Category Archives: case law

Re DAD (application for committal, flawed process)

Posted on September 22, 2015 by suesspiciousminds

Hell yeah

Thank you Holman J for the best case name ever. Re DAD. [Although annoyingly, the case is really about an uncle rather than a dad…]

If you are doing a committal case, either for or against, this case will be worth reading and taking with you. Paragraph 10 of the judgment, as underlined, makes a very difficult argument to overcome, due to the standard orders being flawed.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2655.html

In this case, the father had allegedly abducted his son in breach of a Court order, and the child having been kept away from the mother for over 8 months. The mother obtained a Collection Order, which compelled the father to return the child, but it had not been possible to locate the father to serve it upon him.

However, the father’s brother was at a known address and an order was made in these terms:-

“(2) If [the father, who is specifically named in the order] and/or any other person served with this order is in a position to do so, he or she must each deliver the child into the charge of the Tipstaff.

(3) If the respondent or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she must each:-

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

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

It is important to mention that paragraph 7 of the order later provides that:

“The obligations under paragraphs 2 and 3 above will continue until the Tipstaff takes charge of the child…”

Fairly traditional order, and I have written about a number of these cases where a relative knows where the child is and conceals it and then is committed to prison.

5…on Saturday 27^th June 2015, police officers acting on the instructions and authority of the Tipstaff attended at an address at which Muhammad Nawaz Chaudhry was residing. I mention that, as I understand it, it is not in fact his own home, but he was residing there with a relative of his. Muhammad Nawaz Chaudhry is the brother of the father of the child and, accordingly, the uncle of the child. The police officers introduced themselves to Mr Chaudhry and produced a copy of the Collection Order in Form 2A and asked him for any information he could give as to the whereabouts of the child. In summary, and in effect, he said that he did not know where either the child or his brother, the child’s father, were. The police officers then telephoned the Tipstaff himself. The Tipstaff himself considered that Mr Chaudhry in fact knew more than he was revealing and, accordingly, that he (the Tipstaff) had reasonable cause to believe that Mr Chaudhry was disobeying paragraph 3 of the Collection Order in Form 2A. He therefore instructed the police officers to arrest Mr Chaudhry in obedience by the Tipstaff himself to the provisions which I have mentioned of the Collection Order in Form 2B, which are directed to the Tipstaff. Mr Chaudhry was then conveyed to the local police station in custody and brought before a judge here at the Royal Courts of Justice on the following Monday. He was further remanded in custody by that judge and only finally released from physical custody on Friday 10^th July 2015. In other words, following the evening of his first arrest on Saturday 27^th June 2015 until his first release from actual custody, Mr Chaudhry spent thirteen nights in custody; eleven of them in Pentonville Prison. On Friday 10^th July 2015 he was released on bail subject to certain conditions. There have been subsequent adjournments of the application to commit him to prison and it has come before me (dealing with the matter for the first time) for substantive resolution today.

The essence of the case of the mother in support of her application to commit is that there had been considerable communication by text and/or email and/or telephone between the father and Mr Chaudhry before, and in the months following, the actual abduction of the child. Accordingly, even if Mr Chaudhry did not and does not now know the precise whereabouts of the child, he certainly had “matters within his knowledge or understanding which might reasonably assist [the Tipstaff] in locating the child” which he certainly failed to give information about prior to his arrest on 27^th June 2015 and which even now he has not been fully forthcoming about. So it is that the solicitors on behalf of the mother issued a formal application on 7^th July 2015, which was subsequently amended on 16^th July 2015, for Mr Chaudhry to be committed to prison for contempt of court. The formal application notice for committal, as amended, seeks that he be committed to prison for contempt of court “because Mr Chaudhry disobeyed paragraphs 3(a) and (b) of the Collection Order made…on 20^th February 2015…” in ways which were described in supporting statements made by the solicitors for the mother.
Pausing there, it thus follows that the matter for which I am asked to commit Mr Chaudhry to prison is very specifically that he has disobeyed those paragraphs of that order

In this case, counsel for uncle, very generously and fairly told the Judge that the best points of the uncle’s argument had been arrived at through hard work of the uncle’s solicitor.

I should mention that appropriately, but generously, Mr Main-Thompson made very clear today that all or most of these points – which are made in his most excellent position statement and skeleton argument, dated 15^th September 2015 – are points which have been generated by the input and researches of his instructing solicitor, Ms Maria Wright. She is a solicitor who is employed by Freemans, who act on behalf of Mr Chaudhry, and who herself has conduct of this matter. There are within that position statement and skeleton argument a number of important points with regard to the lawfulness of the Collection Order in the form in which it was made in this case. There is, in my view, however, one knockout point with which I will deal in a moment. Since I regard that point, even standing on its own, as completely decisive in this case, anything I were to say in relation to the other points would be what lawyers called obiter. It happens that there is very currently a thorough – going review of the form and language of collection orders. In my view, it is undesirable that I should express in judgment any view or comment which would be obiter about these other points

Always nice when a Judge praises the hard work of a solicitor. Even nicer when he describes one of your points as a knockout one.

Hell to the yeah

What’s the knockout punch?

I turn, therefore, to what, in my view, is the decisive point for the purposes of the present application and the one upon which I base my decision and judgment today. The Family Procedure Rules 2010 (as amended) make provision in relation to applications for committal. So far as is material to the present case, the first rule in point is rule 37.4, which provides as follows:

“37.4 Enforcement of Judgment, order or undertaking to do or abstain from doing an act

(1) If a person –

(a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or

(b) disobeys a judgment or order not to do an act,

then, subject to…the provisions of these rules, the judgment or order may be enforced under the court’s powers by an order for committal”

Pausing there, it is clear from the language of that rule that the power to commit is itself subject to the provisions of those rules. The next relevant rule is rule 37.9. That provides as follows:

“37.9 Requirement for a penal notice on judgments and orders

(1) Subject to paragraph (2) [which is not in point in the present case], a judgment or order to do or not to do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”
Pausing there, I emphasise from that rule the words “prominently displayed” and “on the front of the copy of the judgment or order served”. I stress at once that the collection order made in this case was, and is, in the absolutely standard form that has been in regular use by judges of the High Court for many years. The actual order made in the present case shows in the top right hand corner that it is in a form that was revised in May 2011. I say at once that I personally have made a considerable number of collection or similar orders, such as location and passport orders, in these standard forms without appreciating until today that they all suffer the defect that there is no penal notice prominently displayed on the front of them. But if there is a failure to comply with an express requirement of rules of court, it is of course no justification to say that the failure to comply has been longstanding and routine.
The standard form of collection order and the one used in this case extends altogether to six sheets of paper, although the third page is largely blank. There is nothing remotely in the nature of a penal notice at all on the first four sheets of the order. The fifth sheet is headed with the following words in capital letters: “Important notice to the respondent and to any other person served with this order”. There are then a series of number paragraphs 1 to 5. These are headed respectively:

(1) Liability to be arrested;

(2) Liability to be committed to prison;

(3) Your rights;

(4) The Tipstaff;

(5) Interpretation.

The font or print size used on pages 5 and 6 is exactly the same as that used throughout the whole of the order and there is no particular use of bold type face on pages 5 and 6. Paragraph 2 on page 5 under the heading “Liability to be committed to prison” does contain the following words:

“Breach of any part of this order would be a contempt of court punishable by imprisonment or fine. Accordingly, whether or not the Tipstaff arrests you, you may be summoned to attend court and, if you are found to be in breach of the order, you are liable to be committed to prison or fined.”
In my view the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be “prominently displayed”. It is merely a part of several pages of somewhat indigestible text. In the second place, it most certainly does not appear, as the rule requires, “on the front of the copy of the…order”. It will be recalled that rule 37.9 is emphatic and prohibitive in its terms. Unless the penal notice is prominently displayed on the front of the copy of the order, “a judgment or order…may not be enforced…” In my view, the words “may not be enforced” where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal

The format of the Court orders, which Holman J has previously complained about, now mean that the vital component for a committal, that the front page of the order shows the person what they must do or must not do AND that the consequences for not doing it can be imprisonment. At the moment, the first page is a lot of dry and dull rambling about who was present in Court that day and the dates of birth of everyone involved and yadda yadda yadda.

The Rules do provide a judicial discretion to proceed with the committal if there’s a flaw in the process but it is satisfied that no injustice would be caused to the defendant.

Here, the Judge considered that this did not apply.

14. I do have a discretion under paragraph 13.2, but I can only exercise it “if satisfied that no injustice has been caused”. In support of her submission that no injustice has been caused, Ms. Chaudhry invited me to watch and listen to the video that the police officer made contemporaneously whilst visiting Mr Chaudhry and arresting him. As I understand it, this is a video made from some form of camera attached to the clothing of the police officer. I mention that, as that video forms part of the evidence or material upon which I base my decision in this case, I have ensured that it was available to be seen by the accredited journalist who is in the courtroom and the journalist has seen it. I would indeed have ensured that it was able to be seen by any member of the public who had shown any interest in this case and had been present at any stage during the hearing, although in fact there has been none. The whole duration of the visit by the police lasted about twenty minutes. I wish to stress that the two police officers appear to have handled this whole matter with the utmost courtesy and lightness of touch. From start to finish, there was nothing remotely heavy handed by either of them. Rather, they treated Mr Chaudhry with the utmost courtesy, respect and indeed patience, whilst ultimately arresting him with minimum formality. He went with them in the car, but at no stage was he placed in a handcuff nor handled physically in any way by the police. After being admitted to the house, the officers went into the front room immediately adjacent to the front door. They were holding two copies of the collection order and, therefore, a number of sheets of paper. They handed several sheets of paper, which I assume to be one copy of the six page collection order, to Mr Chaudhry, and the officer said “Have a big old read of that. There’s quite a lot there”. Mr Chaudhry sat down in an armchair and did for the next ten minutes or more hold the sheets of paper in his hand, but he hardly glanced at them at all. There is one moment in the video when he can be seen to be turning through the sheets of paper, but, even in that moment, he does not appear to have reached page 5, upon which such warning notice as this order contains is printed. At no stage, so far as I could discern, did either officer specifically draw the attention of Mr Chaudhry to that warning notice, nor indeed talk him through the language of the order at all. I do not say that necessarily critically of the officers; I merely record the fact that his attention was not specifically drawn to any particular part of the order and certainly not to such warning notice as appears on page 5. After the officers spoke on the telephone to the Tipstaff, they informed Mr Chaudhry that they must arrest him. They allowed him time to go upstairs and into the kitchen; and, as I have said, the whole process was gentle, orderly and sympathetic. As the two officers and Mr Chaudhry finally left the front door of the house, one officer said: “You can take the paper if you like so you can read it”. As Mr Chaudhry got into the back seat of the police car one can see that he did still have pieces of paper (which I assume are the order) in his hand, but there is no sign, at any rate at that stage, of his actually reading it. Before leaving the content of that video recording of the whole process, I mention that at one stage the officer said to Mr Chaudhry that “someone from the court will do a quick interview” with him. Frankly, I do not think that either Mr Chaudhry or either of the officers imagined for one moment, when they arrested him and took him away in the police car that night, that he was about to spend no less than thirteen nights continuously in custody. The picture and impression that was conveyed was that he would have to go to the police station under arrest and no doubt in custody perhaps for that night, but that he would then be visited and interviewed by “someone from the court” and probably released soon thereafter.

The essential submission of Ms Chaudhry is that the officers did hand the order to Mr Chaudhry that day. The officer did say “Have a big old read of that” and an opportunity to read the order was undoubtedly afforded. Thus Mr Chaudhry might have been able to say to the officers “Please sit patiently while I now read through this whole order”. I have no doubt that if he had said that they would have permitted him to do so, but that is not in fact what happened. Further, Mr Main-Thompson has drawn my attention to paragraph 5 of the affidavit sworn by Mr Chaudhry on 12^th August 2015. In that he says that he left school at fifteen before taking any exams:

“I don’t have any academic qualifications. I was slow at school. I was always in the bottom set and I had extra classes, one to one with a teacher. Despite this I did not complete my secondary education. I need to read things, particularly official documents, many times before I can understand them fully. My spelling is not good…”

The picture there is, therefore, of somebody with relatively little and unsuccessful education and no great ability to comprehend complex documents such as this order.
Ms Chaudhry submits that I can, and should, be satisfied that no injustice has been caused to Mr Chaudhry by the defect that a penal notice in the required language was not prominently displayed on the front page of this order. Far from being satisfied that no injustice has been caused to him, I am personally quite clear that a great deal of injustice was caused to him. Rule 37.9 exists for a purpose. The purpose clearly is so that somebody in the position of Mr Chaudhry can see prominently and at once, the moment a lengthy order of this kind is given to him, what the gravity of the situation is and that he is at risk not merely of being arrested at the time, but of being committed to prison as a punishment for contempt of court.
In my view, therefore, this is not a situation where I can waive the procedural defect. All applications to commit require proper adherence to the requirements of any enactment and rule of court. In the present case there is a serious defect in the order upon which the application to commit is based. I simply cannot commit Mr Chaudhry to prison for any breach of the order, however egregious. In my view that has the consequence that I must indeed strike out the application as a threshold decision, and Mr Chaudhry must not be required to give any evidence or to defend himself on the substance of this application. For those reasons, the application issued on 7^th July 2015 to commit Muhammad Nawaz Chaudhry to prison for contempt of court is struck out.

You may be reading this and think that it is potentially applicable to any order drawn up in the standard way, where the warning does not appear until page 5 of the order. And yes, it is certainly arguable. Less so of course when the person is given substantial time to read the order before being in breach of it, and much less so if the person is present in court and represented when it was made and the Judge gives the warning about the consequences of breach. But yes, expect to see Re Dad being photocopied and handed out a LOT in committal cases until the standard orders get fixed.

And if you are drafting, until the orders get fixed, make sure you put the wording that’s normally on page 5 on the first page, in the biggest and boldest type that you can get away with.

Because at the moment, Re DAD is a

Don’t push your luck in asking for the £200 though

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Posted in case law, committal and tagged breach of order, committal, flaw in court orders, holman j, imprisonment, procedural flaw, re dad 2015. Bookmark the permalink.

Bad week for Gloucestershire continues to get worse

Posted on September 18, 2015 by suesspiciousminds

I wrote on Wednesday about Gloucestershire social workers getting a hard time from His Honour Judge Wildblood QC, and it is only Friday and they are getting another. For many of the same issues

C1 and C2 (Children :Section 20 of the Children Act) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B149.html

This is the third case that I have seen this week where this Local Authority has allowed there to be protracted use of the accommodation of children under section 20 of The Children Act 1989. Without descending into full legal analysis of the statute ‘section 20 accommodation’ arises when a parent agrees that a Local Authority should arrange where a child is to live. With their mother’s agreement, therefore, the two children involved in this case went to live with foster carers in September 2013 and have remained with the same carers for over two years. In its own case summary the Local Authority says: ‘the Local Authority is aware that there has been delay in bringing this matter before the court and entirely accepts this is inappropriate and will attract judicial criticism’. It does.
The one saving feature of this case is that the foster carers, through their dedication to these children, are now offering them a permanent home. However, initially, they were short-term carers for the children and there is still no certainty about where the children will live because, as yet, there is no agreement about the orders that will be made. It appears that the mother may agree to the children remaining with the foster carers. It also appears that the putative fathers may also agree to this. The guardian has proposed that there needs to be further assessment of the foster carers before orders are made (and I deal with that point later).
The upshot is that, for two years, nobody has been able to tell these children where they will be living and that remains the current state of affairs. The only way that certainty can be achieved is by making court orders. For some inexplicable reason the Local Authority chose not to bring the case before the court until now.
Over the past year I have i) met with this Local Authority on a number of occasions to discuss the issue of the protracted use of s 20 accommodation, ii) attended conferences in this area at which I have spoken on this issue, iii) issued newsletters where I have written about it, iv) placed judgments about it on the Bailii website, v) spoken to other judges and magistrates in this area all of whom seem to share my opinion and are also trying to combat what is happening and vi) raised the issue with the Local Family Justice Board.
Where this type of very bad practice arises it is not possible for a judge to undo the past. The only thing that I can do, now, is to publish judgments where this occurs so that the public know what is being done in its name by this Local Authority in a bid to prevent other children experiencing the same procedures. The firm drive of the courts to deal with cases expeditiously in accordance with 32 of The Children Act 1989, as amended, (i.e. keeping cases to no more than a 26 week timetable) is of no benefit to the child if the delay during the overall period of state intervention remains the same because of procedures that are followed before the case is brought before the court.
The effect of this type of procedure is not only that it is patently wrong from the point of view of the welfare of children and in the full spectrum of family difficulties that it creates for foster carers. It also means that limited resources and money are being taken up in a way that expedition would avoid. In the plainest possible language it takes much more time and money for a delayed procedure to be followed than an expeditious one. Inefficiency costs more than efficiency and takes up more time. It also means that the task of sorting out what is best for the children becomes even more complex than it would otherwise be with repeated episodes of crisis management.
For these children not to know for two years where they will be living, who will be caring for them, where they will be going to school, with whom they can make friends and when decisions will be made about them is bound to have a profound effect on their emotional welfare. It is inevitable that the children form attachments to their current carers and do so without knowing whether those attachments will persist.
The guardian says this in her initial assessment: ‘as a consequence of the significant delay to issuing these proceedings the two children have been deprived of having care that could be regarded by them as permanent. It is likely that this has had a significant impact upon the children’s ability to feel secure and this combined with the children’s early experiences had an impact on their personality development and attachment style. This I believe will impact upon their ability to regulate their emotions, feel secure and develop a sense of self-worth. They and any carer are likely to require support with this impact…the children were accommodated under section 20 on 2/9/2013. I am unable to evidence any reason or explanation for the delay in issuing proceedings’.
Over the past two years when these children have sought comfort or reassurance about the future nobody will have been able to tell them what the future holds. In my experience schools do excellent jobs when this type of issue arises but the burden that this type arrangement places on teachers is immense – for instance, how can schools or nurseries protect the emotional welfare of children in these circumstances and what happens when there are discussions or projects at school about families, holidays or future plans?

[Also note, that despite a period of nearly two years in section 20 foster care The putative father of the eldest child underwent DNA testing only yesterday ]

Powerful words. The Judge here is quite right – the delay in section 20 cases coming before the Court is one that harms children. The Government have tackled the delay that occurs within proceedings (firstly by the clause in the Children Act 1989 that specifically says that delay within proceedings is harmful to children and to be avoided if possible, and latterly by introducing the Children and Families Act 2014 to try to make care proceedings be resolved within 6 months).

The delay BEFORE proceedings are issued though, has not been tackled. It may even be that the introduction of the Children and Families Act actually made it worse – because there’s a relatively short space of time once the care proceedings start for the social worker to get absolutely everything done and the case can be finished, it can be tempting to not start the case until almost all of that is done. Which can mean, in a case where parents aren’t demanding the return of the child or their lawyer sending angry letters, that there’s delay for the child.

It may be that all that the Children and Families Act 26 week edict has done is “Shift the Drift” so that most of it happens before Court proceedings. Which is worse, because at least when the case is in Court, everyone has a lawyer and knows their rights and a Judge can control the timetable. Section 20 drift is a real problem.

Here, this was a case that was inevitably going to need care proceedings. The children were 3 years old and 15 months old when they came into foster care, and they came into foster care as a result of suspicious bruising. And there was a background of concerns that went back to 2010. That was always likely to need to be resolved by a Court, and it was always the case that decisions needed to be made for these children quickly, so that wherever they were going to live permanently that could be done and the children settled.

It isn’t a problem that only happens in Gloucester, not by any stretch of the imagination. But Gloucester have a Judge who has realised the scope and nature of this problem and is going to express displeasure about it each and every time.

What would be some practical proposals, if one was to legislate to fix it?

Well, I would start with the requirement that any use of section 20 where the child is in care for more than a fortnight must go through the PLO procedure – that means the parents get sent a letter about the concerns and future plans and more importantly attend a meeting and get legal advice. That means that they will absolutely know that they have the right to remove the child from section 20 and can make the Local Authority ‘put up or shut up’ – either take the case to Court and persuade a Judge that the child needs to stay in foster care or to return the child.

Another helpful addition might be to incorporate into legislation that a Local Authority can’t take a section 20 consent given in September 2013 and be still relying on it in March 2015. What would be wrong with saying that section 20 consent must be obtained afresh after 20 days, then 3 months after that, and then every 6 months thereafter? [That is the same timing as LAC reviews, and thus the IRO can be charged with establishing at the LAC review whether there is genuine and informed parental consent to the next period of section 20 accommodation, and if not the LA are to ‘put up or shut up’]

Could a Judge impose such stipulations on a Local Authority without legislation? I don’t think that even the President would have such power by way of Practice Direction – those powers really only extend to what happens within care proceedings – a Judge can’t really fetter what a Local Authority can do before care proceedings are initiated.

An option available to parents is to make a claim under the Human Rights Act – as can be seen from the last blog, even if the section 20 consent is given freely and on an informed basis, there is the possibility of a claim on the basis that the State’s actions in using section 20 to keep the child in care rather than working actively on either rehabilitation or putting the matter before the Court are not proportionate.

[In the Hackney case in the last blog, the parents would have lost on the ‘proportionality’ argument based on the facts in that case, but the section 20 was only for two months, not nearly two years as here]

The other noteworthy element of this case was the Guardian’s tentative suggestion that there be a psychologist to assess the children. I wholeheartedly agree with the judicial approach here.

The guardian has suggested that she may seek an order for a psychological assessment of the attachment of the children to the foster carers; I have made it very plain that, having regard to the necessity test in Section 13 of The Children and Families Act 2014, I think it highly unlikely that I would make an order to that effect since the attachment between the children and the foster carers: a) is obvious; b) can be dealt with by evidence from schools, nurseries, health authorities, social workers and the guardian c) does not raise any evident psychological issues that could not easily be dealt with by the social worker and guardian. Further, by the time that a psychological report had been produced (e.g. in 3+ months time) and the case has come back to court the children would have been with the foster carers for at least two years and about four months so I cannot begin to imagine that psychological evidence would add anything to what was obvious about the attachment between the foster carers and the children by then.

I think I might be taking this to Bristol Family Court if I was cursed with having to do a section 20 drift case next week.

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Posted in case law, section 20 and tagged c1 and c 2 children 2015, delay, his honour judge wildblood qc, human rights act, section 20, section 20 drift. Bookmark the permalink.

Couple win damages for Hackney keeping their children in care

Posted on September 18, 2015 by suesspiciousminds

[There are some VERY IMPORTANT rulings about section 20 in this judgment, which was in the High Court. Practitioners, particularly social workers or those who advise social workers are urged to read it in full. I will put a huge IMPORTANT flag on the key passages]

This story came to my attention via The Guardian

http://www.theguardian.com/uk-news/2015/sep/17/couple-win-damages-from-hackney-after-children-wrongly-kept-in-care

The bare bones of this story were that a Hackney family had eight children removed from their care by the police, that the main issue was home conditions that could be fixed very quickly, and that the parents successfully sued Hackney under a variety of methods (including the one that’s always popular Beneath the Line here with commenters, “misfeasance in public office” ) and won on the Human Rights Act part of the case, receiving £10,000 compensation each.

The report is good, clear and compelling, and accurate. [The author has clearly read the judgment and quotes the Judge and captures the essence of the story]

That led me to the judgment, which was not in the Family Court but in the Chancery part of the High Court.

Williams and Another v London Borough of Hackney

http://www.bailii.org/ew/cases/EWHC/QB/2015/2629.html

If ever there was a case illustrating the challenges that face children, parents, public authorities, and the courts when concerns are raised about the safety and welfare of children it is this. A relatively trivial incident on 5 July 2007, followed by an allegation made by a young child in potential trouble, led to the exposure of issues about the upbringing of a large family in respect of whom there had been no previous concerns. Eight children, including a young baby, were removed from their parents’ care and distributed to foster homes. A swift consideration of the welfare issues concluded that if some simple improvements were made to their home, the children could return home. Yet it was some 2 months before the children returned to their parents, after experiencing a variety of foster placements, some of which were of dubious quality. A criminal investigation led to a 20-count indictment against the parents, but in the end, 2 years later, no evidence was offered and the parents were acquitted. The parents’ complaints about the handling of their case by the defendants were considered in a complaints process over a period of nearly six years culminating in a final decision of the Local Government Ombudsman, issued on 22 April 2013. In spite of their complaints being upheld in part, and the exoneration of their character in the Crown Court, the claimants believe their grievances have not been properly addressed and therefore bring these proceedings, ending in this trial, eight years after this unfortunate incident started. Fortunately it is not my task to adjudicate on more than a small fraction of what has occurred, but the overall picture is not a happy one.
The claimants bring this claim against the London Borough of Hackney [“Hackney”] in their own right, and not on behalf of any of their children. They accept that the authorities acted lawfully in the initial action of taking their children into foster care under the authority of what has been described as police protection order. However, they claim damages for what they say were the unlawful actions of the defendant authority and its officers in keeping the children of the claimants in authority controlled foster care after the expiry of the effect of the police order. The causes of action alleged are misfeasance in public office, breach of statutory duty, negligence, religious discrimination and breach of the parents’ Article 8 human rights. The defendant denies liability in any of these causes of action.

The next bit, which explains how the children came into care, does throw into the mix a brand new element, that there were concerns about physical abuse of the children, not just a dirty or untidy house

The claimants, John and Adenike Williams, have been married for 24 years. They have 8 children whose ages at the time of the matters about which they complain ranged from 8 months to 14 years. All the children lived at home, and no concerns were raised about the manner in which their parents were caring for them until one of them was arrested on suspicion of shoplifting on 5^th July 2007. This child was said to have told the police that he had been beaten by his father with a belt, as an explanation for a bruise on his face. The police visited the family home and were of the opinion that it was not in a fit state to be accommodation for the children. They alerted the defendant to their concerns. The police also initiated a Police Protection Order under section 46 of the Children Act 1989, and the defendants made emergency arrangements to accommodate them in foster homes. The police order authorised these arrangements for 72 hours. On 6^th July, in circumstances I will have to examine in some detail, the parents signed a form of agreement which the defendants assert authorised them to continue to accommodate the children away from their parents, an assertion the claimants dispute. The children did not in fact return to live with their parents until 11^th September 2007. It is right to record at the outset of this judgment, that, although the claimants were eventually charged with various offences relating to their treatment of the children, following strong observations made by a Crown Court judge, no evidence was offered, and a not guilty verdict was entered on all the charges.

So, firstly, the period of time that the children spent in foster care, from 6th July 2007 until 11th September 2007, was purportedly under a written section 20 agreement. That’s important, because obviously social workers themselves have no powers to remove children or keep them away from a parent. They can only do so if the parents agree (under section 20 of the Children Act 1989) or there is a Court order sanctioning this.

We will come later on to whether the parents had agreed section 20 accomodation (they disputed this)

Secondly, the physical injury and the allegation that father had hit the child with a belt. I was interested to find this in the judgment:-

On 5 July 2007 one of the Williams children was interviewed by the police. The child was reported said to have alleged that Mr Williams “regularly beats him and his siblings and had reported that [the child] had been beaten the previous evening as he had gone to the shop without his permission to buy some lollipops.” It was also reported that the child had attributed a mark below the eye to the father using a belt.
The legality and justification, if any, for what was done following that report does not depend on whether the allegations made by the child were true but on the appropriateness of the reaction of the authorities to the potential risks to the children implicit in them. However the truth of the allegations of violence was put in issue.
In examining the evidence before me it is important for me to bear in mind and record in this public judgment the conclusions which HH Judge Paul Kennedy reached in the Crown Court having examined the evidence before him in the criminal proceedings brought against the parents for assault, cruelty and child neglect. Having read the file, he urged the Crown to offer no evidence. In his remarks, made on 16 September 2008 he said this:These are persons of good character, who faced the quite enormous task of bringing up 8 young children in an overcrowded home. That they loved their children, that they wanted the best for them, that there were determined that the future held more for them than for what Mrs Williams described as “street kids” has never been in doubt and shines out from Mrs Williams’s interview. Whilst there is little doubt that conditions at home were chaotic, the Williams have accepted the help they were offered and, within a remarkably short time, have turned around a difficult and dangerous situation to one where all departments of Social Services are content and positive about the future.
Following these observations no evidence was offered and the judge entered a verdict of Not Guilty on all counts.
There was much evidence in these proceedings to confirm the view arrived at by the learned judge, and I am absolutely satisfied that Mr and Mrs Williams were loving parents who wanted only the best for their children. They had brought them up in what must have been challenging circumstances without reproach or concern until July 2007. Their anxiety and distress exhibited when they were separated from them, their reactions to the ordeals their children endured over the next few months, were as clear in their demeanour in the witness box in this hearing as they were from the contemporaneous documentation and the evidence of the two children who gave evidence. I have absolutely no doubt that the claimants were and remain loving and committed parents determined to do their best for all their children. Their sense of sadness at not being able to be reconciled with the child who made the allegations triggering the authorities’ concerns was palpable.
Mr Williams denies that he beat his child as alleged in the police report. He told me that there was a troubled relationship with this child which, sadly, has never subsequently been repaired. He agreed that he did smack the children, but in the case of three of them on only a few occasions. In relation to the child who had made the allegation, Mr Williams said he had never smacked, or used a belt to smack, the child in the face. To my mind somewhat strangely, Mr Williams told me that he did not “recollect” punching this child in the face, an allegation made by this child to doctors in relation to a later incident in November 2009. In relation to a row that occurred in 2010 he said that he could not remember if the child had any resulting injuries, although he could not see any. He used similar expressions claiming a lack of memory on several occasions about incidents which appeared from his descriptions and the records of them to be dramatic. Of course to say something cannot be recollected can merely be a form of denial, but I sensed here that there was a degree of equivocation in Mr Williams’s answers. There was, however evidence before me that he did hit his children in the course of disciplining them. One of the adult children who gave evidence before me agreed that this was so. I was told by this witness that Mr Williams used a belt “sometimes but not always” if the children “really misbehaved, [were] really really bad”. The witness added, “sometimes he went a bit too far”. When I asked this witness what was meant by “misbehaving” in this context I was told this meant “arguing with mum, messing about outside or doing things repeatedly – that is when the belt came out“. Very much in favour of Mr and Mrs Williams is that whatever the nature of the discipline handed out certainly the two children who gave evidence clearly remained very close to their parents. There is no evidence that with the one exception described, any of the other children have a less close relationship.
I am satisfied on the evidence before me that Mr Williams did administer what he believed to be justifiable discipline to his children, which included on occasion the use of a belt. It is distinctly possible that a belt was used on or shortly before 5 July, although the circumstances and the extent to which it was used cannot now be reliably established. The only relevance of these matters is that in the course of the involvement of the defendant’s officers with this family they would have seen an attitude towards discipline similar to that which I have seen in this court. It is this sort of factor which persuades me that the defendant was justified in considering that the allegations were evidence of a risk to the safety of the children which they could not ignore in determining whether to exercise their statutory powers. This is not in any way to contradict the very positive conclusions that both HH Judge Kennedy and I have reached about the general character of both claimants.

Whilst the Judge therefore found that these were loving parents who only wanted the best for their children, he did also find that the father had by way of justifiable discipline hit his children with a belt.

How bad was the house when the police visited?

In a statement for the police made on 27 July Mrs McLaughlin stated that she was “immediately struck by the chaotic, disorganised, dirty, unhygienic and filthy environment of the home.” It was her judgment that placements were required for the children “as I could not leave them in the dangerous and inappropriate environment in which they were living.” The cleanest room, where the TV was placed, had clothes strewn across it; it was dirty and had loose wires across it. The bathroom was extremely dirty; all areas in it were “ingrained with dirt and grease. It appears not to be used.” The toilet was in a similar condition. The mattress in one of the bedrooms was “dirty and rotten with dirty sheets on it“. Clothes were strewn across the room or were in piles against the walls. She stated that she could not find a clean pair or knickers for one of the younger children. The only clean clothes were adult male clothes in the wardrobe, still in their dry cleaning bags. In the kitchen the floor was filthy, and there was “no apparent food in the freezer – only plastic bags.” The cooker was dirty with burnt rice in the grime. She saw no food for the children. In the hallway, which was also dirty, there were loose wires across the floors and sockets hanging from the walls. The children were unkempt with matted hair, and dirty faces and clothes. They were extremely reluctant to engage with the social workers and the two eldest were “hostile“. One child had an apparent skin condition some parts of which were “weeping“. Mrs McLaughlin could find no medication in the home. In her oral evidence she told me that this was one of the worst homes she had ever been in, before or since. A statement made by another social worker on the visiting team, Mark Burgess, was to a similar effect.
In her evidence to this court Mrs McLaughlin confirmed that she could clearly remember the dry cleaned suits. There was material covering the windows which made it dark. There were clothes piled up on the floor and wires across the room. Thee were bundles of sticks in each room,. The home smelt of urine. A police officer put a key into the grime on the bath “and it swallowed up the key“. The ‘fridge and cooker were very dirty. There was no food apart from a snapper fish in the freezer.

The Judge didn’t believe the allegation about the key (which I think is meant to indiccate the depth of the grime on the bath) , but that the photographs did show that the house was not in a state which was suitable to accommodate children of any age

I consider that Mrs McLaughlin’s recollection of the state of the property has been affected by the passage of time, and in some limited respects is unintentionally exaggerated. For example, I doubt that it would be literally possible for a key to be “swallowed” in grime as she suggested. Furthermore Ms Toal’s recollection of what was reported with regard to the availability of clean underwear was that it had been difficult to find any rather than that there was none. Nonetheless the material to which I have just referred persuades me that, bluntly, the premises were in an appalling state. It is inevitable that social workers must as part of their duties see many homes which are less than perfect in their cleanliness and safety, but it is evident to me that the concerns expressed in the contemporaneous records were not exaggerated for forensic purposes but were genuine and substantially true. It is understandable that caring parents like Mr and Mrs Williams find it hard to accept the full extent of the deficiencies that have been described, but I cannot accept that the state as described represented a transient phenomenon caused by a short term illness. If there were any doubt it is laid to rest by the photographs produced to me by the claimants. These were put to witnesses, but their provenance was not a matter of formal evidence and is therefore uncertain. It appears, however, that they may have been taken by the police. It is possible they were taken after some, perhaps preliminary, attempt, had been made to start remedying the deficiencies. Nonetheless they show very concerning conditions. If there is more food in the freezer than the snapper just mentioned, it is contained in unwholesome looking bags. The fridge itself is filthy, as is the cooker and various other surfaces. There are indeed hazardous wires on the floor, even if they are not across the entire floor. There are piles of items in various places, and a tied bundle of sticks is clearly visible. Accordingly I am entirely satisfied that on 5 July 2007 the claimant’s home was not a suitable environment in which to accommodate children of any age.
That the conditions in the home may not always have been unsuitable for children in this way received some support from the information the defendants obtained from the school attended by four of the children that they always looked clean and tidy. They had a 100% attendance and punctuality record, and there were no other concerns expressed. However this reassurance cannot outweigh the strength of the evidence of the actual observations made on 5 July by professional social workers whose findings, subject to the qualification mentioned above, have been, I am satisfied, substantially accurately described to me by Mrs McLaughlin. Further it was clearly reasonable for her and her colleagues to believe that such a state of affairs could not have come about during a few days or even weeks previously.

So it was clearly right for the police to have removed these children, and for an investigation to take place.

It is rightly not in dispute that the circumstances existing on 5 July justified immediate action to safeguard the welfare of the children and, in particular, it is accepted that the police decision to invoke their powers to protect children under section 46 of the Children Act 1989 was justified. A serious allegation of physical abuse had been made which clearly required investigation. The police arrested the parents and therefore those with parental responsibility were not in a position while in custody to look after the children. I am satisfied that the children presented as possibly neglected. The home was clearly in an unsuitable state to accommodate the children, even if an adult to care for them had been identified. However the relevance of these concerns extends beyond the immediate action taken by the police: it forms the background to the consideration of the subsequent actions of the defendants to which I must now turn.

Could the children have been placed with relatives, rather than coming into foster care?

I find it surprising that there is no contemporaneous record of the steps taken to look for alternative accommodation. However I note that in spite of the assertion made now by the claimants that family members were willing to take the children in, no such suggestion was made in the correspondence sent by their solicitor to which I will have to refer for other reasons below. Given the clear wish, indeed desperation, of the claimants to have their children back in the family rather than in separate and in some cases what they believed to be distinctly undesirable foster homes, I consider the absence of such a suggestion at the time inconsistent with any realistic chance of one or more family members having been willing or able to take on the challenging task at short notice of accommodating all or part of this large family. I conclude that throughout the period with which I am concerned no realistic alternatives were available, and that the defendants did probably take sufficient steps on 5 July 2007 to satisfy themselves of that position at the time.

The section 20 “agreement”

On 6 July Mrs and Mrs Williams signed a document carrying the title “Safeguarding Agreement in respect of [their eight children]“. It was also signed by Ciara Toal. The circumstances in which it was signed, and its effect have been the subject of significant dispute between the parties and I must therefore set out what happened in some detail. Where there has been a significant dispute of fact I shall make my factual findings clear.
After reciting the parties to it [the claimants and Hackney Children and Young Person’s Services] the “agreement” continued as follows This document was drawn up on Friday 6^th of July 2007 and is a Safeguarding Agreement concerning the child mentioned above.
This Safeguarding Agreement was drawn up in relation to all of the children. Although the agreement is not legally binding, it may have significance, should there be any court procedures in the future.

We, Mr & Mrs Williams parents to all the above children, agree to the following:

1. That all the children will remain in their foster placements for the present time.

2. When contact takes place you will encourage the children to return to their placements and ensure [sic] them that this is a safe place.

3. That we will behave appropriately while contact is taking place, ie assure the children that we love and care for them, show them affection.

4. That we will not discuss with any of the children what has happened.

5. To continue to comply with Hackney Children’s Social Care.

In conclusion Hackney Children’s Social Care will seek legal advice with a view to protecting the children if it is found that parents are not complying with the contents of this Safeguarding Agreement.

That wording clearly is a section 20 agreement [if a badly drafted one, it does contain agreement to the children remaining in foster care
) and the Judge says that the document is signed. . If the parents had signed that, and had understood what they were signing then there’s no real case here. The home conditions were unacceptable for children, and it was clearly going to take a bit of time for that to be turned round. If the parents felt that the Local Authority were dragging their feet once the home conditions were good enough, their remedy was to object to section 20 continuing.

So there’s a mystery here, knowing that the Judge did award them compensation. What’s the issue with the section 20 agreement?

By the time this document was signed all the claimants’ children had been placed in foster homes. Mr Williams’s account in his witness statement – supported formally by Mrs Williams in her witness statement – is that after their release from the police station he and his wife went to the defendant’s offices arriving at around 9.30 am. They met Mrs McLaughlin and asked for their children back. She told them that the defendant wanted to inspect the house and if it had been tidied up and cleaned they would return the children. She told them to return to the office at midday. Accordingly, he says, the claimants went home and cleaned and tidied it up. No-one attended to inspect it. On their return the defendant’s office they were met by Mrs McLaughlin and Ms Toal who told them that the police had now issued a Police Protection Order under which the defendant could hold he children for 72 hours. Ms McLaughlin then produced a document in which the defendant said the children would be released after 72 hours, and asked the claimants to sign it. Mr Williams said he wanted to speak to a solicitor before signing a document to which Mrs McLaughlin responded that the claimants should not speak to a solicitor as otherwise they would not get their children back. As the claimants were about to leave Mrs McLaughlin told them that unless they signed a document they would not see their children again. Because they were tired and did not understand what was happening they panicked and signed the document Mrs McLaughlin then said that they could see the children that afternoon. Mr Williams says he made it absolutely clear that the claimants wanted to take their children home but they were misled into signing the “agreement”.

So that’s the allegation, that the section 20 document was signed under duress – and importantly that when the parents said that they wanted to see a solicitor before they signed it, were strongly discouraged from doing so.

The Judge had to decide whether that was the case – not helped because there was not a contemporaneous account of the meeting

In assessing the evidence I have heard on the circumstances surrounding the signing of the so-called section 20 agreement, I have had regard to the fact that the claimants were on any view in a highly distressed and doubtless tired state when they met Mrs McLaughlin and Ms Toal. Their recollection of what they were told is likely to have been clouded by their understandable emotions, and indeed anger, at what had happened. They were vulnerable people without advice facing two officials vested with the powers of the state to take their children away, possibly indefinitely. The claimants were not therefore in an ideal position to understand the complexities of what they were being faced with. On other side, the two social workers were dealing with an unusual and fraught situation. The defendants had as a matter of urgency found themselves having to accommodate eight children, who themselves were showing signs of distress, against a background of apparently serious allegations of physical abuse, and a home which was without doubt at that moment unfit for accommodating children. Considerable, and to my mind laudable, energy had been devoted to inspecting the home and relocating the children in these challenging circumstances. The parents, however caring they wanted to be, were arguably not in a position to offer that care without being in breach of bail conditions. The notes of what happened are almost certainly not complete and understandably the officers’ direct recollection of what was said is also incomplete. However, given all the circumstances, I consider it likely that the claimants have built up a mistaken picture in their minds of what they were told, in part through misunderstanding at the time and in part through their distress at having to relive these events repeatedly over the intervening years. I prefer the account to be gained from the contemporaneous record as supplemented by the evidence of Mrs McLaughlin and Ms Toal where it conflicts with that of the parents. That does leave a number of points of serious concern about the process adopted to which I will return after examining the legal framework under which the consensual accommodation of children by a local authority is meant to occur.

The police bail confuses matters. The parents would have been in breach of their bail conditions if they had asked for and been given the children back.

This is IMPORTANT IMPORTANT IMPORTANT., the Judge here decided that the exisatence of bail conditions preventing a parent caring for a child DOES NOT MEAN that for the purposes of s20 the parent is prevented or incapbel to providing care for the child. The parent would still need to actively consent to s20.

Police bail
Bail in this case was granted under the powers accorded to police by section 37 of the Police and Criminal Evidence Act 1984. Conditions may be imposed by virtue of section 47. The person bailed has a right to apply to a magistrates court for a variation of the conditions: section 47 (1E), (1D). The conditions can be varied by the police. Breach of a bail condition entitles the police to re-arrest the bailed person: section 46(1A). Such a breach does not constitute a statutory offence: Regina v Ashley [2005] EWCA Crim 2571, [2004] 1 WLR 2057.
It follows that any attempt by Mr and Mrs Williams to effect the return of their children home would not be an offence, unless, arguably, the conduct amounted to some substantive offence. Therefore the consequences of non-compliance would be most likely limited to a consideration by the police of whether to re-arrest the parents. The most likely immediate reaction to any attempt by the parents to take their children out of foster care would, or should, have been an urgent application by the defendants to the court for one of the available orders authorising them to retain the children in their care. Such an application would of course have enabled the parents to make representations to the court and, potentially give undertakings with regard to their care of the children and their plans for improving the home.

The existance of the bail conditions thus didn’t remove the need for a s20 agreement provided by consent. Why is this IMPORTANT? Because if a parent is arrested and has bail conditions and does not sign a s20 consent, the LA have to issue care proceedings – they can’t rely on the bail conditions themselves. And potentially any case where that HAS happened, could now be a Human Rights claim.

The parties’ submissions on the validity of the section 20 agreement
The claimants submit that the defendant had no power to keep their children away from them after the expiry of the PPO, 72 hours after it was made on 5 July 2007, without either a court order of one of the types described above, or the consent of the parents to a consensual arrangement pursuant to section 20. They submit that there was no valid consent obtained on 6 July for a number of reasons:

a. The mother at least lacked the capacity to give such consent because of her mental illness or general distress.

b. Neither parent was fully informed to enable them to fully understand the consequences of their giving a consent, to appreciate the options available, and to be in possession of all the material facts.

c. They were coerced into signing the agreement by the threat of not seeing their children again.

d. They were not told of their right to take their children home at any time

e. There was no indication that the agreement was to have any effect after the expiry of the PPO.

Ready? This next bit is IMPORTANT IMPORTANT IMPORTANT IMPORTANT – the Judge here sets out that a section 20 agreement HAS to convey that the parents have the right to withdraw their consent. He also suggest that the parent needs to be told of their right to take legal advice. That goes further than Hedley J’s case on section 20 (Coventry City Council v C, sometimes called Re CA). Don’t forget that at the time that the decisions happened in this case, Hedley J’s judgment had not been given, and wouldn’t be for another 8 years…

Capacity for this purpose is equated to capacity as defined in the Mental Capacity Act 2005: see paragraph 37 of Coventry City Council v C [above]. I am satisfied that both Mr and Mrs Williams had the capacity to understand what they were told and the consequences of the decision they were being asked to make. They were distressed, but not so distressed that they lacked the capacity to make decisions. In my judgment this case is far removed from that of the newly delivered mother under consideration in C. Mr and Mrs Williams were able to express their wish to have their children returned as soon as possible, and to challenge the allegations made against them. They were capable of understanding what they were told. That their distress has resulted in their misunderstanding what they were told has more to do with the inadequacy of the information conveyed to them and its communication than their capacity to understand it.
I do not consider the claimants were fully informed of the matters of which they should have been informed:

a. Bearing in mind the threatening circumstances in which the “Safeguarding Agreement” was offered to the claimants, its form suffered from very similar defects to those described by Tomlinson LJ as being “comical“.

i. On its face the agreement is said to have possible “significance” in court proceedings. The strong inference is that the “significance” would be adverse to the parents’ prospects of seeing their children back home. This is reinforced by the threat of the defendants to seek legal advice in the event of non-compliance by the parents; clearly such advice would be with a view to making an application to the court.

ii. The document makes no reference to the legal basis on which the children are to be accommodated by the defendants. There is therefore no guidance for the parents as to the context of what they are signing.

iii. The document contains only a list of obligations being imposed on the parents, with no reference to any obligations on the part of the defendants. In particular there is no mention of the parents’ legal right to withdraw their consent and require the return of their children.

iv. The parents are required “to comply” with the defendants whatever that means. It has the look of a provision which requires the parents to comply with absolutely anything the defendants might require.

b. There is no persuasive evidence that the parents were expressly told that that they had a right to take their children away from local authority provided accommodation at any time or to object to that provision and I accept that they were not. It is no justification for this omission that the bail condition prohibited unsupervised contact. As was pointed out there could have been a number of solutions, ranging from either the parents or the defendant persuading the police to vary bail to allow alternative accommodation with family and friends if any were identified who could help. There is also an issue about what the police would have done if the children had returned home. Breach of police bail is not an offence and there has been no evidence enabling me – or the claimants – to know what was likely to have happened. It is clear that this issue was not raised or discussed by Mrs McLaughlin and Ms Toal when obtaining the parents’ signatures to the agreement.

c. There is no evidence that they were told, still less encouraged, to seek legal advice before signing the agreement.

d. I agree that there was no clear indication offered as to the effect of the agreement following the expiry of the PPO.

e. While I do not accept that the parents were told, or that the defendants’ officer intended to convey to them, that they would never see their children again if they did not enter the agreement, I do accept that this was what, in their distressed state, the claimants understood.

f. In short the circumstances, combined with the inadequacies of the information conveyed, were such as to amount to the “compulsion in disguise” of the type described by Hedley J in the Coventry case. For the same reasons such agreement or acquiescence as took place was not fairly obtained.
For these reasons I conclude that on 6 July there was no valid consent obtained from the parents such as to give the defendant authority to accommodate the children under section 20. It is therefore unnecessary to go on to consider the final part of the test, namely whether action under section 20 was a proportionate response to the circumstances facing the defendants at that time. Had I been satisfied that the parents had been fully and fairly informed of all relevant matters and given their consent, which I am not, I would have accepted that the circumstances were such that it would have been proportionate to take action to accommodate the children under section 20. The potential risks to the children posed by the condition of the family home, the parents’ apparent unwillingness to acknowledge the extent of the problem, the allegations of abuse which were under investigation, and, as I find, the absence at that time of any established alternative accommodation would have made such action a reasonable response.

Note that IF the parents had given a valid s20 consent, without the flaws in the process, the Judge was satisfied that on the FACTS of the case keeping the children in foster care until the home conditions were resolved was the right thing to do for them – it was a proportionate outcome. It was the failings of obtaining the s20 agreement – particularly the failure to really convey to the parents that they had a choice not to sign it and that they could withdraw their consent at any time, which sank this Local Authority.

The evidence offered in this case has been considered already. I have found that at material times the defendants were indeed acting outside the statutory authority granted to it by Parliament to interfere with the family life of Mr and Mrs Williams. However they were doing so in the mistaken belief that they had sufficient consent from the parents to authorise their actions under section 20 of the Children Act 1989. They were taking decisions and implementing actions solely for the purpose of protecting children against risks which, on the basis of the information they had, they reasonably believed required protective steps to be taken. It was not disputed that some action was justified as a result of what was found on 6 July. There was at all times a potential for conflict of interest between the children and their need for protection and the parents who were suspected of neglect and abuse. The fact that they were subsequently exonerated of the criminal allegations does not mean there was not a basis for a belief that protective action was required. Therefore I find some difficulty in the distinctions Ms Cooper has sought to persuade me exist between this case and one concerning the actual diagnosis of abuse. Diagnosis and assessment of risk to children is not a one off event, but a continuous process in which the significance of information and the balance of risks has constantly to be reviewed. As the, at times somewhat painful, dissection of decisions and processes in this case has shown, disentangling the rights and wrongs of individual decisions can be complex. It would in my judgment raise the danger of inhibiting authorities from taking steps to safeguard children in difficult cases were they to be open to a minute examination of their every action in a case like this. In short, if there are exceptional cases where there is no conflict justifying an exclusion of cause of action in favour of a parent, this is not one of them. This is not to apply a blanket policy, but to do my best to apply the principles of the common law as determined by the higher courts to the facts of this case.

The Judge deals with the misfeasance in public office claim – as we’ve previously discussed on this blog, a key ingredient is that the action is deliberate, and here the Judge was satisfied that the professionals were operating on the mistaken belief that the parents had validly consented to s20 and that the Council thus had a legal power to keep the children in foster care – they were wrong about that, but it was a genuine belief.

The parents did, however, succeed on the Human Rights Act claim and were awarded £10,000 each.

I consider that comparable factors are relevant in an Article 8 case generally, and the present case in particular. This was undoubtedly a close family presided over by loving parents. They were extremely distressed by the continued separation from their children and constantly voiced their anxieties in that regard to the defendants. They witnessed the adverse effects of foster care on more than one of their children, one of whom was a baby who was being breast fed. On the other hand, I must bear in mind that the initial separation was justified, and that an investigation of the type which occurred would have taken place in any event. This is not a case of permanent loss or bereavement, and the children were returned in the end.
Clearly the claimants have not received adequate redress to date. While certain of their complaints were upheld by the complaints process and the Ombudsman, they have received no acknowledgement let alone compensation for the unlawful deprivation of the care of their children for a number of months. Reminding myself that awards of this type should be fairly modest, I consider that the appropriate sum to award to each parent is £10,000 each. It was contended by Ms Cooper that I should award aggravated or exemplary damages, but if I understood her submissions correctly this related to the misfeasance claim which I have rejected. In any event I do not consider that such an award would be appropriate.Conclusion
For the reasons given judgment will be entered for the claimants in the sum of £10,000 each. I will hear submissions on any further and consequential orders that are said to arise out of this judgment.

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Posted in case law, section 20 and tagged bail conditions and section 20, human rights act, human rights compensation, section 20, section 20 consent, the guardian, williams and another v hackney, williams v hackney 2015. Bookmark the permalink.

And I’m all outta bubblegum

Posted on September 15, 2015 by suesspiciousminds

It is always enjoyable for me to receive a judgment from His Honour Judge Wildblood QC. I expect that there may be a slightly different qualitative experience between reading one at a safe geographical distance and being physically present to receive it on a case you’re involved in.

My mental image of His Honour Judge Wildblood QC is that of a kindly man who nonetheless would be able to come into his Court room and open with the Rowdy Roddy Piper (God Rest his soul) line

“I came here to chew bubblegum and kick ass… and I’m all outta bubblegum”

[Incidentally, the fight scene in this movie, They Live, which is between two characters, one of whom wants the other to put on a pair of sunglasses and the other who is reluctant to don said sunglasses, is so epic that my dad came and got me out of bed to come and watch it at about three am, when he was watching this film on TV. And I was glad that he did. It is marvellous. In case you are in any doubt – when I compare HH J Wildblood QC with Rowdy Roddy Piper it is intended as high praise]

This case does not disappoint on that level. There was clearly a deficiency of gum that day, but no deficiency of kicking ass.

Gloucestershire CC and M 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B147.html

I am publishing the judgment in this case because it is an example of the following:

i) The unnecessarily protected use of accommodation of a child under section 20 of The Children Act 1989. This child was accommodated with short term foster carers for 12 months before these inevitable proceedings were issued and has now been with them for about 16 months.

ii) The delayed identification of the need for therapeutic intervention for this mother. 19 months after the Local Authority intervened in a family where the mother had obvious difficulties it was identified that the mother needed therapy. It was then said that, by then, the benefit of therapy was ‘outwith the timescales of the child’. If psychological evidence was to be obtained with the invariable recommendation of therapy (and I have never known a psychologist not recommend therapy in a report) I cannot understand why it was not obtained much earlier.

iii) Failure to identify realistic options leading to the adjournment of this final hearing and a consequent inability to meet the timetabling demands of section 32 of The Children Act 1989, as amended.

Section 20 drift has been something of a theme of the Courts and hence this blog, for some time now.

As a quick rule of thumb for a social worker thinking about a case in their cabinet/caseload where there’s a section 20 agreement, ask yourself this question

If the mother or father rang you this afternoon and said “I want the child back” would you be ?

(a) Perfectly fine about that and make the arrangements

(b) Okay about it, but suggest that the move take place over the next 2 days to make the preparations

(d) In a blind panic, and wanting to do anything to stop that happening

If your answer is (c) or (d), then it isn’t really a proper use of section 20 any more. The section 20 here is a very short holding position until you can either have a Meeting Before Action at which the parents will have lawyers, or care proceedings at which the parents will have lawyers.

C grew up in the primary care of his mother until 28^th May 2014 when, at the age of 5, he was removed from the mother under police powers of protection and then accommodated by the Local Authority with foster carers. The mother does not accept that the threshold criteria in s31 (2) of The Children Act 1989 are fulfilled and has also issued a claim for damages under The Human Rights Act 1998 in relation to the circumstances in which C was removed from her care and the manner in which the Local Authority has conducted itself in relation to C. On the same day in May 2014 A went to live with Mr D.
For no valid reason it took the Local Authority a year, that is until 15^th May 2015, to issue these proceedings. In its application the Local Authority said at B9: ‘C was the subject of a child protection plan from August 2013 until 19^th May 2014 as a consequence of neglectful parenting. The concerns related to the dirty and unhygienic home conditions and the mother’s mental health and its impact upon her parenting and capacity to meet her child’s needs. A week after de-registration a further child protection referral was received. C was accommodated on 29^th May 2014 following police powers of protection being used on 28^th May 2014. The police removed C as a consequence of a person known to be a risk to children continuing to have contact with him (against professional advice) and because of the unsuitable home conditions. On 29^th September 2014 the mother was evicted from her flat which had been significantly damaged. The mother was sofa surfing. Roger Hutchinson, psychologist, completed a report on the mother on 9^th March 2015. This concluded that the mother experiences social anxiety and schizoid and paranoid traits with poorly developed social, functional and adaptive skills. Therapy is indicated over a nine month period’.
C has therefore been with his current foster carers for 16 months of his life, has settled with them and is integrated into life with them. His mother has been having contact with him twice a week for sessions lasting one hour and although there have been inevitable niggles about that contact, a condensed analysis of that contact could not express it as falling below the grasp of the adjective ‘reasonable’ on my current reading of the papers and submissions that were made at the IRH. C’s educational and social connections, at an important time of his life when he is settling into school, have all been made from the base of his current foster home. The foster carers have done an excellent job in caring for him and, in his letter to the judge, C says ‘my family is [the foster father, the foster mother and their cat]‘ and draws the foster father with a big smile on his face. The guardian reports that C is making ‘greatly improved progress at school and his health has improved’ since living with them [A14].

These three paragraphs of background raise the three obvious questions

What the hell took the LA so long to issue?
Is it fair for the LA to have delayed so long in finding out that mum needed 9 months of therapy – because if they’d found out earlier, she’d have had it by now
IF the child can’t go and live with mother, surely this child is going to stay with the current carers if humanly possible

However, the LA in this case had delayed for so long, were saying that the child couldn’t wait for mum to have therapy, and had ruled out the current foster carer as an option.

Taking these in turn

i) Having been involved with this mother since August 2013 and having accommodated this child in May 2014 it is inexplicable that it took a year for the Local Authority to issue these proceedings. That has absolutely nothing to do with limited resources. It is simply bad practice.

On the issue of therapy :-

ii) The Local Authority knew the mother’s level of functioning but still took until 9th March 2015 to identify that this mother needed therapy. Knowing the mother’s level of functioning why did it take 19 months (from August 2013) to do that? How can it be regarded as satisfactory for the Local Authority now to say that the mother needs therapy which is outwith the timescales of the child? For instance, if a psychologist’s report had been obtained within three months of C being accommodated (i.e. in August 2014) there could have been 13 months of therapy by now at far less expense than the cost of these proceedings leading to the possibility that the consequences of this mother’s unfortunate background could have been mitigated with the child receiving an upbringing with her

[I have a bit of sympathy with the LA here – I’m not sure whether anyone actually argued that as a result of House of Lords authority Kent County Council v G, it is not within the Court’s powers to compel the provision of therapy, that therapy thus has to be resourced through the NHS and the NHS aren’t going to provide therapy without a clear diagnosis and recommendation, at least not without a huge waiting list. So tempting as it is to just start the therapy whilst waiting for the expert report, that isn’t how the real world works. It is fair enough to say that the real world in this regard sucks and it needs to change. There is possibly a big argument to come as to whether the House of Lords settled position that “there is no article 8 right to be made a better parent at public expense” is compatible with what Baroness Hale says in Re B about the State needing to provide the resources to do just that, but that’s a debate that can only be resolved by the Supreme Court. ]

On the last issue, why the current foster carers had been rejected in favour of adoption by the LA.

At the IRH, on 8^th September 2015, I was told that the current foster carers were not offering C a long term home. The guardian says in her position statement: ‘since the IRH on 8^th September 2015 the guardian has spoken to C’s current foster carers. They have confirmed they have never said they would not keep C long term as foster carers. They would not wish to consider special guardianship or adoption because they see themselves as foster carers and may well wish to foster another child and would wish both children to be placed with them on the same basis. The foster carer has also informed the guardian that Mr D has on a number of occasions said that he would be prepared to care for C if there were no other options’.
It is right that, on 27^th August 2015 there was a discussion between the adoption social worker, TG, and the foster carers. I have the case note in relation to that. This conversation therefore took place six days after the placement application had been filed by the Local Authority (so the Local Authority had already ruled out long term fostering then). The foster carers were saying at the time of that note that they did not feel able to adopt C. They are not recorded as saying that they would not foster C. It took one conversation between the guardian and the foster carers to clarify matters. When asked directly by the social worker on an unspecified date (but after the IRH) ‘the foster father confirmed that he and the foster mother would have C for as along as is needed in long term foster care with a care order if they were supported by the Local Authority’. The clear impression that I have, having read the papers, heard the IRH and listened to submissions today, is that the Local Authority did not consider the possibility of long term fostering with the foster carers and, once it regarded the mother as ruled out, its linear analysis took it to adoption.

So the child’s current foster carer, who everyone involved would agree had done a marvellous job, was willing to be a permanent carer for the child, just that he didn’t want to adopt the child. The LA had approached this on the basis of “our plan is adoption, you don’t want to adopt, therefore you are out”, rather than looking at whether the child could remain with the carer on a different basis THUS avoiding the need for adoption.

The case simply could not be concluded, as there were too many unknowns.

Following a heavy IRH on 8^th September 2015 the case is listed before me for final hearing for the rest of this week. That final hearing cannot proceed because there are realistic options in relation to the future care of C that have not been assessed by the Local Authority. That means that large amounts of public money and time have been wasted in a Local Authority involvement that has spanned 16 months. All parties now say that the case has to be adjourned. Eventually, I have had to give up my attempt at keeping this case on the rails of this final hearing and have had to accede to adjournment. To adjourn a case where there has been lengthy Local Authority involvement with a family in a straightforward case is absurd but now unavoidable.

and in conclusion

What are the options that need to be considered? They are these:

i) That C should be rehabilitated to his mother. Of course, nature, law and common sense require that it be recognised that the best place for a child to live is with his natural parent unless proven and proportionate necessity otherwise demands. As matters stand the professional evidence is all stacked up against this mother but her case will require very careful consideration at a final hearing.

ii) That C should continue to be a child fostered by Mr and Mrs B. If the Local Authority will not support this the only way in which C could live with the foster carers would be through private law orders. If special guardianship orders were to be proposed there would need to be a report under s14A(8) of The Children Act 1989. Therefore I need to flush out what the Local Authority is saying. If it will not agree that C should remain with the foster carers (should the court so recommend on the making of a care order and a rejection of the placement application), I will have to give directions for a special guardianship application to proceed (a written application is not necessary if I so determine – s14A(6)(b) of the 1989 Act). The possibility of C remaining with the foster carers is unassessed by the Local Authority and there has not been sufficient discussion with them.

iii) That C should live with Mr D and A. This is also unassessed. There is no blood relationship between Mr D and C but there is a blood relationship between A and C. They have a clear fraternal attachment (in which C is A’s big brother). That possibility remains unassessed also.

iv) That C should be placed for adoption. That is an option upon which I have already commented. I am not suggesting that there are difficulties about that option on the basis of age alone. I say that there are difficulties about it because of the particular circumstances of this child.
Therefore today I have had to give directions for the future of these proceedings. By the time that the case comes back the new baby will have been born, and I wish the mother well with the birth. However, the advent of the new baby will mean that there are additional complications that will arise in ensuring that the best solution is found for C.
I have given this judgment in writing so that there is a formal record of what has gone wrong in this case and how matters must now be put right. The Local Authority must consider the realistic options that arise and must put its case into order.
Proper plans must be put in place for the birth of the baby and where the inevitable assessment of the mother and the baby will take place. That should have been done already. The mother is in and out of hospital at the moment and it is manifestly unfair that, as well as dealing with the physical demands of impending birth and repeated hospital appointments, she is also having to deal with the uncertainties of these proceedings and a lack of knowledge about what will happen when she does give birth – where will she be living and what is planned for the baby?
The Local Authority must therefore look at the options that arise and file proper evidence in relation to them. The case will have to come back before me later this week when I will have to give further directions as to how that will be achieved. It is deeply frustrating that a case such as this has to exceed the timescales provided by section 32 of The Children Act 1989 and that should be recorded as having been caused by systemic failure by the Local Authority

There is also some pending litigation in this case as to whether when the child was originally removed from the parents by police protection, whether that was in breach of the families human rights – it being really settled law that where removal of a child is being contemplated it should be a decision of the Court unless there are exceptional and compelling reasons why the removal cannot wait for a Court hearing.

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Posted in adoption, case law, judicial spanking and tagged delay, gloucestershire county council and m 2015, his honour judge wildblood qc, judicial criticism, judicial criticism about section 20, police protection, removal under police protection, rowdy roddy piper, section 20, section 20 drift. Bookmark the permalink.

Parents consenting to adoption within care proceedings

Posted on September 15, 2015 by suesspiciousminds

This is a case decided by a Circuit Judge, so not binding precedent, but it is both sad and unusual .

Re C (A child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B146.html

In this case, care proceedings were taking place and the mother was with the baby in a foster placement. A major issue was whether the father presented a risk to the mother and to the baby as a result of serious allegations (and convictions) of sexual harm perpetrated by him to adults. There had been assessments during the proceedings and the Local Authority felt that mother was moving forward and was willing to make changes and asked the Court for more time to assess her further before a final decision was made (to give her time to make those changes). They actually asked for longer time than the Court was willing to give, but more time was given.

The Local Authority were due to file their final evidence and care plan by the 22^nd July. However in the light of the report from the independent Social Worker and from their own observations from the good parenting that this mother could offer to her child the Local Authority came to the issues resolution hearing on the 31^st July with a plan of further work to be undertaken with the mother as recommended by the independent social worker.
They asked for an adjournment for several further months ( into 2016) to enable that work to be successfully undertaken. The Guardian was against that work being undertaken at all as she considered it to be outside the timescales for the baby and her own assessment was that the mother would not be able to parent this child.

However the Court considered, having regard to the positive changes that the mother appeared to have made which included that she had separated from the father and now wished to be a sole carer for her son that it was appropriate for there to be a further period of time given to enable the mother to evidence change and a real understanding of the risks that not only the father posed but that would protect her from manipulation or control from other like minded men in the future.
Accordingly the Court approved a package of work to be provided to the mother. This included a requirement for the mother not to communicate with the father and to obviously undertake the work recommended and to attend all of the appointments. In order for the Local Authority to be satisfied that the mother was not contacting or had not contacted the father and that she was truely separated from him she readily agreed for her telephone records from her mobile number and her Facebook pages to be made available to the Local Authority.
It was also positive that despite the conclusions of the psychological report on the father that he had taken the report to his GP who had recommended that he should first undertake a course with BARST and that once he had concluded that work then there would be a referral back to his GP to consider work to address his issues.
It therefore seemed to the Court on that occasion that the father was for the first time taking a real step to understand that his sexual behaviour was inappropriate and that it needed to be addressed and that coupled with the separation of the parents and the mother’s positive parenting that it did in the Court’s view mean that there could be a really positive outcome to this case and the child could remain being successfully brought up by the mother in the long-term. The court did not approve the timescale proposed by the authority , and required them to come to a final decision as to their care plan for this child ( informed by the engagement and progress the mother made in the intervening period) by the 2 nd October.

Just days afterwards though , the mother sent the following email to the Local Authority lawyer (or the lawyer’s assistant)

“Hi ( legal assistant ) I know I shouldn’t be emailing you but I need to tell the truth. The Local Authority want me to do a course with (therapist) but I will never admit that (father) is a risk so saying that I’d wish to be taken home and (son )to go up for adoption. As much as I love my little boy I don’t want to waste the LA’s time I want (son) to be settled I don’t want this to be delayed any longer. They all want me to be honest and I am being honest, I have spoken to (foster carer) and have spoken to a lot of people who think I’m stupid but this is my decision and I wish to go.”

The case was taken back to Court and both the mother and father, having had long discussions with their lawyers, confirmed that this was their position, that the child should be adopted and that they would consent to the making of a Care Order and Placement Order.

The Local Authority having not been considering a plan of adoption for this child were taken aback, and the case had not gone to their Agency Decision Maker (who is the person who has to approve any request for the making of a Placement Order)

Therefore, as a matter of law, the parents were consenting to an order where the LA were not actually able to apply for that order, and the case couldn’t be finished on that date as the parents had hoped. There was a short delay to allow that to be done.

In this case, the paternal grandfather was very actively campaigning about family justice and injustices in this case

The assessments were being undertaken by the Local Authority against the backdrop of an abusive and cowardly campaign by the paternal grandfather on Facebook which has persisted throughout the course of these proceedings. He has made wild unproven claims against the particular Social Workers and the Local Authority generally and against this Court. It was clear from the hearing on the 14^th August that the father shares his fathers views.

The campaign has included continued allegations of perjury and that the perjury in the Secret Family Court is to traffic children for money.

All of the Social Workers who have been involved in either child’s case have been named in Facebook pages and described as: “pathological paid liar”, “lying entrapment scumbag”, “paid liar assessor”, “paid liar”. All are described in this list as “baby/child traffickers who are operating in Southampton”. Facebook entries state they were trying to steal his granddaughter and worked ‘for a child trafficking organisation called the Local Authority’. The grandfather has also recommended that facebook users check out the social workers ‘friends list and you will see the child trafficking social workers on there, talk about conspiracies, the evil baby stealing bastards’.

It is worth noting that the grandfather had not actually applied to Court to be a party or to play any role in the proceedings or to put himself forward as a carer.

The Judge said this, in conclusion

In this case both parents not only do not oppose the making of the Care and Placement Orders, they positively consent to them. That in itself is a highly unusual state of affairs. It is highly unusual for parents to actively consent to the making of such orders rather than simply not opposing them.
There therefore is a concluded position between the Local Authority, the Guardian, and both parents that this child should be made subject to a Care Order and should be placed for adoption.
It is a sad outcome for this child. The social workers in this case have gone the extra mile to support this mother in caring for her child. They have done that against the backdrop of persistent allegations and abuse from the paternal family, They have however remained professional throughout and have remained focused on trying to support this mother in caring for her child. It is important that is recorded. It was not their decision to separate this child from her baby, it was the mothers choice, supported by the father.
This was an outcome that was predicted by the risk assessment that was undertaken by the psychologist. But it is still in my judgment right that that opportunity was given to this mother to care for her child. Sadly in this case the mother has chosen her relationship with the father above her relationship with her child.
She has chosen to disregard everything that has been written about the father and the sexual risk that he poses to her and has chosen to remain in that relationship. This case could have had a very different outcome had the mother been able to understand that.Neither parent, nor any member of either the paternal or maternal family have given to this court any other options as to who could care for this child, realistic or otherwise to consider.
No one from either family has applied during these proceedings to be assessed as a carer or to be joined as a party. Given the campaign being pursued by the paternal family that is surprising to say the least.
In the circumstances for the reasons given there are no other orders that this Court can make other than the orders that all parties invite the Court to make and that is the making of the Care and Placement Orders and therefore with the consent of all parties those are the orders that I make. There is nothing else that I can do.

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Posted in adoption, case law and tagged her honour judge black, parents consenting to a placement order, re c a child 2015. Bookmark the permalink.

IVF and declarations of paternity – major cock-ups in IVF clinics

Posted on September 11, 2015 by suesspiciousminds

I’m often a bit snippy about the President’s decisions in Human Fertilisation and Embryology Act cases, but I can’t fault him in this one.

A and Others (Human Fertilisation and Embryology Act 2008) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2602.html

This case involved eight cases where couples had made use of very well known and well regarded reputable fertility clinics within England, but as a result of mistakes in the clinics processes, found that not all of them had legal status with their own children and had to apply to Court for a Declaration of Parentage to resolve those issues.

The advocates involved were a roll-call of some of the best minds around, and one can see why.

This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.

The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation – the issue which confronts me here – is dealt with in Part 2, sections 33-47, of the 2008 Act. It is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?

Why has this arisen?

The decision of Cobb J on 24 May 2013 in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357 , brought to public attention and, more particularly, to the attention of the HFEA, the lamentable shortcomings in a clinic identified only as clinic Z which, in the judge’s view (para 74), had fallen “far short” of its obligations and which (para 88) had failed to comply with the conditions of the licence granted to it by the HFEA.
I must return in due course to explain in more detail the relevant statutory requirements. For the moment I merely indicate two fundamental prerequisites to the acquisition of parenthood by the partner of a woman receiving such treatment. First, consents must be given in writing before the treatment, both by the woman and by her partner. The forms required for this in accordance with directions given by the HFEA are Form WP, to be completed by the woman, and Form PP, to be completed by her partner. Secondly, both the woman and her partner must be given adequate information and offered counselling.
Following Cobb J’s judgment, the HFEA required all 109 licensed clinics to carry out an audit of their records. The alarming outcome was the discovery that no fewer than 51 clinics (46%) had discovered “anomalies” in their records: WP or PP forms absent from the records; WP or PP forms being completed or dated after the treatment had begun; incorrectly completed WP or PP forms (for example, forms not signed, not fully completed, completed by the wrong person or with missing pages); and absence of evidence of any offer of counselling. At the time of the hearing, I did not know how many cases there might be in all, how many families are affected and how many children there are whose parentage may be in issue – so far as I was aware the HFEA had never disclosed the full numbers – but it was clear (see below) that some clinics reported anomalies in more than one case. Since the hearing, the HFEA in a letter dated 1 September 2015 has indicated that there are a further 75 cases.
As it happens, we are best informed about the St Bartholomew’s Hospital Centre for Reproductive Medicine, operated by Barts Health NHS Trust, which I shall refer to as Barts. It was the subject of a judgment given by Theis J on 13 February 2015: X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13 . Moreover, it has been commendably open and frank about its failings (others seem to have been more coy), sharing its findings with the wider medical community as long ago as September 2014 when, at the instigation of the HFEA, they were published on the HFEA’s clinicfocus e-newsletter. Of 184 patients who had undertaken fertility treatment with donor sperm since April 2009, when the 2008 Act was implemented, there were 13 cases (7%) where legal parenthood was in issue.
The picture thus revealed, and I am referring not just to Barts, is alarming and shocking. This is, for very good reason, a medical sector which is subject to detailed statutory regulation and the oversight of a statutory regulator – the HFEA. The lamentable shortcomings in one clinic identified by Cobb J, which now have to be considered in the light of the deeply troubling picture revealed by the HFEA audit and by the facts of the cases before me, are, or should be, matters of great public concern. The picture revealed is one of what I do not shrink from describing as widespread incompetence across the sector on a scale which must raise questions as to the adequacy if not of the HFEA’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.

All of these people put themselves in the hands of, as the President says, brilliant doctors, who brought them the gift of children, but also had put themselves in the hands of an administrative system upon which the entire notion of whether they were both legally that child’s parents. That administrative system did not always work.

As can be seen in this case, the wrong forms were sometimes used, forms were misplaced or lost.

For both of the couple to be legal parents, it is vital that before the treatment commences that the mother to be signs a form saying that she agrees and consents for the man to be the father in law of any child created, and that the father-to-be signs a form saying that he agrees and consents to be the father in law of any such child. That’s an essential component of the Act. If there is no such written consent, then the man would not be in law the father. [I’ve used mother and father for simplicity here – of course it is possible for two women to become parents under such an arrangement]

The issues
As will become apparent in due course, the cases before me raise three general issues of principle which it is convenient to address at this point.
The first (which arises in Cases A, B, E, F and H) is whether it is permissible to prove by parol evidence that a Form WP or Form PP which cannot be found was in fact executed in a manner complying with Part 2 of the 2008 Act and whether, if that is permissible, and the finding is made, the fact that the form cannot be found prevents it being a valid consent, as involving a breach by the clinic of its record-keeping obligations. This was the issue decided by Theis J in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13 . In the light of her decision, with which, as I have said, I respectfully agree, the only question in such a case is a question of fact: Allowing for the fact that it can no longer be found, is it established on the evidence that there was a Form WP or Form PP, as the case may be, which was properly completed and signed before the treatment began?
The second issue (which arises in Cases D and F) is the extent to which errors in a completed Form WP or Form PP can be ‘corrected’, either as a matter of construction or by way of rectification. A similar point (which arises in Cases E and F) is the extent to which errors in a completed Form IC can be ‘corrected’ This is a novel point in this context which, in my judgment, falls to be decided in accordance with long-established and well-recognised principles.
I start with rectification. As a matter of general principle, I can see no reason at all why a Form WP or Form PP should be said to be, of its nature, a document which cannot be rectified. The fact that it is a document required by statute to be in a particular form (that is, “in writing” and “signed by the person giving it”) is, in my judgment, neither here nor there: compare the many cases where rectification has been decreed of conveyancing or trust documents similarly required by various provisions of the Law of Property Act 1925 to be in a particular form. Nor does it matter, in my judgment, that a Form WP or Form PP is used as part of, and, indeed, in order to comply with the requirements of, a statutory scheme. There is, for example, nothing in the language of any of the relevant provisions of Part 2 of the 2008 Act to suggest that rectification is impermissible. Contrast, for example, the well established rule that the Articles of Association of a company will not be rectified because rectification would be inconsistent with the provisions of the Companies Acts: see Scott v Frank F Scott (London) Ltd [1940] Ch 794. So, in my judgment, if the criteria for rectification are otherwise established, a Form WP or a Form PP can be rectified.
Quite apart from the equitable doctrine of rectification, the court can, as a matter of construction, ‘correct’ a mistake if (I put the matter generally, without any detailed exegesis) the mistake is obvious on the face of the document and it is plain what was meant. The reported examples of this are legion and stretch back over the centuries. They include cases of clear misnomer. Again, there is, in my judgment, no possible objection to the court taking this course in relation to a Form WP or a Form PP.
The third issue (which arises in Cases A, C, D, E, F and H) is whether a properly completed Form IC is capable of operating as consent for the purposes of sections 37 and 44 of the 2008 Act

If you are wondering what ‘parol evidence’ is, then you are not alone. I wondered that too. Of course, if you all knew, then I was the only person wondering it, and now I feel bad.

Parol refers to verbal expressions or words. Verbal evidence, such as the testimony of a witness at trial.

In the context of contracts, deeds, wills, or other writings, parol evidence refers to extraneous evidence such as an oral agreement (a parol contract), or even a written agreement, that is not included in the relevant written document. The parol evidence rule is a principle that preserves the integrity of written documents or agreements by prohibiting the parties from attempting to alter the meaning of the written document through the use of prior and contemporaneous oral or written declarations that are not referenced in the document. [In short, any other supplementary evidence that would allow a Court to decide that yes, both ‘parents’ did agree that each would be a legal parent to that child]

I am pleased to say that the President did conclude that in each of these cases, there was parol evidence that the couples had all gone into this arrangement fully consenting to the legal parentage of the child, and thus the deficiencies in the forms or the missing status of the forms could be remedied and the Declaration of Parentage made.

I conclude, therefore, that, in principle:

i) The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began;

ii) The court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.

iii) A Form IC, if it is in the form of the Barts Form IC or the MFS Form IC as I have described them above, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP.^[2]

iv) It follows from this that the court has the same powers to ‘correct’ a Form IC as it would have to ‘correct’ a Form WP or a Form PP.

That, I’m sure came as a relief to the parents involved. I won’t dwell on the nuts and bolts of how the President reached that conclusion, but focus more on the human angle

The evidence I listened to in these cases was some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, W’s partner might not legally be the parent. In one case, where the journey to a successful birth had taken the parents twelve years of what was described as grief and pain, it is hardly surprising to learn that they were “devastated and heartbroken” when told by the clinic that the mother’s partner was not the child’s parent. In another case, the comment was, “it is simply not fair.” The words may be understated, but the raw emotion is apparent. Another called the situation “terrible.” Another spoke of being “extremely distressed”, unable to sleep and “constantly worrying about the future.”
It is testament to the enormous dignity they displayed, even while the case was going on and they did not know what the outcome was going to be, that these parents, despite their justified criticism of how they felt let down by professional people they had trusted and who they had thought, wrongly as it turned out, they could rely upon, did not give voice to greater anger and more strident criticism. It was, if they will permit me to say so, a humbling experience to watch them and hear them give evidence.
A number of common themes emerge from the evidence. In each case, having regard to the evidence before me, both written and oral, I find as a fact that:i) The treatment which led to the birth of the child was embarked upon and carried through jointly and with full knowledge by both the woman and her partner.
ii) From the outset of that treatment, it was the intention of both W and her partner that her partner would be a legal parent of the child. Each was aware that this was a matter which, legally, required the signing by each of them of consent forms. Each of them believed that they had signed the relevant forms as legally required and, more generally, had done whatever was needed to ensure that they would both be parents.

iii) From the moment when the pregnancy was confirmed, both W and her partner believed that her partner was the other parent of the child. That remained their belief when the child was born.

iv) W and her partner, believing that they were entitled to, and acting in complete good faith, registered the birth of their child, as they believed the child to be, showing both of them on the birth certificate as the child’s parents, as they believed themselves to be.

v) The first they knew that anything was or might be ‘wrong’ was when they were subsequently written to by the clinic.

vi) The application to the court is wholeheartedly supported by the applicant’s partner or, as the case may be, ex-partner.

vii) They do not see adoption as being a remotely acceptable remedy. The reasons for this will be obvious to anyone familiar with a number of recent authorities which there is no need for me to refer to. As it was put in the witness box by more than one of these parents, as they thought of themselves, why should I be expected to adopt my own child?
There are two other matters which emerged clearly in the evidence. There is no suggestion that any consent given was not fully informed consent. Nor is there any suggestion of any failure or omission by any of the clinics in relation to the provision of information or counselling.

The President did consider that it was appropriate to name the clinics involved.

I can see no reason at all why the clinics should not be identified. So far as concerns IVF Hammersmith Limited, readers of this judgment will appreciate that the case has not yet been heard and that there are as yet no findings. Barts, MFS and BH, on the other hand, each stands exposed as guilty of serious shortcomings, indeed, at least in the case of Barts and MFS, repeated and systemic failings. Why, in the circumstances, should their shortcomings be shielded from public scrutiny or, indeed, public criticism? I can think of no compelling reason. On the contrary, if public condemnation serves to minimise the risk that any future parent is exposed to what these parents have had to suffer, then it is a price well worth paying. I have not identified any of their staff, nor any of the treating clinicians. There is no need, and it would be unfair, to do so, for the failings are systemic and, ultimately, the responsibility of senior management and the HFEA.

This was not, of course, a public enquiry into the failings of the clinics, or the regulatory body, but the President made some remarks aimed at preventing such problems in the future (though it seems that these 8 cases are likely to be followed by many, many more – at least another 65, that are known to have gone wrong). The President here has thwarted my usual practice of putting the quotes from the judgment in bold, as he emboldens particular words for emphasis…

An afterword
It is not for me to provide guidance as to how these serious and systemic failings could better be prevented. That, after all, is the function of the HFEA and, within each clinic, the responsibility of the individual who is the “person responsible” within the meaning of section 17(1) of the 1990 Act. There are, however, three observations which I am driven to make in the light of the very detailed forensic examination to which these matters have been subjected during the hearing.
The first relates to the material published from time to time by the HFEA in the aftermath of Cobb J’s judgment in AB v CD. I have in mind letters sent out by the Chief Executive of the HFEA dated 10 February 2014 and 1 September 2014, a letter sent out by the Chair of the HFEA dated 3 February 2015 and the April 2015 version of the HFEA’s Consent forms: a guide for clinic staff. While a careful reader who studies these documents with a critical and attentive mind ought not to be left in much doubt about the need to make sure that both Form WP and Form PP are completed properly, and at the right time, I cannot help thinking that it might be better if this FUNDAMENTALLY IMPORTANT requirement, and the potentially DIRE LEGAL CONSEQUENCES of non-compliance, were expressed in more emphatic, indeed stark, language and, in addition, highlighted by appropriate typography. By appropriate typography I mean the use of bold or italic type, CAPITAL letters, or a COMBINATION of all three; the use, for example, of red ink; and the flagging up of key points by the use of ‘warning’ or ‘alert’ symbols. To be fair, some effort has been made to highlight particular points, but I suggest that the process could go further.
The second relates to the imperative need for all clinics to comply, meticulously and all times, with the HFEA’s guidance and directions, including, in particular, in relation to the use of Form WP and Form PP.
The final observation relates to practice within clinics. A completed Form WP and a completed Form PP surely needs to be checked by one person (probably a member of the clinical team) and then re-checked by another person, entirely separate from the clinical team, whose sole function is to go through the document in minute detail and to draw attention to even the slightest non-compliance with the requirements – all this, of course, before the treatment starts. I trust that the parties will not be offended by the comparison, but the approach to checking that the Form WP and the Form PP have been fully and properly completed is surely just as important, and demands just as much care, attention and rigour, as would be demanded in the case of a legal document such as a contract for the sale of land, a conveyance or a will – indeed, in the context of parenthood, even more important.

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Posted in case law and tagged A and others 2015, declaration of parentage, failures of IVF clinics to get consent or keep the forms, HFEA, HFEA 2008, IVF, president of the family division, sir james munby, the president. Bookmark the permalink.

Can a single person apply for a Parental Order in a surrogacy situation?

Posted on September 8, 2015 by suesspiciousminds

Parental orders are governed by section 54 of the Human Fertilisation and Embryology Act 2008. There are a few mandatory requirements set down by the Statute.

The application must be made by a couple. The application must be made within 6 months of the birth. At the time the order is made, the child’s home must be with the applicants. There must not be money changing hands save for reasonable expenses. [I note in this case that some $45,000 dollars changed hands, which on the bare Act would not be permissable, but the Court never seem to have any problem with this any longer]

The Courts have, in recent months, been willing to grant exceptions to most of these mandatory stipulations and find their own wriggle-room, notably the President who when deciding whether the wording here:-

54 (3) the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

meant that the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born, instead gave this an interpretation of ‘or if not, you know, whenever’ [It was all done very elegantly and intellectually, but there is no good way to actually rewrite section 54(3) following that decision other than by simply striking a line through it, and for me, I don’t think Courts should be striking a line through bits of statute that they find inconvenient]

So in this case, the Court was asked to consider whether a parental order could be made on the application of a single person.

Re Z (A child : Human Fertilisation and Embryology Act 2008 : Parental Order) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/73.html

Decided by the President, who opens it with such a good paragraph I almost wish he’d left it there

When section 54(1) of the Human Fertilisation and Embryology Act 2008 provides that in certain circumstances the court may make a parental order on the application of “two people”, is it open to the court to make such an order on the application of one person? Can section 54(1) be ‘read down’ in accordance with section 3(1) of the Human Rights Act 1998 so as to enable that to be done? These are the questions raised for decision here. In my judgment the answer to each question is clear: No.

{I agree with the President here. I think he was wrong in the previous case, and that there’s only one sensible interpretation of s54(3) and that is that the six months is a cut-off point for making the application (and hence making an order) }

The applicant put up a very grand fight on what was obviously a difficult argument given that the statue expressly says :-

On an application made by two people (the applicants) the court may make an order providing for a child to be treated in law as the child of the applicants

The argument is that this is discriminatory against single people, as opposed to people who are in couples, that is in itself prohibited under Article 14 and that this also interfered with the applicant’s article 8 rights, and also adds in Article 12 which provides the right to marry and found a family (suggesting that these are two separate rights) and that as this stipulation is not HRA compatible the Court should ‘read it down’ to interpret the bare Statute in a way that would be HRA compatible. Additionally that there’s a distinction between Parental Orders (which only couples can apply for ) and Adoption Orders (which can be applied for by a single person or a couple).

In part, however, this is problematic because when the HFEA Bill was going through Parliament there’s a specific request made for s54 to be amended to provide for single persons to apply for parental orders and that request was specifically rejected. (So where the President was able to ‘generously’ assume that Parliament never intended that applicants who waited 18 months before applying should be deprived of the chance just because that’s what the Act says, that ‘generous’ interpretation method can’t fly here – Parliament expressly determined that the Applicants for Parental Orders must be a couple and NOT a single person.

Miss Isaacs has argued with skill and pertinacity that section 54(1) can legitimately be ‘read down’. With all respect to her submissions, I am unable to agree.
The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling. Surely, it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw both in 1990 and again in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.
Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a “fundamental feature”, a “cardinal” or “essential” principle of the legislation, to adopt the language of, respectively, Lord Nicholls and Lord Rodger. Putting the same point the other way round, to construe section 54(1) as Miss Isaacs would have me read it would not be “compatible with the underlying thrust of the legislation”, nor would it “go with the grain of the legislation.” On the contrary, it would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation.
Miss Isaacs seeks to persuade me to the other view by submitting (a) that the cardinal principle of the 2008 Act was to make the law fit for the twenty-first century by removing discrimination against different types of families and (b) that the fundamental purpose of section 54 was only ever to provide a regulatory scheme for the making of legal orders to safeguard the welfare of children born through surrogacy arrangements rather than to prevent or restrict eligibility to apply for such orders on the basis of any discriminatory criterion, such as single person status. No doubt these were important ingredients in what went to make up the statutory scheme as Parliament devised it in 2008, but they do not, in my judgment, reflect the whole picture or adequately describe all the key features of the statutory scheme.
In my judgment, this application fails in limine. As a single parent, as a sole applicant, the father cannot bring himself within section 54(1) of the 2008 Act.
I should make clear, for the avoidance of doubt or misunderstanding, that nothing I have said is intended to throw any doubt upon the correctness of the decisions, referred to in paragraph 26 above, holding that it is permissible to ‘read down’ sections 54(3) and 54(4) of the 2008 Act. In my judgment, each of those cases was correctly decided.

What is left, therefore, is an application that Parliament when enacting section 54 in this way acted in a way that was incompatible with Human Rights. That still stands to be determined.

There are of course other legal remedies open to a single person who enters into a surrogacy agreement – for one thing, that person having provided genetic material will have Parental Responsibility for the child. (whereas in traditional couple commissioning a surrogate baby one will have PR and one won’t, hence the Parental Order ensuring that both of the couple have PR and legal rights about the child). Old-fashioned Residence (stupid “Child Arrangement Order” ) would do – assuming that an order was needed at all.

The father’s position here is complicated by the arrangement having been made in America, and thus him having no PR in England for this child. It still seems to me that as the child is in England and is habitually resident here, a Child Arrangements Order could be sought, but much brighter people than me have looked at it and said that the only two options are Parental Order or Adoption.

Adoption itself is not straightforward – as the man is the biological father of the child, it would have to come within s51 Adoption and Children Act 2002

(4)An adoption order may not be made on an application under this section by the mother or the father of the person to be adopted unless the court is satisfied that

(a)the other natural parent is dead or cannot be found,

(b)by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37), there is no other parent, or

(c)there is some other reason justifying the child being adopted by the applicant alone,

and, where the court makes an adoption order on such an application, the court must record that it is satisfied as to the fact mentioned in paragraph (a) or (b) or, in the case of paragraph (c), record the reason.

As there is a mother of the child and she’s not dead and is capable of being found, it would have to be ground (c), which is pretty widely drawn. It is somewhat unusual to adopt your own child (it does sometimes happen with step-parent adoptions – where say mum and step-dad adopt the child together)

I don’t know whether a declaration of incompatibility will be run here, and the President just concludes with:-

I end with this caveat. I have been prepared to assume for the purposes of this judgment the correctness of Miss Isaacs’ submissions based on Articles 8, 12 and 14 of the Convention and of the propositions which she seeks to derive from them. There has been no need for me to come to any concluded view on these matters and it is better that I do not, for these are issues which may yet need to be considered and ruled on if, as may be, the father decides to seek a declaration of incompatibility.

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Posted in adoption, case law and tagged can a single person apply for a Parental order, declaration of incompatibility, HFEA 2008, parental order, president of the family division, re z 2015, sir james munby, surrogacy. Bookmark the permalink.

Judge removes child from disabled mother over costs of care

Posted on September 7, 2015 by suesspiciousminds

This is the headline from the Daily Telegraph story. And rightly, we’d be appalled by this. If the reason for the child not being with mother is that it is too expensive to keep them together, that would be dreadful. It would also have been appealed, so immediately one thinks that there must be a bit more too it than that.

The impression from the headline would be that this was about it costing too much to give the mother some practical help with the child’s care, because there are things that she can’t do alone as a result of her disabilities (you might be thinking that she needs special equipment to bath him etc)

http://www.telegraph.co.uk/news/uknews/law-and-order/11842893/Judge-removes-child-from-disabled-mother-over-costs-of-care.html

A five-year-old boy has been removed from his disabled mother’s care as a judge dismissed an allegation of ‘social engineering’ despite ruling it would cost too much to keep them together.

The family court judge ruled that the child must be taken from the care of his disabled mother claiming her disability made it impossible for her to meet her disabled son’s needs by herself, and the level of local authority support she would need would be too extensive.

Here’s the judgment, Re T (a child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B123.html

I don’t think the Telegraph piece is a bad bit of legal reporting. It isn’t a particularly accurate headline (which is a shame, since the headline here IS the story), but I know that journalists get their suggested headline changed to make it more arresting/compelling/clickbait-worthy, so I don’t blame the journalist for this.

The journalist had obviously taken the trouble to read the judgment, since she quotes bits of it. Rather a shame that she doesn’t link to it, because if she had, anyone reading past the second paragraph would see that the triggering incident for the care proceedings was the father of the child sexually abusing the child’s brother. Which casts a different light on things – there’s obviously rather more to it than just the mother needing help and support and said help and support being too expensive.

Readers can look at the judgment for themselves – I don’t think it is beyond reproach – there’s nothing really which conveys to a lay person who doesn’t know all of the background in plain English what this mother could or could not do.

Sadly the Local Authority’s case is that despite her best intentions and obvious love for her son, CB is not able to offer good enough care for T and that his needs, which are heightened on account of his developmental delay, will simply not be met in her care. From the outset the social worker has made plain that CB has not intentionally neglected or harmed T. The Authority acknowledges that T is clean and well presented; it is the more nuanced aspects of parenting that are beyond CB’s capabilities.

They are so nuanced that I don’t feel that they are fully spelled out in an otherwise careful and balanced judgment. The nearest it comes, in my reading is:-

She was able to provide basic care skills and T was always well presented and she was ready to acknowledge the fact that this could be in some way due to the absence of MB and she was able to concentrate on T. She observed warmth from the mother so far as T was concerned but remained concerned that strategies and suggestions were not sustained. Crucially T’s care required someone to “forward think for him” and she did not think that the mother had that capacity saying that the mother does not possess the skills, the knowledge and the understanding to provide anticipatory help. This could not be achieved unless somebody was with her all the time.

and

I record that Dr Tagart’s views at this stage namely:

“[T] requires an emotionally attuned adult to provide his care; this person or persons will need to be able to provide warmth, boundaries and model appropriate behaviour. They will require a high degree of patience because T will require many opportunities in order to acquire skills and concepts.”

[Personally, I would have preferred something much more concrete – I note that the mother in this case had an IQ of 69 and everything that we know about people with that level of functioning suggests that real, concrete examples are better than abstract theoretical concepts, so given that I can read this judgment and have very little idea of what it is said that she can’t do is put into sharp focus that it must have been really hard for these parents to understand what they were doing wrong]

On the issue of whether there was a package of support that could be put in place for the mother to help her meet the child’s needs, the expert opinion was this

Dr Blumenthal was also clear that mother’s level of disability needs a supportive partner who would be present for most of the time and it was likely that given T’s entire developmental trajectory over the next 12 years he would need more than he is getting now.

Whatever the mother’s problems were, the Judge was satisfied that they could only be addressed by another person living with her at all times. Given what I said at the outset about the child’s father, he clearly isn’t an option.

That would mean that this wasn’t really a case about providing support and the support being too expensive, but about the issue in principle of whether once the level of support is “Another person being paid to live with mother and child, and that person to care for the child for the next 10-13 years” that is reasonable or too high.

The Judge looked at all of the powerful caselaw about keeping families together and made his decision

Conclusion and findings
There is unanimity in this case amongst the experts, the social worker, the local authority assessors and the guardian that despite the mother’s very best intentions and unconditional love and commitment to T, mother is not able to offer good enough care for T. I accept that evidence. He has a high level of need as a consequence of his developmental delay which simply cannot be met by the mother who has difficulties herself for all the reasons I hope that I have set out carefully in this judgment.
There is no suggestion that CB has intentionally neglected or harmed T and his basic care is good enough. T is always clean and well presented and CB has done her utmost to meet T’s needs.
One of the major issues in this case has been to the extent to which it would be possible for the local authority in providing support to the mother to care for T could effectively make up for her deficits and for T in that way to be provided with good enough parenting. It has been suggested that to remove T from his mother’s care and provide an optimum level of parenting by adopters or long term foster carers is in effect a feature of social engineering.
I reject that proposition that make the following findings:

1. The level of support that would be required in relation to such an arrangement would be so extensive as to be detrimental to T’s welfare.

2. The mother due to her high level of anxiety has found it difficult in the past to fully engage with the extent of help being offered and although proceedings may have finished would be ever fearful and anxious regarding local authority involvement which in turn would devolve on T.

3. T needs better than good enough parenting and if he does not receive it then the harm identified by Dr Mallya would intensify. The gap between his chronological and developmental age is already widening while in the care of the mother. Continued care by her would cause him continuing and increasing significant harm, albeit entirely unintentional.

4. T’s welfare needs requires him to be removed from his mother’s care and continued care by her in the home environment will be harmful to him and he will not be able to reach his potential as his mother is unable to promote his development consistently. This would have an impact on the opportunities available to him in later life. I find that although there is little doubt that T is the centre of the mother’s firmament she has been unable to consistently implement the advice and strategies that professionals have offered but, to her very great credit, has made some progress since she was T’s sole carer since the autumn of 2014.
The fundamental principle in cases of this sort is that there is a duty imposed on the court to make such order that accords with the paramountcy of T’s welfare. There is, in my judgment, nothing in our existing case law that undermines this fundamental principle and the words “nothing else will do” does not and should not exclude the overriding welfare consideration in relation to any particular child’s case. The issue in this case has been the capacity of T’s parents, and most particularly CB, to satisfy his overwhelming welfare needs for the duration of his childhood and indeed, his life given the nature of his disability.
My task is to establish that there is proper evidence from the local authority, the experts and the children’s guardian which addresses all the realistically possible options for this child. I have to scrutinise any analysis of those options. I am satisfied that proper evidence is before the court in order to enable me to do so and that includes the evidence of course from the parents themselves.
Having reviewed all the evidence I am satisfied that I have all that is necessary to set out in this judgment the rigorous analysis and comparison of the realistic options for T’s future that our law requires.
I record the mother’s absolute sincerity in wishing to care for T but unfortunately this conflicts directly with his welfare interests and this is directly connected to her own level of functioning. The risks to T in terms of his future welfare of remaining in his mother’s care are just too great and not manageable in terms of additional local authority support for the reasons that I have articulated.
I have little doubt, and I say so with great sadness, that the judgment that I gave at the end of April has disqualified any prospect of MB and CB caring for T together. CB has told me how sad it is that they are not all together and I have enormous sympathy for that sadness.

I think that there are valid criticisms of this case (and this is not a particularly awful example, it is representative of a larger problem), that the process in family justice can lead to language being used in an opaque way with jargon and theoretical concepts rather than hard, clear, obvious and compelling plain English that says “the mum can do this, but she can’t do THAT”

This story from Community Care illustrates the point

Social worker criticised by judge for using jargon in court report

The judge quoted paragraphs of the assessment where, he said, the language obscured the meaning:

“I do not intend to address the couple’s relationship suffice it to say it is imbued with ambivalence : both having many commonalities emanating from their histories that create what could be a long lasting connection or alternative relationship that are a reflection of this. Such is this connection they may collude to undermine the placement.”

“Due to [the grandmother’s] apparent difficulties identifying the concerns , I asked her to convey a narrative about her observations in respect of [the mother and father’s] relationship.”

Quoting the second paragraph, the judge asked: “What would be wrong in saying ‘I asked her to tell me’?”

He also questioned multiple uses of the word “interplay”, for example: “[the grandmother] clearly believes that paternity issues had a significant interplay on [the father’s] ability to say no to the mother.” He said the word ‘impact’ or ‘effect’ would be more understandable

Hell yeah to that.

In this case, this use of language in a way that is opaque on the key issue of what mother could do and what she could not do that led to a conclusion that she needed another adult present at all times is additionally worrying, because these proceedings had actually concluded a year earlier with the child staying with mum under a Supervision Order. The Local Authority brought the case back, saying that mum had not been able to do as well as they had hoped.

So one would imagine that this could be spelled out with some very clear examples.

[To be fair, it may be that this is all set out in the threshold document, which sadly just gets dealt with like this :-

I have looked at the local authority final threshold document. It is evident of course from the findings that I made in the judgment of 29^th April that threshold is crossed for the purposes of s.31 of the Children Act. I have carefully balanced the accounts of the parents with conflicting accounts of the local authority and the experts and having done so find that numbers 1 to 4 and 7 to 10 of the local authority’s final threshold document are proved to the requisite standard.

That’s fine for those who were present and have it in front of them, but the absence of specific findings about mother’s care since the Supervision Order was made leaves this judgment a bit lacking in that one regard, that a reader can’t easily work out what this mother is said to have done wrong. And without that, it is hard to decide whether you think it is a fair conclusion or not that she would need someone else living with her in order to care for the child.

As I said at the start, I don’t think that it is a bad piece by the Telegraph – the headline leads you to think that this was a question of money and penny-pinching and that’s not a fair reflection of the case. There is a legitimate grumble about this case that one simply can’t read it and work out what mother could not do, the language there is flowery and conceptual rather than practical.

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Posted in case law and tagged daily telegraph, parent with disabilities, re t a child 2015, social engineering, threshold. Bookmark the permalink.

Court’s power to get an expert report for free

Posted on August 28, 2015 by suesspiciousminds

Don’t get too excited, this power only works in Court of Protection cases. But it is still pretty cool. [Unless you work for an NHS Trust, in which case this power is soul-crushingly awful.]

Re RS 2015

http://www.bailii.org/ew/cases/EWCOP/2015/56.html

In this case, there was an application for authorisation of a deprivation of liberty. The Court directed (on 28th May) that the NHS Trust should prepare a report on capacity. Days went by, with no report, then weeks, then two months.

And then this:-

On 31^st July by direct email, the court received a letter on behalf of Lincolnshire Partnership NHS Foundation Trust which, notwithstanding the order of 28^th May and the assurance given via LCC to the court on 29^th July advised that it was impossible to comply with the order and further that it was inappropriate for the evidence sought to be obtained by way of an order pursuant to Section 49 of the Mental Capacity Act 2005.
In light of this letter, which I treated, albeit exceedingly late, as an application as provided for in the order of 28^th May to set aside or vary the original order.

The Trust set out their arguments as to why it was not right that they should prepare a report – in part because taking a doctor away from patients to write a report on someone they barely knew was not terribly in keeping with their job of looking after patients, especially where there was no fee for the report to offset the costs of doing it.

The Trust advanced ten reasons to support their view that it was inappropriate for the required evidence to be obtained by way of Section 49. They were:-

(1) The Trust has no clinical involvement or knowledge of P (other than the information contained in the applicant’s enclosed letter). P is not a patient under the Mental Health Services of the Trust.(2) There appears to be a clear dispute on capacity the outcome of which may have a significant impact on P’s future care and welfare. Such a dispute should properly be resolved by way of a jointly instructed independent court expert. It is not appropriate to seek quasi expert evidence through Section 49.

(3) A Section 49 Report is not a joint instruction and therefore can potentially leave open a dispute in the event that the evidence is not accepted by all parties. We understand that the first Respondent was not in agreement that Section 49 is appropriate.

(4) The Trust’s consultants are not court experts: they do not have the expertise in preparation of Medico Legal reports and should not be expected to do so, particularly where it is not in connection with a patient under their care.

(5) We understand a report in the proceedings has been prepared on a private instruction by Dr Gonzalez (of the Trust). There is a potential conflict of interests in seeking a further report from a consultant of the Trust.

(6) The request was a publicly funded body into proceedings of which it has no involvement.

(7) Complying with the request places a significant and disproportionate burden on limited NHS resources.

(8) A consultant would need to cancel clinics to make time to prepare the report; putting vulnerable patients at risk.

(9) There is no provision for costs of the report in order to enable the Trust to employ locum cover for the report author. The Trust is already under significant pressure to reduce its locum cover.

(10) Even where locum cover can be sourced this can be detrimental to patients if they are not able to see their usual consultant with whom they have built a trusting professional relationship. Consistency of care is an important factor in mental health care and should be maintained wherever possible.

The Trust position was therefore that capacity evidence should be facilitated through the instruction of an independent jointly instructed expert and not through Section 49.

Can’t this be resolved just by paying a fee?

No, the Code of Practice specifically says that there IS no fee payable for a report ordered under s49.

There are a number of notes to Section 49 contained within the Court of Protection Practice 2015. Specifically one of the notes states
Fees – there is no provision for fees to be charged for any report requested by the court.

Reference is also made in the notes to the Court of Protection Rules and in particular Rules 117 and 118 and Practice Direction E (PD14E).
I do not propose to set out Rule 117 in full but will refer to:

(1) this Rule applies where the court requires a report to be made to it under Section 49 of the Act;(2) it is the duty of the person who is required to make the report to help the court on the matters within his expertise.

What did the Judge have to say about the Trusts’s arguments?

In relation to the specific submissions on behalf of the Trust then I will deal with these briefly:

(1) While I note the argument there is no such distinction drawn within the powers given in Section 49 and the accompanying Rules or Practice Direction. In my view it would be wrong for the court to undertake such distinction either in the preparation of its orders generally or in this order in particular.(2) The dispute as to capacity has arisen following a report from a consultant psychiatrist dealing with matters pertaining to a lasting power of attorney. There is an existing assessment by a consultant psychiatrist Dr Loosmore and a very experienced social worker. A question has therefore arisen in relation to RS as to the extent or otherwise of her capacity. It is a matter well suited for determination by Section 49 which is a proportionate response as opposed to an instruction to an independent expert. Such direction would have additional funding and cost consequences particularly in the instant case where three of the parties are either publicly funded or public bodies and the fourth is privately paying albeit acting in person. Furthermore a Section 49 Report would [or should at any rate] incur significantly less delay.

(3) A Section 49 Report is a direction of the court. If a letter of instruction cannot be agreed the court will deal with any such dispute. It was the court’s direction and not that of any specific party.

(4) The Rules and in particular the Practice Direction are clear as to the contents and format of a report. If that format is followed specific medico legal experience is not required. However, given the significant growth in the volume of work undertaken by the Court of Protection and in particular Section 21A or related challenges, it is no doubt a level of expertise that all consultant psychiatrists particularly dealing with the elderly will acquire if they have not already done so.

(5) The court can see no potential conflict of interest in another consultant of the Trust preparing a report. Again the duty of the author of the report is fully set out in the Rules and Practice Direction.

(6) The provisions of Section 49 are clear. There is a wide range in power to direct a report from an NHS body as the court considers appropriate. It is common for Section 49 Reports to be directed in this way.

(7) The court has sympathy with the effect of its order upon the Trust. However as is noted earlier no provision is made within Section 49 in relation to fees or expenses incurred by the author of the report (be it NHS body, Trust or otherwise). What the court will do is to carefully consider resources and listen to any argument from the Trust particularly in relation to the time for compliance and the scope of the work to be undertaken. That would appear to be both a reasonable and proportionate approach.

(8) While this is noted the answer to 7 would seem to cover this.

(9) I have already dealt with this in 7 above.

(10) As stated above every effort will be made to accommodate the preparation and extent of the report so as to limit wherever possible the disruption in healthcare provided by a consultant to his patients.
It follows, for the reasons given above I am not prepared to vary or alter the principle behind the original order of 28^th May. However it must be right that compliance with any order is subject to reasonable adjustment on application by the Trust in relation to the scope and extent of any report ordered and the time for compliance. However such applications must be made promptly and supported by evidence on behalf of the Trust or NHS body.
Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere. In line with the President’s guidance I propose to publish a suitably anonymised version of this judgment on Bailii.

In short, you might, as the Trust, be able to plead extenuating circumstances and time pressures and get longer to DO the report, but you have to ask the Court and do so in good time, but you aren’t going to get out of doing it.

If you are an NHS accountant /manager/ worker / taxpayer who feels miserable about this, read this fun case where a Husband in divorce proceedings who is claiming that he has no assets at all (due to them all being put into a in a Trust which has subsequently kicked him out and taken them all) also struggles to explain to a Court why he has at the same time entered into an agreement to buy a private jet plane and put a deposit down yet is completely unworried about his ability to pay for the rest of it given that he has no assets, no income and no job. His courageous answer is, in effect “I’m such a great businessman, I can make it work”

While on the topic of aircraft, I should mention that H shows as an illiquid asset US$250,000 which he has paid as a deposit against the much delayed delivery of a Honda Jet. The balance of the purchase price is US$4m. H expressed no anxiety in his current parlous circumstances (another global economic meltdown apart) in coping with this liability when it falls due. In evidence he said that the latest estimated delivery date was probably the first or second quarter of 2016, and that he had “set up a multi-billion dollar empire with very little capital. It is a question of leverage and investing partners.” Asked whether he regarded operating a single jet as a viable source of income and livelihood he was optimistic describing it as “a big growth area of business especially if you have the latest jet technology.”

I don’t know about my readers, but if I had no money in the bank, no income and no job, and for some reason, I had to pay $3.75million for a jet plane in the next year, I’d probably be on the phone to the plane company explaining how, “yeah, it turns out maybe I don’t need the plane so much after all, can I take a rain-check on that? Also, could I get my deposit back?”

Note that he also has / or rather had because the Trust, which is not run at all by one of his former friends as a complete device to escape his wife’s financial claims oh no, a fleet of luxury cars including cough “A Ferrari that cost $8.5 million”

“Their position is an elaborate charade, the stage management of which has been conducted ruthlessly and without regard to cost”

and

“There is a clear distinction between the question whether a trust can be characterised as sham (which was, as rightly stated, not asserted at the hearing), and the conclusion which I reached that the case collusively advanced by H and TB was a rotten edifice founded on concealment and misrepresentation and therefore a sham, a charade, bogus, spurious and contrived. I do not shrink from applying to it the description fraud, a deliberate design to deceive, inflicted on W and on the court, and found by the court so to be”

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2507.html

3 Comments

Posted in case law, court of protection and tagged charging for capacity assessment, expert report on capacity, mental capacity act, re rs 2015, section 49 mental capacity act. Bookmark the permalink.

Care proceedings can be retrospectively validated

Posted on August 27, 2015 by suesspiciousminds

Readers might remember the recent case where the President looked at a set of care proceedings where it had not been known at the time that the mother lacked capacity, and the outcome was that the orders were effectively overturned and the proceedings re-wound to the beginning.

[Actually, if you remember it, it is because of the bad pun in the title….

https://suesspiciousminds.com/2015/08/07/re-e-wind-when-the-crowd-say-bo-selecta/ ]

Here, the Court of Appeal were faced with a very similar issue – the mother in care proceedings conducted them as though she had capacity and her lawyers fought hard on her behalf, but it turns out that perhaps she didn’t have capacity – at the very least there were two conflicting reports and the Court had not expressly resolved the issue. She then appealed on that basis, arguing that the Care Order and Placement Order should be overturned and the case re-heard.

In this one, though, the Court of Appeal ruled that even though the original proceedings had been flawed, it would not have made any difference to the eventual outcome if she had been represented through the Official Solicitor rather than instructing her solicitor directly, and so the Court of Appeal could retrospectively validate the proceedings and orders.

Hmmm.

Not sure that I agree. (I agree that the Court of Appeal’s analysis that they HAVE the power is right. Whether it was right to use it, I’m not so sure of. Of the two approaches, I think the one before the President is more in keeping with article 6 and a right to a fair trial. I think that instructing a solicitor involves rather more than just saying “I want to fight” and that the protections for vulnerable persons or Protected Parties are fundamental, and where they’ve been lost even due to honest mistake, that’s a fatal flaw in the process, not something that can be patched up after the event)

Re D (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed146431

There were two issues :-

Had the original Court process been flawed because it had proceeded on the basis that mother had capacity when she in fact didn’t?
If so, did those flaws amount to an irresistable basis for an appeal, or can the Court retrospectively validate the orders if that seems the right outcome?

The mother had been represented through the Official Solicitor in previous care proceedings, so the starting point in these ones was that an updating report on her capacity was sought. However, no doubt to avoid delay and ensure that there wasn’t drift past the 26 week timetable, the expert saw the mother within the first six weeks of giving birth. This is important, as it is no doubt happening in other cases.

The cognitive assessment therefore came with a significant health warning, although it did say that she lacked capacity

“The immediate post natal period (under six weeks) tends to be a somewhat volatile period in terms of health and mood. Cognitive tests undertaken during this period are likely to reflect mood variations and difficulties with concentration due to hormonal changes…. In this assessment, therefore I have drawn on the results of SD’s August 2012 assessment together with a brief corroborative assessment conducted on 4 .11.13”

That report from Dr Morgan also gave a further health warning, that when one repeats the tests in a short period of time, the results can be skewed.

Those representing the mother sought a further expert opinion, from a Dr Flatman. The Court of Appeal were criticial that the Part 25 procedures on expert assessments were not followed and as a result, mistakes were made.

In any event, Dr Flatman examined the mother and concluded that she DID have capacity to conduct litigation.

Here’s the error

At the hearing before the District Judge on 20 January 2014 the District Judge was simply told that:

“there has been a cognitive assessment further filed to say that she does have capacity to give instructions to her legal representatives”.

Dr Morgan’s conflicting report was not brought to the attention of the judge, neither was the fact that Mr Flatman had failed to apply the proper test for assessing capacity. As a consequence no consideration was given as to how to resolve the conflict, whether by additional questions, an experts meeting or by hearing short oral evidence to resolve the issue. Ms Weaver was simply discharged as litigation friend.

41. When the mother came before the judge for the final hearing Ms Weaver attended as the mother’s IMCA and the case proceeded without further consideration as to the mother’s capacity.

There were two competing reports and the Court needed to resolve which opinion was correct (bearing in mind the starting point of the Mental Capacity Act is to presume capacity unless there is evidence to the contrary)

44. All those who are regularly involved in care proceedings are aware that such a situation is all too common and it is plain to see why issues of capacity are critical to those affected. The starting point for the court is not only that a party has capacity, but that every effort must be made to help a party without capacity to regain it. Only in this way which accords with the statutory principles found in MCA 2005, can a parent feels that his or her case has been presented in accordance with his or her wishes, no matter how unrealistic or unachievable those wishes may be when considered against the yardstick of the welfare of her child in question. On the other hand the MCA 2005 is designed to ensure that those vulnerable adults, who have not got the capacity to conduct litigation on their own behalf, are properly identified and provided with appropriate support and a litigation friend in order to ensure that they not prejudiced within the proceedings as a consequence of their disability.

45. Process is not all and should never, particularly when one is concerned with a child’s future, be slavishly adhered to at the expense of achieving the right welfare outcome for a child without delay. Having said that, I am satisfied that the informal course which was adopted in the present case went far beyond a pragmatic and practical approach to case management and amounted to serious procedural irregularity.

The answer to that first question then was, yes, the original process had been flawed.

The analysis of whether the Court has the power to retrospectively validate the flawed process is set out very carefully from paragraphs 46-58, and if you are interested in the nuts and bolts of that, then it is all set out.

In a nutshell, it is this

47. FPR 2010 r.15.3 qualifies the general rule that a protected party may only conduct proceedings by a litigation friend. In particular FPR 2010, r.15.3(3) provides:

“(3) Any step taken before a protected friend has a litigation friend has no effect unless the court orders otherwise.”

So if the Court orders otherwise, then the Court can proceed even though a person ought to have been treated as a protected party and could only conduct proceedings through a litigation friend. [Of course, as the Court at first instance DIDN’T do that, since they wrongly decided that she DID have capacity and neglected to take into account that there were conflicting reports, the Court at the time DIDN’T “order otherwise” under r 15.3]

However

Bailey v Warren [2006] EWCA Civ 51. Hallett LJ said:

“[95] Within CPR r.21.3 (4) there are no restrictions whatsoever on the court’s discretion to validate steps taken in proceedings before a litigation friend is appointed. A court can regularise the position retrospectively provided, as Kennedy L.J. observed in [31] of Masterman-Lister “everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the time”. He could not envisage any court refusing to regularise the position because “to do otherwise would be unjust and contrary to the over-riding objective ….

[96] It is for the judge to consider all the facts of the case before him, therefore, and where as here, there is no suggestion of bad faith, decide whether or not the compromise is manifestly disadvantageous to the patient”

And that was the line that the Court of Appeal took.

55. In the present case it is recognised that the outcome of the case would have been the same regardless of whether the mother had litigation capacity. There was therefore no forensic disadvantage to the mother. Further, thanks to the dedication of Mrs Weaver, there was in reality no difference in the nature and quality of the representation the mother received. Mrs Weaver’s title within the proceedings changed from IMCA to Litigation friend and back to IMCA depending on the current court order, but the manner in which she carried out her role remained the same. It is apparent from the attendance notes that Mrs Weaver, in whatever guise, was not about to agree to the orders sought by the local authority being made; she felt strongly that the mother’s best interests could only be served by the applications for care and placement orders being opposed, I am entirely satisfied that not only would the outcome of the trial have been the same had the mother been found to lack capacity, but that the case would have been conducted in exactly the same way on her behalf.

56. There is no question but that all involved have acted with good faith. In dissecting the progress of this case, as has been necessary in order to consider the important issues before the court, I do not lose sight of day to day life in busy family courts with Counsel and Judges over stretched in every direction. This case does however perhaps provide a cautionary tale and a reminder that issues of capacity are of fundamental importance. The rules providing for the identification of a person, who lacks capacity, reflect society’s proper understanding of the impact on both parent and child of the making of an order which will separate them permanently. It is therefore essential that the evidence which informs the issue of capacity complies with the test found in the MCA 2005 and that any conflict of evidence is brought to the attention of the court and resolved prior to the case progressing further. It is in order to avoid this course causing delay that the PLO anticipates issues of capacity being raised and dealt with in the early stages of the proceedings.

57. SSD is now 20 months old and has been in her adoptive placement for over half her life. Her future needs urgently to be secured. I am satisfied that notwithstanding the procedural failings which led to this court being unable to conclude with any certainty whether the mother was or was not a protected party at the time of the trial, she was not in the end adversely affected and no practical difference was made to the hearing or outcome as a consequence. In those circumstances it is open to this court to validate the proceedings retrospectively and in my judgment that should and will be done.

3 Comments

Posted in case law and tagged capacity, capacity assessment, conflict between experts, Court of Appeal, mental capacity act, official solicitor, part 25, re d 2015, retrospective validation. Bookmark the permalink.

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Category Archives: case law

Re DAD (application for committal, flawed process)

Bad week for Gloucestershire continues to get worse

And I’m all outta bubblegum

Parents consenting to adoption within care proceedings

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Court’s power to get an expert report for free

Care proceedings can be retrospectively validated

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