Category Archives: case law

What price the 350 page limit?

Posted on December 23, 2015 by suesspiciousminds

I have talked about the 350 page bundle limit before, and how a “one-size fits all” regardless of the nature of the case is a blunt instrument which does not always work.

This is a case in point.

Local Authority A v N and others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1301.html

Very sadly, the father in the case was displaying pronounced symptoms of mental health difficulties but would not engage in any assessment process, which might have enabled him to get a diagnosi and treatment. He had placed 3 supplemental bundles of his own construction before the Court, consisting of around 1,400 pages, and insisted on those documents being read. These matters related notionally to the father’s deep-seated belief that there was a secret conspiracy at the highest levels and permeating almost every strata of society about fostering and adoption. Whilst even national newspapers routinely publish articles hinting or claiming such a thing, here the father’s beliefs had taken a complete hold of him and almost any fact or newspaper article no matter how tangential, was woven into his belief system.

[This is not an attack on those who believe and espouse their views about corruption and bad practice in the family justice system – this man was going far far beyond that sort of thing. For example, the critics of the family justice system that I spend time in discussions with would be unlikely to perceive that seeing a social worker in MacDonalds with some children unconnected to the case would warrant writing to MacDonalds about social workers ‘infiltrating’ MacDonalds or to accuse the children of being child-actors; nor would they be anything like so fixated on Ringo Starr’s role in the forced adoption industry – given that he doesn’t have one. This is not a man being penalised for exposing corruption or challenging a flawed system, this is a man with considerable mental health problems.

No doubt it would be possible for an unscrupulous journalist to turn the story into “Man loses children for daring to speak out about corruption in secret family Courts’, but there’s no such thing as an unscrupulous journalist, so that will never happen.]

After considering everything I have read, heard and seen during this hearing I make the following findings. They are additional to the findings that I have already made whilst going through some of the issues above.

(a) I accept, as I said at the outset, that when D was living at home and when she lived with her mother at her grandparents home in 2012, she was much loved and well cared for. I also accept that C was much loved when she was living at home, although I cannot comment meaningfully on the quality of her care, because in the nature of things it has not been examined at this hearing. D was physically well and attended all her immunisations and health visiting appointments. She attended the nursery properly and the parents would phone in to say if she was ill. I repeat that the numerous photographs which the mother has asked me to look at and the eighteen DVDs (which includes the two about the European Parliament) put in by the father show both girls interacting happily within their family. I accept that the father and the mother are non-drinkers and non-smokers. There are no criminal convictions in the family. The grandparents too are decent people who love their grandchildren, who brought up their own children, who worked hard until retirement and who would never have expected to become involved with Social Services; nor for that matter to be contemplating the care of two children when in their seventies.(b) Unhappily, however, I am satisfied on the expert evidence and on everything I have seen, heard and read, that the father has been and is now mentally unwell. He does not recognise this, nor does the mother, nor do the grandparents. There is, however, abundant and solid evidence for that conclusion. Specifically I refer to the opinions of Dr. Mumford, Dr. Pilgrim, Dr. McGeown and Professor Mortimer. I also refer to the contents of Supplemental Bundles 1, 2 and 3. Initially the contents of those three lever-arch files seem sometimes completely incomprehensible. This is partly because of the father’s idiosyncratic writing style and partly, as I have said, because many of the attachments are missing. However, I have come to realise as the case has gone on, particularly on hearing the father, that there is underlying his tortured logic a just about intelligible reason for why he fires off most of the complaints and demands which he does. Most emails, with some exceptions, can be seen to relate essentially to his sense of grievance about the loss of the children and his obsessive but unsupported beliefs that this is based on multiple conspiracies, malpractices, lies and hidden agendas. Unfortunately, these paranoid and distorted beliefs have led him to overreact beyond the bounds of reason with cross-references in his mind to other people, organisations and events having in reality nothing to do with his children. They, the children, become joined into his whistleblowing-type campaigns, because his mental ill-health distorts his ability to see things in proportion and to distinguish as regards the children the relevant from the irrelevant. Through his distorted thinking, much of his time must have been taken up with researching supposed culpabilities and pursuing them, often in a grandiose manner, without apparent empathy for those on the receiving end, nor for the inconvenience which he may have been causing to third parties. These suspicions and beliefs have unhappily been fuelled by the coincidence of Local Authority B having been placed by the government into a form of trust and by [certain] scandals emerging locally in places like [named], as extensively reported in the media.

(c) I find that the contents of Supplemental Bundles 1, 2 and 3 justify the use of the words ‘distorted’ and ‘grandiose’ in the last paragraph. Just to give a flavour of what I mean, they contain the following sorts of things: sent to Her Honour Judge L, a newspaper item about women with hourglass figures having brains to go with their curves; to Local Authority A, accusing Kerry Chafer of running paedophile activities and money laundering; to Local Authority A, declaring Kerry Chafer to be ‘linked to’ dwarfism and gross obesity; sent to the Children’s Guardian’s solicitors, various press cuttings including, ‘Commons to get in-house mental health clinic for MPs suffering from depression’ and ‘One in five struggle to have a baby’; complaints about Local Authority A Social Services running with an imbalance of female and male social workers, making it dysfunctional; complaining to the Royal Mail that it had illegally delivered to him a notice which had arrived late about a parenting education meeting; asserting that the children’s guardian’s solicitor has a ‘gross and autistic daughter’; to the European Parliament about Tesco’s selling a hi-fi system with some label or leaflet promoting adoption; to Professor Mortimer, threatening to report her to the police; to [named] University concerning Professor Mortimer and reminding them that ‘the case is listed at the International Criminal Court in the Hague’; reference to an article about prisoners in cages; to Zurich Insurance PLC concerning an ex-employee of theirs’ who was ‘linked to’ Local Authority B’s street window display promoting adoption; to Amazon concerning a former Mayor of Local Authority B, because they were selling a book which he had written; to the publishers of that book, telling them to end their contract with the author and saying that the subject matter of the book (a very prominent politician) would himself be served with court notice about it; to Ofsted about its former female chair five years previously who had recently made sexual disclosures about herself in the newspapers; to the college or academy where that woman now works, advising them to remove her from her Chair, with reference to ‘child trafficking, money laundering, forced adoption, birth parental suicide and genocide’ and with references to the Crown Prosecution Service and the European Parliament; to Local Authority A, complaining about a social worker having ‘infiltrated’ McDonald’s by having an interview with a child (not connected with this case) and the child’s mother there; to the website ‘Just Giving’ about the Mayor of [town named], who had posed for a nude charity calendar, requesting details of the publishers and distributors of that calendar; a complaint about a prominent cabinet member who had publically said something about people coming to London for sex, stating that he must step down or be removed; to Ofsted requesting the arrest of ‘named social workers’; to the Electoral Commission about its alleged link with a television programme on adoptions and with a particular trades union; to a sign manufacturer complaining of signs on a local roundabout encouraging fostering and adoption, referring to a claim for substantial compensation and mentioning the international criminal court; a ‘To Whom it May Concern’ about the ‘continual adverse, unnecessary abuse holocaust distribution of NHS medication to hundreds of thousands of UK civilians’; to the Archbishop of Canterbury about ‘a named social worker’ not taking Easter gifts to D; to two librarians at a local library, complaining about posters there encouraging people to foster or adopt, saying that he had given them several days to remove those posters and that they would be ‘challenged to the Press Complaints Commission and others’; to [the] Police requesting consideration of the arrest of the art therapist at the H Children’s Unit and H’s directors on the grounds of fraud and embezzling up to £300,000 from the public purse; to Sports Direct because it had announced that it had entered into a ‘put option agreement’ relating to Tesco PLC shares. I have noted more than fifty individuals and organisations (ignoring just copying in) to whom the father has sent correspondence, including by way of example [named] University, [named] University, [named] University, the Parliamentary Ombudsman, the International Criminal Court at the Hague, the police, the DPP, the Leadership Foundation for Higher Education, the RSPCA, News Corporation, Zurich Insurance, the Criminal Cases Review Commission, Tesco, the British Humanist Association, and so on. By way of further example, one or two of the newspaper articles annexed to his communications have the following headlines: ‘Born junkies. Three babies hooked on heroin or crack are delivered every day’; ‘Children of obese Mums likely to die younger’; ‘Labour and NHS stitch-up’; ‘Council anger over naked town mayor’ (a charity calendar); ‘Cameron’s attempt to do God faces test of faith by electorate’; ‘Labour reforms fail to convince voters’; and ‘Ministers ask Charles: Can we take away your powers?’

(d) It is not only the contents of the father’s Supplemental Bundles 1, 2 and 3 which demonstrate his abnormal thinking process and ability to see things in normal proportion, but almost more so his insistence that I should read those bundles as being supportive of his case in respect of his children. The reality is that they help to justify and support the conclusions of Professor Mortimer. Her Honour Judge P QC made the same point (at paragraph 72 above) in April 2009. Professor Mortimer told me in evidence that although she had not read all the father’s documents in the three bundles, she had read enough to recognise them as being ‘… typical of the sort of material produced by persons with this type of mental disorder.’ When it was put to her by Mr. Godfrey on instructions that she had given ‘totally false and biassed weight’ to the cases of the local authorities and had ignored the father’s case, she disagreed, saying that she had not ignored the father’s material, but on the contrary had ‘… used it in arriving at her professional diagnosis and conclusions.’

(e) Unhappily both the mother and the grandparents have been so influenced by the strength and persistence of the father’s beliefs about the targeting of the family, conspiracies and fabrications that they have come to absorb these beliefs which have become part of their own respective mindsets. This has been painfully but abundantly obvious (i) from everything which each of them has said to the social workers, (ii) from the questions which they have caused to be put in cross-examination (or in the grandparents’ case have put themselves) to the local authorities’ witnesses and (iii) from their evidence in the witness box. They have become embroiled with the father’s views and beliefs, however improbable and however lacking in evidential support.

(f) The father’s refusal to cooperate in an up-to-date psychiatric examination, as strongly advised by McFarlane LJ in October 2014 and repeated by myself in January 2015, and his refusal to speak to the Children’s Guardian, have greatly diminished his prospects within these proceedings. I doubt that this is a product of stubbornness, for I can see that he can be a pleasant and cooperative person. I suspect it is more a product of his mental ill-health and his complete inability to see that there would be a benefit to him (and thus to all the family, including the children) from an up-to-date psychiatric diagnosis, coupled with whatever medication or other help a consultant psychiatrist might offer. The mother too has diminished her prospects by refusing to have an up-to-date psychological assessment, or to meet with the children’s guardian. An up-to-date psychological assessment of her would have been invaluable as to whether she has fully and truly embraced the father’s beliefs, or whether she is simply unable to confront and challenge him. These refusals by both parents demonstrate a lack of insight into what materials a court needs to determine a difficult case like this in the best interests of the children.

(g) I accept the diagnosis by Professor Mortimer, albeit limited to being a paper exercise, that there does exist a ‘folie à deux’ between the mother and the father. I further accept the Professor’s view, as to which she is in agreement with the previous psychiatric and psychological experts, that the father will stay as he is without treatment. She gives the opinion that there is ‘… no hope at all of any spontaneous resolution’. I accept that opinion. She advises that the natural course of untreated schizophrenia is a gradual, slow cognitive decline, with the defects tending to be in reasoning, judgment, memory and concentration. This is a sad prognosis, but that is what it is.

(h) I am satisfied from everything I have seen and heard that those social workers, health visitor, nursery school workers, care home staff and contact supervisors who have made statements and/or whom I have heard in evidence have carried out their duties and functions with due professionalism, without dishonesty or fabrication and in pursuit of what they have considered would best serve the welfare of the respective children. The proposition only has to be stated that all these professionals have been drawn into a conspiracy involving dishonesty and perjury by a wish to get back at the parents for some complaint the parents made about C’s school in 2005, to realise how fantastic it actually is. Yet the family members have become blind to this and in the case of the mother and grandparents have become disabled from critically examining or challenging it. As Miss Stanistreet put in cross-examination, the father’s case involves professionals in every discipline involving three counties over ten years having actively lied and made things up in order to get the children into care: yet that is the case relied on by the family members.

(i) I find that whilst, as seen on the DVDs, the father can be pleasant and charming, there is also a blustering and domineering side to him, when he can be insistent on getting his own way over things which he sees as important. On occasions I find that he has behaved in intimidating ways, as appears in places throughout the evidence, including with professionals such as social workers and at the nursery. This makes it extremely difficult to reason with him or to discuss things usefully with him: reference for example Rachel Payne’s efforts to discuss with him Dr. Melia’s psychological report, in respect of which she effectively had to give up. Further, the mother and the father have had a habit of simply not turning up on occasions for meetings about the children.

(j) I find that, although D did eventually have the various recommended and clearly necessary assessments (first advised by Dr. Knight-Jones in November 2010 and as mentioned in the contracts of expectation of February 2011 and February 2012), the mother and father were mainly oppositional to them. They did not think they were necessary. They refused to go along with social work and nursery advice about SEN funding for extra one to one help, on the illogical basis that this would ‘label’ D, when the whole idea of such extra help was that she would then keep up with her peers when moving on to her first school. It took the interim care order in mid-2012 before the extra funding could be obtained. When Mrs. Monks explained her observation of D’s delay at the nursery to the father, he called them ‘rubbish’. He said in cross-examination that the one to one help eventually obtained for D by the professionals had not helped her at all.

(k) I find that the situation when the mother and D lived with the grandparents was an increasingly difficult one and I accept that the grandparents admitted as much to Miss Chafer. It is quite understandable why this should have been so. I find, however, like Mrs. Recorder Q, that the tensions have (as happens) been minimised in the minds of the mother and the grandparents. It was not a situation which would indefinitely have continued to provide D with a calm and stress-free environment. I accept that the grandparents told Kerry Chafer that the father was overstaying his contact at times (not just being allowed to make up lost time when public transport made him late) and that they found it difficult to challenge him. It is clear that they were told by Social Services after the mother’s 999 call on 21^st August 2012 not to leave the mother alone with D, but that they did so (ie did leave the mother alone with D) in the firm belief that this was justified, as there was no way the mother would harm D. This must raise serious concerns if D were to be in the grandparents’ care about their ability to protect D against the emotional pressure likely (as I find) to be imposed on them by the mother and father’s strong views about getting the children back to their home.

(l) It is a fact, and I so find, that all the family members have an antipathy to the Social Services with whom (along with other agencies) there would absolutely have to be cooperation if D lived within the family. Even putting the family’s case at its very highest, no outcome could reasonably be countenanced without at the very least a supervision order. The father stated in his most up-to-date statement (23^rd February 2015): ‘… I do not like the local authorities and do not want their involvement in my family.’ The mother told me that she sees the children and the family members as ‘victims’ and that ‘… I want nothing to do with the Social Services any more. I want no involvement with them, because I hate them.’ The grandfather spoke in his evidence of anyone having dealings with the Social Services as being ‘in for a life of hell.’

(m) I find it to be extremely likely, indeed virtually unavoidable, that any child living with the father and mother would be exposed to their distorted views and beliefs across a wide range of areas. It would involve such a child being brought up in an ethos where those in positions of a sort of authority (schools, social workers, health visitors and so on) are seen as conspiring, lying and acting with motives of personal gain or promotion. There would be surrounding such a child a sense of the morality of ‘whistleblowing’ in respect of persons with whom one has no particular relationship or connection and of the appropriateness of setting oneself up as a sort of guardian of public probity. There would be an absence of inhibition in expressing hurtful views about others, for example that another person is an ‘obese dwarf’. (Both children incidentally have issues with eating). This lack of normal inhibition and of empathy for others would be harmful to an impressionable child, all the more so given Professor Mortimer’s prognosis that the likely prognosis of the father’s mental health is downhill.

Very sad situation. Towards the end of the judgment, the Judge provides a summary of the matters contained within the father’s Supplementary bundles, and they are a sad insight into how consumed he had become by these beliefs.

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Posted in adoption, case law and tagged 2015 ewhc 1301, bodey j, local authority a v n and others 2015. Bookmark the permalink.

More money than cents

Posted on December 23, 2015 by suesspiciousminds

In this case, which involved an application by a mother to take the children to America to live, the Court of Appeal noted that the parents had, to date, spent £850,000 on Court litigation about their children.

This family appeal strongly demonstrates the damage that is caused when separated parents fail to take the opportunity to resolve their differences. Instead of finding its own solutions, this family, which has every other advantage, has engaged in two years of litigation that has caused great unhappiness, not least to two teenage children. The dispute has been about money and about child arrangements. Aside from the emotional cost and general waste of life, the financial cost has been staggering. The parents have so far expended £850,000 on legal costs and even now their overall litigation is not at an end. The scale of the costs is particularly incongruous when the parents each claim that there was not enough money to go around before the costs were spent. The proceedings are yet another example of why the Family Court repeatedly attempts to divert parties into mediated solutions that allow them to keep control of their own affairs. The court is there to resolve disagreements that cannot be resolved in any other way but, as has been said before, it is not a third parent.

By way of comparison, to have educated both of the children at Eton would have still left enough money to buy each of them an Aston Martin DB9. I know lawyers are awesome, but I do think that probably a private school education and a DB9 would have done the children more good. [The money could even have bought a small cupboard in central London as a first step on the property ladder…]

To put it into more context, £850,000 is the figure that the Press have been aghast that Liam Gallagher and Nicole Appleton have spent on their divorce lawyers – and those are two considerably wealthy individuals arguing about a considerable amount of money.

Re C (Older Children:Relocation) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1298.html

The Court of Appeal also made some observations about the sliding and diminishing scale of the Court’s willingness to make orders about older children and ability to make orders that are effective.

A further and central element of the situation is that the children of this family are in fact young persons, being boys now aged 17 and 15. The case illustrates the particular caution that should be felt by any court seeking to make arrangements for children of this age. In the first place, it is likely to be inappropriate and even futile to make orders that conflict with the wishes of an older child. As was memorably said in Hewer v Bryant [1970] 1 QB 357 in a passage approved in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112: “… the legal right of a parent to the custody of a child ends at the eighteenth birthday and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.” Nowadays, the ‘no order’ principle goes even further and requires the court to justify making any order at all, regardless of whether it is in support of the child’s wishes or in opposition to them. With an older child, the court’s grasp cannot exceed its reach, any more than a parent’s can, and attempts to regulate something that is beyond effective regulation can only create a forum for disagreement and distract the family from solving its own problems.

As the Court had made orders about the two children previously, technically mother did need leave of the Court to remove the children from the jurisdiction. The Court of Appeal ruled that the older child ought no longer, at 17 to be subject to Court restrictions and orders, and thus there was no need for leave of the Court. If he wanted to move to America with mother, then he could move, and if he did not, he would not have to. In relation to the 15 year old, the mother’s appeal was refused, so he could not go to America with mother, but that all orders in relation to him would end when he was 16, so he could go then if he wished to.

Our conclusion is that the general approach taken by this very experienced recorder was one that he was fully entitled to take. To the extent that the appeal is allowed in E’s case and, to a limited extent, in J’s, it is on a basis that was not argued below, namely in consequence of the ‘no order’ principle the court should not have been making or continuing orders about young persons over 16 other than in exceptional circumstances.
As stated at the end of the hearing, the outcome allows the parents and E to discuss the arrangements for his future between them. It is a clear indication that this court does not consider it appropriate for it to contribute to that discussion in any way at all.
In J’s case, the outcome of the appeal is that the mother may not take him to New York. That does not prevent the parents from discussing and reaching agreement about the future arrangements for his residence and schooling, but if they cannot do so the arrangements under the existing order will continue and the terms of s.13 Children Act 1989 will remain in effect.
However, we shall direct that the existing order will cease to have effect in J’s case when he reaches the age of 16. This is a variation of the arrangements that was not the subject of appeal but it is in conformity with our decision in E’s case.

The proceedings have taken a heavy toll on the children, who emerge with great credit. It must be hard for them to live amidst such conflict. The parents must now bring an end to a situation where their children are being asked to make up for their own inability to communicate effectively. The hearing of this appeal took place on the second last day of the school Christmas term, meaning that the boys did not until that moment know whether or not they would be saying goodbye to their school and their friends. They deserve better, and it is to be hoped that the end of these proceedings and the imminent resolution of the financial case will bring some respite, or even something more enduring.

The Children Act 1989 s9, as amended in 2014, sets out the Court’s powers to make section 8 orders past the age of 16

“9 Restrictions on making section 8 orders

…

(6) No court shall make a section 8 order which is to have effect for a period which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.

(6A) Subsection (6) does not apply to a child arrangements order to which subsection (6B) applies.

(6B) This subsection applies to a child arrangements order if the arrangements regulated by the order relate only to either or both of the following –

(a) with whom the child concerned is to live, and

(b) when the child is to live with any person.

(7) No court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.”

The Court of Appeal had therefore to look at whether a relocation application was a specific issue order, or whether it related to a variation of residence – they conclude that the Court ought properly when faced with an application about a child who was over 16 to consider that all orders should fall away (and thus mum would not NEED leave to remove from the jurisdiction)

There is, regrettably, some lack of clarity about how relocation applications are to be classified. The debate, which is of long standing, is whether such an application is to be made under s.13 itself or by way of an application for a specific issue order under s.8. There are in my view good arguments for the latter: see the observations of Hale J in re M (above) at 340-341 and the article by Dr Robert George in Family Law Journal [2008] Vol 38 p.1121. However, this court has on at least three occasions proceeded on the basis that an application to relax the s.13 prohibition where there is an existing order is not an application under s.8 for a specific issue order: Re B (Change of Surname) [1996] 1 FLR 791; Payne v Payne [2001] 1 FLR 1052 ; Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882 .

It may seem anomalous that the statutory framework for a relocation application will differ depending upon whether there is a s.8 order in effect. In the above appeal cases, judges been enjoined to apply the welfare checklist even when it is not strictly engaged. In the present case, the difference is potentially sharper because the bar on making s.8 orders for children over 16 will only apply if the application is for a specific issue order: it does not apply if the application is considered to be made under s.13.

How did the recorder deal with this issue? He accepted Ms Murray’s submission that he could make an order in relation to E because he could “regard any new living arrangements as being a variation of the existing shared residence order”. In doing so, he rejected M’s submission that he would be making a new order which, he accepted, would be barred by s.9(7). He found that the circumstances were not exceptional and it is common ground that he was right to do so. Without being prescriptive, I would interpret the main intention behind the proviso as being to allow an order to be made where a child has qualities that require additional protection, not to override the views of a mature child of 16 or 17.

I have set out the arguments on this issue because they formed part of the recorder’s decision and the argument in this court. However, drawing matters together, it seems to me that whether a relocation application is regarded as being made under s.13 or s.8, the general intention of the Act (prominently seen in s.9) is to prevent the imposition of inappropriate requirements on older children.

But I would go beyond that and find that the issue in this case is not to be determined by reference to s.9, but instead by reference to the wider principle expressed in s.1(5). In my view it is not better for the court to make an order in relation to E than to make no order. In fact, it would be positively better for the court to make no order about him. The simple fact is that E is too old to be directed by the court in a matter of this kind. Although the existing child arrangements order, buttressed by the effect of s.13 is not addressed to him, it directly affects him as the subject of the proceedings. This is not to ignore the common interests of this strong pair of brothers, but to recognise the proper limits on the court’s exercise of its powers in the case of a mature and intelligent older child who is now 17 years of age.

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Posted in case law, international, private law and tagged 2015 ewca 1298, costs, Court of Appeal, international relocation, making orders about older children, Re C (older children relocation) 2015, relocation. Bookmark the permalink.

I have a warrant for your arrest… oh, no I don’t.

Posted on December 23, 2015 by suesspiciousminds

This must be every lawyer’s worst nightmare, to confidently tell a Judge that he has jurisdiction to do what you are asking for and be wrong, and worse yet to have that judgment published as precedent that others rely on and then have the Judge have to publish a retraction judgment.

Al-Baker v Al-Baker 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3725.html

From the much-loved by this site Mostyn J.

Here, where a husband in ancillary relief proceedings had been declared to be guilty of contempt of court and ordered that he be imprisoned for nine months as a result, but was in another European Country, counsel for the wife (NOT Mr Todd QC who was representing her in this hearing, NOT him, someone else) had asked Mostyn J to issue a European arrest warrant, so that the husband could be arrested abroad and brought back to this country for punishment.

On 27^th October 2015 I gave a judgment in this case ([2015] EWHC 3229 (Fam)), where I found the husband to be guilty of contempt of court and sentenced him to nine months’ imprisonment. During the case counsel then appearing for the wife applied to me to back my committal order with the issue of a European arrest warrant.
In para.10 of my judgment I said this:

“The wife is proceeding on advice that this is a sensible way of advancing her claim and it is not for me to question that. It has been asserted that this being a sentence of nine months it would be open for this court to request that a European arrest warrant be issued. That would have the effect of detaining the respondent anywhere within the European Union and having him brought to this court if the European arrest warrant procedure is available. I confess that when I first read this I was surprised that it was being asserted that the arrest warrant procedure was available as it was my belief (it is fair to say not based on much education) that the European arrest warrant was confined only to what can strictly be described as criminal offences and a civil contempt was not in that category. However, Mr. Calhaem has placed before me the Council Framework Decision of 13^th June 2002 on the European arrest warrant and Surrender Procedures between Member States of which Article 2.1 states:

‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’

The use of language for “acts punishable by law” would certainly embrace a custodial penalty imposed for contempt of court and, recognising I have only heard only one side, I am satisfied in these circumstances that the sentence I have awarded is properly to be backed by a request for a European arrest warrant and I will complete the necessary annex form when the order is made.”
That passage shows my initial surprise that it was suggested that the issue of the warrant was a legitimate course. As it happens, it was, in fact, a completely illegitimate course. The decision of the Supreme Court of R v O’Brien [2014] UKSC 23 confirms, first, that a European arrest warrant can only be sought by an appropriate person and that counsel for the wife would not constitute such an appropriate person and, secondly, that the scheme does not act to encompass civil contempts, even if they result in a sentence of imprisonment.
It is a matter of some surprise to me that this recent decision from the highest court had not been alighted upon by those representing the wife when they made the application that they did. This has resulted in me giving a judgment which is legally incorrect and which, for all I know, may have led other people in other cases to have applied for a European arrest warrant following a finding of contempt. So I take the opportunity today to correct my previous judgment so as to delete para.10 and to confirm that the European arrest warrant procedure is not available in contempt proceedings.

We don’t really get to learn whether the European Arrest Warrant was ever acted upon, but if it had been, the Court could have been on the hook for a wrongful imprisonment claim.

The other thing of interest in this judgment was the long-time favourite issue of this blog – perjury.

In particular, whether a person who is found to have lied in their statement has committed perjury. Mostyn J thinks not. [Unless it is an affidavit or sworn statement]

In the skeleton argument produced for this hearing, at para.24, it is said this:

“It is clear from H’s statement of 16^th April 2015 (D45) that H has perjured himself in relation to his alleged business dealings in Dubai. He says within that statement (see paragraph 84 at D68) that he does not own property in the Emirates and, in correspondence, has never owned any. This is clearly incompatible with the evidence produced from the wife’s Dubai lawyers in their affidavit at D88. H has lied”.
The material to which I am directed by that passage is contained in a statement made by the husband which was verified by a statement of truth under Part 17 of the Family Procedure Rules. The statement itself was not sworn. To make a false statement, as opposed to a false affidavit, is not perjury. This was by design of those who framed the Civil Procedure Rules which have been mirrored by the Family Procedure Rules. To file a false statement is a contempt of court but it is not perjury. To file a false statement can lead to an order for civil committal for up to two years, but it cannot lead to criminal proceedings for perjury. Arguably it could lead to criminal proceedings under the Fraud Act but it cannot lead to criminal proceedings for perjury.

I think that Mostyn J is quite right here, though I was slightly surprised when I first read it. The wording of the offence from the Perjury Act 1911 is here

If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

A statement which is signed, even with the Statement of Truth, is not a sworn statement, for the purposes of the Perjury Act 1911.

If the author of the statement repeats the lie during oral evidence, where they ARE giving SWORN evidence, the offence would be committed.

I am now pondering whether this is captured during the standard opening question in Evidence in Chief “Can you confirm that the contents of your statement are true and accurate to the best of your knowledge and belief?”

If you say yes to this, and there is a lie in your statement, has that answer amounted to perjury, or does the offence only arise when the question about the particular matter is put to you and you lie in answer.

In any event everyone, lying to the Court is wrong, mmmm’kay?

The wife then made an allegation that the father had committed perjury in his Form E, which is of course a sworn statement and was asking that the police be notified of the offence of perjury. As Mostyn J pointed out, whether or not the father was lying in the Form E was a matter that was disputed and still to be litigated within the ancillary relief proceedings. It would not be a Mostyn J judgment if we did not learn a new word in it, and here it is “pendency” – in the state of being pending and specificaially with litigation whilst it is still ongoing and not concluded . (I’m not entirely sure myself what ‘in the pendency of the litigation’ adds to the alternative wording of ‘whilst the litigation is ongoing’ but such is life)

However, it is the wife’s application, pursuant to what appears on the face of her notice of application, that at this stage, during the pendency of the case, there should now be a reference to the police of her allegation of perjury. This is, to my belief, wholly unprecedented. Mr. Todd is constrained to agree that he cannot identify any case in the ancillary relief field where there has been a reference to the police of perjury or fraud during the pendency of proceedings. Moreover, under the comparable jurisdiction which is incorporated in CPR 31.22(1), which requires the court’s permission to reveal disclosed documents to any third party, Mr. Todd has been unable to identify one case where there has been a reference to the police of fraud or perjury during the pendency of the proceedings, where the very allegation that is sought to be referred to the police is in issue in those proceedings.
In my judgment, this application has been made prematurely. It seems to me that the motive is to replace the pressure of the European arrest warrant with a different kind of pressure to try and bring the husband, who is steadfastly not engaging in the proceedings (he is not negotiating, to my knowledge, or making proper disclosure), to heel in order that the case can be adjudicated fairly. But that is not a proper motive for seeking what, in my mind, is a premature reference to the police. In my judgment, it would be wholly wrong for this court to refer these matters to the police in advance of its judgment on those very matters and for these reasons the application is dismissed.
However, I want to make it clear, when dismissing the application, that I am not in so doing preventing the wife from making a comparable application once judgment on her main claim has been rendered. No question will arise of issue estoppel or other abusive of conduct on her part. If, following the giving of judgment in this case and the making of findings, the wife nonetheless thinks it is appropriate to invoke the criminal justice procedures then it will be open to her to make a fresh application in the terms of her application of 4^th November 2015.

I always love that Mostyn J is not averse to using footnotes in his judgments, and there is one here which I’ve not encountered before [the second].

LATER
Mr. Todd applies for permission to appeal. Under FPR 30.3(7) permission to appeal may only be given where (a) a court considers the appeal would have a real prospect of success or (b) there was some other compelling reason why the appeal should be allowed. In my judgment, an appeal would not have a real prospect of success. It would have no prospect of success at all. Furthermore, I cannot identify any other compelling reason why the appeal should be heard. The fact that there has never before been a case in the annals where a reference has been made during the pendency of proceedings to my mind hardly supplies a compelling reason why an appeal should be heard. To my mind, the empirical evidence suggests quite the opposite, that this is an appeal which should not be heard. LATER STILL
Although para 1 of this judgment makes it perfectly clear on a natural reading that counsel who “then” appeared on 27 October 2015 was not the same as counsel who appeared on this occasion, and although a reading of the first judgment referred to there would have confirmed this to be the case, Mr Todd QC is highly insistent that this is spelt out in this judgment. I am doubtful that the clarification procedure extends to requests for editorialisation for counsel’s personal reasons, but this additional paragraph has that effect.

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Posted in case law and tagged 2015 ehwc 3725, al-baker v al-baker 2015, ehwc 2015 3725, european arrest warrant, european arrest warrant not available for civil matters, lying in a statement, mostyn j, perjury, statement. Bookmark the permalink.

Evidence from witnesses who do not speak English

Posted on December 18, 2015 by suesspiciousminds

As this is an issue which is cropping up more and more in recent years, it is helpful to have this clear and comprehensive guidance from the High Court, courtesy of Singer J (actually echoing the guidance of Jackson J in 2013, NN v ZZ [2013] EWHC 2261 (Fam) but helpful to jog people’s memories – I had missed it first time around)

Re A, B, C and F (children) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3663.html

At my invitation, counsel made submissions about the way in which evidence from witnesses who do not speak English should be prepared. In the light of those submissions, I record the following basic principles:

(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness’s own language before being translated into English. This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2 of which states that:

Where the affidavit/statement is in a foreign language –

(a) the party wishing to rely on it must –

(i) have it translated; and

(ii) must file the foreign language affidavit/statement with the court; and

(b) the translator must sign the translation to certify that it is accurate.

(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness’s own language.

(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.

(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.

(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.

(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.

(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator’s jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.

(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness’s own language and the English translation should be provided to them well in advance of the hearing.

(10) If a statement has been obtained and prepared abroad in compliance with the relevant country’s laws, a certified translation of that statement must be filed together with the original document.

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Posted in case law, international and tagged a witness giving evidence when they do not speak english, b, c and f (children) 2015, re a, singer j, statements from a witness who does not speak English. Bookmark the permalink.

The ISIS flag is apparently not a red flag

Posted on December 18, 2015 by suesspiciousminds

The President has published his judgment in one of the “are parents taking children to join up with ISIS?” cases

This one he has previously given judgment on, and ruled that at an interim stage the children should return home to parents with the parents wearing electronic tags. The mother, and two other adult relatives, were arrested when attempting to board a flight to Turkey with their four children.

Syria, children and electronic tagging

This one is the fact finding hearing, as to what the mother’s motivation was.

Re X (Children) (No3) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

First, let me recount the mother’s position at previous hearings (underlining mine for emphasis)

The mother’s case
An order made by Peter Jackson J on 22 April 2015 recorded the mother’s position as follows:

“The mother disputes that the threshold criteria is crossed. She says that she was intending to travel to Turkey with the children for the purposes of a legitimate family holiday. She says that although she understands why the Local Authority has intervened, her wish is for the children to be returned to her care as quickly as possible or for them to be placed with a member of their family. Once the children have settled in their current placement, she would also like to have increased contact with them so that this takes place more than twice per week.”
The mother disputed the local authority’s case as set out in the original Scott Schedule. Her position, as encapsulated in her response to the local authority’s allegation in paragraph 69 (paragraph 78 in the final Scott Schedule), was that “I am a practising Muslim. I do not regard myself as a radical fundamentalist and have no links or contacts with ISIS militants.”
The finding of fact hearing was at that stage listed to start before me on 29 June 2015. Shortly before, the mother’s counsel, Mr Karl Rowley QC, circulated a position statement on her behalf. This set out her position in relation to the findings sought by the local authority as being that:

“she does not seek to oppose the making of a finding that she was intending to attempt to enter Syria and live in territory governed by the Islamic State. That is not to say that she accepts the truth of the allegations but she does not wish to resist the making of findings on the balance of probability. In these circumstances she does not require cross examination of the local authority witnesses and does not wish to give evidence herself.”
That radical shift in her position gave rise to a certain amount of discussion in court when the hearing began on 29 June 2015. It was left that she would prepare and file a statement. The statement was circulated the next day, 30 June 2015. It represented another radical shift in her position. She acknowledged that she had not been fully open with the court and professionals. Her case now, in short, was (judgment, para 13) that:

“she had travelled to Turkey to meet up again with, and possibly marry, a man” – I shall refer to him as H – “she had met in this country collecting money for Syrian refugees and whom she understood to be a doctor in Turkey. She denied any intention of travelling to Syria and said “I do not agree with or support or favour anything ISIS do … and have no wish to be involved with ISIS in any way.””
That remains her stance.

The Local Authority therefore had to seek findings [again, underlining mine for emphasis]

The local authority’s case
As I have mentioned, the final version of the Scott Schedule is dated 17 October 2015 and now runs to 80 numbered paragraphs. Much of this sets out the “agreed context”. Paragraphs 13, 16-20, 22, 24-27, 32, 34b, 36-37, 39-44, 46-48, 51-53, 55, 57-76 and 78-80 contained the findings sought by the local authority which were disputed by the mother. In his final submissions, Mr Simon Crabtree on behalf of the local authority made clear that it no longer sought findings in relation to paragraphs 13-18.
The local authority’s case has seven strands, which can be summarised as follows. In support of its overarching case, the local authority relies upon what it asserts were:

i) The mother’s acquaintanceship with various individuals who, it is alleged, had travelled via Turkey to Syria in 2014 to take up arms with ISIS militants (paragraphs 19-27).

ii) Lies the mother told the children’s schools on 27 February 2015 about the reasons for their forthcoming absence from school (paragraphs 28-33).

iii) The fact that when stopped at the airport on 2 March 2015 the mother gave a false address (paragraphs 36-37).

iv) The fact that the family’s luggage, when searched at the airport, was found to contain a number of suspect items (paragraphs 39-48); as it is put (paragraph 39), “a large number of items^[1] not normally associated with any family holiday.”^[2] It is asserted (paragraph 48) that “There is a striking similarity between the items contained in the … luggage and a list of items a known ISIS operative asked a British recruit to bring to Syria with him (and in connection with the same the said recruit was found guilty of possessing items of use to terrorists).”

v) The fact that, when her house was searched, the items found included (paragraphs 76-77) “ISIS flags” and ‘to do’ lists, written by the mother, “which indicated that the writer of the list was moving and not intending to return.”

vi) The fact that the mother lied to the police when being asked the purpose of their trip (paragraphs 49-55). She described (paragraph 51) “a multi-faceted trip involving a combination of an adventure holiday, culture, sight-seeing and relaxation.”^[3]

vii) The fact that the mother’s most recent account, as I have summarised it in paragraph 10 above, is a lie (paragraphs 56-65).
This last part of the local authority’s case is further elaborated as follows:

i) It is said that she met no man in the circumstances she described or at all (paragraph 62). She has (paragraph 63) “manifestly failed to provide any tangible evidence as to his existence and cannot even produce a photograph of him, any contact details or even one of the electronic communications which she claims passed between them.” Furthermore (paragraph 64), “In so far as that man is not a point of contact she had in Turkey for another reason, he is a figment of her imagination.”

ii) As a separate point, it is said (paragraph 59) that, if her account was true, “it would reveal a mother who was unable to place her children’s needs before her own and that she was prepared to sacrifice her children’s stability, all they knew and their relationship with their father so that she could fulfil her own desire for a relationship with a man she hardly knew.” Furthermore (paragraph 60), if it was true “the extent of her intended folly is revealed by the fact that this man has literally disappeared without trace and left the mother unsupported at a time she needed it most.”

iii) It is alleged (paragraph 65) that “She has in essence, weaved this account around the notes secreted in the children’s underwear to try to explain away the manifest inherent improbabilities in her first version of events at the eleventh hour and in the face of a growing realisation that no Judge would on the totality of the evidence believe that first account.”
The local authority’s case is summarised as follows (paragraphs 66-74):

“The reality is, the mother, her own mother and her brother had no intentions of remaining in Turkey.

They intended to travel with the children from Istanbul to the Turkish border with Syria.

Once they crossed the border into Syria, they intended to join up with ISIS militants and to supply them with items of use to the group’s combative activities.

In all probability, they also intended to meet up with those … who had already travelled … to Syria via Turkey.

In essence, the mother’s plan was to take these children to a war zone.

As such, she knowingly and intended to place the children at risk of significant harm.

The sole purpose and intention was … to cross the border into Syria and take up arms with ISIS militants and/or live in the Islamic caliphate ISIS claims to have established in the region for the foreseeable future.

[Neither] she nor [her brother] had any intention of returning to [her house].

That is why she suddenly found the money to buy the above electronic equipment which with one exception she financed on credit in February 2015 and why [her brother] paid for the trip using a £12,000.00 loan.”
In conclusion, the local authority asserts (paragraphs 78-80) that:

“In short, the mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause.

Although she is arguably entitled to have whatever view she chooses, she is not however entitled to place her children at risk of significant harm or even death in furtherance of such a cause.

In furtherance of her aims and objectives, [she] is and was prepared so to do and to lie with impunity to conceal her real intentions and motives.”

Bearing in mind the two underlined passages, you may be surprised to learn that the President ruled that the threshold was not met, and the children are now living with mother under no statutory orders at all.

I have to say that mum’s counsel did a blinding job, but it is still a surprising outcome, on my reading.

What about the ISIS flag though?

Thirdly, he submits that the local authority has failed to show that the material recovered from the mother’s home was indicative of her holding such views or being sympathetic to ISIS. The flag is one that has been adopted by ISIS, but it contains the shahada and seal of the Prophet Mohammed, both of which, he says, are important symbols which all Muslims share. The local authority, he correctly points out, has failed to adduce any evidence to disprove the proposition that the flag predated the al-Baghdadi Caliphate, and the mother’s case that she received it from a bookshop some 12 years ago as a gift has not been seriously challenged.

[See, I’m NOT a Neo-Nazi, I’m just a collector of flags designed by dentists…]

Although the President was not satisfied with mother’s account, the burden of proof was on the LA and he was not satisfied that they had made out their allegations

The first point to be made is that, on her own admission, she is, even if she cavilled at the appropriateness of the label, a liar. The contrast between her original case, as I have summarised it in paragraph 7 above, and her revised case, set out in paragraph 10 above is obvious. If elements of her first story have been carried forward into the second, the two are nonetheless so fundamentally different that one or other must be essentially untrue. This is not mere suggestio falsi et suppressio veri; it is simply the telling of untruths, in plain terms lying. The notes to the schools were, on any basis, and wherever the ultimate truth in relation to the trip may lie, false to the mother’s knowledge. Mr Rowley characterises them (paragraph 66) as “ill-advised”. I cannot, with respect, agree. They involved the deliberate uttering of falsehoods. I am also satisfied, and find as a fact, that the mother did indeed give a false address when questioned by DS SH. And the allegations she made in the witness-box against the police were, in my judgment, and I so find, utterly groundless. On matters of fact I accept the evidence of each of the police officers. I cannot accept Mr Rowley’s submissions on the point (paragraph 68).
As we have seen, the mother put herself forward at the hearing as now being completely open, honest and frank. Was she? I am not satisfied that she was. I am unable to accept what she is now saying merely because she is saying it. Some of it may be true. About much of it I am very suspicious. Some of it may well be, in some cases probably is, untrue. But the fact that I am not satisfied that the mother was telling the truth, the fact that I am very suspicious, does not mean that I find everything she said to be a lie. And, as I have already explained, the fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
Be all that as it may, the plain fact is that the mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I am not satisfied that she is being now.

….

So where, at the end of the day, am I left? There are four key matters, in my judgment, which preponderate when everything is weighed in the balance, as it must be:

i) The mother is a proven liar. The mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I not satisfied that she is being now.

ii) H (if that is his true name) is someone known to the mother and who has some connection with Turkey. The mother has wholly failed to persuade me, however, either that she met H in the circumstances she describes, or that their relationship was as she asserts, or that the role (if any) he was to play in Turkey was as she says. I am unable to accept her as being either a reliable or indeed a truthful witness. The mother, in my judgment, has not proved her case in relation to H.

iii) The mother is an observant Muslim, but the local authority has been unable to prove either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist.

iv) The luggage contained a significant number of items which cry out for explanation in circumstances where the only explanation proffered by the mother is tied to her story about H which, as I have already explained, I am unable to accept.
It is for the local authority to prove its case. The fact that the mother has failed to persuade me of the truth of her case, in particular in relation to H, does not, as I have already explained, absolve the local authority of the requirement that it prove its case. And, for reasons I have explained and which Mr Rowley appropriately relied on, I must be careful to remember the Lucas point when I come to consider the inferences I can properly draw from the fact, to the extent I have found as a fact, that the mother has lied. The fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion. At the end of the day the question is whether in relation to each discrete part of its case, the local authority has established on a balance of probabilities, applying that concept with common sense, the proposition for which it contends.
Standing back from all the detail, and all the arguments, there are, at the end of the day, two factors of particular importance and which, unhappily, point in opposite directions. The mother, for her part, has not proved her case in relation to H, with the consequence that the only explanation she has proffered for the presence of various significant items in her luggage falls away. The local authority, for its part, has not proved either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist. Weighing these and all the other matters I have referred to in the balance, I am left suspicious of what the mother was really up to but I am unable to conclude that the local authority has proved any part of its case as set out in paragraphs 66-73 and 78-80 of the Scott Schedule.

It is very difficult to successfully appeal a finding of fact (the Court of Appeal vacillate from time to time as to whether you even CAN – because technically you appeal an order, not a judgment. In this case, the President did make an order – because he made NO order on the care proceedings or Wardship application, so the LA can appeal that). The Court of Appeal are very mindful that on a finding of fact hearing the Judge has the advantage of hearing all of the evidence and seeing the demeanour of the witnesses, so are reluctant to interfere.

Having said that, I’d appeal the hell out of this one. The order (which one presumes would have the effect of removing the electronic tags) is stayed until 18th December (oh, today), so we will soon find out whether an appeal has been lodged.

There’s a lot in the judgment about the contents of the luggage – the President kindly sets out the matters in a footnote. As indicated above, the President was not satisfied with either the mother’s account (of either a holiday, or that her new boyfirend H had wanted these things) or that the LA had proved that these matters amounted to evidence that mother intended to join up with ISIS

Note 1 Including, it is alleged, 9 battery powered or other powered torches, 4 hand-wound torches, 3 solar charger units or power-packs, 4 emergency blankets, 3 new and 2 used rucksacks, 5 mobile phones in excess of the 3 mobile phones chargers carried by the group as a whole, unused computer equipment comprising 6 machines (including 3 identical Samsung devices) and 5 chargers, 3 unused sim cards, 5 Multi-tools devices and power converters etc, what is described as “a large quantity of substantially if not entirely new size ‘large’ and ‘extra-large’ outdoor clothing including coats, waterproof bottoms, breathable t-shirts, gloves and so on”, what is described as “a large amount of medication and panty-liners and tampons”, and “telephone numbers, e-mail addresses and passwords … found on pieces of paper secreted in the children’s underwear in one of the suitcases.”

Note 2 It is further said (paragraph 42) that “By contrast, the luggage did not contain outdoor clothing of a sort which might have been associated with an adventure or camping holiday for (amongst others) 4 children”, (paragraph 43) that “Although there was a large quantity of large and extra-large outdoor clothing there was bar one piece, an absence of such clothing in sizes that would fit any of the children and in particular, X1”, and (paragraph 44) that “Those and most of the other supposedly camping equipment was or appears to be completely new.”

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Posted in assessment of risk, case law, international and tagged appeal, electronic tagging, isis, president, radicalisation, re X children no 3 2015, sir james munby, stay, taking children to syria. Bookmark the permalink.

Guidance on foreign surrogacy

Posted on December 10, 2015 by suesspiciousminds

Yet another High Court decision about international surrogacy.

Re Z (Foreign Surrogacy:Allocation of work: Guidance on parental order reports) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/90.html

This one throws up a lot of the issues that can go wrong with international surrogacy. The arrangements were all made, properly and legally in India. The commissioning ‘parents’ then found it impossible to come back to England with the twins until they had a Parental Order. But they in turn found it difficult to get a Parental Order, because there was uncertainty about whether the applicants needed to be present in England at the time of the application, whether the child’s ‘home’ had to be in England, and whether the parental order reporter had to go to India to observe the ‘parents’ with the child. In fact the parents had to leave the twins in India, deal with matters in Court and then get the twins from India, a sorry state of affairs.

Ms Justice Russell cuts through a lot of this with the guidance that applications for Parental Orders with an international element (where child is born outside of England and Wales) should henceforth be heard only in the High Court. They are also to be heard in London, where possible by Pauffley J, Theis J or Russell J, all of whom have been at the forefront of the most challenging cases of this nature and are well placed to resolve difficult issues.

Guidance In respect of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as referred to above).

i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.

ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child’s place of birth was outside of England and Wales should be allocated to be heard by a Judge of the Family Division.

iii) In London all cases should, if possible, be allocated to Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.

iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a Judge of the Family Division identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).

v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass (subject to their own guidance and the guidance below).

The President has seen paragraph [73] and has approved it.

On the particular issues that arose in this case :-

Do the parents need to be physically present in the UK to apply? No, they just need to be domiciled here.
Does the ‘home’ with the child need to be in the UK? No, and also it does not matter that the time the children were in a home with the applicants was not continuous. It needs to be at the time the application is made and again at the time that the order is made.

The child’s home must be with applicants at the time they made the application (Section 54(4) (a) HFEA 2008) and at the time the court is considering making the order. Although the twins had remained in India and at times were not being cared for there by the Applicants there was no issue in this case as the place the children were living was a home that was entirely arranged and provided for by the Applicants; moreover the commissioning father had returned to India in February and remained with the children until the whole family came to the UK in May 2015. Either or both the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man (sub-section (4) (b)). Domicile can be problematic in some cases as it is a peculiarity of English and Welsh law which is often confused with residence by applicants acting in person (and others). This was the matter with which the court was concerned in the case of Re G referred to paragraph 2 above. In the instant case, however, there was no such problem as both Applicants were born in England to fathers domiciled here and there was no evidence to suggest that they had not retained their domicile of origin. They were both over eighteen years old at the time the order was made and so meeting the requirements of s 54(5) HFEA 2008.

3. Does the parental order reporter, who carries out an investigation and reports to the Court need to see the applicants WITH the child? This seems obvious, but of course in a situation like this that would have involved the reporter (who no doubt has a heavy workload and an organisation not flush with cash) flying out to India. The answer is longer than the other two, but ultimately ‘yes’

Parental Order Report

The children’s guardian was prepared to consider making recommendations without having seen the children in the care of the Applicants in the UK in the exceptional circumstances of this case. She made it plain to the court that this was not her preferred option and it was her assumption that she needed to see the children at home with the Applicants. The only reason that Ms Dawe felt able to consider such a course was because there was what she described as “wealth of material” about the Applicants’ ability to parent K and the support that was available to the Applicants from their wider families. Ms Dawe accepted that parenting three children is different to one but was so concerned about the welfare of the babies stranded in India that she felt that it was an appropriate course for her to take. The role of the Cafcass officer/Cafcass Cymru/Parental Order Reporter and the extent and nature of their investigations was one issue in this case that I specifically sought assistance upon from Cafcass Legal and I am grateful to them for that assistance.
A specific issue raised in this case was whether it was necessary for the child or children who are subjects of applications for parental orders under s54 of the HFEA to be seen by the Parental Order Reporter for the welfare report to be properly prepared. The Human Fertilization and Embryology (Parental Orders) Regulations 2010 does not incorporate section 42(7) of the ACA 2002 which require a privately placed child to be seen by the Local Authority together with their adopter in their home, and the Explanatory Memorandum to the Regulations makes no reference to any such requirement. For the purpose of cases of international surrogacy it sets down the following about the acquisition of nationality or citizenship:

“Nationality

8.7. As a result of responses to the consultation, and to ensure parity with adoption legislation, the Parental Order Regulations 2010 now ensure that where a parental order is made in the United Kingdom and one or both of the commissioning couple are British citizens, the child – if not already so – will become a British citizen.”

The Court was referred to the Cafcass Guidance issued to Parental Order Reporters at the hearing on 18^th May 2015. This guidance did not require in terms that the parental order reporter sees the child, but since that guidance was issued, further work was undertaken within Cafcass as a result of which fact-sheets were produced for commissioning parents who are applying for parental orders and in the fact-sheet entitled “Parental Order Reporters” intended applicants are told that they will be seen by the parental order reporter with their child (my emphasis). These documents or fact-sheets were only just published within a few weeks of the final hearing of this case on 7th July 2015.
Ms Penny Logan of Cafcass Legal, who appeared before me and Ms Lakin, counsel on behalf of the children, both told the court that they were unaware of a case that had been reported where the parental order reporter has not seen the child. This was accepted by Ms Cronin on behalf of the Applicants. Ms Logan pointed out, and as this court is well aware, members of Cafcass Legal routinely act for High Court team guardians in cases where the children are parties. The court was reminded of the fact, well known to it, which is that the High Court team undertakes a large proportion of the parental order cases in the High Court and most of the international ones. Ms Logan told the court that she was unaware, through Cafcass, of any case reported or unreported, where the parental order reporter has not seen the child. Although this court is aware of one such instance in a reported case (see the reference in [86] below) it is difficult to imagine circumstances in which a parental order reporter could properly report on welfare without having seen the child with the Applicants. Ms Logan went on to inform the court she was, at that time, involved in another surrogacy case where determination of the application hade been delayed for a year for similar reasons.
It is accepted that it was never the preferred option of the guardian in this case that she would make recommendations in the absence of seeing the children with the Applicants in the UK. It is the experience of this court that applications for parental orders are made by commissioning parents who do not presently reside in this country (when one or both have a UK domicile). In such cases parental order reporters see children with commissioning parents/applicants when they visit this jurisdiction as in the case of CC v DD (supra) [2014] EWHC 1307.
In the instant case the guardian’s report amply demonstrates both the value and necessity of such observations in terms of the analysis of the welfare checklist set out in s.1 ACA 2002. While it would have been a matter for the court as to whether it would have made the order in the absence of this work in the circumstances of this case; I took the view that the parental order reporter had to have seen the children with the Applicants before the court could be satisfied about their welfare.

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Posted in cafcass, case law and tagged foreign surrogacy, HFEA, international surrogacy, parental orders, parental orders should be heard in the High Court, Russell J, surrogacy. Bookmark the permalink.

The lady who wanted to sparkle – follow up

Posted on December 6, 2015 by suesspiciousminds

You have probably heard that C, the lady I wrote about on Wednesday, where a Judge had decided that she had capacity to make her own decision to refuse treatment, that decision being in keeping with her unusual approach to life rather than being a sign that she lacked capacity to make the rational decision that almost all of us would have made, died this week.

The Press made an application to be able to name her. That’s a very tricky one. On the one hand there is transparency and this case has certainly attracted a lot of media interest (and frankly given the biographical details in the story, I’m sure that the Daily Mail with their resources can find out who C was in about 30 minutes of investigation). I don’t think this is prurient, I think there is some genuine public interest in the story and the issues, and of course a piece in a paper works far better when it is a real person not the letter C.

On the other, this case threw up very personal details in order to uphold C’s right enshrined in the Mental Capacity Act 2005 that everyone is assumed to have capacity unless proved otherwise and thus to refuse treatment unless proved they lack capacity – C did not bring the case to Court, she was brought into Court by the Trust and she won the case. So why should she be named when she did nothing whatsoever wrong in law? There are also the children to think of, one of whom is 15.

The final decision is not made yet, but an interim Reporting Restriction Order was made, preventing publication of the name until the matter can be properly litigated.

http://www.bailii.org/ew/cases/EWCOP/2015/83.html

I read in the week, sadly with bad timing on the day that I learned that C had died, the article in the Guardian by Zoe Williams. That article attacked the Judge and linked his decision with other very controversial outbursts by Judges – arguing that the Judge’s setting out of the history showed an inherent sexism. I felt that the article was ill-concieved and had missed all of the real substance of the case. I normally rate Zoe as a writer, so the tone of the piece, particularly the attack on C’s children surprised me.

http://www.theguardian.com/commentisfree/2015/dec/02/slur-woman-who-lost-sparkle-c-right-to-die-judgment-femininity-marriage

I then saw the piece by Lucy Series from The Small Places blog, that made me look at it in another way. I think this is the best piece of writing on C’s case and the issues that it throws up of ‘who are judgments written for in a transparency climate?’ and ‘should they be written in the same way as they used to be’?

The stories we tell

I wish I could write like Lucy does. I dash stuff off the way that Kerouac wrote “On the Road” – typing furiously, getting all of my thoughts on the page – Kerouac wrote so fast that he taped paper into one giant sheet to save him the distraction of having to stop and put a fresh sheet into the Hermes (and I’m reminded that Truman Capote famously said of his method “That’s not writing, that’s typing”). Lucy is much more the Truman Capote style of constructing the piece, making the words all do their share of the work, not having a sentence in that doesn’t say something important and say it in just the right way, and it being more like inspecting a gorgeous diamond from a variety of angles rather than listening to someone excitedly blurt out what’s on their mind. Hopefully, there’s a place for both Kerouac and Capote in legal blogging.

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Posted in case law, transparency and tagged court of protection, daily mail, reporting restriction order, v out of hours reporting 2015. Bookmark the permalink.

The Latvian case – the judgment is up

Posted on December 4, 2015 by suesspiciousminds

This is a follow-up from Monday’s piece, about the latest Christopher Booker outrage.

Police ignore Judge’s order , to help Latvian family escape social workers

You may remember that from Mr Booker’s account, the child had a small mark on his neck and another small mark, which led to social workers trying to snatch all of the children, and the parents instead fled with the help of Forced Adoption to another country.

You may also remember how incandescent Mr Booker was that the Local Authority couldn’t be named because of a gagging order.

Eleven days ago, the second oldest child of Russian-Latvian parents working in a town I cannot name for legal reasons was seen by a teacher to have a small mark on his neck. When the school reported this to social services, an examination revealed another slight mark on his leg. The family found itself plunged into an inexplicable nightmare

In this latest case of the family that got away (but which Judge Duggan does not allow us to name), the conduct of the Irish and Latvian police seems yet further evidence of just how little confidence foreign authorities now have in the fairness and legality of Britain’s increasingly notorious system of “child protection”.

The judgment is now up. Is it an “inexplicable nightmare”? Does child protection in Booker’s sub-headline need his air-quotes around it to show that it was no such thing?

Blackburn with Darwen Borough Council and Flight to Latvia 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B189.html

The eagle-eyed reader may spot that the name of the Local Authority is in the name of the case, rather than being prevented from being known because of a gagging order. There is no gagging order. The usual restrictions on naming the children apply. [“Ah,” Booker defenders are saying already, “that’s only because Booker called them out on it, so they had to back down.”]

The written evidence available to me indicates that on 12^th November 2015 D was seen at school with a burn mark on his neck and another mark on his thigh. The appearance suggested injury with a rope. He said his father was responsible for the neck, an injury inflicted, he said, with a belt. He said his mother was responsible for the injury to the thigh. N was examined and was found to have bruising to the cheek for which he does not appear to have provided an explanation.
The parents have been seen. The father says that the injury to the neck was caused by him in unclear accidental circumstances which I am afraid need more explanation. The mother said that the injury to N’s cheek arose from an incident in school but on investigation the only relevant incident at school concerned the oldest child. The parents agreed with Police and local authority that while investigations took place, the children’s safety would be ensured by their temporary residence with the grandparents. This was implemented but on 19^th November 2015 the children did not turn up for school and enquiries revealed that the parents had removed the children from the grandparents the previous evening and left the district. It is a concern that the grandparents, who have been entrusted with responsibility for the safety of the children, did not see fit to draw this development to the attention of the local authority.

Now, let me be clear. We have here marks to a child’s neck. The child says that the father hit him with a belt. The father says there was some sort of accident, the mother says it happened at school. Three competing accounts. The parents did not attend Court to give their accounts, or ask their lawyers (who would have not have cost them a penny) to cross-examine witnesses and to refute the claims. It might well be that if all of the evidence had been tested, that the Court would have decided that there was no deliberate injury to the child. So this judgment is not PROOF that the father hit the child with a belt – but it does meet the test to be considered by the law – were there reasonable grounds to believe that the father had hit the child? Given that father and mother chose not to come to Court to tell the Court the truth, the Court would be left with little choice but to consider there were reasonable grounds to believe that the child had been harmed.

The social workers had not believed the parents accounts and had believed the child. They had made arrangements to keep the children safe within the family whilst investigations took place. Those arrangements were breached. The social workers went to the Court, to say “We think the children aren’t safe and we would like an order to protect them”.

The parents were able to come to Court with free lawyers to give their account and to say that the children would be safe, and an independent Judge would hear both sides of the case and make a decision – that decision being on the principles that :-

(a) It is for the Local Authority to prove harm, not for the parents to prove their innocence

(b) Even if the child had been harmed, the Court would still look at what measures short of removal could keep the child safe

(c) An order for removal would only be made if it was necessary to keep the child safe, and would only be whilst assessments were carried out over a period of time to see if the parents could make changes.

I would like to ask Mr Booker what actions he thinks social workers ought to take instead of this if they are told by a child that his father hit him round the neck with a belt? Because it seems to me that the alternative is to do what Mr Booker did, and assume that the parents did not do it. And I’m fairly sure that if they got that wrong and the child suffered further injuries, the Daily Telegraph would not be leaping to their defence. I’m fairly sure that the Daily Telegraph wouldn’t be putting air quotes around child protection then – they’d be saying, and rightly so, “This child told you that his dad hit him round the neck with a belt and you did NOTHING to keep him safe. Your job was to protect that child, and you didn’t do it”

If a social worker thinks that a child has been deliberately injured and can’t keep the child safe whilst investigations take place, putting the matter before the Court is the safe and fair thing to do. It is not an ‘inexplicable nightmare’

The alternative is that people just take a guess as to what happened to the child. Maybe the child made it up, in which case the family are safe and happy in Latvia. Maybe the child really was hit by his father, in which case it isn’t great that the parents were helped to leave the country with the children.

Which is it?

I don’t know. And you don’t know. And Ian from Forced Adoption doesn’t know. And Christopher Booker doesn’t know.

I’d suggest that perhaps given that none of us know, and that the risk of guessing and getting it wrong is big either way, that the best way to make that decision is for an independent Judge to do it, having heard evidence from both sides, not just one.

Do Judges get it right all the time? No, sadly. I write about these cases all the time. And social workers don’t get it right all the time either. And nor do doctors, or teachers, or anyone. It might well be that this child made it up and is quite safe with mum and dad. We just don’t KNOW.

But you see the difference between a Judge deciding, and Christopher Booker deciding what happened, is that (a) The Judge hears BOTH sides (b) The Judge hasn’t made their mind up who to believe before you even start and (c) If the Judge gets it wrong, the decision can be appealed and put right. What’s the appeal process for Christopher Booker deciding that this child is safe with mum and dad? And if we have Christopher Booker deciding what’s going to happen in these cases, what stops Katie Hopkins doing it?

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Posted in assessment of risk, case law and tagged Blackburn with Darwen Council and Flight to Latvia 2015, booker, christopher booker, emergency protection order, Flight to Latvia, forced adoption, his honour judge duggan. Bookmark the permalink.

A life that sparkles

Posted on December 2, 2015 by suesspiciousminds

This is a discussion about the decision in King’s College Hospital NHS Foundation Trust v C 2015

http://www.bailii.org/ew/cases/EWCOP/2015/80.html

It is a Court of Protection decision about whether a woman C, who medical professionals all agreed needed to undertake kidney dialysis treatment in order to survive, should be able to refuse such treatment or about whether the Court should make the decision on her behalf. It is very sad, because what we are discussing here is (a) whether C will live or die and (b) why she might feel that life was no longer worth living for her. She has a family who would greatly miss her if she were to die, and it is a case that has a lot of human tragedy. It also though, stirred up a lot of other feelings for me when I read it – there’s sadness absolutely, but it also has some more uplifting things to say about human spirit and how people can choose to live their lives outside of the norm.

The Judge was MacDonald J. The case was obviously decided under the Mental Capacity Act 2005 principles – the key ones being that

(a) A person who has capacity is allowed to make decisions that would be bad for them and that someone else would not make if they were in their shoes

(b) The law’s starting point is that everyone is assumed to have capacity unless there is evidence to the contrary to prove that they do not

(c) There are specified factors to consider in assessing capacity – a person’s ability to understand the issue, to weigh up the various factors, to retain that information and to reach a decision. And a person can and should be helped with all of those issues

(d) If a person lacks capacity, the Court would then make a decision as to what they considered was in C’s best interests

(e) A Court cannot compel doctors to deliver treatment, but simply authorise them to deliver the treatment in the absence of consent if it is in C’s best interests.

Background then

C is a person to whom the epithet ‘conventional’ will never be applied. By her own account, the account of her eldest daughters and the account of her father, C has led a life characterised by impulsive and self-centred decision making without guilt or regret. C has had four marriages and a number of affairs and has, it is said, spent the money of her husbands and lovers recklessly before moving on when things got difficult or the money ran out. She has, by their account, been an entirely reluctant and at times completely indifferent mother to her three caring daughters. Her consumption of alcohol has been excessive and, at times, out of control. C is, as all who know her and C herself appears to agree, a person who seeks to live life entirely, and unapologetically on her own terms; that life revolving largely around her looks, men, material possessions and ‘living the high life’. In particular, it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C’s words, ‘sparkles’.
With respect to youth and beauty, her daughter V states that just as C has never seen herself as a mother, she has never seen herself getting old. Upon being diagnosed with breast cancer in December 2014 when aged forty-nine V relates that C expressed the view that she was “actually kind of glad because the timing was right”. It is recorded in C’s medical notes that she did not want to discuss the benefits and risks associated with chemotherapy but was “keen not to have any change in size or deficit that will affect her wearing a bikini”. She refused to take medication prescribed for the disease because “it made her fat”. There appear to have been no concerns expressed regarding C’s capacity in this context.
C’s preoccupation with not getting old also manifested itself in other ways. Upon learning that her daughter G was pregnant C’s reaction was, says G, one of anger in circumstances where this meant she would be a grandmother and made her feel “past her sell-by date”. Within the foregoing context, in her statement V relates that C has often said over the years that she wanted to “go out with a bang” and has been firm in her conviction that, with regard to growing old, she “just would not let it happen”.
C’s emphasis on money, material possessions and ‘living the high life’ is also well established by the evidence in this case. From the history of her four marriages provided by V it would appear that C has, over the course of those four marriages, considered a downturn in the financial fortunes of her husbands an entirely reasonable ground for moving on and has taken requests that her spending be curtailed or limited to be unreasonable. The value that C places on wealth and possessions is further demonstrated by her statement to V that, her fortunes having suffered a downturn in recent times, she does not want to “live in a council flat” or to “be poor”.
Despite her patent faults C is dear to her daughters. V relates that she and G have learnt to accept their mother for who she is: complexities, seeming contradictions, blind spots, self-centred and manipulative behaviour, excruciating honesty and all. V tells me that she has accepted that there is no point in trying to make C a ‘typical mother’ in the same way she could not have been a ‘traditional wife’ to her four husbands. She is who she is says V and summarises the position as follows:

“My mother’s values, and the choices that she made have always been based on looks (hers and other people’s), money, and living (at all costs) what she called her “sparkly” lifestyle…her life was, from her point of view, a life well lived. I have never known her express regret, or really to take responsibility for anything, including the choices she has made”.

Sadly, as C got older, she had health problems, and this substantially affected her emotional state and her outlook on life, leading her to take an overdose. The overdose did not kill her, but it caused substantial damage to her organs, which led to the need for dialysis treatment, which would be life-saving.

Over the past year the progress of C’s life has, sadly, followed a trajectory that has moved away from what she terms her “sparkly” lifestyle. As I have already noted, C was diagnosed with breast cancer in December 2014. She underwent a lumpectomy in January 2015 and radiotherapy in March 2015, with treatment concluding in May 2015. C has said that, understandably, this placed her under some stress. In August 2015 C experienced the acrimonious breakdown of a long term relationship. This also resulted in the loss of her business and the financial security attendant thereon, the loss of her home and the generation of significant debt. C was also the subject of arrest and criminal charges arising from an incident that occurred during the breakdown of her relationship. This situation is described in the report of Dr R as exposing C to ‘back to back psycho-social stressors’.

On 7 September 2015 C attended V’s house and asked where her Veuve Clicquot was. Later that day C attempted to commit suicide. The attempt was premeditated and planned. C went to a beach and took sixty paracetamol tablets with champagne. The attempt was not successful (C later told her daughters that she “royally cocked it up”). When C awoke she became worried about the pain that she might suffer and called her general practitioner who advised her to call an ambulance. She was admitted to a local hospital for urgent care and subsequently transferred to King’s College Hospital on 29 September 2015. Whilst at the local hospital V relates that C stated that she would try to kill herself again and that she was adamant that she wanted to die.

The consequences of C’s attempted suicide have been grave and are described in detail in C’s medical records and in the statements of Dr L, liver consultant and Dr S, consultant nephrologist. In summary, as a result of her paracetamol overdose C suffered an injury to her liver and an acute injury to her kidneys. Since admission to hospital C has, consequently, required renal replacement therapy. That therapy was provided initially by a ‘filtration’ machine and thereafter by intermittent haemodialysis for four hours three times per week.

Following a period of intensive treatment after the overdose, C made slow but progressive improvement in her liver function. However, an improvement in her kidney function has yet to occur with her kidneys showing no signs of significant recovery. Dr L is clear that the ongoing care of C is now predominantly supportive in nature save for the essential requirement of kidney dialysis. The anticipated duration of that treatment is from a minimum of six weeks up to a maximum of several months. As at 6 November Dr L was of the view that the outlook for C’s kidney function was unclear but that, generally, her doctors anticipated a recovery in due course. Dr L described the view regarding C’s kidney function on that date as ‘cautiously optimistic’.

In a statement dated 9 November 2015 Dr S observes that the ‘overwhelming majority’ of people who suffer an acute kidney injury as a result of a paracetamol overdose recover independent kidney function, usually within four to six weeks. However, he further notes that in circumstances where C is now nearly nine weeks from her overdose, arriving at a confident prognosis is made more difficult. In C’s medical records Dr S is recorded as informing C on 5 November 2015 that her prognosis remained unpredictable and that, even were the damage to her kidneys to be potentially reversible, the prognosis would remain uncertain.

In his statement Dr S explains that the most likely explanation for the current state of C’s kidney function is a combination of paracetamol related kidney injury, severe liver injury and several episodes of infection requiring antibiotic treatment, and that the most likely outcome remains that C will recover independent kidney function over the course of several months. Dr S however makes clear that it is possible that C has sustained irreversible damage to her kidneys in the form of cortical necrosis. The way to establish definitively whether this is the case for C would be to perform a kidney biopsy. At present however this is a high risk procedure due to C having abnormal blood clotting levels as a result of her liver injury. A kidney biopsy will become less risky as C’s liver recovers.

Dr S states that C may well be left with an element of chronic kidney damage. Within this context, if C recovers kidney function to the point where she does not need renal replacement therapy then Dr S would expect C’s kidney function to have minimal effect on C’s ability to continue as she had prior to the overdose. However, if C does not recover kidney function Dr S is clear that she would require regular renal replacement therapy in order to stay alive. The options for such replacement therapy would be a continuation of the haemodialysis that C currently has, peritoneal dialysis or a kidney transplant.

In an updating statement dated 11 November 2015 Dr L opines that C’s prognosis “remains excellent with survival fully anticipated”. Dr L records that restoration of C’s liver function to normal is anticipated within a four to six week period. Dr L further records that C’s kidney function has still yet to recover but anticipates an 85 to 95% chance of this occurring having regard to the progression seen in a large majority of similar cases. However, like Dr S, Dr L acknowledges that, with the passage of time, the likelihood of full recovery diminishes. Dr L estimates that if C is not fully recovered within a period of three months, later recovery is unlikely, with the chances of delayed restoration after three months estimated at less than 20%. In such circumstances C would require long term renal replacement therapy.

Dr S makes clear that if C does not have further dialysis and continues to have minimal kidney function, she will become progressively unwell as levels of potassium and acid in her blood increase to dangerous levels. These levels will typically become life threatening between three and seven days following the last haemodialysis session. If C drinks during this period then she will also endure fluid build up on her lungs and insufficient oxygen in her bloodstream as a result. The risks of a sudden cardiac event or deterioration will increase after more than three days without dialysis. If C’s kidney function remains poor and she passes very little urine, it is likely that C will die within five to ten days of having no dialysis. C would become progressively drowsy and possibly confused after several days although a sudden cardiac arrest and death is possible at any point.

Were doctors to have to force C to receive dialysis against her consent Dr S makes clear that this would be a significant undertaking. He states that were doctors to attempt to administer dialysis to C in circumstances where C took measures to try and stop such treatment the treatment would immediately become unsafe for C (and potentially for medical staff). In such circumstances, Dr S makes plain that in order to dialyse C against her will she would need to be sedated with that sedation being heavy enough to render her, essentially, unconscious for the duration of the dialysis. In order to achieve this safely the procedure would need to be undertaken in a high dependency setting. There are, of course, risks associated with heavy sedation, including respiratory depression and low blood pressure which may in turn necessitate further intervention including intubation and ventilation. Finally, Dr S states that a person seeking to avoid dialysis may remove the dialysis tubes when able to do so, resulting in the need to insert a dialysis tube into a large vein each time and under sedation. There is a risk of bleeding and infection each time this is done, which risk is significantly increased in C given her abnormal clotting. There is also a risk of damage to veins, thereby increasingly restricting venous access. Dr S opines that the minimum frequency of dialysis in this context would be once every five days, although the risks of a sudden cardiac event or deterioration increase over time after more than three days without dialysis.

It is within the context of this background C now refuses to undertake further haemodialysis. The parties are agreed that I should deal with the issue of capacity only at this stage. Accordingly, as set out above, the issue for the court is whether, at this time, C has the mental capacity to decide whether or not to consent to the life saving treatment that her doctors wish to continue to give her.

For most people, if doctors told them that they needed to have treatment which would work and would largely return them to health within about 6 weeks but that they would die if they didn’t have it, they would have the treatment. But C is not most people. And the tests are not whether ‘most people’ would do something, but whether C lacked capacity to make such a decision.

There were three capacity assessments. The first two concluded that C lacked capacity to make the decision and that her decision not to undertake the treatment because she did not want to live a life that she would consider ‘intolerable’ was an irrational one, possibly as a result of a Personality Disorder. The third concluded that she did have capacity to make the decision, which was one that others might not have made but that she had weighed up as being the right one for HER. The complication with the third was that shortly before it, C had been given some strong medication

Although at a point where she had been administered a synthetic opiate pain killer some two hours previously, C told Dr Stevens on 10 November 2015 that “I know that I could get better; I know that I could live without a health problem, but I don’t want it; I’ve lost my home; I’ve lost everything I’d worked for; I’ve had a good innings; it’s what I have achieved.” Further, Dr Stevens records in his report (although it is not reflected in his contemporaneous notes) that C:

“made very clear to me that she understands and has retained the information that her liver is making a good recovery and that her kidneys are recovering, albeit more slowly, such that her doctors wish her to undergo thrice weekly haemodialysis for some months to come. C also understands and has retained the information that her doctors expect her kidney function to recover such that haemodialysis can be discontinued at some point in 2016 and that her medical quality of life can be expected to improve thereafter. In response to my further exploration, C told me that she had thought a great deal about her medical condition and that, despite appreciating that she has been given a good prognosis, she remains steadfastly determined to die as soon as possible.”

I had better make it plain that looking at it objectively, the life that C could live after treatment would not be considered by 99.9% of the population to be ‘intolerable’ – this was not a case where the person’s freedom of movement would be restricted or that her mental faculties were ebbing or flowing away, or that she would be in physical pain or distress. This was a very person specific view.

C’s daughter puts it very very well

“As I have said above, my mother would never have wanted to live at all costs. Her reasons for trying to kill herself in September and for refusing dialysis now are strongly in keeping with both her personality and her long held values. Although they are not reasons that are easy to understand, I believe that they are not only fully thought through, but also entirely in keeping with both her (unusual) value system and her (unusual) personality. Her unwillingness to consider ‘a life she would find tolerable’ is not a sign that she lacks capacity; it is a sign that what she would consider tolerable is different from what others might. She does not want any life that is on offer to her at this stage. Put bluntly, her life has always revolved around her looks, men, and material possessions: she understands that (as put to her by Professor [P]) other people have failed relationships, feel sad and continue living, but for her, as she has said, she doesn’t want to ‘live in a council flat’, ‘be poor’ or ‘be ugly’ (which she equates with being old). As is set out in the notes, she truly means it when she says ‘I have lost everything this year’, and that being the case, she doesn’t want to accept any of the options on offer to her as – as she sees it – an ‘old grandma’, even were her kidneys to fully recover. ‘Recovery’ to her does not just relate to her kidney function, but to regaining her ‘sparkle’ (her expensive, material and looks-orientated social life) which she believes she is too old to regain. Again, the references in the notes to her talking about being ‘sociable, hosting parties and going out with the girls’ are fitting: to those who know her well, her entire identity has been built around being a self-described ‘vivacious and sociable person who lives life to the full and enjoys having fun'”.

With that in mind, was her decision a result of the Personality Disorder that all three experts agreed that she had (or had traits of), or was it a logical extension (for her) of her actual Personality – the choice entirely in keeping with the choices that she had made about the way she wanted to live her life?

It was very finely balanced – how can you really unpick how much this decision is part of a Personality Disorder and how much it is C being unusual but consistent in that unusualness ?

SUBMISSIONS

On behalf of the Trust Mr Horne concedes, very properly, that this is a finely balanced case that sits close to the border that runs between an individual with capacity making an unwise decision and an individual lacking capacity to make the decision in question.
On balance the Trust submits C lacks the capacity to decide whether or not to receive dialysis on the basis that she is unable to use and weigh information relevant to the decision as part of the process of making that decision. Specifically, the Trust submits that the examples given by Dr R show that (a) C lacks belief in, and is unable to use and weigh her positive prognosis and (b) that C is unable to contemplate a future that includes her recovery, having closed her mind to this. The Trust submits that this constitutes an inability to use and weigh information for the purposes of s 3(1)(c) and that this inability is because of the impairment of, or a disturbance in the functioning of, the mind or brain for the purposes of s 2(1) comprised of the personality disorder diagnosed by Professor P and Dr Stevens. In the words of Dr R, the Trust submits that C’s decision to refuse treatment is not reached with significant using and weighing of information demonstratively ending with a balanced, nuanced, used and weighed position constituting a capacitous but objectively assessed unwise decision. Again, the Trust submits that this situation is arrived at because of the personality disorder under which C labours.
By contrast, having heard the oral evidence received by the court at this hearing the Official Solicitor submits that C does have capacity to decide whether or not to refuse treatment.
The Official Solicitor submits that the evidence in this case points not to C being unable to use and weigh information concerning her prognosis and future but, rather, to C taking into account that information and choosing to give it no weight as against other relevant information more important to her in the context of her outlook and values when coming to her decision. Within this context, citing Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP) the Official Solicitor submits that, even were the court to consider C’s approach to her prognosis as overly rigid or ‘black and white’ C has given many other valid reasons for refusing treatment more important to her than her prognosis, which reasons evidence capacitous decision making within the context of her particular outlook and belief system. In any event, the Official Solicitor cautions the court against characterising C’s attitude towards her prognosis as rigid, or ‘black and white’ or irrational in circumstances where that prognosis remains uncertain and is worsening the longer C goes without her kidneys showing any sign of recovery. Were the court to conclude that C is unable to ‘use or weigh’ information relevant to the decision, the Official Solicitor further submits that the Trust cannot establish a causal link between this inability and C’s personality disorder in circumstances where the inability in question could equally be attributed to C’s belief system or stubborn character.
The submissions made on behalf of V are akin to those made on behalf of C by the Official Solicitor. V contends that her mother has the capacity to decide whether to accept treatment.
V submits that the Trust places the test for capacity too high by demanding from C a closely reasoned “balanced, nuanced, used and weighed position” in respect of her medical prognosis. V submits that on a proper application of the criteria set out in the 2005 Act the evidence before the court shows C has made a clear and capacitous decision, which decision she has maintained, after using and weighing the information relevant to that decision in accordance with her particular outlook and values. Thus, V submits, C has reached a clear and reasoned decision by giving weight to the factors that are important to her (a risk of a life lived on dialysis that is unacceptable to her, a risk of long term disability that is unacceptable to her, exhaustion with treatment and her wish not to endure further weeks or months of the same, her wish not to continue to endure the symptoms and pain associated with treatment, the risk she will not be able to attain her former “sparkly” lifestyle, her desire not to get old and lose her appearance and her wish to attain her original goal of ending her life) and no weight to the factors that are not (namely, the possibility that she might recover to a point where she can live without dialysis, the possibility of a future life that is ‘tolerable’ and the impact of her death on those who care for her) within the context of her (very unusual) set of values and outlook. V submits that this is the very essence of a capacitous decision. Again, were the court to conclude that C is unable to use and weigh information relevant to her decision, V submits that the Trust cannot establish a causal link between this inability and C’s personality disorder in circumstances where the inability in question could equally be attributed to C’s belief system and stubborn character.

At this point when I was reading the case, I didn’t know how it would be decided, but on a personal level I was hoping that C would succeed. Not that I think it is objectively right for her not to have the treatment, but that this is a decision that everything I had read of her life told me that she would have made for herself, and personal freedom and autonomy is such a vital thing. You may think otherwise – I think it is potentially quite a divisive issue.

DISCUSSION

In this difficult case I have come to the conclusion that, on balance, C does have capacity to decide whether or not to receive dialysis. My reasons for so deciding are as follows.
The first question for the court is whether the Trust has established on the balance of probabilities C is unable to make a decision about the matter in hand having regard to the matters set out in s 3(1) (the so called ‘functional test’). The Trust accepts that C is able to understand the information relevant to the decision, to retain that information and to communicate her decision. In relation to the remaining element of the functional test I am not satisfied that the Trust has proved to the requisite standard that C is unable to use and weigh the information relevant to the decision in question.
Notwithstanding the submission of the Trust, I am not satisfied that C lacks belief in her prognosis or a future that includes her recovery to the extent she cannot use that information to make a decision, or that C is unable to weigh her positive prognosis and the possibility of a future recovery in the decision making process. In my judgment, the evidence in this case, when viewed as a whole, is indicative of C acknowledging that her prognosis is positive, that there is a possible future in which she survives and of her weighing that information in her decision making process.
The entries in the medical records which I have referred to above show that C has, on a number of occasions over the span of her treatment, tacitly acknowledged that her prognosis is positive if she maintains treatment and has weighed that against other factors.
For example, on 29 September 2015 the rationale expressed by C for refusing treatment was that she believed she may need dialysis for the rest of her life, saw a bleak future if she could not have a life of socialising, drinking and partying with friends, that getting old scared her both in terms of illness and appearance. C was recorded by Dr O (Liver SHO) as being clear in her understanding that without dialysis, adequate nutrition and treatment of her liver she would die and, within that context, as being able to take in the medical advice and fully understood the risk of refusing treatment. Following interventions from her father and a friend on 29 September, C changed her mind and consented to treatment. It is clear from the medical records that C appears, with the assistance of her father and her friend, to have undertaken an exercise of using or weighing information as it is recorded that an hour was spent talking to C about her grave medical condition, her chances of recovery, and her prognosis for the future.
On 1 November 2015 C stated that she did understand that she would die if she stopped dialysis and this would not necessarily be pleasant. She is recorded as listening to the positive prognosis and quality of life on long term dialysis following which C said she understood it but that her ‘heart is not in it’.
On 2 November C stated that she felt fed up and exhausted, was hoping her kidney function would improve in 6 weeks but it hadn’t, could not imagine herself dependent on dialysis, felt it would be pointless to continue if she could not recover to a functional level where she could continue with her previous lifestyle, felt she did not have the mental health to continue with the treatment and therefore she was determined not to continue with the treatment. C is recorded as having understood that this would shorten her life expectancy.
On 5 November 2015 Dr R recorded C reasoning her position as follows, “C states she remains adamant that she does not wish to continue with dialysis treatment. The reasons, as she tells me, are that she has never wanted to have it (despite many weeks of engaging), she has acquiesced rather than engaged enthusiastically. Now she finds it painful, exhausting and she has had enough. She states she knows she will die as a result of not having it”.
On 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. When speaking to the representative of the Official Solicitor on 10 November 2015 C acknowledged the possibility that her kidneys will recover, saying “I am not prepared to wait for the possibility that my kidneys will get better”. On 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. When Dr R spoke to C about being able to envisage a future when she was back on her feet again with no line in her neck and no pain C is recorded as saying “they have told me before that I would do that and I am still here”… “I can’t go on like this for months and months or forever.”
There is also evidence before the court of C expressly acknowledging her positive prognosis and weighing the same. On 3 November 2015 V recalled that in deciding not to continue with treatment following the MDT meeting on that day C “had clearly used the time to consider the prospect of having what Professor P described as a ‘tolerable life’, and decided that, although with the more optimistic prognosis, it required some thought, she still did not want to live.” More generally V was clear in her evidence that C “repeatedly told us that she didn’t care whether her kidneys improved or not, and that she had thought about it, and that she wanted to die regardless. She – in the full knowledge that it was entirely possible that she might make a full recovery – said that if her kidney function improved, and she were discharged, that she would ‘throw [herself] under a train'”. No party sought to suggest that V was mistaken in her recollection of these conversations. On 10 November 2015 C told Dr Stevens that “I know that I could get better; I know that I could live without a health problem, but I don’t want it”. Dr Stevens states in his report that she “made very clear to me that she understands and has retained the information that her liver is making a good recovery and that her kidneys are recovering, albeit more slowly, such that her doctors wish her to undergo thrice weekly haemodialysis for some months to come. C also understands and has retained the information that her doctors expect her kidney function to recover such that haemodialysis can be discontinued at some point in 2016 and that her medical quality of life can be expected to improve thereafter.” Whilst there are difficulties with Dr Stevens’ report overall, I am prepared to accept that his recording of what C said to him is accurate, and indeed no party suggested otherwise.
I of course accept that there have been a number of occasions where C has appeared to reject out of hand her positive prognosis, in particular in conversations with Dr R on 29 September, 20 October, 3 November, 5 November, 9 November and 10 November 2015.
However, in my judgment it is important to place these statements by C in their proper context. In particular, they must be placed in the context of the other occasions, as summarised in the preceding paragraphs, when C has acknowledged her positive prognosis and weighed the same either tacitly or expressly. Thus, for example, whilst Dr R considered that on 29 September 2015 C was compromised by “very rigid thinking style and her distorted cognition such as black and white thinking and catastrophic thinking e.g. that she will forever require dialysis and will never recover to a stage where she can live an independent life again”, as I have noted, on the same day C was recorded by Dr O as being clear in her understanding that without dialysis, adequate nutrition and treatment of her liver she would die and, within that context, as being able to take in the medical advice and fully understood the risk of refusing treatment. Further, C was recorded as appearing to have capacity on that date. Likewise, whilst telling Dr R on 10 November that “there is no hope ‘a tiny sliver of hope’ as she put it today, that she will get better” she told Dr Stevens on the same day that “I know that I could get better; I know that I could live without a health problem.” In this regard I recall G’s evidence that her mother’s response to professionals will, in G’s experience, depend on whether she considers them to be ‘on her side’ (part of her ‘charm team’ as C styles that group) or not and that Dr R was not considered to be part of that ‘team’.
Further, in my judgment C’s more categorical statements regarding her prognosis, and the question of the extent to which they demonstrate an inability to use and weigh information regarding the same, must also be placed in the context of the information that she was receiving during this period with respect to that prognosis.
Central to both the opinion of Dr R and the opinion of Professor P that C lacks the ability to use and weigh information relevant to her decision is C’s alleged rigid and insistent rejection of her prognosis within the context of consistent optimism in this regard expressed by her treating doctors, characterised by Dr L’s statement on 9 November 2015 that C’s prognosis “remains excellent with survival fully anticipated”. However, I am not satisfied that the medical records bear out the assertion that C was, in fact, receiving uniformly positive and reassuring information concerning her prognosis (most especially in relation to the likelihood of her being able to live a life without dialysis).
At the time C was said to have “an overvalued idea that her quality of life will not improve” on 25 September 2015 and at the time she refused dialysis on 29 September 2015, according to her medical records by that date she had, at best, received a guarded opinion to the effect that her prognosis was uncertain. When on 20 October 2015 C is recorded as stating that she does not want a life dependent on dialysis and of poor quality and apparently dismisses the medical opinion that she has every chance of making a good recovery and leading a fulfilling and normal life, she had the day before been told by Dr V only that there was a “possibility she may” get better and a “possibility she could” return to a degree of normality. Whilst On 3 November 2015, when C again refused dialysis, Dr R was concerned that the main driver of C’s decision appeared to be her categoric belief that the timescale given to her for recovery had passed and that C considered that this meant she would not recover and did not want a lifetime of dialysis, the day before C had been told by Dr N that that no-one could predict how long it would take to recover and no one could tell for sure to what level of function she would recover. On 5 November, when Dr R was concerned that C was stating that “she believes she has no hope of recovery as she is now through the period of expected recovery as described to her. She is unflinching in her belief about this”, according to the medical records Dr L appears to have told C that dialysis may not be a permanent situation and Dr S confirmed to C that there was no evidence of recovery so far and, accordingly, the prognosis was still unpredictable and remained uncertain even if the damage was potentially reversible.
Having regard to the foregoing summary, it is clear from the medical records that C was, entirely understandably, not receiving uniformly positive and reassuring information concerning her prognosis, both generally and in relation to the likelihood of her being able to live a life without dialysis. Whilst it is the case that on occasion C received a very positive assessment of her prognosis after incidents of refusing treatment (for example on 29 September 2015, on 21 October 2015, when Professor G explained in the presence of C that “we feel that the patient should get better very soon and that they [her kidneys] could improve any day now” and on 3 November 2015, when Professor G told C that her prognosis was good and that she could “be out with a drink in your hand by Christmas) it is not in my judgment accurate to characterise the prognosis C was being given as consistently positive. Her more categoric responses in respect of her prognosis must in my judgment be seen in this context when determining whether they are probative of an inability to use and weigh her prognosis in her decision making.
Further, in my judgment it is also important in this case not to confuse a decision by C to give no weight to her prognosis having weighed it with an inability on her part to use and weigh that information.
It is clear that on occasions C’s has expressed herself in terms of categorically rejecting her prognosis in a way which gives the impression that she does not believe or accept that prognosis. However, on other occasions it is clear that her rejection of her prognosis is the result of her having considered it and given it no weight as against other factors more important to her. Thus, on 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. As I have noted, C told Dr Stevens on 10 November 2015 that “I know that I could get better; I know that I could live without a health problem, but I don’t want it” and that “she had thought a great deal about her medical condition and that, despite appreciating that she has been given a good prognosis, she remains steadfastly determined to die as soon as possible.” Later she told the representative from the Official Solicitor that “They are doing their best to do everything they can for me and unfortunately that is not what I want” and “I know they need to save lives. But I’ve chosen a different route.” As noted, V recalls C telling her on a number of occasions that “she didn’t care whether her kidneys improved or not, and that she had thought about it, and that she wanted to die regardless.”
In my judgment these exchanges, and some of those outlined further above, are more consistent with C acknowledging her prognosis and choosing to give it no weight as against other information within the context of her own values and outlook when making a decision than they are with her failing to believe or weigh her prognosis when making her decision.
Finally, and within this context, in assessing whether C does have the ability to use and weigh information relevant to the decision in question it is also in my judgment very important to have regard to the fact that, in addition to the position C has taken with regard to her prognosis, she has given a range of reasons for reaching the decision she has regarding further treatment. C has, on a number of occasions, given very clear reasons for not wishing to continue her treatment. These reasons include the risk of a life lived on dialysis, the risk of long term disability, exhaustion with treatment and her wish not to endure further weeks or months of the same, her wish not to continue to endure the symptoms and pain associated with treatment, the risk she will not be able to attain her former lifestyle, her desire not to get old and lose her appearance and her wish to attain her original goal of ending her life.
Within this context I note in particular that it is clear from the medical records that C had and has a consistent and specific fear of having to live the rest of her life on dialysis. This expressed fear on the part of C is evident in her medical records. On 22 September 2015 C is recorded as continuing to state that, whilst hopeful of recovery, if her kidneys do not recover and she requires dialysis for the rest of her life she will not wish to live. C repeated this view on 23 September 2015. On 2 November C stated that she could not imagine herself dependent on dialysis and that it would be pointless to continue if she could not recover to a functional level where she could continue with her previous lifestyle. I pause to note that, in the context of the information given to C regarding her prognosis as summarised in Paragraphs 83 to 85 above, these fears on the part of C cannot be considered irrational.
Within the foregoing context, I am satisfied that it is not the case that C has undertaken the decision making exercise in relation to dialysis solely on the basis of a concrete or ‘black and white’ view taken in respect of her prognosis but rather on the basis of placing in the balance many factors relevant to the decision. That C considers that these factors outweigh a positive prognosis and the chance of life that it signals may not accord with the view that many may take in the same circumstances, and indeed may horrify some. However, they do in my judgment demonstrate C using and weighing information relevant to the decision in question when coming to that decision.
Having regard to the foregoing matters in my judgment the Trust has not proved to the requisite standard that C is unable to use and weigh information relevant to the decision in question such that she lacks capacity to make that decision. In circumstances where the Trust concedes that C meets the other criteria comprising the ‘functional test’ I am satisfied that C is not a person unable to make a decision for herself for the purposes of s 3(1) and, accordingly, does not lack capacity to decide whether or not to accept dialysis.

Having decided that C has capacity to make the decision for herself, MacDonald J did not have to go on to say what decision he would have made as being in her best interests if he had found that she lacked capacity.

The Judge did, however hold out an olive branch to C, that he hoped that doctors would still engage with her in discussions and see if she could be persuaded to consent to the treatment, but that the decision was hers and hers alone to make.

CONCLUSION

For the reasons set out above I am not satisfied on the evidence before the court that the Trust has established on the balance of probabilities that C lacks capacity to decide whether or not to accept treatment by way of dialysis.
Within the context of C’s stated wish to refuse the life saving treatment which renal haemodalysis represents for her I am acutely conscious of the gravity of my decision. However, as set out at the beginning of this judgment, a capacitous individual is entitled to decide whether or not to accept treatment from his or her doctor. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient and, accordingly, a capacitous patient may refuse treatment even in circumstances where that refusal will lead to his or her death.
The decision C has reached to refuse dialysis can be characterised as an unwise one. That C considers that the prospect of growing old, the fear of living with fewer material possessions and the fear that she has lost, and will not regain, ‘her sparkle’ outweighs a prognosis that signals continued life will alarm and possibly horrify many, although I am satisfied that the ongoing discomfort of treatment, the fear of chronic illness and the fear of lifelong treatment and lifelong disability are factors that also weigh heavily in the balance for C. C’s decision is certainly one that does not accord with the expectations of many in society. Indeed, others in society may consider C’s decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity. The court being satisfied that, in accordance with the provisions of the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society’s expectation of what constitutes the ‘normal’ decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign.
In circumstances where I have decided that C has at this time the capacity to make the decision in question, this court has no jurisdiction to interfere with the decision making process. Accordingly, although rightly brought, I dismiss the application of the Trust for declarations under the Mental Capacity Act 2005.
As I said at the conclusion of this hearing, my decision that C has capacity to decide whether or not to accept dialysis does not, and should not prevent her treating doctors from continuing to seek to engage with C in an effort to persuade her of the benefits of receiving life saving treatment in accordance with their duty to C as their patient. My decision does no more than confirm that in law C is entitled to refuse the treatment offered to her for her benefit by her dedicated treating team. Nothing I have said prevents them from continuing to offer that treatment.
That is my judgment.

I don’t know that C would have been the easiest person to live with, and her decisions aren’t ones that I would make, but I am pleased that the State hasn’t imposed on her a choice that she would have bitterly resented. I still hope that she might be persuaded, now that she knows that the choice is entirely in her hands, but only if she is persuaded that there is still sparkling to be done yet.

Otherwise, to paraphrase the Bard, she has decided that “nothing in her life quite became her like the leaving it” and why shouldn’t everyone in life have the chance to make that choice at least ? None of us have any say in how we Enter the stage, but perhaps we get some influence over the manner of our Exit.

11 Comments

Posted in adult social care, case law, court of protection and tagged 2015 EWCOP 80, autonomy, capacity to decide on treatment, dialysis, dispute over treatment, kings college hospital nhs trust v c 2015, kings college hospital v c 2015, MacDonald J, mental capacity act, personality disorder, right to object to treatment, right to oppose treatment, treatment. Bookmark the permalink.

Social workers slammed for lying on oath

Posted on November 23, 2015 by suesspiciousminds

I know the title seems pure clickbait, since it is the sort of thing that is alleged quite often, but this is a case where the Judge did actually make that conclusion. It involves social workers and managers who set out to change the parenting assessment conducted by another worker (who the Judge found to be blameless) so that it reached different conclusions and painted a wholly different and negative picture and then lied to the Court about it. This is social workers interfering with the parents right to a fair trial. It really is deeply shocking stuff.

A, B, C, D and E (Final Hearing) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B186.html

The case was decided by His Honour Judge Horton, and involved Hampshire County Council. Some of the workers involved no longer work at Hampshire and they are not spared.

12. This is I hope an unusual case. I certainly have not previously come across one quite like it either at the Bar or as a judge.

13. My previous judgments explain these comments but in my experience it is exceptional to find a case in which there has been deliberate and calculated alteration of a report prepared by one social worker in order to make that assessment seem less favourable, by another social worker and the Team Manager; the withholding of the original report when it was ordered to be disclosed and the parties to the alterations lying on oath one of them twice, in order to try to cover up the existence of the original report. Those people are referred to and named in my December judgment but given the enormity of what they did and the fact they still work as social workers it is right that I should name them again so that practitioners and members of the public coming across them are aware of their shortcomings in this case.

Sarah Walker Smart the children’s Social Worker lied twice to me on oath. I was told during this hearing that she has been promoted to Team Manager within this authority.
Kim Goode, Sarah Walker Smart’s then Manager, was the person who initiated the wholesale alteration of the original report and who attempted to keep the truth from the parties and me. At the time of the last hearing she was District Manager for the Isle of Wight. I was told during this hearing that she is still in post.
Lisa Humphreys was Kim Goode’s Manager. Her evidence was deeply unimpressive. She made a ‘hollow’ apology to the parents during her evidence; she regarded a social worker lying on oath as “foolish” and she failed to accept any personal responsibility for what had gone on under her management. At the date of the last hearing she was Assistant Director of Children’s Social Care with Lambeth Borough Council.
In my December judgment I concluded that the parents’ and children’s Article 6 and 8 Rights had been breached. The children had been removed illegally and the parents had not had a fair parenting assessment carried out due amongst other things to all professionals both childcare and legal, failing to identify M’s communication difficulties and the need for a psychological assessment. I therefore at the parents’ suggestion, directed that Symbol a parenting assessment organisation which specialises in people with learning and communication difficulties, should carry out a full parenting assessment. This was to be coupled with individual therapy for both parents. This ‘dual’ approach had been suggested by Dr Halari a highly qualified adult clinical psychologist who had seen each parent, prepared reports and who gave evidence. The plan was for the therapists and assessors to work together in order to give the parents the best possible chance of making the agreed and much needed changes to their parenting.

The December judgment had escaped my attention, so here it is

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B227.html

The portions setting out the failings of the Local Authority are long, but because they are so powerful, I will set them down in full (I really can’t believe that I missed this judgment first time around). Underlining, as ever, mine for emphasis (though I could almost underline every word). Apologies that the paragraph numbering goes all over the place.

The factual matrix underpinning the breaches
Removal
Social worker Ms X was allocated to these children on 27 October 2011 and remained their social worker until Sarah Walker Smart was allocated the case in June 2013. During this time she formed a working relationship with the family.
She was clearly concerned at A and B’s lack of schooling, failure to engage fully with health professionals and issues of basic neglect. Such was her concern that she initiated the PLO process on 12 April 2012. The PLO letter was clear and Ms X spelt out what was required. See Mrs Randall’s comments at D131.
As early as 11 May 2012 Ms X had identified that the parents were unsure how to work with professionals and that the parents become aggressive and hostile.
By April 2013 Mrs Randall’s opinion based on the recordings of Ms X was that little had really been achieved during 18 months of PLO process. D133
In late Spring early summer 2013 Ms X obtained a new post within the authority. She made her last visit to the family on 4 June 2013. By this time Ms X had begun compiling information for Core Assessments on all the children and it was made a condition of her leaving that she completed Comprehensive Core Assessments. I heard evidence that I accept that Lisa Humphreys and Kim Goode were exasperated by Ms X’s failure to complete them.
The new social worker allocated to the children was Sarah Walker Smart. She was new to this team and relatively inexperienced in child protection work. Her manager remained Kim Goode who was and is extremely experienced in such work having been in it for 18 years.
Kim Goode and Sarah Walker Smart carried out an introductory joint visit on 20 June 2013. I am satisfied that Kim Goode and Sarah Walker Smart found a situation that they had not been fully prepared for by Ms X’s case recordings. This was not only in relation to the condition of the home and children but also the attitude of the parents. The mother in particular was difficult and hostile. I pause there to record that whilst I make criticism of the parents it must be seen in the context of their then unidentified difficulties and the attitude of Kim Goode who I am quite sure did nothing to calm the situation. I have seen and heard Ms Goode. She is a strong willed, forceful, opinionated person who it would be difficult to challenge effectively or at all. Her manner of answering during cross examination amply demonstrated this.
As a result of what they saw and as a result of there having been 18 months without sustained change Ms Goode and Ms Walker Smart decided that the case should be taken to a legal strategy meeting. This took place on 24 June 2013. see K136.
It was decided that the Comprehensive Core Assessment “with concerns” should be concluded as soon as possible, that care proceedings should be instigated and that a new PLO letter would be written. This was delivered to the parents on 27 June which was the same date as Sarah Walker Smart’s first statement.
On 11 July Ms Walker Smart visited the home and found things largely the same as before but that the children’s presentation was “Ok”.
On 12 July Care Proceedings were issued and on the 15 July directions given including a direction for the LA to file and serve the “current assessments to which the Social Work statement refers”. A21
Also on this date the Housing Officer visited the home. He was clearly concerned by the condition of the property; a number of problems with the condition of the property that had not been reported and the overcrowding but I am satisfied he does not “condemn” it or say that it is dangerous. He did believe that the family should be temporarily or permanently re-housed.
On 15 July the court made directions including giving a hearing date for a contested ICO.
On 16 July Ms Walker Smart spoke to the Housing Officer. She purportedly interpreted what he said as the house was condemned, dangerous and unfit for the family to remain in. It is clear from Ms Walker Smart’s e mail of the same date that she was trying to get Mr Sibley to say that the property was unsafe and dilapidated due to the parents’ neglect and makes it clear that “we are planning to remove the children” and “need as much evidence as possible based on the home conditions being unsafe”.
I am satisfied that by this date Kim Goode and Sarah Walker Smart had decided that the children should be removed from their parents care and that they intended to bolster their case by involving the housing department. This is clear from the wording of the e mail and I interpret the e mail as pressure being put on the Housing Officer. It was clear from his evidence to me that he was not prepared to do so.
Lisa Humphreys told me that she had approved the cost of B&B and that she had not approved the removal of the children from their parents. This does not fit in with the content of the e mail and I have trouble believing that Kim Goode would construct a plan for removal without the approval of her DSM.
On 17 July at 09:00 Sarah Walker Smart made a visit to the home. It was she said her view that the children were “no longer safe in the home and that if they remained they could experience significant harm”. In reality I doubt that anything was very much different from before and I am certain that the grounds for immediate separation were not there. She reported on what she saw to Kim Goode.
At 11:17 that day Kim Goode set out an action plan. That action plan clearly expected the police to use their administrative powers to remove the children. She does record that if the police won’t agree to do so then the mother is to be asked to go to B&B with the children. Ms Walker Smart never offered this option to the mother and I am satisfied from the video footage and her evidence that this option was never in her mind. It is probable that Kim Goode never discussed this option with her.
At 15:30 that day a joint police and social services visit took place. The LA accepts that the visit and removal was unlawful and breached the family’s Human Rights. The details of the breaches are set out later in this judgment.
I have viewed the Body Worn Camera footage. I can well see why the LA makes the admissions it does. The removal was a flagrant breach of this family’s Human Rights. There were insufficient grounds for such action and it is clear the police felt that too as they did not try to use their administrative powers; the correct procedure was not followed; no true consent was obtained, and that which was obtained came from F under duress. Further he did not have power to give consent for the older two children as he did not have parental responsibility a fact Ms Walker Smart should have known.
I am asked by F to find that the use of the police was a manipulation to coerce the parents. I am not satisfied that the social workers were deliberately trying to manipulate the police although I am satisfied that the effect on the parents was to coerce them. The parents, mother in particular could be verbally aggressive and had been so to Ms Goode. In circumstances where it had been decided to remove the children from their parents and it could reasonably be anticipated that the parents could be hostile, it would be appropriate to involve the police to avoid there being a breach of the peace. However, the video footage shows that the situation was badly handled with 8 police officers and two social workers descending on the parents and presenting them with no choice but to relinquish their children. There were no grounds for such removal, there was no discussion, no alternatives offered and it was clearly the intention of Ms Walker Smart to remove the children from their parents’ care come what may by asking for consent to s20 accommodation if the police did not act.

Factual matrix underpinning the failure to disclose material evidence
This relates to the Comprehensive Core Assessment that Ms X completed and sent to Kim Goode for what has been described “Quality Assurance”.
Ms X completed writing her CCA on 18 June 2013. See P125. The Assessment contained both positives and negatives. It was therefore a balanced report. She e mailed it to Kim Goode.
On 27 June 2013 Sarah Walker Smart swore her first statement asking the Court to read her statement along with the ” Core Assessment (July 2013) completed by Ms X” (my emphasis).
On 10 July Ms Melanie Kingsley asked Kim Goode to forward Ms X’s core Assessment. Kim Goode replied saying she just wanted to “pad out the conclusion before it goes off”.
On 15 July the court directed the LA to file and serve the “current assessments to which the Social Work statement refers”.
On 16 July Kim Goode made substantial changes to Ms X’s Comprehensive Core Assessment (CCA) which are recorded by the word processing programme by way of tracked changes. All the substantive changes made are negative. The changes change the tenor and conclusions of the report completely. The picture painted by it is now wholly negative and would if accepted, have the effect of substantially improving the LA’s case for removal of the children, probably permanently. In my judgment these changes amounted to a wholesale rewrite and were not a proper use of the Quality Assurance system.
Ms X never approved the changes.
Kim Goode sent the track changed document to Sarah Walker Smart on 17 July at 13:02 who made few if any and no substantial changes. She could not make many changes as she had little knowledge of the family due to her brief involvement. She signed the assessment as if it were her own and it was served on 6 August.
Ms X’s CCA was not filed in accordance with the court order.
An order was made for the CCA to be filed by 30 July. Ms X’s version was never filed.
Solicitors for the parents asked on numerous occasions for the disclosure of the document referred to in Ms Walker Smart’s statement and for any documents prepared by Ms X.
On 22 August 2013 Melanie Kingsley in response stated in an e mail: “an assessment was started by Ms X but not concluded. The decision was taken that because Ms X no longer works for the department, the new social worker SW would compile an entirely new assessment, as it would not be appropriate for her to complete another person’s partially completed piece of work. Accordingly Sarah Walker-Smart wrote and filed a new Core Assessment which is in this bundle. There is nothing outstanding from Ms X which may be filed with the parties”
I am satisfied that this e mail gave a deliberate and entirely false impression. Kim Goode and Sarah Walker Smart knew that Ms X had completed her assessment. The problem was that Kim Goode did not like it. In her opinion it did not fit in with her assessment of the family’s circumstances. Kim Goode knew Ms X had completed it because she had changed it. Ms Walker Smart knew Ms X had completed it as she had seen the tracked changed document which was obviously based on Ms X’s completed work.
I am also satisfied that the legal department knew of the existence of the Ms X piece of work as Ms Kingsley had referred to it in her e mail of 10 July.

[A quick break here to say “Holy F**ing s**t!”]

Twice more did Ms Coates ask for Ms X’s “draft” to be filed and served. Ms Kingsley replied on 13 November 2013 “there is nothing that can be filed”. Again this was patently untrue.
On 31 March 2014 Sarah Walker Smart commenced giving evidence before me. A transcript of her evidence is at 72.1 of the transcript section.
She was asked in chief: “Have you ever seen a core assessment completed by Ms X? “No” “Can you explain the reference to one in your statement?” “.. there was an assumption that Ms X had completed a Core Assessment..so I relied upon an assessment that did not exist. That’s completely my error.” I then asked: “You have given the date of July 2013 which rather implies that you had some basis to believe that there had been a Core Assessment carried out. What was your factual basis for that?” Answer:” The team manager” Kim Goode, “assumed that Ms X had written one”.
I asked whether Kim Goode had checked for the Core Assessment. I was told that she had and that she could not find it.
Sarah Walker Smart went onto to say that she had not checked. She said: “I’ve never seen a Core Assessment in Ms X’s name.”
I have considered this evidence very carefully and been mindful of the two fold test in the R v Lucas direction that I must give myself when encountering lies.
I am satisfied that her evidence that she had never seen a completed Core Assessment by Ms X was a lie. Sarah Walker Smart had seen a completed Core Assessment by Ms X. She had seen the tracked changed version e mailed to her by Kim Goode. I am satisfied on the balance of probabilities that this was a deliberate lie to try to deflect attention from the existence of that document. I do not make this finding lightly or willingly but the evidence drives me to it. This lie was repeated in her evidence given to me on 25 November 2014.
I am also satisfied that she lied when she said that the reference to such an assessment in her statement was a “mistake” based on an “assumption”. I am satisfied that the reason she mentioned it was because she had seen Ms X’s Core Assessment and she did not think there was anything wrong in referring to it. It was only afterwards that the import of what she had done became clear. In my judgment this is the only logical reason why she would have mentioned it. Her attempts to say it was a wrong “assumption” on the part of herself and Kim Goode was a fabrication. Again I do not reach this conclusion lightly but it is an inevitable one. Again she repeated this lie in evidence in November.
Ms Walker Smart had the opportunity to disclose the existence of the Ms X assessment during the April part of this final hearing but did not take it. She chose to try to get away with the deception she had practised. I made it clear at the end of that hearing that I was worried about this issue and that I required full enquiries to be made to see if such a document existed. See 72.45 line 30 of the transcript of Ms Walker Smart’s evidence.
Lisa Humphreys was also at court during the April hearing. She knew that the parents’ advocates wanted Ms X’s assessment disclosed and she knew of its existence yet she did not then or afterwards bring its existence to the attention of the court, the new social work team or the legal department. She could have accessed it easily as it was located in her ‘Outlook’ programme on her computer.
The completed Ms X Comprehensive Core Assessment was eventually disclosed inadvertently as part of the disciplinary proceedings’ file in relation to Ms X in early August 2014. Kim Goode had initiated disciplinary proceedings against Ms X as a result of what she saw were serious failings in her work. As a result Ms X was dismissed from her employment. Her health is now so poor that she was unable to give evidence. I do not know whether her poor health and the disciplinary proceedings are linked but they cannot have helped her. This is not the place to comment on the appropriateness of that investigation, its fairness or its conclusions but I do ask the LA to robustly review their conclusions and decision in the light of this judgment and all that is now known about this case.
Kim Goode’s involvement in this deception was examined in the November hearing.
I am satisfied she knew of Ms X’s completed CCA as she had changed it. I am also satisfied she knew that the parties and court wanted it disclosed and she had decided that she would not.
At one point I asked her: “So it was a deliberate decision by yourself not to let the court and the parents have” the Ms X Comprehensive Core Assessment and the guardian. Is that right?” “Yes” she answered.

A second break to say again “Holy f**ing s**t!”

Whilst she tried to persuade me that she did this out of concern for the children as she felt the assessment was not accurate, I find this suggestion breathtaking. This is a manager with 18 years experience deliberately flouting the lawful request of the parents for disclosure of information and more to the point flouting court orders for such disclosure. At one point she tried to suggest that she was unaware of the duty to disclose, which I find as Mr Ker-Reid put it “incredible” in both senses of the word.
There was a particularly telling piece of cross examination by Mr Ker-Reid when he put this question to her: “You were overtly, determinedly, seeking to deceive courts of justice, put your head together with other professionals in your department, whether legal or social workers, to tell judges of the Family Court that there was not an assessment by Ms X which you knew there was? That is right is it not?” Answer: “It is but I..” Q: “It is”. Answer: … “gave the explanation”. Q: “We have your answer, done”.
I am satisfied that this question and answer perfectly sums up the thinking of Kim Goode and her approach to this case. I heard Kim Goode’s “explanation” and I am not satisfied by it. Her perception of whether the assessment was correct or not was not a reason for non-disclosure particularly in the face of a Court order. It was as she conceded dishonest to have said that there was no assessment from Ms X. I am satisfied that this “explanation” was in fact an attempt to deflect blame away from herself.
I have already commented on my impression of Ms Kim Goode from my observation of her in the witness box and from her work on this case. She is a strong personality and I am satisfied that those subordinate to her would find it hard to challenge her. This atmosphere is probably what led Ms Walker Smart into such grave error. Whilst this may be an isolated incident in her career I have very grave concerns as to Kim Goode’s working practises in this case and in my judgment a thorough review of her work and management style should be undertaken by the LA.
I have made some comments about the involvement of Lisa Humphreys in this case. I found her to be a very strong and forceful personality. Whether her management style fed into or off Kim Goode I cannot say but I am clear that they are similar in management style. Subordinates would find it hard to say no to or challenge her.
Her response to hearing of Ms Walker Smart’s lies to me was astounding. She thought it was “foolish”. I am afraid that is not the way I see it and it is not the way she should have seen it. Such a comment makes the lies seem like minor misdemeanours which they are not.
I also found her failure to accept personal responsibility for what has happened in this case depressing. Whilst of course managers cannot be responsible for rogue employees and their decisions are only as good as the information they are given by their subordinates, they should at least sound as if they mean any apologies they give. The one she gave the parents during her evidence did not sound heartfelt and I noted that there was no apology to the Court for the lies that had been told or the unnecessary delay that had occurred by those under her. It is probable that she saw no harm in withholding the Ms X CCA as she seemed to me to be fully in support of withholding it, because in her view it was not an accurate piece of work.

Wow. Just wow.

Conclusions and Findings on Human Rights breaches
It follows from my conclusions above that this family’s Human Rights have been breached. The parties have produced one combined document for me to consider covering the breaches that the parents, A, B and the Guardian allege have occurred and the LA’s response to each of them. In short the LA has albeit late in the day, conceded all of the general breaches alleged and most of the specific facts that go towards those general conclusions. I have amalgamated the various breaches from this composite document and my findings and condensed them into a manageable form. My findings are as follows.
Removal of the children on 17 July 2013
The LA accepts and I find that it acted unlawfully and disproportionately by removing the children from the care of the parents on 17.7.13 purportedly pursuant to section 20 of the Children Act 1989. I am satisfied that it did this by:

a) Taking a decision to pursue police protection in preference to the provision of alternative accommodation;
b) Failing to consider making an application for an EPO or short notice ICO;
c) Failing to consider whether any family placements were available;
d) Failing to inform the parents of the available options such as B&B
e) Failing to encourage the parents to seek legal advice or the advice of family or friends;
f) Acting without the Father’s informed consent to the removal;
g) Acting without the consent (informed or otherwise) of the Mother;
h) Acting without the consent of any person with parental responsibility for A and B;
i) Purporting to act under section 20 of the Children Act by seeking the consent of the parents in the presence of 8 uniformed police officers presenting an overt threat of police protection;
j) Acting in knowledge of the Father’s expressed belief that the police would act to remove the children in any event;
k) Removing the children in circumstances which did not reach the test for an emergency removal;
l) Purportedly justifying the removal at the time and subsequently by way of reasons which were incorrect and/or known to be untrue by the Social Worker namely that the home had been condemned; and
m) Failing to obtain the wishes and feelings of the children contrary to section 20(6) of the Children Act 1989.
n) Failing to have in place a policy document guiding procedures when social workers attend a family with police, such document having been directed by HHJ Levey DFJ to be produced in or about January 2013;
o) Upon it becoming known to the Team Manager and/or District Service Manager that the Social Worker had acted disproportionately by removing the children from the care of the parents on 17.7.13 the LA should have taken steps to rectify matters by offering to reunite the children and parents in alternative accommodation but failed to do so.

Failure to disclose material evidence

The LA accepts and I find that it acted unlawfully by materially failing to comply with its duty to disclose documents which modified and/or cast doubt on its case and/or supported the case of the parents by:
Failing to disclose the Comprehensive Core Assessment of Ms X as directed as early as 15 July 2013 or at all prior to its inadvertent disclosure pursuant to a court order on 11.8.14 relating to disclosure of disciplinary proceedings concerning Ms X;
Failing to disclose the ICS Core Assessments of Ms X as directed or prior to 1.4.14;
Failing to disclose ICS notes with the District Service Manager’s comments due to inconsistent practices in recording information by her;
Failing to disclose case recordings until directed to do so by the court on 3.3.14; and
Failing to inform the parties of the existence of the video of the children’s removal and/or disclose the video itself until directed to do so by the court in May 2014. This video was in the possession of Kim Goode and viewed by her within weeks of the unlawful removal. She knew that the removal was unlawful but failed to do anything about it.
The non-disclosure of the Comprehensive Core Assessment of Ms X in the face of repeated requests from the parties and directions of the court was deliberate and the decision not to disclose the document was known to Sarah Walker-Smart, Kim Goode, Lisa Humphreys and the Legal Department.
The LA misled the court and the parties as to the existence of a Comprehensive Core Assessment undertaken by Ms X.
In particular the LA does not dispute and I find that Sarah Walker Smart lied on oath on 31 March 2014 when she said she had never seen a core assessment completed by Ms X; that Kim Goode had looked for one and had not found one and that the reference in her first statement to such an assessment was therefore an error.
Further, Sarah Walker-Smart repeated the lies on oath on 25 November 2014.
The LA’s failure to comply with its duty of disclosure caused an incomplete picture to be presented to the Guardian and to the court within the LA’s evidence filed before 7.4.14.

Denial of fair opportunity to participate in decision making
I make the following findings in relation to this head.
The parents were not consulted about the removal of the children.
Neither the Court nor the parents were provided with the investigations and recordings which precipitated the applications to separate C from A and B or to apply for a section 34 order to “terminate” contact;
In respect of the application to terminate contact, Hampshire County Council relied upon reports from foster carers upon which they did not seek the parents’ instructions. The foster carers’ reports were inconsistent with Hampshire’s own evidence such as contact supervisor recordings;
Hampshire County Council undertook sibling assessments without discussing the children and their attachments with their parents, or indeed observing the children together;
Hampshire County Council failed to convene a Family Group Conference or take any steps to explore potential family support, which led to their overlooking the Gs and issuing placement applications although the parents did not bring the existence of the Gs or their willingness to offer care to the attention of HCC until August 2014;
It is alleged that the parents have been excluded from LAC and PEP reviews and all medical appointments for all of the children. I have not been addressed in submissions on this point and so can make no findings. If it is thought significant I will hear further submissions on this point;
Hampshire County Council failed to provide the parents with contact notes and foster carer records in accordance with the Court’s direction or on a regular basis. This has deprived the parents of the ability to address any identified issues and effect change.
Hampshire County Council had been “put on notice” of their Human Rights breaches by the order of 07.04.14 (A121); further order on 08.05.14 and Mother’s detailed skeleton argument setting out both limbs of her argument which was filed and served on 17.06.14. However, they continued to deny any wrongdoing until:
1. On or about 10.11.14 in respect of the unlawful removal;
2. On or about 14.11.14 in respect of the material non-disclosure. Indeed this was described by Hampshire on 29.07.14 as a ” last minute fishing expedition speculatively raised” [135].
Failure to promote family life
The LA breached the children’s right to family life by failing to set up or maintain regular family or inter-sibling contact during proceedings up until 31 March 2014.

I am also satisfied that FC2 particularly Mrs FC2 became inappropriately attached to the children she was looking after. She allowed herself to become emotionally involved so that she tried to “claim” them for herself. This was not picked up upon by the social workers quickly enough. They were getting reports from FC2 that conflicted with the reports of their own contact supervisors yet this was not properly or timeously investigated. It was this failure to control FC2 that led to no proper inter-sibling contact taking place and E not seeing his parents for a considerable period of time.
As a result of the failures of Hampshire County Council to provide all relevant material and to conduct the matter in an open and fair way, the care plans for A and B as presented to the court for the hearing commencing 31 ^st March 2014 were particularly distressing in that they provided not only for separation of the siblings but that for B he was to have very restricted contact with his parents and siblings; such care plans were wholly unjustified and were changed by the then Service Manager Lisa Humphreys on or about 1 ^st April 2014 it being noted that this was without the court or any party having heard any evidence on this issue.

Other failures

The evidence presented to the court in the statement of Sarah Walker-Smart dated 27.6.13 upon issue of the LA’s application and in support of its application for interim care orders was unfair in that it was unbalanced and in parts inaccurate.
As conceded immediately in evidence by Ms Gibson the LA purported to but failed to undertake a full and fair assessment of the parents’ ability to care for the children by way of the assessment by the family centre worker and the social work assessment of Sarah Walker-Smart.
The LA purported to but failed to undertake a full and fair sibling assessment in particular because they were undertaken without sibling contact being observed.

I have read law reports where Local Authorities have got things wrong. I have read law reports where Local Authorities have got things badly wrong. I have read law reports where they have been unfair, or stupid, or failed to act promptly, or acted in a knee-jerk way. I have read law reports where the Court disagreed with their recommendation and told them that they had badly misunderstood the law. But I’ve never read anything like this. It is utterly astonishing. It is every conspiracy theory about what social workers do, come to life.

It is shocking, it is appalling. It is a damn scandal. It brings the profession into disrepute. The only tiny crumb of saving grace in the whole affair is that those involved were caught and that His Honour Judge Horton has shone a light into this scandal. I can only do my small part by telling my readers about it.

Back to this November 2015 judgment. (I haven’t read the end of it yet, but I hope it ends in a whacking big cheque being written, or indeed the judgment being sent to the Attorney General)

The Judge had sent everyone away in December to conduct fresh assessments and also for the parents to be given therapy – there were problems with their parenting, but clearly in light of everything above, they had not been given a fair assessment.

There is a bit in the judgment about the mother clandestinely recording meetings with professionals (it is rather hard to blame her for doing that)

During the mother’s evidence she mentioned that she and F had covertly recorded a meeting with the Guardian and some contacts. The M had used her phone and F a digital recorder that looked like a slightly fat pen. He produced the pen recorder and 4 recordings. As the Court security staff had not come across such a device before I took steps to inform HMCTS of the existence of such devices. The recordings provided by F were not listened to by me and no one sought to rely on their contents.

Sadly, the assessment work with Symbol – an independent specialist assessment service had not gone as well as one might have hoped. Against the backdrop of everything above, it is perhaps no surprise that the parents found it difficult to trust professionals.

She [The Symbol worker] told me that it became clear that the parents have an absolute antipathy towards the LA and social workers to the extent that they even objected to Ms Hinton being involved in the assessment. In her and Symbol’s opinion it was an impossible task for the parents to work with or trust any professional which was a significant barrier to moving on. She said that whilst professionals were not challenging or agreeing goals, things went fine but when they tried to work with the parents the situation broke down “sharply, remarkably and quickly”. Anyone who attempted to monitor or change their parenting behaviour would she opined, meet great hostility.

116. She was criticised by the parents for not acknowledging properly or at all the enormity of the emotional toll and distress on the parents and the children caused by the events of the summer of 2013. In particular Symbol were criticised for not going through the judgment with the parents and not recording any discussion about these topics. If they had it was submitted, the parents could have ‘moved on’ and the assessment would not have stopped

The Judge spends several pages discussing the assessments and the evidence, and that I’m afraid would make an already long article too long. Sadly, he reaches this conclusion

In my judgment it has not been evidenced that the parents have made the necessary changes that could allow them to make sustained improvements to their parenting styles or allow them to co-operate with professionals. Whilst they have demonstrated some ability to engage with therapy and have attended a parenting course they have not demonstrated that their fundamental attitude towards professionals has changed. Indeed I saw evidence during their oral evidence of their continued, deep seated mistrust and their tendency to accuse professionals of lying when challenged or disagreed with. Furthermore, I am satisfied that the failure of the Symbol assessment has reinforced in their minds that professionals cannot be trusted and this will make it even more difficult than before for professionals to work with them.

One can quite see how it would be extremely difficult for any parent to trust professionals after that December hearing – even with wholly fresh professionals to work with and therapeutic help, there was just too much damage done for the relationship to be repaired.

406. I am therefore satisfied that I must make care orders with respect to all five children to Hampshire County Council. I approve the plans for their placements as they are the plans that will promote the children’s welfare throughout their minority and protect them from significant harm. I am satisfied that no lesser intervention or order can achieve this aim due to the parents’ inability to work with professionals, in particular the LA.

It is very hard to feel comfortable about this. The Judge was clearly a Judge who was prepared to take on the Local Authority when they had been unfair and dishonest and who set up fresh and independent assessments and ensured that the parents got therapeutic help. So the parents got a fair hearing from the Court. But weren’t they just screwed by a system that says “you’ve got to work with professionals” and condemned them for not being able to, even though almost anyone in the same position would not have been able to trust again after the most shocking breaches of trust? Very hard.

Even though I’ve had nothing at all to do with this case, or any of the sort of things that have happened in it and I never would, today is one of those days where I feel ashamed to even be part of the Family Justice system.

The damages bit hasn’t yet been dealt with. When I see the report of that, I will share it.

I was reminded by the parties that the parents and children have outstanding damages claims for the breaches of their Human Rights. As I indicated at the beginning of the hearing I have agreed with Hampshire’s DFJ that he should hear this part of the case. I will direct as part of the order arising from my judgment that a directions hearing be listed before him at his convenience.

417. I was concerned to learn that the three social workers who I previously criticised had not apparently been subject to disciplinary proceedings. I direct that my December judgment and this one be sent by the Director for Children’s Services to the Director of Social Services, Ofsted and those social workers’ supervisory bodies with a view to them considering whether further action against them is required.

I know that my commenters will want to talk about this case, and will probably be very cross about it. Please try to stay away from defamatory remarks (what the workers did in this case and what you think about it is fair game, what you think of them as people is for somewhere else, not here)

I also know that some of you will be wondering about perjury. It is true that lying under oath is a criminal offence. The police aren’t able to investigate perjury unless directed to do so by a Judge and a prosecution for perjury can only take place if the Attorney General authorises it

The Perjury Act 1911

1 (1)If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine

section 13 of the Perjury Act 1911, which sets out the corroboration needed to prove perjury can sometimes be difficult

A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

[I.e Victoria saying that Colin is lying is not sufficient, there needs to be something more. Here of course, there were the computer records and emails in addition. The criminal standard of proof is high, and perjury prosecutions are very rare. And I am no expert in criminal law, so the furthest I can go is to say that it is a possible case where the Atttorney General might have a decision to make if asked]

Misfeasance in a public office is the other one that comes up from time to time. Not a criminal offence, but a civil tort. That’s probably not much use because the compensation for that would be something that could be awarded under the Human Rights Act for the breaches already found in any event. Though it is possible that the damages would be higher.

[Watkins v Home Office 2006

There is great force in the respondent’s submission that if a public officer knowingly and deliberately acts in breach of his lawful duty he should be amenable to civil action at the suit of anyone who suffers at his hands. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity.[1]

[1] [2006] UKHL 17, paragraph 8. ]

And there’s the social work regulatory bodies who could be asked to take action. Social workers can and have been disciplined for bad conduct.

33 Comments

Posted in case law, Uncategorized and tagged article 6, breach of human rights, falsifying documents, his honour judge horton, lying on oath, misfeasance in a public office, misleading the court, perjury, re a b c d and e 2015, right to fair trial, social work evidence, social worker lying on oath. Bookmark the permalink.

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