Category Archives: case law

Ellie Butler – Court of Appeal overturn decision to keep family Court judgment from Press

Posted on July 29, 2016 by suesspiciousminds

Just after the Ben Butler conviction about Ellie Butler’s murder, the family Court decided that the judgment of King LJ about Ellie’s death would remain confidential. At the time, nobody quite understood why.  And it was a very unpopular decision, many people feeling that the family Court had misjudged the public mood for openness and learning lessons from the case.

 

Then Pauffley J’s judgment was published and it transpired that the decision was largely about making sure that if Ben Butler appealed and got a re-hearing he couldn’t use the publication of the judgment to get off on a technicality that it had stopped him having a fair trial.

I wrote about that here

Judgment on Reporting Restriction on the Butler/Gray case

 

The Press appealed that decision and the Court of Appeal overturned it

Re C (A child) 2016

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/798.html

 

 

  • The central issue that arises on this appeal is whether the judgment given by Eleanor King J on 30 June 2014 (“the Judgment”) in care proceedings in respect of a child to whom I shall refer as “C” and which were conducted in private and subject to reporting restrictions should be put in the public domain. C is the younger sibling of Ellie Butler. The parents of the two children are Mr Butler and Ms Gray. On 28 October 2013, Ellie died as a result of catastrophic head injuries at the family home.
  • Following her death, Mr Butler was arrested on suspicion of her murder. C was removed from the care of Ms Gray and placed into police protection and care. Public law care proceedings were commenced and thereafter orders were made from time to time prohibiting any publication that would enable C to be identified. The first of these was made by Hogg J on 30 October 2013.
  • In the Judgment, Eleanor King J found that (i) Mr Butler had caused Ellie’s death; (ii) Ms Gray had failed to protect her from Mr Butler; and (iii) C had been the victim of physical and emotional abuse.

 

That information that Ellie’s younger sibling had been the victim of physical abuse had not been in the public domain until today. The emotional abuse we could have guessed at – given that Ben and Jennie made C find Ellie’s body as part of the cover-up, but the physical abuse is new information, and obviously significant.

 

 

  • In what follows, like the judge I shall only refer to Mr Butler. So far as I am aware, Ms Gray has not indicated that she is intending to seek leave to appeal. The letter from Bindmans was written on behalf of Mr Butler. In balancing the article 6 rights of Mr Butler against the public interest in open justice and the article 10 rights of the applicants, I am in no doubt that the judge reached the wrong conclusion. If she had made a proper assessment of the risk that there would be a violation of Mr Butler’s right to a fair trial, she would have been bound to conclude that the risk was minimal and was plainly outweighed by the countervailing considerations to which I have referred.
  • First, she made no assessment of the likelihood of a retrial. This was not the judge’s fault. It is a striking feature of this case that no attempt was made on behalf of Mr Butler to demonstrate that he had real prospects of being granted permission to appeal, still less that any appeal would be likely to succeed. In these circumstances, the judge should have approached the article 6 issue on the basis that there was at best a speculative possibility that there would be a retrial.
  • But the second and decisive reason why the judge reached the wrong conclusion is that, even if there is a retrial, there is no real possibility that the publication of the Judgment will prejudice the rights of Mr Butler to a fair trial. This is clearly demonstrated by both our domestic jurisprudence and the jurisprudence of the ECtHR which are entirely harmonious with each other on this point.
  • Our domestic law is heavily influenced by section 4(2) of the CCA which provides that an order postponing the publication of a report of proceedings can only be made “where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice”. Such an order should only be made as a “last resort”: R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979 per Lord Judge CJ at para 13.
  • In assessing whether there is a “substantial risk of prejudice”, it is necessary for the court to have regard to three matters in particular. First, juries “have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial”: Re B [2007] EMLR 5 at para 31. The importance of trusting a criminal jury to comply with directions made by the trial judge has been underlined repeatedly. For a recent example, I refer to Taylor [2013] UKPC 8 at para 25. Criminal Practice Direction 26G.3 identifies what judges should cover in their opening instructions to jurors. This includes that the jury should try the case only on the evidence and no other material. In particular, juries are directed to make no internet searches relating to the trial and to avoid discussing the case with anyone outside their number, including on social media.
  • Secondly, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice: Re B at para 25.
  • Thirdly, the “fade factor” that applies in news cases. The “staying power of news reports is very limited”: Judicial College Guidance on Reporting Restrictions in the Criminal Courts, revised in May 2016 at p 29. The significance of this factor may have reduced a little in view of the staying power of the internet. But in my view, it remains a highly relevant factor.
  • It is clear from the Strasbourg jurisprudence that, even if there were a retrial of Mr Butler, his article 6 rights would not outweigh the article 10 rights of the applicants.
  • In Beggs v United Kingdom (app. No. 15499/10), the ECtHR adopted an approach which is entirely consonant with that adopted in our domestic jurisprudence: see paras 122 to 129. It noted, in particular, in cases concerning the fairness of criminal trials, the importance of directions given to juries. In that case, there had been a “virulent and prejudicial press and media campaign” against the applicant before his criminal trial took place. The complaint that the impugned publications had influenced the jury was declared inadmissible for a number of reasons. These included that in his directions the judge had warned the jury to disregard the prejudicial material and that it was reasonable to assume that the jury would follow the directions given.
  • Abdulla Ali v United Kingdom (App. no. 30971/12) was a similar case. There was what was described as “an avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. The court said at para 89 that a direction to the jury to disregard extraneous material “will usually be adequate to ensure the fairness of the trial, even if there has been a highly prejudicial campaign….”. At para 91, the court said that “it will be rare that prejudicial pre-trial publicity will make a fair trial at some future date impossible.” The applicant had not pointed to a single case where the ECtHR had found a violation of article 6 on account of adverse publicity affecting the fairness of the trial itself.
  • The judge acknowledged that, in the event of a retrial, the risk of prejudice to its fairness occasioned by the publication of the Judgment was “small”. In my view, it was so negligible that it should have been given little or no weight in the balancing exercise. The judge failed to take into account (i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) the fade factor (it would be many months and possibly more than a year before a retrial would take place). If she had properly taken these factors into account, she would have been bound to conclude that the Judgment should be put into the public domain. Mr Bunting makes the further valid point that it is difficult to see how the publication of the Judgment could create a separate substantial risk of prejudice given that much of what appears in it is already in the public domain. But I do not need to examine this point in detail since the Judgment should be put into the public domain for the reasons that I have already given, subject to the redactions necessary to protect the interests of C. These redactions have been the subject of further submissions and the Court has made an Order determining the way in which the Judgment should be redacted.

 

Conclusion

 

  • For all these reasons, I would allow this appeal and permit the Judgment to be published with the approved redactions.

 

 

As far as I understand, the King LJ judgment is now in the hands of the Press, some redactions to it having been made (to preserve C’s anonymity, no doubt). It is not at the time of writing, up on Bailii but I will keep an eye out.

 

 

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Back off War child. Seriously

Posted on July 28, 2016 by suesspiciousminds

Yet another alleged radicalisation case, this time private law.

Amongst the many allegations, that the father had wanted to give the child a name which in Arabic meant “War”

 

And if you think that a Point Break reference is beneath this blog, then you haven't been paying attention

And if you think that a Point Break reference is beneath this blog, then you haven’t been paying attention

 

Re A and B (Children : Restrictions on Parental Responsibility : Extremism and Radicalisation in private law) 2016

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/40.html

 

There were two children, aged 3 1/2 and 2. The parents are separated. The mother alleged in private law proceedings that the father was showing signs of extremist behaviour and that he presented a risk to the children as a result.

 

Outwith the extremism allegations, there were some very serious domestic violence episodes, and as a result the father was imprisoned and there was an order for his deportation

 

 

  • On the 13th June 2014, in breach of the order made the preceding November, F came within the area of M’s address in Cheltenham, he was carrying mobile phones and various other items and wearing protective motorcycle-wear (he had driven there by car). F was found by a police officer in M’s garden behind the shed and he was arrested, charged and remanded in custody. This incident, which ultimately led to F’s conviction, resulted in a multi-agency risk assessment (MARAC) collating evidence about what the local authority and police considered to be a high risk case of domestic abuse. M said in her statement, and I accept, that she was regularly warned by the police and other professionals that they were worried about her safety and that of the children. She and the children were moved from Cheltenham, to a location which remains confidential. M has become highly anxious, has had counselling (to which I have already referred) and CBT. She describes herself as on a constant state of high alert and is frightened to let the children out of her sight; even to the extent that she is too fearful to allow them to go to nursery school.
  • Following the June incident on 14th October 2014, M applied for a further non-molestation order without-notice; a further injunction order was made forbidding F from using or threatening violence against M or from going near her property; the order made expires on 14th October 2016. On 15th December 2014, while on remand, F applied for CA orders including, somewhat unrealistically, a child arrangements order that A and B live with him and a prohibited steps order. Meanwhile, as arranged by the authorities, M had moved to another address in a different area of the country to stop F attempting to get to her and the children again.
  • F’s criminal trial took place at Bristol Crown Court on 26th February 2015 and 2nd March 2015; he was convicted on two counts of a breach of a non-molestation order and was sentenced by His Honour Judge Tabor QC, on 9th March 2015, to consecutive sentences of 3 years’ imprisonment. The judge made a 10 year restraining order. The court also made a recommendation for deportation as F is a foreign national who had received a sentence of more than 12 months.

 

In case you want to know what the ‘various other items’ were:-

 

 

  • On 13th June 2014 F was in breach of a non-molestation order when he was found by police hiding in the rear garden of M’s home with various items concealed about his person, including a black face covering, a torch, an aerosol spray can, camouflage gloves, a black cutting tool and holder, an eye mask, safety glasses, iPhone and Samsung phone. Another bag containing a hammer and screwdriver was discovered in F’s hiding place behind the garden shed (later found to have traces of F’s DNA) and a search of F’s car revealed two further mobile telephones.

 

Brrr.

 

In the criminal trial, father denied everything

 

 

  • F denied having been in M’s garden at all and said that the police had made up all the evidence and that he was the victim of a big conspiracy. As His Honour Judge Tabor said F had, since the moment of arrest, sought to cast the blame on everyone but himself. F had accused practically every person concerned with the case of lying, including M, M’s family, the two arresting officers, the interviewing officers, the social worker who interviewed F on behalf of the court, and the psychologist who F had seen. F accused his family case solicitors of incompetence and his wife’s solicitors of incompetence. This mirrors F’s evidence in the case before me where, when he is not denying everything he is accused of, he systematically seeks to accuse everyone else of lying about him.
  • In his sentencing remarks, the judge went on to say that the fact was “that no-one really knows who you are. You claim to be Syrian but you came to this country with no passport. You are a man who is a stranger to the truth. It is difficult to believe a word that you say. More concerning is the fact that you appear to be completely unconcerned about the terror that you have inflicted upon your wife, who naturally now fears for her life and that of her children. You are so consumed yourself that you totally ignore the pain that you inflict on others.”
  • His Honour Judge Tabor made reference to the fact that F had chosen to sack his counsel during the criminal trial (he has done so during these proceedings too); he said “when this case started you were represented by a highly able member of the Bar. He would not have allowed this case to start if it had not been ready. On the second day after your wife had been cross-examined, you chose to dispense with his services. I have no doubt that this was your plan all along as you wished to control proceedings. I believe you are a dangerous man, particularly dangerous to your wife and children. You are devious and self-obsessed. There is no mitigation in this case at all other than the fact that you do not have a criminal record.”
  • F denied all the evidence against him in the criminal trial, indeed he continues to do so. In respect of all the items found in M’s garden, F said that PC Rogers had lied to the court and made up his evidence about having found F in the back garden, he was never there. He claimed that the glass cutter found in the bag at the scene had come from his car and was in an emergency bag; that the camouflage gloves were his driving gloves for use when he adjusted his tyre pressures; that the black cutting tool was part of an emergency kit from America to cut his seatbelt. He told the jury that the black face covering was a pollution mask which he used because he was very conscious about his health and that the safety glasses were to protect his eyes when driving because he could not use the air conditioning. His DNA had been found on the handle of the screwdriver, but he denied it and would not accept the evidence. Similarly, F denied that the foot spray found at the scene belonged to him and said that the police had made up this evidence to “spice the case up”. Unsurprisingly the jury did not believe F and found him guilty.
  • The judge passed a total sentence of three years which reflected the seriousness of his offences. These were not minor breaches of a properly imposed injunction but serious and pre-planned breaches which involved another person and F travelling from London having located M and the children. He came fully armed and prepared; as His Honour Judge Tabor said on the 12th of June 2014, having been foiled in his attempt to use his friend to gain access, “you made a far more sinister plan. You went and hid in the garden of your wife’s home in the late afternoon. You had with you: glasses to protect your eyes; a face mask, which would also prevent you from inhaling noxious fumes; a large pair of gloves – it was June; a glass cutting tool; a sharp-bladed tool; a hammer, screw-driver and torch. I have no doubt that you sat in the garden and waited for an opportune moment to break into the house. Furthermore, I infer from your activity, and with what you had brought with you, you were not only going to force your way into your wife’s house but also to do her harm or abduct the children, or both. You were caught in the act of hiding behind a shed in the garden by a police officer who chased you across several gardens before you were finally apprehended. You were to complain that you suffered from a slipped disc, but as the officer pointed out, you appear to have cleared large fences in your bid to escape. This was one of several maladies that you complain of.”
  • This feature of F’s evidence, remarked on by the judge in the Crown Court, was replayed in this court. There was no medical evidence in support supplied by the prison doctors despite F’s attempts to get it. In addition to the three-year term of imprisonment there is a ten year restraining order in place until 9th March 2025. F is forbidden to contact M or the children directly or indirectly (except through a solicitor). He cannot go to any address where she is resident. He cannot enter Gloucestershire except to attend the family court or for pre-arranged visits to see the children. He is not to instruct anyone or encourage in any way any person to contact M or the children (except through his instructing solicitor). On 5th July 2016 my clerk was sent an email purporting to be from F’s father, from whom the court has heard nothing and who had filed no statement within the proceedings. It had had attached an email to M which, on the face of it, was an apparent attempt at breaching paragraph 4 (set out above) of the restraining order by contacting M through the court.

 

 

The radicalisation evidence begins here

 

M claims that A has been caused emotional harm by F’s behaviour towards him; that while still an infant F exposed A to violent films which he watched and told A of his expectation of how A should fight; F had purchased a replica AK47 with laser as a present for A’s first birthday in October 2013 which was unsuitable for his age, and had then posed with his infant son in a ‘Freedom Fighter’ pose.

 

 

  • It was said by Miss Isaacs, in the schedule prepared by her on M’s behalf, that the evidence in support of this included F’s expressed beliefs that non-Muslims are inferior to Muslims, that homosexuals are unnatural and should be killed and that women are subservient to men; and specifically that F “expressed acceptance of the use of violence as a means of ensuring compliance with his views and beliefs”. That it was F’s “expressed beliefs [sic] that it is acceptable to kill those who have left the Muslim religion”; that F had “expressed admiration and respect for Syrian ‘Freedom Fighters’ and [that it was] his expressed view that he would like to go there and fight with them”.
  • It was further said that the risk of radicalisation could be found in “F’s expressed glorification of war including wanting his child or children to be called ‘War’ in Arabic and posing for provocative [sic] photographs”; and that F had purchased bullet proof clothing, gas masks, knives, night time goggles for the purpose of sending to friends in Syria, with similar items having been found and seized by police during an authorised search of F’s flat. This was neither confirmed or denied by the police. The email from the Andrew Fairbrother of the MPS Directorate of Legal Services said that M had not provided a witness statement from them and the MPS investigation “came about in consequence of information that [M] provided on or around the 28/01/14 to the Gloucestershire Police that was passed on to the MPS, and also in consequence of a letter the [M] sent to the Secretary of State for the Home Department dated 11/02/14 that was referred to the MPS on or around 21/02/14”.

 

There was also evidence presented to the Court about father’s controlling behaviour towards mother

 

 

  • It was said by M that F has caused her emotional harm by the use of coercive and controlling behaviour, including financially abusive behaviour. M said that he did so by assuming control of the family finances and isolating M from family, friends and the wider community. In fact, F accepts that M was socially isolated when they lived in London and said in his statement dated 23rd February 2016 “she did not go out at all”. He then goes as far as to say they had arguments because she would not take her head scarf (hijab) off at all, claiming that he “could see no reason for her to be veiled at all times but she insisted on this.” Later in the same statement he says that the family “went out rarely but sometimes went on outings to shops, parks and museums…” At no point in his written evidence does he mention having friends at the home, but later after he had concluded his oral evidence he attempted to have the case adjourned to have further evidence filed or disclosed, including from some friends who, he claimed would give evidence that they visited F and M at home and that M and F had visited in return. Not only was this never mentioned previously, it contradicts his own evidence.
  • To return to complaints made by M she said as part of his controlling behaviour F had forbidden her to speak to men without his permission; and that F forced M to walk on the inside of a pavement when in public to avoid attracting male attention; that F shut her in the bedroom to avoid males when they visited the family home. M said that F used the threat of taking A away from M to make her compliant with his wishes. M said that on several occasions F told M that he would kill her and/or her son if she contacted the police or tried to leave him; and that F made reference to the use of violence as an appropriate ‘tool’ to discipline women to ensure her compliance.
  • F further undermined M both by repeatedly telling her that she was a bad mother and by making complaints to professionals which, in part, led to two investigations by social services departments (which uncovered no reason for concern). M said that his controlling behaviour included F following her to the local social services offices, on 6th November 2013, and that his presence caused her to feel intimidated and anxious. She complained that F was manipulative and that, specifically, he put her under pressure to agree to A being circumcised, disregarding her wishes and causing the baby pain and infection. His manipulative behaviour extended to his withholding information about his mental health, for which he received treatment and he forbade M from mentioning it; during these proceedings he has continuously made allegations that M is mentally ill or unstable.
  • It is M’s case that she and the children are at risk of future serious physical and emotional harm from F because of his behaviour and the threats he made during the time they lived together. She places reliance on the occasion on the 14th October 2013, when F assaulted M while she was pregnant with B, he threatened to get rid of the thing she loved the most, implying that he would kill A if M reported his abusive behaviour to the police. M has said that F frequently implied that he would kill her or A or both of them if she left; he also threatened to take A away from M and to take him to Egypt.
  • It is M’s case that the action taken by F on 13th June 2014 constitutes evidence of an advanced plan by F to abduct or cause serious harm or even death to M and the children. This concurs with the sentencing remarks of His Honour Judge Tabor made in February 2015.
  • As evidence as to the extents that F would go, M relies on what she said that F did during their reconciliation between August and October 2013, when F covertly placed a tracking device in the baby’s pram in an attempt to monitor M’s movements; she says that she discovered by the device on 23rd October 2013.

 

 

 

The father did not redeem himself in the evidence he gave before the Family Court, deploying as his defence that his wife’s behaviour following pregnancy was so hormonal that it had led her to behave badly towards him but that he now forgave her.  You will not be amazed that Ms Justice Russell was not persuaded by this novel defence.

 

 

  • F has filed two statements in these proceedings, dated 23rd February and 23rd May 2016. To the first he exhibited certificates from various courses he attended in prison which, he said, meant that he was a changed man. His case remained that M was lying and had “started a conspiracy against me with the bad people to get rid of me completely.” The identities of the bad people remained unclear. According to F, M had abused him throughout their marriage; had behaved in an aggressive way and had racially abused people, in particular he claimed she was “severely anti-Semitic“, when she had ventured out from wherever they were living. His second statement, which he prepared himself, amounted to little more than a lengthy diatribe against M, the “British Justice System” and an exposition of his view of women based on what he said he had learned in prison. “These courses taught me there is no pregnant female in the world who is herself when she is pregnant. This can last for up to two years after she has given birth, she will recover slowly not only physically but psychologically and emotionally therefore I forgive [M] for what she did to me.”
  • If this is indeed what F was taught in prison those courses are in need of serious and extensive revision and overhaul. His oral evidence was more of the same, an attempt to blame M for everything that happened and to exonerate himself, by applying the platitudinous, misogynistic stereotype of the mentally unstable and emotionally volatile woman, whose behaviour was such that it would have tried the patience of any man to breaking point.

 

The Judge made some powerful findings of fact

 

Findings of Fact

 

  • I have considered the evidence of the applicant and respondent and for the reasons I have set out above, and below, I accept the evidence of M and reject that of F. I find that the applicant’s case is made out and that, apart from the allegations regarding radicalisation, to which I shall return, the specific complaints made by M about F’s violence and controlling behaviour I find to have been proved on the balance of probabilities. F has during their short relationship, which lasted little over two years, repeatedly threatened and used violence against M. The violence had not been slight, or at the lower end of any scale; on several occasions he has seized M by the head and neck and attempted to choke or strangle her; once while saying that he would be able to break her neck in one twist. He has slapped her, kicked her, shaken her and thrown her to the ground when she was pregnant. These are all serious assaults and the choking or attempted strangulation must have been terrifying to endure.
  • These violent assaults took place when A was there and I find that F assaulted M on at least one occasion while she was tending to A which must have caused him distress and probably instinctive fear, even if he was too young to be aware exactly what was going on. I find that he bought the baby a replica assault rifle for his first birthday, which F later posed with himself; and that he watched violent films when the child was there. This behaviour would have caused M to fear for A and that his father was exposing him to, and encouraging him in, the use of violence. I do not accept that F is, as he has said, a peace loving man who would not even harm animals because he is a vegan; as his evidence about this was another example of self-serving evidence which suddenly appeared during his oral evidence without any previous mention of it.
  • F behaved in a threatening and intimidating way towards M frequently throughout their relationship, this included him threatening to kill A on one occasion and, on numerous occasions, to carry out an “honour” killing on her if she ever left him. He was abusive and controlling of M. This abuse included financial abuse with F controlling the family’s finances. I accept that she only had access to the money in the joint account and that the amount of money available in that account was entirely controlled by F. Even on his own account M was isolated from friends and family, but I do not accept that this was her choice, rather I find that he set out to keep her isolated and refused to allow her to mix with other people. I find that he forbade her to speak to other men without his permission; he intimidated her when they were out by making her walk in the inside of the pavement and avoid contact with other men; he shut her in the bedroom when his friends visited him; he repeatedly threatened to take A away from her to get her to comply with his wishes; he threatened to kill her and A if she left or contacted the police; and, that he explicitly told her that violence was the appropriate way to discipline a woman.
  • F made repeated claims to professionals that M was not fit to be a mother; this he continued to do throughout these proceedings and in his oral evidence. There have been two social service assessments of the family because of referrals due to domestic abuse. The first was by Kensington and Chelsea in August 2013 when M and A (then 9 months old) were referred by a senior care health advisor, to whom M had disclosed that F had grabbed her round the neck, causing bruising to her throat, amongst other physical abuse. This description corroborates the evidence in her statements. M was interviewed by a social worker and by the police; she was then taken by her mother from the police station to her mother’s home. As M and A were considered to be living in a “place of safety” outside the borough the case was not taken any further. When M and F reunited this triggered a further referral in September 2013; this time the referral was by the health visitor. M told the social worker that she was a practising Muslim, but not as strict as her husband, and that she had not been in agreement with circumcision, however F had gone ahead with it; M had felt it was cruel and painful for the baby and that it was not necessary (further corroboration of M’s evidence). The risk of further domestic abuse was considered to be raised by M’s being pregnant. The risk was assessed as High. These two s47 CA assessments corroborate M’s evidence.
  • In October 2013 Kensington and Chelsea carried out a further assessment, by which time M had left and gone to Cheltenham, having obtained non-molestation orders against F with support from another agency, Advance. The assessment recorded that the domestic abuse she was experiencing was of the “controlling and intimidation nature [sic]”, such as putting a tracking device in A’s pram, following her when she was out on errands and checking her mobile phone each time she received a phone call or message. F was described as minimising the incidents and that he made out that his wife was “sensitive and over-reacts”. It was recorded that it was not possible to discuss the domestic abuse in detail with M who feared she would be placed at more risk of domestic abuse at home had she done so; as the assessment records the “the fact that [M] fears the consequence of this discussion is evident [sic] of the level of intimidation and worry that his behaviours have had upon his wife.”
  • Again the assessment corroborates M’s evidence. I find that F did place a tracking device in A’s pram, and that he did follow M when she went out; specifically, I find that he followed her when she went to social services offices. As he had done so it was unsurprising that the assessor made the comment about the evidence of the level of intimidation experienced by M. To go to the extent of putting a tracking device in the baby’s pram is an example of the extreme lengths that F would go to try to control and monitor M’s movements; when this was coupled with following her she must have been left feeling terrified, undermined and powerless. I have no doubt that F intended that she should feel that way.
  • It is behaviour such as this which then led to F’s planned, calculated and determined attempt to get to M and the children in Cheltenham. The breaches of the non-molestation order were very serious, as was reflected in the sentences handed down, and armed with a plethora of sinister implements F can only have been intending to cause harm to M and the children or intending to abduct them as the judge said in his sentencing remarks. F posed a considerable and a serious risk to M and to the children at that time and there is no evidence before me that would support a finding that the risk is in any way diminished. F continues to use all means at his disposal to try to circumvent the restraining orders, the fact that those means are very limited is only because he remains behind bars. Based on his past and current behaviour, his denial of his criminal convictions and the absence of any remorse the likelihood is that F would again attempt to track M and the children down and to harm M and abduct the children. Abduction causes lasting harm to children and the risk that it is likely to occur must be taken into account by this court when considering how safe it is to allow F’s involvement in the children’s lives now and in the future.
  • The fear of being tracked down has directly affected the children as it has undoubtedly affected their mother; to live in fear and anxiety will have made her, as their guardian observed, less emotionally available to the children than she otherwise would be. This fear has led to her, and therefore the children, leading much more restricted lives than they otherwise would have done. She was, and is, frightened that F could track her down as he did when she was living down in Gloucestershire and is so fearful that he would manage to do so again that she cannot bring herself to let the children out of her sight. This fear is not ill-founded, it is all too easy to access information on the internet, and F has done this before. For that reason, she has not enrolled A or B in a nursery and it is for that reason that she seeks an order to allow her to change the children’s names.

 

 

Changing a child’s surname is not an easy thing to do, where one parent objects, but I am sure that most readers would be 100% satisfied that it was justified in this case, and so was the Judge.

 

The extremeism elements were more difficult – the police disclosure had not provided any evidence, and as a reader, I was left with the impression that this man was violent, controlling, manipulative and probably a fantasist who enjoyed leading his wife to be fearful of him. In terms of hard evidence that he was connected to Daesh or radicalised, the absence of any police or Counter Terrorism investigation into him made that difficult to prove.

Given the very strong evidence against him in almost every other regard, it wasn’t really necessary to prove those matters. Ms Justice Russell was critical of the attempt to include such matters in the schedule of findings sought.

 

 

  • In private law proceedings where allegations of extremism or radicalisation are pursued as part of the case or findings sought against another party, then it must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
  • The President’s Guidance: Radicalisation cases in Family Courts issued by Sir James Munby P, on 8th October 2015 sets out a checklist of factors that the court is to be alert to, and emphasises the need for a co-ordinated strategy predicated on the co-operation between agencies. There was no lack of co-operation in this case, but there was a lamentable lack of a properly constructed and focussed preparation of M’s case, based on the evidence, particularly in respect of the allegations of radicalisation, and the way in which this was prosecuted on her behalf. When applications for disclosure were made by counsel it was not even clear which police service was being asked to disclose information about F; the Gloucestershire Constabulary or the MPS. Draft orders for disclosure were addressed simply to “the _ Police”; which can only indicate the lack of information on which those applications were based. No application was made to make use of the 2013 Protocol, and it is difficult to reach any other conclusion other than that the applications were a speculative attempt to bolster the case on behalf of M.
  • In cases where there is accusation or allegation of extremism or radicalisation the party making those allegations cannot rely on them without evidence. Where there are current or past criminal investigations it is necessary to wait for disclosure before the schedule of findings is produced and finalised. In private law, as in public law, the party bringing the case carries the burden of proof; it is on them that the duty lies to adduce evidence in a timely fashion and in compliance with the FPR 2010. Any finding of fact in private law or public law family proceedings, and indeed in all civil cases, must be based on evidence.  As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
  • I am not, however, persuaded by any submission on behalf of F that M pursued the allegations of radicalisation to add to the gravity of the case against F “because someone for his background is an easy target.” M had converted to Islam herself before she met F, but from M’s point of view F is someone who has seriously assaulted, attacked and threatened her. He has tried to control and intimidate her even after she left him and I do not doubt that M felt that F had used his religion to justify his appalling behaviour towards her. She probably said so to the police. I did not hear any evidence about how the investigation of F originated in Gloucestershire and it is not possible to exclude the possibility that the police had seen in what M told them evidence of extremism and had escalated the case as a result. Certainly some of his behaviour was bizarre and had included posing in a museum and elsewhere in battle-dress and with weapons; he had purchased night-vision goggles, gas masks and bullet proof clothing and had shown an active interest in the conflict in Syria (but not in the actions of Daesh per se) so it would have been that behaviour about which M properly spoke to the police.
  • F’s faith and his practice of Islam is a matter for him and his conscience. I was left with no clear idea of the extent and nature of his faith. At first he refused to swear on the Qur’an but when I asked him why he then did so. During his evidence he broke the Ramadan fast, and those, and other aspects of his behaviour, were inconsistent with strict religious observance. I do not doubt, therefore, that he, personally, chose to use his religion both as a means of justifying his violent and controlling behaviour and as a way of intimidating M; such as by saying that women who left the faith would be killed and that if M left him she would be killed.

 

 

 

The father wanted the children to be brought to see him in prison, but the Judge rejected that and made the unusual (but completely warranted) order that father should have no contact.

 

 

  • There is no evidence before the court that would permit me to conclude that F would be able to promote the children’s interests if contact was allowed; or that he is capable of behaving in a manner that would produce a safe and nurturing environment for these two little boys whilst he remains in denial as to his actions and the impact of those actions. Moreover, he has continually been negative and hostile towards M and, even if he were able to have contact without harming M or attempting to take the children, the evidence is that he would use any and every opportunity to undermine her, as their mother, during contact.
  • The impact of direct contact on M is something to which the court can properly have regard, and I take regard of the considerable impact F’s behaviour has had on M already. I have made findings that the extent of the fear he has induced in M has led to her curtailing the activities she and the children can, and do, participate in and has effectively limited their integration into the wider community in which they live. I have no doubt that any order for contact would have a profoundly negative affect on M and would seriously undermine the quality of care she is able to give the children. The guardian is “of the view that these are exceptional circumstances which would, sadly for the boys, merit there being no direct contact.” It is the conclusion of this court that there is no arrangement or available way in which contact can take place so that the children would be safe from the risk of significant harm from F; it remains a fact he has already harmed their mother and caused them to leave their home on more than one occasion.
  • F says he wants to have contact with the children in prison, one can see the benefit for him, particularly in regard to his argument against deportation, but any such contact would be without benefit for the children. They have no relationship with F (because of his behaviour) and so these very young children would need to be brought to prison to be introduced to him; there is no-one to carry out this sensitive work with the children. It is highly unlikely, given their previous assessments, that any agency, local authority or child-care professional would undertake this work or consider it to be in the children’s best interests. Moreover, F is likely to be deported to Egypt in the short term so the likely distressing effects on the children and their mother would be for the short term gain for F alone. In any event, the court will not order contact to take place, even if F were to avoid deportation, because the risk he presents is overwhelming.

 

 

 

 

 

 

 

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Jihadi Toddler

Posted on July 27, 2016 by suesspiciousminds

Of course the toddler himself didn’t have any Jihadist inclinations, but this is the judgment from the care proceedings where a mother actually took her toddler to Syria, into the war zone and photos were taken and used by Daesh for propaganda of both her and her toddler. She then came back to England and was arrested and convicted in a criminal Court.

This case contains really valuable information about what really went on in Syria and what awaits these Jihadi brides – it makes a very useful companion piece to the recent Hayden J decision about a teenaged girl who had been sucked into this radicalisation and recruitment.

 

Re Y (A child : Care Proceedings :Fact finding) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/30.html

 

 

  • This is a judgement deciding issues of fact and welfare concerning a little boy who was born on 22nd August 2013 and is now two and three quarter years. He was removed by the police from his mother’s care when she arrived back in the UK from Syria in early 2015 and she was arrested by officers of the Counter Terrorism Unit. He was the subject of protective measures for 18th February 2015 when taken from his mother by the police. He has been the subject of an interim care order since 20th February 2015. At first he was placed with foster carers then moved and placed with another foster family in June 2015 and there was some delay in the local authority carrying out assessments.
  • Y’s mother (T) is in prison serving a six-year sentence following her convictions for intentionally encouraging acts of terrorism and being a member of a terrorist organisation (Daesh).

 

The mother’s case, broadly, was that she accepted the facts that she had travelled to Syria and lived  there with her little boy, and then came back to England. She had little choice about that, given the conviction, but she disputed that these events had caused significant harm to the boy – with a view to fighting for his return to her care on her release from prison (which will probably be in about 2-3 years time)

 

Conviction for terrorism offences

 

  • T was convicted on 1st February 2016 at Birmingham Crown Court. The jury found the prosecution case proved that T had been in touch with a known terrorist and was a supporter of ISIS; developing a following on Twitter. T was found to have published statements that encouraged terrorism; images that supported Daesh/ISIS and were intended to encourage people to commit, prepare or instigate acts of terrorism.
  • T was found to have travelled to Syria via Turkey, in order to travel without arousing suspicion. She had had the assistance of a named member of Daesh and as a result was transported to Raqqa in Syria which is a Daesh/ISIS stronghold; Daesh had declared a caliphate in Raqqa. She had left letters for her family saying that she did not intend to return. In the sentencing remarks of the Recorder of Birmingham, His Honour Judge Melbourne Inman QC, said “Exactly what occurred in Raqqa is far from clear. You told lie after lie to the Police and to the Court between February and November 2015 including that you were kidnapped, were not responsible for any tweets and any incriminating photographs were staged against your will. You pleaded not guilty and told more lies to the jury which they have understandably rejected.”
  • The judge continued, “What is clear from the evidence is that you had researched and were well aware of what assistance women could provide for ISIS. Your role would not be to fight; it would be to be a wife and mother – to produce the next generation of fighters“. The expert evidence before the Crown Court was to the effect that women, single women in particular, were subject to very strict rules and allowed virtually no personal autonomy and were subject to savage penalties, including death, for disobedience. This was accepted by T in her evidence before this court.
  • As could be seen from the pictures posted by T she was, as the judge said, “…trusted to have access to firearms and indeed you stated that you had fired one accidentally. You boasted to your family that you had an AK47 and a pistol. The photographs recovered from your phone show you posing with a pistol and at least one form of rifle or automatic weapon”. Unusually for a woman under Daesh control T was allowed to travel alone to Raqqa, it is not clear from the evidence before this court or the Crown Court why this was allowed but T has said that she was married to a fighter.
  • In the sentencing remarks the judge spoke of the fact that T had taken Y with her; “Most alarmingly however is the fact that you took your son and how he was used. In your own evidence you described Raqqa as the most dangerous place on earth. That is one aspect of the aggravating feature of exposing your son to life with terrorists. The most abhorrent photographs however were those taken of your son wearing a balaclava with an ISIS logo and specifically the photograph of your son, no more than a toddler, standing next to an AK47 under a title which translated from the Arabic means ‘Father of the British Jihad’. Someone else took that photograph and sent it to you but it can only have been done with your agreement. You have no control over that image or reproduction.”
  • As the judge observed T was “well aware that the future to which you had subjected your son was very likely to be indoctrination and thereafter life as a terrorist fighter”: this was said after a lengthy criminal trial throughout which he had been able to observe her demeanour. The judge continued in his summing up to say “Having seen you give evidence I saw no evidence of remorse about what you had done or done to your son”.
  • T was found to have intended to encourage terrorism; she had 75 followers on Twitter, the statements she posted were considered to have been focussed, published over a period of two months and concerned with the conflict in Syria and the encouragement of terrorism. The promotion of terrorism via the internet is considered a matter of national concern by the criminal courts. T was found guilty of serious offences. She was convicted of a “course of conduct” in travelling to Syria, via Turkey, to join Daesh. The judge considered that particular factors were of great significance in considering culpability and harm and that taking Y with her was a major aggravating feature. In supporting Daesh/ISIS she had been “willing shamelessly to allow your son to be photographed in terms [or poses] that could only be taken as a fighter of the future.”
  • In mitigation it was accepted that T had returned to the UK; that she may have been more vulnerable to recruitment as her marriage had ended after considerable unhappiness; and, that there was the possibility that she had had a change of heart; there was some reduction in her overall sentence as a result. Nonetheless T was convicted of terrorism offences and the sentence of six years reflects their seriousness. She is now subject to an order under the Counter Terrorism Act 2008 (s 47) which places a requirement on her to notify the police of personal details, including her address for 15 years.
  • T will be eligible for release on licence in 2018. She agreed to Y being cared for by his paternal grandmother while she is in prison but it would seem likely that she will seek to have him returned to her care on her release.

 

 

 

 

It may seem to the casual reader that it would be hard to dispute that taking your two your old to a war zone which was being bombed and associating with terrorists would pose a risk to him, but as the criminal court had not convicted her of child cruelty (no doubt having bigger fish to fry) it was open to her to at least argue it. And she was entitled to a fair hearing, so she had very able lawyers to put her case the best way that anyone could.

 

 

  • The local authority asserted that Y would have been likely to have been frightened by the bombing which took place in Raqqa (which T sent WhatsApp messages about at the time) which would have caused Y to suffer significant emotional harm. T denied that Y had suffered significant emotional harm.

 

Let us look at a bit of the detailed evidence about the bombing – remember that her son would have been around two years old

 

  • It is a matter of common sense that Y was likely to have suffered significant emotional and psychological harm during the three months when he was in Raqqa and that it would have been as a consequence of living in conditions where, not only was his mother in fear and crying during the night, but the house they lived in was in an area that was constantly being attacked and bombed. Before I go on to consider the evidence of the frequency of the bombing, the lack of any real concern displayed or voiced by T that Y might have been affected by his experience is, in itself, worrying. If she remains unable or unwilling to think about the effects of her actions in the future, the risk of future harm to Y will remain.
  • The evidence before this court was that the level of bombing was very frequent indeed, this is based on T’s oral evidence and on what she put in her messages on WhatsApp, where it (the bombing) was a constant topic of discussion and a regular occurrence. I set out some examples here:

 

•    On the 1st December 2014 on WhatsApp “no bombs today” and images of buildings on fire.

•    On the 13th December 2014 in conversation with her brother on “They do bomb a lot but we will stay in another place when you visit…”

•    On the 17th December messages with a friend “Do they bomb close to your house?” T answers; “Yes very close to the house – the house shakes” and “they just bomb from the sky“.

•    On the 25th December 2014 at 10.58 from T “they bomb my house every day – – my house shakes…“

•    On 25th December 2014 conversation with her friend who asks “why won’t I like it” – “because too much bombs and not like England – war here never going to end???”

•    On the 27th December from T “they bombed once today – gave number to friend if we die she will WhatsApp u“

•    On the 30th December 2015 a message from M referred to “30 bombs” falling in one day

•    When she was interviewed by the police on 19th February 2015 T is recorded as saying “it’s no place for a child…. when they would bomb we would have to go into the basement – you could see the smoke – close smoke …”

 

  • In her oral evidence, however, T tried to minimize the frequency, impact and close proximity of the bombing giving a different picture from the one that had emerged from the messages she had sent in December, including of the house shaking and of bombing being every day (so much so that it was remarked on when there was no bombing on 1st December 2014). The images on her phone and the messages she sent are of frequent bombing close to the house, and as she said to the police, of close, smoking buildings.
  • In her oral evidence T said that on the first occasion, when they were in Raqqa, that bombing took place “everyone was ordered to go to another place in the house…we went to the basement and waited…” T said she was “panicked” felt “frightened and scared” and was worried she would be killed. Y was with her while all this was going on; it is inconceivable that her fear and panic was not transmitted to him. She said “All the women had gone to this place and we stood together and there were looks of fear, some were crying. Everyone walked to a basement and waited in fear”
  • T then tried to minimise the event she had been describing by saying that there had been no immediate panic and that there was a lot of women who were quite content to die as they would have been seen as martyrs. In a further attempt to diminish the dangerousness of their situation she said, when questioned about an image on her phone of a building with a large column of smoke coming from it taken on 1st January 2015, that the building was not on fire it was just smoke and that the building “looked closer than it was.” To try to reduce the evidence of frequent bombings she said that on occasion they would hear a bang in the distance. As she also said that “on one occasion there was 30 bombs” dropped, this was a further contradiction in her evidence which raised questions as to her credibility. It was her evidence that while she and Y were in Raqqa there were about 15 occasions altogether when bombs were dropped, this contradicts the messages she was sending at the time. Nonetheless she did concede that; “It’s not a place for anybody …I would never want my family there.”
  • When she was asked during her oral evidence about the effects of the bombing on the children T said that Y would not have been aware of the bombing or upset because “we just distracted them [the children]“. She had and gave no further explanation of how they had distracted the children or why she felt sure or understood Y to have been unaffected by the bombs going off, the noise, the building shaking and the panic and fear surrounding him.
  • I find it very unlikely that Y, or any of the children, could have been unaware of the bombing. I find it unlikely that he was not upset by it; it is simply not credible. In reality T’s oral evidence amounted to further evidence of a chronic lack of insight, empathy and understanding of what her child must have gone through. T said of Y that “he never cries, on one occasion it startled him but [he] never cried. It made him jump once”. This was in stark contrast to her evidence about the effects on her; when 30 bombs fell she said that the missiles “sounded like when a firework goes off…its very scary…the most scared I have been in my life.” Moreover, I find that it is most unlikely that Y did not wake up and that he stayed asleep as bombs fell all night and the house shook around them as T suggested in her evidence to me.

 

 

 

Even ignoring the risk to her son’s life and limbs in being in a warzone where bombs were being dropped that frequently, the loud noises and panic must have been very frightening for him.  One might argue – I don’t think anyone tried here – that surely not all of the children who lived through the Blitz in World War II also suffered significant harm though of course none of them had mothers who deliberately chose to put themselves and their children at such risk.  I suspect we really won’t know the impact on this little boy until much later in life. I hope with loving care from his grandmother and the right sort of support he will have very limited memories of the experience.

 

 

The mother did describe the impact that it had on her

 

 

  • When she returned to the UK from Syria T said that she had continued to be affected by her experiences “when I first came back a loud bang would make me think what is that!” She went on to agree, when it was put to her, that the bombing did make Y jump and that he was “probably scared“. I find that it is more likely than not that Y was frightened by the bombing in Raqqa. When taken as a whole it is T’s own evidence that she, and therefore Y too, had lived in situation of heightened anxiety and fear, which was also experienced by the other families and children around them. This must have had an emotional impact on Y that was harmful, exposed as he was to frequent bombing, noise, anxiety and the panicked reaction of the other children and their mothers; and, most significantly, given his tender years, the fear and anxiety of his own mother. He was present when, as she told me, she was fearful for her own life. I have little doubt that he suffered emotional harm as a result.
  • The emotional harm would have been compounded by the fact that his mother had taken him away from all that was safe and familiar to him, and from the rest of his family. T severed those relationships and placed him in what was, on her own account, a harsh, restrictive and punitive atmosphere where he was kept imprisoned in a house full of total strangers. It would be quite remarkable if he was unaffected psychologically. T has never given any evidence, description or detail of how she manged to ameliorate this situation to the extent that Y remained unaffected; at the very least he would have suffered harm as a result of being taken away from home, family and safe and familiar surroundings; when one adds the bombing, fear, panic, restriction and threatening atmosphere along with the effects of fear on his mother it is not credible to suggest that he did not suffer significant emotional harm.
  • I find on the evidence before me that there was frequent, if not daily, bombing close to the house; so that on occasions the house shook and that the bombing resulted in damage to other buildings that were close enough to be photographed on a phone. The bombing meant that the other people in the house, adults and children alike, were repeatedly panicked, scared and anxious, that Y, too, would have been frightened at the time of the bombing and that afterwards he would have been anxious about it all happening again. He would have been worried, anxious, distressed and frightened by his mother’s fear and panic. I find that Y was emotionally and psychologically harmed as a direct result of his experiences in Syria.
  • The flight from Syria as described by T must have been a frightening experience for Y, she certainly found it to be so. Later in the detention centre in Turkey, surrounded by yet more strangers, he became ill and was hospitalised. The court was given no details of his illness and treatment by his mother, in what can only be a further attempt to minimise or deflect attention from the effects of her actions on her very young son.

 

 

 

The Court also considered the emotional harm to the child of being drawn into the propaganda and manipulation of Daesh for their own ends.

 

 

  • Y would have been confused and probably caused some anxiety and distress as a result of being photographed in a number of poses which are potentially abusive as they were taken with the intent of promoting violence and terrorism. His image was posted under the title “Abu Jihad Al Britani” next to an AK47 which had been arranged with a caption; it can only have been taken with the purpose of reproducing his image to use as propaganda. There are five images of Y wearing a Daesh logo balaclava and a further three images of Y wearing a Daesh balaclava in the court bundle. There are also images of Y and his mother under a Daesh flag; on the 27th December 2014 T sent a message to a friend asking that they “send me the pictures of me and Zaeem by the flag at Umm Salama maqar.”
  • While the fact that Y was only two years old means that he will not have fully appreciated the potentially exploitative and abusive nature of the photographs it does not alter the fact that his mother manipulated him or allowed others to do so. I accept the local authority’s case that there remains risk of emotional harm when the child becomes aware of these images in the future and of his mother’s role in their production.
  • I find that T was well aware of the use that such images could be put and was aware of the use of children as part of Daesh propaganda as she had stored an image on her own phone of a very young child reading with Daesh flag. T’s explanations in her evidence for the photographs were confused and evasive. T had told me that she had something of a celebrity status in the house in Raqqa because of the activity she had been party to online before leaving the UK and because of the notoriety her case had attracted in the media when members of her family had spoken about her after she left. She attempted to deny knowledge of the pictures such as the “Abu Jihad” photo she said to me “I have no knowledge of this picture…. I didn’t know this photo existed…” She tried to suggest that the picture was a fake by saying, “If there was an expert to tell me this is a real picture…” When she was asked what use the photo may be put to she said “it was never used” thus contradicting her assertion that she did not know of its existence. When it was pointed out to her that she said Y was always in her care and so no-one could have taken pictures of Y without her knowledge the best explanation she could come up with was, “I could have been in the shower…”
  • T’s evidence about the other pictures was equally unconvincing; she said that those in which Y was wearing the ISIS balaclava had happened because it “it belonged to the man of the house….at the time my son liked to wear hats and things on his head at that time. It was not about what it had written on it”. Once again she betrayed in her evidence an absence of any concern or consideration about the potential harm to her son. T claimed, somewhat bizarrely, that the picture taken under the flag was “to show where I was from.” T claimed that she did not think the person who had it would use it for propaganda. As T had both notoriety and “celebrity” status that it was a wholly disingenuous suggestion.
  • From the pictures taken in the house in Raqqa and from T’s evidence Y had been living in an environment where there were a range of guns and where those weapons were used and brandished by his mother and others. Self-evidently the risk of physical harm or even death is high in such a situation. The court had before it numerous images of T and others with guns, including images of T next to a firearm, images of T and other women posing with guns on the balcony. In one such picture there is an image of a child in the foreground which is more likely than not to be Y. There were numerous images of T and other women posing with guns. On the 1st December 2014 she sent a message to M “I have a gun” followed by 11 images of a gun in which a female hand is seen holding the gun and that person is wearing a garment in which T was frequently photographed. On 17th December T sent a WhatsApp message to M “– Wallah I have the same gun as you – AK 47”. Despite telling M in the WhatsApp conversation she had a gun she then claimed in her oral evidence never to have owned a gun; she then said all people involved in Daesh have a gun and said that the “man of the house” and his wife had a gun but could not explain how she came to be holding it in a photograph.
  • T told me in respect of a picture of her with an AK 47 “I’m not holding it in this picture…I am taking a selfie and the person next to me is trying to get me to hold the gun”. To say that T’s evidence in respect of this and other pictures lacked credibility would be to understate the case, her oral evidence is directly contradicted by the images in the court bundles which were also seen by the jury in the Crown Court. In one instance T claimed that she had taken a picture of a woman holding a gun rather than accept that she was the woman in the image herself. She had frequently said that Y was not present while insisting in her evidence that Y was always with her and then, finally, said, “not sure if Y would know what a gun is”. The evidence of the social worker is that Y is all too aware of what a gun is and becomes over-excited by the suggestion of guns and shooting, and runs around mimicking shooting and makes noises of gunfire.
  • T’s evidence regarding the pictures, their use and the role of Daesh “logo” is a brazen attempt to deny something that she is well aware of; when she gave evidence to this court she had not long been convicted of being a member of Daesh/ISIS and of encouraging terrorism (as set out above). The impact of being in the environment of the Daesh household on Y would have been emotionally harmful, and her evidence to the contrary is wholly unconvincing.

 

 

What a world we live in, when a mother could even contemplate this being a suitable life for a toddler. I despair.

 

 

 

If you found this piece interesting, or you’ve enjoyed the blog generally, please pre-order my book, which should be out around December with your support. Many thanks!

 

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

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Woo Woo Woo (You know it)

Posted on July 26, 2016 by suesspiciousminds

 

A sad case, where parents found themselves in care proceedings and if they had worked with professionals or taken the advice their lawyers would have given them, they probably would have overcome the problems and left the proceedings with the child, or at least with the child placed with grandparents.

 

Re A Child 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B50.html

However, they instead took the route that shouting during the hearings that the Court had no power or authority over them was going to be the best approach. That and getting heavily involved with the Freedom of the Land movement, and thinking that their magic words and spells could save the day. They can’t. They never do.

This is all just Woo – pseudo-science dressed up as something real, selling an idea or a substance that’s too good to be true.   [What, I just walk into Court and call myself “He who is Named David of the Family Hasslehoff” and the Court has no power over me at all? Awesome!  Not true. Woo.]

Instead of taking up the free legal advice from people who know how to conduct care proceedings, know how best to get your child back and understand English law, they instead took advice from self-styled Federal Judge David Wynn-Miller.

If the fact that David Wynn-Miller is NOT a Federal Judge, but instead an American welder  doesn’t raise some alarm bells about his suitability, just look at how many people who followed his suggestions ended up in prison.  I counted eleven. Of twelve.

 

If even that doesn’t worry you, how about this, from his own words  Miller remarked that the genesis of Truth-language was when he “turned Hawaii into a verb” 

 

https://en.wikipedia.org/wiki/David_Wynn_Miller

 

I know that there are good and bad lawyers, and some people have had awful experiences with lawyers that they had no confidence in or felt were lazy. That does happen. You can sack them and get a better one. But there really are not any lawyers who claim to have ever turned Hawaii into a verb.

Woo. Woo. Woo.

 

The parents in this case followed this lead. With the usual results. (On the plus side for them,they didn’t get sent to prison, so that counts as a major plus by Wynn-Miller’s usual track record)

 

 

  • The application was listed for hearing before myself on the 14th March 2016. On that occasion the parents represented themselves having dispensed with the services of their legal representation. Sadly on that occasion neither parent would respect the authority of the Court. The Father shouted at myself and was ejected from the Court. The parents were removed from the Court on 2 occasions. After the first occasion they were informed that they could re-enter the Court provided they respected Court procedures but sadly despite assurances that they would, they did not do so and they were ejected again from the Court. It was quite frankly impossible to hold any form of a hearing with them being present as they refused to respect the authority of the Court or the Court’s procedures. I asked the Mother at one point whether they were going to register the birth of their child (those assurances having been given to the Court on the 19th February 2016 that they would do so without delay) but at that point the Mother commenced reading a prepared script when she questioned the authority of the Court. As a consequence of that she was removed from the Courtroom as she refused to stop reading her script, and clearly had no intention of answering my questions or respecting the courts authority.
  • At that hearing the Court was very concerned about the evidence produced by the Local Authority, documented in the Social Worker’s statement of the 7th March 2016. The parents had entered into a Contract of Expectations on the 11th February 2016 which set out the expectations of the parents during contact sessions and the role of the contact practitioners to ensure that contact ran smoothly and was a positive experience of the child. However the social workers statement documented that the parents had failed to comply with that contract in that in almost every contact session that had taken place there was a refusal by the parents to accept or act on advice, they were being disrespectful to the contact supervisors and there was an increasing concern about the Mother’s presentation during contact sessions and the impact that this was having on the quality of contact. The Local Authority were also concerned about the behaviour displayed by both of the parents which was becoming increasingly threatening and disruptive to the contact which, in turn, impacted on the quality of the contact and the emotional experience for their baby.
  • The Court was clearly concerned given the age of this baby that the parents should be given an opportunity to reflect on the position in the hope that further contact between themselves and their baby could take place. The order therefore of the 14th March records the Local Authority agreement to arrange contact between the baby and the parents twice a week provided the parents attend a meeting with the Local Authority to discuss the management and arrangements for the contact and that they sign a Contract of Expectations. It was on that basis, the Court taking that agreement into account, made the order under Section 34(4) Children Act 1989 which was of course a permissive order only, permitting, if appropriate, the Local Authority to refuse contact. The anticipation of the Court and the expectation of both the Guardian and the Local Authority was that following that hearing the parents would meet with the Social Worker, sign a free contract of expectations and that then further contact would take place.
  • Sadly that has not been the case and these parents have not attended the Social Services offices nor have they made any attempt to re-instate contact and therefore they have not seen their baby since the 4th March 2016. Some four and a half months ago.
  • On the same day the Local Authority made application to Mr Justice Baker under the Inherent Jurisdiction for orders as the parents were publishing information on Facebook and other social media outlets concerning these Court proceedings.
  • From documents that the Court considered on that occasion it was apparent that the parents had dispensed with legal representation in this country and had consulted with a self-styled Chief Federal Judge, David-Wynn Miller.
  • Various documents have been served on parties and the Court and on that occasion the court considered a document headed “Educational – Correspondence – Claim. It is a bizarre document which makes quite frankly not a word of sense but is a clear claim by them that the Local Authority have kidnapped their child. This has been a theme which has run through the documentation which has been on Facebook and on YouTube and has persisted throughout despite the injunctions which were made by Mr Justice Baker on the 14th March 2016.

 

 

A hint as to why the parents might have fallen for this Woo can be found in the concerns about them

 

 

Given the father’s medical beliefs, there are concerns that the child may have been treated indirectly with harmful alternative medication through the mother’s breast milk or may be treated with harmful medication in future:

3.1 . An investigative journalism piece in 2015 discovered that the father was selling Master Mineral Solution (MMS) as a treatment for cancer and autism. MMS is a sodium chlorite solution equivalent to industrial-strength bleach; the Food Standards Agency has warned it should not be consumed as to do so as directed could cause severe nausea, vomiting and diarrhoea, potentially leading to dehydration and reduced blood pressure;

3.2. The father advocates the use of MMS and his personal website includes paraphernalia for the administration of such products to babies.

 

 

Yes, let’s treat cancer and autism with industrial-strength bleach. And let’s give this to babies.

This website debunking MMS explains the science very clearly and carefully – note particularly ‘one hundred thousand times the amount for safe drinking water’  calculations.

https://thechronicleflask.wordpress.com/2015/03/30/a-horrifying-story-autism-miracle-mineral-solution-and-the-cd-protocol/

 

This is nasty, nasty stuff, preying on people who are sick and desperate. It is super nasty when it is pushed as a cure for children.

(some of my sympathy for these parents has evaporated. I remain very sorry for them, but not anywhere near as sorry as I do for anyone who purchased some of this cancer treatment. By the way, it remains a criminal offence under the Cancer Act 1939 to advertise for sale a substance or treatment that purports to cure cancer.  If you are thinking of posting a comment about how it is just Big Pharma that has supressed MMS as a cure for cancer because they know it works and they want to keep it off the market, don’t bother. )

The Judge set out that the concerns about the parents were quite capable of being resolved, if they had engaged with assessments, but their bizarre behaviour meant that there was no alternative save for adoption in the case.

 

  • This is an extraordinary case where there could well have been an alternative option or outcome for this child. Whilst the circumstances which resulted in the care proceedings being instituted by the Local Authority were concerning there was certainly a real prospect that the concerns of the Local Authority could have been allayed during the course of the assessments which were to be undertaken by them of the parents and grandparents.
  • In addition to the health concerns and the parents’ conduct towards those in those early days of the baby’s life there were of course the other particularly worrying concerns in relation to the Father’s beliefs and in relation to the administering of Master Mineral Solution (MMS). Those concerns again could have been allayed by the Local Authority and Court being satisfied that despite his beliefs such a solution would not be provided to the baby and/or that the Mother would be a sufficient protective factor to ensure that nothing untoward was ever administered to the baby. Also as a backstop position if the Court were not sufficiently satisfied in relation to the Father it may well be given the Mother’s position at the commencement of proceedings that she, herself, could have cared for the baby on her own. All of these seemed very realistic options available to the Court at the commencement of these care proceedings.
  • Sadly in this case however as can be seen from the chronology which has been detailed in this judgment the parents and the parents’ family have left this Court with no other realistic options other than the one proposed by the Local Authority.

 

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

Posted on July 19, 2016 by suesspiciousminds

This is the Hayden J judgment in the Tower Hamlets case involving the girl who had tried to go to Syria having been exposed to extremist videos and propaganda of the most alarming kind.

 

I wrote about the early stages of it here,   https://suesspiciousminds.com/2015/08/27/radicalisation-of-children-and-isis-jihadi-brides/    when Hayden J learned that the parents (who had been saying that they were shocked and appalled by what was happening to their daughter) seemed by the analysis by security services of what was being accessed in the home to be more implicated than one might imagine.

 

Part 2 is here : –  London Borough Tower Hamlets and B 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1707.html

 

It makes for extraordinary and shocking reading – and you will learn a LOT about radicalisation cases and how ISIS goes about manipulating and recruiting young people by reading this judgment. I could not recommend it more highly for any professional working within the field, any lawyer who thinks that radicalisation is a feature in one of their cases, or a concerned parent.

 

 

This is some of the material removed from the family home (bear in mind that by this stage, the girl had already made the attempt to go to Syria to become a jihadi bride)

 

 

  • The following material was removed from the household:

 

Document Title Device
“A Muhajid’s Guide to the West” this document contravenes section 58 TACT 2000
Chapter 1 “Hiding the extremist identity”

 B’s SD card
“Miracles in Syria”
 B’s SD card
“Hijrah to the Islamic State” B’s SD card
H’s Apple Mac Laptop
L’s hard-drive
“The Dust Will Never Settle Down” an audio lecture by Anwar Al-Awlaki est. 2008 B’s Sony Vaio Laptop
H’s Apple Mac Laptop
J’s Samsung Laptop
L’s hard-drive
“The Book of Jihad” an audio lecture by Anwar Al-Awlaki 2003 H’s Apple Mac Laptop
J’s Samsung laptop
L’s hard-drive
“44 ways to support jihad” by Anwar Al-Alwaki
 B’s Sony Vaio Laptop
DABIQ and ISN publications H’s USB storage device
L’s hard-drive
Videos Exhibit IDK/36 ‘For the Sake of Allah – Fisabilillah’

Exhibit MAE/5 ‘Upon the Prophetic Methodology – AlFurqaan Media’

Video DSCN2418.AVI – Home video that shows an ALM march

 

  • Some of the material on these videos, all agree, depicts behaviour of appalling human depravity. It includes mass killings, sadistic torture (which I have been advised has symbolic significance and is not merely gratuitous), random killings by youths in a car by using AK47 machine guns, scenes of mass graves and bloodied lakes and killings videoed in such a manner as to create the impression that the viewer is the killer looking through the cross hairs of a telescopic sight attached to a rifle. The written material includes sinister polemics designed to rally ‘good Muslims’ to the cause of jihad. Some of these documents deliver sophisticated messages to the reader, advising them how best to create the impression of social compliance whilst participating in an anarchic agenda. I have personally read much of that material in order to try to equip myself to evaluate the evidence in an informed way, and to alert myself to any potential subterfuge. I cannot imagine how it is that the officers of the CTU manage to view the material I have described whilst remaining inured to it. I feel constrained to observe that which is obvious from the above, that the public owes them a debt of gratitude.

 

 

The girl’s own description of just one video.  (skip this if you are squeamish. In fact, just skip it. You don’t need to read it. You have my permission not to)

 

“I saw a video of men chained together one by one after what was said to have been a battle, who were said to be the prisoners they had taken. They took them to something like a dock/or a sea wall straight onto the sea. They unchained them one by one and shot them in the back of the head so they fell into the water. They sought to portray this like the story of Commander Khalid Bin Waleed who was fighting against the Jews and he made a promise that the river would run red with blood if he won. The water in this video by the end of it was red; they had killed so many people. I’m not sure they were even soldiers at all now, they may well just have been people, ordinary civilians, who didn’t agree with IS coming in and taking over. “

“I saw a lot of videos and scenes of violence. When I first started seeing them I was shocked at the violence. I didn’t like to watch it. I was also accessing a lot of video and other on line material that I now realise was just propaganda. “

 

 

 

First of all, the Court is scathing of the independent social worker who came with high recommendations to this field.  (I don’t want to wish any professional ill, so let’s say that she was perhaps out of her depth on this sort of case)

33.It was pressed upon me by all the advocates for the family, that Ms Rukhsana Thakrar should be appointed as an independent social worker. I was assured that she was well regarded and as a professional Muslim woman not associated with the Local Authority, or the Guardian for that matter, she seemed to me to be well placed to undertake what I identified in my earlier judgment as the need for an ‘intense, thorough and comprehensive assessment’. I must also admit to my aspiration that Ms Thakrar would provide an example to B of the opportunities open to independent Muslim women in the UK. Ms Thakrar has an LLB (Hons), a MA in social work, a CQSW and is an accredited social work practice teacher. She has also worked in the capacity of Guardian ad Litem, CAFCASS officer and asserts in her CV that she ‘specialises’ in ‘working with Muslim families’.

 

 

34.I very much regret to say that Ms Thakrar fell far short of the promise foreshadowed by her CV. In her very lengthy report, which is essentially simple reportage of what the family has said to her, Ms Thakrar missed the opportunity to confront them with my earlier findings and to challenge their various belief structures. Though I am satisfied that her instructions were clear and supplemented by a further set of instructions specifically directing her to the court’s concerns, she appeared to have very little understanding of the nature of the task she was engaged in. Her view of the family was expressed with fulsome positivity, though I have found it impossible to identify any analysis in her report upon which her optimism could be founded. More than that, within a report spanning over 130 pages I have struggled to identify any analysis of any issue in the case. Rather unusually despite the glowing conclusions she advanced, I had no sense that the family had forged any kind of constructive relationship with her either.

 

39.I am constrained to say that Ms Thakrar has fallen, by some distance, below the standard that this court is entitled to expect from an expert witness. In so doing she has failed the children (primarily), the parents and the other professionals in this case who have worked extremely hard to manage a very challenging situation. I have noted that Pauffley J made criticisms of equal magnitude and of similar complexion in Re A, B C & D [2009] EWHC 2136 (Fam) and Re S (A child) (Care Order) [2014] EWHC 529 (Fam).

 

 

(That case can be found here http://www.bailii.org/ew/cases/EWHC/Fam/2014/529.html    – some key extracts   It seemed to me that Ms Farooqi – Thakrar’s evidence was far from even handed and less than helpful.     

  • This aspect of Ms Farooqi – Thakrar’s recommendation seems to me to be extremely poorly thought through. There was a sense, as she gave her evidence, of her almost making it up as she went along

 

  • It was a further defect in the evidence of Ms Farooqi – Thakrar that she had failed to consider S’s considerable behavioural difficulties. When asked about that aspect, she simply said, `Well, all of this will just disappear when S has been reunited with her mother and I’ve seen it happen in other cases.’ I am surprised, even amazed, that Ms Farooqi – Thakrar was prepared to make forecasts about what would happen in this case relying exclusively upon her experiences in other cases. I do not share her optimism. Moreover I consider such an experiment would be thoroughly risky and altogether ill-advised at this juncture.

 

 

If you are unwrapping a brief tonight and underneath the pink tape is a part 25 application to instruct this ISW tomorrow, I’m sorry that I’ve just ruined your evening )

 

 

 

The Judge was, however, very complimentary about the social work evidence in the case

 

45.Ms Thelma Ukueku is the key social worker in the case, employed by Tower Hamlets. When the deficiencies in Ms Thakrar’s report came to light Ms Ukueku agreed, in the time remaining, to plan and undertake an assessment addressing the risk matrix referred to above. This report was undertaken with a Mr Brian Sharpe and a Ms Juliette Thompson. I heard from Ms Ukueku and Mr Sharpe in evidence. It is an unfortunate fact that Judges have, from time to time, to be critical, sometimes highly critical of social workers. Too often good social work goes without comment or commendation. This case provides some opportunity to remedy that. This family is extremely fortunate that Ms Ukueku was allocated to this case. She has shown unstinting commitment to them, she has been tireless in her determination to help them, she has unhesitatingly sacrificed her own personal time and displayed an impressive mix of intellectual rigour and compassion. Perhaps most importantly, whilst trying to work effectively with the family, she has not shied away from confronting them robustly and directly where she perceives there to be error or inappropriate behaviour. She has, in my view, ‘worked’ the case, in the sense that she has not merely recorded the attitudes or behaviours of the adults, rather she has actively intervened to try to change them where, in her assessment, they are contrary to the interests of the child.

 

 

46.I have mentioned above that I elected not to see the video material in this case. It is rarely necessary for the Judge or the lawyers to do so. It is probably desirable that we should not. The danger that we become inured to it is greater than might initially be thought. Some of the material here is, plainly profoundly shocking. Ms Ukueku took the view that if she were truly to understand what harm B had been subjected to she ought to look at some of the material herself. She told me that on reflection she wished she had not done so. It had caused her real, not merely superficial, distress. She told me how some of the images are lodged in her mind and have from time to time intruded unexpectedly into her thoughts. She twice needed to pause to maintain her composure, as she outlined this to the Court. She told me, at this point, slightly tearfully, that she had been terribly shocked and deeply upset that B had been regularly exposed to such images. It was a powerful and memorable moment in the hearing. I noted that it had some impact on B which seemed to me to be chiefly one of real surprise. I think this was both as to the effect the images had on Ms Ukueku as well as some realisation of the great effort made on her behalf.

 

Powerful stuff. You’ll note from the earlier portion that the Judge himself did not view the material – and I think that he was right not to. There were clear descriptions available from those brave souls in the police and counter-terrorism who did have to watch them. I myself would not feel the need to watch the videos, and if my social workers asked me whether they should, I would tell them not to. If they felt extremely strongly about it I would have asked the Court for an indication that they need not watch them and would not be criticised for failing to do it.  I say this not to make any criticism of anyone involved in this case – but to avoid the risk that because this social worker did so (and now regretting it) puts a benchmark up that others should be expected to do so. If there’s a description of the content of such material and that description is not disputed, I am with Hayden J that it is not necessary for professionals to see it and that it is desirable that we should not.

 

It became apparent during the hearing that the father, who had seen terrible attrocities in Gaza that had profoundly affected him, had shown his children images that they should not have seen.

 

  • It occurs to me that the reason that the father may be so eloquent in articulating the emotional harm caused by such images is that he sustained a similar kind of harm himself as a child. He told Ms Thakrar that as a Berber male from the Algerian community he held some negativity towards the French in their use of tanks in Algeria in the 1950’s. He explained that his family had shown him photographs of this period which he considered revealed French tactics to be ‘unjust and upsetting’ and which plainly had stayed in his memory. In evidence, he drew a comparison with these grainy, black and white photographs of a conflict which pre-dated his birth and the videos seen by B. The moving, ‘living’ pictures in colour and so much more clearly defined were, the father said, much more searing.
  • During the course of the Mother’s evidence the Local Authority applied for permission to produce material from social media. The application, which I granted, was made before the Father went into the witness box. The material included photographs of charred bodies and the cracked skull of a dead infant. These were produced into evidence, I think, during the course of the cross examination of the Father. In any event I did not look at them until the Father was asked to comment on them. I was not expecting to see the kind of images they contained, indeed it took me a moment or two, from the rather poor quality photocopies, to realise what I was looking at. I found them disturbing.
  • The Father told me that he was motivated by the photographs to participate in humanitarian work. I accept that he was. Nonetheless, I had the strong impression, as he responded to questions, that he too had, albeit in a different way to his daughter, become numbed to images of death. Such photographs may well have triggered moral outrage in him, an entirely different dynamic to B’s objectives in looking at the material I have considered above, but for all that I sensed that something of his own ‘pity’ and ‘mercy’, to use his expressions, had been compromised. I do not think that he contemplated that the image of the child might not merely shock people, but that it might provoke a simple human distress reaction for the child which eclipsed the underlying humanitarian objective that he intended. I consider that this resonates with something that he is reported as having told Ms Thakrar:

 

“He stated that when he was in Gaza he had watched what was going on in Gaza. This appears to have been a turning point for [the father]. He stated that he watched Aljazeera Arabic as he felt that Aljazeera gave an accurate picture of what was going on in the world. He also brought back videos and pictures of Muslims being killed and burnt alive. He stated that Palestines (sic) were being killed by Israelis. He found this very haunting and upsetting. He explained to me that his children saw these pictures and they were all upset and crying. It was very clear from his body language and how he spoke that these atrocities had left a deep and lasting impression on him. It also appears from his descriptions that all the children had been deeply moved and upset. Certainly they would have left a deep impression on [B].”

 

  • Once again the father challenges the accuracy of the ISW report, he denies that he told Ms Thakrar that he showed photographs or videos to his children, claiming that she has misreported him. I reject that. There is much in that passage which is plainly accurate. The father was fulsome in evidence about the atrocities in Gaza, as he sees them. He plainly, in my assessment, was affected by what he had seen. He confirmed that he watched Al Jazeera on the basis that he felt that was a reliable chronicler of world events and certainly accepted that he had brought back pictures. All of this is essentially accurately recorded. It is also very much of a piece with his evidence more generally. I may have been critical of Ms Thakrar’s lack of focus and forensic rigour but, as I have already said, I have no reason at all to doubt her integrity. Neither have I found evidence of regular misreporting, in what I remind myself were 84 hours of interviews.
  • I am satisfied that the father did indeed show these children videos or pictures of Muslims being killed and burnt alive. I consider that in the heat of his own outrage he was motivated to do so by what I have loosely referred to as humanitarian instincts. Having been shown disturbing photographs of death himself as a child I do not think that he has ever extrapolated from that, that it is entirely inappropriate to present children with such images. He does not appear to have absorbed that childhood innocence needs to be protected and that he as a father has that responsibility. His failure to rise to those obligations is, in my assessment of the evidence, critical to what has happened to B. I also consider that like B, he too has become desensitised, on a basic human level, to images of child and adult suffering. His response is ideological rather than visceral.

 

 

 

Hayden J also makes some important points about the standard of proof in these cases  (I think most readers know my views about the cases of radicalisation decided by other Judges, where admittedly the analysis and evidence done by the security services came nowhere near the amount of detail that Hayden J had available to him)

 

52.Cases involving allegations of radicalisation do not require any greater standard of proof than any other allegation in Family Law proceedings. Any impression to the contrary requires to be dispelled

 

 

 

56.In Re X (Children) (No 3) [2015] EWHC 3651 (Fam) the President said §110 ‘There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion.’

 

 

57.I am confident that the President was there intending to emphasise the importance of evidential discipline and forensic rigour. He was not, for a moment, suggesting that in the application of the civil standard of proof the Court is in anyway prohibited from drawing reasonable inferences from ascertainable facts. There is plainly an important distinction between suspicion and inference, the two should not be conflated.

 

 

It is pleasing to hear that this girl is drawing back from the extremist position that she was once being seduced by and was showing some insight and reflection into what was wrong with the material that she was seeing  (that has to be hedged by the knowledge that material was being accessed in that house that taught how to lie, conceal, suppress your views and pacify those investigating them, but let us be optimists rather than gloomy pessimists)

 

The Judge had the unenviable task of deciding where B should live. He looked hard at all of the issues (this blog doesn’t have space to go into all of it, but if you are having a reaction to his conclusion I would suggest that you take the time to read the judgment itself) and how B had fared in care over the last nine months.

 

 

  • Unsurprisingly, B wants to go home, she is rather desperate to do so. She is sad and lonely and misses her siblings, particularly her younger brother. She is being phlegmatic about life with Mr and Mrs J but I think she senses a loneliness for her there too. So do I. Mr & Mrs J have their own interests and commitments, these are understandably not structured around a teenage girl and will require much renegotiation in their lives. I was told that their commitments do not enable them to allocate a great deal of time to helping B make the transition to their home over the summer months, were that to be the plan.
  • Many teenagers of this age, who find themselves in the care system, simply take matters into their own hands or to use the term frequently heard in these Courts ‘they vote with their feet’. For the duration of the Care Order i.e. until she is 18 (in just over 12 month’s time) I think it unlikely that B would do so. To some extent, her experience of the Court system has been salutary. After that I do not know. She will be beyond my remit and able to exercise her own adult autonomy. Should she return to her parents home at that point and there may be pressure for her to do so, she will once again interrupt her education and potentially damage her academic prospects. Though it may not seem the obvious solution, in the light of my findings above, I have come to the conclusion that the plan most likely to meet B’s needs is to return her home. I identify the following reasons:

 

i) The circumstances of B’s radicalisation involved a combination of factors and influences unique to her situation;

ii) B’s brothers and sisters do not share her beliefs and are likely to be resistant to them;

iii) B is most likely to rediscover her own intellectual autonomy in a home environment where she is happy and loved;

iv) I think it likely that the siblings will challenge B’s extremist beliefs, even without intending to do so;

v) B will enrol in a local college if she returns home;

vi) I think it likely that B will respond enthusiastically to a wider social group at college, holding inevitably different opinions and beliefs. Her lively intellect is likely to be stimulated by the exchange of ideas. It is worth emphasising that B has never attended school before;

vii) Whilst I consider that B’s admissions in this court are driven by her pragmatic evaluation of the evidence against her, as she herself volunteered, there is nonetheless an underlying sincerity to her own description of the numbing effect that these awful videos have had on her. This has the potential to be a breakthrough in combating what she has described as her ‘addiction’ to violent and death related images;

viii) In the last 9 months the Local Authority’s Care Plan has been able to provide a sustained period in which B has not seen the kind of images that have caused her such harm. This occurred at a crucial stage in her development and has enabled her to gain the tentative insights I have referred to above. (As I know B will read this judgment carefully, I wish her to appreciate a simple and unvarnished truth: those who do not empathise with human pain and suffering will never make effective doctors, it is intrinsic to the core motivation of the profession);

ix) The family has a proactive social worker who has demonstrated that she will not be naïve and will not be deflected by controlling or manipulative behaviour. The plans for all the children should enable them to get space from their mother. In particular, the mother should not attend the children’s Prevent sessions and neither should she collect the children from school;

x) Having recognised the impact of death related images on his daughter, I have some confidence that the father will restrain from sharing such images with her in the future. This he might like formally to undertake to the Court, knowing that he might be sent to prison should he breach his own undertaking;

xi) I also consider that this family can be more easily monitored when together rather than separated. I have no doubt that the police and the social services will be vigilant concerning the use of computers in this household;

She was therefore placed at home under a Care Order. All we can do now is wish her and her family well and hope that their lives take a different course than might have developed by exposure to such dreadful, graphic imagery which would give the most robust adult terrible nightmares.

At the very end of the judgment, the Judge records the general advice given by Professor Silke and Dr Brown in radicalisation cases, and that’s really something to be circulated to absolutely any professional working in this area – it contains invaluable information and guidance, in a very clear and easy to follow style and language.

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Like I care – anonymous defamation on the internet

Posted on July 18, 2016 by suesspiciousminds

I don’t write about Queen Bench Division cases very often (not least because I usually can’t understand a single word of them), but this one seemed pertinent.

It relates to a McKenzie Friend operating in the family Court sphere,  who is also a blogger. And a satirical website that took a disliking to him.  It also relates to whether anonymity is a thick shield or a flimsy one in a defamation case.

Smith v Unknown Defendant Pseudonym ‘Likeicare’ and Others 2016

http://www.bailii.org/ew/cases/EWHC/QB/2016/1775.html

 

  • There is before the Court today an application for default and summary judgment against the Second Defendant. The Claimant is a former borough councillor in Welwyn, Hatfield. He is active as a McKenzie friend. The Defendants are, so the Claimant asserts, users and operators of the website EncyclopediaDramatica.se (ED). ED is a satirical website which uses the Wiki software. The site is, to put it mildly, controversial and it takes steps to anonymise itself. This enables the site administrators to hide the country in which the site operates from and the real IP address of the servers. Editors and staff use pseudonyms.
  • In his particulars of claim the Claimant states that whilst the website is satirical much of what ED publishes is accurate and this accounts for its widespread popularity. The site exposes genuine wrongdoing and other material of interest. Mr Smith, who appeared as a litigant-in-person before the Court upon this application, describes the site as “...a more vulgar online Private Eye magazine“.
  • For some time, the site has published articles about the Claimant calling him a “zealot” in child protection matters. The Claimant operates a blog which, from time to time, deals with child protection matters. The position of the Claimant is that the original publications about him were satirical but not objectionable.

 

 

That’s part of the deal with satire – if you’re in the public domain, you might have to develop a thick skin about what is said about you.

However, things went quite a bit further than that

 

 

  • However, between 10th May 2016 and 12th May 2016 users of the site known as “KiwiDynastia” and “LikeICare” (an administrator) amended various articles to state that the Claimant was a paedophile and a child rapist. The website is accessible in the United Kingdom and has been viewed here. The Claimant has set out in particulars the specimen words complained of and what he alleges is the defamatory meanings to be imputed to them. These are, upon any view, vile allegations. The version of the material which was published on the website was copied and is in evidence before the Court. In this material the Claimant is accused of being a “KNOWN CHILD MOLESTOR”. It is said that “…his salivating lust for young ass is apparent”. It is said that he loves being able to have violent sex with his mother (the actual text uses more evocative language) which she forgets 5 minutes later. The heading to the article is “Samuel Collingwood Smith is a paedophile and child rapist”. The material has graphic mock-ups of the Claimant engaging in sexual activity. In his particulars of claim the Claimant denies the imputations which flow from these words. The Claimant denies having any criminal convictions, cautions or warnings which are remotely relevant to the words used.
  • The Claimant discovered these articles on 13th May 2016 and he, as he puts it, complained politely. The normal way to effect a complaint on a Wiki is to write on the talk pages of officials. The Claimant posted his complaint to several of the highest of the officials on the site, known as Bureaucrats. He received a prompt reply from an administrator “LikeICare” delivered on his own talk page which stated: “Fuck off LOL”. Another administrator “DarkLordTR” amplified stating that if the Claimant continued his course of action he would be banned and they would see to it that their article came higher up in the Google page rankings.
  • The Claimant responded by the service of a notice pursuant to section 5 of the Defamation Act 2013 and also a letter before claim which he posted, once again, to the talk pages of the Bureaucrats and to his own talk page. He received a response again delivered by the administrator “LikeICare”. The response was in the following terms:

 

“**** Official response from myself, and on behalf of KiwiDynastia and entirely of ED staff **** LOL Don’t care faggot, go for it”.

 

  • Subsequently, the Claimant was unable to respond to the site which displayed what the Claimant describes as “...a montage of revolting, gory and sexual images” which is, he understands, the response communicated to banned persons.

 

I think that most people would consider that satire and accusing someone of being a child rapist are not quite the same thing.

Mr Smith sued for defamation – obviously it was problematic that the website were not willing to communicate with him and were anonymous.

The Court set out the position with defendants who were anonymous

 

B. The availability of relief against unknown persons

 

  • The ability of the Court to provide protective injunctive relief against persons unknown has been acknowledged for a considerable period of time: see for example Bloomsbury Publishing Group Plc v News Group Newspapers Limited [2003] 1 WLR 1633. It is necessary, however, for the person unknown to be capable of identification by description in such a way as to identify with sufficient certainty those who are included within the order and those who are not. In Brett Wilson LLP v Persons Unknown, Responsible for Operation and Publication of the website http://www.solicitorsfromhelluk.com [2015] EWHC 2628 (QB) (“Brett Wilson“) Mr Justice Warby stated that it was sufficient to describe a defendant as “Persons Unknown Responsible for the Operation and Publication of the website […]” (cf ibid paragraph [8]). In that case, Mr Justice Warby pointed out that the Court had jurisdiction not only to grant interim relief but to grant final injunctive relief against persons unknown, including upon a summary judgment basis pursuant to CPR 24.2 (ibid paragraph [10]). The relevant procedural safeguards must, of course, be respected and this includes ensuring that the unknown defendants have been duly served with the proceedings and with any application for interim or final relief. In the present case, there can be no possible query or doubt as to the fact that service was effected since the administrators of the site not only responded to the pre-action documents but also published the same on the internet site itself. In my judgment, it is clear that the proceedings in the present case were duly served and brought to the attention of the relevant defendants. None of the Defendants have sought to file an acknowledgement of service or a defence by the deadline for so doing. Indeed, the Defendants have not formally responded in any way, shape or form to the threat of litigation. Their heads are well below the parapet.

 

So the fact that the architects of a website conceal their names and identities is not necessarily a protection against civil litigation

 

 

  • Pursuant to section 1(1) of the Defamation Act 2013 a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant. In the case of harm to the reputation of a body that trades for profit harm is not “serious” unless it causes or is likely to cause that body serious financial loss. The Claimant in the present case is someone who claims to trade for profit. He advances his case upon the basis that the website, which is widely read and enjoyed for its satirical comment, commands respect and attention. Accordingly, the fact that manifestly untrue and malicious content is directed at the Claimant is likely to cause him serious reputational harm and also make him less likely to receive fee-paying work. That harm will be exacerbated by the fact that the Claimant’s photograph is plastered all over the website. Indeed, false photographs of the Claimant, naked, engaging in sexual activity with multiple other males simultaneously were also included. There can be no doubt but that the Claimant’s reputation will have been substantially and deleteriously harmed by the publication of this material and that this was precisely the intention.
  • In my view, there is sufficient for me to make an order for judgment for damages. The Claimant’s application seeks summary disposal pursuant to sections 8 and 9 of the Defamation Act 1996. Section 8 empowers a Court to grant judgment to the Claimant in a defamation case and grant “summary relief” where it appears that there is no defence to a claim which has a realistic prospect of success and no other reason why the claim should be tried. Pursuant to section 9(1)(c) damages not exceeding £10,000 may be ordered by way of summary relief. In Brett Wilson Warby J observed that this was a relatively little-used procedure not least because summary judgment pursuant to CPR 24 was available in defamation cases and the damages recoverable pursuant to section 9 remained capped at £10,000. In that case Warby J observed that the procedure could be invoked in order to bring a swift end to a matter to avoid an assessment procedure which might be disproportionately expensive. He observed that the procedure had been used in similar circumstances in other cases, for example in Robins v Kordowski [2011] EWHC 1912 (QB). In Robins, Tugendhat J held that the jurisdiction to grant summary disposal was available after a Court had entered default judgment for damages to be assessed and on a summary basis he awarded the sum of £10,000. In Brett Wilson, Warby J also considered that a summary assessment at the maximum level was appropriate. The Judge in that case did not consider it necessary to undertake precise quantification of the loss. He was satisfied with general evidence that the firm in question would suffer financial loss but as he observed “quite apart from this, the award needs to serve the purpose of vindication“.
  • In my judgment, given the popularity of the website and the vile and offensive publications thereon, and the need for vindication, it is appropriate to make an order in the sum of £10,000. I will, however, in order to enable the Defendant to have a chance to put his side of the case on quantum, include as part of the order a liberty on the part of the Defendant to apply to vary the quantification if he considers that it is excessive or otherwise unjustified. The Defendant will have 14 days in which to lodge an application with the High Court for variation of that part of the order. If no such application is made within 14 days, then the sum of £10,000 will remain definitive. In this way, in my judgment, the interests of the Defendant are adequately protected. Any such application must however adhere to the normal procedural rules. It cannot be anonymous. The true name and address of the Defendant must be provided.
  • I am also satisfied that the pleaded allegations establish a case for the grant of injunctive relief against the Defendants. The Defendant has deliberately declined to participate in any process whereby the offending material was removed from the website. There is reason to believe that the Defendant would, unless enjoined, persist in the offensive campaign against the Claimant. In coming to this conclusion I have regard, as I have already observed, to section 12 of the Human Rights Act. The injunctions are prohibitory and mandatory. I have considered whether it is appropriate to grant relief in both forms. On the facts of this case I am satisfied that it is.

 

 

 

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The Hungarian Games

Posted on July 13, 2016 by suesspiciousminds

 

A peculiar case where the parents were agreeing to adopt their child and the fight was about whether that would be in the UK or Hungary.

Hence the title. And not by any stretch of the imagination, a cheap opportunity for a Jennifer Lawrence photo.  Goodness looking through those photos to find a decent one was a terrible hardship.

 

 

I mean, seriously, I had to research the heck out of J Law for this piece

I mean, seriously, I had to research the heck out of J Law for this piece

 

Re AO (Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/36.html

 

And yes, this Judge was setting me up for an A-O Let’s Go, Ramones * title, and I spurned it. I feel bad and all, but c’mon. J Law!

(*yes I lost my mind in first draft and put the Buzzocks)

In this case then, the parents were both Hungarian, but had been living in England for some time. They had a baby and didn’t feel able to care for the baby, so they contacted the Local Authority to say that they wanted to relinquish the baby for adoption. They understood what was involved and freely agreed to it.  The LA felt that the baby should really grow up in Hungary, to be in touch with the parents culture.  The parents were adamantly against this. That argument meant that the only way the baby could be adopted in Hungary would be if the LA obtained a Placement Order. And in order to do that, they would need to prove that the section 31 Children Act threshold criteria were met – that the child was suffering significant harm, or likely to do so.

Tricky to do.

Let us see how the LA argued that threshold was met.

 

 

  • In this case, the local authority’s case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

 

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

 

  • In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents’ actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.

This position was supported by the children’s guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents’ withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare

 

I think this is skilfully put together, but it is nowhere near establishing threshold.

Unusually, the parents here shared the same silk, Frank Feehan QC, but each had their own junior counsel. I haven’t ever come across that before. But if you think that Frank Feehan QC (of Re B fame) was going to swallow that threshold, you haven’t been paying attention.

 

 

  • On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of “harm” in section 31 (9), and also reminded me of the provisions of section 31(10):

 

“where the question of whether harm suffered by a child is significant turns on the chart’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”.

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

 

  • The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO’s background, the parents had in fact given brief but full details of their own families and background and upbringing.

 

 

 

The Judge, Mr Justice Baker, was also mindful of public policy issues – if you make it too difficult and too onerous and too intrusive for a parent who wants to give their child up for adoption to do so, well then you’ll return to the days of children being left in wicker baskets on the doorsteps of hospitals and police stations. There has to be a balance

 

 

  • In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

 

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

I observed (at para 47 of Re JL, Re AO)):

“It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home.”

 

  • As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
  • It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
  • The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
  • Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

 

 

 

As it was not possible to make a Placement Order without either parental consent or satisfying the threshold criteria, it wasn’t NECESSARY for the Judge to rule whether it might be better for the child to grow up in Hungary rather than England  – but Baker J made it plain that he would not have done so in any event

 

Welfare

 

  • In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO’s overall interests, and I here set out the brief reasons for so concluding.
  • The local authority’s consistent view throughout these proceedings was that it was in AO’s interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been “turned into” an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
  • In reply, the parents’ consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
  • The children’s guardian supported the local authority’s plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
  • Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority’s plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
  • I accept that, other things being equal, it would be in AO’s advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO’s needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO’s needs.

 

 

 

A good decision, in my book. And it clarifies the position for other Local Authorities, and indeed parents.

 

Sometimes the law can be fair and kind, despite all the complex language and mystique.

Oh boy, did someone say “Mystique?”

 

Yes, these images are completely necessary to convey the legal niceties of the case

Yes, these images are completely necessary to convey the legal niceties of the case

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Judgment on Reporting Restriction on the Butler/Gray case

Posted on July 5, 2016 by suesspiciousminds

This was the request of the Press to be able to have access to material from the family Courts relating to Ellie Butler, Ben Butler and Jennie Gray and to be able to report it. They made the application following the conviction of Mr Butler for murder and the conviction of Ms Gray (having pleaded guilty) to lesser counts

 

London Borough of Sutton v Gray and Others 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1608.html

 

It is worth noting that at the start of the hearing, the Local Authority and Guardian were in support of release of materials and publication (subject to some minor redactions for anonymity) but during the course of the hearing became concerned, as the Judge was, that publication might result, if an appeal were lodged, in a mistrial claim for any criminal re-hearing

 

“It would be horrific if these parents were to avoid a retrial on the basis of publication at this stage”

 

[Despite everyone’s desire for transparency and information and a proper public debate, I think all of us can agree that we would not want Mr Butler to be freed on a technicality – as opposed to convincing a fresh jury of his innocence]

 

The Press application was put in this way

 

  • A number of principles are, as Mr Bunting suggests, applicable. Open justice is at the heart of our system of justice and vital to the rule of law. It promotes the rule of law by letting in the light and allowing the public to scrutinise the workings of the law for better or for worse. There is a particular need, I altogether accept, for the media to act as a public watchdog in care proceedings in the Family Court because of the intrusion or potential intrusion into the family lives of those concerned and what could be a serious interference by the state in family life.
  • Accordingly, while there is no presumption in favour of open justice, in private proceedings concerning the welfare of children there is a fundamental need for the press to play a scrutiny role in family proceedings. That is a matter enshrined within the President’s Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230. All of that I altogether accept.
  • The foundation of the jurisdiction to restrain publicity in a case such as this is derived from rights enshrined within the European Convention on Human Rights. A balancing exercise is required between competing rights. The balancing exercise as between Articles 8 and 10 has been addressed in a number of authorities; they are well described within paragraph 17 of the application. There is no need for me to read them into this judgment. I accept Mr Bunting’s analysis.
  • It is suggested that the proceedings before Eleanor King J are of the utmost public interest. There should therefore be, it is said, a strong presumption in favour of publication. There is an important public interest in the press being able to follow and understand those proceedings for the reasons described by Mr. Bunting; and there is a profound public interest in the press being able to investigate and, as necessary, report the varying approaches of the Family Court to the care proceedings relating to Mr. Butler and Miss Gray. These care proceedings, it is said, and I accept, place the Family Court under a particular spotlight and cry out for public exploration.
  • Mr. Bunting then goes on to say that in so far as the judgment and order of 30th June 2014 have been withheld from the press to protect against injustice in the criminal proceedings, this justification falls away upon the verdict given yesterday at the Old Bailey by the jury.

 

 

The Judge, Mrs Justice Pauffley, was rightly concerned with the prospect of an appeal being lodged and if successful it being argued that disclosure of material which a jury would not ordinarily see being used as a technical argument for that Mr Butler could not get a fair trial at any such re-hearing.

 

    2. My starting point is the President’s guidance of 16 January 2014 – ‘Transparency in the Family Courts: Publication of Judgments’ and particularly paragraph 19 where he makes clear that in deciding whether and, if so, when to publish a judgment, a judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention, particularly Article 6, respect for private and family life, Article 8 and Article 10 freedom of expression. The guidance then, materially, continues thus, “And the effect of publication upon any current or potential criminal proceedings”.
    3. All the signs are that the criminal processes involving Ben Butler are not yet over. Yesterday, as is reported on the BBC website, after the guilty verdict, Mr. Butler shouted out, “I’ll fight for the rest of my life. Unbelievable” before adding, “I want to be sentenced now so I can fight in the appeal court”. He added, “I’ll fight for ever to prove this wrong. My daughter was jumping in the house. I am 100% not guilty.” Miss Gray added, “Big mistake. Spend another ten years proving you wrong”. Those expressions of view, albeit uttered in the heat of the moment and immediately after the verdict, give some solid indication that the criminal proceedings are likely to extend to the making of an application for permission to appeal and to a submission that his conviction should be overturned.
    4. The reporting of King J’s judgment, were I to give permission to release it to the media, is likely to be very extensive indeed. It will be, if I am able to forecast anything, front page news. I am fully aware of the extent of public interest in the circumstances of this case, the background, the extent to which the Family Court has been involved as well as to the many legal processes leading to yesterday’s verdict.
    5. It is instructive, to my mind, to recall the manner in which there was reporting of the very sad circumstances of Khyra Ishaq’s pitiful life and terrible death in the aftermath of her mother’s conviction for causing that child’s death in about February 2010. There was, in the immediate aftermath of the criminal trial widespread front page, very prominent and extensive references to the judgment given many months, even perhaps years, previously by Eleanor King J.
    6. There is a very high likelihood, indeed it is inevitable, in my assessment, that there would be the most widespread and extensive reporting of the content of King J’s judgment in this instance. Would there be repercussions for the criminal appeal’s process? Mr. Bunting invites me to significantly doubt that there would be prejudice. He says there is a long way to go before any retrial. It is unclear as to whether one would be ordered. There may be a slender prospect, he argues, and it may be in the distant future and it is insufficient to outweigh the public interest in favour of publication.
    7. I would suppose that three options exist for the appeal which Ben Butler made clear yesterday he is intent on pursuing: firstly, that it is dismissed; second, that it is allowed and the conviction quashed; and, third, that the appeal is allowed to the extent that a retrial is ordered. I have no means of forecasting, no one has any means of predicting with any degree of accuracy, or at all, what will happen in connection with the proposed appeal. If there is any potential for a retrial then it seems to me that for exactly the same reasons as underpinned the decision of Eleanor King J not to release her judgment in 2014, I must do likewise.
    8. It is useful to reflect upon the words of Mr. Justice MacDonald in the case of H v A No. 2 [2015] EWHC 2630 when he said, albeit in a slightly different context:

“In the age of the Internet, … today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms …”.

  1. We are, I would observe, in a very different environment to that which existed even ten years ago. There is the potential for prejudice to, even the derailing of, the criminal process. That, to my mind, is manifest. The risk may be, as Mr. Bunting suggests, small but the consequences for the criminal process could be incalculable.
  2. One scenario, quite obviously, is that Mr. Butler might seek to argue that consequent upon the publicity accompanying the publication of Eleanor King J’s judgment, which is bound to contain a great deal more material than is currently in the public domain, he could not be assured of a fair trial. That possibility, the potential for that eventuality, inevitably compels me to dismiss this application.
  3. One thing though should emerge and be made abundantly clear. The arguments in favour of the release of King J’s judgment are powerful and strong. They will remain so. I fully expect that so soon as the criminal appeals’ process is at an end a full, suitably redacted version of the 30th June 2014 judgment will be published. That is my judgment.

 

 

Unless an appeal is brought on fresh evidence, a criminal appeal must be lodged within 28 days of conviction (if appealing against conviction) or 28 days of sentence (if appealing on sentence), so the appeal window expires at the end of July.  If Mr Butler does not lodge such an appeal, I would expect the Press to revive their request to see the judgments and to be able to publish stories that provide detail from them.  If an appeal IS lodged, then the publication and release of the material will have to wait until that appeal runs its course, which could be many months.

Frustrating, particularly given how much material came into the public domain after conviction (for example Mr Butler’s previous convictions, which a jury would not normally see or hear about) but absolutely nobody would want this case to be determined on a technicality. If Mr Butler does appeal and gets a re-hearing, it must be decided on the facts of the case and its merits, not by a technicality.

 

 

 

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Surrogacy and exploitation and Facebook

Posted on July 1, 2016 by suesspiciousminds

This is a grubby and desperately sad case, which indicates that there urgently needs to be some proper system of regulation over commercial surrogacy  (which ought not to exist at all in this country but is doing so under the guise of ‘reasonable expenses’)   This case highlights how easily someone very vulnerable, whose financial circumstances were so stretched that she couldn’t afford phone top-ups might be persuaded by what in that context is a huge amount of money.   (Here £9,000. If you are on benefits, £9,000 is a LOT of money)

Z (Surrogacy agreements : Child Arrangement Orders) 2016

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/34.html

 

Here a baby boy Z, was born as a result of a surrogacy arrangement in 2015.  Z’s mother X, agreed to be a surrogate for a same-sex couple A and B.  The child was the biological child of A, but the eggs were provided through an anonymous egg donor. So X was the vessel for carrying the baby, but was not a biological or genetic mother to the baby.

The surrogacy arrangement was set up through a Facebook Group.

The applicants, who are a same sex couple, were introduced to X through a Facebook surrogacy site, which was run or administered by W and others, to provide a forum for the introduction of potential surrogates and commissioning parents. Although it is the applicants’ evidence was they were not members of the forum it was through that social media site that they were introduced to X. There is no screening of either surrogate or commissioning parents and no support available other than support from others involved with the forum. This court has heard, in this case and in others, that the surrogates were paid sums of money for their expenses at what was considered to be the “going rate”; which apparently varied from about £8,000 to £15,000. This unregulated form of surrogacy means that there are on the one side vulnerable surrogates, and on the other commissioning parents who are legally unprotected from unpredictable outcomes.

 

 

A and B had had Parental Orders granted in relation to twins, born in another surrogacy arrangement through a woman V.  Within 48 hours of the orders, they began making arrangements for another child through surrogacy.

 

Here are some of the things that the Judge said about V and the way that A and B had behaved towards her

 

  1. The applicants are a same sex couple who are in a civil partnership; they are both professionals, A an academic and B works for a charity as an advisor. Socially and economically they are in a much more secure position than X and much more affluent, although by no means wealthy. They are the parents of twin boys born in June 2013 by virtue of parental orders made in January 2014 by the Family Court. Within 48 hours of those orders being granted B started to make contact online to find another surrogate.
  3. The twins are the biological children of A and a known egg donor. They were conceived as a result of IVF treatment in the same clinic in Cyprus later used for the conception of Z. The twins were carried by V, a gestational surrogate. This first surrogacy agreement and the circumstances surrounding it are relevant as the applicants’ conduct was repeated in their agreement with X. Of particular note was their attitude towards the surrogate V which was mirrored later in their attitude towards X. The applicants ‘met’ V online or on Facebook in late September 2011, they knew very little about V relying instead on the views of L who was also involved in the surrogacy forum; what they did know was that V was in the process of what they called “matching” with another couple of commissioning parents but that that agreement was breaking down. There is no evidence before me that the reason for the breakdown was explored or that the applicants were concerned about it.
  5. Once introduced the applicants and V had become further acquainted online and arranged to meet in person. As was clear from the oral evidence of the applicants to this court the purpose and focus of that, their first meeting, was to sign the surrogacy agreement. A told the court in his oral evidence that the three had met in a services area in a “restaurant off the motorway in the West Midlands” and, that at the meeting which lasted 3-4 hours, they had discussed “the agreement and who we were”. They had signed an agreement at that meeting and that had constituted “matching”.
  7. It was abundantly clear from their evidence that A and B knew very little at all about V, her circumstances or her motivation for acting as their surrogate when they signed the agreement with her. L, who gave evidence before me, knew that V was in some financial difficulty because her phone had been cut off prior to the meeting or “match”. Money and payments were an issue between the applicants and V during the pregnancy and after it; as could be seen from electronic messages exchanged between them. L said, in her written statement, that V had “money trouble” throughout the pregnancy. It was known that V had separated from her partner at the time of the “match” so it would be fair to assume that she was, at the very least, more emotionally vulnerable than she otherwise might have been but neither of the applicants appear to have given this any thought and were firmly focussed on what she would be doing for them.
  9. In his oral evidence B, who told me that he had found V’s behaviour to be too demanding just after the twins’ birth, dismissed her need for his support at the time unsympathetically describing it as being “because of her hormones”. B was unable to demonstrate any understanding or empathy for a woman who had just given birth to twins, was in hospital alone and unsupported there or at home until he was pressed to do so. L was similarly dismissive and also gave a harsh unsympathetic description of V; who was described in a similar vein by all three witnesses; L, A and B.
  11. V was characterised by all three of them as “volatile” without any thought being given as to why she might be in an emotional, still less in a vulnerable, state. When considering their evidence about V in its totality I found the applicants to be dismissive of the considerable positive contribution to their lives she had made, at considerable physical risk to herself. She was unwell for the last three months of the pregnancy and required someone to live in at the end of the pregnancy to look after her own children. In their descriptions of V as a person they were largely negative and appeared almost wholly uninterested in her, rather, it seems, they saw her primarily as a service provider to whom they had paid £12,500.
  13. The applicants complained about V demanding too much attention from them after the twins were born and handed over to them. B said that she kept texting him when she and the twins were still in hospital after the birth, and that she kept wanting him to spend time with her. Both he and A saw this as unreasonable as they wanted to be with the twins who had to remain in hospital for some time for treatment. The applicants remained on speaking terms until after the parental orders were granted and it was part of the evidence before the court when the parental orders were made that they had an agreement with V that she would remain involved for the twins’ sake. By the time of this hearing they had “fallen out with her entirely“. The terminating event was, they claim, because she had failed properly to acknowledge the children’s first birthday. I find this evidence inherently contradictory as they also claimed they had found it necessary to limit V’s involvement as they found her to be both intrusive and demanding.

When the baby was born, X did not want to hand the child over to A and B (and you might get a sense of why later on) and that then led to private law proceedings to determine where the child should live.

 

The case was decided by Ms Justice Russell, who is very experienced with surrogacy and HFEA cases.

 

Firstly, and significantly, X was cognitively assessed and was found to have difficulties in understanding things and had to be helped during the hearing.

  1. X has been assessed by Dr Willemsen as having learning difficulties, which appeared to him to be congenital. Until she was seen by him and his report prepared, it would seem that neither her family nor her partner were aware of her difficulties although she had been perceived as different from her siblings and her peers at school, and her partner told me that while he was aware she was vulnerable he did not know just how vulnerable. X is aware of what she sees as her own short-comings and, as described by Dr Willemsen, will want to please people to hide her shame and embarrassment. X has difficulty in speaking up as observed by the guardian and confirmed by Dr Willemsen. Dr Willemsen told the court in his report that on growing up she has become more aware of her difficulties and this has been accompanied by self-doubt and insecurity; to deal with this she has sought isolation and did so from her partner during the pregnancy. Dr Willemsen, who gave oral evidence, reported that X “is a vulnerable young woman who is susceptible to influence and pressure from others. She gave a few examples where she felt she had not been able to speak out loud about her thoughts and feelings to the couple who asked her to be a surrogate.”
  3. Dr Willemsen emphasised that despite her difficulties she had been able to concentrate during their meetings (with half hour breaks) and that what was not affected was her “ability to be emotionally available. She was able to relay her frustrations, as well has her love for [her son with P] and [Z]. She was able to speak as openly as she could about her life and the course of events she had found herself in.”

 

If surrogacy were properly regulated, it is hard to believe that a person such as X could have been approved as someone who really knew what she was getting into or the emotional turmoil it might cause her.  It was not that her problems were so subtle that only an expert assessment could reveal them :-

 

  1. It is striking how the applicants did not seem able to see how vulnerable X was even at this stage. The guardian was almost immediately struck by it and on her behalf her counsel pointed out how many other people have commented on her vulnerability, over and above Dr Willemsen and the intermediary. The guardian said even on their first phone call she sensed that X was lacking in confidence and that by the time she had met X and spoken to her she believed she had learning difficulties. Everyone that the guardian had spoken to in August and September when she visited the area where X lives, to assess X’s support network, all commented on her vulnerability: they included the mid-wife; P’s mother who described the X as ‘naïve and gullible‘; P, himself, spoke about “how vulnerable [X] is”; X’s step-father described her as “gullible”; her own sister described X as “very naïve”; a family friend described X as lacking confidence.

 

Do we as a society, want someone who is vulnerable, naïve and gullible, being paid money to have a baby on behalf of someone she barely knows?  Let’s look at the circumstances in which the surrogacy agreement was signed

 

Although X had agreed to act as a gestational or “host” surrogate for the applicants, the circumstances in which agreement was reached and signed by X is a matter of some concern and one that I shall return to. The agreement was one found on-line and based on overseas commercial surrogacy agreements from the USA. The provisions and regulation of commercial surrogacy in the USA do not, in any real sense or detail, mirror the supposedly altruistic and non-commercial surrogacy in the United Kingdom. It was signed by X at a fast-food outlet at or near a railway station after a brief face to face meeting lasting less than two hours. X was accompanied by her young son and a young relative, no more than eighteen years old. X’s partner did not support the surrogacy although he did not object to it; as he later told me, he did not believe that it was for him to tell X what to do with her body.

 

By the time of the hearing, in considering whether a Parental Order could be made, the Judge had to look at whether X WAS consenting (she was not) and whether if she was consenting that she was doing so on an informed basis (she was not)

 

Legal framework

  1. The HFEA s56 (6) provides that a parental order can be made if the court is satisfied that the woman who carried the child (X) has freely, and with full understanding of what was involved, agreed unconditionally to the making of the order. I have to say that, in this case, even if X had given her consent I would not be satisfied that she had done so with a full understanding of what was involved. X does not consent freely or unconditionally so neither limb of s54 (6) has been met and there is no question of a parental order ever being made.

 

Looking at the pregnancy, it seemed that initially, there was a wave of enthusiasm from both sides about the arrangements

 

From the first few days the messages on Facebook, as described by Dr Willemsen, provide an illustration of the faux-intimacy that developed between the applicants and X. As he said “fairly soon an amicable, almost euphoric, atmosphere develops between people who hardly know each other. There is a shared excitement based, probably, on two very different realities. It is easy to read a great deal into Facebook (and email) messages.” It was his view, and one I share, that X was unable to put forward her opinions, just to say that she was “totally fine” when the applicants message that they are now “matched” and “totally fine” with an agreement that she had signed, although it is clear that she could not read or understand the contract she had signed. So little were they concerned about any protection for X’s position, moreover, that the applicants never even bothered to send her a signed copy. The applicants’ sole focus was on signing an agreement. There was little, if any, evidence in their messages of interest in X herself, just as there had been little interest in V.

 

But then look at how things soured  – and squirm as you read the attitude of A and B towards the woman who was carrying a child for them and her financial circumstances.

 

  1. The level of compensation or expenses which the applicants were willing to offer was, at £9,000, at the low end of the scale that is prevalent on the online websites and forums. From evidence I heard, and from the emails and electronic messages provided to the court, it would seem that this was the figure suggested to the applicants by W before it was suggested to X. In his oral evidence B (who was responsible for most of the communication) said that he assumed X was on benefits but admitted he was not sure, did not appear interested either way and certainly took no steps to find out. This presumption would seem to indicate that he expected financially vulnerable or impoverished women to be more likely to be putting themselves forward for surrogacy.
  3. In her messages X often referred to having problems using the phone and/or the internet because she had no credit, which should have revealed something of her straitened financial circumstances and economic vulnerability but this was not a matter ever taken up by the applicants. Nor is there any evidence that they considered, at any stage, whether a need for money might affect her ability to enter freely into any agreement. As commissioning parents entering into an agreement which can and does compromise the health of the surrogate they owed her a basic duty of care and did not carry out that duty or signal that they considered they had a responsibility for her well-being other than as a healthy surrogate for their off-spring.
  5. The applicants did not consider with X, or discuss with her, what she knew or understood about her rights or legal status in respect of any child or their legal rights and status. In his oral evidence B said he assumed she would know about such things from the Facebook forum. There is no evidence before this court that they had touched on the legal and ethical considerations that arise in surrogacy at all. They had not informed themselves of what professional support may be available to assist in successful surrogacy arrangements such as implications counselling; indeed when giving his oral evidence A did not know what it was. The sums offered, by way of compensation, for “contingencies,” such as £1,000 for a hysterectomy, were wholly inadequate and can only be taken as evidence of the low value that they placed on the physical and emotional well-being of the woman who acted as their surrogate. The language used by the applicants was unequivocally the language of the market-place; “the absolute maximum we could offer for each potentially happening would be £1000″. Their approach to X was, at the very least, potentially exploitative and they did little or nothing to ameliorate it

 

 

Neither applicant, in his evidence, was able to give more than a perfunctory account of their meeting with X in March 2014 or to recall anything of what she was like as a person. The meeting in the fast-fast-food outlet, near to the railway station they had all travelled to, was very brief. There were three children present, the twins and X’s little boy and a young man not much more than a child himself, who was X’s 18 year old nephew, and who acted as a witness. From their own evidence it was clear that the applicants discussed only those aspects of the agreement about which they were concerned. X did not, could not, read or properly understand the agreement and such was their self-absorption that neither applicant noticed, and in any case they did not see fit to go through the agreement with her to reassure X, or even themselves, that she understood it. Despite promising to send her a signed copy they only emailed the “agreement” to her several months later leaving her to try to read it on her phone – she does not have a computer. It is inexplicable how the applicants could have ever considered this meeting as an acceptable way to “get to know” the woman who would carry their children and consider that they had, even in the loosest sense, “matched”.  

 

 

Remember the twins commissioned from V ? And V being cut out of the twins life afterwards? Well, as V and X had both been members of the same facebook group, they were in communication with each other.

 

  1. In planning the trip to Cyprus the applicants were concerned with their own convenience, such as A going instead of B, who had had the bulk of the contact with X. B accepted in his oral evidence that they did not discuss between themselves or consider at all how X might experience the trip or how to make it comfortable for her. In his evidence A came across as seeming to believe that X should have been grateful for the trip, which, after all, they were financing. Their behaviour towards her was crass; they did not know that she had never been abroad before because they didn’t ask. They took no steps to ensure that she was comfortable or to find out from her what they could do to make her feel supported, and, above all appreciated.
  3. The trip was a very unpleasant one for X. In his evidence A spoke only of the symbolism for him of being present during transfer of the embryos and was either unwilling or unable to recognize how lonely or frightening the trip was for X. He came across as emotionally unavailable and entirely self-regarding.
  5. X was effectively excluded from discussions at the clinic; certainly she did not, on anyone’s account, actively participate in any conversation with the consultant in the clinic. It is understandable that X felt intimidated by A and his suggestion that he had helped her by holding her hand while the embryos were put inside her body is an example of the crass behaviour to which I have already referred. X, naturally, felt nervous throughout the trip and was not at ease with A. The food was strange and unpalatable to her and she felt even more isolated because she did not have credit on her phone. Why A did not see to it that she was able to contact her family and top up her phone is incomprehensible. To repeat what Dr Willemsen said, as fantasy met medical reality she felt used and deeply uncomfortable about the arrangement but she could not find a way of expressing her feelings because she was concerned that she might upset and displease the couple. She found herself caught in a conflict; in the words of Dr Willemsen “between maintaining the fantasy and facing up to reality. She must have felt very alone at times.”
  7. The procedure in Cyprus had a huge impact on X. She had never wanted to carry two embryos and later told W that she did not say anything to the applicants as she did not want to let them down. She was both scared and anxious about it but believed the applicants when they told her that “probably only one would work.” X’s relationship with the applicants deteriorated as the reality of the uncomfortable and intrusive IVF procedure and the pregnancy took hold and she began, increasingly, to see herself as being used. Her reaction at the time has been graphically described by Dr Willemsen; as her emotional state and responses are essentially subjective I accept his evidence, and, furthermore I consider that the way that X responded to her treatment by A and B was entirely predictable. The fact that her own difficulties made her more vulnerable to suggestion and pressure being put on her does not in any way detract from her reaction, but it made it more difficult for her to stand up to the applicants and tell them that she no longer wanted to proceed. She told Dr Willemsen that she had had doubts before the trip but her experience while she was there intensified her feelings of doubt and uncertainty and she felt used.
  9. It was from then that she had started to look for a way out of the agreement. It is clear from the messages that she sent in late October 2014 that she felt worried about having twins “how scairy twins lol xx” and … “my partners like its gunna damage your body blah blah…” to which L, who she was in touch with online, replied “no it wont [sic]”; a response, which while might have been meant as reassuring, was patently untrue. The applicants had not arranged life insurance as agreed despite the agreement stipulating it would be arranged before pregnancy and X became so worried, that this issue was revisited 4 days later, when, in early November 2014, W emailed the applicants about arranging a scan for X and X messaged A “I would like to get insurance starting today please, as it should have been done befor we [sic]got pregnant xx”.
  11. Then in mid-November V was told by L that X was the next surrogate for the applicants. When A became aware of this two days later he sent a message to W about V saying “she can turn really nasty” A sent a message to X telling her “to try not to get stressed and ignore nasty msgs we had such good news today with the heartbeats lets focus on the future”. He clearly had not thought about the effect that V might have on X when she would come to realise that they had deliberately withheld information from her about the poor relationship that had developed between V and the applicants during their “journey”. His messages are further evidence that the applicants had sought to ensure that V did not find out about the second pregnancy to stop her from putting any surrogate off entering into a surrogacy agreement with them, not, as they said in their evidence, to avoid confrontation with V.
  13. Over the next week in November X received several messages from V in which she complained that the applicants had not paid her fairly; that she had been ill during and after pregnancy with the twins; and that they had treated her badly. Unsurprisingly this increased the fears X already had about her agreement with the applicants. The standard response from the applicants and from L was to minimize the concerns by repeatedly blaming V and saying, amongst other similar epithets, that she was “bonkers”. A then sent X a message saying ‘its sad but I’m reconciled now to having no relationship’ with V which, far from reassuring her must have sent the unspoken message to X that she, too, could be cut out of any child’s life in the future.
  15. In their oral evidence both applicants showed limited if any real understanding of the various factors which had undermined X’s confidence in the agreement and led her to consider a termination. Instead I was left with the clear impression that they seemed to expect her to be grateful for acting as their surrogate rather than the other way around. From the messages filed in the court bundle it is clear that there were emotionally intense exchanges from V, W and others on the forum to X. Later in November 2014 B travelled to be there during a scan and saw X for the first time since March 2014 (when they met at the fast food outlet to sign the agreement). They do not appear to have discussed V or what had happened between them. X’s anxiety had increased and in late November she asked V to speak to or text her sister. It was around this time that she decided to seek a termination and turned to W for support.

 

 

 

In the event, she didn’t have a termination, but she did tell A and B that there had been a miscarriage. The woman running the Facebook group, W, doesn’t come out of this judgment terribly well.

 

Miscarriage, birth and the role of W

  1. Although there is no evidence before the court to establish that W is an agent or runs an agency it is clear that she has had a very strong interest in linking surrogates to commissioning parents and being involved in surrogacy. Precisely what her motivation for taking on this role is not something that this court is in a position to decide. As can be seen from the messages that passed between them W offered to “link” or introduce the applicants to X and repeatedly told them she had many other contacts and options for them should the “match” not work out. W’s influence over X can be seen in her successful attempt to persuade X not to have a termination and W accepted, in her evidence, that she was instrumental in that decision.
  3. Although W has tried to insist that she did not want to get involved in things which did not concern her, she actively and deliberately placed herself at the centre of the crisis that X was experiencing and which unfolded on the Facebook site over V in November 2014, and which, in turn, lead to X deceiving the applicants. When W gave oral evidence before me she was by turn defiant and defensive; she was unsympathetic to X and sided with the applicants who she referred to as “the boys“. W accepted that she had encouraged X to tell the applicants she had miscarried and gave as her own motivation for doing so her determination to ensure that there was no termination. She told me she was aware that the applicants’ relationship with V had ended badly and said that when X complained to her, for example about the life insurance not being in place, she had begun to believe that V might have been right about the applicants as there were now two surrogates with complaints about them.
  5. It remains unclear from W’s written statement or from her oral evidence why she later changed her mind, took against X and decided to inform the applicants that she and X had deceived them about the miscarriage. I accept the submission made on behalf of X that W seemed personally to invest in continuing the pregnancy and then disclosing that X was still pregnant to A and B; she had no reason to involve herself to this extent apart from her own personal gratification in a sense of power or exercise of a controlling influence over the lives of others with whom she was so singularly unconcerned. At first, as can be seen from the messages exchanged between them, W urged X to carry the child rather than terminate a pregnancy; she explained to X that she was the legal parent, as X had thought she would go to prison if she did not hand over the baby at birth (another example of how little X had understood her legal position and the effects of the agreement). There can be no doubt that W can be characterised as manipulative, just as there is no doubting that X was easily led. W’s messages were directive and it was she who suggested to X how she should lie to the applicants, going as far as to say “make sure you get paid first”.
  7. That W was duplicitous is obvious from her conduct; on the one hand she encouraged X to deceive the applicants, and some of the comments she made about A and B were vicious and unkind; and on the other having convinced X to keep the baby she then told the applicants about the pregnancy while pretending to X that she was supporting her. In what Ms Fottrell described as a particularly cruel exchange about X’s inability to afford a lawyer in any court proceedings she messaged A “lets hope she xant afford a solicitor if she cannot even afford credit on her phone! Xxx”. A’s response of “isn’t she a joke, [W]!” exposed the contempt in which he held the woman who had gone through a very difficult pregnancy at his behest, whether or not she had ended up trying to deceive him. This is in contrast to X, who has continued to seek to please the applicants, as evidenced in her readiness to agree to extended contact whenever it has been suggested to her and to ensure that Z has had an opportunity to develop a relationship with his biological father.

 

[The Judge doesn’t say that these messages were vile, but my personal view is that she would have been entitled to do so. You can all form your own personal views, I’m sure]

  2. While W’s manipulation of X was calculated and had a direct impact on her, the continued inability of A and B, in their evidence before this court, even to consider that their conduct may have had something to do with the manner in which X had reacted to them is noteworthy, and in keeping with the air of victimhood on the one hand and sense of entitlement on the other trailed throughout their written evidence. It was palpably evident that A seemed to feel he had ownership of Z and that X was merely a gestational surrogate, a mere vessel, with no rights over the child she was carrying and none over the child when he was born. Throughout these proceedings as can be seen from their reaction to the guardian’s recommendations about contact and other matters concerning Z’s care both the applicants struggled to accept X as Z’s mother; the woman who carried and gave birth to him. It was not until they gave oral evidence that there was, reluctantly, an emerging acceptance of the importance of that role in Z’s life.

 

 

Like me, you might well be very relieved that the view of the Court was that X, with help from her partner and support, should keep Z and that Z should not be moved to A and B.  Z will have contact with A and B one weekend every two months.

There are some massive lessons to be learned from this case – treating people with kindness and respect is much more likely to result in a workable surrogacy arrangement than treating them as merely a ‘vessel’ and the arrangement as a commercial transaction or purchase; that if surrogacy agreements go wrong they can take a great deal of time, heartache and money to unpick and put right, and that surely we need some proper form of protection so that someone like X who was naïve, gullible, easily led, vulnerable and sufficiently poor that she had difficulty in even keeping credit on her phone is not exploited or manipulated by others who don’t have those vulnerabilities.

 

 

 

 

6 Comments

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Ellie Butler drawing together some strands and discussion

Posted on July 1, 2016 by suesspiciousminds

This post is a collaboration between myself, Lucy Reed of Pink Tape, Sarah Philimore of Child Protection Resource and Louise Tickle who is a freelance journalist – you have probably seen her pieces on family Justice in the Guardian.

 

You can also read it here

Ellie Butler – drawing together some strands and discussion

 

Several family lawyers have been discussing this case on Twitter, and it was suggested to us that it might be helpful to draw together a document with some important questions and our answers. We won’t necessarily agree on everything, but even our disagreements might help with the debate.

This post is a collaborative post to which a number of people have contributed. We would welcome others responses to the specific questions we’ve set – email info@transparencyproject.org.uk with your replies.

We are Lucy Reed (barrister and author of the Pink Tape website www.pinktape.co.uk)  Sarah Phillimore (barrister and author of the Child Protection Resource website – for a discussion of the principles the courts must apply when trying to find out in family cases how a child has been hurt, see this post), Andrew Pack  (local authority lawyer and author of the Suesspicious Minds website www.suesspiciousminds.com) and Louise Tickle, freelance journalist writing for the Guardian newspaper.

On the evidence that Hogg J heard at the time, what do we think about the finding that the father didn’t cause the shaking injury to Ellie?

Andrew Pack:

When I read the judgment about the shaking injury at the time, it looked to me like a solid and fair analysis of very complicated medical evidence. What causes that sort of head injury in infants is very complex and very controversial, and medical science is moving on all the time. Doctors in this field are talking about it all the time – a decade ago, the medical consensus was that these injuries could NEVER be caused by birth trauma and now we now that birth causes these bleeds on the brain (albeit to a lesser extent) in 50% of births. Reading the Court of Appeal decision in the criminal case, where the conviction was overturned, they highlighted some really unusual aspects about this particular case which would have given more doubt than is usual even in this very controversial field – Hogg J then had added to that the fresh medical evidence about the cyst, and whether that would have been a causing or contributory factor.  I think that the Court had the benefit of the best experts around, arguing both sides, and all of the evidence, and making the finding that the LA had not proved that it was more likely than not that father shook the child was the only safe one to make.  One might argue that the Judge did not give sufficient weight to father’s criminal history of violent behaviour and whether that might have tipped the balance if it was very finely balanced. Reading her analysis, I don’t think that she viewed the evidence as that finely balanced.  She was, on the evidence, confident that father had not done this.

Sarah Phillimore:

I agree with this. I don’t think the Judge can be faulted for how she treated this evidence.

Lucy Reed:

I also agree. The judge heard a large number of the most eminent experts in their respective fields, in some cases several from a single discipline – ophthalmologist, ENT, paediatrician, radiology, neuro-radiology, neuro-surgery…She also heard the evidence of the parents, which she took a particular view on – she thought the father convincing. The law is : if, having heard all the evidence, she was unpersuaded that it was more likely than not that the injuries were inflicted she should determine the infliction not proved – and exonerate the father of those acts.

What do we think about the exoneration speech and letter?

Andrew Pack:

As a matter of law, once the Judge has found that the LA didn’t prove their case about the shaking injury the legal finding is that father did NOT do it. Professionals working with the family would have been told of that legal finding and that the father could not be treated as a risk as a result of the head injury/shaking injury. The Judge clearly felt that father HAD been exonerated and that he had NOT caused the head injury, and her language reflected, I think, her view that the removal of Ellie and his imprisonment had been a miscarriage of justice. From the Serious Case Review, I think you can see that the strength of language that she used made professionals feel that they were being given the message of ‘back off’ and the parents felt that they were bullet-proof. That may have made professionals feel that when they were encountering behaviour that they found concerning they were powerless to act. I think it was a bit too strong at the time but not wildly out of order, and of course with the benefit of hindsight, it was far too strong and could have been couched more carefully – that there were other residual issues about the father that still presented a risk.

Sarah Phillimore:

This is the issue that troubles me. Yes, if there was no evidence that he caused the injuries in 2007 on either the civil or the criminal standard of proof, then as a matter of fact, no one could say that he did. But this was a man with – as I understand it – a clearly documented history of violence, who had served a three year prison term? ( I think – I have not been able to re-read the 2012 judgment as I understand it was removed from publication on line and has not been returned.). I do not know how that history was presented or what weight the Judge put on it. But, in the light of that history, and that the LA were clearly justified in being worried about the initial injuries caused to Ellie when she was a baby, I do not understand why the Judge thought it was appropriate to remove the LA from further oversight of this case and require that a letter setting out Butler’s ‘exoneration’ was sent to other agencies. The Judge found he had NOT hurt Ellie when she was a baby. She did not make findings about his propensity for violence and his criminal history. It may not have been appropriate to do that, particularly if the LA had not relied on these issues to prove their case. BUT. They were clearly part of the background and should, in my view, have given pause for thought before going down any route of widely publicised ‘exoneration’.

This issue also brings into focus some more general concerns about the standard of proof in care proceedings being the ‘balance of probabilities’. I appreciate the arguments that it is not always compatible with the need to protect children, if we insist on proof beyond a reasonable doubt. However, my concerns arise about the subsequent status achieved by a ‘finding of fact’ on the balance of probabilities. The courts are clear that a binary system operates; something is true or it is not. Therefore a finding of fact against a parent can determine the whole course of the proceedings. Parents are required to ‘accept’ the findings with little time for reflection, or risk the LA – and the court – ruling them out entirely as lacking ‘insight’. On serious and life changing matters, I do not feel comfortable with ‘truth’ being established as 51% more likely than not. As the Judge was operating in Butler’s case on the ‘balance of probabilities’ this also should have given some pause for reflection before being keen to ‘exonerate’ him and establish him as an entirely safe and responsible parent.

Lucy Reed:

There is a question as to how the exoneration letter came to be drafted and how it came to be expressed more broadly than the judgment itself. I’ve raised this in my blog post on Pink Tape here. The main issue for me though is the interpretation / response to the exoneration. Ben Butler was exonerated of the physical injuries. The LA elected not to appeal or to argue that he was culpable in any other way. The suggestion in the SCR is that professionals were paralysed by the exoneration. Some time passed before the LA conceded the balance of the threshold, and decided not to pursue findings on any broader threshold risks – from the judgment it is easy to infer that the LA took the reasonable view that to pursue such findings would have served no purpose, partly because the subsequent assessment of the parents was positive and this made it unlikely that the judge would find the threshold crossed on the basis of behaviours that on one view were attributable to the parents being wrongly accused and unlikely (based on the assessment) to endure. The more I consider this point the more I think it would be very illuminating to see the assessment report itself.

I don’t fully understand why, after proceedings had concluded and Ellie returned home, the exoneration should have made professionals feel like the couldn’t / shouldn’t pursue matters of concern. In any event, it appears (based on the SCR) that that subsequent events and information were assessed as not being sufficient to cross the threshold to move into child protection / proceedings, so I’d query what ongoing impact the exoneration had.

Louise Tickle:

I agree with Sarah on this. The psychological impact on on professionals working with Ellie of that letter could not have been anything but one of profound reluctance and fear of stepping in, and being torn to shreds by their own managers and in court if Butler and Gray had protested – which of course they would have done, and I believe in the case of the school raising concerns, did. This was a very senior judge, the LA had fought very hard, and lost. Where, really, were they to go at that point, without fresh evidence of harm reaching a high threshold – and how were they to be able to make assessments given total lack of access, and fear of what would be forthcoming if they were to seek such access?

Were the other issues that could have amounted to threshold properly dealt with, or did the non finding on shaking dominate?

Andrew Pack:

I think this really is the million dollar question. In the first fact finding hearing before Hogg J, the case was all about the head injury, and all of the evidence called and 95% of the documents looked at would have been about that. Having failed to prove that, there was of course still the convictions for violence to consider. Those offences were not against children, so they would not automatically mean that father would have posed a risk to a child, but it was material which needed to be considered in detail in an assessment and could have satisfied threshold.  That, coupled with the child’s presentation around father and the grandparents evidence COULD, have led to a decision that despite the finding on the head injury, Ellie wasn’t going to be moved from grandparents.  I would like to see the threshold document with the findings sought, and to have more clarity about which ones the Judge was specifically asked to make findings on and heard evidence about, and which were simply not put to her as a result of her very clear finding on the head injury and the direction of travel.

Sarah Phillimore:

I agree with this. If this was presented as a ‘single issue’ case – i.e. did he hurt Ellie as a baby, that would seem – with hindsight – to be a mistake. But of course, Judges can only decide the cases before them.

Lucy Reed:

The press coverage at the time focused heavily on the physical injuries but other matters of concern were known about and before the court, but were not the subject of findings. It is arguable that the other matters could have potentially amounted to threshold but the fact and force of the exoneration may have affected decision making about whether it was going to be a good idea to pursue them. The critical question is whether the other matters were presented and pursued and if not why not – and whether any thought was given to reframing threshold after the exoneration. Following the ISW assessment the balance of threshold was crossed. Although we don’t have the threshold document itself it appears from the judgments that the fact of the fathers convictions was not pleaded as a threshold risk in itself. The question of suspected domestic violence / control in the parents relationship was raised and evidence was heard – but the judge made no ruling on this evidence and adjourned off for further assessment. By the time the matter returned to court the LA were not pursuing findings and nobody seems to have asked the judge to record or make findings in respect of this evidence. The first judgment records that evidence was heard but does not record its extent or cogency. It is reasonable to assume that if the evidence was compelling and of high concern this would not have been dropped and would have been the subject of judicial comment or findings. But we don’t actually know.

Was the decision to have Independent Social Workers (ISWs) deal with not just the assessment of whether Ellie should move from her grandparents but the actual social work of the move unusual, and did this make a difference?

Andrew Pack:

The Judge was clearly taking into account that during the earlier hearing, the parents had been substantially criticised by the Local Authority for not accepting that father had injured Ellie and the working relationship was very strained. Having made the finding that father was exonerated, it was put to her, and she agreed, that any assessment by the Council would be ‘doomed to failure’.  That’s strong, but I think it wasn’t unreasonable to ask for the assessment as to whether Ellie should go home to be done by Independent Social Workers. What is much harder to understand is why those ISWs were also charged with doing all of the direct social work with grandparents, Ellie and parents, to prepare Ellie for the move and do the social work visits. The Serious Case Review shows that that agency were not given clear background information and essentially just had the judgment exonerating father – was it clear enough to them that this man had a history of violent offending? Might that have made them more concerned about the visits where they now report that he had been angry and unable to calm down for 10-15 minutes for some of these visits? Or, in the absence of knowing about his convictions for violence, did they assume that this was justifiable frustration about the process from a man who on that judgment had lost his child and been wrongly sent to prison and was still not reunited with his child?  I think that consideration should have been given to a fresh social work team within London Borough of Sutton doing the social work (ISW to do the assessment is fine) or if that wasn’t possible, perhaps a neighbouring authority.  ISW assessment work and direct social work with a family are very different. I think that the Judge got that wrong. At the time, I’d score that decision a 4 out of 10 (it was unusual and a bit strange at the time) and obviously in retrospect it was a major factor to the Court not having the proper evidence about Ellie after the fact finding judgment.

Lucy Reed:

I agree with Andrew. There is a big difference between an independent social work assessment and an independent agency taking over social work responsibility. I’m not sure whether the court intended them to perform this broader role or whether this got mixed up in the process of instruction or at some later stage – perhaps the LA / professionals took the view that they were being ousted for all purposes. It’s unclear whether the ISWs considered themselves to hold this broader responsibility (I’d say doubtful). It’s concerning to learn that over this period the Guardian was off sick and no cover provided. This may well have had a significant impact on the way in which the assessment was carried out and monitored.

Why did grandparents have to pay £70k for legal costs, can anything be done?

Andrew Pack:

The grandparents had parental responsibility by virtue of the Special Guardianship Order, so if these had been care proceedings (the Local Authority wanting to take Ellie away from them) they would have had free legal representation. Because instead this started as a rehearing of a fact finding, and then proceedings primarily regarding a younger sibling not cared for by the grandparents, the grandparents didn’t get legal aid, had to pay their own costs and eventually ran out of money. Grandparents representing themselves, up against two of the best family law Silks around, and a Judge who was viewing Ellie’s case as a miscarriage of justice to be put right – it certainly wasn’t a level playing field. I would strenuously argue for reform of the law here – these grandparents had been caring for Ellie for a long time and doing it well, and if they were to lose her against their will and what their eyes and ears were telling them was right, then they should have had lawyers to fight the case.  A starting point would be for the Ministry of Justice to write the grandfather a cheque for the full amount of his costs – it is bad enough that he lost Ellie, he shouldn’t have lost his life savings too.

Sarah Phillimore:

I agree with this. Ellie had lived with them since she was a very small baby. It is simply wrong in a civilised society that they were left in this position. It wasn’t a level playing field.

Lucy Reed:

This is a problem for grandparents AND parents – even where a parent or other adult has care of a child, public funding is means and merits tested for anything other than the main care proceedings. So, applications to discharge care or placement orders, to appeal or to apply to revoke placement orders or oppose adoption orders, standalone applications about special guardianship or any other private law application – no matter how complex – are means and merits tested. The threshold to be ruled out on means grounds is low so it is easy to be ineligible whilst still being unable to pay.

Judicial accountability and unwillingness to participate in the serious case review (SCR).

Andrew Pack:

I don’t think that the judiciary should routinely participate in Serious Case Reviews. Judicial independence is very important, and the way that SCR’s are conducted, with all parties being very honest about what happened, what could have happened differently, what lessons can be learned, don’t sit entirely comfortably with the judicial role, and the need for them to be independent and to NOT be a part of the professional agencies charged with child protection. However, in a case like this, where the child dies in a placement that the Court have not only sanctioned, but sanctioned in the teeth of opposition from grandparents and social workers, I think that it was unwise for the Judge not to at the very least have spoken with the authors of the Serious Case Review. There needs to be some mechanism for the most exceptional cases of this kind. Likewise, the family judiciary knew of this case 2 years before the verdict – yet the Judge was still given difficult family cases to decide, and they had no press statement or comment. It gives the distinct impression that the judiciary aren’t scrutinising this decision and accepting any part in this tragedy, and that’s a bad impression to give to the Press and public.

Sarah Phillimore:

I agree with this.

Lucy Reed:

On a human level it would be immensely helpful to hear the judge’s view in hindsight, and an explanation of what was going through her mind. But I agree that there are sound constitutional reasons why that should not happen. It’s really important that a judgment is an authoritative and final explanation of a decision or a set of findings. That’s an important protection for adults and children and I think that if alongside a judgment there is a public rumination about what might have been wrong about a judgment then the judgment loses its specialness and the authority of the court is lost. I think it’s right that where a judgment is wrong it can be appealed, and where material new evidence arises a finding can be revisited. That happened in this case when new medical evidence pointed towards a miscarriage of justice against Ben Butler, and of course with hindsight many people are now reappraising the exoneration finding.

For me though the corollary of saying that a judge should not participate in an SCR is that there must be meaningful transparency in terms of the judgments and process. We don’t have that in this case because the judgments have been pulled and the public can’t appraise the judgments or case documents against the SCR. Having seen some of the judgments in this case it seems to me that there is some tension between some of the accounts given and views expressed in the SCR and in media reports and the content of the judgments themselves. I think that constitutionally the public need to have access to this material.

Louise Tickle:

I don’t agree with this. I cannot see why the judiciary should have zero accountability when every other actor in the case has had to answer for their decision making and judgement calls. I think, in response to Lucy’s point, that the authority of the court is only as good as the public’s confidence in it. I do not think public confidence in the judiciary has been increased by this case, but worse, I think it has been even further damaged by the position taken by the President that a judge simply will not enter into the processes of examination as to why she acted in ways that went, in some people’s view, far further than was required, on a standard of proof that can be hardly said to truly exonerate anyone. Particularly anyone with the previous, safe, criminal convictions for violence that Ben Butler had. Overall, I cannot see why any part of our society’s agencies should be above questioning and scrutiny. A child has died. The ‘specialness’ of the judiciary is an irrelevance and an abuse of privilege in this extreme circumstance, if there is something to be learnt by other judges and indeed the rest of us. It is not about demanding heads on plates – it about Hogg’s thought processes and levels of risk aversion and judgement relating to facts and evidence she was appraising that could, if it were to be known, be reflected upon, considered, discussed and learned from. We do not get better understanding of failures by refusing to look at what let up to them. And judges have vast powers. The more power you have, the more accountable you should be when something very terrible goes wrong.

What pieces of information are we still lacking? Should for example suitably anonymised medical reports be in the public domain so press and public can see how complex and difficult the medical evidence is?

Andrew Pack:

I think we need the judgments available to the public and put in one easily accessible place – the Court of Appeal criminal judgment, the fact finding judgment from Hogg J, the second judgment from Hogg J where she decided that Ellie would live with Jennie and  Ben, and very vitally the judgments from King J about Ellie’s sibling after Ellie had died. At the moment, we don’t know whether King J reconsidered Hogg J’s exoneration at all, or whether it proceeded just on the evidence about Ellie’s death. Nor do we know what the outcome was for Ellie’s sibling– of course we shouldn’t have name or details of the sibling’s address, but I think there’s public interest in whether the child was placed with the grandparents and if not why that was decided. I think that unusually in this case, there is justification for the entire court bundle to be available to be seen. Obviously one has to be careful about any photographs and we don’t want prurient rubber-necking, but there is such public unhappiness about this decision that seeing the medical reports would, I think be justified.

Sarah Phillimore:

I agree with this.

Lucy Reed:

I agree also. I would in particular like to see skeleton arguments or written opening / submissions presented to the court at the rehearing, threshold documents filed at particular times, position statements and orders.

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