Category Archives: case law

Important case regarding learning difficulties

Posted on January 18, 2016 by suesspiciousminds

It is a Presidential pronouncement, and a long one. So expect it to be cascaded to all Judges and Courts in the next few days.

To be honest, a case that makes the President say this:-

This is by some margin the most difficult and unusual care case I have ever had to try.

is going to be worth a read. It is really difficult. Just as when many of us read Re B, we felt that the circumstances described by the Court of Appeal and then the Supreme Court didn’t seem to justify a finding that threshold was met and that adoption was the correct outcome, this one made me feel deeply uncomfortable. I don’t think that I agree with the eventual conclusion, though to have decided the case otherwise would have caused a huge shift in the legal approach to such cases.

I’m afraid that it is long. And I am also afraid that in my attempts to condense what is a very long judgment into manageable size, some of the nuance and detail will be lost. There is no real substitute for reading the whole thing.

Re D (A child) (No 3) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/1.html

This case has appeared in the blog many times. It is the one where a child was placed at home with parents, who had some learning difficulties, under a Care Order in 2012. The Local Authority then removed that child and placed the child in foster care. So initially it was key case law about the principles in law that apply to a removal of a child under a full Care Order. The LA then decided that their plan was adoption and made an application for a Placement Order. It then took many months of arguing about the lack of availability of legal aid for the parents (and lawyers not only working for free but signing indemnities that if cost orders were made against the Official Solicitor that they would guarantee to pay them out of their own pocket. Doesn’t quite fit with the conspiracy narrative that parents lawyers don’t try…)

It is the plaintive case where the mother cried out during one hearing that nobody seemed to be talking about her child at all, that all of the attention was on regulations and LASPO and fripperies, when what was surely important was the child. Quite so.

Anyway, this is the decision about whether the child should live with the parents, or be made subject to a Placement Order and hence go on to be adopted.

It raises some really challenging philosophical questions – and not ones of idle curiousity but ones that go to the heart of how such cases should be run.

Were the things that happened to this child a result of parental deficiency, or were they frankly things that could happen to any child and any parent, but they were pathologised because of the parents known issues?
Were the failings here attributable to the parents, or the support provided?
Is there such a thing in law as reparative care, or is insisting that a child needs higher than good enough care simply a social engineering argument in disguise (topical, given the proposed reforms to adoption)
Is a parent with learning difficulties treated differently (or discriminated against) than a parent with physical disabilities?
Is a plan that involves extensive professional support and carers really harmful to a child, or is it the sort of thing that happens all the time with children whose parents are very rich?

I’m going to steal the arguments in relation to each of these from the submissions of Deidre Fottrell QC and Sarah Morgan QC contained in the judgment, because the day that I can write something that is better than the way Deidre or Sarah puts it is the day that I’ll be closing up the blog to spend quality time with my Pulitzer Prize.

Ms Fottrell, who it must be remembered acts on behalf of the father but also takes instructions from the Official Solicitor, expresses their deep concerns about what, with every justification, she calls the “notable deficit” in the support being given to the family by the local authority in relation to its failure to provide the father with the adult support services to which, as it eventually conceded, the father was entitled. As she submits, this impacted on the family in two ways: first, the father has not had the support he required, and thus continued to struggle with day to day tasks for himself; and, secondly, this meant that the mother was overburdened by being required to support him – which must have impacted on her ability to look after D. This is not, Ms Fottrell says, a small point, for it undermines the local authority’s case that the parents were fully supported when D was living at home. It is not enough for the local authority to assert that it was committed to D remaining at home and that it provided support. The key issues, she says, are (i) whether the local authority offered the right support and (ii) whether it was entitled to expect, as it did, that the support could be reduced and eventually withdrawn. Her answer to each is clear: No.
Ms Fottrell identifies what she suggests are two fundamental flaws at the heart of the local authority’s case. First, she says, there is an inherent contradiction given that the nature of the parents’ learning disabilities is, as she puts it, inherent and unchanging, a fact known to everyone when the original order was made: so the need for ongoing support on an indefinite basis underpinned the care plan approved the court in November 2012. It is therefore, she submits, unfortunate and somewhat harsh for the local authority and the guardian now to be saying that the parents have failed to ‘improve’ their parenting. She suggests that this goes to demonstrate either that the support envisaged was not provided to the extent required or that the local authority’s expectations of the parents were either unclear or unrealistic.
Secondly, she challenges the assertion that D needs better than good enough parenting: it is, she says, circular and dangerous and runs the risk of a parent with learning difficulties being held to a different and more onerous standard. It would, she suggests, exclude a parent with learning difficulties who requires support from being able to parent their child if the child also has learning difficulties. She points to what Gillen J said in Re G and A and observes, correctly, that the court has to comply with both Article 8 and Article 14 of the Convention. It cannot be right, she says, for the court to sanction a local authority’s intervention in the family life of a parent with disability in a way which would be discriminatory under Article 14. Moreover, as she points out, there is a positive obligation on the State under Article 8 and that, she submits, in a case such as this, imposes a broad obligation to provide such support as will enable the child to remain with his parents.
More generally, Ms Fottrell aligns herself with the submissions put forward on behalf of the mother, to which I now turn. Before doing so, I should mention two other important points made by Ms Fottrell. She challenges the assertion that the parents need support round the clock – a proposition, she submits, not made out on the evidence. And she points out that D has never suffered any physical injuries. Insofar as there are said to have been what can be characterised as ‘near misses’, she poses the question: Are these the kind of incidents, familiar to every parent, where the reaction is ‘there but by the grace of God …? Or were they, in truth, disasters waiting to happen where by some miracle nothing did happen?
In conclusion, Ms Fottrell submits that, with the right package of extensive support provided by a combination of Mrs P and the professionals, the parents will be able to care for D safely and appropriately, as the court had intended in November 2012

Ms Morgan and Ms Sprinz acknowledge that the mother has had her difficulties with MB and the foster carers and they do not shy away from some of the things the mother has said about professionals. But they urge me to remember the context. What after all is a parent likely to think about the social worker who has advocated the removal of her child or about the foster carer who is doing what the parent herself wants to do? And they urge me to accept TG’s appraisal of the mother as someone who can – and, they say, will – work with professionals if they are there to assist, support and advise, rather than to assess and monitor, and who treat her as an adult and a mother rather than, as she perceived it, as if she is “stupid.”
Moving to the heart of the case, Ms Morgan and Ms Sprinz challenge the assertion that the level of support the parents need carries with it the danger that people other than the parents will in truth be bringing D up and acting as his parents. There are, they suggest, two aspects to this: Is this really the case? And, even if it is, to what extent does it matter? In relation to the second point they caution against the risk of making a value judgment (as opposed to coming to a judgment) if it is, in truth, based upon no more than the circumstances in which the particular parent – these parents – come to need help. They submit that what matters is that the child has a clear and secure knowledge of who his or her parents are. The fact that some parents either need or choose to have assistance with the way in which their children are brought up does not, they say, alter that.
Here, as they rightly say, the parents need help. But how, they ask, do these parents, with their particular difficulties, differ from the parent physically disabled by Thalidomide, or the parent who is blind, or a parent with a brain injury as distinct from a learning disability, who may not be able to see or to react quickly to some risk to which their child is exposed. What such parents need, they submit, is that a reasonable adjustment is made for the deficits in their parenting which arise from their own inherent difficulties rather than from neglect or failure or indifference. The fact that such adjustments are made, and that such parents may be receiving a high level of help and support, does not, they say, mean that they are not bringing up their children. Why, they ask rhetorically, should it be any different for these parents with their difficulties?
They suggest that the true approach is best illustrated by those parents who choose to have assistance, for example, parents working long hours who employ a live-in nanny not merely to look after the children while their parents are at work but also to help with the daily beginning and end-of-day routines, or parents who send their children away to boarding school (and will therefore not see their children for days or possibly weeks on end), or the parents moving in circles where, even today, there is a domestic staff cooking the meals and where the children may eat separately from their parents. No doubt, they say, in all these cases the parents hope for continuity throughout the child’s childhood, but, as they point out, that is not the real world. Nannies move on, staff change, teachers leave, so the children are exposed to differing professionals providing care for them at differing stages during their childhood.
The point, they say, is that if one steps back and considers not the circumstances which bring about this help with or delegation of parental care but the experience of the child in these various examples it does not differ markedly, if at all, from what D’s experience would be under his parents’ proposals – except that he would probably have rather more parental care. They stress that these are not flippant points. They are made to underline the submission that it is easy to criticise, easy to buy into the notion that there is a way in which parents in care proceedings are expected to take sole unassisted responsibility for parenting and that if they do not or cannot then it is not good enough.
Ms Morgan and Ms Sprinz conclude with two further submissions. They reject the guardian’s approach that the parents will need 24 hour wrap-around support. That is not what the mother is seeking, nor is it what she, or the father or D need. Finally, they suggest that there has been an undue emphasis on risk, particularly in relation to D’s safety. Quite apart from the fact that all the incidents relied upon predated the local authority’s volte face, they point out that risk cannot be eradicated from children’s lives, although of course it can and should be reduced. They urge a sense of proportion: of course, a child can fall and poke himself in the eye with a dinner knife, but so too with a pencil, a crayon or a toy. The parents can learn to manage by modelling, which the mother, they say, will accept and learn from. Moreover, as they point out, risks change through time: road safety with a small child becomes internet safety with an older child; bath-time is hazardous for a very small baby but the risk diminishes over time to nothing for the older child. The parents, they urge, with proper training and support will be able to manage the changing risks. The mother, as they point out, has changed in her view of D’s needs and limitations. Earlier on, she was unwilling to accept that there was anything wrong or that he had any difficulties; in her evidence, she was able to acknowledge that that this was not so, saying that “it’s on both sides of his family, so it’s not that surprising.”
With proper support, they submit, D’s parents will be able to care for and look after him adequately. They point out that whoever looks after D will need help and support. They urge me to be rigorous in my Re B-S analysis, carefully evaluating and balancing the benefits to D of returning to his home to be looked after by devoted parents who love him very much and who have done and always will do their very best to care for him, accepting him and loving him as he is, against what they suggest are the unknowns and perils of adoption, particularly for a child with D’s characteristics. My assessment of what the parents propose for D must, they submit, be based upon the full support package proposed, that is, with input from A+bility, the local authority, other professionals and Mr and Mrs P. Adoption, they say, is not a panacea. I should be cautious about accepting the local authority’s rather sanguine view as to the ease with which suitable adoptive parents will be found – a view based, they suggest, on a limited understanding by that part of the local authority of D’s particular needs and complexities. They urge me to feed into my evaluation the risk that D may not be adopted and thus end up remaining in foster care.
At the end of the day, as they rightly observe, it is not my task to find a ‘better’ family for D if, in truth, his parents, with proper support and assistance, can provide him with good enough parenting. I must be vigilant not to countenance social engineering.

Okay, to be fair, I have not also quoted from the counter submissions from the Local Authority and the Guardian, who make a series of very good points also. But the argument is challenging nonetheless.

I felt when I was reading the judgment that the President was very drawn to the spirit of these arguments, and there’s a passage where he makes it explicit that he was striving to reach a conclusion that would have returned D to his parents care.

Ms Fottrell, Ms Morgan and Ms Sprinz join in submitting that, with the benefit of the right package of extensive – what they accept will need to be very extensive and intensive – support, with all the right input from A+bility, from the local authority and other professionals and from Mr and Mrs P, the parents will be able to provide D with adequate care, today, tomorrow and well into the future, indeed throughout the remainder of his childhood.
In response, the local authority and the guardian make three essential points, with each of which I am, sadly, at the end of the day, driven to agree:

i) The first is that the proposed package will simply not work, is simply not sustainable for as long as it would have to be maintained in place to meet D’s needs. Despite the best intentions of the parents, they have, the mother in particular, great difficulty in accepting guidance, advice or support when it does not fit in with their own views. The experience of what happened between November 2013 and March 2014 is, unhappily, an all too likely predictor of what will happen again. I am driven to conclude that the parents – through absolutely no fault of their own – will simply not be able to maintain over the ‘long haul’ the effective working partnership with the support team which is essential if the package is not to collapse.

ii) The second is that, even if the package can somehow be maintained, the gap between what the parents can offer D and what he needs is very large indeed and, sadly, in my judgment, simply too large to be capable of being bridged by even the most extensive support package. I refer, without further citation, to what I have already set out (paragraphs 145-149). I am driven to this conclusion after the most careful consideration of all the evidence, including, of course, the important evidence of Mrs P, which points in the other direction.

iii) The third is that even if a sustainable package could be devised which was in one sense capable of bridging the gap, it would not in fact be promoting D’s best interests. His parenting would, in reality, become parenting by his professional and other carers, rather than by his parents, with all the adverse consequences for his emotional development and future welfare identified by MB, by Ms Randall and by the guardian.

In relation to this last point I must, of course, address the powerful and perceptive submissions of Ms Morgan and Ms Sprinz (paragraphs 116-119). There is much in what they say with which I agree. And in many cases their analysis would indeed point in the direction to which they would have me go. But at the end of the day the outcome will always be case specific, dependent upon the particular, and often, as here, unusual, facts of the particular case. In the present case there are, in essence, two reasons why on this point I am unable to follow Ms Morgan and Ms Sprinz. The first is that this is only one of three quite separate reasons why, as I have said, no sustainable and effective package can be devised – so this particular point is not, in fact, decisive. The second reason flows from their submission (paragraph 116) that what matters is that the child has a clear and secure knowledge of who his parents are. But that, in the light of what MB, Ms Randall and the guardian have all told me, would at best be very questionable here.
I confess that I have struggled hard to try and find some proper basis upon which I could conscientiously have come to a different conclusion. But at the end of the day, and for all the reasons I have given, I am driven, however reluctantly and sadly, to the conclusion that D must be adopted. I am satisfied that ‘nothing else will do’; that D’s welfare throughout his life requires that he be adopted; and that his parents’ very understandable refusal to consent to his adoption must be dispensed with.

In effect, the President’s decision was that adoption was the right outcome for the child because it was not possible to devise any plan that would work to keep the child at home with the parents and have his needs met, partially because of the scale or what was needed and partly because the parents understandable issues with professionals would cause any such plan to break down.

On the reparative care point (for a particular child can the LA say that the parenting required is higher than ‘good enough’ because of the child’s needs) the President says this:-

Finally, the question of whether D needs ‘good enough’ parenting or ‘better than good enough’ parenting. There is, I think, a risk of this becoming mired in semantics. The reality is clear and simple. As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments.
Ms Randall went on to express the view that in these circumstances D will require ‘better than good enough’ parenting in order to achieve his potential (paragraphs 76, 82). Although this is a conventional way of expressing it, the real point surely is this. What is required is parenting which is ‘good enough’, not for some hypothetical average, typical or ‘normal’ child, whatever that means, but for the particular child and having regard to that child’s needs and requirements. Where, as with D, the child has needs over and above those of other children of his age, then what is ‘good enough’ for him may well require a greater level of input. D, in my judgment, plainly will. That is the point, and that is what is relevant, and in this case highly relevant. The descriptive label is merely that, a convenient form of professional shorthand. I make clear that in coming to this conclusion and in expressing myself in this way I have very much had in mind and taken into account Ms Fottrell’s submissions.

Somewhat side-stepped so as to preserve the principles of “good enough” parenting, but stressing that it must be “good enough” for this particular child with these particular needs.

Standing back, I return to the questions I posed at the outset: Given that these are parents who the local authority, the guardian and the court agreed in November 2012 were able to provide their son D with good enough parenting, given that that conclusion was endorsed by the local authority on 3 February 2014 after careful evaluation and in the light of a very careful core assessment completed as recently as 29 January 2014, What has happened? What has changed? Why is the local authority now proposing, and why am I agreeing to, something so radically different?
The answer, in my judgment, is to be found in a telling phrase used by the guardian and a question posed by Ms Fottrell. As long ago as November 2012 the guardian had described the local authority’s plan as “courageous”. The sad reality is that it turned out to be too courageous. Ms Fottrell, as we have seen, posed the question of whether the reason D was removed in March 2014 was because the necessary support had not been provided by the local authority or because the local authority’s expectations of the parents had turned out to be unrealistic. In my judgment it was the latter. Despite the very intensive support provided by the local authority, it gradually became apparent, contrary to everyone’s hopes and expectations, that the parents were not able to manage. Matters came to a head in March 2014 when, in effect, if one wants to put it this way, MB admitted defeat and realised that her, and her colleagues’, hopes and expectations were not going to be, in reality could not be, achieved.
This, as I said at the outset, is a desperately, indeed, a wrenchingly, sad case. D’s parents are devoted to him and have always wanted to do, and have done, their very best for him. They would never harm him, and have never done so. They are not in any way to blame. They are not to be criticised. It is not in any sense their fault. They have struggled against great odds to be, as they would want to be, the best possible parents for D. But ultimately it has proved too much for them. Their own difficulties are simply too great. My heart goes out to them.

The President also imports some new principles / approaches into English law, by borrowing from a decision in an Irish Court.

This leads on to the profoundly important of observations of Gillen J, as he then was, sitting in the Family Division of the High Court of Justice in Northern Ireland, in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5. So far as I am aware, his decision has never been reported, but the transcript is freely available on the BAILII website.
Gillen J referred to a number of papers and reports, including “Finding the Right Support”, a research paper from Bristol University’s Norah Fry Research Centre funded and published by the Baring Foundation in 2006. He continued:

“A reading of these documents leads me to set out a number of matters which I feel must be taken into account by courts when determining cases such as this involving parents with a learning disability particularly where they parent children who also have a learning disability.”

He then set those matters out in eight numbered paragraphs. Although lengthy, they are so important that they require quotation in full. Accordingly, I set them out in an Annex to this judgment. I respectfully agree with everything said by Gillen J. I commend his powerful words to every family judge, to every local authority and to every family justice professional in this jurisdiction.

David Burrows and I will probably ponder for aeons as to whether this is actually binding on anyone, and whether it actually forms part of the decision or is simply part of the President’s stylistic approach to judgments whereby they are part judgment, part speech, part policy initiative and part a Practice Direction without a consultation process. But for non geeks, it is a pretty simple message. Follow this stuff, or else.

Extract from the judgment of Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5:

“(1) An increasing number of adults with learning difficulties are becoming parents. The Baring Foundation report records that whilst there are no precise figures on the number of parents with learning difficulties in the population, the most recent statistics come from the First National Survey of Adults with Learning Difficulties in England, where one in fifteen of the adults interviewed had children. Whatever the figure it is generally recognised that their number is steadily rising and that they represent a sizable population whose special needs require to be adequately addressed. The Baring Foundation report refers to national policy in England and Scotland committing government to “supporting parents with learning disabilities in order to help them, wherever possible, to ensure their children gain maximum life chance benefits.” Nonetheless the courts must be aware that surveys show that parents with learning disabilities are apparently more likely than other parents to have their children removed them and permanently placed outside the family home. In multidisciplinary jurisdiction such as the Family Division, it is important that the court is aware of such reports at least for the purposes of comment. It is important to appreciate these currents because the Children Order (Northern Ireland) 1995 places an emphasis on supporting the family so that children can remain with them and obligations under disability discrimination legislation make public services accessible to disabled people (including parents with learning difficulties). Moreover the advent of the Human Rights Act 1998 plays an important role in highlighting the need to ensure the rights of such parents under Articles 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms (“the Convention”).

(2) People with a learning disability are individuals first and foremost and each has a right to be treated as an equal citizen. Government policy emphasises the importance of people with a learning disability being supported to be fully engaged playing a role in civic society and their ability to exercise their rights and responsibilities needs to be strengthened. They are valued citizens and must be enabled to use mainstream services and be fully included in the life of the community as far as possible. The courts must reflect this and recognise their need for individual support and the necessity to remove barriers to inclusion that create disadvantage and discrimination. To that extent courts must take all steps possible to ensure that people with a learning disability are able to actively participate in decisions affecting their lives. They must be supported in ways that take account of their individual needs and to help them to be as independent as possible.

(3) It is important that a court approaches these cases with a recognition of the possible barriers to the provision of appropriate support to parents including negative or stereotypical attitudes about parents with learning difficulties possibly on the part of staff in some Trusts or services. An extract from the Baring Foundation report provides a cautionary warning:

“For example, it was felt that some staff in services whose primary focus was not learning difficulties (eg in children and family teams) did not fully understand the impact of having learning difficulties on individual parents’ lives; had fixed ideas about what would happen to the children of parents with learning difficulties and wanted an outcome that did not involve any risks (which might mean them being placed away from their family); expected parents with learning difficulties to be ‘perfect parents’ and had extremely high expectations of them. Different professionals often had different concepts of parenting against which parents were assessed. Parents’ disengagement with services, because they felt that staff had a negative view of them and ‘wanted to take their children away’ was also an issue, as were referrals to support services which were too late to be of optimum use to the family – often because workers lacked awareness of parents’ learning difficulties or because parents had not previously been known to services”.

(4) This court fully accepts that parents with learning difficulties can often be “good enough” parents when provided with the ongoing emotional and practical support they need. The concept of “parenting with support” must underpin the way in which the courts and professionals approach wherever possible parents with learning difficulties. The extended family can be a valuable source of support to parents and their children and the courts must anxiously scrutinize the possibilities of assistance from the extended family. Moreover the court must also view multi-agency working as critical if parents are to be supported effectively. Courts should carefully examine the approach of Trusts to ensure this is being done in appropriate cases. In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents. Their competences must not be judged against stricter criteria or harsher standards than other parents. Courts must be acutely aware of the distinction between direct and indirect discrimination and how this might be relevant to the treatment of parents with learning difficulties in care proceedings. In particular careful consideration must be given to the assessment phase by a Trust and in the application of the threshold test.

(5) Parents must be advised by social workers about their legal rights, where to obtain advice, how to find a solicitor and what help might be available to them once a decision has been taken to pursue a care application. Too narrow a focus must not be placed exclusively on the child’s welfare with an accompanying failure to address parents’ needs arising from their disability which might impact adversely on their parenting capacity. Parents with learning disabilities should be advised of the possibility of using an advocate during their case eg from the Trust itself or from Mencap and clear explanations and easy to understand information about the process and the roles of the different professionals involved must be disclosed to them periodically. Written information should be provided to such parents to enable them to consider these matters at leisure and with their advocate or advisers. Moreover Trusts should give careful consideration to providing child protection training to staff working in services for adults with learning disabilities. Similarly those in children’s services need training about adults with learning disabilities. In other words there is a strong case to be made for new guidelines to be drawn up for such services working together with a joint training programme. I endorse entirely the views of the Guardian ad Litem in this case when she responded to the “Finding the Right Support” paper by stating:

“As far as I am aware there are no ‘family teams’ in the Trusts designated to support parents with a learning disability. In my opinion this would be a positive development. The research also suggests that a learning disability specialist could be designated to work within family and childcare teams and a child protection specialist could be designated to work within learning disability teams. If such professionals were to be placed in the Trusts in Northern Ireland they could be involved in drawing up a protocol for joint working, developing guidelines, developing expertise in research, awareness of resources and stimulating positive practice. They could also assist in developing a province-wide forum that could build links between the Trusts, the voluntary sector and the national and international learning disability community.”

(6) The court must also take steps to ensure there are no barriers to justice within the process itself. Judges and magistrates must recognise that parents with learning disabilities need extra time with solicitors so that everything can be carefully explained to them. Advocates can play a vital role in supporting parents with learning difficulties particularly when they are involved in child protection or judicial processes. In the current case, the court periodically stopped (approximately after each hour), to allow the Mencap representative to explain to the parents what was happening and to ensure that an appropriate attention span was not being exceeded. The process necessarily has to be slowed down to give such parents a better chance to understand and participate. This approach should be echoed throughout the whole system including LAC reviews. All parts of the Family justice system should take care as to the language and vocabulary that is utilised. In this case I was concerned that some of the letters written by the Trust may not have been understood by these parents although it was clear to me that exhortations had been given to the parents to obtain the assistance of their solicitors (which in fact was done). In terms therefore the courts must be careful to ensure that the supposed inability of parents to change might itself be an artefact of professionals ineffectiveness in engaging with the parents in appropriate terms. Courts must not rush to judge, but must gather all the evidence within a reasonable time before making a determination. Steps must be taken to ensure that parents have a meaningful and informed access to reports, time to discuss the reports and an opportunity to put forward their own views. Not only should the hearing involve special measures, including a break in sessions, but it might also include permission that parents need not enter the court until they are required if they so wish. Moreover the judges should be scrupulous to ensure that an opportunity is given to parents with learning disabilities to indicate to the court that something is occurring which is beyond their comprehension and that measures must be taken to deal with that. Steps should also be taken throughout the process to ensure that parents with learning disabilities are not overwhelmed by unnecessarily large numbers of persons being present at meetings or hearings.

(7) Children of parents with learning difficulties often do not enter the child protection system as the result of abuse by their parents. More regularly the prevailing concerns centre on a perceived risk of neglect, both as the result of the parents’ intellectual impairments, and the impact of the social and economic deprivation commonly faced by adults with learning difficulties. It is in this context that a shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully and why their children should often be taken into care. At its simplest, this means a court carefully inquiring as to what support is needed to enable parents to show whether or not they can become good enough parents rather than automatically assuming that they are destined to fail. The concept of “parenting with support” must move from the margins to the mainstream in court determinations.

(8) Courts must ensure that careful consideration is given to ensuring that any decision or judgment is fully explained to such parents. In this case I caused a copy of the judgment to be provided to the parties at least one day before I handed it down to facilitate it being explained in detail before the attendance at court where confusion and consternation could be caused by a lengthy judgment being read which the parents could not follow at the time.”

[I’m rather struck by the underlined words in paragraph 4 In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

Although threshold had already been established in this case when the original Care Orders were made, it does appear that the worst thing that happened to D whilst he lived with his parents before being removed and a plan of adoption approved was that there was an occasion when mother closed a kitchen drawer not knowing that D’s finger was in the way, giving him a swollen and no doubt quite painful finger. Hmmmm.

The Judge had this to say about that

First, the question of D’s physical safety. It is important both to keep this in perspective but at the same time also to understand the real focus of the local authority’s concerns. I start with two obvious but important points. The parents have never done nor, I am satisfied, would they ever dream of doing anything to harm D. And the fact is that, with the sole exception of the occasion when his finger was trapped in the drawer – something that could happen to any child in the care of the most attentive and careful if momentarily distracted parent – D has never suffered any physical harm while in their care. Moreover, the specific incidents to which the local authority understandably draws attention are none of them, viewed in isolation, anything particularly out of the normal; indeed, probably familiar, if we are honest about it, to any parent. On occasions, children do escape. On occasions they find things which may cause them injury if they fall over. On occasions they make more or less perilous journeys up or down potentially dangerous staircases. On occasions parents, in exasperation, throw things.*

I should add that I reject any suggestion that the parents have ever been other than caring and diligent in making sure that D receives appropriate medical treatment whenever the need arises. I accept the mother’s explanations as to why, and in my judgment quite reasonably, she took the view that D did not need medical attention after his finger was trapped in the drawer. Whatever she may have said to TG, and the words TG reports are capable of more than one meaning, I reject any suggestion that this was a deliberate attempt by the mother to cover up. She would, I am confident, always have put her child’s safety first. That is simply the kind of mother she is.

[*Expect to see Re D a child No 3 2016 turn up in responses to thresholds for all manner of similar issues over the next few months. This seems to be judicial authority for it being okay to throw things in exasperation and will no doubt be pleaded as such]

He does, however, say that the evidence was that the parents could not properly anticipate risks

So what is the real focus of the local authority’s concern in relation to safety? Looking to the various views expressed by A+bility (paragraph 52 above), by MB (paragraph 61), by TG (paragraphs 67-70), and by Ms Randall (paragraphs 78-79, 81), all of which are to much the same effect and point in the same direction, and which I have no hesitation in accepting, the problem is a group of difficulties the mother has: in anticipating possible risks (particularly if they are novel); knowing how to react quickly and effectively in the face of potential hazard; not always being able to anticipate or control D’s actions; not being able to transfer past experiences or training into practical precautions next time round (as TG put it, progress ‘in the moment’ tended not to be carried through over time); not being able to bring her theoretical awareness of risk to bear effectively when confronted with a live situation; and not being able to multitask in situations where she might be distracted from her focus on D. TG’s description (paragraph 67) of the contrast between the mother’s fluent explanations and her inability to translate this into practical terms is striking and illuminating, as indeed is the whole of TG’s evidence on the issue of danger.
In my judgment, these are very real and very worrying concerns. The cumulative weight of all the professional opinion on the point is compelling in identifying and evidencing just why the professionals are, and in my judgment rightly, so concerned. Not just for the here and now but also for the future, as D, who Ms Randall describes as a child with little sense of danger, becomes more challenging and finds himself exposed to new and different forms of danger.

Again, hmmm. In all the time that D lived with the parents (and remember, against a backdrop of the LA REDUCING the practical support to the family), this failure to anticpate risk led to just one injury, a pretty innocuous one. Have we really here ensured that:-

In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

And I have to ask myself, rhetorically, whether the Judge who decided Re A, would have countenanced within a threshold that a child’s finger was accidentally caught in a drawer that mother was closing IF THE MOTHER DID NOT HAVE LEARNING DIFFICULTIES and that was being used as evidence that her difficulties made her a poor parent?

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Posted in adoption, assessment of risk, case law and tagged 2016 EWFC 1, can a parent meet the needs of this particular child, good enough parenting, learning difficulties, learning disabilities, president, president of the family division, re d a child no 3 2016, reparative care. Bookmark the permalink.

Judge describes police investigation as “cack-handed”

Posted on January 17, 2016 by suesspiciousminds

The High Court (Justice Peter Jackson) has just published a judgment (one that was actually delivered a year ago) which has some significant lessons for practitioners.

Wigan Council v M and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/6.html

The opening is as clear and cogent a distillation of the pernicious nature of sexual abuse that I’ve ever seen.

The perpetrators of sexual abuse are inadequate individuals who control weaker people, often children, for their own gratification. Their behaviour is always an abuse of power and usually a breach of trust. They destroy families and blight childhoods. They create dread in their victims by convincing them that the consequences of speaking out will be worse than the consequences of silence. They create guilt in their victims by persuading them that they have somehow willingly participated in their own abuse. They burden their victims with secrets. They poison normal relationships, trade on feelings of affection, drive a wedge between their victims and others, and make family and friends take sides. They count on the failure or inability of responsible adults, both relatives and professionals, to protect and support the victims. Faced with exposure, they commonly turn on their victims, try to assassinate their characters, and get others to do the same. Most often, their selfishness is so deep-rooted that they ignore other people’s feelings and are only capable of feeling pity for themselves.
The effects of sexual abuse on the victim can be lifelong, but because of the way perpetrators operate, most abuse goes undetected. It takes courage to ask for help. Victims are beset by feelings of shame, guilt and fear. They should be able to have confidence that their accounts will be adequately investigated and that they will be appropriately supported. Instead, experience shows that the abuse is often compounded by sceptical or inadequate reactions within the family and beyond. It is not always possible to establish where the truth lies, but where it is possible to investigate, there must be a good reason not to do so. The position of a complainant whose allegation is described as ‘unsubstantiated’ is extraordinarily difficult, but sometimes ‘unsubstantiated’ is no more than a euphemism for ‘uninvestigated’.

In this particular case, G was 15 years old and made very serious allegations of sexual abuse against her step-father, Mr C. Although these were reported to the police and social workers, what actually happened was that G was removed from the family home and Mr C remained there with other children, who we now sadly know he went on to abuse. Dreadfully, one of the siblings that had been abused, B, had been very outspoken during the investigation into G’s allegations that G was lying.

In this case, a 15-year-old girl (who I will call G) told the police and social services that she had been subject to years of gross sexual and physical abuse by her stepfather, who I will call Mr C. Having done this, she was promptly banished from the family home by her mother and forbidden from having any contact with her four younger siblings. She then found a home with a kindly neighbour who looked after her for a year, largely at her own expense. Although the investigating police officer and the girl’s social worker regarded her allegation as credible, she was treated as a child in need and no child protection procedures were invoked; instead, after five months’ absence, it was Mr C who returned to the family home, while G herself remained outside the family. It might well be asked: what was in it for this young person to confide in the authorities if these were to be the consequences?
Two months after Mr C’s return, the second child in the family, a now 15-year-old boy who I will call B, told the police and social services that he too had been the victim of exactly the same kind of sexual and physical abuse (though during the earlier investigation he had denied it). He now corroborated his sister’s account and added that Mr C had also made him engage in extreme sexual activity with her, something she then confirmed. High among the distressing aspects of the matter, B described how the abuse continued after Mr C was allowed back into the home.

I won’t go into the details of what happened to the children, because it is too distressing and unpalatable for most readers. The judgment is very clear as to why the children’s allegations were true and why Mr C had been proven to have done these dreadful things, and of the failures of the mother to react properly (though she did accept by the time of the hearing that Mr C had abused the children).

Instead, I’ll focus on some of the issues that the Judge identified as failings in the investigative process.

After the ABE and medical examination of G (she having alleged that C had been abusing her physically and sexually in unspeakable ways)

On 4 October, a Child and Family Assessment undertaken by the social worker, Ms W, concluded with the decision that the family would be supported via a Child In Need Plan pending the outcome of the police investigation. As part of the assessment G was spoken to, as were the other children. G said that she felt happy and safe living with Mrs D. B said that there was no truth in G’s allegations. The younger children were also spoken to and at a series of meetings work was done to understand their wishes and feelings and to give them keep-safe work.
During this period, B wrote a number of fulsome tributes about and to Mr C: for example “I love you more than the world”. In answer to a question “What is the worst thing about my family?”, he wrote “Nothing. Having [G] near him [Mr C] makes me feel uncomfortable in case she says anything else in relation to rumours/allegations about any of my family.” At the same time, B told the social workers that G was a liar and that she was “sick in the head and needs to see a doctor.”
The mother told the social workers that G was a liar. She flatly denied that G had told her that Mr C was sexually abusing her or that she had ever seen him hit any of the children.
During the preparation of the local authority’s assessment, a meeting took place on 3 October, attended by the mother and by G and B. G was confronted by her mother and brother calling her a liar, while she insisted that she had told the truth. She was very distressed.
On 5 November, the police concluded their investigation and determined that no further action would be taken. They did not refer the matter to the Crown Prosecution Service. Mr C’s bail conditions were rescinded and he gradually returned to live with the mother and the younger four children in December after the keep-safe work had been completed.
On 20 December, the local authority closed the case. It referred G to its lowest level of support: Gateway Services. She was not even considered to be a child in need.

It is almost impossible to read this and not conclude that a decision had been taken that G was a liar and had made up the allegations, which awfully we now know not to be the case. She was telling the truth and if she had been believed, her siblings could have escaped further abuse and harm.

It was only really when B made serious allegations of the same sort, and importantly that some photographic evidence was found, that things actually moved forward.

Amazingly, it was not until 13 March 2014 — some nine months after G’s initial allegations — that the local authority lawyers were consulted. Even then, it took another eight weeks for proceedings to be started. There were then a large number of case management hearings, largely directed to extracting information from the police. I agree with the conclusion reached by the local authority and the officer in the case that there should have been an early meeting between the local authority lawyers and the police so that the latter’s files could be inspected. As it was, police disclosure was still arriving on the eve of the hearing.

These conclusions are tragic and also contain some recommendations as to best practice.

(4) Despite clear warning signs, the statutory agencies did not protect these children. Further significant harm thereby came to G by being excluded from the home and to B by remaining there.
The following is a non-exclusive list of the practice issues raised by the evidence:

(i) The actions of the police in August 2011 and on 1 June 2013 can only be described as cack-handed. By twice being confronted unexpectedly in the presence of the adults, G was effectively dropped in it. Instead of protecting her, these actions made her situation at home even worse and made it even harder for her to speak about what was happening to her.(ii) Against a background of chronic concerns and previous sexual abuse allegations, the social work assessment of the allegations that G made in July 2013 was superficial and inadequate. As a result, the decision to treat these children as children in need, and subsequently to downgrade their status even further, was plainly wrong. There was no risk assessment whatever. There was no analysis of the issues, merely a recital of facts with no conclusions being drawn – see C270. There was no thinking. There was clear evidence in the form of G’s allegations and the family’s striking response that demanded the invocation of child protection procedures. Instead, G’s emotional needs were forgotten while Mr C returned to the home and in the mother’s telling words “everything settled down”. Had a Child Protection Case Conference been called, it would have been an opportunity for an experienced multidisciplinary assessment of this abnormal situation. Proper consideration could have been given to the real needs of this sibling group. G’s anomalous situation in living without contact with her family in an unregulated private fostering arrangement could have been improved. B could have been protected.

(iii) It is disturbing to consider G’s situation at meetings such as the one that took place on 3 October 2013, where she was made to face the hostility of her family. It is no wonder that she was so distressed.

(iv) It is entirely unsatisfactory that no social worker viewed any of the ABE interviews until October 2014. It is a serious imposition on children to record them speaking about such sensitive matters. The least that they can expect is that their social worker will watch and listen to what they have had to say. If crucial evidence of this kind is not absorbed, it is not surprising if misjudgments follow.

(v) The social workers should certainly have asked for legal advice in 2013, well before the case was closed.

(vi) Although Ms H became the children’s social worker back in October 2013, I am in no way critical of the way that she has carried out her responsibilities. This demanding case was the first to be allocated to her as a newly qualified social worker. She was entitled to rely on her manager for supervision and guidance. The local authority has had the opportunity to present evidence showing what that amounted to, but it has not done so. Having heard Ms H give evidence, the first time that she has done so in any case, I was impressed by her grasp of the issues and her willingness to learn from experience. She inherited a case that had already taken the wrong path and she is not personally or professionally responsible for the consequences.

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Posted in assessment of risk, case law and tagged 2015 EWFC 6, child sexual abuse, criticism of local authority, delay in issuing proceedings, investigation into abuse, Justice Peter Jackson, police disclosure, social worker should see ABE interview, wigan council v m and others 2015. Bookmark the permalink.

Appointing a professional as deputy, rather than a family member

Posted on January 13, 2016 by suesspiciousminds

Again, a Court of Protection case. This time by Senior Judge Lush.

Re A 2016

http://www.bailii.org/ew/cases/EWCOP/2016/3.html

The first thing that leaped out at me in reading this was that the applicant, who was asking that a professional be appointed as a deputy to manage the affairs of her mother, had instructed a QC. That’s pretty rare, and tells me that the case might have a bit of substance. The person opposing the application, D, was the son, and he was in person.

The mother A was 78 and the Judge says “comes from a titled family”, so one assumes there’s some pot of money. I have to say that from the brief description of her, I liked her enormously.

“She told me that she still hears voices but wasn’t able to tell me what they have said recently. She told me about her hobby of sending letters and cards to famous people. She was very keen to discuss the Queen and her plans to send a Christmas present that the Queen would appreciate. When I asked what this would be, she replied, ‘Books, make-up and a lollipop.’ She then told me that she wants to send a ‘woolly animal toy’ to David Cameron’s daughter. Mr Cameron is one of the famous people that she is most interested in and she told me that he had proposed marriage to her in the past, despite having a very glamorous wife already. A told me that she had met the Prince of Wales several times and that he was ‘very easy to be with’. She went on to say. ‘He has eighteen women lovers. I wish he liked me’.”

It was very clear from the assessment of her that she lacked capacity to manage her own affairs. There were some previous proceedings about appointing a deputy in 2013, and I note that the Judge remarked that within those proceedings, D’s conduct had been such that a cost order of £7,500 had been made against him.

After only eighteen months as A’s deputy, C now wishes to stand down, and on 15 January 2015 she filed an application seeking an order that Suzanne Jane Marriott, a partner in Charles Russell Speechlys, Solicitors, London EC4, be appointed in her place.
She also made an application for Mrs Marriott, once appointed as deputy, to exercise A’s power to appoint new trustees of certain settlements and appoint herself as a trustee.

Reading between the lines, and explicitly, D’s frequent and lengthy correspondence had been a factor in C no longer wishing to act as deputy and wanting a professional person to do so.

D generates an enormous volume of correspondence and, even though most of the points he makes are irrelevant, tiresome and repetitious, his correspondence needs to be read by the recipient, if only to confirm that that is simply hot air. Naturally, Mrs Marriott is concerned about the costs implications for A’s estate if she is required to respond to every item of correspondence or e-mail sent to her by D. Accordingly, the applicant has asked the court to direct that Mrs Marriott need only reply to communications from D that appear to be pertinent to her role as deputy, and that she needn’t reply in relation to any relevant point that he raises more than once.

D had two chief reasons for objecting to the appointment of Mrs Marriott as a deputy – the first (sensible) was that a professional deputy will generally charge from the estate, whereas a family member would not. The second was less sensible

(a) she is an expert in ‘tax avoidance’, which, I assume, he regards as morally wrong [Mrs Marriott’s response is that her experience of tax avoidance, as distinct from tax evasion, is no greater than that of any other private client lawyer based in the City of London]

To be honest, if you have to have someone else managing your financial affairs, that person having a solid working knowledge of the best lawful ways to minimise tax payments from it seems to me to be rather a good thing.

Decision

Since 1959 a family member has acted as A’s committee and subsequently as her receiver and deputy. Sadly, because of D’s conduct, no suitable family member is now willing to act as A’s deputy for property and affairs and there is no alternative to the appointment of a professional.
In my judgment, it would be in A’s best interests to appoint Suzanne Marriott as her deputy and as a trustee of the 1978 Settlements for the following reasons.
The checklist in section 4 of the Mental Capacity Act is not tremendously helpful on this occasion. I have no idea of A’s own wishes and feelings about the application, and shall assume that she has no particular views on the matter. According to Professor Howard, “she is not able to understand how the Court of Protection and her niece could operate on her behalf and in her best interests.”
As regards the views of others who are engaged in caring for her or interested in A’s welfare, the respondent, D, has made his views known and they are outnumbered by those of the applicant and her mother and siblings and the professionals at Macfarlanes who have been looking after the affairs of A and other members of her family for decades, all of whom support C’s application.
Few people, if any, are better qualified than Mrs Marriott to act as A’s deputy and trustee. Charles Russell Speechly’s website says that:

“Suzanne specialises in cross border and UK tax planning, wills, trusts, contentious trusts and probates, Inheritance Act claims, estate and succession planning, international wills and trusts, non-domiciliaries, mental incapacity and Court of Protection work, heritage property, art, landed estates and charitable trusts. She acts as trustee, executor, deputy, attorney and charitable trustee for many well-known clients and is often appointed by the court in these roles where there are disputes. Suzanne is a notary public practising in the City of London and is a member of STEP, ACTAPS, and the CLA.”

[These are the acronyms of the Society of Trust and Estate Practitioners, the Association of Contentious Trust and Probate Specialists, and the Country Land and Business Association respectively].

She and her firm have substantial experience of acting as professional deputies and the role of other partners and members of staff should not be underestimated. In July 2015 the OPG published a set of ‘Deputy Standards’ for professional deputies, Standard 3 of which requires professional deputies to “maintain effective internal office processes and organisation”. Amongst other things, this involves establishing clear and effective governance between the named deputy and staff delegated to carry out the day-to-day functions of the role.
Both Suzanne Marriott and Charles Russell Speechlys also have considerable know-how in dealing with landed families and private wealth management. I imagine that, in selecting Suzanne Marriott as a potential replacement for C, Macfarlanes consciously looked for someone with a similar practice to their own but with more experience of contentious Court of Protection matters.
I concur with the observation made by Mr Justice Newey that, although Charles Russell Speechlys’ fees are likely to be large, it is improbable that they will be excessive because the Senior Courts Costs Office will carry out a detailed assessment of their general management costs on the standard basis each year.
With a view to keeping the costs as proportionate as possible, and because I believe that it would be in A’s best interests to do so, I shall allow the applicant’s request, to which I referred in paragraph 33 above, and direct Mrs Marriott to reply only to communications from D that appear to be relevant to her role as deputy and not to reply to any irrelevant communications or to any relevant point that he has raised more than once.

[That last paragraph might seem very appealing to lawyers and deputies around the country who are faced with people like D. ]

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Posted in case law, court of protection and tagged 2016 EWCOP 3, appointing a deputy, appointing a professional deputy, court of protection, mental capacity act, opposition to appointment of a deputy, re A 2016, senior judge lush. Bookmark the permalink.

Court of Protection and Criminal Injuries compensation

Posted on January 13, 2016 by suesspiciousminds

Slow start to the year, I’m afraid. It seems to be only the Court of Protection who are really publishing any judgments so far.

PJV v The Assistant Director Adult Social Care Newcastle City Council 2015

http://www.bailii.org/ew/cases/EWCOP/2015/87.html

This one relates to a 23 year old man, who as a child suffered significant brain injuries as a result of being shaken. No convictions resulted, but the persons present at the time he was shaken as a baby were his mother, her boyfriend and his maternal uncle. An application for compensation was made to the Criminal Injuries Compensation Authority. He was removed from his mother’s care but went back to live with her in 1994 and has lived with her ever since. That had been the proposal put forward by the Local Authority at the conclusion of the care proceedings, that the best place for him was his mother, even if she could not be excluded as a potential perpetrator of his injuries, and the family Court agreed.

His difficulties were serious.

The Appellant will never be able to compete in the open labour market, will never be capable of independent living and will always require daily support. He is not capable of managing his financial affairs and cannot carry out basic tasks such as shopping or cleaning. His difficulties are permanent and are unlikely to improve. He may be able to have children and to marry.

That being the case, the amount of compensation awarded was significant. In July 2012, the sum of £3 million pounds was awarded. As by that stage, the man was an adult, albeit one lacking in capacity, the issue for the Court of Protection was to decide how that compensation should be managed.

This particular case was an appeal, decided by Charles J.

The noteworthy passages are probably these:-

I apologise on behalf of the court for the time it has taken to deal with this case.
Standing back and for whatever reason it is the case that since some time before June 2012 the Appellant has not had the benefit of an interim award of £500,000 and that since June 2013 he has not had the benefit of the balance of his award in a sum of over £2 million.
This is a sorry state of affairs.

In terms of pragmatic solutions to this issue from now on, which might affect other cases

There is no need for an application to the Court of Protection to finalise an award that CICA, in the proper exercise of its powers under the relevant scheme, decides should be held on trust and so requires to be paid to trustees on trusts that include and do not conflict with terms that CICA is so entitled to require.
A deputy appointed by the Court of Protection can be authorised to negotiate and finalise the terms of such an award and so of the trust and to enter into the “Acceptance of Final Award” or the equivalent document for an interim award on behalf of P and thereby finalise the claim.
There are number of ways by which such trusts can be declared and evidenced and so by which the result can be achieved that the award moneys are paid to and from the outset are held by trustees on terms properly required by CICA and wanted by the applicant. A convenient and sensible way is that adopted in practice by CICA when the applicant has capacity (i.e. a declaration of trust by original trustees setting out the trusts over the award which will start to operate on payment). No doubt trust lawyers could set up other ways to give effect to the terms and so the trust created by the finalisation of the process of an application for compensation to CICA under the relevant scheme.

Charles J was fairly sniffy about the approach of the CICA to the litigation and that it had required some considerable work to extract from them the important principles and policy.

He did also indicate that the CICA’s decision on quantum of an award was not necessarily the last word on that issue. (A view contrary to that taken by the CICA)

Whilst I acknowledge that in one sense it can be said that the award is in the discretion of CICA, in my view what Senior Judge Lush says in paragraphs 31 to 34 of his judgment must be qualified to make it clear that the decisions made by CICA are not “entirely” in its discretion. This is because it has to make its decisions on a correct interpretation of the relevant scheme and its exercise of discretion under it is subject to challenge applying public law principles. Indeed routes of challenge are provided in the schemes and then from a decision of a First-tier Tribunal.
This means that an applicant and so the Court of Protection, a deputy or attorney does not simply have to accept CICA’s decision and can challenge quantum and the terms that CICA seeks to require.
Having said that I acknowledge the point made by counsel for the Official Solicitor that a challenge may result in the award not being made or its payment being delayed. But CICA, as a body governed by public law principles, is bound to act fairly and that is likely to preclude a commercial negotiating stance along the lines accept what is offered now or you will not or may not get an award.

If you are, for some reason, deeply intrigued by the intricate workings of this case and want to read the full judgment, I will warn you that (a) It involves Trusts and trust law (b) it involves the detailed wording of both the Mental Capacity Act and two CICA schemes and (c) The Judge deciding the case was Charles J (whom I believe may have had a hand in the scripting decisions of the Phantom Menace that decided to turn a film about people fighting with swords made out of light into a film instead chiefly about Trade disputes, embargos and the inner workings of an intergalactic United Nations). If Charles J ever decides to publish a thriller, I do not foresee that Tom Cruise will be purchasing the movie rights. Read it if you absolutely have to.

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Posted in case law, court of protection and tagged 2015 EWCOP 87, charles J, cica, court of protection, criminal injuries compensation authority, interplay between CICA and Court of Protection, PJV v Assistant Director Adult Social Care Newcastle City Council 2015. Bookmark the permalink.

Is there bias if the Judge is leading one of the barristers in a different case?

Posted on December 29, 2015 by suesspiciousminds

Watts v Watts 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1297.html

is a Court of Appeal decision about judicial bias, and whether the Judge should have recused herself. This was a dispute between a brother and a sister about property issues.

In this case, the issues were effectively that the Judge did disclose to the parties that one of the barristers, Mr Holland (the one acting for the sister) was being led by the Judge in another case. I.e the Judge was still in practice as a barrister and was leading counsel in a different case where one of the barristers in front of her was her junior.

The request for the Judge to recuse herself, and the subsequent appeal, was therefore on these arguments:-
1. That the Judge had a conflict of interest due to professional involvement with Mr Holland, which might cause or give rise to the perception of bias.

2. That as the case was on a conditional fee arrangement (no win no fee), Mr Holland would only get paid if he won the case, so the existing professional involvement might make the Judge more desirous of an outcome where her junior in a long-running case where she would have to continue working with him would not have lost a big pile of money as a result of the Judge’s decision on this case.

3. That as the nature of that particular case involving the Judge leading Mr Holland was not known, it was possible that the Judge might be tempted (if it was in a similar field) to give a decision or set a principle in THIS case which might be helpful in that case.

The nub of the case was as to in terms of the conflict of interest, was the Judge expected to reveal absolutely everything, or was it sufficient that she revealed sufficient for a proper view to be taken, whilst not showing more than was necessary or appropriate? Just how much should be uncovered?

This is important stuff, and I think it is really important that all of the essentials get covered here.

Now, is the coverage sufficient here? I’d hate to be accused of skimpy coverage

[My inclusion of this is actually LESS gratuitous than the inclusion of it in the show itself…]

Discussion
On the appeal, Mr McLarnon criticised the judge on three grounds: (i) for the paucity of information provided by her about her involvement with Mr Holland; (ii) for announcing her ruling at the commencement of the hearing but only giving her reasons at the end of it; and (iii) for the decision not to recuse herself, which he maintained was unlawful because of the appearance of bias which he submitted she presented in the circumstances. I deal with these in turn.
In relation to ground (i), Mr McLarnon relied in particular on the following guidance. In Davidson v Scottish Ministers Lord Bingham said at [19] that where a judge discloses matters which would or might provide the basis for a reasonable apprehension of lack of impartiality, “It is very important that proper disclosure should be made …, first, because it gives the parties an opportunity to object and, secondly, because the judge shows, by disclosure, that he or she has nothing to hide and is fully conscious of the factors which might be apprehended to influence his or her judgment.” Similarly, in Jones v DAS Legal Expenses Insurance Co. [2003] EWCA Civ 1071 at [35] this court emphasised that where a judge becomes aware of circumstances which might give rise to an appearance of bias and a real as opposed to fanciful objection being taken by a notional fair-minded observer and an application for recusal might be made, “The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.”
Mr McLarnon submitted that provision of full material in this sort of situation is particularly important because parties are not permitted to question the judge about the position, and so are not able to seek and obtain the full facts if they are not disclosed by the judge of her own volition at the outset. In that regard, Mr McLarnon referred to Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 , CA, in which at p. 472A-B the court said “The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.” Mr McLarnon further submitted that the inadequacy of the disclosure by the judge serves to reinforce his main ground of appeal, that she presented an objective appearance of bias.
I do not agree with Mr McLarnon’s criticism of the extent of disclosure made by the judge. The disclosure required to be given is of the material facts, not every background detail: see Resolution Chemicals at [42]. The judge did disclose the material facts. Armed with this information, Mr McLarnon was fully equipped to make the relevant application. No further disclosure was required.
Mr McLarnon submitted that the disclosure was inadequate because it did not reveal the subject matter of the litigation in which Mr Holland and the judge were instructed, so it was possible that the judge might have an interest in giving a ruling in the present case which might assist them in that other case. Additional disclosure should have been given to allay any such fears.
This argument proves too much. I cannot accept it. The notional fair-minded and informed observer, knowing the professional standards applied by part time judges drawn from the legal profession, would understand that any deputy judge who found that she was being asked to try a case in relation to subject matter where there was a real risk that her ruling in the case (which would of course acquire a degree of authority as the ruling of a court) might have a bearing on the arguments to be advanced in other ongoing litigation in which she was involved as counsel, would immediately for that reason recuse herself. In such a case it would be clear that her interest as a barrister would conflict with her duty as a judge and, since that would be clear, it would be obvious that she could be expected to identify such a conflict and then act ethically and in accordance with her professional obligations by recusing herself. This would be so whether or not she happened to be instructed along with another counsel in the case, and whether or not that counsel was now appearing as counsel in the case in which she was to sit as a deputy judge. A part time judge does not have to reveal details of every ongoing piece of litigation in which she is professionally involved as counsel in order to allay suspicion whether any of them concern subject matter which overlaps with the case to be tried by her. On the contrary, the notional fair-minded and informed observer would not consider that there is any real risk that there is any such conflict of interest, since if there were the deputy judge could naturally be expected to identify the problem and recuse herself without more. The addition of the extra feature that the deputy judge might be leading other barristers in such other ongoing litigation does not change this analysis.
I should also mention that the judge was bound by obligations of confidentiality owed to her client in the other case and was therefore not at liberty to go further than she did unless there was a strong public interest to do so. There was none, for the reasons I have given. To my mind, it is clear that she has behaved entirely correctly in giving the disclosure that she did.
In fact, any residual concern the appellant might have had that the other litigation in which the judge was involved trespassed upon the subject area of the proceedings which she was to try could have been resolved very simply either by asking Mr Holland or by raising the matter with the judge herself. Mr McLarnon’s reference to the passage in Locabail at p. 19A-B, set out above, as precluding such an approach is misplaced. The point being made there is that a judge cannot be questioned about influences upon her with a view to making out a case of actual bias; but if a party has a reasonable request to make of a judge for relevant factual information in the context of an argument that an appearance of bias exists, in the absence of which the application cannot be made on the proper fully-informed basis which is required by the law, that passage does not prevent raising the difficulty with other counsel or the judge. This is not to encourage requests to judges to provide further information in relation to recusal applications: as I have emphasised above, a judge only has to provide relevant information which is material to the application and will in almost all cases have done just that. But there is no rule of law which prevents a party asking politely for more information if it exists and explaining why disclosure of it is required in order to enable the recusal application on grounds of appearance of bias to be advanced in a properly informed and effective way.
I record here that we asked Mr Holland, through leading counsel, whether the subject matter of the other litigation in which he was instructed with the judge overlapped with the subject matter in the present proceedings and he confirmed it did not. No doubt the judge would have given the same confirmation had the point been raised with her. But for the reasons given above this was not information which she was required to state or volunteer.
Under ground (ii), Mr McLarnon contends that the judge erred by reserving her reasons for refusing the recusal application until the end of the hearing. He submits that this left the appellant in the difficult position throughout the trial of believing that he had good grounds for objecting to the judge sitting in the case, knowing that she disagreed, but not knowing why: the appellant was subjected to a trial without any certainty that non-recusal on the part of the judge was justified. This again, Mr McLarnon says, reinforces the objective impression that the judge might be biased and might be behaving unfairly.
I reject this submission. In my view it was correct in the circumstances for the judge to give her decision with reasons to follow later, so that the trial could proceed without further delay and to minimise the risk that it might have to run over, so adding to the cost. The test is not one of how the individual litigant might feel subjectively, but an objective one of how the notional fair-minded and informed observer would view matters. Such an observer would not think that this way of proceeding displayed any disposition of unfairness towards the appellant. It only gave rise to the appearance of a judge willing to make a sensible case management decision in accordance with the overriding objective set out in CPR Part 1. Proceeding in this way was in line with the approach adopted by this court in Resolution Chemicals, in which the court considered an appeal in which permission had been granted for an appeal against the judge’s refusal to recuse himself and then gave its ruling dismissing the appeal with reasons to follow, so that the trial could proceed straight away and before the court’s reasons were handed down: see [4]. There was no suggestion by this court in that case that this would create any difficulty in terms of appearance of bias, simply because the disappointed applicant would not know until after trial the reasons why its arguable appeal for recusal of the trial judge had been unsuccessful. I cannot see that any difficulty arises by reason of a court proceeding in this way.

The appeal had not succeeded. The Court of Appeal give their final summary here

Finally I turn to ground (iii) and the main substance of the appellant’s case. I would dismiss the appeal for the following reasons, which essentially reflect the reasons given by the judge below:

i) The notional fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from: Taylor v Lawrence [2001] EWCA Civ 119, [33]-[36]; Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528, [61]-[63]. These aspects of the legal culture of the Bench and legal professionals are not undermined by the fact that some litigation is now funded by means of CFAs;ii) The notional fair-minded and informed observer would understand that a part-time judge’s approach to the case she is trying and to her relationships with other professionals will be governed by these professional standards. There is no reason to think that a judge would allow her professional training and ethics to be overridden by a concern not to upset a junior counsel she is leading in other litigation. Moreover, the judge would know that the junior counsel would himself understand that she is bound by strict professional standards, and hence would have no expectation that she would do anything other than act in accordance with them. So the judge would not expect any disgruntlement or difficulty to arise in her relationship with the junior counsel even if she makes a decision adverse to him in the case she is trying. Accordingly, the idea that the judge would adjust her behaviour as judge to avoid upsetting the junior counsel is far-fetched indeed. The notional fair-minded and informed observer would not consider that there was any genuine possibility of this occurring;

iii) There is a danger in cases of this kind of multiplying reference to authority in the hope of finding analogies on which to found arguments one way or the other, and we were presented with a plethora of authorities to address what is really quite a simple matter. However, it may be observed that a number of authorities indicate strongly that it could not be said that there is any objectionable connection between the judge and counsel for the respondent sister in this case. In The Gypsy Council v United Kingdom (2002) 35 EHRR CD 96 the European Court of Human Rights dismissed as manifestly ill-founded an argument that Article 6 (right to a fair trial) was infringed on grounds of appearance of bias where a part-time deputy judge in a case involving gypsies on one side and a public authority on the other was a barrister in practice (David Pannick QC) who had been instructed as counsel for the government in numerous cases before the Court of Human Rights involving gypsies, in which he had argued that public authorities had not infringed the rights of gypsies: p. 101. The deputy judge in that case remained in practice and might hope to be so instructed by the government again, but still it was clear that no appearance of bias arose. In Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, Rix J dismissed an application to remove an arbitrator on grounds that “circumstances exist that give rise to justifiable doubts as to his impartiality” (section 24 of the Arbitration Act 1996) where the arbitrator was a QC practising in the same chambers as counsel for one of the parties in the arbitration. It is true that the judge directed himself by reference to the then current standard for assessing an appearance of bias set out in R v Gough [1993] AC 646, which was adjusted in Porter v Magill to bring it into line with the test under Article 6, but I do not think that is significant for the analysis in the case. The position is underlined by Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242; [2007] 1 WLR 370. In that case, a personal injury claim was tried by a practising barrister and part-time judge sitting as a recorder, who was the head of the chambers to which both counsel for the claimant and counsel for the defendant belonged and who had also acted for the defendant or associated companies in the past and might do so in the future. This court rejected the suggestion that an appearance of bias arose by reason of the connection between the recorder and counsel through being members of the same chambers: [17]-[19]; it was only because the recorder regarded himself as having an on-going barrister-client relationship with the defendant that this court held he should have recused himself. Similarly, in Resolution Chemicals at [46] this court referred to the idea that the reasoning in Lawal “would preclude a judge from hearing a case in which his former pupil master or regular instructing solicitors were acting for one of the parties, or a deputy High Court judge from ever hearing a case in which a more senior member of his or her chambers was acting for one of the parties” as something which it regarded as obviously untenable;

iv) As both the Taylor v Lawrence judgments and these other decisions indicate, relationships between members of the Bar, or between members of the Bar and their clients, can be much closer than that between the deputy judge and counsel for the respondent in the present case, yet because the relationships are mediated through known professional standards no appearance of bias arises.

Conclusion
For the reasons given above, I would dismiss this appeal.

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Posted in case law and tagged 2015 EWCA Civ 1297, appeal, conflict of interest, Judge's professional relationship with counsel, judicial bias, recusal, watts v watts 2015. Bookmark the permalink.

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.

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