Category Archives: case law

Suspended sentence for woman who saw her son “too often”

Posted on April 25, 2016 by suesspiciousminds

 

I read this story on ITV news way back in December 2015, and it took 20 seconds of googling to suggest that there might be more to it than the headline suggested.

http://www.itv.com/news/2015-12-15/suspended-sentence-for-woman-who-saw-her-son-too-often/

 

Because the woman in question had a previous history in the family Courts, that history being that she turned up with a report from a psychologist that she had in fact forged, by writing it herself and the named psychologist knew nothing about it. And that she went to prison for perverting the course of justice. That’s pretty unusual, even in the circles of contentious private law proceedings.

 

This matter has a very long and very sad history with continual court proceedings stretching over almost the entirety of X’s life. The mother was made the subject of a previous s.91(14) order at the conclusion of proceedings before Mrs. Justice Macur, as she then was. After that order had been made, the mother sought permission from Mrs. Justice Macur to make an application in respect of X. In support of that application, she filed what purported to be a report from a psychologist. When it was checked, it was discovered that that document was a forgery and the psychologist named denied any knowledge of ever writing any such report. Criminal proceedings were instituted against the mother for perverting the course of justice, during the course of which she was convicted and sentenced to a term of imprisonment of nine months. That was in or about October 2012. The mother was still serving that sentence when the matter came before me in May 2013.

 

That of course doesn’t mean that she wasn’t the victim of injustice THIS time around, but it does mean that you might be somewhat cautious about taking her word for it.

Anyway, the committal judgment is now finally up.

Y v Najmudin 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3924.html

 

The contact order provided for supervised contact, seven times a year.

Having heard evidence over a number of days both from the parties, from the children’s guardian and expert evidence, I concluded that it was in the welfare best interests of X that his contact with his mother was very restricted, that it should take place, as I have set out, seven times per year in a contact centre, and it had to be professionally supervised. That was because I was satisfied that the mother had lied to me throughout the course of the hearing in 2013 and that she had and would, if permitted to have unsupervised contact, cause emotional and psychological damage to her son.  

 

The mother breached that order by making her own arrangements to see her son, clandestinely and without the knowledge of the father. She was not taking up her sessions at the contact centre, because she was making her own arrangements.

Evidence

  1. The mother in her evidence asserts matters have changed. X is more mature and he is older and he is old enough to make decisions for himself. That may be the case, but the fact that this mother chose to tell this child about this hearing and talked in detail about the evidence, in my judgment amply demonstrates that the circumstances that I found in my judgment in 2013 have changed not one jot.
  4. She may no doubt love her son, but it appears, in my judgment, that she remains incapable of assessing and putting his welfare best interest first. In addition, she did not at any time, despite regular email communication with the father, either (a) tell him that she was meeting X; or (b) ask his permission to see X. At no time, the mother concedes, did the father in fact agree to change the contact arrangements as set out in the order of 3 May. In her evidence, the mother tells me that she could not remember the terms of the order made in May 2013; that she did not know that by seeing X as she did in the street that she was acting in breach of my order. I, without any hesitation, entirely reject that account from the mother. I am satisfied so that I am sure that she knew full well what I had ordered and what were the restrictions on her contact, but she has chosen, in my judgment, deliberately once more to flout the court’s order and to ignore it.
  9. She takes the view that X is old enough to make his decisions and if he asks to see her, then whatever there may be in a court order is completely irrelevant. Well, she is wrong. She, by taking the actions that she has, has put X in an immensely difficult position. The father tells me, and I accept that X has said to him that he loves his mother and he would like to see his mother, but he would like to see her in the supervised contact centre. The mother tells me that when she sees X he is pleased to see her. I have no doubt being a loving child that he would do that. But the father tells me that by the time he gets home, it is plain that X feels uncomfortable, worried and concerned about these chance meetings, knowing that they are not taking place as the court has ordered; knowing that they have not taken place as he would wish. The mother, in my judgment, has put X in an extremely difficult position. She has quite deliberately chosen not to tell Mr. Y about these meetings, nor to seek his permission. All of those facts demonstrate to me that the mother knew precisely what it was that she could and could not do by the court order, but she chose to breach it.
  12. Furthermore, I am reinforced in coming to that view in terms of the adverse effect on X because I accept the evidence from Mr. Y that X has taken now to taking different routes home from school in order that he may try and avoid seeing his mother in those haphazard meetings in public. I accept that evidence. I am also concerned to hear it because it demonstrates very eloquently the conflict that this young man feels about the circumstances that his mother has caused him to be in.
  15. On the totality of all the evidence that I have heard, I am satisfied so that I am sure that the mother has breached the order of 3 May 2013 and, in particular, para.6, on each of the occasions set out in the schedule of findings sought by Mr. Y. In respect of those matters, where the mother was either not sure whether she had seen X on a particular date, or said that it was in fact her partner, Mr. Z, for example, who went to the father’s home on Wednesday, 15 April, I unhesitatingly reject those explanations and I find as a fact that the mother has met with X as set out in that schedule.
  18. Accordingly, I am entirely satisfied that the mother is in breach of that order and she is in contempt of court and she now falls to be punished for that contempt. I will consider what punishment I should impose at 2 o’clock after I have heard anything Dr. Najmudin may want to say in mitigation of her breaches of the order as I have found.

 

5 Comments

Posted in case law, committal, private law and tagged , , , , . Bookmark the permalink.

Something something oranges something

Posted on April 21, 2016 by suesspiciousminds

In a very classic Alan Moore comic, D.R and Quinch go to Hollywood, the two criminally twisted alien ‘heroes’ acquire a script from a genius writer who then dies, and they set off to Hollywood armed with the script to get the movie made and become hotshot Directors and auteurs.

The twist is, that although it is easy for them to get backing to make the movie and attract a monosyllabic star called “Marlon”,  it turns out that the handwritten script is almost totally illegible, save really for one word in the title, which is “Oranges”. So all they really know about the film they’re making is that the title is Something, Something, Oranges, Something.

Agent:So, where is this film set, exactly?
D.R.Well, does that word look more like “sandwich” or “submarine” to you?
Agent:Submarine
D.R.Well then, the film is set on a submarine, and not on a sandwich, as you might have previously imagined, man

 

It’s a great comic, anyway. Alan Moore knows the score.

http://mind-the-oranges-marlon.blogspot.co.uk/2009/11/dr-and-quinch-go-to-hollywood-part-1-by.html

 

(and part 2 is linked on that same page)

 

In this case in front of Holman J

Re I (A child) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/910.html

The child involved had told the social worker and the Guardian SOMETHING. But he didn’t want the parents to know what it was. The social worker and Guardian didn’t think it would affect the case in any way, but if the parents knew what it was, they might want to use it in the final hearing (no, it doesn’t make any sense to me either). The LA felt that despite not wanting to share the information, they were under an obligation to do so. The Guardian thus made   an application to Court that the LA be ordered not tell the parents SOMETHING, but also not to let them know what that SOMETHING was or why they weren’t to know this SOMETHING. Or even in fact to know that the application was being made.

 

  1. Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to his guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year-old child who is in their care. They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.
  3. The local authority therefore consider that they are under a duty to reveal or disclose the information to both parents; and they have said that they will do so unless prevented by the court, or at any rate unless the court indicates that in its view the local authority are not, on the facts and in the circumstances of this case, under a duty to disclose the information. That issue having arisen between the local authority and the guardian, the guardian issued an application dated 18th March 2016 in form C2. She did in fact name the local authority and both parents as the respondents to the application in paragraph 1 of it. The relief sought in the application is, “An order preventing the local authority from disclosing this information”. The application form goes on to ask that, “In order that the other parties are not made aware of this application or that it is being heard, we would ask that…” it be heard before the scheduled next hearing in this case and that it “…be dealt with privately or that the court makes some other arrangement to ensure that the other parties are not put on notice.”

 

Adding to the weirdness of this, it turned out that the Guardian’s previous counsel, having been appraised of this knotty problem, had mentioned it to a colleague in his chambers, without knowing that said colleague would then go on to be instructed by one of the parents.

 

At this point it is necessary to record a further twist in this particular case which does, or may, add a further layer of complexity. I have been told today by the guardian, Miss Tracey Cross, that her previous counsel (not, I stress, Mr Andrew Bainham, who appears on behalf of the guardian today) had mentioned the factual circumstances and the problem in this case to a colleague in his chambers, without either he or that colleague realising that the colleague had been, or was going to be, instructed on behalf of the father in these proceedings. It thus appears (although this will need further clarification from the two counsel concerned) that, inadvertently, counsel who is now instructed on behalf of the father in these proceedings may already be in possession of the confidential information in point. If the facts are as I have just summarised them, then some quite difficult questions may arise in relation to the professional duties of counsel to his client on the one hand, and the aura or carapace of candour and confidentiality which may attach on the other hand when one barrister discusses a knotty problem with a colleague.

 

 

The Judge had become (rightly) troubled by the notion of deciding whether information could be withheld from parents at a hearing at which they were not present

 

This led to consideration of two authorities in particular. The first is a decision of the Court of Appeal in Re: M (Disclosure) [1998] 2 FLR 1028, which itself refers with approval to the decision and guidance of Johnson J in Re: C (Disclosure) [1996] 1 FLR 797. The other authority considered today is that of the House of Lords in Official Solicitor to the Supreme Court v K and another [1965] AC 201, which makes reference at pages 215 B and 226 A to C to a practice in situations such as this of counsel being informed of the actual nature and content of the confidential information, on terms, or on the basis, that counsel will not communicate the actual nature and content of the confidential information to his or her solicitor or client without the permission of the court. In the much later authority of Re: M (Disclosure) that practice is also referred to with apparent approbation by Lord Justice Thorpe at page 1031 G.

  1. In all events, it seems to me, having regard to the clear authority of the Court of Appeal in Re: M (Disclosure), that I simply cannot with propriety substantively conclude today’s hearing or rule upon the application which the guardian has issued. If, in another situation, the local authority and the guardian were both in agreement that the information in question was not such that there was any duty to disclose it (for instance, if both agreed that it was too unimportant or trivial to require disclosure), then non-disclosure might indeed follow without any involvement at all on the part of the court. But the situation in the present case is that a dispute has arisen between the guardian and the local authority with regard to disclosure of this information, and a formal application has been made by the guardian to the court upon which the court is required to rule.
  3. If, in those circumstances, I were simply to rule on this matter today, without any knowledge whatsoever on the part of the parents and their legal advisors, then it seems to me that the court would risk complicity in a deception, not as to the substance of the information itself (which the law clearly establishes may in certain circumstances be withheld), but as to procedures which have taken place in the course of the set of proceedings with simply no notice at all to the respondents. Whilst Lord Justice Pill said in Re: M (Disclosure) at page 1033 F that he would not exclude the possibility that hearings of this kind may be held ex parte, he continued that, “I would hope that such situations would occur only rarely”. He then went on to give an example which is far removed from the facts and circumstances of the present case.
  5. I am deeply conscious that whenever disclosure issues of this kind arise there is an inherent problem once any notice is given. The problem is that if persons such as parents know that there is some information which it is sought, and may perhaps be ruled by the court, not to be disclosed, then “conspiracy theory” and imaginings may inevitably take over. There is indeed a risk in this sort of situation that a respondent, knowing that some information has been withheld from him or her, may start imagining that the information is more grave than the information actually is. It seems to me, however, that that is a risk that is simply inherent in a situation of this kind, and that the authority of Re: M (Disclosure) clearly requires that, on the facts and in the circumstances of the present case, notice is given. For those reasons, I will accordingly adjourn this whole hearing to start afresh on a later day of which notice is given to the three respondents and their legal advisors.
  7. Mr Bainham asked that I should list it part-heard before myself in order to maintain judicial continuity. For my part, however, I consider that it should be heard by any other judge except myself. I have now heard quite considerable argument, and indeed ventured some provisional views on the substance of the matter. It seems to me that if there is now to be a hearing on notice to the respondents, it should be a hearing which genuinely starts afresh, before some judge who comes to the matter with a fresh mind and is influenced only by arguments and material (apart from the information itself) which all parties and their advisors are enabled to hear and read. So, I shall direct that it is not heard again before myself.

 

At the next hearing, counsel for parents could be ASKED whether on instructions, they would agree to have the relevant information on the basis that it would not be disclosed – but the Court can’t make counsel do that unless they agree and their clients agree.

 

If counsel for any given one of the respondents is willing to give, and is able to give, a written assurance that he or she will not, without the further permission of the court, reveal or disclose the information in point to his or her client, then that counsel may be supplied in advance of the hearing with the whole slim bundle which is before me today, which contains the information in point and such evidence as there is in relation to it. That, however, will be a matter for the decision of each respective counsel. If he or she is unwilling or unable to give that assurance, then he or she cannot for the time being be told the information.

 

And what about the counsel instructed for father, who may have been inadvertently told what the information is?

I am deliberately not naming in this judgment the two counsel who had the conversation to which I have referred. I do not know whether the counsel who was party to that conversation, who is or was acting on behalf of the father, will be able personally to attend the hearing which has been fixed in London, but it is essential that there is some form of evidence or material, if he cannot attend that hearing, which makes quite clear the extent of his existing knowledge and what use, if any, he has made, or still intends to make, of any information so imparted.

 

(I assume there’s some sort of order which notifies him of this requirement)

 

Very tricky.  I’m sure I can make a very informed guess as to the nature of the information being held back here, it doesn’t take Sherlock Holmes to work out what it might be, but I won’t spell it out. We’ll just leave it as “Something, Something, Oranges, Something”

 

4 Comments

Posted in case law and tagged , , , , , , . Bookmark the permalink.

The Court’s Magical Sparkle Powers (TM) – can you take a DNA paternity test from a dead man?

Posted on April 21, 2016 by suesspiciousminds

In Spencer V Anderson 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/851.html

a Mr David Spencer, now 20 years old, wanted to establish whether the late William Anderson, who had died intestate (without making a will), was his father. William Anderson had provided tissue samples as part of his medical treatment. Could those tissue samples be used to extract DNA, and thus undertake a paternity test? And presumably establish a form of claim against Mr Anderson’s estate.

It is a judgment by Mr Justice Peter Jackson, so it is highly informative and elegant.

 

  • The application under s.55A was issued on 18 September 2015. His Honour Judge Duggan made a series of directions, giving the respondents and the hospital the opportunity to make representations, and listing the DNA testing issue for decision. He identified the following questions:

 

(1) Does the phrase “bodily samples” in section 20(1)(b) Family Law Reform Act 1969 extend to DNA material already extracted?

(2) Alternatively, does the inherent jurisdiction of the High Court extend beyond the ambit of the Family Law Reform Act 1969 to permit comparison of the DNA of an applicant with samples of DNA already extracted from bodily samples of the deceased and kept in storage?

(3) What is the legal basis of paragraph 66 of Mrs Justice Thirlwall’s judgment of Goncharova v Zolotova [2015] EWHC 3061 (QB)?

(4) Does the testing of the DNA already extracted from a deceased person require consent and if so from whom?

(5) Is the refusal of consent by the deceased’s estate capable of creating an adverse inference whether under the Family Law Reform Act 1969 or the inherent jurisdiction of the High Court?

 

  • I will consider each of these questions in the course of this judgment.

 

Damn good set of questions, those.

 

D FIRST ISSUE: DOES THE FLRA 1969 APPLY?

    • On behalf of Mr Spencer, Mr Kemp initially sought to argue that a direction might be given under the FLRA. However, in the course of the argument he conceded that this argument could not succeed. In my view, the concession was rightly made for the reasons analysed above, which can be summarised by saying that the FLRA:
  • governs the taking of samples from living people
  • makes no provision for samples being taken after death
  • does not contemplate separate directions for sampling and testing
  • does not provide for the testing of existing samples
  • does not provide for the testing of samples that had been taken for reasons other than establishing parentage
  • requires samples to be collected in accordance with regulations
  • does not provide for the testing of DNA itself.

 

  • Mr Kemp rightly described the difficulties as being insurmountable and accepted that in the circumstances of this case a direction under s.20 is not available to his client.
  • There being no other legislation in point, I therefore conclude that there is no statutory power to direct post-mortem scientific testing to establish a person’s biological relationships and consequently no statutory power to make a direction for the testing of Mr Anderson’s stored DNA

 

E SECOND ISSUE: DOES THE HIGH COURT HAVE AN INHERENT POWER TO ORDER TESTING?

 

  • On behalf of Mr Spencer, it is argued that there are two possible sources of such a power: Civil Procedure Rules r.25.1 (or its equivalent, Family Procedure Rules r.20.2) or the inherent jurisdiction.

 

(By “Inherent Jurisdiction” here, everyone means the Court’s “Magical Sparkle Power” (TM), which I have decided should be used from now on, to illustrate just how much of a legal sleight of hand the whole thing is)

The inherent jurisdiction

 

  • The inherent jurisdiction of the High Court is a description of the court’s common law powers insofar as they have not been removed or supplanted by statute. In the Court of Appeal in Re F (above) Lord Donaldson MR described the common law as

 

“… the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.”

 

  • The inherent jurisdiction is therefore a jurisdiction of long-standing that nowadays exists in a number of important contexts. With regard to children, it has been used in a wide variety of creative ways to supplement statutory powers, both through the medium of wardship and otherwise. As recorded in FPR PD 12D, the court can, for example, make orders to restrain publicity, to prevent an undesirable association, to endorse medical treatment, to protect children abducted from abroad and to recover children from abroad. These orders not only affect the individual family members but are also directed towards third parties, either as orders or requests.
  • More recently, the jurisdiction has been developed to provide remedies for the protection of vulnerable but not legally incapable adults. In Re SK [2004] EWHC 3202 (Fam), Singer J said:

 

“I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values.”

That manifestation of the jurisdiction was cemented by Munby J in Re SA [2005] EWHC 2942 (Fam) and the Court of Appeal has confirmed that it has survived the enactment of the Mental Capacity Act 2005: see DL v A Local Authority [2012] EWCA Civ 253.

 

  • These cases and others concerned the protection of vulnerable individuals at risk of coercion or abuse. At the other end of the scale, the inherent jurisdiction can relate to the court’s power to control its own procedures, as in Bremer Vulkan v. South India Shipping [1981] 1 AC 909, where Lord Diplock said this at 977:

 

“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. … The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”

 

  • The inherent jurisdiction is plainly a valuable asset, mending holes in the legal fabric that would otherwise leave individuals bereft of a necessary remedy. The present case (DNA testing) might be said to fall between the above examples of the court’s inherent powers (protection of the vulnerable, striking out).
  • At the same time, the need for predictability in the law speaks for caution to be exercised before the inherent jurisdiction is deployed in new ways. The court is bound to be cautious, weighing up whether the existence of a remedy is imperative or merely desirable, and seeking to discern the wider consequences of any development in the law.

 

That is the problem with the Court’s Magical Sparkle Power – because it isn’t set down properly in statute what the powers are, and the limitations of those powers, and the constraints for using those powers, it ends up being built on with case after case – extending its reach outwards and upwards, and then each case thereafter says “Well, if Munby J was able to use the Court’s Magical Sparkle Powers to do X, then I can use them to do Y” and the next Judge says “Well, if Colombo J was able to use the Court’s Magical Sparkle Powers to do Y, then I can use them to do Z” and so it goes.

There’s a neat argument against the Court’s Magical Sparkle Power here, which rather appealed to me

Submissions on behalf of Mrs Anderson

 

  • Mr Mylonas QC and Ms Street advance the following propositions in relation to the existence of an inherent jurisdiction:

 

(1) The High Court does not have the power to make any order it wishes; see Hayden J in Redbridge London Borough Council v A [2015] Fam 335:

“The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right…”

(2) The court’s powers are limited by s.19(2) of the Senior Courts Act 1981:

“Subject to the provisions of this Act, there shall be exercisable by the High Court—

(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and

(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a judge of the High Court by any statutory provision).”

So, the applicant must, but cannot, show that there was jurisdiction to make an order of this kind before the coming into force of the Senior Courts Act.

(3) Paternity testing within litigation is regulated by Part III of the 1969 Act. Any power to make a direction for scientific testing to establish paternity under the inherent jurisdiction was ousted by the Act: Re O (A Minor)(Blood Tests: Constraint) [2000] Fam 139.

In that case, two men had each obtained directions for the testing of a child to establish paternity, but the mothers, with care and control of the child, refused to consent to the testing. Wall J accepted with reluctance that there was no power to compel the mothers to allow testing when the statute required their consent: this soon led to the enactment of s.21(3). At page 151, he stated:

“In my judgment, unattractive as the proposition remains, both the inherent jurisdiction to direct the testing of a child’s blood for the purpose of determining paternity and any consequential power to enforce that direction is entirely overridden by the statutory scheme under Part III of the Family Law Act 1969. If the remedy is to be provided it is, accordingly, for Parliament to provide it.”

It is said that the present position is on all fours with that facing the court in Re O. Although the decision was given nine months before the Human Rights Act came into effect in October 2000, the court showed itself well aware of the rights engaged on all sides.

(4) There are sound policy reasons for the absence of any statutory power to permit testing in the circumstances of this case. DNA testing is an interference of the highest order with the subject’s right to confidentiality and the privacy of their known family members whose genetic relationships will also be revealed by such testing. If the court allows post-mortem DNA testing in the absence of consent, this is likely to discourage patients from providing DNA during medical treatment and encourage those in Mr Spencer’s position to defer making applications until after the death of the alleged father so as to circumvent the absence of consent. If testing in a case such as the present were to be permitted, it ought to be by way of a scheme (i) devised following the kind of consideration, consultation and scrutiny which Parliament but not the High Court can carry out; (ii) which provides for regulation (eg guaranteeing the integrity of samples and testing); and (iii) which provides clear rules which can be easily understood by healthcare professionals, patients, their family members and those who seek testing.

(5) At present, the law is clear: you cannot test samples taken for one purpose for a different purpose without consent. That clarity would be lost if an inherent power was found to exist. The law must be accessible and sufficiently precise to enable the individual to understand its scope and foresee the consequences of his actions: R v Purdy [2010] AC 345 at 390. In the present case, Mr Anderson was deprived of the opportunity to require his samples to be destroyed or of making a will excluding Mr Spencer.

(6) The decision in CM v EJ does not take matters further forward. It was not a case about paternity testing, no arguments were made against the existence of an inherent jurisdiction, and the use of the jurisdiction was consistent with the relevant statutory scheme, not inconsistent with it.

(7) Re H and A is a case in which the power to order testing was not in question. Likewise, the decision in Jaggi concerned the failure to exercise a power that existed, not the question of whether a power existed in the first place.

(8) As Re O demonstrates, the interests of justice alone do not provide a basis for ordering testing where no power to do so has been identified.

(9) Similarly, a series of cases in the analogous field of assisted reproduction show the reluctance of the courts to subvert a carefully-devised statutory scheme.

 

I happen to agree with all of that, but good luck in ever persuading a Judge that they should make a decision limiting the use of Magical Sparkle Power. You may have picked up from time to time, that I don’t much like the Jedi hand-wave that is Magical Sparkle Power, with Judge’s deciding that they can conjure powers out of thin air to solve a problem. It doesn’t sit well with me in terms of checks and balances.

 

Anyway, the important thing is that Mr Justice Peter Jackson did not agree with me, or the estate of Mr Anderson (and I don’t think on the law as it stands that was a wrong decision – the problem is, as I alluded to earlier, that the law in relation to Magical Sparkle Power is developing as a series of stepping stone cases, each relying on the one before it to extend the power further, and with no real tackling of the foundations of the earliest stepping stones and whether the Courts were ever given quite the scope of Magical Sparkle Power that they are now using)

 

Conclusion as to inherent jurisdiction

 

  • In my view, the following features are relevant to the existence or non-existence of an inherent power:

 

(1) Statutory interpretation

Before the enactment of the FLRA, the preponderant judicial opinion was that there was power to direct the taking of blood to establish a child’s paternity, and such orders were on occasion made: see In re L (An Infant) [1968] P 119 and B (BR) v B (J) [1968] P 466.

The FLRA is the only statute concerned with testing for evidence of biological relationships. It is comprehensive in relation to cases falling within its scope: Re O. In that case, the issue that had arisen lay squarely within the scheme of the Act. It fell under what Wall J referred to at 150 as the “rug” of the legislation, or what Hale LJ referred to as the “footprint” in the Court of Appeal in Re R (see paragraph 39 of the House of Lords’ opinions). In contrast, the testing of DNA post-mortem falls distinctly outside the scope of the legislation. The FLRA cannot be read purposively or convention-compliantly so as to cover cases of the present kind. I therefore do not accept that a power to give directions for post-mortem DNA testing has been ousted by the Act.

Nor do I accept that the court’s powers are limited by s.19(2) Senior Courts Act 1981. This formal, descriptive subsection cannot be taken to have defined or circumscribed the powers of the High Court, or to have frozen them as at the date of the legislation. Were it otherwise, the vulnerable adult jurisdiction could not have existed.

There is a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. I accept that in an area of this kind, policy considerations arise which would be better regulated by Parliament than by individual decisions of the court. In one sense, this speaks for judicial reticence. However, there is no indication that Parliament has turned its attention to the situation that arises in the present case, or that it is likely to do so at any early date. This gives rise to the possibility of an indefinite period during which individuals would be left without a remedy.

(2) Consent

Both the FLRA and the HTA (and the HFEA 1990 and 2008, insofar as they may be analogous) regard consent as the central component of lawfulness.

It is necessary, when considering the availability of a remedy after death, to consider the situation that would have arisen in life. The person concerned would have had the right to decide whether or not to participate in paternity testing and to allow his human tissue to be used for that purpose.

Although neither the FLRA nor the HTA apply to extracted DNA as opposed to human tissue, the use of human tissue is a necessary forerunner to the extraction of DNA and similar considerations and sensitivities must apply when DNA testing is being considered.

If the issue related to the post-mortem testing of human tissue (as opposed to DNA), the terms of the HTA would apply. For testing to be lawful, there would have to have been consent from the individual in life or by a relative after death. Or there would have to be a court order.

(3) The public interest

An intervention of the kind suggested in this case might give rise to uncertainty and concern within the medical world and beyond at the possibility that such orders might be made in other cases, or that in effect the door was being opened to post-mortem paternity testing on demand. Although it does not arise in the present case, the prospect of applications for exhumation cannot be regarded as fanciful when one recalls the circumstances in Mortensen and Jaggi, or indeed those of Richard III.

Against this, there is no sign that the present application has caused alarm to the major hospital involved in the present case (indeed it appears to welcome the court’s assistance), or that applications of this kind are likely to be at all numerous, particularly if they could only be heard in the High Court, and thereby be subject to very close scrutiny. The prospect of this limited development in the law affecting the behaviour of the patient population as a whole is likely to be more imaginary than real.

(4) Identity

Knowledge of our biological identity is a central component of our existence. The issue can have consequences of the most far-reaching kind, perhaps above all for those who do not know or are not sure of their parentage. Within our lifetimes, DNA testing has made the truth available. At the same time, it has made all other kinds of evidence almost irrelevant. While it remains possible to reach a conclusion about paternity without scientific tests, the practical and psychological consequences are different. A declaration made without testing is a finding, while the result of a test is a fact.

The contrast can be found in the opinion of Lord Wilberforce in The Ampthill Peerage Case [1977] 1 AC 547 at 569:

“Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.”

While at 573 he said:

“One need not perhaps, on this occasion, face the question whether, when technology or science makes an advance, so as to enable to be known with certainty that which previously was doubtful, such evidence ought to be admitted in order to destroy the binding force of a judgment or of a declaration with statutory force. It may be that within the limits within which a new trial may be ordered and, on the precedents, those limits are comparatively short, such evidence could be admitted for that purpose.”

The European Convention, as interpreted in Jaggi, underscores the importance of the opportunity to discover one’s parentage. Although the Convention cannot on its own create a remedy, it is desirable that our law is consistent with the approach taken in other jurisdictions if that is possible.

(5) The interests of others

It is a peculiar feature of genetic testing that it inescapably has the potential to affect not only the individual being tested but also those to whom he is closely related. Depending on the facts, the rights of surviving relatives may be engaged, but it is difficult to envisage a situation in which the establishment of the truth about biological relationships could amount to an unlawful interference with those rights; at the very least any interference may be necessary and proportionate. The rights of third parties certainly cannot represent an absolute bar to the existence of an inherent power.

(6) The interests of justice

When all is said and done, the court is faced with a civil dispute that must be resolved. In cases where a power exists, it has long been emphasised that the establishment of the truth is both a goal in itself and a process that serves the interests of justice. As noted above, where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because (by definition in a case of the present kind) people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious. The prospect of a court trying to ascertain the truth to the best of its ability when the truth is in effect there for the asking is a troubling one. Account must also be taken of the needless waste of resources that would accompany a trial involving narrative evidence.

(7) The range of circumstances

The existence of a power cannot depend upon the circumstances of the particular case. What is relevant is the range of cases that might arise. It is possible to envisage opportunistic and unmeritorious applications, but there might equally be applications, perhaps concerning young children, where the need to know the truth about parentage is compelling. The answer cannot be that the court can consider an application in the second case but not in the first: jurisdiction cannot depend on merits.

 

  • Reflecting the complexity of the legal and ethical issues, the above features pull in a number of different directions. If the only considerations related to the interests of the deceased and the public interest, the arguments against the existence of an inherent power would surely prevail. However, the interests of the living and the interests of justice must also be brought into consideration.
  • Taking all these matters into account, my conclusion is that the High Court does possess an inherent jurisdiction that it can properly deploy to direct scientific testing to provide evidence of parentage in circumstances falling outside the scope of the FLRA. If the court was unable to obtain evidence of this kind, severe and avoidable injustice might result. Awareness of the implications of ordering testing without consent and of the wider public interest does not lead to the conclusion that the jurisdiction does not exist, but rather to the realisation that it should be exercised sparingly in cases where the absence of a remedy would lead to injustice.

 

This is not a surprising conclusion. Magical Sparkle Power continues to be most efficacious in evey case. The remedy for all ills.

 

Having established that the Court COULD use Magical Sparkle Power to compel a DNA test from a deceased person’s tissue samples, given for another reason, the Court then had to decide whether they SHOULD in this case.   (This of course raises the issue as to whether someone who is terminally ill should make legal arrangements for the destruction of any tissue samples on death, or whether that should be part of a formal consent procedure when the samples are taken, but that’s a bit beyond our scope)

 

F THIRD ISSUE: SHOULD TESTING BE DIRECTED IN THIS CASE?

 

  • The following factors are relied upon in support of testing:

 

(1) Mr Spencer’s natural desire/right to know his parentage.

(2) Combined with this, the value that knowledge of paternity will have in clarifying his medical status and the need (or not) for intrusive investigations.

(3) The interests of justice and the need for the best available evidence: cf Re H and A.

 

  • In response, it is said on behalf of Mrs Anderson that:

 

(1) An order for testing would be an unjustified interference with her own Art. 8 rights by compounding a distressing situation and creating a risk that a genetic relationship would be identified between herself and a person who has caused her stress and anxiety.

(2) Human DNA is intensely personal and very strong justification is therefore required if it is to be used for any purpose without that person’s consent. The sample was provided by Mr Anderson for his own benefit during the course of medical treatment. He was entitled to a high expectation of confidentiality.

(3) Testing could not have taken place in Mr Anderson’s lifetime without his consent. This statutory bar has been given greater weight than any other rights, including those of a supposed child. Mr Anderson’s option to consent or withhold consent during his lifetime (and to explain his decision) was circumvented by Mr Spencer’s choice not to raise the issue until after his death. It would be unjust if his extensive delay allowed Mr Spencer to achieve testing without consent.

(4) To allow testing in this case would be against the public interest by undermining patient confidence in the confidentiality of providing samples for medical treatment.

(5) Mr Spencer’s delay deprived Mr Anderson of the opportunity to make decisions about his private life and his property.

(6) Mr Spencer’s interest weighs less heavily in the balance than that of Mr Anderson, Mrs Anderson and the public interest because:

(i) His lack of interest in testing until after Mr Anderson’s death shows that he had no interest in testing for paternity in order to satisfy himself of that relationship for its own sake. The court is not obliged to take positive steps to uphold his rights in these circumstances.

(ii) If the request is now motivated by inheritance reasons, his delay denied the deceased the opportunity to manage his estate in the light of relevant knowledge.

(iii) If the request is now motivated by medical reasons, on Mr Spencer’s own case, a test would merely serve to confirm what he already believes to be the case; if no testing is carried out he will continue to benefit from low-risk screening which will reduce his chance of cancer.

(7) Making no order for testing in this case would not exclude the possibility of an order for testing of a DNA sample being made on different facts, for example, where national security or the life of a child was at stake.

 

  • Weighing these matters up with appropriate caution, and seeking to strike a fair balance between the competing private and public interests, I have reached the conclusion that scientific testing should take place to seek to establish the paternity of Mr Spencer by using the stored DNA sample of the late Mr Anderson. These are my reasons:

 

(1) If the application for a declaration of parentage had appeared to be speculative or opportunistic, the request for scientific testing would probably not have succeeded. However, the overall evidence here raises the real possibility that Mr Anderson was Mr Spencer’s father, he having undeniably been in a relationship with Mr Spencer’s mother at the time of conception.

(2) It is common ground between the parties that there is a significant medical issue that turns on the possibility of a biological relationship between Mr Anderson and Mr Spencer. It is of course possible for Mr Spencer to be tested periodically by colonoscopy, but that is only a partial solution because he is surely entitled to know the reason why he should undergo those procedures, or to be relieved of the need to do so. As recently as February 2015, Mrs Anderson regarded it as “essential” that Mr Spencer’s paternity should be established. It does not now lie easily in her mouth to say the opposite.

(3) Although it is possible that the late Mr Anderson (like the alleged father in Jaggi) might have refused to consent to testing during his lifetime, there is no particular reason to regard that as likely. Whether or not he would have welcomed the possibility that he was a father, it may not do justice to his memory to assume that he would have withheld his support from a young man who might have inherited a serious medical condition from him.

(4) The information, in the form of the DNA sample, is readily available and does not require physically intrusive investigations. In particular, it does not require exhumation, as to which particular considerations would undoubtedly arise.

(5) There is no objection on behalf of the hospital, which might be seen as being a nominal representative of the public interest in this case.

(6) The interests of third parties, and in particular those of Mrs Anderson to the extent that they may be engaged, are, with all respect, of lesser significance. There is no indication of any real risk of harm and the establishment of the truth carries greater weight than the question of whether it is palatable.

 

  • I accordingly find that Mr Spencer’s interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court’s inherent jurisdiction to secure this outcome.
  • For completeness I would add that, had testing not been directed, the court would have heard the evidence in the normal way. Statutory inferences could not be drawn in a case where the statute did not apply, but this would not have prevented the court from drawing whatever inferences seemed proper from the evidence before it.
  • I pay tribute to the considerable help that I have received from counsel and invite them to submit a draft order that reflects this decision and replicates so far as possible the protections that would accompany a direction for testing under the FLRA.

 

Magical Sparkle Power, eh. Amazing. For me, it’s a bit like Superman. If you’re writing a Superman comic or film, you know the powers that Superman has been given. It’s a broad spectrum – he has super strength, he has flight, he has X-ray vision, he has heat rays, he has extraordinary speed. That’s a lot to work with, it should cover most of what you need in any given scenario. If you start adding to that with the power to kiss people and make them forget things, to peel his logo off his chest and throw it as a super weapon, to fly so fast round the earth backwards that he can turn back time, then you’re CHEATING.  Superman does have super powers, yes, but he has particular and specified superpowers. He can’t just suddenly produce claws out of his fists because Krypton, or have control over metal because “Superman”.  So “Magical Sparkle Power” is my little way of reminding myself and others that there are consequences to using the inherent jurisdiction to do wholly new and imaginative things that aren’t written down anywhere, because every time you do, it is stepping stone that others will stand on to go a little bit further.  Some of these stepping stones are now just floating in thin air.

 

 

 

 

 

 

2 Comments

Posted in case law, inherent jurisdiction and tagged , , , , , , , , . Bookmark the permalink.

The unspeakable in pursuit of the inaudible

Posted on April 15, 2016 by suesspiciousminds

A quirky appeal this. The Magistrates Court heard evidence at a final hearing and were so impressed by the mother’s evidence that they declined to make Care Orders and Placement Orders and made instead Supervision Orders which would have kept the children with her.

The Local Authority and Guardian appealed.

At the appeal hearing, before HH Judge Parker, the Court sought a transcript of the evidence from the Magistrates Court hearing but whilst everything else came out clearly, most of the mother’s evidence (surely critical) came back as “inaudible”

HH Judge Parker decided to hear evidence from the mother, so that he could hear for himself the evidence that had persuaded the Magistrates. He was not so persuaded. He allowed the appeal and set it down for re-hearing, before himself.

This decision was then appealed to the Court of Appeal by the mother, on the basis that rather than determining an appeal, HH Judge Parker had embarked on a course of action that was half-way between an appeal and a re-hearing, and that having made those findings after hearing evidence from the mother, he wasn’t the right person to deal with the re-hearing

 

Re C (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/356.html

 

Judge Parker was himself engaged upon an appeal against orders made by lay justices sitting in the Family Court in care proceedings. The local authority had sought care orders in relation to E and K, as recommended by the social worker, the guardian, and a psychologist who had assessed the children’s mother. However, having heard the mother giving evidence for over three hours, the justices concluded that she had made material changes in her life and acknowledged past problems, and they differed from the recommendation of the professional witnesses. Accordingly, on 29 October 2015, they made supervision orders which, absent the local authority’s appeal to Judge Parker, would have resulted in the children returning to the care of the mother. The local authority, however, appealed contending that there had been serious procedural irregularities and that the decision of the justices was wrong for a number of reasons.

 

  1. At the outset of the case on 11 January 2016, the judge made a further case management direction, namely that the mother would give oral evidence at the appeal hearing. This was an unusual course and the judge gave a short judgment on 11 January explaining why he had adopted it.
  3. In preparation for the appeal hearing, a transcript of the evidence of several of the witnesses at the care hearing had been sought, including that of the mother. The judge considered the transcript of the mother’s evidence “woefully inadequate”. There were many references to her evidence being inaudible and, in the judge’s view, this rendered the transcript “incoherent”. He thought it was “of insufficient quality for the court to perform a proper assessment of the mother’s evidence”. This concerned him because he thought it would disable him from carrying out what he saw as a necessary part of his function on the appeal. The judge’s concern and his reasoning for the solution he adopted appear from the following passages in his case management judgment:
    1. “5. ….. This court, the appellate court, is …. being asked to express its judgment on whether the magistrates were wrong based upon an inadequate transcript of the mother’s evidence, setting that against the findings of the magistrates and also, of course, the written evidence and transcripts presently held of the psychologist and also the written evidence of the social worker and, I anticipate, the written evidence and transcript of evidence of the children’s guardian.

6. My real concern about approaching the case in that way is that the mother is prejudiced. How can it be in the mother’s best interests, when that part of the evidence that was the basis for reliance within the judgment of the magistrates, namely the mother’s evidence before them – the single most important piece in the jigsaw for the magistrates, looking at their written reasons – that the appeal proceeds without a coherent account of what the mother said, that appears to have been so persuasive for the magistrates that they felt able to reject the evidence of the three experts? Of course, in my judgment, the answer to that is that it cannot be in the mother’s best interests. She has to have the option of restating her case in a coherent way before the appellate court such that her case can be put as well and as strongly as it can be put. If the opposite view was taken by this court then the court would be left considering an incoherent account of the mother’s evidence set against coherent accounts of all those witnesses who gave evidence that was the antithesis of the mother’s case. Fairness, in my judgment, demands in this case that the mother has the opportunity to put that evidence again before me.”

  1. In so deciding, the judge recognised that ordinarily appeals are dealt with by way of review but he seems to have seen the process that he instigated as a re-hearing, within the provisions of Rule 30.12 of the Family Procedure Rules 2010.
  3. The appeal hearing and the order of 14 January 2016
  4. The mother duly gave evidence orally to Judge Parker and he set out what she said, and his impressions of her, starting at §36 of his judgment of 14 January 2016. At §60, he came to ask himself whether, “based on the available evidence …. the magistrates were right to find that the mother was in a different place to February 2015” when the children had come into foster care. He accepted that she had resolved some of her problems, but concluded that there was insufficient evidence of material change and that there was a high risk of a relapse, which could not be managed by a supervision order. He determined that, for a number of reasons which he set out, the justices had been wrong to reach the conclusion that they did. He concluded his judgment in this way:
    1. “In those circumstances, the appeal is allowed and the matter will now be listed for re-hearing on 8 February.”

 

A tricky situation – clearly the mother’s evidence formed a pivotal part of the reasoning of the Magistrates in deciding that the mother had made sufficient changes and showed sufficient insight to merit the children being in her care, and if the tape and transcript was inaudible, it would be difficult to conduct the appeal. However, is it fair to have one witness give evidence again (when she had already done so to the Court’s satisfaction, and it was not her fault that her evidence was inaudible when heard on tape) ?

 

[The remark at para 42 that the usual principle that an appeal Court should be reluctant to interfere with the findings of fact and assessment of witnesses made by the Court at first instance “applies all the more strongly to an appeal where the decision is about the future of a child” is interesting. Expect to see that come up in skeletons and judgments again]

Discussion

  1. In setting out my conclusions about the appeal, I propose to say as little as possible about the facts of the case and the conclusions of the justices because, by our order at the end of the appeal hearing before us, we remitted the local authority’s appeal to the Family Court for re-hearing. I would not like anything I say to influence or undermine that process. This is particularly so as we did not hear argument about the substance of the local authority’s appeal, the concentration being rather upon the process adopted by Judge Parker. Fortunately, it is not necessary to go into the details in order to explain why I formed the view that I did of matters.
  3. The provisions of Rule 30.12 of the Family Procedure Rules 2010 which governed the appeal to Judge Parker in this case are almost identical to the provisions of Rule 52.11 of the Civil Procedure Rules 1998 which govern a large number of other types of appeal, including those to the Court of Appeal. Both rules provide that “[e]very appeal will be limited to a review of the decision of the lower court” unless different provision is made elsewhere for a particular category of appeal or (the provision upon which Judge Parker relied) “the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing”. As for oral evidence, the default provision, set out in Rule 30.12(2) and Rule 52.11(2), is that it will not be received and, although the power to permit it does exist, in practice it is very rare indeed for there to be oral evidence on appeals.
  5. In the vast majority of cases, no question of an appeal taking the form of a re-hearing even arises, the general rule that appeals are limited to a review of the decision of the lower court simply being observed as a matter of course. Counsel for the appellant mother cited a passage from In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 which underlined how rare it is for an appeal to be dealt with by way of a re-hearing and identified the attributes of the exceptional cases in which this occurs. Although, in this passage, Lord Neuberger was focussing particularly on the role of the appeal court when considering the proportionality of an order made by the first instance court, I see no reason why his comments should be confined to that situation:
    1. “86. …..There is, in my view, no reason why the Court of Appeal in a case such as this should not have followed the normal, almost invariable, approach of an appellate court in the United Kingdom on a first appeal, namely that of reviewing the trial judge’s conclusion on the issue, rather than that of reconsidering the issue afresh for itself.

87.  That this is the normal function of the Court of Appeal is made clear by CPR 52.11, which states that, save in exceptional cases, every appeal is limited to a review rather than a re-hearing and the appeal will be allowed only where the decision of the lower court was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. The ‘exceptional cases’ are, as a matter of principle and experience, almost always limited to those where the Court of Appeal (i) decides that the judge has gone wrong in some way so that his decision cannot stand, and (ii) feels able to reconsider, or ‘rehear’, the issue for itself rather than incurring the parties in the cost and delay of a fresh hearing at first instance.”

  1. If the question does arise as to whether it would be in the interests of justice to hold a re-hearing, the court will look to see whether there are any special features which support a departure from what is overwhelmingly the normal course. In so doing, it seems to me that the court has to keep firmly in mind the limits of its proper role as an appeal court. The authorities are peppered with reminders that an appeal court should be reluctant to interfere with the assessment of credibility and the findings of fact made by a trial judge who has seen the parties and the other witnesses. For present purposes, I alight upon what Lord Wilson had to say on the subject in In re B (A Child) (supra), where he dealt also with the approach that should be taken by an appellate court to a decision of a family judge about a child’s future:
    1. “41. Into its review of a trial judge’s determination of a child case an appellate court needs to factor the advantages which the judge had over it in appraising the case. In Piglowska v Piglowski [1999] 1 WLR 1360 , 1372 Lord Hoffmann said:

“The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1, 45: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based on much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made on him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.'”

42. Lord Hoffmann’s remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?” and, in a public law case, when always hoping to be able to answer his question negatively, to ask “are the local authority’s concerns about the future parenting of the child by this witness justified?” The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge’s decision about the future arrangements for a child.”

  1. In the present case, it was the justices who had the advantages of the trial judge, and Judge Parker, as the appeal court, was bound to approach their decision with the respect described by Lord Wilson. When deciding what to do about the inadequacies in the transcript, he should have asked himself what part the transcript could legitimately play in the appeal process, bearing this in mind. As his role was not to attempt to reassess the mother’s evidence himself at second hand, on the basis of the transcript, with a view to determining whether the justices’ reliance upon her had been misplaced, did he actually need a complete transcript of her evidence?
  3. In order to answer this question, Judge Parker needed to consider how the local authority proposed to put its case before him. There can be appeals where a detailed study of what a witness said is required. However, nothing in the argument that this local authority sought to advance to the judge by way of appeal turned on any particular passages in the transcript of the mother’s evidence. It was not their case that the justices had mistaken or failed to give weight to particular things that the mother said in the course of her evidence and, if I recollect correctly what was said to us in submissions, the local authority had not in fact sought a transcript of any of the evidence themselves; the idea came from the judge. The thrust of their appeal was that the justices had failed to evaluate the mother’s evidence having proper regard to the history of the case and the other evidence, including that of the guardian, the social worker and the psychologist, and that their conclusion that her evidence established that there had been real change in the situation which had caused problems for the children in the past was untenable. An appeal on grounds such as this would normally be advanced by means of submissions drawing attention to aspects of the evidence which demonstrated the flaws in the justices’ conclusions and to deficiencies in their written reasoning. It is by no means always necessary to have a transcript of the evidence in the court below for this purpose and especially where the argument does not turn on precise words used by the witnesses in the course of oral evidence. However, if the judge thought that he needed better information about what the mother said than emerged from the imperfect transcript here, he should have explored alternatives methods of obtaining it, rather than simply embarking upon re-hearing her evidence. The transcript provided a good framework, even if deficient in some details, and notes of evidence taken by counsel who appeared before the justices might well have filled in the gaps sufficiently, for example.
  5. This was not, in my view, one of those exceptional appeal cases in which a re-hearing was required in the interests of justice. Indeed, as things turned out, the process disadvantaged the mother. By directing at the outset of the appeal that she would give evidence again in front of him, it seems to me that, albeit for the very best of reasons, Judge Parker inadvertently deprived her of the opportunity to attempt to persuade him that the favourable determination of the justices should be respected, recognising their advantages as the tribunal which had heard all the evidence, and reached conclusions in the light of it. Given the nature of the local authority’s appeal arguments, there was no need for him to have proceeded in this way and it was inappropriate for him to have done so.
  7. It was submitted to us that the process before the judge was confused, having elements of both a re-hearing and an appeal. I agree with that submission. The confusion is demonstrated not only in the hearing itself but in the directions that the judge gave afterwards which provided for a further re-hearing in front of him, with his adverse findings about the mother carried forward to that re-hearing. The whole process undermined the mother’s position, despite the judge’s intention that it should assist her. The favourable findings of the justices, reached following a hearing at which oral evidence was given by all of the key witnesses, were dislodged in favour of adverse findings made by the judge, who had heard only from the mother. In fairness to the judge, it should be recognised that the mother’s counsel did not seek to put questions to the other witnesses. He explained to us that, having unsuccessfully resisted the judge’s proposed course of hearing oral evidence from the mother, he understandably did not consider that it would be appropriate to appear in this way to be agreeing to the process that the judge had imposed, and nor did he consider that cross-examination would assist. However it came about though, it was not fair to the mother for the adverse findings made at a partial re-hearing of this kind to be carried forward into the next re-hearing.
  9. So, for the reasons I have set out, I concluded that the process adopted by Judge Parker on the local authority’s appeal to him was not appropriate or fair to the mother, even though he embarked upon it with the best of intentions. The proper course was therefore to set aside all the orders that he had made in connection with the local authority’s appeal and to return the matter to the Family Court for that appeal to be determined afresh. Although, at the hearing before us, it was contemplated that directions would be given by the Family Division Liaison Judge for the Northern Circuit with a view to the local authority’s appeal being listed, it was subsequently arranged that Judge de Haas would take charge of the directions instead. It is not necessary, or desirable, to say more on the question of the mother’s application for a further report on the situation to be commissioned from an independent social worker. This is more properly the province of the judge dealing with the continuing proceedings at first instance.

6 Comments

Posted in case law and tagged , , , , , , . Bookmark the permalink.

Preacher and Cyanide

Posted on April 15, 2016 by suesspiciousminds

 

This was a Court of Appeal decision about whether a parent can be prevented from giving their children names of their choosing. In this case, the mother had chosen the names “Preacher” and “Cyanide” for her newborn twins.

Could she be prevented from officially registering these names?

Unlike France, where Registrars themselves have a right of veto, British Registrars can raise eyebrows and gently persuade, but they have no power to prevent a parent giving a name that they consider unsuitable.

Do the Courts have power to stop a parent doing so? Does a Local Authority?

http://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html

The Court of Appeal ruled that the answer was yes, but that the correct route to follow was more complex than one might first think.

 

  1. The issue to be determined is whether there is power in this jurisdiction to prevent a parent with parental responsibility from registering a child with the forename of his or her choice. If the answer to that question is ‘Yes’, the second question (and one which rather unexpectedly requires a detailed consideration of somewhat labyrinthine technicalities) is by what procedural route the court should exercise that power.
  3. For reasons set out below I am entirely satisfied that the court has such a power. I am equally satisfied that it is a power which should be used only in the most extreme cases and only with the sanction of a High Court Judge.

 

Re C (Children) 2016

There were going to be care proceedings in any event, due to the mother’s background of mental health difficulties, and the Local Authority in this case applied to the Court under the Inherent Jurisdiction. The Judge at first instance said that they were wrong to do this, and ruled that if they had Interim Care Orders (which they did), then naming a child was a function of parental responsibility, and the LA could overrule this, using the powers in section 33 of the Children Act 1989.

The parent’s protection about the LA using this power of veto would be to make an application under the Human Rights Act that the power had been used disproportionately.

The Court of Appeal took the view that whilst this was technically correct, that blocking the parents choice of name was such an unusual and important decision that it was best for the matter to come before a Court, and thus that inherent jurisdiction actually was the right step.

 

  1. In my judgment:
    1. i) the choosing of a name (forename and surname) for a child by a parent with parental responsibility and

ii) thereafter the act of complying with the duty of the mother and the father to give to the registrar ” information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register” (section 2(1) BDRA 1953)

are each acts of parental responsibility.

  1. The route chosen in the present case by the judge – section 33(3)CA 1989 supported by an injunction under section 37 SCA 1981 – is superficially attractive, the more so, if Baker J is right, that the mother has a safety net in that she may apply for an injunction under section 8 HRA 1998 where : (i) the proposed course of action by a local authority falls foul of section 33(4) CA 1989, in failing to promote the welfare of the child in question and (ii) where it can be shown to be a unjustifiable interference with the family’s Article 8 rights.
  3. In my judgment, notwithstanding the possible availability of such ‘tit for tat’ injunctions, the use by a local authority of section 33 CA 1989 in relation to the registration or change of a child’s forename has at least two significant problems:
    1. i) if the judge is right and the inherent jurisdiction has no role in a case such as this because section 33 CA 1989 provides the complete answer, then, unless a local authority needs to apply for an injunction under section 37 SCA 1981, this comprehensive invasion of the mother’s Article 8 rights will require no prior sanction from the court.

ii) The matter came before the court only because an application was made under section 100 CA 1989 and not by way of an application under section 33 CA 1989. Section 33 CA 1989 provides for an application for leave to be made to the court with regards to the changing of a child’s surname. There is no similar provision in relation to a forename. There is therefore no procedural route within section 33(3) CA 1989 (or by way of a general “catch all” within the Act) whereby a local authority can bring before the court that exceptional case where the court’s guidance is needed as to the use by a local authority of its powers under section 33(3)(b)(i), in respect of the decision itself (as opposed to seeking the protection of the local authority’s powers by way of injunction).

  1. In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court.

(Whilst the provisions of s33(7) prevent the LA changing a child’s surname without permission of the Court, there is no such ban on forename)

It does seem that it must be right for such a serious step to be aired before a Court and debated properly, rather than a Local Authority using their powers under an ICO under s33 to change the name without the opportunity for the Court to properly consider it, and a parent trying to fix it after the event.

Inherent jurisdiction of course requires that the provisions of section 100 apply (that the desired outcome cannot be achieved by any other statutory order, and that significant harm will arise if inherent jurisdiction is not used)

  1. I am satisfied that the result which the local authority wish to achieve cannot be achieved either:
    1. i) through the making of an order to which section 100(5) CA 1989 applies in the absence of a provision (or requirement) in section 33 CA 1989 for the local authority to make an application in relation to the giving or changing of a forename of a child or

ii) by way of a prohibited steps order or a specific issue order.

  1. That leaves the question of “whether there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm”?
  2. The judge reached the conclusion that section 100(4)(b) CA 1989 was not satisfied; in his judgment, the giving to the babies of the names contemplated by the mother did not give the court “reasonable cause to believe that if the court’s inherent jurisdiction is not exercised” they would suffer significant harm. Further, the judge appeared to be of the view that a single issue relating to the naming of a child, is not, without more, capable of satisfying the section 31 CA 1989 threshold criteria. With respect I disagree; in my judgment, although it will only rarely be the case, the giving of a particular name to a child can give a court reasonable cause to believe that, absent its intervention, the child in question is likely to suffer significant emotional harm. In my judgment this is one such case and there is every reason to believe that if the court’s inherent jurisdiction is not invoked in order to prevent the girl child from being named ‘”Cyanide”, she is likely to suffer significant harm.
  3. In my judgment, the local authority took the correct procedural route when they made an application under section 100 CA 1989 seeking ” the intervention of the High Court in order to exercise its powers pursuant to section 100 Children Act (CA) 1989 and/or its Inherent Jurisdiction” (sic).

 

The significant harm issue is obviously tricky. The Court were satisfied here that the choice of the name “Cyanide” was such that would cause the child significant harm.

Let’s look at the mother’s reasoning

 

“6. I confirm that I believe it is my right to name the children the names that I have chosen as their mother and I believe it is my human right to exercise my right to choose their names and register my children’s names without the interference of the local authority.

7. I confirm that I have chosen Preacher for my boy child as it is a strong spiritual name. It is a name that suggests proclamation and advocacy and being able to communicate with a wide community.

8. I also consider that Preacher is a rather cool name which will stand my son well for the future and I do not consider that it will impact on his development, emotionally, physically or mentally.

9. I confirm that I have chosen the name Cyanide as I believe that it is a lovely pretty name.

10. I further confirm that the name is linked with flowers and plants, that elderberry, hydrangea, cherry laurel and roses all have compounds of Cyanide found in the leaves and the fruits.

11. I believe that Cyanide will be a strong name that will stand my daughter well for the future and that I believe that it is a poison that has been used since the ancient Egyptians and it is derived from the Greek meaning dark blue.

12. I also consider that Cyanide was responsible for killing Hitler and Goebbels and I consider that this was a good thing and therefore Cyanide can be considered as a positive name, reflecting positive action that destroyed very bad people in the war.

13. I do not accept that it will have an adverse impact on my daughter during her formative years or later in her life.”

 

 

The Court of Appeal said this about names generally

 

What is in a name?

  1. One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity. The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of ‘belonging’ which will be invaluable throughout his or her life.
  3. If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity. That remains the case, even if the name used in his or her new family and thereafter throughout their lives, is different from that given to him or her by their birth mother.
  5. The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her.
  7. The judge recognised both the importance of a forename, and the fact that, ordinarily a choice of name for a child, even one which many would regard as outlandish, would not provide a reason for the interference by the state in private family life. The judge said:
    1. “A name is a direct link with the parent who chose the name……A name is also a badge of association, sometimes reflecting cultural identity, nationality, tribal heritage or religion. Above all a name is a gift a parent gives to a child, reflective of personal wishes and traditionally unconstrained in its choosing by legal restriction.

Notwithstanding the above it is not unknown to those working in the Family Court to encounter children whose parents have chosen to give them forenames which can most kindly be described as unusual, idiosyncratic or even eccentric bordering on the bizarre and more accurately be regarded as an act of parental selfishness or thoughtlessness and wholly lacking in consideration of the impact upon the child.

The choice of such names may well be reflective of a general failure to adopt a child centred approach to their responsibilities in meeting the child’s welfare but in my experience that choice of name has never been in of itself a reason for the involvement of the state in private family life.”

  1. The judge went on to consider how taste and perception can change and that a name which “is considered by a child to be an embarrassment at one age on account of it being different or unusual may well, as they get older and begin to assert their individuality, become a badge of pride for those very same reasons.”
  3. The judge correctly identified the important issue in the context of the care proceedings before him as being “the extent to which the local authority can or should exercise its shared responsibility in order to determine the name that a child in their care should be given…”.

 

In relation to the possibility of names being given which could be harmful, and “Cyanide” particularly :-

 

Discussion

  1. I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority’s powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination.
  3. It follows that I am also satisfied that there may be rare cases, where a local authority believes that the forename chosen by a parent, and by which he or she intends to register a child, goes beyond the unusual, bizarre, extreme or plain foolish, and instead gives the local authority reasonable cause to believe that by calling him or her that name he or she is likely to be caused significant harm. In those highly unusual circumstances, the proper route by which the local authority seek to ensure that the course it proposes is necessary and in the child’s interests is (as was held by Butler-Sloss LJ in Re D, L, and LA supra) by putting the matter before the High Court by way of an application to invoke its inherent jurisdiction.
  5. Cyanide
  6. The judge at first instance found that, even allowing for changes in taste or “developing individual perception”, the name “Cyanide” was not “obviously indicative of a parent who is acting so as to contribute or otherwise secure the welfare of her children” and made the order sought preventing the mother from calling her Cyanide or registering her birth in that name. As already recorded, the judge reached that decision notwithstanding that he had held that the issue of the naming of the children was not, in itself, capable of satisfying a court that the child in question was likely to suffer significant harm.
  8. As set out at paragraph 103 above, I disagree with the judge’s conclusion as to availability of the court’s inherent jurisdiction, although not with the ultimate decision he made. For myself, I cannot (at present) envisage any circumstances in which an order preventing a parent from giving its child the forename of its choice could, or should, be made absent the court being satisfied that failure to intervene is likely to cause the child in question significant harm.
  10. In my judgment, giving this child the name “Cyanide” as her forename is capable, without more, of giving the court reasonable cause to believe that she would be likely to suffer significant emotional harm:
    1. i) in relation to her sense of identity and self-worth, particularly here as a child who cannot be brought up by either of her own parents. It is hard to see how (regardless of what justification may be given to her by loving carers) the girl twin could regard being named after this deadly poison as other than a complete rejection of her by her birth mother; a rejection not replicated, in her eyes, in respect of her twin brother.

ii) to her in her day to day life as a child. Whilst teasing and ridicule are a natural part of childhood and, in moderation, help to develop resilience, such a name potentially exposes the girl twin to treatment which goes far beyond acceptable teasing. Further it would be wilful of the court to fail to factor into its consideration the power of social media and the very real danger that a child called “Cyanide” would soon be a victim of “cyber bullying”

  1. In my judgment this is one of those rare cases where the court, in the exercise of its inherent jurisdiction, should intervene to protect the girl twin from the emotional harm that I am satisfied she would suffer if called “Cyanide”.

 

That left “Preacher” – it would seem to me that if there had only been one child that “Preacher” comes under the category of unusual or idiosyncratic names, but could not be said to actually be capable of causing the child harm. The children’s Guardian in this case urged the Court to prohibit “Cyanide” but allow “Preacher”  (and I have to say that I tend to agree)

 

However, the Court of Appeal did not think that the Judge had been wrong to prohibit both names. In essence, they say that the female child, whatever she would be named, might later learn that her name was not given to her by her mother whilst her twin brother had got the name his mother had given him. As a result, she might find out (probably by googling “Boy named Preacher”) that her mother had wanted to call her Cyanide. The Court of Appeal felt that it would be better for both children to have names chosen by others, rather than one by their mother and one by the Local Authority

 

Preacher

  1. In her written submissions, the Guardian submitted that the interference in the mother’s right to name her child was only necessary and proportionate in respect of calling the female baby “Cyanide”. Her argument was that the two names fell on either side of the ‘significant harm’ threshold – “Cyanide” on one side of the threshold – that of being harmful, and “Preacher” on the other – unusual, but not harmful.
  3. The local authority’s application under section 100 CA 1989 was made in respect of both children. The Guardian’s approach whilst understandable, arguably places the twins in conflict, with the boy child growing up with the name chosen by his birth mother whilst his twin does not.
  5. In the case of Birmingham City Council v H (No 2) [1993] 1 FLR 883, Balcombe J described the balancing exercise to be carried out where a conflict arose between the separate interests and welfare of two children in one application in the following way:
    1. “You start with an evenly balanced pair of scales. Of course, when you start to put into the scales the matters relevant to each child – and in particular those listed in s 1(3) – the result may come down in favour of the one rather than the other, but that is a balancing exercise which the court is well used to conducting in cases concerning children.”

At 899E – G, Evans LJ put the matter like this:

“But the welfare of the two individuals cannot both be ‘paramount’ in the ordinary and natural meaning of that word. If that is the requirement of s 1(1) in the circumstances, then the Act presents the court with an impossible task. For this reason, I agree with Balcombe LJ that the requirement must be regarded as qualified, in the cases where the welfare of more than one child is involved, by the need to have regard to potential detriment for one in the light of potential benefit for the other. Only in this way, as it seems to me, can the subsection be applied and the manifest objects of the Act achieved.”

  1. In my judgment the potential benefit to the boy twin in having a forename chosen by his mother is more than outweighed by the potential detriment to the girl child of them having forenames names given to them from two different sources – namely their mother on the one hand and their half siblings on the other.
  3. It is not unusual for a child, with even the most commonplace name, to ask how his or her name was chosen. This is made more likely in the case of an unusual name, such as “Preacher” and in circumstances where the children concerned are not living with their natural parents. The only possible response that his carers would be able to make in response to such a question, would be to tell the boy twin that it was the name that his birth mother had chosen for him. This would lead to the inevitable question from the girl twin as to whether her name had also been chosen for her by her mother and, if not why not? She would undoubtedly ask what name her mother had given to her and why it had been changed. The outcome of such a predictable conversation would be to expose the girl twin to a significant part of the very harm the court seeks to prevent; she would know not only that her mother had chosen to call her “Cyanide”, but also to have to come to terms with the fact that she was to have been named after a notorious poison, whilst her twin brother was to be given the name of a respected member of society, “Preacher”.
  5. I accept the Guardian’s basic submission that the name “Preacher” in itself would probably not have led a court to conclude that he would be likely to suffer significant harm if that was the forename he was given. However, upon carrying out the BCC v H balancing exercise, and having put into the scales the matters relevant to each child, I have reached the conclusion that the girl twin’s welfare can only met by neither she nor her brother having the names chosen for them by their mother. I am reinforced in this view by the fact that, whilst “Preacher” in itself might not be an objectionable name, there is considerable benefit for the boy twin to be in the same position as his sister and for them each to grow up knowing that their half siblings, with whom they live, chose both of their names for them.
  7. I would not therefore conclude that the judge had erred in deciding that it was not in the best interests of the boy twin to be called “Preacher” although for rather different reasons.

 

It would be a very exceptional case where this occurs – even more so if the choice of name was the ONLY matter which went to threshold. Such cases would have to go to the High Court for determination.

 

[I’m sure that all lawyers working in this field have a string of very unusual names that have been given to children within care proceedings. I’m fairly sure that by now, someone will have had a “Hashtag”.  The test is much higher than just a whacky or idiosyncratic name, and into something which could be shown to be actually harmful ]

 

12 Comments

Posted in case law, inherent jurisdiction and tagged , , , , , , , , , . Bookmark the permalink.

Bit of a c( ) ck up on the old anger management front

Posted on March 29, 2016 by suesspiciousminds

 

This case, decided by Ms Justice Russell, involved a 15 year old, an 11 year old and a 4 year old, all who had become involved in a private law contact dispute between their parents.

FY v MY 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/16.html

 

Readers may recall that Reggie Perrin had a brother-in-law, called Jimmy.  Like all characters in Reggie Perrin, Jimmy had a catch-phrase and his was “There’s been a bit of a c( ) ck-up on the old catering front”  – meaning that he needed to borrow a bit of money from Reggie to tide him over.   [I’ve written the letter “o” here as brackets, to stop it being devoured by over-eager spam filters]

 

Jimmy also had plans to build his own (fairly) secret army, which was to be opposed to just about everything, including long haired weirdos, short haired weirdos, keg bitter, namby pamby probation officers and glue sniffers – I think Jimmy might do rather well in modern politics, as it goes. I think he might acquire a significant number of followers.

 

 

"Do you think so? I thought recruitment might be difficult"

“Do you think so? I thought recruitment might be difficult”

In this case, here are the reasons that the father might have needed anger management

 

  1. On the 1st February 2014 K and M went to spend time with their father at 11 am; L followed later at noon having completed his homework. At 9:30 that night L arrived at home saying that their father had hit K so L had run away. MY tried to call K’s phone, FY’s apartment and FY’s mobile phone and when the phone was answered she could hear K who was very distressed and crying. When K got home at about 10:15 pm he was clearly very distressed.
  3. The boys told their mother that FY had taken them to a restaurant and had made reference to a solicitor’s letter; a comment or response of L’s angered their father and L tried to explain to FY that he was not taking sides, at which point FY started to swear at them and call them abusive names. When K responded FY kicked at him under the table as a result of which K sustained abrasions and marks to his legs (which were seen the next day by his doctor and the court has seen the doctor’s report). They told their mother that their father kicked at L and punched his side. They left the restaurant and both boys sat in the back of the car as K did not want to sit in the front with his father. When K tried to phone his mother and his father saw this he told K not to call and tell her what had happened, but K continued to try to make the call. FY then attempted to take the phone away from his son whilst driving the car, by reaching around the car seats grabbing at K. L tried to intervene and became caught up in the altercation and said that he had been hit on the side of his face near his eye twice, he thought by his father’s elbow. From the pictures taken after the event it is apparent that L’s face was bruised and swollen on one side (the court has seen the doctor’s report about the injuries sustained by L).
  5. When they arrived outside their father’s apartment building, as the boys later told their mother, the struggle between K and his father continued with FY pushing K into the building leaving K with red marks to his the left hand side of his face. About five minutes later at 9:35 pm L arrived at home in a distressed state. MY immediately tried to call K on his mobile and, as he did not reply, called the land line to FY’s apartment. She says that FY answered and she could hear her son crying and asked to speak to him but FY did not allow her to and put the phone down. About 50 minutes later FY returned K to his mother’s home. K was flushed and very upset, he and L sit close to their mother with their heads on her lap, crying. Both boys did not want to see or speak to their father. They were seen and checked over by their doctor on the 4th February, who provided their mother with a short report which sets out their injuries and confirms they are consistent with the assaults as reported. I have seen the documents and accompanying photographs.
  7. The day after, on 2nd February 2014, according to their mother, K and L refused to speak to or see their father. FY phoned and asked to speak to L who did not want to speak to him. At about mid-afternoon FY called again and asked to see M, and for L to go to see him as well. L told his mother that he was scared that if he did not go his father will be angry with him. FY then started to call MY’s mobile phone, the landline and the nanny, repeatedly, to demand that L and M came immediately. MY told him, on the nanny’s phone, that M was on his way but that L would not be coming as he did not want to go. FY was abusive to MY and continued to make repeated phone calls which caused distress to the boys, their mother and the nanny. FY left the country that day and did not return until the 20th March 2014. He chose not to attend court on the 13th March 2014; a hearing which was to listed to review the contact agreed in December 2013.
  9. The boys have continued to be affected by the events of the 1st February. K has spoken to the teachers at his school about what happened and, entirely appropriately the school was concerned about what he had said and the events have been noted on his school records. It is their mother’s recollection that FY did not contact the boys until about 15th February when L spoke to him briefly but K refused to speak to him. On 19th February FY’s sister contacted K to try get him to contact his father but K was clear in his response to his aunt that he would not do so.
  11. On the 23rd February there is an exchange of text messages between father and son; K said that he did not want speak to or see FY “I already know the whole truth because you are a liar and mama is not.” In his response FY, again, raised the court case and texted “Didn’t u want to live in dubai?” K responds, “I don’t want to live with you you said you will never hit me again and you did …I wanted to live in Dubai but not with you.” His father responded “I did not hit u. I love u very much and I miss you.” K texted “You kicked me which is even worse”. FY went on in his text to say that K had hit him and that he had forgiven K, to which K responded “After you kicked me, and pulled my hair and scratched my face.” FY again made reference to the court proceedings and says that he was “fighting for” K and K replies “I don’t care about you and I don’t forgive you for kicking me.” When his father responded by texting that he forgave K and changed the subject to football but K texted; “Well I don’t and because you haven’t even apologised to me.” FY texted “I am sorry baba. I love u” and K texted back; “Fine I will give you one more warning but please don’t kick me again.” FY then asked K to apologise and promise that he will never talk like that to his father again. He was insistent that K posted (on social media) “something nice about ur baba in ur status message” and despite K’s responding three times that he wanted to sleep FY kept texting him. It was well after 10 o’clock at night when all this took place.

 

It must therefore have been momentarily pleasing to the Judge to learn that father was engaging in anger-management work. Momentarily pleasing.

 

  1. On the 26th September 2014 FY applied for interim contact. The case was listed before me on the 3rd October 2014 and by that time the case came FY had undertaken an anger management course with a Dr A-M in Dubai. Doubts were raised about the efficacy of this course and it is a fact, as FY told me in his oral evidence, that Dr A-M is a friend of his of many years standing and that Dr A-M is now married to a member of FY’s family.
  3. I have not heard evidence during this hearing regarding the suitability or otherwise of the course that FY undertook but I question the wisdom of undertaking a course run by someone who a reasonable and independent observer would consider to be unlikely to be able to maintain the requisite objectivity to lead successfully. On the face of it a longstanding friendship would be more likely than not to compromise the ability of any professional to challenge the behaviour, mind-set and prejudices of the participant, and it must be the case that any anger management course must rigorously challenge aggressive behaviour and personal misconceptions of a participant in order to be effective.

 

I don’t think that Dr A-M was quite a brother in law to FY, but certainly related to him by marriage, which is what put Jimmy in my mind.   Well, that, and the fact that the father also brought sit-coms into the mix, by peculiarly comparing his son to Del-boy from Only fools and horses (?) (I know…)   Of course, whilst Del-Boy’s catch phrase was “this time next year, we’ll be millionaires”, it is suggested elsewhere in the judgment that this might be a step-down in fortunes for FY rather than a pipe-dream.

 

FY told AFC  [Anna Freud Centre – the experts instructed] that he wanted his children to be respectful towards him but that K had been brainwashed by his mother and Cafcass had added to it; he had not spoken to him for two weeks. He said that her family were using the children as hostages. He described L as like Del-Boy in Only Fools and Horses and said L “is a commercial guy you can bargain with him“. FY said he was angry with K that is why he did not call him – “culturally in this case he needs to apologise…I tell L if K wants to call me then he knows how to get hold of me…this conflict is a cultural conflict, they turn the British system against me – she is bringing them up to have disrespect for me.” When talking of the incidence of physical chastisement FY said “I regret nothing regarding the children – the only thing was I was an idiot to let her come back to London.” When asked if the anger management course had proved helpful he said that he had “never had an anger problem.” These comments of FY are illuminating and reveal the basis of his case, his approach to these proceedings and his attitude towards his ex-wife and children.

 

I suppose if you absolutely had to, on pain of death, describe one of your children as a character from Only Fools and Horses, that it would probably be better to go for the Del-Boy comparison than using Trigger, but that’s a small crumb of comfort.  In all other circumstances though, don’t compare your children to Only Fools and Horses characters.

 

After various attempts to get contact back up and running, the case came back to Court

 

  1. When the case came back to court there had been a breakdown in L’s relationship with his father. According to his mother’s written evidence (contained in her final statement dated 8th January 2016) FY had continued to contact the boys, particularly L outside of the times set down in the court order. He continued to make reference to, and discuss, these proceedings with the boys. He had also attempted (and sometimes succeeded) in engineering encounters with the boys, for example to contrive to see L pass by on the bus to or from school. In isolation this latter action on FY’s part would be innocuous but it was part of a pattern of behaviour designed to go behind court orders and to involve the children in flouting the orders of the court. FY had become angry with L when his son told him that he had to comply with the court timetable for telephone contact. In any event the order was a generous one for contact to take place every day.
  3. MY’ evidence was that it was sometime around the 16th of October 2015 that FY last spoke to L and told him to “listen…listen carefully”; and, whatever the content of the conversation his mother said both in her written and oral evidence that L ended up screaming at his father down the phone saying that his father was ruining his life. L had not spoken to his father since. Nor has his father spoken to him or even tried to; his father told me during the hearing in January 2016 that he was still waiting for an apology from L; he betrayed no sign of the hurt and confusion he must be causing his son and it was obvious that he not only considered himself to be in the right but that he also considered himself, a fully grown man, to be the wronged party at the hands of a distressed and unhappy young adolescent. From the evidence before me it was not possible to say exactly when this incident on the phone took place but it was certainly before the hearing on the 5th November 2015.

 

 

The father after the children met with Mr McGavin, the CAFCASS officer, tried to induce his son L to send him a text message that the father could produce in Court.  The Judge was singularly unimpressed.

 

  1. It was Mr McGavin’s evidence that the boys had a good relationship with him and could say what they wanted to him and I accept his evidence. He is a most experienced guardian and there is absolutely nothing in the way of evidence before me which could support FY’s case that Mr McGavin had told, or even suggested to, the boys what they might say about seeing their father. On the contrary he has assisted them to get their views across by encouraging them to tell him what they wanted the judge to know. The questions that he asked were open and when he told them of his recommendations there was never any suggestion that they were expected to go along with him. Both he and the Cafcass Legal lawyer were aware of the need for separate representation should it arise and had discussed it and kept it under review.
  3. After this interview K had spoken to FY who, again, had discussed the case and the contents of Mr McGavin’s report with him. FY told me he had sent K the Cafcass report. He was entirely unrepentant his discussions with K in his oral evidence, he accepted it was in breach of the court order and was clearly of the opinion that he had not only done the right thing but that in doing so he had undermined any case that K did, in fact want contact supervised. He encouraged and prevailed upon K to send an email to FY, so that he could produce it in court, it read, “Hi baba, I am writing to say that. Yes I want to see you and hang out with you like I used to, I want to travel to Jeddah, Dubai, Middle East. And I just want to travel anywhere in the world with you. I know you have anger issues. So I will try not to be rude to you so you don’t end up hitting us. Thank you”
  5. In my all my experience as both advocate and judge I find it hard to think of a more blatant example of attempted manipulation. The email, however, does not support FY’s case. The final two sentences are a reference to the previous physical abuse inflicted by FY on his son and to the unpredictability of FY’s temper, along with the fact that he places the responsibility for his abusive behaviour on the children, rather than with himself as their parent and the adult. It is a further example of FY’s controlling and manipulative behaviour. There can be little wonder that L used the word “manipulative” in his text to his father when he complained to him about his behaviour.
  7. Mr McGavin concluded in his final analysis and in his oral evidence that the end of the road had been reached. This was based on repeated attempts to re-establish contact each of which had failed because of FY’s lack of co-operation and engagement with the professionals involved. In the end he withdrew from the process altogether. Neither boy had said wanted to see their father in the present circumstances, but the guardian was sure that they would both want to see FY if they knew they would be physically safe and emotionally safe. Mr McGavin asked that in view of K’s special needs a ‘no contact’ order should be made until he was eighteen, although this would be unusual and exceptional. He felt that K had his own vulnerabilities and that he needed the reassurance of the court order both for his own sense of security and to enable him to stand up to his father until he reached his majority.

 

 

The Judge was invited by mother to make orders that father have no face to face contact with the children (there would be telephone contact and Skype contact). The Judge analysed the father’s case and presentation in this way:-

 

  1. FY’s written and oral evidence was characterised by his inability or unwillingness to begin to see, never mind accept, his own responsibility for the boys’ reactions or feelings about him and how his behaviour had affected them. As Mr Verdan QC, counsel for MY, said in his closing submissions there are many examples but that two of the most obvious and closest in time to the hearing are his refusal to ring L on his birthday and his determination not to ring him unless L rings first to apologise, and, FY’s discussion with K about the proceedings on the eve of the hearing. Not only did he discuss the case he sent K the guardian’s report in order to use it in an attempt to undermine the guardian’s recommendations by pressurising K into to sending him an email confirming “his wishes” as his father wanted them to be presented. It was more than apparent from FY’s oral evidence that he is unwilling or unable to understand any of his children’s emotional needs and does not accept that he has caused them distress, upset or harm, despite the evidence before the court of their obvious distress. His own ability to take umbrage at the behaviour of his young teenaged son when L became angry with his father for the pressure he was putting on him speaks volumes for FY’s need to put his own feelings and amour-propre before the needs of his child, therefore, to suggest that he can safely have contact with M alone is nothing more than a further manifestation of this wilful or inherent deficiency in his parenting.
  3. I accept the submission on behalf of MY that it is nonsensical for him to assert that ‘he had no bad feelings for MY’ and wanted to speak to her in a constructive way. His actions and word to the court, in correspondence and, most seriously, to their sons over the last two years is evidence which is in stark contrast to his assertions. It was apparent from his oral evidence that FY is little short of obsessed about the maternal grandfather’s alleged role in these proceedings. I have found before, and there is no evidence to change my findings, that MY is an independent, sophisticated and intelligent woman who was not in 2013, and is not now in 2016, being controlled by her father in respect of these proceeding or, indeed, any other aspect of her life.
  5. In his oral evidence FY obfuscated, avoided answering questions and dissembled; at times he displayed an almost complete inability directly to answer a question put to him and would use the witness box to air his own feelings of hurt, despair and, at times, apparent bewilderment. Mr Hames’ submission that FY’s answers were a catalogue of grievances against the mother, her father, the professionals and even the children (as when he blamed L for not apologising to him) has some force. He claimed that he hadn’t seen or read critical documents or failed to recall important details about events or conversations put to him. He had no explanation of why he used phrases such as “so ashamed to have sons like you” to L and it was extraordinary that he claimed never to have read the L’s essay (set out above) before giving evidence. Where his evidence conflicts with other witnesses I must and I do reject it.
  7. Both MY and FY are dual-nationals; well-educated and cosmopolitan members of wealthy families who live an international life-style and to suggest anything else is dissonant with their own oral evidence and is not congruent with the totality of the evidence before this court.

 

 

 

  1. It is my conclusion that it is both in the children’s best interests and proportionate for there to be an order for there to be no direct (face-face) contact between the children and their father. There have been repeated incidents of violence directed against the boys and the need for them to be physically safe is no small matter to be weighed in the balance. When he was no longer able to punish them physically FY’s response was to make L’s upset and distress when directed at his father was to make his life as miserable as he possibly could by withdrawing any semblance of support, understanding or affection. Having regard to this behaviour and because of his special needs, for K’s protection and his need for certainty, the no contact order for him is extended in the exceptional circumstances of this case to his 18th birthday. All three children need to be given an opportunity to develop emotionally free from manipulation by their father and free from the oppressive and damaging effects of a background of continued litigation and conflict.
  3. I have, quite deliberately, used parenthesis in the term “indirect” contact and as a matter of fact and logic, as Dr Asen would agree Face-Time or Skype is direct face to face contact and the same risks apply in respect of emotional harm with the corresponding need for supervision. With that in mind I will order that contact is limited to telephone contact as recommended by Dr Asen; one hour, 15 minutes for each boy and 15 minutes at the end. I will hear the parties about frequency.
  5. The children need time out, time to recover and to grow. The changes which the father needs to make before reintroduction of contact will take at least 12 months on the best prediction and while Dr Asen plainly considers that the father may not be capable of making the required changes it is to be hoped that he does.

9 Comments

Posted in case law, international, private law and tagged , , , , , , . Bookmark the permalink.

A sham of a mockery of a travesty of two mockeries of a sham (diplomatic immunity)

Posted on March 23, 2016 by suesspiciousminds

 

I always love a diplomatic immunity case.

This is the Court of Appeal’s decision in Al-Juffari v Estrada 2016

Click to access approved_judgment_rhd_estrada_v_juffali.pdf

 

and is the one that sent our much-beloved (Subs, check this please) Foreign Secretary off crying to the Guardian and other places because we can’t have our naughty English Courts inconveniencing Saudi billionaires or where will it end?

http://www.theguardian.com/law/2016/mar/22/hammond-criticises-judge-for-stripping-diplomatic-immunity-from-saudi-billionaire

Anyway, this relates to the claim by the Wife for a divorce in this country, and for a financial settlement. As the one detail that leapt out at me was the value of the former matrimonial home being about £100 million, one can see why.

Mr Al-Juffari claimed that the Court had no jurisdiction, because he was appointed by Saudi Arabia as the Permanent Representative of St Lucia.

At first instance, Hayden J made two decisions – first that in looking at this diplomatic immunity, the facts were that Mr Al-Juffari had not actually ever carried out any functions AT ALL in this role and this it was an

 

“artificial construct” designed to defeat the jurisdiction of the court;

This seems on the facts, quite reasonable to me. If you’re relying on a job to be your get out of jail card, at least have the decency to actually be doing that job. Otherwise it’s like playing Monopoly with someone who has at their immediate beck and call a printing firm to produce facsimile Get out of Jail cards as and when required.

[As a little tip, just don’t play Monopoly with Saudi billionaires – they are in a position to buy up Waddingtons*, and demand an immediate rule change in their favour be hand-delivered to every owner of a Monopoly set if they are losing.   * Now Hasbro. Grrr. On the plus side, the Dubai version of Monopoly has some truly amazing hotels. ]

 

Having referred to a number of cases in which the compatibility of the grant of immunity from jurisdiction with Article 6 of the European Convention of Human Rights (“the ECHR”) has been considered, the judge concluded at para 34:

“The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the ‘functionality’ or ‘effectiveness’ of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If ‘functionality’ is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ’s terms, the diplomat is not ‘en poste’, there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction cannot be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W’s right of access to a court.”

21.

The reference to Diplock LJ was to Empson v Smith [1966] 1 QB 426 at p 429C. At para 35(vi) of his judgment, the judge found that since his appointment, “H has not undertaken any duties of any kind in the pursuit of functions of office”. He said that W had provided persuasive evidence that H’s health was such that he was not in a position at present to fulfil any ambassadorial duties. At para 36, he said:

“H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic precision required to support such a conclusion.”

22.

At para 40, he said that he was “not prepared to accede to H’s request to strike out W’s Part III claim on his spurious assertion of diplomatic immunity, as I find it to be.”

 

However, the Court of Appeal had to disagree  (not that it was an artificial construct, but that the English Court had jurisdiction to inspect what was going on, rather than just taking the word of the Foreign Office that a person has diplomatic immunity)

 

Section 8 of the 1968 Act provides that, if a question arises in any proceedings before the English courts as to whether a person is entitled to any privilege or immunity, a certificate issued under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. I have set out at para 18 above the facts the truth of which is conclusively proved by the certificate in the present case. If the immunity of a Permanent Representative or diplomatic agent depends on establishing whether he has in fact performed the relevant diplomatic functions, then the certificate issued in this case is of little value. It does not purport to say anything about the functions performed by H. That is not surprising. The policy reasons justifying the conclusiveness of FCO certificates has been discussed most frequently in the context of issues relating to State immunity. For example, in The Arantzazu Mendi [1939] AC 256, Lord Atkin said:

“Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.”

 

 

As the FCP had provided a certificate saying that Mr Al-Juffari had immunity, that was the end of it.

 

The second question that Hayden J had to decide was whether Mr Al-Juffari was permanently resident in England. Why is that important? Well, because the  Specialised Agencies Convention and the Headquarters Agreement which governs what rights, privileges and immunities a person who is a Permanent Representative has says this:-

 

“(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention].

and

(2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

but

(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions. “

So if Mr Al-Juffari was permanently resident in the United Kingdom, he would only be immune for actions undertaken as part of his official functions (and as we’ve already established, he hasn’t done any. He certainly didn’t marry his wife as part of those functions)

On the facts, it seemed to me rather dubious that he was permanently resident in the United Kingdom

H was born in the Lebanon in 1955. He is a Saudi national and domiciled in Saudi Arabia. He is a member of a large Saudi family of immeasurable wealth. The family has, throughout his life, had a close connection with the UK. In particular, a substantial property, Bishopsgate House, near Windsor Great Park was bought many years ago by H’s father as a family estate for use in summer holidays. The family also had a flat in London. For a time H attended Oxford University before going on to university in the US.

71.

For many years H has had a visa which enables him to spend 180 days in the UK each year without compromising his non-resident tax status. In common with men of his wealth and background, he crosses and re-crosses the world, largely by private jet, staying in properties in various countries owned by, or on his behalf, through elaborate financial structures. The figures produced by Mr Alammari show the division of H’s time over recent years to have been largely spent between Saudi Arabia, Switzerland and the UK; the majority of his time over the period being spent in Switzerland closely followed by Saudi Arabia.

Can one really be permanently resident in a country where the visa only allows you to spend 180 days there? Note also the lack of time in St Lucia…

However,

H has been married three times. His first marriage in 1980, was to Basma Sulaiman, a Saudi national. There were three children by that marriage, M, D & H; each of whom (in common with all H’s children) were born at the Portland Hospital in London. It is common ground that at least the eldest of those children has a British passport.

73. Critical to his ultimate finding that H was permanently resident in the UK, the judge found in relation to this marriage (as with each of his marriages) that ‘the family home was based in the UK’ and that the children were educated in England and speak English.

 

In his overall analysis, Hayden J reached this conclusion that the choice of Mr Al-Juffari as to where to raise his children was a magnetic factor, and thus he concluded that Mr Al-Juffari was permanently resident in England.  (I think he’s about as permanently resident in England as Sean Connery is permanently resident in Scotland, but the Court of Appeal say otherwise)

 

“65. In my survey of the background of H’s life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer’s team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK.

66. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is ‘unlimited in period’, to adopt Langton J’s phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H’s intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H’s appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the ‘but for’ test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence.

And thus, Mr Al-Jaffari does not get to hide behind diplomatic immunity to defeat his wife’s divorce claim. He won on the first point (where I think the facts were completely behind Hayden J but the law wasn’t) but lost on the second point (where I think the facts were pretty iffy but the law backed Hayden J up)

For the reasons that I have given, I consider that the judge was wrong to hold that H is not entitled in principle to immunity from W’s claim. But the judge was entitled to conclude on the facts that H is not entitled to immunity because he is permanently resident in the UK and the claim does not relate to any official acts performed by H in the exercise of his functions. I would dismiss the appeal. It is, therefore, unnecessary to consider the issues raised by the Respondent’s Notice.

 

The right outcome, although by a peculiar route. Having said that, I’m SURE Mr Al-Jaffari will appeal to the Supreme Court. The legal costs are miniscule compared to the sums that are being litigated here.

 

 

 

 

 

 

Comments Off on A sham of a mockery of a travesty of two mockeries of a sham (diplomatic immunity)

Posted in case law, international and tagged , , , , , , , . Bookmark the permalink.

Contempt of Court and right to silence

Posted on March 22, 2016 by suesspiciousminds

This is an intricate, but important, decision by the Court of Appeal. A man here was sentenced to six months imprisonment for failure to comply with an order, and the Court of Appeal overturned that decision.  It does seem that the man spent about five weeks in prison, and the Court of Appeal found that the decision was procedurally flawed in some significant ways.

 

Re L (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/173.html

It relates to an application to commit to prison the Uncle of a child for contempt. The child had been the subject of care proceedings in 2004  (yes, 2004), and the parents had fled the country with her. The High Court had made some orders under the inherent jurisdiction, including importantly the “collection order” in this case, which included this provision

 

“If the Defendants[1] or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she[2] must each:-

(a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and

(b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child.”

The Uncle, Mr Oddin, was brought to Court AS A WITNESS in July 2015

  1. On 30 June 2015, Keehan J discharged both the care order and the freeing order. L remained a ward of court. On 30 July 2015 Keehan J made an order which, so far as material for present purposes, was in the following terms:
    1. “UPON the court being satisfied that the attendance of Mr Gous Oddin to attend court for the purpose of examining the whereabouts of the parents [that is, L’s parents] and the welfare and whereabouts of the child [that is, L] is necessary

… IT IS ORDERED THAT

1 Leave is granted to the local authority for a witness summons to be issued, whereby Mr Gous Oddin shall attend court at 9.30am on 8 October 2015 before Mr Justice Keehan sitting at … for the purposes of being examined as to the whereabouts of the parents and the welfare and whereabouts of the child, L …

2 Mr Gous Oddin … shall attend the hearing on 8 October 2015 for the purpose of examination as to the whereabouts of the parents and whereabouts of the child L …”

Mr Oddin gave evidence before the Court on 8th October 2015  – remember that he was there as a witness, and that he was NOT at that point subject to an application for committal. However, the Court was not satisfied that he was giving honest answers.

  1. On 8 October 2015 Mr Oddin attended before Keehan J as directed. We have the Transcript of the proceedings. The local authority was represented by Mr Stefano Nuvoloni and L by Miss Roberta McDonald. Unsurprisingly, since he was there as a mere witness, Mr Oddin was not represented. The judge asked Mr Oddin to “come forward to the witness box.” Mr Oddin affirmed, gave his name and address and explained, in answer to questions from the judge, that he was L’s paternal uncle. Keehan J then said this:
    1. “Now, Mr U, I want you to understand something very clearly. You are here today to give me all the information you know about the current whereabouts of L. If I come to the view that you have not told me the truth or you have not told me everything you know about the current circumstances and whereabouts of L, you will be liable to be found in contempt of court. If I find you to be in contempt of court, you then fall to be punished for the contempt. That punishment can consist of a fine or it can result in your committal to prison. Do you understand?

A. Yeah.

You are today in a very, very serious position. I should tell you now that, subject to anything that is said by Mr Nuvoloni or by Miss McDonald, what I propose to do is to take evidence from you today. If I am not satisfied with your answers, I will adjourn the matter for a period of time to hold a committal hearing at the Royal Courts of Justice in London. If that comes to pass, I would very strongly advise you to seek legal representation for that hearing. Do you understand?

A. Yeah.”

  1. Mr Oddin was then questioned, at the judge’s invitation, first by Mr Nuvoloni and then by Miss McDonald. From time to time the judge asked Mr Oddin questions. Mr Nuvoloni asked a few more questions, concluding “My Lord, I do not think I can take it further.” The Transcript continues:
    1. “THE JUDGE: (Long pause) Mr U, I am very sorry to tell you that I do not believe you have been telling me the truth. I do not believe that you have given me all the information that you can. This is what I propose to do. I am going to list this matter at the Royal Courts of Justice in London on Wednesday, 28th October. It will be listed for half a day. It will be listed as a committal hearing, when I will consider whether you are in contempt of court, and if you are in contempt of court, I will then proceed to decide what punishment you should face for that. Do you understand?

 

THE WITNESS: Yeah.”

The case was duly listed for a committal application, and Mr Oddin was represented. Keehan J gave him a six month prison sentence. It is worthy of note that Mr Oddin’s passport was taken from him in 2004 and he had not been able to travel abroad since that time.

Counsel for Mr Oddin at the committal hearing attempted to establish whether Mr Oddin was charged with contempt for BREACHING the collection order of 2004, or whether he was charged with contempt in the face of the Court for not answering Keehan J’s questions.

We have the Transcript of the hearing on 18 January 2016. Before the evidence was called, Miss Norman sought clarification from Keehan J as to “what the contempt is that my client faces.” She made the point that the collection order required the provision of information that might reasonably assist the Tipstaff in locating the child, whereas the judge’s observations at the end of the hearing on 8 October 2015 had been in very much wider terms, referring to the whereabouts of the parents and the welfare and whereabouts of the child. She continued, “what I am not clear about is, is the contempt as your Lordship might see it not answering your Lordship’s questions, or is the contempt going back to the 2004 order?” The judge replied, “It is going back to the 2004 order.” Miss Norman took the point no further (nor, for that matter, did anyone else) and the judge proceeded to hear the only witness called in support of the allegation of contempt, L’s guardian.

  1. In the course of her closing submissions Miss Norman returned to her opening point:
    1. “MISS NORMAN: My Lord, I expressly asked the question were we dealing with the 2004 order or were we dealing with contempt in the face of the court, and I understood your Lordship to say we were dealing with the 2004 order.

MR JUSTICE KEEHAN: The two are related, though, because if I find that I do not accept the evidence that Mr Oddin gave me on 8th October, or if I do not accept the evidence he has given me today and I find that he is lying to the court, I am then entitled, or may well then be entitled on that basis to be satisfied that he is not telling the truth, that he knows more than he is telling and is therefore in breach of the 2004 order.

MISS NORMAN: My difficulty is this, as I have suggested to your Lordship earlier on, that your Lordship found him to be at fault in a much wider area than the 2004 order. The 2004 order was matters which might reasonably assist in locating the child and that was it, nothing about welfare or parents or anything else. And so if we focus on that issue …”

  1. After Miss Norman had concluded her submissions there was a short adjournment, after which Keehan J returned to court and gave judgment.
  3. In paragraph 3 of his judgment the judge framed the issue in these terms:
    1. “This matter is listed today before me for committal proceedings against one of the father’s brothers, Mr Gous Oddin. The issue is, do I find that he is in breach of the order made consequent upon that abduction on 30 December 2004.”

He then quoted paragraph 3 of the collection order. In paragraph 5 of his judgment, he said this:

“The question was raised by Ms Norman, on behalf of Mr Oddin, at the start of this hearing as to precisely on what grounds Mr Oddin was being considered for committal and contempt proceedings. I made plain that that related solely to the order of 30 December 2004. But very plainly when considering whether there has been a breach of that order, I am entitled and I must consider the totality of the evidence before me and, in particular, whether I find that Mr Oddin is telling the truth or not. If I find that he is not telling the truth, I then have to consider the reason or possible reasons for him lying to the Court.”

The Court of Appeal make it very plain that a person faced with an application to commit him for contempt has a right to silence – such right extending further than just an ability to refuse to answer individual questions but an ability to refuse to go into the witness box at all.

  1. The absolute right of a person accused of contempt to remain silent, which carries with it the absolute right not to go into the witness box, was established in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, where this court held that such a person is not a compellable witness. This right is to be distinguished both from the privilege against self-incrimination and from legal professional privilege, each of which may entitle a witness in certain circumstances to decline to answer a particular question but neither of which entitles the witness to refuse to go into thewitness box or refuse to take the oath (or affirm): see Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, para 9.
  2. As both Re G and Hammerton v Hammerton illustrate, the principle in Comet has repeatedly been emphasised in this court; see also Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 61, to which we were referred. Most recently, so far as I am aware, the relevant principles were summarised by Jackson LJ, with whom both Lewison LJ and Treacy LJ agreed, in Inplayer Ltd and ors v Thorogood [2014] EWCA Civ 1511, paras 40-45:
    1. “40 A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent: see Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67. It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence.

41 If the committal application is heard at the same time as other issues about which the alleged contemnor needs to give evidence, he is placed in the position where he is effectively deprived of the right of silence. That is a serious procedural error: see Hammerton v Hammerton [2007] EWCA Civ 248. This is precisely what happened in the present case. Furthermore no-one told Mr Thorogood that an alleged contemnor has the right not to give evidence.

42 If the contempt application had been the subject of a separate hearing and Mr Thorogood had been informed of his right not to give evidence, he might have exercised that right. He could then have dealt with the contempt allegations by way of submissions. In that regard it should be noted that the judge based her two findings of contempt upon answers which Mr Thorogood had given under skilful cross-examination.

43 Mr Milford points out that Mr Thorogood was reminded of his right not to incriminate himself. That is true, but it is not sufficient. Mr Thorogood should have been told that he was not obliged to give evidence. Furthermore the litigation should not have been managed in a way that forced Mr Thorogood into the witness box.

44 Mr Milford submits that even if there had been a separate hearing of the contempt application, the result would have been the same. If Mr Thorogood gave evidence, he would have been caught out in cross-examination. If he had declined to give evidence, the court would have drawn adverse inferences.

45 What Mr Milford says may well be true. Indeed, as things have turned out, Mr Thorogood may be a very lucky man. Nevertheless there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in the circumstances of this case.”

What we have here is a man who was compelled to Court to give evidence, and made to then answer questions – such answers as he gave then became evidence against him in the committal proceedings – although if he had been served with an application for committal, he never would have had to go into the witness box at all. That doesn’t seem very satisfactory – if the committal was for breach of the 2004 order, then it must have been a live possibility when he started to give his evidence in the October 2015 hearing. He was not legally represented, as a witness, and he was not advised by the Court that he had a right to silence.

In fact, looking again at Keehan J’s words in October 2015, committal was obviously a possible outcome of his evidence, yet he was being urged to give evidence and provide answers

  1. “Now, Mr U, I want you to understand something very clearly. You are here today to give me all the information you know about the current whereabouts of L. If I come to the view that you have not told me the truth or you have not told me everything you know about the current circumstances and whereabouts of L, you will be liable to be found in contempt of court. If I find you to be in contempt of court, you then fall to be punished for the contempt. That punishment can consist of a fine or it can result in your committal to prison. Do you understand?

The problem here arises because Keehan J was making use of the evidence given by Mr Oddin in that October hearing at the committal hearing in January 2016. He was deprived of the safeguards (legal representation, being made aware of his right to silence) and was a committal hearing where a defendant had been deprived of such safeguards legitimate?

  1. In my judgment, no criticism can be made of what happened on 8 October 2015; the problem arises because of the use that was made on 18 January 2016 of the evidence given by Mr Oddin on the earlier occasion.
  2. It is quite clear that on 8 October 2015 Keehan J was exercising, and exercising only, the jurisdiction which I have described in paragraph 9 above. By then, Mr Oddin was no longer a party to the proceedings. He attended court as a witness in answer to the witness summons which Keehan J had directed on 30 July 2015. Mr Oddin was a compellable witness. He was compelled to give evidence. Despite being a compellable witness he would have been entitled to plead the privilege against self-incrimination as a reason for declining to answer a particular question. He was not advised of that right, though in the event nothing, in my judgment, turns on this fact.
  3. Keehan J was appropriately robust in spelling out the implications for Mr Oddin if he did not tell the truth: namely that if he did not tell the truth he stood in peril of committal proceedings for contempt. Keehan J said nothing at that point about the collection order; the species of contempt he had in mind was plainly contempt in the face of the court, not contempt arising from breach of the collection order. The warning, though robust, was entirely proper, indeed only fair, so that Mr Oddin be left in no doubt as to the seriousness of the proceedings before the judge. It is precisely the kind of warning that I have myself given on many similar occasions. As McFarlane LJ said in Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 77:
    1. “The situation that faced Russell J in the various hearings leading up to the final committal hearing not infrequently arises in the context of international children cases before a High Court judge. A judge may be required to deploy the court’s considerable powers to compel parties or others to attend court or to bring about the return of the child to this jurisdiction. At a hearing in which pressure is brought to bear on an individual, and injunctive orders are made, the judge may be justified in presenting a very robust demeanour and, in so doing, making reference to the potential consequences if court orders are disobeyed. In the present case, the judge did just that, and no criticism has been sustained in relation to her actions.”

However, as he went on (para 78):

“The difficulty that can arise … occurs if and when the court is later required to hear committal proceedings arising out of an alleged breach of an earlier order … The more robust the judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process.”

  1. A comparison of the language used in the order which he had made on 30 July 2015 with the language used in the orders Keehan J subsequently made on 8 October 2015, 28 October 2015 and 9 November 2015, shows clearly, in my judgment, that the contempt in relation to which Mr Oddin was required to attend before Keehan J on 18 January 2016 was in respect of his untruthful evidence to Keehan J and not in relation to the collection order. It is the point which Miss Norman correctly identified on 18 January 2016. Each of the three later orders identified the contempt as being “not providing the court with” all the information Mr Oddin had “as to the whereabouts of the parents and the welfare and whereabouts of the child” (emphasis added). The inconclusive discussion between Miss Norman and the judge on 30 November 2015 did not, seemingly, change matters, though, as her question to Keehan J on 18 January 2016 indicated, it left Miss Norman somewhat unsure as to what exactly the contempt was which the judge was intending to consider at that hearing.
  2. At the beginning of the hearing on 18 January 2016, as we have seen (paragraph 34 above), Keehan J made clear that the contempt he thought he was considering was not contempt in the face of the court on 8 October 2015 but rather contempt for breach of the collection order. It was at this point, in my judgment, that the proceedings took a fatal turn.
  3. It rather seems that Miss Norman’s main concern may have been as to the ambit of the factual inquiry before the judge at the hearing on 18 January 2016. Be that as it may, the salient, and very regrettable, fact is that no-one – no-one – thought through the implications of the answer Keehan J had given Miss Norman; no-one thought through the implications of the fact that the judge was about to embark upon the hearing of committal proceedings, based on an alleged breach of the collection order, in the course of which much weight was obviously going to be attached to the evidence Mr Oddin had given under compulsion on 8 October 2015. And, even after all the evidence had been given and Miss Norman was making her closing submissions (paragraph 38 above), no-one thought through the implications of what had happened or of the fact that, as the judge put it, the collection order and the evidence he had heard on 8 October 2015 were “related” in the way he described.
  4. The confusion is revealingly illustrated by what the judge said in paragraph 6 of his judgment, where he referred to “the start of these committal proceedings … on 8 October 2015.” The committal proceedings had not started on 8 October 2015; and if they had, there would have been the plainest possible breach of the Comet principle on that occasion.
  5. The consequence of what I have just described was a serious, and in my judgment irremediable, procedural error. Because of the use that was made against him during the hearing on 18 January 2016 of the evidence which had been extracted from him under compulsion on 8 October 2015, Mr Oddin was denied the safeguards which anyone facing proceedings for committal is entitled to: in particular, and fatally, the right to remain silent, the right to refuse to go into the witness box. The court had forced him into the witness box on 8 October 2015 and then used his evidence against him, not in committal proceedings for perjury committed on that occasion (which would have been entirely permissible) but in support of committal proceedings in relation to a previous order. In my judgment, this amounted to a clear, serious and irremediable breach of the Comet principle, necessitating, for the reasons given in Hammerton v Hammerton and Inplayer, that the appeal be allowed. As Jackson LJ said in the passage from Inplayer which I have already quoted, “there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in [such] circumstances.” I add, lest it be thought I have overlooked the point, that there is, in my judgment, nothing in the decision of this court in Dadourian Group International Inc and others v Simms and others (No 2) [2006] EWCA Civ 1745, [2007] 1 WLR 2967, which can be relied upon to save what happened here.
  6. On this ground alone, the appeal must, in my judgment, be allowed.

The issue that Holman J raised in Re DAD  2015  – that the standard orders have been wrongly drafted in a way that puts the warning about consequences of breach on page 5, when for committal the consequence MUST BE CLEAR on the FACE OF THE ORDER is raised again

  1. There is a further problem with the collection order. FPR 37.9(1) requires that, if an order is to be enforced by committal, it must contain a penal notice in appropriate form “prominently displayed, on the front of the copy of the … order”. In this case, the penal notice was on the fifth page. I can do no better than to repeat and endorse what Holman J said of a similarly defective collection order in Re DAD [2015] EWHC 2655 (Fam), para 12:
    1. “the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be “prominently displayed”. It is merely a part of several pages of somewhat indigestible text. In the second place, it most certainly does not appear, as the rule requires, “on the front of the copy of the … order”. It will be recalled that rule 37.9 is emphatic and prohibitive in its terms. Unless the penal notice is prominently displayed on the front of the copy of the order, “a judgment or order … may not be enforced …” In my view, the words “may not be enforced” where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal.”

 

 

The Court was also perturbed about a collection order that was made in 2004 being used to commit  a person to prison for breaching it some eleven years later, and at the length of time that Mr Oddin’s passport had been withheld from him.

 

The collection order

  1. Once we had announced our decision to allow the appeal, the question arose as to what should happen about the collection order which had been made on 30 December 2004. We indicated our view that it should be discharged. No opposition to this course having been voiced either by Mr Bennett or by Mr Maynard, we discharged the collection order and directed the immediate return of the passports.
  3. Three factors, in my judgment, pointed very obviously and, in the event, decisively to that outcome:
  5. i) First, it is wholly wrong in principle that a collection order should be left in place, hanging over peoples’ heads like the sword of Damocles, for anything remotely approaching the eleven years throughout which this collection order has been in force.

ii) Secondly, it is undesirable, to put it no higher, to allow an order to remain in force which is not compliant with FPR 37.9(1).

iii) Finally, and decisively, the perpetuation, beyond a comparatively short period, of the passport order (paragraph 4(b) of the collection order), essentially for purposes of coercion, was wrong in principle and fundamentally objectionable: see In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, paras 24-33. This should never have been allowed to happen. Mr Oddin’s protests as set out in his three witness statements (paragraphs 22, 24 and 27 above) were well-founded. It is very much to be regretted that Mr Oddin and other members of his family should have been deprived of their passports for so long and without any proper justification. They have been badly ill-used by the court.

This appeal, even more than the decision of Holman J in Re DAD, has focused attention on a number of disquieting problems arising in relation to collection orders made prior to the new form of order which was introduced in July 2013. It is idle to imagine that the collection order we have been considering in this case is unique. On the contrary, there is every reason to fear that there are significant numbers of elderly collection orders still in force and which, it might be thought, ought, for the reasons set out in paragraph 65 above, to be discharged. I propose, therefore, to identify, with the assistance of the Tipstaff, just how many such orders there are, with a view to taking appropriate steps to investigate whether those orders should or should not be allowed to remain in force.

 

The Court of Appeal also touched upon the delicate issue of whether a Judge who is considering committal of a person ought to be a different Judge to the one who conducted the hearing in which the contempt is said to have arisen. They are cautious about that – but I read this as being a cautious suggestion that it is probably safer to have it heard by a different Judge

  1. As McFarlane LJ said in Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 77:
    1. “The situation that faced Russell J in the various hearings leading up to the final committal hearing not infrequently arises in the context of international children cases before a High Court judge. A judge may be required to deploy the court’s considerable powers to compel parties or others to attend court or to bring about the return of the child to this jurisdiction. At a hearing in which pressure is brought to bear on an individual, and injunctive orders are made, the judge may be justified in presenting a very robust demeanour and, in so doing, making reference to the potential consequences if court orders are disobeyed. In the present case, the judge did just that, and no criticism has been sustained in relation to her actions.”

However, as he went on (para 78):

“The difficulty that can arise … occurs if and when the court is later required to hear committal proceedings arising out of an alleged breach of an earlier order … The more robust the judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process.”

I referred in paragraph 50 above, to what McFarlane LJ had said in Re K about the circumstances in which a judge who had conducted the kind of hearing which took place in the present case before Keehan J on 8 October 2015 ought not to conduct subsequent committal proceedings. That issue, which was at the heart of the appeal in Re K, is not one which, in the event, arose for determination here, so I say no more about it. The point to which I draw attention, is simply this. Quite apart from the Comet principle, which, as we have seen, would prevent the use in subsequent committal proceedings of the evidence given by someone in Mr Oddin’s position at a hearing such as that which took place on 8 October 2015, it is possible that the rule in[2008] 2 FLR Hollington v F Hewthorn and Company Limited and another [1943] KB 587[15] might in certain circumstances prevent the use in subsequent proceedings of any findings made by the judge at the first hearing. That is a complicated matter which may require careful examination on some future occasion; so, beyond identifying the point, I say no more about it.

Theis J’s judgment draws together some very important practice issues, and is worth reading in full, so I set it out here.

  1. The powers of the court to make, and enforce, orders to secure the return of children who have been wrongfully removed from those who care for them is an essential part of the family court’s powers to protect vulnerable children from harm.
  3. Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:
  5. (1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.

(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.

(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.

(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.

(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.

(6) Whether the person accused of contempt has been advised of the right to remain silent.

(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.

(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.

(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court’s decision regarding any committal order.

  1. Counsel and solicitors are reminded of their duty to assist the court. This is particularly important when considering procedural matters where a person’s liberty is at stake.

11 Comments

Posted in case law, committal and tagged , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

Disguised compliance

Posted on March 22, 2016 by suesspiciousminds

 

This is a case where a Judge was critical of the Local Authority’s use of the phrase “disguised compliance”.  I know that it is a phrase that sometimes puts hackles up

Pink Tape sums up very well just how annoying some people find the phrase  – though her particular issue is that it should be “disguised non-compliance”

Mini-Vent

(I’m going to suggest in this piece that the problem is not the phrase or the concept, it is throwing the label around when there’s no evidence that it is happening. It is when people just assert that it has happened without going to the bother of proving it with evidence.   It is a similar sort of effect when people describe a child’s description of abuse as a “disclosure” rather than an “allegation” – because the former implies that the child must be telling you something true, and the latter is a more accurate description of the account of abuse until such time as a Court makes decisions about whether it happened)

 

 

Disguised compliance is a recognised phenomenon in child protection, and one that frequently comes up in Serious Case Reviews , it is generally defined thus:-

 

Disguised compliance involves parents giving the appearance of co-operating with child welfare agencies to avoid raising suspicions and allay concerns. Published case reviews highlight that professionals sometimes delay or avoid interventions due to parental disguised compliance.

Click to access factsheet-disguised-compliance1.pdf

 

So it can be a real thing, and it can be a real problem that professionals need to be aware of.  Professionals failing to spot the difference between a parent who has genuinely changed and is trying their best and one who is trying it on, have ended up with children who were seriously harmed or worse.  It was, for example, a major feature in the Victoria Climbie Serious Case Review, also in the Peter Connolly one.

A sceptical enquiring mind is appropriate – the mind should be open to both possibilities and assess the evidence.

The difficulty, of course, is the differential diagnosis – a situation could be disguised compliance, or it could be a parent genuinely doing everything that they are being asked to do.

If for example, a Local Authority say to a mother, we want you to separate from father and not have contact with him, and allow us to make unannounced visits and improve the home conditions, there are instances where this is exactly what the mother does and that’s positive evidence of change and a good indicator for the future. However, there are cases where the parents pretend to have separated and see each other secretly and everything on the surface looks the same as the mother who has really made those changes. The latter would be disguised compliance. Someone pretending to have changed, but not having really done it.

The issue, of course, is that simply looking at a parent and labelling what they are doing as “disguised compliance” is an allegation – that the parent is not really changed and is not trustworthy. And if you are as the State making an allegation, then the burden is on you to prove it, and you have to provide evidence to that effect. Simply labelling someone’s behaviour as “disguised compliance” is not sufficient.

If a parent is doing everything that you have asked them to do, then you can’t simply undermine that by saying “Ah, but it is just disguised compliance”    – that’s like having your cake and eating it. The LA seem to be in a position of being able to criticise someone for not doing what they were asked to, but also being able to criticise them for doing it.  Obviously, if there’s evidence that someone’s attitude and insight has not changed, or that they are not actually doing what they claim to be, that’s a different matter – depending on the evidence.

It may well be very sensible to have in mind that a given set of facts could be genuine change or it could be disguised compliance, and to assess the situation and check how you are monitoring, but if you can’t provide the evidence that what the mother is doing is disguised compliance, you cannot just write all of the observed changes off by saying that’s what it is. The law, and the Courts, work on evidence, not mere suspicion or speculation.

DV (Adoption or Rehabilitation) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B12.html

 

The Local Authority repeatedly use a phrase critical of the mother when they say that she has engaged in ‘disguised compliance’. It may be that their terminology is loose, but I find that it is not supported by any recent evidence. Indeed, the social worker is happy to praise the mother’s engagement and was positively enthusiastic about the counselling which was underway. Certainly, the children’s guardian was rejecting of the criticism implicit in the phrase ‘disguised compliance’. The guardian told me that the mother now recognised the need for change, she wanted to change, she had fully engaged with everything that had been offered, and she was in the process of change. 

 

 

The Judge, having heard all of the evidence in the case was satisfied that the mother genuinely had separated from the father, and had learned from her mistakes and was working genuinely to make and sustain changes, and therefore refused the plan for adoption – the child was returned to the mother’s care.

23 Comments

Posted in adoption, assessment of risk, case law and tagged , , , . Bookmark the permalink.

High Court gets into the groove

Posted on March 21, 2016 by suesspiciousminds

 

They had style, they had grace

Lots of lawyers in this case

Setright, Verdan, Renton too

Adam Wolanski, we love you

Ladies with an attitude

Fellows that were in the mood

Don’t just stand there, let’s get to it

Write a skeleton, there’s nothing to it

Hague

 

 

The laboured opening may tell you that this piece is about the High Court case in Ciccone v Ritchie (No 2) 2016 involving the singer Madonna, and the film-maker Guy Ritchie, and their son.  [And no, it is not a request for a section 37 report arising from the Judge having had to view the film Castaway that they made together, though that did cause Significant Harm to anyone who saw it]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/616.html

 

I’m going to start with how the Judge ended, because I think it is powerful and moving stuff, with much wider application than just these two celebrities.

  1. Finally, I would say this. For all the interesting legal argument and great learning that is apparent from the admirable skeleton arguments and submissions of leading and junior counsel, at the root of these proceedings (and, I venture to add, the proceedings in the United States) is a temporary breakdown in trust. For all the media coverage, comment and analysis, this is a case born out of circumstances that arise for countless separated parents the world over.
  3. The court should always be the option of very last resort when parents cannot agree matters in respect of their children. Whilst the law provides a mechanism for the resolution of disputes between parents in respect of their children it is but a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved, accepting that this latter path can be a hard one on which to embark, and to sustain, in the context of relationship breakdown. It is for this reason that during the course of the proceedings on each side of the Atlantic Judge Kaplan and myself have repeatedly urged the parties to adopt a consensual approach to resolving the matters of dispute between them for the benefit of Rocco.
  5. Within this context I renew, one final time, my plea for the parents to seek, and to find an amicable resolution to the dispute between them. Because agreement is not possible today does not mean that agreement will not be possible tomorrow. Most importantly, as I observed during the course of the hearing, summer does not last forever. The boy very quickly becomes the man. It would be a very great tragedy for Rocco if any more of the precious and fast receding days of his childhood were to be taken up by this dispute. Far better for each of his parents to spend that time enjoying, in turn, the company of the mature, articulate and reflective young man who is their son and who is a very great credit to them both.

 

In terms of points of law, there are some worthwhile passages about transparency – this Court case has attracted a lot of media attention in America, because there are ongoing proceedings in New York (where it seems the Press were allowed to come into the hearings, report what was said and even print a still photograph)  – should this judgment be published at all, should there be anonymisation – how exactly CAN you anonymise a case where there is already so much within the public domain, and where anyone with half a brain can identify who the parties are, even if you gave them just “M” and “F” initials?

I do like that the key American decision on transparency in these circumstances is actually called Anonymous v Anonymous

 

Publication of Judgment

  1. I set out the principles applicable when deciding whether or not to publish a judgment pursuant to the President’s Guidance in my judgment in H v A (No 2) [2015] EWHC 2630 (Fam) and I shall not repeat them in detail here. In summary:
  1. i) The public generally have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their jurisdiction.

ii) Paragraph 19 of the Practice Guidance makes clear that in considering whether to publish a judgment the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, Art 8 (respect for private and family life) and Art 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.

iii) The exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons;

iv) When conducting a balancing exercise between Art 8 and Art 10, the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]. In applying what Lord Steyn described as the “ultimate balancing test” of proportionality it is important that the court consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve;

v) Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations;

vi) In undertaking the requisite balancing exercises, the impact of publication on the children must be weighed by the court. Whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In particular, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child.

vii) When the court is considering whether to depart from the principle of open justice it will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation although there comes a point where evidence is not merely speculative but pure speculation.

  1. With respect to the latter point, and noting the difference in emphasis between the two jurisdictions, in reaching her decision that there were no compelling reasons to close the proceedings in New York Judge Kaplan cited the following passage from the decision of the Appellate Division of the Supreme Court of New York, First Department in Anonymous v Anonymous 158 A.D.2d 296 (1990) as follows:
    1. “The unsupported speculation by her counsel as to the deleterious effect the media coverage might have on the child is simply inadequate to overcome the strong presumption that court proceedings be open to the public.”

 

Publication of Judgments

  1. Balancing the competing Art 8 and Art 10 rights, I am satisfied that my judgment of 3 February 2016 following the hearing on 21 December 2015 and this judgment should be published. I am further satisfied that, in the exceptional circumstances of this case and subject to some limited redaction, the judgments should be published without anonymisation. The reporting restrictions in this case will continue to be governed by the order that I have already made and will apply to the reporting of my published judgments. My reasons for so deciding are as follows.
  3. The starting point in this case must be that it will simply not be possible for the court to produce an anonymised version of the judgments such as to eradicate the risk of jigsaw identification. Given the high level of publicity the world over in respect of this case, to produce a judgment that gives rise to no risk of jigsaw identification would result in a judgment that could not even indicate the dates on which the proceedings were heard. Within this context, and in the very particular circumstances of this case, I accept Mr. Wolanksi’s submission that in light of the level of information already in the public domain concerning this case, it is unrealistic to think that the judgments given by this court could be anonymised to the extent required to ensure the parties were not identified whilst at the same time remaining a means by which what the court has done in this case can be understood by the public at large.
  5. In these circumstances, I am satisfied that the choice for the court is to publish the judgments without anonymisation or not to publish them at all.

 

The key legal issue was whether a party who makes an application under the 1980 Hague Convention then needs leave of the Court to withdraw it.

The Court ruled that there does need to be an application to withdraw and for the Court to grant leave.

 

The Law

Permission to Withdraw

  1. FPR 2010 r 29.4 provides as follows in respect of permission to withdraw an application:
    1. 29.4 Withdrawal of applications in proceedings

(1)     This rule applies to applications in proceedings –

(a) under Part 7;

(b)     under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child or;

(c)  where either of the parties is a protected party.

(2) Where this rule applies, an application may only be withdrawn with the permission of the court.

(3) Subject to paragraph (4), a person seeking permission to withdraw an application must file a written request for permission setting out the reasons for the request.

(4) The request under paragraph (3) may be made orally to the court if the parties are present.

(5) A court officer will notify the other parties of a written request.

(6) The court may deal with a written request under paragraph (3) without a hearing if the other parties, and any other persons directed by the court, have had an opportunity to make written representations to the court about the request.

  1. The question to which this case gives rise is whether FPR 2010 r 29.4 applies to applications in proceedings under the 1980 Hague Convention and, if so, what the test is for giving permission to withdraw in such cases.
  3. As set out above, there is no authority precisely on this point. In respect of proceedings under the 1980 Convention some authorities appear to have proceeded on the basis that permission to withdraw is not required (see AA v TT (Recognition and Enforcement) [2015] 2 FLR 1) and some on the basis that it is required (see Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2008] 2 FLR 351 at [16] setting out the terms of an order made earlier in those proceedings and the recent decision of the President in Re D (Children)(Child Abduction Practice) [2016] EWHC 504 (Fam)). In none of those cases however, was the court requested to consider whether the permission of the court to withdraw was mandated by r 29.4 in this context.
  5. Anecdotally, my (admittedly limited) experience suggests that many practitioners do consider that the permission of the court is required to withdraw applications in proceedings under the 1980 Hague Convention and I have certainly endorsed a number of orders which provide for such permission in cases where an applicant has decided, for whatever reason, not to proceed.
  7. The remaining authorities on permission to withdraw concentrate exclusively on public law proceedings under Part IV of the Children Act 1989 (see Re N (Leave to Withdraw Proceedings) [2000] 1 FLR 134, WSCC v M, F, W, X, Y and Z [2011] 1 FLR 188 and Redbridge LBC v B and C and A (Through his Children’s Guardian) [2011] 2 FLR 117). These authorities make clear that in public law children proceedings, where the threshold is capable of being crossed the test for whether permission should be given for care proceedings to be withdrawn is the welfare of the child.
  9. However, care must be taken in relying on these authorities in the context of the question at issue before this court. First, those authorities were decided under the Family Proceedings Rules 1991 r 4.5 which, as detailed below, differs substantially from FPR 2010 r 29.4. Second, and importantly, the conclusions in those authorities that the question of whether care proceedings should be withdrawn is a question which concerns the welfare or upbringing of a child, and that the test for whether permission should be given is the welfare of the child, are grounded firmly in the fact that the upbringing of the child is the main question falling for determination in such proceedings (see London Borough of Southwark v B [1993] 2 FLR 559 at 572).
  11. It is important to note that the procedural requirement of permission for the withdrawal of proceedings is not limited to cases involving children, either in FPR 2010 r 29.4 or more widely. FPR 2010 r 29.4(1)(a) applies r 29.4 to applications in proceedings under Part 7 of the FPR 2010, namely applications in matrimonial and civil partnership proceedings, and is not qualified as only applying where the application concerns the welfare or upbringing of a child. Accordingly, pursuant to FPR 2010 r 29.4(1)(a) permission is required to withdraw an application for a marriage or civil partnership order governed by FPR 2010 Part 7 notwithstanding the proceedings do not concern the welfare or upbringing of a child. There are also other areas of law where permission is required to withdraw an application in proceedings. For example, under the Insolvency Act 1986 s 266(2) a bankruptcy petition may not be withdrawn without the leave of the court.
  13. Finally, and within this context, when considering both the scope of the application of FPR 2010 r 29.4 and the test for permission under it, it is very important to read FPR 2010 r 29.4 in its proper context. That context includes the fact that the FPR 2010 represents a new procedural code with “the overriding objective of enabling the court to deal with the case justly, having regard to any welfare issues involved” (FPR 2010 r 1.1). The court must give effect to the overriding objective when it exercises any power under the FPR 2010 (FPR 2010 r 1.2(a)) and has a duty to further the overriding objective by actively managing the case (FPR 2010 r 1.4(1)). Pursuant to FPR 2010 r 1.2(b) the court must also seek to give effect to the overriding objective when it interprets any rule.

 

  1. I have come to the conclusion that FPR 2010 r 29.4 does apply to applications in proceedings under the 1980 Hague Convention, governed as they are by FPR 2010 Part 12 Chapter 6 and that, accordingly, the permission of the court is required to withdraw such proceedings. My reasons for so deciding are as follows.
  3. In my judgment this is the plain meaning of FPR 29.4(1)(b). FPR 2010 r 29.4(1)(b) provides that r 29.4 applies to applications in proceedings “under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child“. I am satisfied that r 29.4(1)(b) is to be read disjunctively and that the words “where the application relates to the welfare or upbringing of a child” are intended to qualify only the words “any other Part” and not the words “under Parts 10 to 14“. I am reinforced in this view by the fact that Part 10 to Part 14 of the FPR 2010 deal with a wide range of applications that do not, or need not concern the welfare or upbringing of a child.
  5. Whilst it might be argued that the use of the phrase “any other” in r 29.4(1)(b) demonstrates that Parts 10 to 14 are included in r 29.4 only in so far as they apply to applications concerning the welfare or upbringing of children, if this had been the intention I am satisfied that those who drafted the rules would have said so expressly, rather than leaving it to be implied in circumstances where, as I have said, those Parts also deal with applications that need not, and often will not, concern the welfare and upbringing of children. Further, pursuant to FPR 2010 r 1.2(b) when interpreting r 29.4 I must seek to give effect to the overriding objective in FPR 2010 r 1.1. In my judgment reading r 29.4 in this context further militates against this latter interpretation.
  7. FPR 2010 r 29.4 represents a broadening of the type of applications in respect of which permission is required to withdraw when compared with the Family Proceedings Rules 1991. The previous rules, in the form of Part IV of the FPR 1991, made provision for permission to withdraw proceedings only in relation to proceedings under the Children Act 1989 (FPR 1991 r 4.5). For example, although FPR 1991 r 2.8 permitted the discontinuance of a petition for divorce, judicial separation or nullity before service of that petition, the rules made no provision for the proceedings to be withdrawn following service. By contrast, whilst pursuant to FPR 2010 r 7.9 an application for a matrimonial or civil partnership order may be withdrawn at any time before it has been served by giving notice to the court in writing (reflecting the provisions in FPR 1991 r 2.8), pursuant to FPR 2010 r 29.4(1)(a) following service the permission of the court is required before such an application can be withdrawn. Neither FPR 2010 r 29.4(1)(a) or FPR r 29.4(1)(b), which deals with applications in proceedings where either of the parties is a protected party, are not qualified as only applying where the application concerns the welfare or upbringing of a child.
  9. Within the foregoing context, in my judgment interpreting r 29.4 as including within its scope all of the applications governed by Part 10 to Part 14 of the FPR 2010, as opposed simply to those concerned with the welfare or upbringing of a child, is consistent with the overall aim of the FPR 2010 generally and in particular the aim of FPR 2010 Part 1, which requires the court to actively manage the case so as to further the overriding objective of dealing with it justly, having regard to any welfare issues involved.

 

The Judge recognised and acknowledged that where a party seeks permission to withdraw an application under the Hague Convention, it is next to impossible to conceive of a scenario where the Court would refuse and make them press on.

It would not serve the ends of justice to compel a party to pursue an application under the 1980 Hague Convention that they wish to bring to an end. Indeed, whilst not ruling out such a course of action entirely, it is very difficult indeed to think of a circumstance where the court would compel an applicant in proceedings under the 1980 Hague Convention to pursue an application they have indicated they wish to withdraw. Further, having regard to the overriding objective, there are positive merits in this case to permitting the mother to withdraw her application in this jurisdiction. As I observed during the course of the hearing, at present the existence of parallel proceedings in two jurisdictions, before two judges with two sets of lawyers is introducing unnecessary and unhelpful complexity and hindering attempts at settlement, as well as incurring considerable expense. Accordingly, I give permission for the mother to withdraw her proceedings under the 1980 Hague Convention.

 

Finally, just for style points, I have to give a nod to Mr David Williams QC for this turn of phrase

The mother accepts that the Supreme Court of the State of New York has jurisdiction in this matter. The father made clear during the course of this hearing through Mr. Verdan that he, likewise, accepts that the New York Court has jurisdiction, albeit at the outset of the hearing Mr. Verdan submitted that this court should make certain substantive welfare orders in respect of Rocco. Whilst in his Skeleton Argument Mr. Setright undertook an analysis of the jurisdictional position in this case (including an analysis of habitual residence) and submits that this court should, upon the withdrawal of these proceedings, give certain procedural directions aimed at any future applications made in this jurisdiction, he does not suggest at this time that Rocco disputes the jurisdiction of the court in New York. Within this context, and with respect in particular to orders originally sought by the father, Mr. Williams submitted that it would be wrong for the English court to seek to “park its tanks” (to use his phrase) on the front lawn of the United States by taking any steps beyond those necessary to effect the withdrawal of the proceedings under the 1980 Hague Convention.

 

 

5 Comments

Posted in case law, international, private law and tagged , , , , , , , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →