotally, family judges not infrequently directed themselves as to rape myths and stereotypes.
I have reflected very carefully on what it is appropriate for me to say on this matter. Judicial training is a matter reserved to the Judicial College. In my view, the College is best able to assess what training is needed for family judges determining factual disputes between parents about the nature of their relationship, especially where those disputes concern allegations of sexual assault. In that regard, I note that the Court of Appeal highlighted the training available to family judges in [67]-[68] of Re H-N as follows:
“(67) Following the judgment of Russell J and at the request of the President, the Judicial College devised a freestanding sexual assault awareness training programme for Family judges. The programme draws heavily on the successful “serious sexual assault” programme for criminal judges. Since July 2020, it has been a mandatory requirement for all judges who hear any category of Family cases to undertake this programme. The programme, which is under constant review, includes elements in respect of psychological reactions to sexual assault and trauma, and has the benefit of contributions having been made by a number of victims of sexual assault discussing the impact that an attack has had upon them. In addition to the more general training in relation to domestic abuse, which is already in place for Magistrates, bespoke training suitable for the work they undertake in respect of sexual assault and trauma is in the process of being developed.

(68) This bespoke Family training these in turn into, and is further developed within, the extensive training programmes that are run in relation to domestic abuse by the Judicial College for the fee paid and salaried judges. These courses have been in place for some years and play a key role in both induction courses for newly appointed Family judges and continuation courses run for Family judges who are already in post.“

On the basis that I have found what follows of assistance in my own practice as the lead judge for domestic abuse, I draw the attention of family judges to Chapter 6 of the Equal Treatment Bench Book (July 2022) entitled “Gender”. Under a subheading entitled “Sexual Offences: Who is Affected?”, there is information about sexual offences which includes several paragraphs addressing rape myths which may feature in criminal proceedings (see [74]-[91]). Though written to assist those sitting in the criminal courts, there is much in that section which family judges may find useful. The Equal Treatment Bench Book is publicly available on the judiciary.uk website at Equal Treatment Bench Book July 2022 revision (2) (judiciary.uk). Likewise, the CPS Guidance on Rape and Sexual Offences at Annex A provides a comprehensive guide to the unhelpful stereotypes which may cloud judicial thinking in cases involving sexual assault. It too is publicly available on the cps.gov.uk website and was last revised in May 2021: Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes | The Crown Prosecution Service (cps.gov.uk).

I have also come to the view that I should not produce a list of common rape myths or stereotypes or attempt to craft a standard self-direction about sexual assault stereotypes which a family judge might give her/himself. No list would be comprehensive. Further, it would run the risk of creating a rigid framework to which adherence would be given. That would deprive a family judge of the flexibility to think about what is apposite in the particular case, having been appropriately trained to recognise unhelpful stereotypes, and should they consider it necessary to do so, for a family judge to draw attention in her/his judgment to the manner in which they have guarded against applying any relevant stereotypes. Secondly, any self-direction I might devise would be equally inflexible because it cannot encompass the great variety of stereotypical thinking outlined, for example, in the two sources to which I have referred.

Finally, Mrs Justice Knowles, did remark that in cases where findings of fact are made it is helpful to ensure that they are recorded in writing and ideally appended to the order made.

Finally, I have already commented on the failure by the judge to either produce his own schedule of findings or, if what I was told was correct, to endorse the schedule drafted by counsel. He was not alone in so doing, as the judge in the ABC appeal also failed to produce her own schedule of findings (though one was later produced by counsel at her invitation and attached to her order). Paragraph 29 of PD12J requires a schedule of findings to be attached to the court order following a fact-finding determination. In my view, it is desirable that, with the definitions of domestic abuse contained in PD12J firmly in mind when doing so, a judge produces her/his own schedule of findings, either incorporated into the body of a judgment or appended to its conclusion. That course avoids any lack of clarity about the detail of what the judge found, and any schedule can then be incorporated in or appended to the court’s order. I make this suggestion fully conscious of the pressures on the family judiciary engaged in what can often be a relentless train of successive fact-finding determinations, but it is not intended to make the task of judgment writing more difficult. On the contrary, I hope it represents good practice which may help to illuminate a judge’s evaluation of the evidence and to inform their ultimate findings.

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Can a foreign conviction establish threshold in care proceedings?

Posted on August 9, 2022 by suesspiciousminds

I already know that regular reader David Burrows is going to love this case.

https://www.bailii.org/ew/cases/EWCA/Civ/2022/1118.html

W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118 (05 August 2022)

This is an appeal, by a man named MH (mother’s husband) against a decision by the High Court that his conviction for sexual offences against a child in Spain would stand as presumptive evidence of proof of the facts underlying the conviction in an English Court dealing with care proceedings. That is, that in order to rely on those facts the Local Authority didn’t have to go and prove those allegations again.

It seems at first instance a peculiar appeal, because the common sense answer would seem to be, yes, of course the foreign conviction can be relied upon.

But we go back to both a 1943 road traffic accident claim and some 1968 legislation to look at it, and the issue doesn’t ever seem to have come up before.

The 1943 road traffic accident claim is Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587 a Court of Appeal decision. The plaintiff was suing the defendant for a road traffic accident and wanted to rely on the defendant’s conviction for dangerous driving. The Court of Appeal ruled then that as they were two separate incidents, the conviction in the criminal court carried no evidential weight as to whether the defendant had been negligent in this case and that if the plaintiff wanted to rely on it, the civil Court would need to look at the facts of the conviction and reach its own decision. I.e that a conviction or finding in another Court did not prove the fact in the second Court.

This was then reviewed by the Law Commission, arising in the Civil Evidence Act 1968, which provides at s.11 that in any civil proceedings the fact that a person has been convicted of an offence by any court in the United Kingdom shall be admissible for the purpose of proving that he committed that offence,

Job done?

Well, no, because the Civil Evidence Act 1984 did not make the same provision for convictions overseas or findings by another Court short of conviction.

However, the Law Reform Committee in its Fifteenth Report (“The Rule in Hollington v Hewthorn”, Cmnd 3391, 1967), did not recommend the abolition of the rule in relation to findings made in civil proceedings, nor its abolition in relation to foreign convictions. At paragraph 17 they said:
“We have restricted our recommendation to convictions by courts of competent jurisdiction in the United Kingdom. We do not include convictions by foreign courts. This is for practical reasons. The substantive criminal law varies widely in different countries. So does criminal procedure and the law of evidence. The relevance of the foreign conviction to the issues in the English civil action could not be ascertained without expert evidence of the substantive criminal law of the foreign country. Its weight could not be judged without expert evidence of the procedural law of the foreign country and reliable information as to the standards of its courts. There are, of course, many countries whose standard of the administration of criminal justice is as high as our own, but there are others in which one cannot be assured of this. It would be invidious to leave the admissibility and weight of a foreign conviction to the discretion of an English judge unfamiliar with the legal system and standards of criminal justice of the foreign country concerned. Furthermore, the burden of showing that a foreign conviction was erroneous would be difficult, perhaps impossible, to sustain, since there would be no way of compelling the witnesses in the foreign criminal proceedings to attend to give evidence in the English courts. The practical effect of making foreign convictions admissible might well be to make them conclusive and the remoter the country in which the conviction took place the more difficult it would be to dispute its correctness”.

So the Court of Appeal had to decide the point – is Hollington v Hawthorne 1943 binding on the family Courts – which means findings from other civil courts or foreign convictions would not be of themselves proof that the matters underlying those decisions were proven

I’ll add that MH had received a 5 1/2 year prison sentence in Spain for his sexual offence against a child, and the Court of Appeal had this to say on the implications of simply ignoring that or demanding that the allegations be proved again in the English courts.

One checklist factor is any harm which the child has suffered or is at risk of suffering. This calls for a risk assessment in the light of findings of fact arrived at in the normal way, with the burden of proof being on the party seeking a finding to prove it on a balance of probability. The obligation to take account of all the circumstances means that the court is not confined by the way in which the parties put their cases. Provided procedural fairness is observed, it has complete control of the process, which is aptly described as quasi-inquisitorial.
The proviso concerning procedural fairness is of course important. Natural justice and Art. 6 ECHR sound as clearly in family proceedings as in any other context. At the same time, there will be circumstances in which perfect fairness to all parties cannot be achieved and the court must protect each competing interest to the greatest possible extent, having regard to the purpose of the proceedings themselves. The rights and interests of the child will generally predominate where they conflict with the interests of others, but there is always a balance to be struck.
The present case offers a clear illustration of this tension. The central issue is whether MH poses a sexual risk to children. The incident that led to the Spanish conviction is the lynchpin of the local authority’s case. MH accepts that he was convicted but says that he was not guilty. He also argues that his trial (at which he and the child gave evidence) was unfair in a number of ways. He has produced a certain amount of documentation surrounding his conviction and more may be available by the time of the final hearing. However, the question of admissibility cannot turn on the attitude of the parties or the availability of surrounding information and the matter must be approached as if this was a bare conviction.
Accordingly, when the case is finally heard there are two possibilities. The first is that the conviction is not admitted and the local authority is required to prove the allegation of sexual abuse as if there had been no conviction. That may be impossible, given the length of time that has passed, and in consequence the threshold may not be crossed with the result that the proceedings would founder. The second possibility is that the conviction is admitted, with MH having the opportunity to persuade the court that it should not rely upon it; again, that may not be easy. It is therefore necessary to select the outcome that is more consistent with the purpose of the proceedings themselves.
Family proceedings involve a fact-finding element, on the basis of which assessments and decisions are made. In care proceedings, proof of the significant harm threshold is a precondition for the court to exercise its powers and it has been said that, while the proceedings overall are essentially inquisitorial, they are necessarily adversarial in that respect: Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5; [2013] 1 FLR 1250 at [70] (Sir James Munby P). However, the fact-finding element of the process cannot be isolated from the welfare decision it informs. In this respect the position differs from other kinds of civil proceedings, as reflected in the respective procedural rules. The overriding objective under the Civil Procedure Rules is to enable the court to deal with cases justly and at proportionate cost, while under the Family Procedure Rules it is to enable the court to deal with cases justly, having regard to any welfare issues involved.
The characteristics of family proceedings therefore speak strongly against the existence of artificial evidential constraints that may defeat the purpose of the jurisdiction.

Going on to the law

Conclusions

The rule in Hollington v Hewthorn does not apply in family proceedings as I have defined them because such a rule is incompatible with the welfare-based and protective character of the proceedings.
In family proceedings all relevant evidence is admissible. Where previous judicial findings or convictions, whether domestic or foreign, are relevant to a person’s suitability to care for children or some other issue in the case, the court may admit them in evidence.
The effect of the admission of a previous finding or conviction is that it will stand as presumptive proof of the underlying facts, but it will not be conclusive and it will be open to a party to establish on a balance of probability that it should not be relied upon. The court will have regard to all the evidence when reaching its conclusion on the issues before it.
In this case the judge was right to find that the conviction of MH is plainly relevant evidence in these proceedings and that there is no rule of evidence that makes it inadmissible. As Leggatt J said in the civil context of Rogers v Hoyle at [27], the modern approach is that judges can be trusted to evaluate evidence in a rational manner, and that the ability of tribunals to find the true facts will be hindered and not helped if they are prevented from taking relevant evidence into account by exclusionary rules. This is all the more so in family proceedings, where exclusionary rules such as estoppel, res inter alios acta and Hollington v Hewthorn do not apply because they would not serve the interests of children and their families or the interests of justice.
As I have said, while it might be possible to distinguish the present case from Hollington v Hewthorn on the basis of identity of issues and lack of unfairness to third parties, it is unnecessary to found the analysis on these narrower and more contestable matters that depend on identifying the true ratio of the decision. Nor do I attach special significance to the inquisitorial nature of the proceedings. The important consideration is not that family proceedings are inquisitorial in form but that they are welfare-based in substance.
The outcome is not unfair to the mother. As the judge said, she is not in a position to give evidence that is relevant to the conviction. It is not conclusive and she will have an opportunity to examine any surrounding evidence.
On the basis that the conviction was admissible, the judge was right to admit it. Indeed there could have been no good reason to refuse. She asked whether it was appropriate to depart from Hollington v Hewthorn, but as she had held it to be both inapplicable and distinguishable, the real question was whether there was some other reason to exclude the evidence, and there was none. Accordingly the question of comity is not relevant, while the circumstances of the original finding or conviction and the difficulties of proof in an individual case are matters for the court to keep in mind when it comes to weigh the evidence as a whole.
Once a conviction is admitted it inevitably becomes evidence with presumptive weight, otherwise there would be no purpose in admitting it. It would be meaningless to treat it as “just another piece of evidence”. Further, the court’s power to reopen its own findings has no application to the question of how the findings of other tribunals should be treated.
For these reasons, which are similar to those given by the judge, I would reject each of the grounds of appeal and dismiss the appeal.

and Lord Justice Bean said:-

Peter Jackson LJ has given in his judgment a compelling analysis of why a foreign conviction should, as a matter of principle, be admissible and given presumptive weight in proceedings under the Children Act 1989; and why there is nothing in Hollington v Hewthorn which requires us to hold otherwise. I agree with him entirely, and I too would dismiss the appeal.
As to the point of principle, no one in this case has argued that MH’s conviction in Spain should be conclusive. But the suggestion that it should not even be admissible is alarming. It is not difficult to imagine a care case in which a relevant party has been convicted of a serious sexual or violent offence in a foreign court, but the English court has no independent evidence of the facts on which the conviction was based. It cannot be right that in such a case the family court in England and Wales deciding issues relating to the welfare of children should have to ignore the conviction and somehow pretend that the relevant party is of entirely good character and that the offences of which he was convicted never happened.
As to the rule in Hollington v Hewthorn, in their 1967 report the Law Reform Committee observed that “rationalise it how one will, the decision in this case offends one’s sense of justice”; and that “it is not easy to escape the implication in the rule in Hollington v Hewthorn that, in the estimation of lawyers, a conviction by a criminal court is as likely to be wrong as right”. They made recommendations in respect of convictions by UK courts which Parliament promptly enacted in the Civil Evidence Act 1968. However, in paragraph 17 of their report, cited above by Peter Jackson LJ, the Committee recommended no change to make foreign convictions admissible.
It is unnecessary for us in this case to decide anything about the admissibility of foreign convictions in English civil courts. In civil proceedings the doctrine of precedent may require this court to follow Hollington v Hewthorn without question, even though in Hunter v Chief Constable of West Midlands [1982] AC 529 at 543 Lord Diplock (with whom the other members of the House of Lords agreed) said that it “is generally considered to have been wrongly decided”. But for my part I suggest that, half a century on, the reasoning in paragraph 17 of the Law Reform Committee’s 1967 report requires re-examination. Either the surviving effect of Hollington v Hewthorn as a whole, or (more narrowly) the question of the admissibility of foreign convictions in English court proceedings, would be a very suitable topic for consideration by the Committee’s successors, the Law Commission of England and Wales, either on a reference by the Lord Chancellor or as part of the Commission’s next Programme of law reform.

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Pitiless detail

Posted on August 1, 2022 by suesspiciousminds

This is an interesting High Court decision delivered by Mostyn J, about the need (or not) for a fact finding hearing when the parent concedes that threshold is met.

That’s always a bit of a vexed question, so any case on the point is always interesting.

In this case, the mother was in agreement that her child, her second child, be made the subject of a Care Order and a Placement Order and agreed that threshold was crossed. The Local Authority considered that the threshold concessions she had made were ‘anodyne’

Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought

In very broad and overly-simplistic terms, the mother was accepting a lot of described content in the threshold but not accepting that it amounted to FII or that she was a person who had or was likely to inflict FII (Fictitiously Induced Illness , or where a person manufactures medical symptoms in another so that they have to receive medical treatment)

The Local Authority sought a 5 day fact finding hearing.

Mostyn J considered the general legal principles and the specific family law principles, arising from two Court of Appeal cases – Oxfordshire County Council v DP & Ors [2005] EWHC 1593 (Fam) and Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192, [2021] 4 WLR 106 

The fundamental difference between the two cases is that Oxfordshire did not have within its list of factors to consider the ‘different child’ issue (i.e there’s no direct advantage for Child A of resolving the factual background, but if the parent goes on to have another child, Child B, there might be advantage to having that factual dispute resolved rather than having to go back and litigate the contentious issues some time later). As Mostyn J points out, that is because those issues had been specifically litigated in earlier authorities and explictly rejected – that the case is dealing with Child A only, and should not look into the future about a Child B who does not even exist.

Wheres Re H-D H and C does specifically include the ‘different child’ issue as a reason why a fact finding might be necessary

“The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.”
(Emphases added)

(That also includes what Mostyn J categorised as the ‘whole truth’ issue – the benefit to Child A of having the fullest possible picture of what had or had not happened to lead to them being in care or adopted)

Mostyn J considered that as the proper relevant authorities had not been cited in Re HD H and C, that he should consider himself bound by Oxfordshire, but not by Re HD H and C which was possibly an erroneous expansion of the authorities in a way that conflicted with them whilst having not grappled wiht them.

Mostyn J h says that a Judge dealing with this sort of issue should stay strictly within Oxfordshire’s guidance and will not go wrong, and that if Re HD H and C is to be considered the guidance in that needs to be reworked, which he helpfully does at para 37 (all bold is Mostyn J’s addition)

“(i) When considering the welfare of the child, the effect on the child’s welfare of an allegation being investigated or not is relevant.
But the significance to the individual child of knowing the whole truth cannot, of itself, be a main purpose of the investigation.
(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
(iv) The evidential result relates only to the case before the court.
Its potential utility in a future case about another child cannot, of itself, be a main purpose of the investigation.
Similarly, the public interest in the identification of perpetrators of child abuse cannot, of itself, be such a purpose.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact-finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.
(ix) Above all, the court must be satisfied that a fact-finding hearing is necessary.
This means that the court must be satisfied that the findings, if made, would produce something of importance for the welfare decision.”

Mostyn J went on to consider the facts of the case.

The threshold document sets out in pitiless detail why it is said that VW poses a risk of serious harm to IW were he to be entrusted to her care. In summary it alleges:
A: VW has experienced abusive and neglectful parenting throughout her childhood.

B: The resulting mental and emotional instability has resulted in an itinerant unstable lifestyle, and emotional and mental health issues.

C: VW has extensive, serious and enduring psychiatric, psychological and emotional difficulties. She suffers from: (a) somatic symptom disorder, (b) factitious disorder, and (c) malingering.

D: VW has an extensive history of deliberate self-harm spanning from the age of 12.

E: Since the age of 13, VW has frequently and repeatedly been detained in secure accommodation.

F: VW hoards medication and conceals sharp implements so she can continue to deliberately self-harm, even whilst under hospital care or detention.

G: In December 2020 whilst detained under section 2 of the Mental Health Act 1983, VW floridly self-harmed.

H: From her early teenage years VW has abused alcohol and various illicit substances including cocaine, crystal meth, magic mushrooms, ecstasy, and cannabis.

I: VW has an extensive history of presenting at numerous hospitals throughout the country with wide-ranging complaints as reflected in nearly 20,000 pages of medical records.

J: VW falsifies signs and symptoms in order to mislead and manipulate medics.

K: VW is dependant on opioids.

L: On repeated occasions during her pregnancy with IW, VW deliberately and surreptitiously self-administered insulin in order to manipulate her blood sugar levels and thereby factitiously induced a state of hypoglycaemia.

M:. VW’s psychiatric and psychological difficulties and behaviours are enduring, and by virtue of them, any child placed in her care is at risk of serious physical and emotional harm.

N: VW’s first child, AW, was the subject of care proceedings in which it was found that AW’s life-threatening collapse on the 28 January 2017 was consistent with dihydrocodeine poisoning and that the dihydrocodeine present in AW’s system was due to VW, who gave dihydrocodeine to AW.

O: VW’s vulnerability and underlying issues have led her to form a series of damaging, controlling, emotionally and, on occasions, physically abusive relationships with men and to place herself at risk.

In her witness statement of 15 July 2022 VW made extensive, but far from complete, admissions in relation to the contents of the threshold document. Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought”.
I emphatically reject these descriptions. VW’s admissions were extensive. She admitted a large number of the concrete facts alleged against her. So, for example, she accepted that she had self harmed by cutting herself; by swallowing razor blades; by overdosing even when in hospital; by tying ligatures around her neck; by threatening to jump off bridges or in front of trains; by self harming in relation to food; by abusing cocaine; and by her extraordinarily high number of hospital attendances. She accepted that from a young age she was involved in abusive relationships. She accepted the findings made by Recorder Bugg. She accepted that she cannot care for IW.
Mr Garrido QC described her admissions as accepting the underlying facts but disputing the professional label. Therefore, while she admits much of the conduct that led the experts to conclude that she suffered from FII, she disputes that diagnosis. In my opinion to have a state trial about professional labelling or nomenclature would be the height of futility.
In the Stockport case Thorpe J refers to the very considerable emotional and psychological cost to parents in accepting advice that leads to the conclusion of the case without a hearing. I can completely understand VW’s instinctive reluctance to condemn herself as being a sufferer of mordantly described psychiatric conditions. In my opinion it was brave and sufficient for her to make the admissions that she did in relation to concrete facts. Those concrete facts have been analysed by the experts and they have rendered their diagnostic opinions, which are uncontradicted

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Lacking / unreliable / generally weak

Posted on July 15, 2022 by suesspiciousminds

This is a case determined by Her Honour Judge McCabe – it isn’t binding authority for anything and is a fact specific case.

Given that, regular readers of the blog will discern that either the case has got some interesting quirky detail or it is a case where something has gone badly wrong. That is correct.

P, J, E-R, E-L (Children : Care Orders) [2022] EWFC 73 (28 March 2022)

http://www.bailii.org/ew/cases/EWFC/HCJ/2022/73.html

It was a set of care proceedings involving four children. The Local Authority were asking for Care Orders and Placement Orders (ie that they felt the four children should be adopted). I’m not going to go into the reasons why the children couldn’t live with the parents here – the judgment deals with it, but that’s not the significant part.

18.  Much of the time in evidence was taken up exploring the rationale behind the Local Authority’s care planning and seeking to put ‘flesh on the bones’ thereof.

19.  Given the very stark difference of opinion between the Local Authority and the Guardian, and the fact that the social worker went off sick after the first day of the hearing, it became necessary to seek to look further up the ‘food chain’ to consider whether the Guardian’s concerns might be taken on board by the Local Authority. I ended up directing the head of services to attend on what should have been the final afternoon at a time when I should have been giving judgment in this case.

20.  If I say that the Local Authority evidence has been lacking / unreliable / generally weak, I am afraid that that would be an understatement.

The Local Authority plan at the start of proceedings was that they wanted to place all four children together, but that if they couldn’t manage to find a placement for all four children together that they would be instead in two placements of two children each.

Something so fundamental as to how to divide the four siblings into two groups of two if they are not to be placed together. The care plans submitted placed the children in a particular format of two groups of two. The ADM documents placed them in a different two. When asked why this was, in her oral evidence the SW started by saying that it was a typographical error. She then went on to acknowledge that it wasn’t, it had in fact been her view that the middle two should be together and the oldest and youngest together due to the strength of relationship of the middle two, and that this had been a well considered plan, due to the nature of the relationship that they had. This had then changed when the team manager assessed the documents.

  1. Now I am told, in the team manager’s witness statement, that indeed it had been a typo, never picked up in the court documents. That it is a typo is confirmed by the ADM in his statement.
  2. It is not far short of bewildering to try to follow the Local Authority’s care planning in this case. The together and apart assessment, which the team manager and the ADM in his recent statement, confirm that they relied on in their decision making, was accepted by the social worker in her evidence (quite rightly, in my view) as being an assessment that is “fundamentally flawed”.

Obviously typographical errors do get made, and that’s unfortunate with something so important, but the Court was put in a very difficult spot here – there were effectively two different plans as to how to place the children separately – the social worker’s evidence was originally that this was purely because of a typo, but then that it was not a typo but that she had been overriden by her manager and that her assessment of how the children should be placed based on her knowledge of them had been overruled.

Now, frankly this does happen sometimes. Social workers do not work in isolation – they do have managers and senior managers, and sometimes the views of those managers does overrule the social worker. But it seems that there was not candour about this. Two differing explanations were given.

By the end of the case, the Local Authority had abandoned the plan for all four children to be placed together and was presenting instead the proposal that two placements be found, each caring for two children. (I can’t establish with precision whether this proposal was the one in the care plans, or the social worker’s view that the eldest and youngest be placed together and the middle two placed together)

I directed that the head of services should attend Court for 2pm on the last day of the trial so that investigation and explanation could be provided. I was rewarded by the team manager physically attending at 3pm. By 5pm the Local Authority was absolutely no further forward in being able to explain what therapeutic intervention would be made available and when. The head of service had declined to attend via Teams (I having been told earlier in the afternoon that she was available to attend remotely ‘from 4pm’) but then attended at 5.05pm and, in fairness, immediately appeared to understand the severity of the situation.

There then followed an ‘emergency’ statement from the team manager that came in after the close of the oral evidence, making efforts to put flesh on the bones in justifying the Local Authorities’ care planning. I’m afraid that I did not find this to be an impressive piece of evidence. It repeated the various platitudes (examples being: it is best to place siblings together if you can, adoption provides the most permanent sort of permanence and so forth) but I’m afraid that it took me no further in truly understanding these particular siblings and their particular needs.

The judgment sets out the evidence given by the Guardian in some detail

When she was recalled to give evidence on the final day, the GAL said this:

  1. “It’s really difficult to say it without saying it: the lack of appreciation from the trust as to what these individual needs are for the children and the lack of ability to reflect on what we’ve heard and take into account both now and in longer term….
  2. The landscape as to what has been progressed by LA and put remains confusing, I’m confused, I don’t know what the Care Plan is, I don’t understand contingency measures. I don’t know how court can make final orders and trust can be trusted to execute those Care Plans properly…..

I’ve never been in this position ever as a GAL, I wouldn’t feel I am executing my roles to the children if I allowed the care plans to be signed off now…..

  1. Concerns me we’ve had these proceedings running now for almost two years, the children have been represented by me, a solicitor, significant oversight from a number of professionals, should have been concluded last week, with decisions that appear to be made off the hoof, knee jerk decisions, with long lasting outcomes for the children…..
  2. No confidence that the Care Plans we are being provided with on rolling basis are right”
  3. She talked of an atmosphere in the case of confusion and said this:
  4. “It’s massively concerning the state of the evidence and how its been presented to the court, even now today, the trust don’t seem to have a proper understanding of what the children need moving forwards…..
  5. Less than 40 minutes ago, the plan changed from placement all four together, to the parallel of two and two……
  6. It’s confusing and I think the court needs proper evidence before it is in a position where trust is given to professionals to ensure the childrens’ needs are properly met in the longer term. Options extremely limited……
  7. I’m not happy, I’ve known these children long enough to know they deserve what’s right for them, not confident that the Care Plans meet their needs”
  8. It should be noted that all of this was said at a time when it was necessary to recall the Guardian to give evidence after having a further morning of evidence from the team manager who had had to prepare a statement of evidence over the weekend.
  9. The way in which this case has proceeded is, in my judgment, wholly unacceptable. These are applications for placement orders for four children. The parents, each of whom have their own mental health vulnerabilities, oppose the applications. They should not be having to react, with their Counsel, to ever changing plans and evidence served last minute. It is difficult to understand how it is that these proceedings can be so heavily delayed and yet come into Court in such poor order, and as I made clear at various points during the hearing, this could not have been rendered more painful and difficult for the parents had it been deliberately designed that way. Having said that, I ensured that time was given at each stage that it was necessary, and I am satisfied that the parents have in fact had a fair and full hearing. It was unfortunate, however, that parents who are facing the permanent loss of four children, had to endure and listen quite so much and wrangling between professionals.

The Guardian made an application for an independent social work assessment to carry out the social work assessment of the children’s needs and relationship dynamics to inform how the children should be placed.

  1. The Guardian has made, after the close of the evidence, an application under part 25 for a further assessment. She considered that this was necessary because somebody independent was needed to carry out, in blunt terms, the work that the Local Authority should have done and that she no longer trusted that they would do. She believes that there needs to be a proper assessment of the needs of J and P, whether they should be placed together or apart, whether they should be placed for adoption or long term foster care, what their therapeutic needs are and how they can be met, by whom and when.
  2. I have found this difficult to wrestle with. On the one hand, I completely understand why the Guardian has felt compelled to make this application. Such ‘analysis’ of realistic options as could be found from amongst the thousands of pages of evidence in this case was woefully inadequate. That much the team manager, in fairness, accepted. For these two children, on the very cusp of what would be considered an ‘adoptable age’ and with marked behavioural difficulties, and difficulties in their own relationship, the welfare analysis carried out by the Local Authority should have been exquisitely sensitive and absolutely focussed on the individual characteristics of the children.
  3. Instead, what the Local Authority provided was little more than the usual platitudes of ‘adoption provides the best permanency’ and ‘siblings should be raised together’. I am afraid that, even after the additional statement of evidence of the team manager, things did not get much better. I agree with the Guardian that the care planning, when a limited concession was finally made at Court, could be described as ‘knee jerk’.
  4. I understand why there is so little trust in the Local Authority by the Guardian.

The Court did not grant that assessment – the Court made Care Orders and Placement Orders for the youngest three children, but determined that the eldest child P should be placed in long-term foster care rather than adopted.

I make some concluding remarks. This case has been extremely difficult and almost impossible to ‘keep on track’. It has taken the strenuous efforts of the Guardian, Counsel for the Guardian, and the Court to ensure that the case proceeded in a proper manner, to the extent of the Head of Services for the Local Authority having to be summoned to Court at 5pm on a Friday afternoon.

  1. This should never have been necessary and was only made necessary because of the almost absence of proper, responsive, careful planning by the Local Authority. The Local Authority’s advocate was, at some points, left with nobody at all at Court to assist her or give her instructions, and at times with nobody from the Authority even listening in to the evidence on the Teams link.
  2. The allocated social worker, who absolutely did her best to assist the Court, had to admit that her together and apart assessment was fundamentally flawed. That evidence was given on the first day of the hearing. From that point onwards it should have been patently obvious to the Local Authority that there was a real issue with their care planning and that careful consideration needed to be given to the complexities of the sibling relationship and their individual needs. Instead, the Local Authority remained doggedly fixed with its original care plan, providing generic reasoning only in its defence, and failing to see the complexities and nuances of the case.
  3. In the end I have made orders that could be considered to be fairly predictable and reasonably uncontroversial on the facts of this case. They were the orders initially being suggested, for very good reason, by the childrens’ Guardian, and had the Local Authority been able to bring a more responsive, thoughtful, flexible eye to what was happening in Court the proceedings could have been much shortened and the parents spared having to listen to lengthy arguments amongst professionals about how care planning for their children should or should not be undertaken. I very much hope that this will not have to happen again.

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More heat than light – appeal on recusal

Posted on July 11, 2022 by suesspiciousminds

This is an appeal from a decision of Keehan J not to recuse himself for future hearings following what was on any description a very challenging interaction between Judge and counsel.

When I first thought about writing this post my intention was to try to be studiously neutral – I obviously wasn’t in Court, I didn’t hear the evidence, I haven’t read the full transcripts or heard them, and these matters were clearly highly contentious. Also, because both Judge and counsel are named, I did not want to be disrespectful to either of them on what was clearly a situation that was heated and became even more heated as things went on.

I have reconsidered slightly, and I think that I will just give my quick view that I think things got badly out of hand and that there were faults on both sides but with the benefit of being removed from the case in time, stakes and no connection to it I think the Judge reacted badly to some provocative remarks both orally and in writing BUT that as one of the episodes of counsel/Judge conflict did lead to the evidence given by a witness being potentially affected, I think the Court of Appeal COULD have allowed the appeal, but weren’t wrong to refuse it.

Deep breath.

Re AZ (A Child: Recusal) 2022

https://www.bailii.org/ew/cases/EWCA/Civ/2022/911.html

The background of this case is complex and difficult. Effectively, the mother and father entered into a surrogacy arrangement and a child, A resulted from that. The clinic had kept some of father’s gametes, and it was later found that by way of deception on the mother’s part, those gametes had been released to her in order to enter a second surrogacy arrangement unknown to the father, which produced twins.

There had been quite a lot of litigation, and serious findings had been made against the mother in relation to the conception of the twins and her honesty whilst giving evidence in those proceedings. The mother made allegations of domestic abuse against the father which the Judge found not to be true and that she had been dishonest in her evidence about these matters.

The parents had separated and a decision was made by the Court that A was to live with his father. The mother then made an application for Child Arrangement Orders for the twins, not mentioning in her application the adverse findings made by Keehan J in A’s proceedings.

The mother made complaints to the police about the domestic abuse (subsequent to the findings that they were not proven, and not mentioning those findings) and similarly about the father who was a doctor to the General Medical Council.

A five day hearing took place in August 2021. The mother sought at the outset an adjournment of the hearing on medical grounds. It was finally agreed that she would give evidence remotely.

Counsel instructed for the mother, Mr Uddin, had prepared a position statement in support of her application to withdraw.

In the course of summarising the circumstances in which his client’s medical condition had come to the court’s attention, counsel included the following observations:
“The application for an adjournment is made by the respondent mother with some trepidation. The mother feels that this court will use against her any application for an adjournment.”
“It is apparent that the court due to issues at previous hearings has a distrust of the mother and to put it bluntly prima facie disregard for the mother’s position.”
“It is one thing for the court to deny the mother to vary an interim contact order but another to disregard her application for an adjournment.”
” …she had ignored her own health conditions to avoid a delay in these proceedings and her weariness of this court due to her previous experience before this court.”
“The subsequent treatment of the mother by the court after her cancer disclosure has solidified mother’s weariness of this court.”
“It is true the mother has raised questions about the conduct of the court at previous hearings, but it would be unfair and unjust for the court to use this against the mother which the mother feels the court is doing.”

In the early stages of the hearing, the Judge made some remarks in relation to this document.

The transcript of the hearing shows that almost immediately after the start of the hearing, the following exchange took place:
“Judge: Yes, Mr Uddin?
Counsel: May it please you Lordship, my Lord —
Judge: It does not please me, actually, because I consider your position statement to have been impertinent and impudent and I should tell you now that if you ever dare file a position statement like that before me again, I will consider reporting you to the Bar Standards Board. Do you understand?
Counsel: Thank you, my Lord. My Lord, the position statement was done on instructions from my client
Judge: Yes, I am sure it was.”

The second most serious matter occurred during the Guardian’s evidence.

This instance is described as “bullying and threatening the Appellant’s counsel with the Bar Standards Board on the 27th August 2021”. As all parties recognised, this was the most troubling incident during this difficult hearing. In argument before us, Ms Ancliffe placed particular weight on it in support of the appeal.
The background to this incident is a passage in the evidence given by the children’s guardian at the end of the previous day’s hearing. During questions from Mr Wilson on behalf of the father in which he was challenging the need for a family assistance order, the guardian had described the relationship between the mother and A as “so special and so close” and continued:
“I think we’re looking hopefully at a new chapter in this little boy’s life, one where he can resume a positive relationship with his mother and learn about his siblings. All of these things are really important for A, for his sense of identity. He must have suffered trauma and loss losing his mother out of his life and all of his extended family, to whom he was very close and, again, I’ve observed that personally on more than one occasion. So, to have that back in his life would just be so good for him and I think the CAFCASS officer could assist with that.”
On the following morning, shortly after Mr Uddin started his examination of the guardian, the following exchange took place:
“Counsel: Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind—-
Judge: If [the guardian] said that, I did not hear it.
Counsel: Well, I did– I prefaced it, my Lord, with the “If I have misquoted you, please correct me.”
Judge: Yes. All I am saying is I do not recall her saying that.
Counsel: Well, my Lord, she (inaudible). My Lord, I am asking a question but I did preface it and said, “If I misquote you.” What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?
Judge: Well, she did not say it.
Counsel: Well, let us hear what she says then, my Lord.
Judge: Do not talk to me like that.
Counsel: My Lord –
Judge: You carry on and do what you want.
Counsel: Well, my Lord, how could I do anything I want? I am in your Lordship’s court.
Judge: Yes. It would be helpful if you could remind yourself of that. Now ask the question.
Counsel: Well, no, my Lord. I—-
Judge: Ask the question.
Counsel: Well, I want– I think we need a five-minute break because I do not like being spoken to like this. I am an officer of this court. I deserve respect. Your Lordship comes into this court and we all stand up because we show respect and I am an officer of the court. I will not—-
Judge: No you are not —
Counsel: (inaudible)
Judge: –an officer of the court. You are not a solicitor. You are a member of the Bar.
Counsel: Well, my Lord, I—
Judge: I am not wasting any more time. Get on with your cross-examination.
Counsel: My Lord, I will make one further point. This is my workplace. This is my workplace, just like your clerks and—-
Judge: Will you please just get on with asking your question?
Counsel: I will but can I have it affirmed from you that you will not talk to me in that way?
Judge: If you speak to me respectfully, I will speak to you respectfully.
Counsel: My Lord, I apologise if I have come across in any way disrespectful but this is my place of employment and I will not be spoken to in that way by anybody. When I have employees, I never speak to them in that way.
Judge: You are getting yourself close to being reported to the Bar Standards Board. Now please just get on with your cross-examination.
Counsel: May I ask that same question again or not?
Judge: Certainly.
Counsel: Yesterday – please correct me if I misquote you in any way – my understanding was that A suffered trauma when he was moved away from [the mother], away from the extended family and her. Am I quoting you right or am I misquoting you?
Witness: I think you’re probably misquoting me. I don’t remember using the word “trauma”. I’m not saying A wouldn’t have suffered trauma but I don’t recall saying that in evidence yesterday.
Counsel: Okay. Well, I did say– I said in fact– I had a note of “trauma” and I will– I stand to be corrected. Did you use the word “traumatic” then or– can you recollect?
Witness: I can’t recollect, I’m sorry.
Counsel: All right then. Well, then, in that case, in relation to the upheaval, how do you think that has affected A?
Witness: I think A because of his age would have been confused about the changes that took place moving from one residence to another residence. He already had formed a good relationship with his father so it wasn’t as though he was going some– with someone he didn’t know. The environment would have been slightly different but, yes, I think it– because he’s preverbal and explanations couldn’t really be given to him as to what was happening in his little life, you know, I think he would have been confused.”
The guardian’s evidence continued. A little later in the morning, following a short adjournment for unconnected reasons, Mr Uddin addressed the judge in these terms:
“My Lord, if I may be permitted to make this personal statement which is recorded here, in these proceedings today was the second time your Lordship has threatened me with the Bar Standards Board and I am concerned whether my client is losing confidence in me and whether I can continue. However, having spoken to my client, she has not lost confidence in me. I will continue with this case but, my Lord, I totally appreciate these kind of cases are not easy for anyone concerned, even your Lordship. These are dealing with the souls of people and, my Lord, I am also a human being with blood and salt running through my veins and if there is another threat, my Lord, I am going to have to consider– I totally accept, if I am in any way inappropriate, then your Lordship should admonish me so, on that basis of that understanding, my Lord, I am going to continue. I feel my client has not lost confidence in me and I can carry on. I just wanted to put this marker down, my Lord. May I continue?”
The judge did not respond to this statement. Counsel resumed his examination of the guardian. There were no further episodes of conflict between him and the judge.

It was submitted on behalf of the mother that this incident would lead a fair-minded and informed observer to consider that there was a real possibility of bias for several reasons. First, the judge’s initial intervention was wrong and unfair. Counsel’s recollection of the guardian’s evidence the previous evening was correct: she had referred to trauma. Secondly, the judge lost his temper with counsel and addressed him in a way that amounted to bullying. Thirdly, counsel was clearly unsettled by the way in which the judge addressed him and asked for an adjournment, which the judge refused. Fourthly, the judge’s renewed threat to report him to the BSB was unjustified and wrong. Finally, the effect of the intervention was that the guardian wrongly said that counsel had misquoted her. The judge’s intervention therefore materially undermined the evidence.
In response, Mr Wilson acknowledged that the judge’s comments during this exchange may be the most troubling. He pointed out that counsel’s summary of the guardian’s evidence the previous day was not precisely accurate. He did not seek to defend the judge’s reference to the BSB. He added, however, that, following this exchange, Mr Uddin had continued to cross-examine the guardian for an extended period recorded over a further 21 pages of transcript, during which there were further respectful and productive exchanges between judge and counsel. This was one incident over a five-day hearing and, in evaluating the question of apparent bias, a fair-minded and informed observer would have regard not just to this moment but to the whole hearing in the context of the overall proceedings.
In his written submissions to this Court, Mr Bowe informed us that, having carefully considered the transcript, the guardian could see that counsel’s question did not strictly reflect the evidence that she had given the day before in that she had not said that A had suffered trauma “when he was moved away” from the mother to the father but rather that A must have suffered trauma having lost the mother and his extended family. He added, however, that the guardian’s perception was that the judge unexpectedly shouted at counsel when telling him not to talk like that, causing counsel to request a five-minute break and that the style of the intervention, taken in combination with the previous admonition and reference to the BSB on 25 March, resulted in what Mr Bowe called a somewhat freezing effect on counsel. He also noted that the effect of the intervention was to cause the guardian to doubt her previous evidence and potentially deprive counsel of the opportunity to explore the issue of “trauma” more fully on the mother’s behalf. For those reasons, it was his submission that a fair-minded observer would consider that instances (3) and (8) together do amount to apparent bias.

The Court of Appeal had to consider whether the judicial tests for recusal (i.e that this Judge would not hear this case again) were met and whether the Judge had been wrong to refuse the application to recuse himself.

Obviously, any application for recusal is very difficult. You are, on instructions, having to apply to the Court to say to them that your client does not consider that they have been fair and that they cannot decide the case fairly in the future. Nobody really wants to say that to a Judge, and probably no Judge really wants to hear it. There is a balance to be struck between the duties to fearlessly represent your client but also to have respect towards the Court, and it can be a very difficult tightrope to walk.

The Court of Appeal said this

In this part of the case we are concerned with alleged bullying of counsel by a judge. Where it occurs, judicial bullying is wholly unacceptable. It brings the litigation process into disrepute and affects public confidence in the administration of justice. However, it inevitably remains the case that situations of conflict between bar and bench will sometimes arise. In that connection we make the following points.
First, counsel are sometimes obliged to object to, or be critical of, something said or done by the judge in the course of a hearing. Judges should, and almost always do, appreciate that this is a fundamental part of the advocate’s role and should entertain the objection with respect, even if they regard it as ill-founded. However, respect goes both ways. It is important that any such objection or criticism is expressed, however firmly, in a professional way. Most judges nowadays conduct hearings in a less formal manner than may have been usual in earlier generations, but that is not a licence to disregard the particular position of authority which they necessarily enjoy.
Second, trials are a very intense environment. Even the best counsel may in the pressure of the moment express themselves in ways which they did not really intend or say things which they would not have said if they had had time for reflection – whether in the context of an exchange with the judge of the kind discussed above or more generally. Judges should, and almost always do, recognise this. Many such lapses can simply be overlooked or corrected with a light touch.
Third, there will nevertheless be occasions when counsel’s conduct requires explicit correction or admonishment. In such a case the judge should try to ensure that any rebuke is proportionate and delivered in measured terms, without showing personal resentment or anger. Even a merited rebuke may be unsettling for counsel; and it may also, even if unjustifiably, have an impact on the confidence of their client in the fairness of the hearing. That said, some such impact may be unavoidable, in which case it has to be accepted as a consequence of counsel’s behaviour.
Fourth, a statement by the judge that they are considering referring counsel to the BSB is a particularly strong form of admonition and is accordingly particularly liable to have an adverse impact of the kind referred to above. For that reason, we believe that it will rarely be appropriate for a judge to raise the possibility of referring counsel to the BSB in the middle of a hearing. In the great majority of cases, the better course will be to wait until the end of the hearing, which will avoid raising the temperature more than is necessary and will also mean that the judge can evaluate counsel’s conduct in the overall context of the hearing. In the rare case where an allegation of professional misconduct does have to be raised in the course of a hearing, the situation will require sensitive handling and the judge will be well advised to take time to consider carefully when and how to raise the matter.
Finally, since judges are human, and (as Black LJ observed in Re G, supra) hearings can be challenging for them as well as for counsel, they will sometimes lapse from these high standards, and incidents will occur which the judge should have handled better. But such lapses do not necessarily amount to bullying; still less does it necessarily follow that in such a case the hearing will have been unfair or that the judge should recuse themselves from any further involvement. On the contrary, it is fundamental to the culture and training of a professional judge that they will decide each case according to its objective merits. If judge and counsel rub each other up the wrong way, whether or not it is the fault of either or both, that can be, and almost always is, put to one side in the decision-making process. Likewise, the professional training and experience of counsel should enable them to deal with criticism from the bench, even if they may believe it to be unjustified.
We should add that although the mother’s reference to bullying requires us to consider the judge’s conduct, the dispositive question on this application is not whether he was guilty of misconduct in relation to either instance but whether his conduct would give rise to a reasonable apprehension that he was biased against the mother, because of her counsel’s behaviour.

They went on

In his third judgment handed down on 15 November 2021 the judge said that parts of the position statement filed for the hearing on 25 March 2021 were “rude and impertinent”: the phrase he used at the hearing itself was “impudent and impertinent”. We might not have used those precise terms, but we agree that the passages that we have quoted from the position statement are objectionable. Although, as we have acknowledged above, there are occasions where it is counsel’s duty to accuse a judge of unfairness, in the context of the adjournment application the accusation was not only unfounded but gratuitous. It did not advance the substance of the application to say that the mother feared that it would be unfairly “disregarded” because of the judge’s previous findings, still less that she feared that he would use it against her. Those assertions did no more than vent the mother’s personal feelings about the judge’s findings (which findings were unappealed). We recognise that this may not have been an easy position statement for Mr Uddin to draft but if his response to the judge that it was drafted “on [the mother’s] instructions” meant that he thought he was obliged to make offensive imputations of this kind merely because his client wanted him to do so, that was a serious misunderstanding of his duty.
It was in our view appropriate for the judge to admonish counsel about the tone of the position statement. He also acted appropriately by doing so succinctly, and in a way that drew a line before he moved on to the substance of the application. We have to say, however, that we do not think that his rebuke was well expressed. Although it is never easy to assess how things are said from a written transcript, the words used by the judge convey the impression that he felt personally affronted: that was not appropriate. As for his mention of the BSB, it is fair to say that the judge did not say that Mr Uddin’s conduct merited a report (and we do not believe that it did) but only that he would report him if he did the same again. But it was, for the reasons set out above, inadvisable for him to mention a possible reference to the BSB in the course of the hearing.
Although we believe that the incident could have been handled better, we consider it to have been a limited incident, best characterised as an over-reaction to what was in our view a gratuitously offensive position statement.

and in relation to the cross-examination of the Guardian

As we have seen, the parties before us were agreed that instance (8) was the most serious of the instances on which the mother relied. It is important to start by analysing exactly what went wrong.
The starting point is the judge’s querying of whether in his question to the guardian Mr Uddin had accurately summarised an earlier answer she had given. The question began:
“Now, yesterday in evidence you said, and please correct me if you find me to (inaudible) in any way, that A did suffer trauma when he was moved away from [the mother] to the care of [the father] leaving behind …”
It was at that point that the judge intervened to say that he had not heard the guardian say that, though a little way into the exchange he said in terms that she had not done so.

Because of the way things developed, the judge did not specify exactly what it was in Mr Uddin’s formulation that he believed was wrong. When Mr Uddin eventually put the question again the guardian said that she did not believe that she had used the word “trauma”. As the transcript shows, she was wrong about that, and to that extent Mr Uddin’s question accurately reflected her evidence. But it is not clear to us that that was the judge’s point. Mr Uddin’s formulation was in fact inaccurate in a different way, because it suggested that the guardian had attributed the trauma to A being moved “to the care of [the father]” whereas she had referred only to it being caused by the loss of his mother and extended family. The difference is only slight, and it is fair to say that Mr Uddin had not finished his question when the judge intervened and he may well have been going on to refer to that aspect too (as he did when he eventually put the question again); but even if so his introduction of a reference to the father arguably carried the implication that the guardian had said there was something about the father’s care that caused trauma. It may well have been this perceived inaccuracy that the judge was objecting to. In any event, at this stage there was no more than a possible misunderstanding of a kind which sometimes occurs in the course of cross-examination, and no-one is to be criticised.
Mr Uddin responded to the judge’s intervention by saying:
“What would you like my Lord to do, not– for me not to even ask the question because your Lordship has not heard it?”
That was in our view disrespectful and impertinent. The correct response from an advocate when his recollection of the evidence is questioned by the judge is to seek to clarify the position, most obviously by establishing exactly what the issue is and asking that the judge’s note be compared with those of counsel and solicitors. His further response “Well, let us hear what she says then, my Lord” also has a confrontational ring, at least as it appears in the transcript.

Thus far the criticism is entirely of Mr Uddin. But it is clear that his disrespectful response (or responses) caused the judge momentarily to lose his temper. Even without the tape, it is plain that his response (“Do not talk to me like that”) was angry – and that is confirmed by the guardian’s recollection recorded at paragraph 121 – and his replies in the course of the following exchange, culminating in the observation that Mr Uddin was coming close to being reported to the BSB, show that he did not immediately recover his poise. That exchange in its turn clearly unsettled Mr Uddin and caused him too to become heated – “I deserve respect”, “can I have it affirmed that you will not talk to me in that way?”, “I will not be spoken to in that way by anybody”. Although the judge tried to close the incident down and return to the evidence, Mr Uddin would not at first do as the judge asked. He requested a break, which the judge refused. Although Mr Uddin resumed his questions to the witness, he obviously remained troubled, hence his “personal statement” a few minutes later.
This was clearly a regrettable incident. It was started by Mr Uddin’s disrespectful response or responses, for which the judge was fully entitled to admonish him. However, the way that the judge did so raised the temperature and clearly unsettled Mr Uddin. With the benefit of hindsight, we believe that he should have taken up the suggestion of a short break for “cooling-off”. Instead, he warned Mr Uddin that he was getting close to being reported to the BSB. We have already observed that it is generally inadvisable to warn of the possibility of a reference to the BSB in the course of the hearing, and that was particularly so here when feelings were running high.
Miss Ancliffe submitted that the judge’s intervention had led the guardian to wrongly disavow her earlier reference to A having suffered trauma by having been moved from her mother’s care. That may be the case, even though the judge himself did not focus on that word, but it is in truth impossible now to know. Ultimately, it does not matter. We are not concerned as such with the effect of the judge’s intervention but whether the incident to which it led gives rise to a reasonable suspicion of bias on his part. However, we should say that we do not consider that the guardian’s revisiting of the issue had a material impact on the outcome. She was a professional witness well able to express her considered opinion and her subsequent answer, set out at the end of paragraph 117 above, described in more precise terms how A had been affected by the move from the mother.
CONCLUSION ON INSTANCES (3) & (8)

It will be seen that we have some criticisms of the judge’s response in relation to both these instances, and in particular instance (8). However, the question on this appeal is whether what he said on those occasions would lead a fair-minded and informed observer to consider that there was a real possibility that he was biased against the mother. We do not believe that it would. In neither case was his conduct gratuitous: on the contrary, he was reacting, albeit inappropriately, to disrespectful conduct on the part of Mr Uddin. These were two short-lived and isolated episodes in separate hearings, the second of which lasted several days. They are just the kind of incident which may arise in the course of highly-charged proceedings but which, as we have said above, a professional judge will put to one side when assessing the merits of the case. As noted at paragraph 47 above, in his eventual judgment the judge said that the exchanges between him and Mr Uddin had had no effect on his decision-making. Of course that statement itself cannot be conclusive, but it is consistent with what the fair-minded and informed observer would expect of a professionally trained judge and there is nothing to suggest that it was not the case here. There is no complaint of any other inappropriate interchange between the judge and Mr Uddin. We refer also to paragraph 95 above. The mother and her legal representative were given a fair opportunity to put her case, and the mother was allowed to adduce extra evidence. At the conclusion of the hearing, the judge handed down a judgment in which he rejected a number of the proposals put forward by the father. All the evidence is that the judge reached his conclusions following the August 2021 hearing in a fair and balanced way, and there is no reason to suppose that he would not do so in the remaining stages of the case.
Having been critical of some of Mr Uddin’s comments, we should record our impression that, despite the evident professional difficulties he was facing, he represented his client tenaciously and effectively.
OVERALL CONCLUSION

In relation to both groups of instances, we have concluded that they would not lead the fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother. For the avoidance of doubt, that remains our view if all seven instances are considered cumulatively. It is for those reasons that we concluded that there was no basis on which the judge should have recused himself and that this appeal should be dismissed.

(As a sidebar to the case, one of the grounds of appeal which did not particularly cause the Court of Appeal trouble was the claim that the Judge’s remarks during mother’s evidence of “I am writing that down” were indicative of bias, and the Court of Appeal said this:-

There is no substance in the complaint about the judge’s taking of notes or his references to his notebook during the hearing. It is entirely a matter for a judge to decide what notes to take of the evidence. Neither counsel nor anyone else in court is in any position to assess what a judge is writing down. It is not unknown for a judge to indicate to counsel that his line of questioning is not helpful by putting down his pen. This is an example of the disclosure of judicial thinking which, as Sir Thomas Bingham MR observed, is sanctioned in the English tradition. Criticising a witness’s answer, and recording the criticism in his notebook, is a legitimate expression of scepticism which, to use Sir Thomas’s words, “is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be”. In this case, the judge’s references to the notebook during the mother’s evidence were made in the course of appropriate challenges about her reasons for reporting allegations to the police which he had found to be fabricated.

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Irresponsible sperm donor

Posted on May 30, 2022 by suesspiciousminds

This is a very unusual and interesting High Court case.

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/50.html

JM is a man who has been making private arrangements with women who want children to be a sperm donor for those women. He does this privately rather than through a clinic because clinics will not accept him as a donor.

They will not accept him because he has an inheritable genetic condition, Fragile X. He has assisted 15 women to have children through his donations.

He entered into agreements with the women at the time, that he would not have anything to do with the child.

Despite this, he made applications in relation to 3 children for parental responsibility and contact. In some of those cases, serious allegations were made against JM.

The Court was considering :-

  1. Whether to grant those applications
  2. Whether to make an order under s91(14) of the Children Act 1989 to bar any further applications without leave
  3. Whether to name JM in the judgment.

Obviously, the latter point is the most legally interesting.

Naming JM in the judgment

It would be an unusual step in a judgment such as this to name one of the parents. The usual approach is to anonymise the parents so as to protect the identity of the children. However, it is clear from Tickle v Griffiths that there are cases where the public interest in the naming of the parents is sufficiently great as to outweigh the risk of identification of the children and their Article 8 right to privacy.
There are strong grounds for naming JM. All three mothers and the Guardian support naming. Although JM told the Court that he had ceased to act as a sperm donor, a social media message from February 2022 suggested that he was still offering his services at that date. In the light of JM’s lack of honesty to his own mother, Mrs M, and his belief that he has done nothing wrong, he said he would be a sperm donor for any of the existing mothers so the children would have a “sibling connection”, I have no confidence that he will not act as a sperm donor in the future. I equally have no confidence in him fully explaining to any woman the true implications of his Fragile X Syndrome. There is therefore a very specific benefit in him being named in the hope that women will look him up on the internet and see this judgment.
As the Guardian suggests, there is a wider public benefit in the risks of private sperm donors being more widely known and considered. Publishing this judgment without anonymising JM raises the prospects of wider dissemination of the huge impact using JM as a sperm donor has had on these mothers.
If JM is named there is some risk that the children will be identified. However, R, P and N do not bear his surname, although B does. In any event, they are too young to be conscious of any internet comment. It is possible that they may become aware in the future of the facts set out, but it would be a sensible course for the mothers to explain the position to the children in an age appropriate way at some future date in any event.
Ms Robertson raises the negative impacts upon JM of his being named and identified as a sperm donor. I accept that there may be some negative impacts. However, JM chose to be a sperm donor despite knowing that he would not be permitted to go through a clinic. He also chose to make these applications despite the strong opposition of the mothers. There is no suggestion that JM does not have capacity in respect of these decisions. In those circumstances, the fact that JM will be identified is a consequence of the decisions he has made.
There is a wider point about transparency in this regard. The usual approach of anonymity in the Family Courts should not be used as a way for parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions and practice in respect of anonymity in family law are there to protect the children and not the parents.
For all these reasons I consider this to be a case where it is appropriate to name JM.

(and now that I’ve dealt with that bit, I can tell you that the name of the case is :-

MacDougall v SW & Ors (sperm donor : parental responsibility or contact) (24 May 2022)

It would be fair to say that the Court was not impressed that James MacDougall fathered 15 children by way of sperm donation despite knowing that he had an inheritable genetic condition.

I also take into account the fundamental irresponsibility of JM acting as a sperm donor whilst knowing that he had Fragile X Syndrome, an inheritable condition, without at the very least making it entirely clear to the mothers concerned the implications of Fragile X. JM knew that he could not be a sperm donor through a clinic because of his condition. He told the Guardian that he thought Fragile X was not serious and it was for the mothers to do the research. Even if JM does not understand the true implications of Fragile X, he does know it prevents him acting through a donor clinic.
Although the agreement does refer to Fragile X, JM took no steps to explain the condition to SW or EG and no steps to ensure they understood. JM took advantage of these young women’s vulnerability and their strong desire to have children. This failure to take responsibility for his own condition, and to have any apparent concern for the long-term impact both on the mothers and potentially the children, is a factor in concluding that JM should not be given parental responsibility for the children

The Court did not grant him the Parental Responsibility Orders or orders for contact, and made s91(14) orders for three years (I should note that because one of the children had social services involvement, matters in relation to that child were adjourned and although the applications related to 3 children the Court only dealt with 2 for that reason)

Very unusual for a Court to name a parent in children proceedings, it generally only happens where there are committal proceedings, but one can completely see – particularly where JM said he intended to continue being a donor, why the Court felt it was appropriate that anyone deciding to take up James MacDougall’s services should know that he is a carrier of Fragile X and that googling his name is likely to provide a link to this judgment.

If you are undertaking any sort of fertility arrangement that does not involve a professional clinic (and even some of those aren’t great – google Suesspicious Minds + Port Harcourt for example) it would be a very good idea to get some independent legal advice first. The agreements JM had drawn up for these women was, the Judge said

The agreement is a closely spaced three page document in highly legalistic language which is difficult to read even for a lawyer

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Brazil

Posted on April 5, 2022 by suesspiciousminds

This is a case about protection of a vulnerable adult, who has capacity to make a decision, but where everyone involved could see that the decision was a very very poor one, even the adult herself accepting that if a friend came to her with the same decision she’d say “of course it does not sound like a sensible plan”

EF is a girl aged 18, coming up to 19. When she was 14, she met a man GH on an online chatroom. GH was at that time 25. When she was 15, GH sent her an engagement ring and told her that they would get married. In September 2019, GH came to the UK to meet EF, and whilst in the UK he was arrested on charges of indecent images of children.

GH returned to Brazil. EF wants to go to Brazil to be with him.

The London Borough of Islington brought the case to Court, seeking under the inherent jurisdiction orders preventing her from going to Brazil.

The Court say this about GH

What is known is as follows. He is 11 years older than EF. He met her in a chat room when she was 14 and continued a relationship with her when he learnt she was 15. He admits to EF that he is addicted to pornography and has downloaded child pornography including images of very young children. He told EF that this action was linked to his addiction. He knows about EF’s mental ill health and her need for mental health support and so her vulnerability.

Of course anyone looking at this case would be very worried about EF, who is vulnerable and appears to have fallen in love with a man about whom there are significant red flags. However, it is clear that EF has capacity to make decisions for herself, even unwise ones.

The Court was driven to the conclusion that the orders sought by the Local Authority were a very significant interference with the freedoms of a person who whilst vulnerable had capacity to make decisions for herself, even very bad and unwise ones. The Court declined to make the orders (which must be right in law, though you can easily see why Islington asked for them) but also urged EF to think very carefully before making the trip to Brazil and EF had agreed to undertake some educative work before going.

Discussion
The first point to reiterate is that it is clear from Dr D’s evidence and the parties agree that EF has capacity and that therefore the court’s jurisdiction is not the MCA.
I am also mindful of the statutory principles set out in section 1 of the MCA namely that a person must be assumed to have capacity unless it is established that she lacks it and that a person is not to be treated as unable to make a decision merely because she makes an unwise one.
As EF has capacity the only jurisdiction that this court has to make the orders the LA seeks is pursuant to the court’s inherent jurisdiction but the exercise of this is carefully circumscribed as set out above and the power must be used sparingly.
Although the MCA does not apply I think the above principles apply equally in this case, namely that I should assume EF is able to make her own decisions and should not be treated as being unable to merely because she is making unwise ones.
I have considered all the cases that I have been referred but in my judgement the weight of the authorities clearly indicates that this jurisdiction should be used rarely and in any event should be facilitative and not dictatorial and that the court should not make orders against the subject of the proceedings prohibiting them from acting in accordance with their wishes.
The orders that the LA seek are dictatorial and aimed at the victim namely EF. The LA is expressly seeking to impose such decisions upon EF, namely prohibiting her from visiting or living with her partner, prohibiting her from travelling to Brazil and prohibiting her from having her passport without the permission of the court. The net effect of these prohibitions is also to stop EF from seeing GH. The LA are seeking for decisions of the utmost significance to be imposed upon EF. On that basis alone I should not make them.
If I am wrong about that and there is a jurisdiction to make such orders against victims it only exists in truly exceptional circumstances. I am not satisfied that those exist in this case. The scale of interference is significant and not in reality time limited to 6 months as it is by no means certain that in 6 months’ time the court will be in a different position as there is every chance that despite the work that EF will carry out with the LA her views will not have changed. The justification for the inference is the risk to EF’s health and wellbeing and in the worst case her life. I have already dealt with my assessment of that risk.
Moreover, EF is an adult with capacity and wants to be in a relationship with GH. She has known him for 3 years and separated from him once. She has received advice from professionals not to go and is intelligent enough to understand that advice and act on it if she so wishes. She plans to visit Brazil at least once before moving there permanently. She has saved up a reasonable sum so that she will have a degree of independence once over there. She plans to take a second mobile phone with her as another level of security. She has researched the medical and health facilities in Brazil and is aware of its shortcomings. She has agreed not to travel to Brazil until her course is completed. She has agreed to continue to work with the LA before she leaves. These are sensible decisions which show a degree of independence and critical thinking.
In addition I have very much in mind EF’s Article 8 right to respect for her private and family life which if I were to make the orders sought by the LA would be breached as she would be prevented from pursuing the relationship she wants and living the life she wants. As already stated the purpose of invoking the inherent jurisdiction in respect of a vulnerable adult should be to enhance a person’s Article 8 rights not limit them. Article 8 protects and obligates the State to “respect” both “family life” and “private life”; this includes a person’s right to live their personal life as they choose and establish and develop relationships including intimate relationships. The orders the LA seek would fundamentally breach EF’s Article 8 rights. Moreover, as already referred to, whilst the LA only seek orders for a further 6 months, such orders have been in place for 9 months already and there is a real chance and KL
accepted that in 6 months the LA’s position will not have changed and they will seek further orders.
Lastly to impose what would be a worldwide travel ban for any further period of time would be a highly intrusive step by the court would and only be justified in exceptional circumstances. I am not satisfied those exist in this case.
I am conscious of the fact that the only reason why court intervention is possible in this case to stop EF’s relationship with GH is because he lives in another continent. If EF was associating with a man who lived in London who the LA thought was unsuitable they would not be able to protect her from that save by depriving her of her liberty which step they obviously would not take.
Conclusion
This is a difficult case but I have therefore reached the clear conclusion that the court should not continue to invoke its inherent jurisdiction to stop EF from travelling to Brazil and so having a relationship with GH.
In the Court of Protection in the case of LB Tower Hamlets v PB [2020] EWCOP 34 Hayden J, VP, stated that:
” The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection.”
In my judgement this general principle has application in this case.
I have therefore decided to end the protective orders that have been in place.
I do that on the basis that EF has undertaken to this court that she will not travel abroad before the end of her college course on 5.07.22 and that in the meantime she will attend the proposed sessions of work arranged by the LA.
Postscript
I end this judgment with a plea to EF. I have accepted that the LA and Dr D are right to be very worried about her because I have found that there are real risks to EF’s wellbeing from moving to Brazil and living with GH.
I have concluded that the professionals in this case have EF’s best interest at heart and want to protect her and keep her safe.
The court’s view is that EF would be making a very unwise decision to move to Brazil.
I urge her to work with them between now and July when her course finishes.
I urge EF to attend all the sessions that the LA arrange for her.
I ask EF to listen carefully to the advice given and think more deeply about the issues in this case.
EF told me she would be worried if a friend of hers was about to embark on a similar trip. She needs to think about her own case as if she were that friend

https://www.bailii.org/ew/cases/EWHC/Fam/2022/803.html

London Borough of Islington and EF 2022

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