Category Archives: case law

Obtaining an expert report without court permission

Posted on November 12, 2015 by suesspiciousminds

 

A quirky case from the pen of Her Honour Judge Lazarus.  [We have previously seen Her Honour Judge Lazarus in the decision in the case about the foster carer who was abusive towards the mother who tape-recorded her, and in the s20 case where compensation of £40,000 was ordered, in both cases the Judge being very critical of the Local Authority.]

 

As a general principle, if you want an expert in family Court proceedings, you need to get the permission of the Court first. Showing an expert any documents before the Court has given you that permission is a contempt of Court and if you go by the back door and pay for a report without the Court’s permission, you may not be able to rely on it. So it would be  a waste of your money.

This particular case involved an expert called Dr Lowenstein, whose name rang a bell with me.

 

He was involved in the massive case where the Mail on Sunday tried to claim that they had an article 8 right to be friends with a 94 year old woman who had previously been the journalist’s source, where the Court of Protection had put a restriction in place on the Press talking to her until a determination of (a) her capacity and (b) whether that was in her best interests.

journalist’s right to private and family life with her source

 

These are the passages about Dr Lowenstein in that case, Re G (an adult) 2014

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

 

Well, you know, that could just be bad luck. Even Babe Ruth struck out once in a while, and if you were assessing whether he was a good baseball player when you only saw one of his off days…

 

But it isn’t inspirational stuff.  He hadn’t read the documents, didn’t understand the tests and principles to be applied, wasn’t an expert in the field of law he was ostensibly reporting in and didn’t take proper notes. And he hadn’t been instructed through the Court process, but through the back door.

 

The new case is MB (Expert’s Court Report) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B178.html

 

The mother in this case made an application to discharge Care Orders relating to a child who is now 8. She came to Court, bolstered by the expert report prepared on her behalf by Dr Lowenstein.

 

I’m just going to confine myself to exactly what the Judge had to say about Dr Lowenstein.

 

 

  • Within the recent history the mother and her partner Mr P have undergone a parenting assessment conducted by Mr Ian Scrivens and dated the 20th March 2015, initiated by the Local Authority, Mr Scrivens being an experienced social worker. And he undertook that assessment over a number of sessions with Ms MB and Mr P, and indeed met with H at his foster placement, and used the Department of Health guide for social workers undertaking a comprehensive assessment.
  • That assessment does not recommend that H is returned to his mother’s care and that, while there are some positives, there are ongoing concerns and, indeed, H’s enhanced needs would suggest that the couple would find it difficult to meet those needs in the light of their own difficulties.
  • Ms MB has told me today that, following receipt of that report, she and Mr P attempted to challenge this by seeking to dispute it with the Local Authority and to bring their concerns to the attention of the independent reviewing officer, presumably at looked after children review meetings for H.
  • She also tells me that she visited her former solicitor and was told that she could perhaps seek a further report from another expert, and she also tells me that she then approached Dr Lowenstein in an attempt to understand some of the issues and discussed the parenting assessment with him. She further tells me that Dr Lowenstein himself then suggested and, as she put it, offered to do a court report for them. And she confirmed, upon my careful enquiry, that it was he who had suggested this. I note of course that this report was obtained prior to the start of any of the proceedings that I have now before me, it being dated May 2015.
  • I note that Dr Lowenstein practices from Southern England Psychological Services based at Allington Manor, Eastleigh, Hampshire, and puts himself forward as, and I am reading from the third page of his report: a chartered psychologist and associate fellow of the British Psychological Society, as a qualified clinical and educational psychologist, and that he also works in the area of forensic psychology and he is registered with the health professional council, HCPC, practising in the areas of clinical, educational and forensic psychology, and having published widely in both clinical and educational psychology as well as forensic psychology. He sets out details in an extended profile in appendix 1 to his report.
  • He sets out his background training from an Australian university and a PhD from London University, that he has clinical training and a diploma in clinical and educational psychology from the Institute of Psychiatry at the Maudsley Hospital, which qualifications were obtained in the 1960s, and that he held a former post as the Principal of Allington Manor, a specialist unit for disturbed young people. He has formerly been Chief Educational Psychologist for Hampshire and has advised and lectured in various parts of the world on the subject of setting up such centres.
  • He has twice been elected to serve as Director of the International Council of Psychologists and was their President from July 2011 to 2013, and claims to be currently practising as an independent expert witness for the courts and to write reports in the areas of educational and forensic psychology as well as in personal injury and criminal cases. He claims to work and advise in the area of family problems such as parental alienation, and he also claims to have a private practice where he treats people for a variety of psychological problems.
  • There are a number of concerns that occurred immediately to the Local Authority, to the Children’s Guardian and indeed to the Court, evident from what he calls his ‘psychodiagnostic report’ on Ms MB.
  • The first such concern is that he claims, under the very first heading, that this report is for the court and is carried out by an independent expert witness of many years experience. However, there were no ongoing court proceedings at the time. I am very concerned that he suggested that a ‘court report’ should be obtained, and suggested it to the mother of a child in foster care, and a mother who evidently has ambitions for her child either to be returned to her care or to have contact with that child and, as such, is vulnerable to any suggestion that she might be assisted by these means, notwithstanding that there were no court proceedings on foot at the time.
  • A second concern is that he purported to carry out a ‘court report’ without being granted permission to see nor having sight of any of the previous court papers, without the required process of permission from a court within proceedings being sought, and without there being an agreed letter of instruction approved by the court setting out the factors upon which he ought to comment. This is in obvious contravention of the relevant provisions found in the Family Proceedings Rules 2010 r.25, Practice Direction 25A-F and the Children And Families Act 2014 s13, and falls foul of the very clear guidance provided in Re A (Family Proceedings: Expert Witness) [2001] 1 FLR 723. Experts should not accept instructions unless explicitly informed that the court has given them its permission and of the terms set out in the court order permitting their instruction.
  • And further that he did this when he either ought to have known or knows very well, given the claims he makes in relation to his expertise, his experience, his qualifications and his apparent provision of court reports, that there was a very grave risk that such a report, prepared in this way, would be wholly inappropriate for the purposes of court proceedings and would therefore risk not being admissible within those proceedings and/or of having very little weight that could be sensibly attached to it.
  • I further note that his report mentions, at paragraph 1.7, that the mother has been improved to a considerable degree as a result of the psychotherapeutic sessions she has had with her psychotherapist, and he goes on in his conclusions, at page 10, paragraph 3, and page 11, paragraph 9, to confirm his opinion that she has undoubtedly been helped considerably by her psychotherapy and has learned a great deal as a result of her psychotherapeutic sessions. However, he also states that unfortunately there is no report from the psychotherapist as to her view of how her client benefited or not from those psychotherapeutic sessions.
  • It is therefore evident on the face of this report that Dr Lowenstein is not only, in the same report, acknowledging the lack of information from the psychotherapist but also purporting to be able to come to conclusions in relation to its impact, notwithstanding the lack of that information, and also notwithstanding that he had no information as to how the mother presented prior to such sessions. It is, therefore, a report that within its own content betrays inconsistencies and internal contradiction, and an obvious lack of rigorous analysis.
  • Additionally, Dr Lowenstein appears to be primarily an educational and general psychologist as revealed by a close reading of his qualifications, posts and experience. As such his instruction would not have been supported by the Local Authority or the Children’s Guardian in any event for that reason, and the Court would be most unlikely to accept that he would be the appropriate expert to consider mother’s complex personality issues.
  • I find this report, and the mode by which it has been suggested to the mother and has come about, to be highly unsatisfactory, likely to be in breach of professional codes of conduct, certainly lacking in any observation of the rules that apply to obtaining court reports within family proceedings, and that it is not a ‘court report’ as Dr Lowenstein claims and would not be admissible. In the circumstances, I gain the very strong impression that the vulnerability of this mother may have been exploited by Dr Lowenstein, who charged her £550 for this report in the circumstances which I have just outlined.
  • I am also aware that Dr Lowenstein has been criticised in another Court by another judge in very similar circumstances.
  • It is for these reasons that I intend to obtain the transcript of this judgment, and I have asked the Children’s Guardian to ensure that the transcript is sent to Dr Lowenstein so that his attention is drawn to the significant concerns expressed by this Court about his failure to observe the rules and requirements of reporting for the court and the inappropriateness of the steps that he has taken in this case and, indeed, the inadequacies of his report’s content, even on a superficial reading, that are evident to all concerned.
  • I am also going to invite the Children’s Guardian to consider reporting this matter to the professional bodies that Dr Lowenstein claims to belong to, and I also intend, in an anonymised version of this judgment, to publish this judgment, albeit that the names of professionals involved, and Dr Lowenstein in particular, will not be anonymised in accordance with guidance and case law. And, as I say, I consider Dr Lowenstein’s approach to this Mother’s situation to have failed in any purported attempt to assist her but to have been inappropriate and potentially exploitative, and certainly of no help to her within her applications

 

 

To see if Dr Lowenstein has been involved in any reported family cases favourably, I did a search on Bailii.

 

This one, Re F (a child) 2014, he was involved tangentially, again, having reported outside of Court proceedings, but it isn’t a favourable mention.

http://www.bailii.org/ew/cases/EWCC/Fam/2014/12.html

Dr Adshead was asked about the past reports of Dr.  Lowenstein  and Dr. Holt. Dr. Adshead told me that where she disagrees with Dr  Lowenstein , is that he seems to have a rather “old-fashioned view” of personality disorder, namely that you either have it or you do not . In Dr. Adshead’s opinion, it is perfectly possible to have some degree of personality disorder and become better or worse and that there is a spectrum of symptoms.

 

Again in this one, Dr Lowenstein’s report came before the Court despite him not having been instructed or given permission to see the papers

 

Re JC (Care Order) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B185.html

 

  On the 11th December 2012 the social worker received an e-mail from EL and that attached the report from a Dr.  Lowenstein .  The father indicated that he was referred to Dr.  Lowenstein  by his G.P.

28.              At the hearing on the 21st September 2012 father had initially requested that Dr.  Lowenstein  undertake the family assessment but Her Honour Judges Coates (sitting as a Deputy High Court Judge) directed that it was Dr. Van Rooyen who was to undertake the assessment.  Dr.  Lowenstein  was instructed without the prior sanction of the Court, and/or the agreement of the other parties, and it is clear that father had disclosed some of the case documents to him.  The matter was transferred back to the County Court.

29.              In the light of the NSPCC concluding that the case is unsuitable for their reunification programme, and in the light of Dr. Van Rooyen’s addendum report, the Local Authority now take the view that JC should be placed in long term foster care; that he needs to be placed there until father has made progress on his therapy, and parenting work, and at some stage in the future it may be appropriate to consider the issue of rehabilitation.

30.              The fact that Dr.  Lowenstein  had been instructed was discussed at the case management conference on the 12th December 2012 and father made an application for further assessment of him by Dr.  Lowenstein  because he did not accept the contents of Dr. Van Rooyen’s report.  That application was dealt with by Her Honour Judge Cameron. Having heard submissions from all parties she ruled against the Court reading the report of Dr.  Lowenstein  and ruled against the father’s application for a further assessment.

There is a 2006 Court of Appeal case where he was mentioned as a possible expert but the application wasn’t pursued (so in that one, he hadn’t reported outside of Court)

Re B ( a child) O (children) 2006

http://www.bailii.org/ew/cases/EWCA/Civ/2006/1199.html

  • Coleridge J begins his judgment by reference to the decision of this court on 28 April 2005. He then identifies the main relief sought by Mr. O’Connell, and in paragraphs 6 to 8 identifies the additional relief also sought, the reaction of the other parties to it, and what happened: –

 

“Ancillary to the main applications for residence and contact, the following applications are also before the Court now. Firstly, by the Father, that the Guardian should be removed. Secondly, that a psychologist should be appointed to assess the children, in particular, a Dr  Lowenstein , the American exponent of that much questioned theory ‘parental alienation syndrome’, and if not that expert then another. He also alluded to the possibility of seeking disclosure of further documents but that application never proceeded.

And in the Court of Appeal in 2003 – again, there’s no suggestion here that Dr Lowenstein did anything wrong, but it is an unusual order for a Court to have had to make

Re G a child 2003

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1055.html

  • There have been long running proceedings in the Manchester County Court between the parents of AG born on 3 July 1996. The central issue has always been contact, or rather lack of contact, between AG and her father Mr B. I will refer to him throughout this judgment as the father. His Honour Judge Hamilton has had charge of the case for some time. There was a major hearing commenced on 10 March 2003, in preparation for which Judge Hamilton had given directions in November 2002 and January 2003. At the conclusion of the March hearing Judge Hamilton reserved his decision, handing down a written judgment on 2 May 2003. Paragraph 3 of the resulting order reads as follows:

 

“The father is prohibited from disclosing in any manner any papers or documents filed in these proceedings or their content or any school reports he may obtain to either Dr Richard Gardner or Dr Ludwig  Lowenstein  or any other expert in parental alienation syndrome or any other agency or organisation such as Families Need Fathers without the specific permission of the court.”

And another Court of Appeal case in 2000 – here, Dr Lowenstein had been properly instructed as a Court appointed expert (I note here as a ‘forensic psychologist’ ) and the Court had rejected his evidence (which doesn’t mean that there’s anything wrong with it, just that the Court disagreed with his report in that particular case)

Re L  and Others (Children) 2000  http://www.bailii.org/ew/cases/EWCA/Civ/2000/194.html

The solicitors for the parties agreed that they should jointly instruct a child psychiatrist to advise on contact and His Honour Judge Milligan made the order. It appears that the parties´ solicitors had great difficulty in finding a child psychiatrist and eventually instructed Dr  Lowenstein  who made a report. He saw both parents and G and came to the conclusion that this was a typical case of parental alienation syndrome. As the judge said, Dr  Lowenstein  has been closely associated with recognition of this syndrome. He recommended therapy, at least 6 sessions to be conducted by himself, followed by a further report. Since it was therapy, there would be problems in financing the therapy and subsequent report. The judge did not accept the unsubstantiated assertion of the court welfare officer as to emotional abuse of G. He was equally unhappy about the findings and conclusions of Dr  Lowenstein . In the report of Dr Sturge and Dr Glaser, they indicated that parental alienation syndrome was not recognised in either the American classification of mental disorders or the international classification of disorders. It is not generally recognised in psychiatric or allied child mental health specialities. It would be fair to say that Dr  Lowenstein  is at one end of a broad spectrum of mental health practitioners and that the existence of parental alienation syndrome is not universally accepted. There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in the family courts, is a long way from a recognised syndrome requiring mental health professionals to play an expert role. I am aware of the difficulties experienced in some areas in getting the appropriate medical or allied mental health expert to provide a report within a reasonable time. It was, however, unfortunate that the parents´ lawyers not only did not get the medical expert ordered by the judge, that is to say, a child psychiatrist, (although in many cases a psychologist would be appropriate), but, more serious, were unable to find an expert in the main stream of mental health expertise.
The judge, in my view, was entitled to reject the report and the oral evidence of Dr  Lowenstein , even though the psychologist was jointly instructed. Lord Goff of Chieveley said in re F (Mental Patient: Sterilisation) [1990] 2 AC1 at page 80 that experts were to be listened to with respect but their opinions must be weighed and judged by the court. The judge said
“I cannot accept the effect of what Dr  Lowenstein  has told me, namely that PAS is such a serious state that the child involved and the parent should be subjected to treatment by way of therapy with direct threats to the mother in the event of non-co-operation. It appears from the literature that some schools of PAS thought advocate the immediate removal of the child from the alienating parent and thereafter no contact with the alienating parent for a period. It also appears that ´long term psycho- analytically informed therapy in the order of years rather than months´ is the treatment of choice.”

I do not accept the submission of Mr Bates that the judge did not give reasons for rejecting the evidence of Dr  Lowenstein . The case for the father was largely based upon the suspect conclusions of the court welfare officer of emotional harm suffered by the child. The judge did give reasons and it was well within his judicial function not to accept that evidence.

And then yet another Court of Appeal case in 1999  – this time, the report having been obtained outside of Court proceedings and without the permission of the Court.

Clark v Clark and Another 1999

By a summons of 1st March the wife sought to admit fresh evidence consisting of a report from Dr  Lowenstein , a clinical psychologist, a statement from Detective Constable Shirley and her own affidavit. By a later summons she sought to introduce reports from Dr Mathews and Dr Fraser Anderson. It was agreed at the outset that all this additional evidence would be received by the court de bene esse and that any ruling on its admissibility would be deferred to final judgment. I will therefore deal straightaway with this additional evidence. The affidavit from Dr  Lowenstein  hardly meets any test for the admission of fresh evidence. He is a clinical psychologist who prepared a written report on the wife having spent several hours in her company on 8th February 1999. In a neat way this manoeuvre illustrates the extent to which the wife inhabits a world bounded by her egocentric and manipulative will unconstrained by any objective reality. Dr  Lowenstein  gave the opinion that he did because Mrs Clark restricted him to her version of events omitting to inform the psychologist that that version had been comprehensively rejected in High Court proceedings. The statement from the detective constable has greater validity in that it contradicts assertions made by the husband in letters to his solicitors in April and June 1995 to the effect that the detective constable had been obstructed by the wife in investigating a report from the husband of the theft of a picture from Wellow Park. There is perhaps just sufficient justification to permit the admission of that evidence for further investigation. As to the reports from Dr Anderson and Dr Mathews, in my opinion they fail to meet any test of admissibility. Dr Mathews’ undated report, but written in this month of April, only contains what was before the judge in her manuscript medical notes. The report from Dr Fraser Anderson simply relates to the husband’s condition in May 1997. It is dated 23rd November 1998 and it is admitted that it was requested prior to judgment. There is nothing within it which would in any way have expanded the judge’s knowledge or affected his conclusions. Consequently I would admit the statement from the detective constable and reject the three medical reports. I would add that even if admitted their contents would not have assisted her case

I will give  a caveat. There may well be many cases where Dr Lowenstein has provided a report in family Court proceedings where the Court found it useful and helpful and relied upon it, even thanking him for the valuable report. There may be hundreds of such cases. There just aren’t any reported ones. Not all cases get reported.

 

33 Comments

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

Court of Appeal – section 20 abuse

Posted on November 2, 2015 by suesspiciousminds

 

There have been several reported cases about Local Authorities misusing section 20 now, to obtain “voluntary accommodation” of children in foster care where the ‘voluntary’ element doesn’t seem all that voluntary, and therefore it was only a matter of time before the Court of Appeal fell upon such a case and made an example of it.

 

Here it is:-

 

Re N (Children: Adoption : Jurisdiction) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html

 

As you can see from the title, it is also a case about adoption and the jurisdiction to make adoption orders about children who are born to foreign parents or who live overseas by the time the order is made.  I would really want more time to ponder those parts of the judgment before writing it up.

 

This particular sentence from Aitkens LJ is probably worthy of a piece on its own – raising the issue of ‘limping adoption orders’

 

There is one further comment I wish to make. Both the President and Black LJ have emphasised that when an English court is considering making a placement order or adoption order in respect of a foreign national child, it must consider, as part of the “welfare” exercise under section 1(4) of the 2002 Act, the possibility of the result being a “limping” adoption order. By that they mean an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. There is a danger that natural parent(s) (or perhaps other parties) who oppose the adoption, will attempt to turn this factor into a major forensic battle by engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, in particular the state of the nationality of the natural parent(s). Those legal opinions might then be challenged and there is the danger of that issue becoming expensive and time consuming “satellite litigation”. I hope that this can be avoided by a robust application of the Family Procedure Rules relating to expert opinions.

 

So, focussing just on the section 20 issues  (If you want the background to what section 20 is, what drift is and why it is a problem, I’ll point you towards my most recent piece on it  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/)

 

This is what the Court of Appeal had to say  (and this is one of those judgments that the President has cascaded down – which is a posh way of saying “sent by email to all Courts saying that they must read it and follow it”)

 

  1. Other matters: section 20 of the 1989 Act
  2. The first relates to the use by the local authority – in my judgment the misuse by the local authority – of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013, yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.
  3. As I said in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11, para 100:

    “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated.”

    I drew attention there, and I draw attention again, to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam). As Keehan J pointed out in the latter case (para 37), the accommodation of a child under a section 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case the local authority ended up having to pay substantial damages.

  4. Then there was the decision of Cobb J in Newcastle City Council v WM and ors [2015] EWFC 42. He described the local authority (paras 46, 49) as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re CB (A Child) [2015] EWCA Civ 888, para 86, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division in Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), another case in which the local authority had to pay damages.
  5. Moreover, there has in recent months been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong, on occasions withering, language, for misuse, and in some cases plain abuse, of section 20: see, for example, Re P (A Child: Use of S.20 CA 1989) [2014] EWFC 775, a case involving the London Borough of Redbridge, Re N (Children) [2015] EWFC 37, a case involving South Tyneside Metropolitan Borough Council, Medway Council v A and ors (Learning Disability: Foster Placement) [2015] EWFC B66, Gloucestershire County Council v M and C [2015] EWFC B147, Gloucestershire County Council v S [2015] EWFC B149, Re AS (Unlawful Removal of a Child) [2015] EWFC B150, a case where damages were awarded against the London Borough of Brent, and Medway Council v M and T (By Her Children’s Guardian) [2015] EWFC B164, another case where substantial damages were awarded against a local authority. I need not yet further lengthen this judgment with an analysis of this melancholy litany but, if I may say so, Directors of Social Services and Local Authority Heads of Legal Services might be well advised to study all these cases, and all the other cases I have mentioned on the point, with a view to considering whether their authority’s current practices and procedures are satisfactory.
  6. The misuse of section 20 in a case, like this, with an international element, is particularly serious. I have already drawn attention (paragraphs 50-51 above) to the consequences of the delay in this case. In Leicester City Council v S & Ors [2014] EWHC 1575 (Fam), a Hungarian child born in this country on 26 March 2013 was accommodated by the local authority under section 20 on 12 April 2013 but the care proceedings were not commenced until 10 October 2013. Moylan J was extremely critical of the local authority. I have already set out (paragraph 115 above) his observations on the wider picture.
  7. What the recent case-law illustrates to an alarming degree are four separate problems, all too often seen in combination.
  8. The first relates to the failure of the local authority to obtain informed consent from the parent(s) at the outset. A local authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent. We dealt with the point in Re W (Children) [2014] EWCA Civ 1065, para 34:

    “as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.”

  9. In this connection local authorities and their employees must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 46:

    “(i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under s 20 to have their child accommodated by the local authority and every local authority has power under s 20(4) so to accommodate provided that it is consistent with the welfare of the child.

    (ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

    (iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by s 3 of the Mental Capacity Act 2005, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

    (iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

    (v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

    (a) Does the parent fully understand the consequences of giving such a consent?

    (b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

    (c) Is the parent in possession of all the facts and issues material to the giving of consent?

    (vi) If not satisfied that the answers to (a)–(c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

    (vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

    (viii) In considering that it may be necessary to ask:

    (a) What is the current physical and psychological state of the parent?

    (b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

    (c) Is it necessary for the safety of the child for her to be removed at this time?

    (d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

    (ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

    (x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.”

  10. I add that in cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.
  11. The second problem relates to the form in which the consent of the parent(s) is recorded. There is, in law, no requirement for the agreement to be in or evidenced by writing: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 53. But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature.
  12. A feature of recent cases has been the serious deficiencies apparent in the drafting of too many section 20 agreements. In Re W (Children) [2014] EWCA Civ 1065, we expressed some pungent observations about the form of an agreement which in places was barely literate. Tomlinson LJ (para 41) described the agreement as “almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress.” In Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), the Deputy Judge was exceedingly critical (para 65) both of the terms of the agreement and of the circumstances in which the parents’ ‘consent’ had been obtained. There had, he said, been “compulsion in disguise” and “such agreement or acquiescence as took place was not fairly obtained.”
  13. The third problem relates to the fact that, far too often, the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration.
  14. This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

    “Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

    This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

  15. It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above: i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

    ii) The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

    iii) The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

    iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

    v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

  16. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

 

The marker is down then.  Any LA facing a challenge about misuse of section 20 is on notice that damages may follow, and certainly where the misuse begins after today’s judgment one would expect damages to play a part.

 

The President also tackles here something which has been on my mind for a month. The practice by which agreement is reached that an Interim Care Order is not needed, because the parent agrees (either in a section 20 written agreement) or in a preamble in the Court order that they “agree to section 20 accommodation and agree not to remove without giving seven days notice”   – that is a fairly common compromise which avoids the need for an ICO or to have a fight in Court about the child’s legal status where it is agreed by the parents that the child should stay in foster care whilst assessments are carried out.

 

As the President says here

 

para 169

 I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

 

and here

para 170

iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8)

 

I don’t think that this is legally permissable any longer. (The Court of Appeal could, of course, have said explicitly that such a fetter can only be made where the parent agrees after having had independent legal advice, but they didn’t)

That means that Courts up and down the country are going to be faced with arguments as to whether the right thing for a child is to make an Interim Care Order, OR to rely on a section 20 agreement that could be withdrawn at any time  (including the obvious nightmare scenarios of “twenty minutes after we leave Court” or “at five to five on a Friday night” or “at 5pm on Christmas Eve).

 

The other thrust of the President’s comments on section 20 (8) objections are that as a result, surely even a delay in return of the child to place the matter before the Court for an EPO hearing is going to be a breach unless the parents themselves agree to that course of action.  That in turn raises the spectre of an increase in children being taken into Police Protection, since a forseeable outcome of this case is:-

 

(A) Parent says at 4.55pm on Friday “I want little Johnny home now, I object to section 20”

(B) LA are in breach of the Act and may be committing a criminal offence if that child is not on his way home by 4.56pm

(C) Courts aren’t likely to be able to hear an EPO application on one minutes notice

(D) The police remove under Police Protection instead

 

  [I seriously don’t recommend that as an option as a result of the many cases which batter social workers and police officers for misuse of Police Protection, but I do wonder whether the current case law on Police Protection really works after Re N  – those cases making it plain that it should be the Court decision not a police decision only work if there is time to place the matter before the Court.  BUT until one of them is challenged and the law on Police Protection changes, almost any removal under Police Protection can be scrutinised and perhap[s condemned.  And of course the alternative to THAT, is that more and more cases will instead find their way into care proceedings.  I think that the decisions on Police Protection and section 20 are right, but if we have learned nothing else since the Family Justice Review it should be that fixing one problem often has substantial unintended consequences and causes another problem elsewhere]

 

So, LA lawyers up and down the country, get hold of the current section 20 agreement, and rewrite it to comply with this judgment.

30 Comments

Posted in adoption, case law, international, judicial spanking, section 20, social work and tagged , , , , , , , , , . Bookmark the permalink.

It would be difficult to find a more callous and calculating attorney

Posted on October 27, 2015 by suesspiciousminds

Yet another financial abuse case. Once again, one where the Deputy or Attorney would have benefited greatly from having one of my coffee mugs with “It’s not your Fucking Money” printed on it.

 

Re SF 2015

 

http://www.bailii.org/ew/cases/EWCOP/2015/68.html

 

In this case, Sheila who is now 87 had appointed her son Martin to manage her financial affairs through an Enduring Power of Attorney.

 

Martin had withdrawn from her funds, £117,289.45 for “out of pocket expenses”, whilst not paying his mother’s care home fees which had been mounting up and had reached £29,000 in arrears.

In justifying this, he stated that he had been ‘billing’ at a daily rate of £400 per day, which is what he would charge in his role as a consultant.  This then included billing his own mother for visiting her. Nice.

 

“In my first witness statement dated 30 March 2015 I stated … that Martin had claimed a total of £49,143.19 since the EPA was registered on 7 August 2009. In Martin’s witness statement he has stated that Hugh James Solicitors sent him a cheque for the amount of £68,146.26. Martin has stated he paid this into his own account in part payment for the costs he had incurred. This amount added to the £49,143.19 amounts to a total of £117,289.45. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses.

Martin states that he charged for the visits he made to Sheila when he would visit to check for signs of physical abuse due to her mistreatment at [her previous residential care home in Llandrindod Wells]. Martin is an attorney under the EPA, which covers property and financial affairs only. Therefore his visits to check for physical abuse, even if they were necessary to safeguard Sheila, were not part of his role as attorney. Therefore, the Public Guardian believes Martin was not entitled to claim expenses for these visits.”

 

 

  1. As regards the amount of remuneration he has paid himself, Martin said in his witness statement dated 1 October 2015 that:

    “In my view these are not excessive, considering I have been fighting this battle with Powys LHB since 2004. If I had not spent the large amounts of time on this case, then my mother’s estate would still be illegally paying the full costs of care, and the 2013 compensation would never have been forthcoming. Finally, I have not taken any gifts from the estate (which could have been in the region of £33,000 from 2004 to 2015).

  2. At the hearing Martin said that he had charged his mother a daily rate of £400 for visiting her and for the work he put into the claims against Powys Local Health Board. This was his usual daily charging rate when he was a self-employed independent consultant prior to his retirement.
  3. In response to the Public Guardian’s application generally, Martin said:

    “I see no need to replace myself. I am the sole heir and because of my mother’s dementia and current poor health, there is no need to protect the estate’s financial interests, which are effectively mine.The OPG have now recommended that [a deputy] is appointed from their own panel. I would expect any appointed deputy from the OPG to seek to assist the Police in bringing criminal charges against Powys LHB, and to recover the monies owed from Powys LHB. If this is not part of the remit then appointing will be a waste of time and any costs incurred will be to the detriment of my mother’s estate and my own financial interest in my mother’s estate. However, it is apparent that the OPG do not want to pursue the recovery of monies owed from the Powys LHB. The OPG appears to be acting on behalf of Powys CC and Powys LHB, and as such is effectively colluding in their fraudulent behaviour. Consequently I believe that the OPG is not a fit or proper organisation to protect the interest of my mother’s estate.

    On the face of it, the OPG’s desire for me to repay money from my mother’s estate makes little sense. I am the sole beneficiary of the estate and any restitution I made would come straight back to me on my mother’s death, which considering her present state of health, is likely to be sooner rather than later. “

 

Once again, we have a Deputy or Attorney mistakenly thinking that becoming a Deputy or Attorney is actually Cate Blanchett for early access to an inheritance that they expect to acquire.  Nor is it, as he claimed, the purpose of the role to safeguard his own inheritance.

 

All of this led the Judge, Senior Judge Lush to conclude this :-

 

 

  1. One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust.
  2. Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.
  3. The assertion that he hasn’t taken “any gifts from the estate” adds nothing to his credibility. If anything, it highlights his lack of it. He was referring to the £3,000 annual exemption for inheritance tax (‘IHT’) purposes, but Sheila’s estate is well below the threshold at which IHT becomes chargeable and no one is entitled, as of right, to receive a gift of £3,000 each year.
  4. As regards the non-payment of Sheila’s care fees, I agree with the Public Guardian’s stance that “whilst Martin attempts to resolve the dispute (with Powys Local Health Board), it would be in Sheila’s best interests that he continues to pay her care fees.”
  5. There is no evidence to support Martin’s suggestion that “if my mother’s care fees are paid from now onwards, Powys LHB will seek to avoid refunding monies owed.” The letter from Powys Local Health Board to the OPG, dated 12 March 2015, to which I referred in paragraph 21 above, shows that the Health Board has acted in good faith and reimbursed any fees that were overpaid in the past. Martin, on the other hand, has persistently acted in bad faith.
  6. As for his claim for reimbursement of out-of-pocket expenses for acting as his mother’s attorney, paragraph 6 of Part A of the prescribed form of Enduring Power of Attorney, which he and his mother signed on 23 October 2004, stated that:

    “Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) are professional people, for example solicitors or accountants, they may be able to charge for their professional services as well. You may wish to provide expressly for remuneration of your attorney(s).”

  7. Sheila did not expressly provide for Martin to be remunerated and if he intended to charge a daily rate of £400 for acting as her attorney, he should have applied to the court for authorisation pursuant to paragraph 16(2)(b)(iii) of Schedule 4 to the Mental Capacity Act 2005. By not doing so, he behaved in a way that contravened his authority and was not in the donor’s best interests.
  8. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses. I would put it more strongly than that. I believe that charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.
  9. Martin suggested that the appointment of a panel deputy would be a waste of time and money because his mother’s estate is effectively already his. I disagree. The panel deputy will, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration.
  10. Having regard to all the circumstances, therefore, I am satisfied that Martin is unsuitable to be Sheila’s attorney, and I shall revoke the EPA and direct the Public Guardian to cancel its registration. I shall also direct an officer of the court to invite a panel deputy to apply to be appointed as Sheila’s deputy for property and affairs.

 

 

Is he the most callous attorney ever?

 

Well, in trying to think of a worse one, I can only come up with Harvey Dent from the Batman universe,  the District Attorney who later became a gangster named Two-Face.   [And to be honest, that may be slightly unfair on Harvey  – though possibly not as unfair as Tommy Lee Jones portrayal of him in Batman Forever, in which he was so hammy he needed a bodyguard to protect him from David Cameron between takes ]

 

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

7 Comments

Posted in case law, costs, court of protection and tagged , , , , , , . Bookmark the permalink.

Fast and the Furious – Tunbridge Wells Drift

Posted on October 21, 2015 by suesspiciousminds

 

 

Okay, this piece isn’t really about Vin Diesel and The Rock racing cars around the backstreets of Kent. But it is about a case about  Medway (which is sort of near Kent) weren’t fast, and as a result the Judge got furious. And where the central issue was drift.  Section 20 drift, y’all.

(*Tunbridge Wells have done nothing wrong in this story – I just needed a “T” town for the Tokyo Drift reference. )

 

I’ve been writing about section 20 drift for a while, but perhaps given that this is a really strong judgment, it is worth a quick recap.  The Human Rights Act compensation to be paid to the mother by Medway was £20,000 and to the child also £20,000.   (And possibly costs to follow – see bottom of this post for an explanation of that)

 

 

  • Without a court forum it was solely the local authority that empowered itself to make decisions about a child unlawfully held by them, with simply a check in the form of the IRO system on the progress and welfare of a child in local authority care (and which system I consider further below).
  • T drifted in foster care without any clear focus on her contact, her need for therapy or her and her Mother’s rights to family life. I find shocking the inattention to contact, such that Medway Council is not even able to specify clearly what has and has not taken place, but is obliged to admit to serious gaps in contact and flaws in its support for this essential aspect of their family life. There would not only have arisen a duty under s34 Children Act 1989 to promote contact if an ICO were in place, but both T and Mother would have had a voice, legal advice and representation within proceedings to pursue their concerns about her accommodation, care plan, therapeutic needs and contact and Medway Council ‘s care of T would have been subject to the necessary judicial scrutiny applying the relevant careful tests relating to the threshold and welfare criteria set out in the Children Act to ensure interference with their family life was in T’s best interests, necessary and proportionate.

 

 

Section 20 is the power under the Children Act 1989 for children to be in foster care without a Court order – it is categorised as a voluntary foster placement. Typically, the parents are asked to consent, or even they come forward and say that they can’t manage, aren’t coping or the child needs a break.  Section 20 can be a really useful tool – if there’s genuine cooperation between the parents and the social worker, nobody wants to force the case into Court and up the stakes.

Where it starts to get problematic, as we’ve seen from a number of cases over the last three years, is where the consent and cooperation isn’t that genuine but that parents either don’t understand or have explained to them what section 20 really is and that they can say no, or are pressured/cajoled/threatened into agreeing, or in the latest spate of cases where a Local Authority is relying on a parent simply not objecting to the foster placement.  There are reasons why a parent might not come forward and object – most obviously that without access to a lawyer or it being explained they don’t even know that they can, or they are afraid of rocking the boat, or they are having faith that the system will work and do the right thing, or that they are intimidated that if they object then the case will be rushed off to Court and that this will be bad for them.

So ultimately, section 20 drift cases are about an imbalance of power – the State is taking advantage of the fact that parents without access to a lawyer won’t object or will agree to section 20.  And so it becomes an alternative to going into Court proceedings. Court proceedings are expensive, and involve a lot of work (going to Court, writing statements and chronologies etc) and of course in Court social workers don’t necessarily get things their own way and the Court can disagree with them.  So there can be a temptation, if the parents aren’t demanding the child back, to just keep going with the section 20 foster placement. And this of course is the drift element – these children can wait months or even longer, sat in limbo – nobody has decided whether the child can ever go home or whether the child’s future lays elsewhere, the case just drifts.  By the time the case finally gets to Court, that relationship between child and parent can be hard to put back together, and the problems the parent has may take time to address and it can be harder for them to get the child back.

Section 20 drift, in short, is bad.

It may be happening more as a result of a series of pressures – firstly a general demand within Local Authorities to save money and cut costs (due to significant cuts to their budgets) and secondly the reforms to Care proceedings that mean that more and more is expected to be done before going to Court – there can be a temptation to keep the case out of Court until all of the assessments are done and everything is just perfect. It is a bit of an unintended consequence – which we’re seeing a lot of since the PLO (Public Law Outline) reforms came into being.  This isn’t a problem limited to Medway here, or Brent as in the last reported case, or Gloucester/Bristol where their Judge has really seized the issue.  I’ve worked in a lot of Local Authorities, I’ve worked against a lot of Local Authorities and I’ve seen it all around the country.

 

That’s the background.

On with this case

Medway Council v M &T 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B164.html

 

This case was decided by Her Honour Judge Lazarus  (readers may recall her from the case where a mother tape recorded a foster carer being dreadfully abusive to her https://suesspiciousminds.com/2015/06/03/tape-recording-paying-off/   )

 

When the child T, was five, she came to the attention of Medway Council, and her mother M, was having mental health problems and was detained under the Mental Health Act. Medway placed the child in foster care, but didn’t actually have mum’s consent (she probably would not have had capacity to give it in any event)

 

 

 

  • T was born on 9.1.08, making her 7 years 9 months old now, and just 5 when she first came to the notice of Medway Council. This was due to a referral made on 8.2.13 by T’s school that T was being collected by a number of adults and concerns that Mother may be a victim of trafficking. Coincidentally, within a few days T was placed in emergency foster care, as her Mother was detained in hospital under the Mental Health Act on 11.2.13.
  • It is clear that Mother was too unwell to discuss T’s accommodation and there are no records whatsoever of any discussion with Mother of T’s whereabouts and care until her discharge in August 2013. It is likely, and there is no evidence to the contrary, that there was no proper explanation to her within this six month period, and Medway Council do not suggest there was, albeit I accept that for some of this time she would have been suffering from severe and disabling mental ill-health. There is certainly no document suggesting that there was any agreement by Mother to this accommodation. What Medway Council claims is that this was a different kind of lawful accommodation under s20, until she was well enough to consider T’s accommodation by Medway Council. It was not, and I shall deal with this further below.

 

 

That argument you may recall from the case I wrote about last week, decided by Her Honour Judge Rowe QC  – in which she decided that the power under section 20 needed to be exercised with capacitious consent, and not merely relying on the absence of objection.

 

Unlawful removal of a child, compensation paid

 

[That’s the one where I used the comparison of a 10 year old assuming that it was okay to eat all of the Penguin biscuits whilst his mum is upstairs because “mum didn’t tell me that I COULDN’T]

 

In this case, T remained in foster care ostensibly under section 20 until care proceedings were issued – the period involved was 2 years and 3 months. She was in ‘voluntary’ foster care rom February 2013 until proceedings were finally issued in May 2015.  The mother had not even known that this had happened until August 2013, some SIX MONTHS after the child was taken into foster care.  Mother and baby are currently together in a specialist foster placement, and I wish them both well.  As the Judge points out, this is the longest reported case of section 20 drift.

 

The Judge went through everything very carefully (it is an extremely well-drawn judgment and would be recommended reading for anyone dealing with such a case – particularly the analysis of damages)

 

The conclusions were :-

CONCLUSION

 

  • For all of the above reasons I find that Medway Council ‘s accommodation of T and her removal from her Mother was unlawful, and as a result I have no need to go on to consider whether it was ‘necessary’ within the meaning of Article 8(2) ECHR.
  • I also find that Medway Council failed to issue proceedings in a proper and timely manner. This was despite warnings from June 2013 onwards. I have not found it possible to understand why there arose the original misunderstanding of the correct legal approach, why the advice given was not followed, why further legal planning meetings were not held until 2015, nor even why proceedings were not issued immediately in 2015 once the matter was looked at again by Ms Cross in January. The period involved is 2 years and 3 months, the longest currently reported in any case reported on this issue to date.

 

REMEDIES – JUST SATISFACTION

A. DECLARATIONS

 

  • T and Mother are entitled to the following declarations:

 

a. The local authority breached their rights under Article 8 ECHR in that they

i. Unlawfully removed T from Mother’s care on 11.2.13;

ii. Failed to obtain properly informed capacitous consent for T to be accommodated, or to consider/assess adequately the question of the Mother’s capacity to consent, at that date or subsequently;

iii. Accommodated T without Mother’s consent between 11.2.13 and 7.5.15;

iv. Failed to inform Mother adequately or involve her sufficiently in the decision-making process in relation to T;

v. Failed to address the issues relating to their relationship and contact between them adequately;

vi. Permitted unacceptable delay in addressing all of the above.

b. The local authority breached the rights of T and Mother under Article 6 ECHR in that they failed to issue proceedings in a timely manner.

 

What were Medway going to do to avoid this in the future?

 

 

  • Ms Cross has set out in her statement a number of vitally necessary improvements to Medway Council’s procedures and performance which I heartily welcome, particularly as this is not the only case where the use of s20 by Medway Council has been of concern (I am aware of at least three such others, including a reported judgment of mine earlier this year). The proof, as they say, will be in the pudding and depends on consistent and rigorous application of these reforms. They are as follows:

 

a. “During the period of January to July 2015 we have reviewed a number of cases where the child/ren are accommodated under S20 and where the child/ren are aged 12 and under. Where required we have issued or are issuing proceedings;. We have begun this process for children aged 12 and over and this will complete by 1st October 2015.

b. These reviews will continue and with immediate effect we have agreed that our Legal Gateway Panel, chaired by the Head of Service for Advice and Duty, Child Protection and Children in Need, will continue to monitor and track children already accommodated under S20 and will in future review all new cases involving s20;

c. The reduction in the use of S20 accommodation is built into all our service and improvement plans

d. We have reviewed how court work is undertaken within the LAC & Proceedings service and going forward will be targeting this work at the social workers who have the most suitable skills for court work;

e. Training has been provided in recent weeks for social workers on legal processes and proceedings, including the issue of s20, and this will continue on a rolling basis throughout the year.

f. We will be holding workshops on the use of S20 in September and October to provide clear guidance and support for Social Workers to ensure they are equipped to deal with any s20 issues arising and that they fully understand how S20 should be utilised and monitored. We will be providing new policies and procedures for staff across CSC in the use of s20. We plan to have these finalised by September 18th and we would be happy to share these with the Court and partner agencies including Cafcass at our quarterly meetings with the Judiciary and other agencies.

g. At monthly meetings between the 2 Heads of service from CSC and the Head of Legal S20 will be a standing agenda item and we will discuss each child who has been accommodated under s20 in the intervening month to satisfy ourselves that the appropriate management oversight and case related activity is in place.

h. I am in discussion with the Head of Adult Mental Health services to organise workshops for staff on capacity issues and deprivation of liberty (DOL’s) awareness. I hope that these workshops can be completed by 01.11.2015.

i. We have an adult mental health duty social worker located within our advice and duty services to advise and assist on those cases referred to us where the parent/s have a mental health or learning disability.

j. We are organising PAMs training for a number of staff so that we have more staff located within CSC who are able to assess parents with a learning disability in order that we can improve the service provided to them. We hope that this will have taken place by 01.12.2015.

k. We have increased management capacity and have formalised an Operational Manager post in each of the service areas. They will have direct responsibility for ensuring that court work proceeds in a timely manner and that work is of a high standard

l. S20 cases will also be reviewed at a monthly Permanence Panel wherein the permanence planning for LAC children is reviewed. This panel, chaired by my HoS colleague has attendees from Legal services, the Principle IRO and the adoption service.

m. As a result of this review I am also working with my colleagues to review the S20 form that parents sign and we are introducing a checklist for staff when seeking S20 accommodation to ensure that they address all the salient issues with parents. These issues will include considering the parent/s needs arising from a mental health/learning disability. These reviews will have completed by 31.08.2015 and the updated forms will be in use thereafter.

n. Finally the reviewing service have implemented a new review whereby the allocated IRO will review all cases between the LAC review (ie every 6 weeks) to ensure that all planning is on track. Where required concerns will be escalated to the appropriate Operational Manager and if there is still no resolution to the relevant Head of Service.”

 

 

Now, an important check and balance on social worker’s actions or inactions is supposed to be the Independent Reviewing Officer system. The IROs are supposed to hold social workers to account and make sure that things like this don’t happen.  There are regular reviews of children’s cases when they are in foster care. What ought to have happened at those reviews was that the IRO should have got the social workers to commit to either a plan of short assessment and then review the outcome, or make a decision to return the child to mother’s care, or make a decision that the child couldn’t go home and make the Court application to have the child’s long term future resolved. That didn’t happen.

 

LOOKED AFTER CHILDREN REVIEWS & INDEPENDENT REVIEWING OFFICERS

 

  • Ms Dunkin’s statement is helpful in its analysis of the history and the role of the Independent Reviewing Officers (IROs). They are supposed to perform a crucial role monitoring the care of Looked After children by reviewing and improving care planning and challenging drift and delay.
  • It is highly concerning that there have been five IROs in the last two years before proceedings were issued.
  • There was no IRO allocated until 18.3.13, five weeks after T was accommodated, so she was therefore not afforded a review of her care within 20 days of her accommodation as is required under the IRO Handbook and Placement Regulations. By the end of May that IRO is recorded as being on long term sick leave, and this is considered to be the reason why there is no minute of the first LAC review available.
  • Every LAC review minute inaccurately records/repeats the date of T’s accommodation as having taken place a month later than it occurred.
  • I commend the second IRO LC for correctly requiring a legal review of Medway Council’s position not to take proceedings (11.6.13), however despite it not having taken place by the next LAC review that LC conducted there then began the series of failures by LC and each subsequent IRO to challenge the Social Worker and team manager and director of services about failing to follow the clear recommendation initially made in June 2013.
  • No subsequent LAC reviews (18.9.13, 17.4.14, 8.7.14, 25.11.14) made any further clear recommendations as to parental responsibility, legal status or the use of s20 although the issues are mentioned, save to repeat (presumably by cut and paste as opposed to direct engagement with the issue) the same paragraph that set out the original recommendation of 11.6.13. By 8.7.14 what is added is a recommendation to seek legal advice with a view to securing T’s permanency. I am concerned that this betrays that the review process and LC failed to recognise both the full range of T’s needs and her and her Mother’s rights to family life, and had moved on simply to consider how to regularise what had by then become the status quo, T having been in foster care for almost 18 months at that date. This is particularly worrying as that LAC review meeting also demonstrated Mother’s vulnerability: she was accompanied by an extremely domineering ‘friend’ who described herself as an ‘auntie’ (and whom the Poppy Project is concerned may have had some involvement in Mother’s exploitation), and which led to a decision that all future meetings must be conducted with Mother alone.
  • Contact is touched on in the LAC reviews, but no clear picture or recommendation emerges. For example, the review of 17.4.14 mentions the reintroduction of contact I have already referred to, but little further is pursued. At the same meeting the problem with T’s passport and therefore the implementation of respite care during her foster carer’s holiday was raised and not addressed adequately, let alone robustly.
  • Overall, it is clear that although the fundamental fault lay with Medway Council by its social work and legal teams, the IRO process failed T, and by extension her M, by frequent changes of IRO and each one failing to rigorously apply themselves to the outstanding issues with attention or subsequently following up Medway Council’s failings, and if necessary escalating the issue. Ms Dunkin rightly concedes that previous IROs were not robust enough in this respect.
  • The statutory provisions, regulations and the guidance in the IRO Handbook covering the function and performance of IROs has been carefully reviewed elsewhere (see for example A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) at paragraphs 168-217 in particular). I do not propose to make specific declarations in relation to this aspect of the case. No such declarations are sought, and the appointment and management of IROs falls to the relevant local authority in any event. Additionally, I take into account that the correct recommendation was made in June 2013 and subsequently repeated, albeit it was not followed up adequately or at all, and was ignored by the local authority from the outset.
  • Ms Dunkin confirms that since October 2014 there has been a ‘root and branch review’ of the IRO service: immediate allocation of an IRO, with 90% of reviews now on time; improved IRO requirements and monitoring; performance and training audits with areas of improvement requiring action within a set timescale; direct input by IROs onto the electronic system at Medway Council so alerting team managers to implement their own quality and performance processes; shortened timescales for escalating challenges with a 20 day period before it is referred to the Director of Children’s Services; and mid-way reviews between LAC reviews enabling the IRO to check on progression of care plans and recommendations. Ms Dunkin as Principal Reviewing Officer now sits on the Legal Gateway Panel, resource panel and permanency panel.
  • Again these are welcome and necessary improvements, but their effectiveness will depend upon rigorous application of those improved practices.

 

 

 

On the issue of costs, we have a peculiar situation at present, where if a parent follows the law which is to make the Human Rights Act compensation claim within care proceedings, the Legal Aid Agency (the Government department who pay for the ‘free’ legal representation of a parent within care proceedings) will take all of the compensation to cover the legal costs, and the parent or child would only get anything left over.  That pretty much sucks.  Is there anyone who thinks that it is the Legal Aid Agency who should be compensated for what was done to mother and this child? Of course not.

 

So, apparently there are moves afoot to reverse this fairly recent and frankly moronic policy, and the Judge reserved the issues of costs until then.  If the policy doesn’t change, I’d expect an order that Medway also pay mother and T’s court costs, so that the compensation award goes to the mother and T rather than to a Government agency.

 

While I have assessed this award, I am asked for the time being not to order its payment nor to consider costs. This is at the request of the Official Solicitor who is currently investigating the most appropriate way to manage such an award for a protected party within care proceedings given that this is an award properly made within care proceedings (cf. Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam)) and Mother is rightly in receipt of non-means and non-merits tested Legal Aid, but where concerns exist that the Legal Aid Agency may intend to take steps purporting to claim the whole costs of Mother’s representation in these care proceedings from that award. I shall therefore deal with the issue of ordering payment and costs at a later date.

 

 

The Judge here also considered the issue that I raised in the Her Honour Judge Rowe case, as to whether a very short piece of section 20 accommodation if the parent is unable to care for the child and one is establishing whether that’s a really short period  (i.e mum goes into hospital overnight, but the next day is released with medication and is fine) might be warranted – because the alternative is for the mother to be sectioned and on the same day social workers go to Court to get an Emergency Protection Order which would be awful if she happened to be released the next day.

 

It could be argued that where there is such an emergency as this, and indeed as in the Brent case, that it may be reasonable to wait for a short period without taking proceedings in order to review the parent’s progress in hospital in the event that their ability to care for their child might return. This would then avoid the stress and expense of time and resources in bringing unnecessary proceedings that would then have to be withdrawn. I concur with HHJ Rowe’s analysis that a month in the Brent case was too long. It may be reasonable, in rare and very clear cases where such enquiries could be reasonably considered as likely to bear fruit, to wait for at most a day or two while the local authority explored the possibility of an imminent return to a parent’s care. I bear in mind here that both in logic and principle such a period should be less than the time limit of 72 hours which is stipulated in the Children Act as applicable to PPOs. However, otherwise, save perhaps for the first few hours while the child’s status is considered, and advice sought and steps taken to issue proceedings, it must be right that proceedings are brought as immediately as possible for all the reasons discussed above.

 

I think that’s really sensible and pragmatic.  Like the Brent case, this is not legally binding precedent on anyone other than the parties who were in the case, but it would certainly be persuasive in such cases and equally a Local Authority who go beyond that 72 hour period are badly exposed to a Human Rights claim of this type.

8 Comments

Posted in case law, costs, section 20, social work and tagged , , , , , , , , , , . Bookmark the permalink.

We’ve gone on holiday by mistake

Posted on October 20, 2015 by suesspiciousminds

 

 

The outcome of the President’s case involving parents who were found, with their four children (aged between 20 months and 7 years old) around the border between Turkey and Syria, with the suspicion that they intended to cross the border and join up with the conflict going on in Syria.

 

I wrote about the initial decision here, in which the President set out a detailed routemap for recovering such children and bringing them back into the jurisdiction

ISIS and children being taken to Syria

 

At that time, there were competing explanations

 

(a) The parents had become radicalised and sought to join the conflict in Syria, potentially with ISIS and thus exposing the children to significant danger

or

(b) the parents explanation, that they were on holiday in Turkey as a family, with no sinister motives at all.

I note that the family had travelled to this holiday in Turkey by way of ferry from Dover, and then by public transport all the way, and did so without telling anyone.  Perhaps that’s to avoid detection and suspicion (option a) or perhaps the family really like buses or are afraid of flying, and have a strong sense of privacy (option b)

In any event, one would now think in retrospect that holidaying with a baby and 3 young children near the Syrian border was something of a mistake.

 

The next bit of the hearing is to look at what should happen next.

 

Re M (Children) No 2  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2933.html

 

The outcome of this hearing is that the children are all at home with their parents, under no orders at all, and the children’s passports have been returned.

 

Now, there’s always been a background residual concern that in the concerns about radicalisation and terrorism that a wholly innocent family could be caught up and subjected to what must be a terrifying process. So if that is what has happened here, that would be hugely newsworthy.

Equally, if option (a) is what actually happened, and the family have subsequently satisfied a Court that they are safe now, that would be hugely newsworthy.

 

Annoyingly, we can’t be 100% sure of either option. The Court do not set out what findings, if any, were made about the children’s time near the Syrian border in Turkey.  It may be that the Court was not asked by any party to make such a finding, or that the parents made concessions. We just don’t know.

The closest we come is this :-

 

At a further hearing on 2 June 2015 I directed the appointment of an independent social worker, Ms RT, to address matters which, understandably, the guardian did not feel qualified to address, in particular the question of whether the parents can care adequately for the children and prioritise their needs, having regard to their religious beliefs and in circumstances when their allegiance to those beliefs could compromise the safety of the children. Ms RT’s report is dated 16 August 2015. It is a detailed, impressive and compelling piece of work. Because the family’s identity is in the public domain, I do not propose to go through the report in any detail. It is enough for me to quote one brief passage:

“It is my assessment that the intervention of the state has been a wakeup call for this couple … It is my assessment that their current beliefs do not pose a risk or will compromise the safety of their children … [They] are good parents and they are able to care for all their children. I see no reason whatsoever to remove the children from their care.”

The local authority and the guardian accept that conclusion and the analysis that underpins it. So do I.

 

It doesn’t feel ideal that we have to infer from one sentence fragment in a judgment  ‘that this has been a wakeup call for these parents’ that the more likely explanation for the children’s presence near the Syrian border was a malign one, not a benign one.

 

But, one could also read it that the ‘wake-up call’ is that the parents now realised that Syria was a dangerous part of the world and that their holiday to Turkey was ill-advised and they would never make that sort of foolish mistake again.

I know which reading I think is right, but the problem legally is that an allegation that the parents had planned to take their children into Syria is an allegation that needs to be proven – the parents don’t have to prove their innocence. In the absence of a clear finding, then it didn’t happen.

 

The order says

 

  1. Having regard to all that material, and all the other evidence before me, I had no hesitation in agreeing with the course proposed by the local authority, endorsed by the guardian and agreed by the parents. Accordingly, at the final hearing on 5 October 2015 I made an order in the following terms:

    “UPON the court receiving the independent assessment of RT dated 16 August 2015 and the position statements of the applicant local authority and children’s guardian, the contents of which recommend the discharge of the wardship orders currently in place on the basis that the identified risks are manageable under child in need plans and ongoing cooperation by the respondent parents with the applicant local authority

    AND UPON the parents agreeing in full to the terms of this order

    AND UPON the court indicating that a brief anonymised judgment will be handed down in writing on a date to be notified

    BY CONSENT IT IS ORDERED THAT:-

    1 The wardship orders first made in respect of the subject children on 4 May 2015 and renewed thereafter on 8 May 2015 are hereby discharged.

    2 The order dated 8 May 2015, requiring the applicant local authority to retain the parents’ and children’s passports to the order of this court is hereby discharged, whereupon the local authority has agreed to return the said passports to the parents.

    3 There be no order as to costs save for detailed public funding assessment of the respondents’ costs.”

  2. It follows that the proceedings are now at an end. I leave the final word to the parents, who say, and I accept, “wish to put the incident behind them and concentrate on being the best parents for their children, with the continued support of their family and friends.”

 

 

Again, that order sets out that there are identified risks, but doesn’t actually identify them. Are those ‘identified risks’ that the parents had planned to take the children into Syria but have now come to their senses, or that the parents are the worst holiday planners since Withnail?

 

"Are you the farmer?"

“Are you the farmer?”

 

Perhaps the people involved in the case know definitelively what happened, but given the importance of such cases nationally, particularly if these parents were exonerated from suspicion, it might have been rather important to actually spell it out.

 

[It may be that the fudge here is because unusually, the identity of the family is known, and they have to live within their local community, but the ambiguity isn’t helpful if they were actually exonerated and considered by a Court to have actually just taken a really badly located holiday.]

 

 

3 Comments

Posted in assessment of risk, case law, inherent jurisdiction, international and tagged , , , , , , . Bookmark the permalink.

A stance which could not be described as honourable

Posted on October 16, 2015 by suesspiciousminds

 

I don’t often write about Court decisions relating to British citizenship, but this one

 

Bondada and Secretary of State for the Home Department 2015

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/2661.html

 

had some incendiary stuff in it.  We all got fairly used, in the last two years, to Judges giving Chris Grayling a polite kicking, but Chris Grayling was… well, you don’t need me to tell you.  This is a Judge giving Theresa May an impolite kicking. And Theresa May is a much more formidable opponent.

 

As will be seen, however, the stance taken on behalf of the Home Secretary on other occasions during the period from early December 2012 onwards, and throughout these proceedings, is a stance which cannot be described as honourable. From early December 2012 onwards, both before and after the letter of 29 August 2013, untenable objections were taken to Deelavathi’s claim. The stance taken in those objections refused to engage with compelling DNA evidence. The result was that this stance effectively made an accusation that Deelavathi’s mother has lied about the parentage of her children for more than 60 years. At a very late stage in the present proceedings the Home Secretary accepted the DNA evidence. Nevertheless the stance taken on behalf of the Home Secretary when rejecting Deelavathi’s claim has, without a shred of evidence to support it, continued to make the same effective accusation. The conduct of the UK government in this regard has been grotesque. I add that in making these observations I do not criticise Ms Parry and I do not criticise the legal team in the Government Legal Department. They have approached their task with all such professional courtesy as is consistent with seeking to defend an impossible position.

 

Even against the backdrop of Chris Grayling and all those judgments against him, I don’t think that I have ever seen a High Court Judge use such strong language about a sitting Government minister.  This Judge is Walker J, not someone I’ve previously encountered. I like him.

 

Ms Deelavathi Bondada is the daughter of Mr Chandraiah Bondada. He had British citizenship and had it at the time of her birth. He was married to her mother, and he was married at the time of her birth.

 

The Home Office, during the course of the litigation were alleging that that she was not his daughter and that she might have been an illegitimate product of an affair and thus couldn’t rely on her father’s British citzenship to establish her own.

When she produced DNA evidence that she and her siblings shared the same father, and that her mother is the mother of all five children  (it not being possible to take a DNA sample from her father, who was deceased), the Home Office instead of accepting the utterly obvious and inevitable, instead suggested that all five children had a father who wasn’t Mr Chandraiah Bondada, and that the children’s mother had had an affair with another man and fathered FIVE children with him, whilst being married to Mr Bondada and lying to him.

 

If you find it abhorrent that our Government made such an assertion without any evidence to support that, then you will probably agree with the Judge’s views

 

 

  1. The November 2011 Consular Department letter complained that the passport held by Chandraiah at the time of Deelavathi’s birth had not been submitted. It said in this regard:

    … therefore we are unable to ascertain whether your parents were together at the time of conception or not …

  2. In this way UK government officials raised the possibility that Deelavathi might not be Chandraiah’s daughter. The family did not have the passport held by Chandraiah at the time of Deelavathi’s birth. The only copy that it had was of the initial pages only. This meant that they could not produce the rather limited evidence which the November 2011 Consular Department letter had sought. Accordingly the family decided to do better than had been sought, and to put the matter beyond doubt by obtaining DNA evidence.
  3. In my view the family did not need to do this. The Consular Department already had the evidence that it needed, for it had had since April 2009 the original of Ganikamma’s 1978 passport. If those dealing with the matter had studied that passport at any time between April 2009 and November 2011 they would have seen that their own predecessors had in October 1978 accepted that Chandraiah was Deelavathi’s father. No reason has ever been suggested for thinking that the British consular officials in October 1978 might have failed to carry out all appropriate checks. Accordingly, even without DNA evidence, I would have held on the balance of probabilities that the conclusion reached in October 1978 remained valid today.
  4. If there had been any reason to doubt this, however, the DNA analyses provide an overwhelming answer to any such doubt. At a very late stage in the proceedings the Home Secretary has conceded that these analyses show that Deelavathi is the daughter of Ganikamma, that Ganikamma is also the mother of Kurma, Kandeswara, Tata and Punyavathi, and that these siblings and Deelavathi have the same father.
  5. In these circumstances it is both astonishing and grotesque that those acting on behalf of the Home Secretary have put in issue whether that same father was Chandraiah. The Home Secretary’s stance is astonishing because it necessarily asks the court to say that Ganikamma may have had a secret lover who was the biological father of Kurma, Kandeswara and Tata while she lived with Chandraiah in Burma in the 1950s, and after the birth of Tata in India had the same secret lover who was the father of her remaining two children, Punyavathi and Deelavathi. This unsupported speculation is so far-fetched as to be absurd. It is not a real possibility, let alone a possibility of such substance as to enable the court to make a finding that Deelavathi has not shown on the balance of probability that Chandraiah was her father.
  6. However it is not merely an astonishing stance. The Home Secretary’s stance in this regard is grotesque. The finding that the Home Secretary urges upon the court would amount to a repulsive distortion of evidence that had repeatedly been put before those acting for the Home Secretary, had rightly been accepted on behalf of the Home Secretary by the Liverpool Nationality Enquiries Team, and had with unfailing courtesy and meticulous care been explained repeatedly to others acting on behalf of the Home Secretary. With not a shred of evidence capable of justifying such a stance, those acting on behalf of the Home Secretary have chosen to impugn the fidelity of a blameless 86 year old woman and to impugn the parentage of her five remaining children. Those acting on behalf of the Home Secretary have stopped short of explicitly advancing a positive assertion that the admittedly common father of all five children was someone other than Chandraiah. But they have instead adopted a stance which, with no justification at all, puts the siblings’ parentage in issue, and thereby unwarrantably impugns the whole basis upon which Ganikamma and the children have conducted their lives as a family.
  7. I accordingly conclude that the Home Secretary’s stance on this issue is unjustified and totally without merit. In this regard I do not rely upon the presumption of legitimacy. Deelavathi’s parentage has been proved by overwhelming evidence and without the need to rely upon any presumption.

 

Having said at the outset that I’d never seen a Judge use such strong language about a sitting Minister, at this point in the reading, I felt that he had gone a bit easy on her.

 

You will not be staggered to learn that the Judge ruled that this woman should have her British citizenship. As a fellow British citizen, and I can speak only for myself,  I’d like to say “welcome to Britain, Ms Bondada. We aren’t all like Theresa May”

3 Comments

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

Unlawful removal of a child, compensation paid

Posted on October 12, 2015 by suesspiciousminds

 

Her Honour Rowe QC considered this case, where a Local Authority removed a child and placed the child in foster care when at the time, the mother knew nothing about it.  It is a decision by a Circuit Judge and thus not any new binding law, but it is interesting and potentially important nonetheless.

 

Re AS (unlawful removal of a child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B150.html

In this case, both the mother and father had mental health problems. On the 9th October 2014, the mother suffered a significant episode of mental ill-health. She arranged for a neighbour to look after her son who was aged 9, and to take him to school. She called an ambulance to take her to hospital.

She was admitted to hospital and was detained under section 2 of the Mental Health Act.  She was not told until 16th October by letter (!) that Brent had removed her son from the care of the neighbour, whom they considered unsuitable on 9th October, using section 20 of the Children Act 1989.

Brent issued care proceedings on 11th November, and an ICO was made on 13th November 2014.  The child was thus in foster care on “section 20” from 9th October to 13th November, although mother had not consented, had not been asked to consent, and for at least some part of that time would not have had the capacity to consent.

It was not really in dispute that if Brent had sought an EPO or ICO at that time that the Court would have made one, the dispute was whether they had the legal authority to keep the child in foster care without an informed and capacitous consent from mother.

 

The argument from Brent hinged around the wording of section 20 (1) (c)

 

20 Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

And on a technical basis, they might be said to be right. The Act itself never mentions a parent consenting to section 20.  The latter passages of section 20 make it plain that the LA cannot provide a child with section 20 accommodation if a parent with Parental Responsibility OBJECTS.  In practice therefore, most Local Authorities would seek the parents consent and for the parent to sign a consent form.  Brent’s argument here was that they didn’t need a consent, they just needed the absence of an objection. There was no objection, therefore the child was validly accommodated under s20(1)(c)

 And on the bare words of the statute, they are right.  However,  it would be a really technical defence to run, and it is not very surprising to me that it did not succeed.  If mum wasn’t asked or told, how could she object? She didn’t know it was happening. And if she HAD objected, Brent could have argued that she didn’t have capacity to object.

There’s quite a big difference between getting someone’s consent, and saying that something is okay because they didn’t object. Especially if they didn’t know.  It is a bit like being ten and saying “Well, mum didn’t tell me that I COULDN’T eat nine Penguin bisuits whilst she was upstairs”

OR

If for example, I have the opportunity for a canoodle with Keira Knightley, I would not expect to be able to tell Mrs Suesspicious Minds that it was perfectly fine because she had not explictly objected to my doing it.  Particularly if I didn’t tell her in advance that it was a possibility, thus giving her the chance to object.  I think that Mrs Suesspicious Minds would be absolutely entitled to take the view that this is the sort of thing that I’d need to raise in advance and that only with her explicit consent (which would not be forthcoming) would it be okay.  [I’d best make it plain that this is an illustrative hypothetical example only, and that I would never put myself in this situation. Not with Keira Knightley.  With Rachel Weisz?  No, I still wouldn’t. Honestly. ]

24. …I accept that the removal of AS took place in good faith and that removal would almost certainly have been sanctioned by the court had the local authority applied for an EPO, however for the reasons that follow I conclude that the removal was unlawful.

  2. The removal of a child from his parents by a local authority is a fundamental interference with the right of the parents and child to family life, and can only be carried out if the removal is “in accordance with the law”. The framework for the removal of a child is set out in the CA 1989, and with apologies as the principles are so well established I have set them out above.
  3. Both Hedley J and Munby J, as he then was, said clearly in the cases cited above that in the absence of consent, a child can be removed only in the circumstances set out in s38, s44 or s46 CA 1989. These provisions appear under Part IV and Part V, CA 1989. Each provision contains stringent safeguards intended to ensure that a removal is lawful. In particular: a. Each section refers to the s31 threshold criteria, requiring either that there are reasonable grounds to believe that the threshold criteria are met or, in relation to emergency provisions, that there is reasonable cause to so believe;b. Whilst removal under s46 (police protection) does not require prior judicial approval, the power to remove is strictly time limited to a maximum period of 72 hours. The police are under a duty to notify both the relevant local authority and the parents as soon as practicable of the steps taken;c. Removal under either s38 or s44 requires prior judicial approval;d. Even with prior judicial approval, an emergency protection order is strictly time limited so that any longer term sanction for continued removal follows an application for a care order and a further appearance before the court where all parties can be represented, where a Children’s Guardian will have had time to make initial enquiries and where all parties will have had an opportunity to consider the relevant evidence and will be able to make full submissions to the court, which can hear evidence if necessary.
  4. The provision of accommodation for children by the local authority is dealt with in Part III which, as Hedley J confirmed, addresses “Support for Children and Families”. As already cited above, Hedley J made clear that the emphasis in this Part is on partnership and “involves no compulsory curtailment of parental rights“. Self evidently the whole of s20 falls within Part III, and Hedley J made no distinction between the provision of accommodation under s20(1) and the provision of accommodation under s20(4). His judgment referred throughout to s20 as a whole.
  5. In the case of R(G) v Nottingham City Council referred to above, the President re-emphasised the clear principle that save perhaps in exceptional wardship cases (where in any event a High Court Judge would need to give prior judicial authority) in the absence of the agreement of the parent, removal of a child could only be achieved by the statutory routes in ss38, 44 or 46. On the facts of the Nottingham case, the local authority plainly considered that the mother was prevented from providing her baby with suitable care, just as the London Borough of Brent considered that this mother was prevented from providing AS with suitable care. If Mr Poole were correct in his analysis of s20(1)(c), then Nottingham City Council would have been entitled lawfully to remove the baby under the same provision. The President concluded without hesitation that the removal was unlawful.
  6. s20(1)(c) contains no requirement for the threshold criteria under s31(2) CA 1989 to be satisfied on any basis, even reasonable cause. If Mr Poole were correct, then a local authority could, on its own assessment of whether a parent was prevented from “providing a child with suitable care”, remove that child without any reference at all to the threshold criteria. The parents would have no forum in which to contest that assessment, and there is no application open to them under the provisions of the 1989 Act to challenge the local authority and seek the return of their child. The child would have no Children’s Guardian. There would be no parameters for the position after removal, there would be no requirement for the local authority to apply to court and there would be no time limit on the duration of the removal. In short there would be no safeguards to mirror those that are expressly included in ss38, 44 and 46. It would seem perverse if a local authority could more easily remove children from their parents in cases where the threshold criteria were not necessarily met than in cases where there were reasonable grounds to conclude that they were met.
  7. There is no authority supporting the proposition advanced by the local authority in this case and, as I have already indicated, that proposition appears to be in direct contravention to the principles established in the cases relied on by the mother.
  8. Finally, the structure of s20 itself is, I conclude, inconsistent with the proposition that parental consent is required where a local authority is acting under s20(4) but is not required where the local authority is acting under s20(1)(c). s20(7) prevents a local authority from accommodating a child if a parent objects and s20(8) permits anyone with parental responsibility to remove a child from accommodation. The important point is that both of these provisions apply to accommodation under “this section” ie s20 as a whole; they do not distinguish between accommodation under s20(1)(c) and s20(4).
  9. For all of these reasons I find that the removal of AS from his mother was unlawful. I therefore do not need to go on to consider whether the removal was “necessary” and therefore in accordance with Article 8(2) ECHR].

[I think that I’d probably distinguish the Nottingham case – in that case, mum DID know that the baby was being removed and she DID object. So clearly the social workers in the Nottingham case couldn’t have been using s20(1) (c) as a legal basis for removal. Nevertheless, THIS Court has found that s20(1) (c) requres active capacitious parental consent, not mertely the absence of an objection]

The question then arises about delay in issuing proceedings

If I find, as I have, that the removal of AS was unlawful, I am then asked to find that the local authority failed to issue proceedings in a timely manner, in breach of the mother’s Article 6 ECHR rights. Since the initial removal of AS was unlawful, it follows that until the local authority issued proceedings on 11 November 2014 and secured judicial approval for continued separation on 13 November 2014, AS was being kept separate from his mother unlawfully. The local authority did not issue proceedings in a timely manner. I was unable to understand the reason for this delay, especially given that at the legal planning meeting held on 13 October 2014 the local authority decided to issue care proceedings and the application itself, though issued only on 11 November 2014 was actually dated 7 October 2014.

The LA were ordered to pay £3,000 in compensation and £750 in costs.

The LA did try to escape compensation by saying that the declaration that they had breached mother’s human rights and their apology was sufficient. Sadly for them, they had tried one of those “modern” apologies, where the person says “I’m sorry that X made you feel bad” rather than “I’m sorry that I did X, that was wrong of me”

  1. The local authority reassured the court that it had at all times acted and will continue to act in good faith and with AS’s best interests at heart; no party suggested otherwise. Further the local authority submits that if I do find a breach, then the making of declarations together with the local authority’s apology to the mother together amount to just satisfaction. The local authority resists any award of damages or costs.
  2. For the mother, Miss James points to the terms of the apology and submits that it is not really an apology. The local authority, in counsel’s position statement, says “the Local Authority does not accept that its actions breached the mother or AS’s article 6 or 8 rights…The Local Authority offers a sincere apology to the mother for any upset that she feels LB Brent has caused her.” Miss James makes, I find, a good point. Miss James further makes clear the fact that the mother did not bring these proceedings for financial reasons; she was and has throughout remained upset and distressed about the manner of AS’s removal and she wants to make sure that this could not happen again to another child.

 

 

I think I might have tried another line – I’m not sure it would have worked either, but I would have considered it. On 9th October, the LA or any other LA, could have had no idea whether mum might be suffering from a really short episode of ill-health and be home the next day, or whether she might be ill for six weeks or more.  As they wouldn’t be able to rely on mum having capacity to sign a s20 consent  (pace Hedley J’s decision) and they can’t rely on s20 (1) (c) if the Judge is right here, that puts any LA where a mother has an episode of mental ill-health which might mean them being hospitalised in a position where they HAVE to seek an EPO / ICO.  That might in itself not be a terribly healthy thing for mum to hear at a time when she is getting treatment, and might wildly escalate a situation which could, after all, have been resolved the very next day with mum getting discharged with a change in medication.

 

The ultimate thrust of this judicial decision is to drive LA’s to issue care proceedings the moment that a mother or father providing care for a child is taken to hospital or has an episode of florid behaviour.  That might led to a number of care proceedings being issued prematurely, and also to a situation where mothers feel undermined and criticised by professionals just at a time when they need support and a working relationship.

You might say that making use of s20(1) (c) as a very short term holding position so that the child can be cared for whilst it is established whether the episode of mental ill-health is very short-lived and can be stabilised in a day or two, might be much more illustrative of working in partnership than dashing off to Court at a time when mother is unwell, stressed and anxious and where she won’t have capacity to instruct someone to fight the case, won’t have an Official Solicitor to represent her, may not actually be allowed by the hospital to be present and will be told that a Court are ruling that she presents a risk to her child EVEN THOUGH she has recognised that she is unwell and asked for help.

 

(I’d have to concede that in this particular case there are some major problems with that argument…firstly taking the child away from a neighbour who mum has asked to care for the child and who is willing to do it doesn’t really help my argument here, and secondly that NOT TELLING mum for a week doesn’t help in the slightest.  I’d mean more in cases where no alternative care provision has been made and mum is told immediately or as soon as practicable. )

 

But ultimately the Court interpreting that s20 (1) (c) requires active parental consent also puts LA’s in a position where they’d have to go to Court for a parent who is in a road-traffic accident and who is in a coma. The child can’t be accommodated under s20 (1) (c), the parent can’t consent. If the parent hasn’t got someone else who steps in to look after the child, how does this work?   You couldn’t conceivably argue that the child is at risk of harm from the parent, but what are you going to do?   [Accommodate, and take the chance of being sued afterwards is probably the answer]

15 Comments

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

Court proceedings were a shambles

Posted on October 12, 2015 by suesspiciousminds

 

I would agree with the Court of Appeal’s summing up here.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/992.html

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”

 

Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.

 

Understandably, the parties sought clarification from the Judge

 

What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

https://suesspiciousminds.com/2013/02/21/if-you-change-your-mind-im-the-first-in-line/

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    “As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith

 

As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”

 

So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

 

Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.

 

  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  3. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  4. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  5. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  6. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

 

 

The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…

 

  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.

7 Comments

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

Missing boy and cancer treatment

Posted on October 8, 2015 by suesspiciousminds

 

The news that the parents of a child have taken him abroad for cancer treatment and that the Courts here are dealing with the case have echoes of the Ayesha King case which was such big news last year.  I wrote at that time about some of the legal issues about when a parent can decide to reject medical advice about their child

Parents deciding not to go ahead with cancer treatment

 

 

The Press reports about this particular child are in most of the newspapers today – here’s an example from the Guardian   (I picked up today that I always tend to use the Guardian for these, but they don’t sponsor me.Yet)

 

http://www.theguardian.com/society/2015/oct/07/boy-needing-urgent-surgery-for-cancer-disappears-from-home-in-england

 

The judgment from Mostyn J is available, and people may want to read it

Re JM (a child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2832.html

 

The boy is 10 years old. His parents are originally Polish but have lived here for two years. Very tragically, the boy JM has a very rare and aggressive cancer on the right hand side of his jaw. The medical advice is that it should be removed. If it is not removed soon, then JM will suffer an agonising and painful death.

 

 

  1. The operation would be lengthy, lasting up to 12 hours. There is a 2% risk of mortality or morbidity in the operation. It would involve harvesting skin and bone from his leg in order to rebuild the removed jaw bone. The result would be that J may be affected by lameness in future. He would need false teeth inserted in the lower right quadrant of his mouth. As he grows his face may develop a lop-sided appearance. He may suffer from chewing problems and need to be on a softish diet in the long term. Above all of this is the estimate that he has a 55% – 65% chance of survival for 5 years. Therefore there is a 35% to 45% chance of a fatal cancer re-emerging in that period. This might be at the same site or elsewhere in the body, most likely the lungs. All of these statistics are based on adult patients. It is not known whether they are equally applicable to children as the incidence of this disease in children is so rare that there is insufficient data on which to found empirical conclusions and predictions. There are only a handful of children in this country with this cancer. Dr X has treated five or six in 16 years of practice.
  2. I have seen photographs of a child who underwent this surgery. The facial swelling before the operation is very pronounced indeed. It is huge. At present J’s swelling is about a third of that size. The photographs post-operation show extensive skin grafts under the jaw. J may be able to escape skin grafts. The child in the photographs does not appear greatly disfigured, although the result of the operation is clearly noticeable.
  3. There is no doubt that the proposed surgery carries serious risks. However in the very clear opinion of Dr X they are risks which should be taken given the awful alternative. In her oral evidence she stated:

    “I would be hopeful of a young boy growing into a very able teenager. So far he has not had major organ toxicity and, depending on his engagement and motivation, I would have an expectation that he will be walking, running – Mr. Z has put in his statement not playing football, but I think that he means competitively. I mean, he will be able to kick a ball around. So I would expect, externally, that he will look and feel like most teenagers. He will have a scarred face and there is a worry that there will be asymmetry of his face as he grows older. He will be engaged with my team and the surgical team as he grows up, so he still will be medicalised, because he will be caught up in routine surveillance, which goes on for years; so we check out his lungs and do a clinical assessment every two months for the first year, every three months for the next year, every four months for the next year, every six months after that, and then annually, so he will be engaged in his medical outcome, so that makes him different, perhaps, from some of his peers, but, going back to my general clinics of those who survive, then some people find this whole process, actually, is a constructive outcome rather than a destructive one.

    Now, there are outliers of that. There are people who are very challenged by their cancer experience, who find it difficult to re-engage with their peers and who have ongoing psychological problems, but I would counter that with – so that may happen with other traumas in other walks of life. The only benefit to J, though, is that he will be in a very medicalised system that would hope to be able to support and manage problems that he brings to our attention. I would be very hopeful, if he survives, that his outlook is reasonable.”

 

 

The parents did not agree to the surgery, and nor did JM (though of course at aged 10 his views aren’t determinative)

  1. J’s parents do not consent to the operation. Neither does J. He has written to me to say “I don’t want the operation and there is not 100% [chance] to survive after the operation”. To Dr X he put it more graphically. He screamed out: “I don’t want to have it, because I don’t want to have a foot in my mouth”.
  2. J’s parents prefer to seek to treat him with Chinese medicine. The practitioner has not treated a cancer like this before and his technique is to treat the whole body to seek to promote overall wellness. The evidence before me is that even in China, where the use of Chinese medicine is widespread, surgery is the standard treatment for a cancer of this kind.
  3. J’s parents have explained to Dr X why they do not consent to the operation. She told me:

    “They are very frightened and fearful of what their son will blame them for when he grows up, that they worry that he will be so disfigured that he will blame them for allowing the operation to go ahead. That is one of their stated words. But they have not heard that the prospect of him growing up is completely remote, completely impossible, if they do not have surgery. …It is not that I have not tried to say that, and I have been very explicit, but there is a difference between hearing the words and processing the words. …That is one of their issues. I think that they have struggled with the consent process.”

 

The hospital can’t carry out the surgery if the parents don’t consent, unless the Court authorises it. Hence the hospital made an application to Court. The parents would have been able to attend that hearing and make their arguments, but did not attend.  Of course, in the Ayesha King case, the parents favoured a particular form of treatment proton beam therapy, which wasn’t available in the UK but was a form of treatment that was recommended in other countries for cancer treatment. Here, note that not even in China would this form of cancer be treated by “chinese alternative medicine”

 

The Judge weighed up the issues and the parents known objections and the child’s views very carefully, and came to the conclusion that the only option for JM was for this surgery to occur.  We now know that the child has been removed from the country – possibly to Poland, possibly to China.

You may be asking whether it really should be up to the Polish courts to decide, if the parents are from Poland and that’s where they are physically located there – if they disagreed with English doctors and decided to go back home, what’s it to do with the English Courts? Well, Mostyn J did explicitly deal with this

 

  1. It is possible that J is now in Poland. On 17 September 2015 when these proceedings were commenced J was habitually resident here in England. Therefore under Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility this court had jurisdiction over him at that time in relation to the matter of parental responsibility then in controversy namely his medical treatment. Since then it is possible (but unlikely) that with joint parental authority his habitual residence has changed to Poland. If so, it may be that courts here do not have jurisdiction to determine where or with whom he should live. As things stand at present however the evidence is that J remains habitually resident in this jurisdiction.
  2. However, there is no doubt that this court is seised of the specific issue of J’s medical treatment. Therefore under Article 19 the Polish court must decline jurisdiction in relation to this matter in favour of this court. I have explained that implementation of my primary decision will require a further hearing before me. If J is now permanently in Poland it may be that it would be appropriate for that aspect to be remitted for decision by the Polish court under Article 15

[It stays with the English Courts for now – if the parents have genuinely moved permanently to Poland, then an application can be made to transfer the case to the Polish Courts]

We will have to see how this story develops. And just as with the Ayesha King story, your heart absolutely goes out to the family who are in the middle of an absolute nightmare and just hope that a resolution can be reached.

 

[Mostyn J being Mostyn J, he still managed in the midst of all this to explain that if the imposition of treatment is on a 16 or 17 year old, the application ought properly to be made solely under the High Court’s inherent jurisdiction and not to a family Court under the Children Act and  hence

Note 1 It is for this reason I think that Ian McEwan’s excellent novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion, is in fact incorrectly titled.

 

which leads me to think that at either a book club or some cocktail party, someone has made the mistake of asking Mostyn J what he thinks about Ian McEwan’s novel and has wished twenty minutes later that they hadn’t.  I LOVE Mostyn J, in case you didn’t realise. His judgments always contain something extraordinary and marvellous.  I know that Ian McEwan read a LOT of judgments when he was researching his novel. If he still keeps up with them, he may be pleased to (a)  be in one, and (b) have received a positive book review.  I suspect he’ll be content with the title of “The Children Act” rather than “The Inherent Jurisdiction of the High Court”   ]

1 Comment

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

Totally radical, dude

Posted on October 8, 2015 by suesspiciousminds
"Put them in the Iron Maiden"

“Put them in the Iron Maiden”

 

The President has published guidance on radicalisation cases within the family Court, which you can find here:-

 

Click to access pfd-guidance-radicalisation-cases.pdf

 

The Guidance says that ALL radicalisation cases are to be heard in the High Court, and that this specifically excludes Circuit Judges who have a section 9 ticket allowing them to sit as a High Court Judge. [UNLESS an actual High Court Judge explicitly releases an individual case to them]  The cases will purely be in the High Court.

To address the fact that this means that say, the family Judges in Luton would be oblivious to there being a major radicalisation problem in Luton because they won’t see any of the cases, the Designated Family Judge in each area must be notified of each application when they are made.

 

The guidance goes on

Judges hearing cases falling within the description in paragraph 1 above will wish to be alert to:

(a) the need to protect the Article 6 rights of all the parties;

(b) the fact that much of the information gathered by the police and other gencies will not be relevant to the issues before the court;

(c) the fact that some of the information gathered by the police and other gencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk;

(d) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies;

(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is “necessary to enable the court to resolve the proceedings justly” within the meaning given to those words when used in, for example, sections 32(5) and 38(7A) of the Children Act 1989 and section 13(6) of the Children and Families Act 2014;

(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the court  by the police or other agencies;

(g) the need to consider any PII issues and whether there is a need for a closed hearing or use of a special advocate;

(h) the need to safeguard the custody of, and in appropriate cases limit access to, (i) the tape or digital recordings of the proceedings or (ii) any transcripts;

(i) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court;

(j) the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.

 

 

 

 

This is a major issue, or potential issue.  Imagine for a moment that the X family come to the attention of the Police or the intelligence services. They are believed to be radicalising their child. That would, when shared with the Local Authority, give rise to the need for care proceedings being initiated, and possibly that an application be made for the removal of that child.  But imagine that the REASON the police or intelligence services have that concern is that they are monitoring the phone calls, text messages or emails of Mr Y, someone who is recruiting for ISIS.  They may very well prefer that the X family don’t learn that Mr Y’s emails are compromised, and that hence Mr Y is alerted and changes his phone, and email account.   Suppose that the REASON is not monitoring emails but that Mr Y has a colleague in the terrorist cell,  Mr Z who is actually clandestinely working with the intelligence services – that really could be a matter of life and death if the X family learned that Mr Z was a spy. Both for Mr Z and for the future intelligence that might save lives whilst he remains undetected. This is big stuff.

 

[If you ever watched The Wire, you’ll be familiar of the constant battle with the police and drug dealers to get the information from the phone taps but without tipping the drug dealers hand to the fact that their communications are compromised, and thus that the drug dealers would ‘change up’ their systems. And if you have never watched The Wire, then I recommend that you remedy that. ]

 

"Omar comin' ! "

“Omar comin’ ! “

 

This puts the debate into really clear terms – if there’s information that is relevant to the proceedings – for example those representing the parents are likely to want to know exactly why the parents are suspected of radicalisation and what the evidence-base is, but it might impact on national security, then the Judge is going to have to ensure that the disclosure requests are very focussed, and that if there’s to be an argument that the documents should not be disclosed, that a proper Public Interest Immunity hearing takes place which balances the article 6 arguments in favour of disclosure with the national security PII arguments.

 

Because let’s not foreget, that parents in this situation are entitled to a fair trial. The allegations or information might be a mistake, or malicious, or mistaken identity.  We can’t lose sight of the fact that it is the State who have to prove that these parents have radicalised the child, not for the parents to prove their innocence.

Where this happens in crime, the Judge generally sees the documents in order to conduct what is called an “Air Canada” exercise, to consider them on a line by line basis to see what can be disclosed and what might have to be withheld. You cannot assume that article 6 will trump national security always or vice versa, it will be very case and fact specific.   Might this procedure even eventually extend to police or intelligence witnesses giving evidence behind closed doors, with the parents not hearing it?  How do we feel about that?

 

It is worth noting that in this guidance, when the phrase “Special Advocate” is used, it may not be simply meaning a ‘specialised’ or ‘specialist’ advocate, but rather that at the hearing where the documents are considered and arguments deployed, that the Court would appoint a barrister specifically to make those arguments on the parents behalf – NOT the ones representing the parents in care proceedings, and ones who would not have a duty to share that information with the parents.  That would be a very big deal in care proceedings. It is somewhat controversial generally, but as far as I’m aware, we haven’t done it in care proceedings before.  [I’m not absolutely sure that we can even do it without a statutory basis or a strong precedent that it can be done. But I’m no expert on the Special Advocate jurisprudence]

 

The guidance continues

 

11 This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and by other agencies. But there must be reciprocity.

12 The police and other agencies recognise the point made by Hayden J  that “in

this particular process it is the interest of the individual child that is paramount. This

cannot be eclipsed by wider considerations of counter terrorism policy or operations.”

The police and other agencies also recognise the point made by Bodey J that “it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.” But subject to those qualifications, it is important that the family justice system works together in cooperation with the criminal justice system to achieve the proper administration of justice in both jurisdictions, for the interests of the child are not the sole consideration. So the family courts should extend all proper assistance to those involved in the criminal justice system, for example, by disclosing materials from the family court proceedings into the criminal process.

13 In the same way, the police and other agencies will wish to be alert to the need of the court for early access to information, for example, information derived from examination of seized electronic equipment, so far as such information is relevant to the issues in the family proceedings. Accordingly, the court should be careful to identify with as much precision as possible in any order directed to the police or other agencies: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.

 

I have been worried about the balance between confidentiality and national security on the one hand and fairness and article 6 on the other for a long while in relation to radicalisation. I think that it is helpful to have published guidance as to the very difficult issues that Judges dealing with these cases are faced with.  How they will be dealt with in practice is something I’ll be very interested to read about (assuming that I’m allowed to)

1 Comment

Posted in assessment of risk, case law and tagged , , , , , , , , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →