Category Archives: case law

Not being allowed to see an expert report

Posted on July 15, 2015 by suesspiciousminds

 

I’ve read this case half-a-dozen times now, and I still don’t entirely get it.

 

NCC v AH and DH 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4845.html

 

Dramatis personae

 

NCC is the Local Authority.   (It isn’t a very cryptic disguise of whom they might be)

AH is a woman, who has some mental health problems and for a time was considered to lack capacity and be a person at risk from :-

 

DH her husband.

 

The application

(a) an application by DH for disclosure to him of any reports and/or letters by Dr. McInerney and the report of Dr. Khouja dated 29th July 2011;

(b) an application by AH for disclosure to her of the said reports and of her Social Services records (it being acknowledged by all parties that she would share them with DH); and

(c) applications by AH and DH for their costs, or a proportion thereof, incurred in both sets of proceedings to be paid by the local authority.

These applications arise from a set of proceedings under the Inherent Jurisdiction and a set of proceedings under the Mental Capacity Act in the Court of Protection.  Both seem to have arisen because AH made allegations about her husband’s behaviour towards her which were believed (but which appear to have been more a result of her mental health problems).   NCC considered that AH was a woman that they owed duties towards, as a result of Re Z (Local Authority: Duty) [2005] 1FLR 740, especially at para.19.

 

In my judgment in a case such as this the local authority incurred the following duties:

i) To investigate the position of a vulnerable adult to consider what was her true position and intention;ii) To consider whether she was legally competent to make and carry out her decision and intention;

iii) To consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

iv) To consider whether she was legally competent to make and carry out her decision andintention;

v) To consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

vi) In the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

vii) In the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

viii) Where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

ix) In very exceptional circumstances, to invoke the jurisdiction of the court under Section 222 of the 1972 Act

 

 

A psychiatric report was directed in those proceedings, from a Dr McInerney. It appears that within the proceedings, the Official Solicitor (on behalf of AH) and Local Authority, took the view that the Court should take the unusual step of not disclosing that report to DH, on the basis that there were things AH had said about his behaviour which might put her at risk if DH were to see it.  [That’s quite unusual, we’ll come back to it later]

The Official Solicitor and LA also told the Court that they did not rely on Dr McInerney’s report and wanted a second opinion, from a Dr Khouja.  DH  of course, had not seen it, so it was rather hard for him to say whether he did seek to rely on it, or whether a second opinion was necessary.  (One can make an informed guess that if it said things that the LA and OS agreed with, they wouldn’t have been asking for a second opinion, so DH would probably have agreed with what was said)

[It is also worth noting that DH had to pay a share of the costs of Dr McInerney’s report, although he never got to see it or know what it said. He didn’t have to pay a share of the costs of Dr Khouja’s report]

Dr Khouja was directed to file two reports, one on capacity (which DH DID get to see) and one”considering the recent Social Services assessment of AH, and he may also include in that supplementary report, any matter or opinion which he would wish to report upon, but he is of the view should be withheld from DH pending judicial determination of any disclosure issues.”  which DH didn’t get to see.

Dr. Khouja concluded that AH did not lack capacity in respect of any of the matters which he had been instructed to assess. This led to Bodey J’s order of 11th November 2011. By consent, NCC were given permission to withdraw both sets of proceedings. The Official Solicitor was discharged as litigation friend to AH although he remained as an interested party for the purposes of the disclosure application.

 

So, the proceedings were withdrawn, because AH had capacity to make her own decisions about whether she wanted to be with DH or not, and it wasn’t the role of the State to intervene on her behalf.

DH, having gone through all of this and having had to pay for all of his own legal costs, was understandably unhappy, and wanted to make a series of complaints about what had happened.  In order to inform his complaints and no doubt to bolster them, he wanted to see both of the expert reports that had been withheld from him. And he was also asking that some of his costs be paid.

 

Law on non-disclosure

 

The law is that generally, a document filed at Court should be seen by all parties, and the burden is on the party seeking non-disclosure to establish why that general rule should not be followed.

The substantive law is set out in the House of Lords case of Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 [1995] 2 FLR 687. The test is:

“(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party…

(2) … the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

(4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

(5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

[Although Re D here deals with a child, the principles are much the same. The argument was that disclosing to DH an expert report in which AH was presumably making allegations to the expert about abuse might put her at risk.  The counter argument to that is that as a consequence of these proceedings, DH might have to live apart from his wife as a result of such allegations but they were being made in a way that concealed from him what they were.  ]

Moylan J’s judgment does not really deal with this, although to be fair, the decision to not disclose the documents at that earlier stage had already been taken and presumably there is a judgment weighing up those factors at that time.  Instead, he looks at the duty of disclosure being that the documents are disclosed in order to allow a person to participate effectively in the hearing  –  in order to have a fair trial.

  1. Turning now to the legal framework, the expert evidence in this case was obtained for the purposes of these proceedings and pursuant to court orders. The court has power to provide to whom such evidence is to be disclosed and to whom it is not to be disclosed, including a party to the proceedings: see, for example, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.
  2. The experts overriding duty is to the court. Both proceedings in this case were heard in private. The reports are, therefore, confidential to the court, as described by Sir Nicholas Wall, President, in A County Council v. SB, MA & AA [2011] 1FLR 651. At para.34, he said:

    “In my judgment, ‘confidentiality’ in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court’s permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court”.

  3. As a result of being confidential to the court, and to the proceedings, a report cannot be used by any party for any collateral purpose or purpose unconnected with the proceedings without permission from the court. There are a significant number of cases which address the factors which the court will take into account when deciding whether to give such permission.
    1. Turning now to disclosure, the general rule is that a party is entitled to the disclosure of all evidence which any party proposes to adduce to the court. As Lord Dyson said in Al Rawi & Ors. v. The Security Service & Ors. (Justice & Ors. Intervening) [2012] 1 AC 531, at para.12:
      1. “Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance”.
    6. It can be seen from this passage that disclosure is made for the purposes of the proceedings and to ensure that any trial is fair.

 

But of course we know that during the proceedings, those documents were kept from DH. There were allegations being made about him that he was kept in the dark about.  When it emerged that AH had capacity, and wanted to remain in a relationship with DH, the proceedings were withdrawn.

Should he now be entitled to see those reports?   (after all, they are about AH, and she has capacity to say whether she wants him to have them – and she does)

  1. Given the determination of the substantive proceedings, I can identify no grounds on which disclosure of the reports should be ordered. They were prepared for the purposes of the proceedings. They were not disclosed to DH and AH pursuant to orders made during the course of those proceedings. There is no freestanding entitlement to disclosure once proceedings have concluded. Disclosure is part of the process by which the court ensures that a fair trial is effected. It is self-evident that, following the determination of proceedings, disclosure of evidence is no longer required for the purposes of the proceedings or in order to effect a fair trial.
  2. It is self-evident in this case that disclosure can no longer be sought for the purposes referred to in DH’s Solicitor’s letter of 18th March 2010, namely to enable the evidence to be tested within the proceedings. Rather, disclosure is sought by DH and AH for collateral purposes, namely to challenge, what they refer to as, the “toxic” comments in the reports. This, they contend, is necessary to enable them to clear their names. They also want to report Dr. McInerney to the GMC, and possibly to take libel proceedings.
  3. None of these appear to me to provide, in the circumstances of this case, any ground for ordering disclosure. I cannot envisage any court giving permission to DH and/or AH to use the reports for the purposes of any such step. Now that the proceedings are at an end, there is no justification in seeking to challenge the contents of reports prepared for, and only for, the proceedings. I can, therefore, see no basis on which DH and/or AH could now successfully seek to challenge the orders made during the course of the proceedings.

 

That seems to me to be a rather curious way of looking at things. It ought not to matter what DH wants to do with the documents, and whether you think he ought not to do it. This was a report about AH, and we now know that she has capacity to decide for herself whether she wants it to remain confidential or whether she wants her husband to see it, and she does.  I can see that the Court approach is to draw a line under the proceedings and for everyone to move on and forget the whole thing, but once AH has capacity, she is no longer a vulnerable person who needs the protection of the Court. The decision not to disclose the reports at the time were taken in the context that it was believed that she lacked capacity and needed that protection.

The next bit is even more suprising.

Finally, given the clear risk of satellite litigation, I propose to order that neither the Official Solicitor nor the solicitors instructed by the Official Solicitor should disclose the non-disclosed documents or the Social Services records, insofar as they have them, to AH. If this were to happen, it would undermine the effect of my judgment and proposed order.

 

Well, it makes sense. The Court order could easily be circumvented by a subject access request under the Data Protection Act 1998, for disclosure of the records that are held about AH and DH.  This is, however, the Court making an order that a Local Authority need not comply with their statutory obligations under primary legislation if a request were made.  Not only that, it is an order about primary legislation where the first port of call in a dispute or challenge is not actually the Court but to the Information Commissioner.  Does the Court even have jurisdiction to do this?

 

[Well, of course the answer to that is going to be that the original application was under the inherent jurisdiction, and we can all chant the answer “the powers are theoretically limitless”]

 

I can’t actually establish under the DPA what section you would use to refuse a section 7 request.  It doesn’t fit any of the non-disclosure provisions in Schedule 7 of the Act.

 

My best argument would be that in making that order, the Court has effectively determined (though without giving a judgment as to why) that this is satisfied

The Data Protection (Subject Access Modification) (Social Work) Order

2000:

this provides that personal data held for the purposes of social work

are exempt from the subject access provisions, where the disclosure to the

data subject would be likely to prejudice the carrying out of social work, by

causing serious harm to the physical or mental health, or condition, of the

data subject, or another person.

 

For law geeks, there’s a really obvious way of getting the reports, but obviously it would be wrong of me to spell it out here.

 

You won’t be surprised, having read the rest of this, that Moylan J didn’t allow the application by DH for costs.

 

  1. Turning next to the issue of costs, I am satisfied on the evidence that AH was given no assurance that her costs prior to the appointment of the Official Solicitor would be paid. I accept the evidence of Ms. Hardman and Mrs. Ord to that effect, which is supported by the records produced from AH’s own solicitors. Additionally, AH herself says that she was not in a fit state at the relevant time and was not taking things in.
  2. Secondly, in respect of proceedings in the Court of Protection, I can identify no justification for departing from the general rule that there should be no order as to costs. There is nothing in NCC’s conduct which would justify my departing from that rule. The proceedings have concluded without any determination. I am satisfied that NCC have acted properly throughout, in accordance with their obligations. There is no point at which they should have decided, as submitted by DH and AH, to discontinue the proceedings earlier than they did, namely following the receipt of Dr. Khouja’s report.
  3. I am also not persuaded that I should make any separate order in respect of Dr. Khouja’s costs. These were part of the costs of the proceedings to which the general rule applies.
  4. Thirdly, in respect of the costs of the proceedings under the inherent jurisdiction, I am also persuaded that NCC acted properly throughout in bringing the proceedings, in that, in so doing, they were acting in accordance with their obligations in respect of vulnerable adults. As the letter from DH’s solicitor dated 18th March 2010 makes clear, it was accepted that AH had said things to social workers which would lead professionals to have concerns. The letter specifically states that:

    “Our client accepts that the premise of the proceedings is that the local authority believes that his wife’s descriptions of how he has treated her may be true”.

    I can identify no point at which NCC should have decided to discontinue those proceedings earlier than when they did.

 

Thus DH had to pay for legal representation, in order for NCC to go to Court and argue that his wife lacked capacity and needed protecting from him, even though it turned out in the end that she didn’t, and had to pay for a share of an expert report (which probably would have helped his case if he’d seen it) which he wasn’t allowed to see and will never see. The whole of this case was based on allegations which he hasn’t seen and none of which were proved.

 

This one is probably far too legally complex for our friend over at the Telegraph, but it certainly is one that might warrant the “Kafka-esque” label that he routinely affixes to cases.

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Deprivation mmmmeltdown

Posted on July 13, 2015 by suesspiciousminds

 

The case of MOD & Others (Deprivation of Liberty) 2015   http://www.bailii.org/ew/cases/EWCOP/2015/47.html   involved nine unrelated cases where Local Authorities were seeking test cases under the President’s new scheme for ‘fast-tracking’ Deprivation of Liberty authorisations.

 

You may recall that the Court of Appeal dealt with the President’s scheme as it was laid out in Re X  (saying that he did not have the power to do this in a judgment, but as it wasn’t really a judgment they had no jurisdiction to overturn it on appeal, but that in any event, a scheme which didn’t include a voice for P  – the person being detained, would almost certainly be wrong)   http://www.bailii.org/ew/cases/EWCA/Civ/2015/599.html

 

There’s a Practice Direction for the fast track process now, which will need some slight tweaking in light of Re X.

 

Anyway, this is the first reported authority on how these ‘fast track’ cases will work in practice.  The answer, in short would be  “not well” and “not fast”

 

The problem here is that the current scheme for P to be represented is through the Official Solicitor.   The Official Solictor told the Court that in the month after the Court of Appeal decided Re X  (which was effectively the green light to start bringing the DoLs cases) requests doubled.

 

District Judge Marin said this:-

I understand that at present, about 100 applications have been issued since the Court of Appeal’s decision three weeks ago with more arriving each week. At the hearing, one local authority told me that they alone have “hundreds” that are to be issued imminently.

 

[If anything, that’s something of an understatement. The ballpark figure nationally is that up to 100,000 such cases might be issued in a year, as a result of the wider definition for restriction of liberty settled on by the Supreme Court in Cheshire West]

 

20….the Official Solicitor wrote a letter which is not only referable to the cases before me but also to all other similar cases where he has been invited to act.

  1. The Official Solicitor said this:

    “..I am not currently in a position to accept the invitations to act as litigation friend in the ‘referrals’ in these cases.

    I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process for this class of case, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to fund them, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.

    Even before the dramatic increase for the month of June 2015 …. and these 43 actual and impending invitations to me to act as litigation friend in this class of case, in resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.”

  2. He went on to elaborate:

    “There has been an increase in the number of invitations to me to act as litigation friend (‘referrals’) for P in Court of Protection welfare applications, including applications for orders the giving effect to which deprives P of their liberty.

    For the three calendar years 2011, 2012 and 2013 the number of new referrals a month averaged 28 cases. In 2014 this increased to an average monthly referral rate of 50 cases. In the five months to the end of May 2015, the monthly referral rate was in excess of 53 cases. In resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.

    There has been a dramatic increase for the month of June 2015 with 99 new referrals to the end of the month. But that number for June does not include the 43 new invitations to act to which I am responding. As at the end of May I had 137 referrals in my CoP Healthcare and Welfare team, in the ‘pre-acceptance’ stage (which clearly did not include these former streamlined procedure cases).

    From time to time, I have taken those steps I have been able to take, having regard to budgetary constraints and balancing the needs of all my teams, to increase staff available to the work of the healthcare and welfare team as its caseloads have risen.

    But, as has been frequently noted publicly, I do not have the staff resources to manage the expected significant additional increase in caseload arising from the decision of the Supreme Court in Cheshire West.”

      1. Despite reference in the letter to a light touch scheme to allow cases to be processed quickly, the Official Solicitor nonetheless commented that:
        1. “But the simple facts are that:
  • I am not currently in a position to accept the invitations to act as litigation friend in the referrals in these cases; and,
  • I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to which have I referred above, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.”
  1. As if to emphasise the seriousness of the matter, the Official Solicitor copied his letter to the President and Vice President of the court, the local authority applicants in the cases and the Ministry of Justice as his “sponsoring department”.

 

 

The Supreme Court have made a ruling that means there will be thousands more of this case, probably tens of thousands. The Court of Appeal has said that P must have a voice. The organisation who are responsible for P having a voice say that they are already operating at a referral rate four times that which they can actually take (and the deluge hasn’t even begun yet – it is something like 100 a month at the moment, and when these cases really get going, it will be more like five to eight THOUSAND a month)

 

As the wise Lucy Series has said, this is now an engineering problem, rather than a logical one. The system as it is, clearly is not going to cope with what is coming at it.   And once we solve the representation of P problem, we will then have the Best Interests Assessor problem, then the social work problem, then the lawyers for relatives problem, then the Judges problem, then the Court time problem.

You can’t go from a system which just about functions at 25 cases a month and turn it into one that can handle 5,000-8,000 cases a month.  Everyone in family law can tell the Court of Protection just how hard it was to cope with the post Baby P deluge, and that was at worst a doubling of demand. Here demand is going up TWO HUNDRED to THREE HUNDRED times.

 

We shall see what happens when these test cases come before Charles J, the vice president of the Court of Protection, but there really are no easy solutions here.  The Law Commission has recognised the need for a complete overhaul of the law on DoLS, but that’s years off.

 

  1. So far as the remaining eight cases are concerned though, I decided to transfer them to the Vice President of the Court of Protection to decide issues at a hearing which I listed as follows:

    1. Whether P must be joined as a party in a case involving deprivation of liberty

    2. Whether the appointment of a rule 3A representative is sufficient in a case involving deprivation of liberty

    3. If P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act.

    4. Whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings.

    5. Whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs 1 to 4.

  2. With regard to the fifth issue, some of the parties expressed the concern that they have other cases listed and they were loathe to incur the cost of a hearing if a similar order is likely to be made or the court will stay the case pending determination of these issues. To address this, I have invited the Vice President to consider staying the cases presently listed such that hearings already listed may be vacated. It occurs to me that he may also wish to consider whether an automatic stay should be imposed on future cases that are issued.
  3. I have taken the course of referring these cases to the Vice President because it is vital that a decision is made on these issues as quickly as possible. None of the parties were equipped to fully argue the issues at the hearing as they would need to prepare: this is not a criticism as the issues were not identified until the hearing. There would therefore need to be another hearing and if so, it must make sense that this hearing produces a judgment from a senior judge which will set out the court’s view on these matters and direct the way forward. There will thus be a saving in time and costs which is consistent with the overriding objective in the court process.
  4. So far as the Official Solicitor is concerned, I do not discharge him in any of these cases and I have ordered him by 4pm on 22 July 2015 to file and serve on the parties a statement which shall:

    1 Provide a full and evidence based explanation of why he cannot cope with the number of deprivation of liberty applications in which he is invited to act as litigation friend

    2 Explain in full detail providing evidence where appropriate as to which areas or processes cause him difficulty and why

    3 Inform the court when he expects to be able to cope with deprivation of liberty cases and the likely time scale in which he can start work on a case.

    4. Provide any other information to the court that will assist the court to make decisions in this case regarding the position of the Official Solicitor.

  5. I believe that this information is vital to allow the court to properly consider his position.
  6. I am also anxious that the court can properly evaluate the availability of a litigation friend in all of the cases apart from MOD where one has been appointed. I therefore ordered the Applicants in each case by 4pm on 22 July 2015 to file a statement which shall:

    1 Explain what steps have been taken to find a litigation friend for P

    2 Set out whether IMCAs or other Advocates or resources are available to act as litigation friend or if not, why they are not available.

    3 List all family members who are willing to act as litigation friend.

  7. I was asked in all the cases to approve the deprivation of liberty of P on an interim basis. I declined to do so because it seems to me that the effect of the Court of Appeal’s judgment is to demand a higher level of scrutiny than the Re X process demanded and on the information available which is in the form of Re X, I am unable to do so. There are also some cases where the information is incomplete. However, my order provides that applications for interim orders can be renewed at the next hearing.
  8. By setting out the issues as they emerged at the hearing and making the orders I have referred to, my aim is to ensure that matters can be adjudicated upon and resolved as soon as possible.

 

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The Supreme Court ignore my new Act

Posted on July 9, 2015 by suesspiciousminds

Having laboured over the drafting of brand new legislation to avoid any disputes about where people live,  https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/  I am disappointed that the Supreme Court did not take the opportunity to pick up that particular baton and run with it.

 

And if you thought that people were litigating about ordinary residence too much BEFORE, just you wait.

 

The Supreme Court in R (on the application of Cornwall Council) 2015  https://www.supremecourt.uk/cases/docs/uksc-2014-0092-judgment.pdf  were dealing with a tricky scenario.

 

P had been a child, and when he was a child, had been placed in foster care in Wiltshire. This was in 1991.  As part of his care, Wiltshire PLACED him in South Gloucestershire.   When P became an adult, his needs were such that he required accommodation under the National Assistance Act 1948.  His needs are estimated to cost about £80,000 per year and he is likely to need them for the remainder of his life, so the issue of which Local Authority pays is liable to cost millions.

P’s parents, when he was an adult, moved to Cornwall; who also got dragged into this, despite him never having set a foot in Cornwall until 2004 and only then on a short visit to his parents.  We also add into the mix that accommodation was found for P in Somerset.

 

It is real law-exam stuff.  I wrote about how the High Court resolved it here (back in 2012), and I obviously developed some form of mental scarring as a result, because when the Court of Appeal decision came in, I couldn’t even face looking at it.    (I’ve not sold this link, but if you are a masochist, or you are trying to decide whether to quit law forever and just want something to tip you over the edge, here it is  https://suesspiciousminds.com/2012/12/27/as-clear-as-a-bell-if-the-bell-were-made-out-of-mud/

 

[I’ll assume that you rightly skipped that link]

 

The majority opinion of the House of Lords is that where a Local Authority accommodate a young person, and that person then goes on to require adult services, there’s no break in ordinary residence just because they happened to put him in another area.  The LA who started the case off, keeep hold of the responsibility, even though the case moves from being a child case to an adult case, and moves from one Act to another.

 

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y.

55. It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may comefrom all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

 

That does make a degree of sense.  Firstly, if a Local Authority caring for P as a child, could remove any burden on caring for him as an adult by placing him in another local authority area, then these vulnerable individuals could become subject to a game of pass the parcel (but where you DON’T want to be holding the parcel when the music stops). Secondly, Local Authorities who had made provisions or had specialist facilities in their area for children could end up receiving a higher number of such children and then having to go on to care for them as adults. And thirdly, Local Authorities might jealously guard their borders, not being willing to accommodate children on behalf  of other Local Authorities who might be trying to shift the burden of responsibility in adulthood.

 

The majority opinion therefore concludes

 

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday.

 

[The Supreme Court do not use this guache term, but in a reductive sense, the law on ordinary residence where a Local Authority places a young person in another area and that young person then needs services as an adult is “He who smelt it, dealt it”]

 

But see Lord Wilson’s stirring dissenting opinion, and it is hard not to disagree with his conclusions. What he says in effect is that the Supreme Court majority opinion is deciding the law not on the basis of a legal interpretation or following precedent, but deciding on which outcome has the better public policy implications.  This is all even better if, like me, you choose to imagine that Lord Wilson has the same speaking voice as John Le Mesurier used for Sergeant Wilson.  (“Are you sure that’s wise, sir?”)

 

I believe that this might be my FOURTH Dad's Army illustration on the blog...

I believe that this might be my FOURTH Dad’s Army illustration on the blog…

 

 

 

62. My colleagues consider that, in making his determination under section 32(3) of the National Assistance Act 1948 (“the 1948 Act”) of the place of PH’s ordinary residence on 26 December 2004 for the purpose of section 24(1) of the same Act, the Secretary of State could lawfully have reached only one conclusion. It is, according to them, that on that date, which was the day prior to his 18th birthday, PH was ordinarily resident in a county (Wiltshire):

a) in which in May 1991, ie about 13 years earlier, he had ceased to live upon his removal to live with the foster parents in South Gloucestershire;

b) to which, during the following 13 years, he never returned, not even just to stay overnight;

c) in which in November 1991, ie also about 13 years earlier, his parents had ceased to live upon their removal to live in Cornwall;

d)in which by 1997, ie about seven years earlier, both sets of his grandparents had, in one case because of relocation and in the other because of death, ceased to live; and

e) in which, from 1997 onwards until many years after 26 December 2004, no home remained available, even in principle, for his occupation.

63. Such is a conclusion to which, with great respect to my colleagues, I do not subscribe. It is a conclusion for which no party has contended at any stage of these proceedings. A court should tread cautiously before favouring a solution devised only by itself, particularly where, as here, it has been addressed by an array of excellent counsel instructed by public authorities widely experienced in this area of the law.

 

Whether you agree with Lord Wilson or not, you have it say that to be able to pour so much information into such a condensed and easy to follow two paragraphs is masterful.

 

He goes on

 

 

 

65. I must squarely confront the problem. There appear to be strong reasons of public policy which militate in favour of imposing upon Wiltshire, rather than upon South Gloucestershire, the obligation of making decisions about a suitable placement of PH following his 18th birthday and of funding whatever placement may thereafter be suitable for him from time to time. It would be a heavy financial burden for Wiltshire but its burden in the case of PH would be borne to the same extent by some other local authority in a reverse situation: in other words the burdens should even out. Public policy suggests:

a) that it is desirable that a local authority which has exercised the decision-making power (and has borne the funding burden) in relation to the placement of a mentally incapacitated minor should, in the light of its knowledge of his needs, continue to exercise that power (and bear that burden) following the attainment of his majority; and

b) that it is undesirable that a local authority which is exercising the decision-making power (and bearing the funding burden) in relation to the placement of an incapacitated minor should, while he remains a minor, be able to place him in a suitable facility in the area of another local authority (indeed, in the case of a private placement, without the consent of that local authority), with the result that, following the attainment of his majority, the decision-making power and, in particular, the financial burden should fall upon that other local authority. In the present case, for example, the evidence suggests that Wiltshire’s placement of PH in 1991 with his excellent specialist foster parents did not in any way involve the local authority of South Gloucestershire, which for the following 13 years appears to have played no part in directing or securing his care. Yet, on my analysis, it is South Gloucestershire which should thereafter have begun to exercise the decision-making power and, in particular, to bear the financial burden. The Secretary of State accepts that, of the young people who move from being looked after by local authorities as minors to being provided with accommodation by them as adults, those lacking capacity are only a small proportion. But he explains convincingly that, in the light of their specialised needs, the cost of maintaining them indefinitely is very high. He proceeds to identify real concerns that a few local authorities might therefore be motivated (to use the crude shorthand which, only for convenience, has been deployed in the hearing before this court) to “export” such a minor to the area of another local authority prior to the attainment of his majority; and equally that, were that other local authority to be the administrator of a specialist resource entirely suitable to the needs of a minor, it might nevertheless be motivated to refuse him admission to it for fear of the financial consequences following the attainment of his majority.

 

66. But such is the result which in my view the law, as it stands, clearly compels. I am not a legislator. Nor, with respect, are my colleagues.

 

Whether the case should be decided on law or public policy  (and I agree with Lord Wilson – if the Supreme Court start to decide cases on what it considers to be the best outcome for public policy then we are on a slippery slope), the Supreme Court have not really considered the real public policy outcome here.

 

If Local Authority A and Local Authority B are arguing about which area is responsible for providing care for little Tommy, then at the moment, they fight like cat and dog about meeting those costs for a maximum of 18 years.  Following this decision, the loser of that argument could, if little Tommy is going to require accommodation throughout his adult life, be stuck with those costs for 80-90 years.

Now, using your skill and judgment, do you think that those arguments will as a result become :-

(a) more amicable; or

(b) more contentious

 

 

 

 

 

 

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contact handover at Manchester airport

Posted on July 9, 2015 by suesspiciousminds

 

Contact handovers are often pretty fraught affairs. Getting through airport security and getting on a plan can also be a pretty fraught affair.  If you combine the TWO, AND you have one person who is more than happy for the children not to get on the plane and who has got there as late as possible, that’s a toxic combination.

 

Re P (A child :Enforcement of contact order) 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/B9.html

 

The reason for the airport is because the father lives in Sweden, and he comes to England to collect the children and then take them to Sweden for his contact.  As the Judge remarked, the fact that he had made 37 flights to England in a year was illustrative that he was committed to spending time with his children.

  1. The events of 22nd May 2015
  2. The flight booked for the children and father to fly to Sweden left from Z Airport at around 6:30pm. Boarding closed at 6:10pm. The father was waiting at an agreed place at the airport and began sending texts enquiring as to the children’s late arrival from about 5:00pm. The father indicates, and the mother accepts, that she generally arrives at about 5:40pm. She insisted that a 5:40pm arrival was entirely realistic for a 6:30pm flight. In any event, the mother told me she could not be any earlier as she and her husband had to collect the children from school at 3:30pm, arrange for them to change and then to drive from school to Z Airport. She complained that the father should have booked a later flight. I accept his evidence that such a flight would involve changing planes, for example, at Copenhagen and this was the latest direct flight from Z Airport.
  3. However, on this occasion and contrary to her evidence to this effect, the mother did not even arrive at 5:40pm. It may be that she was in the vicinity of the airport at 5:40pm, but it is clear from the texts sent by the father at that point in time, which he was able to produce, asking where she was, that she was not at the agreed meeting point. I accept the father’s evidence that she arrived around 6:00pm. By this stage, the father was highly and rightly anxious about missing the flight since he and the children still had security and passport control to navigate in a large, busy airport. I find that this is the pattern for the handover at the airport with the children and father usually having to run so as to avoid missing their flight. I reject the mother’s insistence that, “They were not too late. They still had half an hour to board the plane.” My sense was that the mother was resentful as to the detail of the arrangements, was not troubled by her late arrival and was making no effort to facilitate the speedy handover of the children, saying they were “upset as usual.”
  4. I cannot be sure of all the precise details, but, in summary, the mother did not exhibit any sense of urgency. The father became increasingly frustrated. The mother’s husband saw fit to intervene. Eventually, the father took hold of both children by the hand and began to try to get them through the security barriers. The mother objected and began shouting and screaming. Airport staff intervened and called the police. The children were hugely distressed. When asked in the presence of their mother if they wanted to go with their father, they said no and the police left them with their mother. By that stage, of course, the children and father had missed their flight in any event.
  5. The mother in her written statement and in her oral evidence insisted that the children were made the subject of a police protection order:

    “The police protection order was to last until 31st May, during which time E was to have no contact with the children.”

At this point, every single lawyer in the country is thinking that the mother is a liar.

 

The Judge explains why

The granting of a police protection order pursuant to s.46 of the Children Act is a formal process governed by detailed procedural requirements, none of which the mother was able to evidence. Of course, a police protection order can as matter of law only last for a maximum of 72 hours and not nine days. On the evidence currently before me, the “police protection order” was a fiction of the mother’s imagination. It is no coincidence that this supposed order covers the whole of the period during which the children were supposed to be with their father in Sweden. I note the mother’s complaint that, “Even during this time the father was trying to call and Skype the children.”

 

Obviously, the whole situation must have been horrible, and the Court acknowledge that, whilst understanding that the father had been sorely provoked.

I do not find the father entirely blameless for the distressing scene at the airport, but understand the pressures he found himself placed under with the flight closing. On balance, I find that this scene was largely instigated by the mother’s behaviour. I do not accept that the children were inherently unwilling to go to Sweden, more that they were understandably confused and terribly upset by the behaviour of their parents.

It doesn’t reflect terribly well on mother that the children are basically travelling with no possessions at all, not even a change of clothes.

 

I was, for example, astonished to learn, very much in passing when I enquired about collection arrangements, that on the father’s visits, whether in the UK or Sweden, the children are sent in, literally, the clothes in which they stand up and with their passports in their hand: no change of clothing, no favourite toys, nothing to cuddle, no books, not even a toothbrush. When the father visits the UK, he is obliged to bring those items with him on the plane from Sweden. The same situation applies even when the children stay with him for four weeks during summer holidays The message this sends to the children as to the totally separate existences they have with each parent is deeply unfortunate and unhealthy. It is compounded by the mother’s refusal to speak to the father at points of handover. The reason she gave was, “I cannot bear to be near him.”

 

The Judge doesn’t say this, and I don’t normally go further than the Judge, but this is SHABBY.

 

There are features of this case that suggest to me that mother is inching towards the Court losing patience and sanctioning a change of residence if she continues on this path of frustrating contact and not complying with Court orders.

 

  1. I simply do not accept the mother’s florid descriptions of the children complaining desperately that they do not want to go to see their father. That is a repetition of the evidence which was demonstrably and comprehensively undermined by the findings of the CAFCASS officer, Mr Power, in his report dated 24th May 2012. If, which I doubt, the children do express such views to her, the most probable explanation is their understanding of her hostility to the father and their desire to please her, their primary carer. I prefer the father’s evidence that the children are loving and affectionate with him, enjoy the time that they spend together and are happy and relaxed with him and his family.
  2. In July 2014, the mother made allegations of sexual abuse against two girls who are friends of B in Sweden. Those allegations were taken seriously by the Swedish police and social work authorities and both girls and their parents have been interviewed. The Swedish authorities found no basis upon which any action could or should be taken. I found the mother’s attempts to blacken the father’s character by insisting that he approved of sexual relationships between young children unconvincing, bearing in mind that such an allegation has never been made before. The evidence, such as it is, does not come close to persuading me that B has been sexually abused.

 

 

I thank my lucky stars that I no longer have to deal with private law contact cases and handovers. It always meant that I spent the whole of Friday afternoon on the phone with (a) clients who wanted to cancel weekend contact for really spurious reasons and telling them not to do it and (b) clients who had just had their weekend contact cancelled for really spurious reasons and having to ring the other side and get it back up and running.

 

 

 

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A witness talking over the lunch adjournment

Posted on July 9, 2015 by suesspiciousminds

I don’t often write about ancillary relief cases, but this one

 

JE (Husband) v ZK (wife) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B87.html

threw up an issue that we all trot out to witnesses on a daily basis and when I asked on Twitter about six months ago where you can find that actual rule written down, nobody was entirely sure.

When a witness is part way through their evidence, and the case comes to a break (either at the end of the day, or lunch), the witness is generally warned by the Judge “You should not discuss the case with any one, and you are still under Oath”

The still under Oath part must be right, since when the witness resumes, they do not have to take the Oath again.  Therefore, during that break in the evidence, the witness is still bound to tell the truth, the whole truth and nothing but the truth – technically, if the witness goes for a haircut and the hairdresser does that thing with a mirror where they show you the back of your own head, rather than the stock response of   :- nod “mmm, that’s great thanks” the witness ought to answer “I have no idea why you show me that, what is the point? Whatever you’ve done, it is too late to fix, and I don’t care what the back of my head looks like”

 

[Even worse, if you are still under Oath, and your new partner asks you “does my bum look big in this?”, you could be in for a world of trouble. Best to not talk to anyone at all]

The not discussing the case with anyone makes perfect common sense (which is unusual in law).  If you could talk about your evidence with someone whilst you were in the middle of giving it, they could be influencing what you say, or giving you tips as to how to do it better.  And if someone else in the case saw the witness talking to their lawyer or another party, they might well SUSPECT that this is what was happening, even if it wasn’t. So best not to do it.

The hard bit is finding where that rule is actually written down, and what the Judge is supposed to do about it.

 

Here, what happened was that the original Judge heard evidence that the husband, having given part of his evidence and then needing to come back over lunch, had been seen in the Court waiting room talking to his colleague NC (his colleague was also someone whom the husband had been renting accommodation from AND someone who was said to owe the husband £15,000, so it COULD be said that the conversation might have a bearing on financial matters)

The husband’s evidence was that he had asked NC about “Ironman” competitions and personal trainers, and nobody disputed that.

 

The District Judge had found that the father was in contempt, and said in his judgment

‘Is it relevant? I can hear being said! Well, yes, for this is the same man who remortgaged 141 Kings Road after having said through his solicitors that there were no grounds for saying that he was going to. Like that, his behaviour at the lunchtime was unacceptable’.

Now, importantly, this was a hearing where a financial order was made, concluding the financial arrangements. The District Judge was now in a pickle, because whilst saying that it was ‘relevant’  it clearly wasn’t conduct that could legitimately be taken into account for the purposes of the Matrimonial Causes Act.

The District Judge then made a clarifying note

In his clarifying note at B26 the District Judge said that he did not take the husband’s conduct in speaking to NC into account in his conclusion and that he ‘would have thought that was clear. It just had to be mentioned, it as so blatant’.

 

Part of the husband’s appeal was that the judgment was thus blurred about whether or not this issue had weighed on the judicial determination of finances.

 

Dealing with the appeal, His Honour Judge Wildblood QC said this:-

  1. Quite plainly, that conversation between the husband and NC had absolutely nothing to do with the correct outcome of the financial remedy applications. It was a complete irrelevance, as far as the solution to the case was concerned. It certainly was not conduct that the court could possibly take into account when deciding upon the correct outcome. It had no relevance under any of the other factors under section 25 of The Matrimonial Causes Act 1973 and cannot be salvaged by reference to ‘all the circumstances of the case’ in s 25(1) of The Matrimonial Causes Act 1973.
  2. I accept that the District Judge does not then tie in the finding that this issue was ‘relevant’ when later explaining his conclusions. At B15 he says that he is departing from quality bearing in mind the wife’s need for her to provide a home for the children. Further, at B6 he says: ‘there are two aspects of the husband’s affairs which I take into account within all the circumstances of the case and which make me satisfied that my decision is appropriate. First the dissipation of assets referred to in paragraph 4 above and, secondly, the opaque business relationship with Mr Clarke’. Although there are obvious difficulties with that past passage to which I must return, he does not say that the ‘contempt’ finding is relevant in that later passage.
  3. The difficulty is this. If a judge says that something is relevant in the sort of strong terms used by the District Judge he must mean what he says. A judgment has to be capable of being understood on its face and a party to the proceedings must be able to understand the methodology of the court. It seems highly likely that, at the time that he wrote the judgment, the District Judge did regard this issue as relevant to how the capital should be divided (because he said so himself at B15). I do not accept Ms Allen’s clever submission that he meant ‘Is it relevant for me to mention it?’ at B15; that interpretation does not fit in with the context of what he was saying. He associated it with the husband’s conduct in re-mortgaging the property at Kings Rd [B15] and, later took that remortgage into account at B16. The reality is that the District Judge was making findings of conduct and saying that he treated them as relevant. He was incorrect to do so and a clear statement in a judgment that something is treated as relevant cannot be cured by a clarifying note.

 

 

[This Judge was more sanguine about the incident itself than the DJ had been

 

iii) The finding of contempt was inappropriate and unnecessary to the exercise that the District Judge had to perform. The husband was wrong to speak to NC over lunch having been warned not to do so but the conduct complained of (speaking about personal trainers and an Ironman competition) had nothing whatsoever to do with the outcome of the case but was described by the District Judge as ‘relevant’ to it. I know the Gloucester waiting area well having appeared there as an advocate myself in my 27 years at the bar, and can well imagine what occurred (and what did occur happened in the full view of the lawyers and was not remotely surreptitious).   ]

 

His Honour Judge Wildblood QC, with some reluctance, had to allow the appeal and discharge the financial order that had been made. I say with reluctance, because the Judge had earlier expressed substantial dismay that two people who had once been in love had spent a “Scandalous” amount of money in ligitation

 

  1. The District Judge said that the costs were scandalous. I agree. The total that has been spent in legal costs now is as follows:
    Wife’s costs before the District Judge 62,171
    Husband’s costs before the District Judge 28,799
    Husband’s appellate costs 12,849.26
    Wife’s appellate costs (at least) 20,000
    Total 123,819.26
  2. This is not a complex case. It involves a home, a working husband who is effectively a sole trader, a few modest assets, considerable liabilities, two children and a depressed wife. For money to have been wasted on such disproportionate costs is truly scandalous. Further, these parties have two children – what sort of example do they set their children when they spend so much of the money that should be directed to their children’s welfare on blinkered and self validating litigation?
  3. I am particularly critical of the level of this wife’s costs. They are double those of the husband and nothing that I have seen gets anywhere near justifying that. I have myself witnessed two wholly unnecessary applications being brought by the wife: a) for transcripts of all of the evidence before the District Judge to be ordered at the husband’s expense for the purposes of the appeal, an application which I did not allow and b) a full legal services application, when the correct application should have been for a partial release on a stay which, when I suggested it, was agreed on the evening before a hearing of the legal services application brought by the wife and only after considerable cost expenditure (W’s claimed costs £3875.70). Further, I consider that money has been wasted on obtaining expert evidence about the suggested value of the husband’s business when that capital value was abandoned (rightly) at trial and was never going to have the sort of relevance originally suggested. That expenditure on costs took place against the backcloth of strong complaint made by the husband before the District Judge about the wife’s costs expenditure (see A1 – no trial bundle, no open offer, no updating disclosure and a late production of her s 25 statement that had been prepared three months before the hearing started but was filed seven days before the hearing started).
  4. The above remarks must be before any judge assessing costs in this case and I ask that there is very careful scrutiny of the costs that are being claimed by the wife’s legal team. It cannot be right that this level of cost expenditure occurs in a case of such modest assets. The costs claimed are about 36% of the total assets held, according to the District Judge by the parties. The burden that this now creates upon the parties, especially the wife must be immense.
  5. The District Judge found that the total pot of capital in the case was £345,686

 

Towards the end of the judgment, HH J Wildblood QC set down a marker for future litigation conduct

86….I wish to make it plain that, if I find any more money is being wasted by this wife on costs, I will impose costs sanctions – if she, or the husband, pursues any more pointless or unmeritorious issues I will reflect that in a costs order (and I say that without prejudice to any arguments and applications that may be advanced about existing cost expenditure). It seems to me at least highly possible that past dissipation of assets (which in a big money case can be of obvious importance) may be regarded as totally overshadowed now with the exigencies of the current very limited financial circumstances of these parties with the true focus of this case now being on the limited issues that I have set out above – especially relevant will be these questions: i) Where are these people to live and ii) what incomes are these people to have?.

  1. Although I am not in any way deciding the point now, I foresee that the husband will have a difficult task in contending that this wife should face a time limit to any order for periodical payments particularly if it involves a s28(1A) bar but even without such a bar.
  2. I intend that the above issues must be adhered to. There will be no more profligate expenditure on legal costs. To that end I wish to record that any District Judge assessing the costs of either party from this point on until conclusion of the rehearing should disallow that parties’ costs insofar as the costs of any party (from this point onwards) exceed £7,500 unless a) any party has made submissions to me that I should revise that figure or b) the judge carrying out the assessment considers that an extension beyond that figure was genuinely necessary.
  3. I strongly recommend now that the parties make every effort to resolve their differences without the need for the rehearing to take place.
  4. I reserve the costs of the appeal until conclusion of the rehearing. Both of these parties know what their own financial circumstances are and, with the level of costs that she has incurred, the wife should know about her tax credit position (and, if she doesn’t she needs to find it out hurriedly). Although I do not know what the husband’s income is, he does. If it were to be shown on fresh evidence that the District Judge was correct about his income, that would be bound to have an impact on the orders for costs that I would make.

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Della was his secretary, Drake’s sat on the desk with Perry

Posted on July 7, 2015 by suesspiciousminds

 

In the High Court, in the case of Wirral Borough Council v KR 2015 http://www.bailii.org/ew/cases/EWFC/HCJ/2015/54.html     some serious Perry Mason moves were pulled.

If you don’t know who Perry Mason is (hello Rachel Gymsocks) then I’m somewhat surprised that you are reading a law blog.  He is a fictional lawyer, American and suave, who had the inherent luxury of only ever representing people who were wrongly accused, and he would prove their innocence during the trial with some flamboyant move or surprise witness or dragging a confession out of a witness who had ostensibly only come to Court to say that “yes, they saw the rake that morning and it had some orange paint on the handle”.

 

[See also Johnny Cochrane, for a real world example, and his notorious “If the glove doesn’t fit, you must acquit” defence.  Of course, cough, in that case, perhaps he didn’t enjoy all the inherent luxuries enjoyed by Perry Mason. See also “The Chewbacca defence” http://rationalwiki.org/wiki/Chewbacca_Defense

https://www.youtube.com/watch?v=xwdba9C2G14  ]

You will see that in fiction, a Perry Mason move is a lawyer doing something outside the box that proves that their innocent client is innocent, whereas in real life, a lawyer doing something outside the box to get their client off is generally more of a Chewbacca defence.  This case is a Perry Mason move. There is a real, and important distinction. If the lawyer involved hasn’t been boring her clerks senseless with her tale of how she did this, I’ll be very surprised. I’d be telling this story every day for months if I’d pulled it off.

I suspect that the conversation from this point on will be

 

Barrister “Did I ever tell you about the time I….”

 

Clerk (wearily and quickly) “Yes”

 

This was a case involving alleged non-accidental injuries to a child.

To put the Perry Mason move into context, the LA turned up to the fact finding hearing with no case summary, no chronology and no schedule of findings sought.  One of the people under suspicion was the mother’s partner, JL, who did not have legal aid and was thus unrepresented.

 

  1. First, the bundle lodged by the local authority in this case failed completely to comply with the requirements of PD27A. In particular, it failed to contain any of the documents specified at paragraph 4.3 of the Practice Direction, the so called ‘Practice Direction documents’. Thus, until 9.00am on the morning on which the hearing commenced the Court was without an adequate Case Summary, a Chronology, any Position Statements and, most significantly given the Court was being asked to make findings regarding alleged inflicted injury to an 11 month old child, no Schedule of Findings. Further, in addition to the absence of these documents, JL, as a then litigant in person, had not been provided with any of the other documents contained in the bundle (save for some very limited documentation received from the mother’s solicitor at an earlier date).
  2. Whilst the failure to comply with PD27A was a plain breach of that Practice Direction, it is also the case that the failure of the local authority was of particular detriment to JL and placed his right to a fair trial in significant jeopardy.
  3. The absence of a schedule of findings meant that the respondents to this application did not have proper notice of the particulars of the allegations made against the mother and JL. In the mother’s case this difficulty was in part, but only in part, mitigated by the fact that she had lawyers to advise her. However, as a litigant in person, JL arrived at court on the first day of the hearing without any notice of the allegations made against him or of the totality of the evidence on which the local authority relied to make good those allegations, and with no real idea that the local authority was that very day intending to invite a judge of the High Court to find that he had injured deliberately an 11 month old child. It was the most remarkable and unsatisfactory state of affairs.
  4. After the Court expressed its extreme displeasure at the approach of the local authority towards JL, and to avoid the need for an extended adjournment while he got to grips with the issues and, from a layman’s perspective, the relatively complex evidence in this case, the local authority agreed to fund representation for JL. The Court is grateful to Mr Jamieson of counsel and to those who agreed to come on the record to instruct him for stepping into the breach. The court is further grateful to Mr Jamieson for discharging his professional duties with evident skill notwithstanding the short notice given to him.
  5. Whilst the local authority is to be commended for agreeing to fund representation for JL, I must observe that such a step, whilst of course desirable, would not have been necessary had the local authority complied with the requirements of PD27A and provided JL with a properly constituted bundle.
  6. The requirements of the Practice Direction are clear and the President of the Family Division has recently reiterated in the strongest terms in Re L (A Child) [2015] EWFC 15 the need for it to be complied with to the letter. The requirement to give proper notice to respondents of allegations made against them, and of the evidence in support of those allegations is equally firmly established in law and applies with equal force to cases involving litigants in person. The local authority is under a heavy obligation to ensure that the procedure at all stages is both transparent and fair, both in and out of court. The fact that a party or intervener in public law proceedings may appear in person does not relieve a local authority of its responsibilities in this regard. Indeed, it requires the local authority to be even more diligent to ensure that those responsibilities are fully and properly discharged.

 

To be fair to everyone involved, I am asking myself what on earth happened at the previous court hearings in this case?  These were all blindingly obvious matters that the Judge who dealt with it previously ought to have set out in an order, even if none of the advocates had suggested it in their draft order. The Court have to own some of this screw up.

 

The Local Authority pay for the legal costs of their major suspect (and stretching their powers to spend money under the Local Government Act well past breaking point, like two hungry yard-dogs fighting over a Stretch Armstrong toy) and STILL get told off.

So that’s the context – before the hearing began, nobody had received the proper documents from the LA setting out precisely what findings were to be sought.

It was during the cross-examination of the paediatrician by mother’s counsel that the Perry Mason move emerged.

 

  1. Towards the conclusion of her cross examination of the consultant paediatrician, Ms Howe on behalf of the mother proceeded to produce a photograph which had been shown to the other parties and to the consultant but not to the court. The consultant had not been asked about the photograph during her evidence in chief. The photograph, which was undated and not exhibited to any statement describing the circumstances in which it was taken nor what it purported to show, appeared to show a bruise to the back of A’s thigh sustained, it was said by Ms Howe, when he sat down heavily on a toy whilst in his kinship placement with the maternal grandmother.
  2. This was the first time that the court had been put on notice that there had been an independently witnessed incident that was said to replicate the explanation advanced by the mother for the bruising to A’s thighs. The consultant paediatrician had received little better notice of it than the court and, as previously noted, had not been asked to comment on it during her evidence in chief.

 

I did wonder when I read this, whether Ms Howe of counsel was about to absolutely cop it from the Judge. It isn’t the done thing to produce material evidence during the course of cross-examination of an expert, having not shared it with the other side.

However, any criticism she was perhaps going to receive was completely forgotten about when THIS happened

  1. Upon the photograph being produced by Ms Howe, counsel for the local authority Ms Banks rose and announced to the court that the allocated social worker, Mr Morris had been present at the maternal grandmother’s property during the incident to which the photograph was said to relate, had witnessed A sit down heavily on a plastic toy and had observed a red mark on the back of A’s thigh resulting from that incident. As will become apparent, when giving evidence Mr Morris confirmed that whilst the mark had not developed into a bruise by the time he left the house, the bruise shown on the photograph corresponded to the location of the red mark that he had witnessed following A’s impact on the toy. Despite the obvious relevance of this evidence, the local authority had not prior to this hearing secured a statement from the social worker placing that evidence before the court.
  2. Thus it was that at the end of the cross examination of the medical evidence in this case the court was for the first time made aware of the existence of photographic and witness evidence central to the court’s determination of whether a mechanism advanced by the mother for some of the injuries to the child, which the local authority contended were inflicted by the mother or JL, could constitute a reasonable explanation for those injuries. I directed that a statement be taken from the mother exhibiting the photograph and that a statement be taken from Mr Morris detailing what he had witnessed.
  3. The mother makes clear in the statement taken from her at court that she had only appreciated the significance of the photograph when she spoke to Ms Howe at court. During closing submissions Ms Banks informed the court that the photograph had only been the subject of discussion between the parties at the outset of this hearing, at which point she was informed by the mother’s team that it was being said Mr Morris had witnessed the event. Ms Banks further submits that the mother did not raise the possibility of A sitting on his toys as a cause of the injury until her statement of 26 January 2015.

 

So there you go, a genuine Perry Mason move.

  1. It is nonetheless a matter of great concern that this evidence had not been identified well before the commencement of the final hearing and shortly after the mother advanced her explanation in the statement of 26 January 2015. Had it been identified, the evidence could have been produced before the court in form which complied with the rules of court and the consultant paediatrician could have been given proper notice of the evidence and a chance to consider and comment upon the same before attending court. Once again, it was an entirely unsatisfactory state of affairs.
  2. There is a heavy burden on those representing parties to care proceedings to ensure that their respective cases are rigorously prepared such that all evidence relevant to the advancement of those cases is identified and placed before the court in good time. This heavy burden applies equally to local authorities and includes a duty to identify and disclose evidence that may assist a respondent’s case. Discharging this burden effectively will often involve close questioning of clients in conference as parents and social workers may well not immediately appreciate the forensic significance of events, documents or photographs until advised by their lawyers.
  3. Whilst I am aware that it is, regrettably, less common than it used to be for the advocate who ultimately undertakes the final hearing to have an early conference with their client and thereafter continuing intimate involvement in each stage of the case management process, and acknowledging as I do the impact of an increasing scarcity of resources, such input is vital in circumstances where the early identification of issues requiring resolution at the IRH or determination at trial, and of the evidence relevant to the resolution or determination of those issues is central to our system of case management and to the just and efficient resolution of cases.
  4. This is not a case in which the making of a finding of non-accidental injury would have resulted in the children being permanently separated from their birth family by way of adoption. However, were I to have found that the local authority had demonstrated that the injuries had been inflicted to I, and had the mother refused to accept those findings, the local authority would have invited me not to return the children to their mother’s care. That this was a possible outcome had the advocates not discovered, at the very last minute, the evidence concerning the independently witnessed incident outlined above should serve to concentrate minds.

 

It will not surprise you to learn that on examining all of the other injuries and listening to the family members give evidence, the Court decided that no deliberate injuries to the child had occurred and no orders were made.

 

 

[There is a less polite term for when you as a lawyer ask a question and the whole case disintegrates as a result of that question having been asked, which would also apply here,  like when you say “Do you accept that you, Francis Black, struck the child with a toffee hammer?” and the witness says “Yes”.   It is called a “F**k me question” because it is really hard when you hear the answer, not to immediately say “F**k me, I wasn’t expecting THAT” under your breath]

 

 

[Have also just thought that “Wirral going on a summer holiday” would be a good headline for a blog post, so if you work at the Wirral, please can you engineer a law report that is about a conflict about whether a child can go on a summer holiday? Thank you! Ideally, the holiday will be where the sun shines brightly, and where the sea is blue]

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Local Authority, go and sit in the naughty corner

Posted on July 3, 2015 by suesspiciousminds

 

We don’t seem to go more than about a week without some Local Authority or other getting a judicial spanking, and here’s another.

 

[I probably need to create a new Category on the website of  ‘judicial spanking’. No sooner said than done. If you did type ‘judicial spanking’ into Google and have arrived here, then I apologise, and I hope that you weren’t doing it on HMCS computers…http://www.theguardian.com/law/2015/mar/17/three-judges-removed-and-a-fourth-resigns-for-viewing-pornography-at-work ]

 

TM and TJ (children : Care Orders) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B83.html

 

Fundamentally, these complaints are about the Local Authority turning up to the Issues Resolution hearing, without its final evidence being in order, so that nobody really knew what their plan was and certainly hadn’t been able to respond to it.  It also touches on an issue dear to my heart, where LA “A” who are running the case, decide at the last minute that LA “B” should have a Supervision Order for these children and expect that authority to agree to this without knowing any of the background.

 

 

    1. On 12th March 2015 the Bristol Magistrates ordered that the case should be made ready for a preliminary which is called an ‘Issues Resolution Hearing’ (‘an IRH’). The intention of that kind of hearing is to identify the issues that remain between the parties and see whether they are capable of being resolved without the need for a full final hearing. It is not just a ‘directions hearing’ because Practice Direction 12A of The Family Procedure Rules 2010 (which is well known to family lawyers) provides that, at the IRH:
    • The court identifies the key issues (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
    • The court considers whether the IRH can be used as a final hearing.
    • The court resolves or narrows the issues by hearing evidence.
  • The court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing.
  • The court gives final case management directions.
  1. If, by the time of the IRH, the Local Authority has not filed adequate evidence, it means that the whole purpose of the IRH is negated. Thus the magistrates ordered that, by the time of the IRH, the Local Authority should have filed its final evidence including its assessment of the parents. The Local Authority had been ordered to file its final evidence (including all assessments) by 15th June 2015, the parents had been ordered to file position statements by 22nd June 2015 and the guardian had been ordered to file a position statement by 23rd June 2015. There was to be a meeting of advocates on the 16th June but that had to be abandoned because the Local Authority’s final evidence had not been filed. The court was notified that there were delays. Some final evidence was filed by the Local Authority by 22nd June 2015 although the mother’s solicitor did not receive any of the final evidence until the morning of 25th June 2015.
  2. On 25th June 2015 this case was referred to me by the Magistrates. The parties and their legal teams had all been at court since 1 p.m. that day. I knew nothing of the case before it came in front of me late that afternoon. There were the following reasons for that referral: i) All parties accepted that the Local Authority had not filed adequate final evidence. The Local Authority itself presented its case on the basis that the assessments that it had conducted were inadequate and could not be relied upon.ii) The care plan proposed that the children should go to live with the father in the east of England under a supervision order to a Local Authority in that part of the country. There was no input from that other Local Authority and there was no indication of how that authority might support the father if the children did go there. That authority was first notified of the suggestion that there should be supervision orders in its favour (and also of the hearing on 25th June 2015) on 19th June 2015. Before the email that was sent on the 19th June, that authority had no knowledge of the case at all. It is not surprising therefore that that authority did not consider that it could participate in the hearing on 25th June; it has never seen the papers in this case.iii) There was no adequate evidence of the arrangements that the father would make if he were to care for the children there. In particular, the father’s plan, if he does move to the east of the country, is to be assisted by his aunt in the care of the children. There is no evidence from her; there is no more than a ‘viability assessment of the aunt’ that was filed on 17th April 2015. Although the agency social worker who dealt with the case before leaving is thought to have spoken to the aunt before the care plans were filed, there is no record of any such discussion.iv) There had been no adequate assessment of the mother. She opposes the suggestion that the children should live with the father and wishes to care for them herself. There was an assessment of the mother that was carried out in November 2014 but this was not a parenting assessment and was carried out when the children were already in foster care. There had been a previous assessment of her in January 2014; this was a parenting assessment and was completed at a time when the children were still with her; however, that assessment was underway at the time of the birth of the second child and expressly was not an assessment of the mother’s ability to care for two children. There simply was no parenting assessment of the mother within the proceedings and there was no assessment of her ability, as a parent, to care for two children. That is despite these proceedings having been running now for very nearly six months, with the children in foster care.v) Because the Local Authority had not put forward any adequate evidence or proposals it meant that the parents did not know what case they had to meet. Even now I do not have any idea what the Local Authority recommends for these children.vi) The root cause of the problem lay in the fact that the previous social worker, who was an agency worker who had been employed in January 2015, had been charged with the responsibility of writing assessments of the parents, had said that she had done so and then left her temporary employment with the Local Authority without fulfilling that responsibility properly, I am told by the Local Authority. The new social worker had only been involved in the case for three weeks prior to the IRH on 25th June and, quite understandably, did not have the knowledge upon which to write fresh assessments.

    vii) Given the omissions in the Local Authority assessments I was told that it would take 14 weeks for the current social worker to complete assessments, given her case load and summer leave. The alternative, I was told, was that an independent social worker could be instructed to report by the 14th August. The result now is that the Local Authority will have to pay from public money for an independent social worker to be employed to do the job that a social worker, employed by the authority, should have done.

    viii) Given the shortage of time, the final hearing therefore could not be sustained at the beginning of July and another date would have to be found.

    ix) The work of the guardian was materially impaired. How could she advance recommendations when she did not know what the Local Authority proposed.

 

 

The case had to be adjourned, and an independent expert had to be appointed to conduct the parenting assessments that the Local Authority hadn’t managed to do, and the LA had to pay for that.

The Judge, obviously being very critical of these failings, said this towards the end of the judgment:-

  1. I understand the difficulties that the Local Authority faces and criticisms from the bench do little to repair the problems. Indeed criticism can simply add to the recruitment difficulties that Local Authorities face. From the time of my first speech as Designated Family Judge in this area I have stressed that there are four alliterative concepts that I wish to drive forward – i) a collaborative approach amongst the many professions and institutions involved in the family justice system; ii) Proper communication between those involved in that system; iii) a recognition of the need for changes in practice and iv) a commitment to the people who really matter – the children, family members and professionals who are obliged to turn to the family court system when there are family and personal difficulties that cannot be resolved consensually.
  2. But I would like to make these points:i) If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.ii) Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.iii) Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.iv) If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.
  3. In this court area there has been a recent and considerable increase in the number of cases that are not meeting the 26 week statutory deadline. Of 181 public law cases there are 49 cases that are now ‘off track’. That means about 27% of our cases are exceeding the 26 week deadline. This has got to stop. Many people have worked extremely hard to improve upon the performance of this area and we are not prepared to see that slide away from us now. This type of poor case performance is unnecessary and is damaging to the system as a whole.
  4. There are reasons why some cases may need to exceed the 26 week deadline. For instance there are cases involving complex issues of fact (e.g. where there is an allegation of a serious offence having been committed), cases which involve large and complex family dynamics and cases involving complex medical issues. This is not such a case. There are far too many cases like this one where the issues are straightforward and where delay is manifestly harmful to the children concerned. The only reason why this case has been so delayed is inefficiency.
  5. If three days of court time are lost in this way it may well not be possible to fill those days with other work where this sort of thing happens so close to a final hearing. Not only are adjournments plainly contrary to the welfare of young children, they also cost a lot of public money and mean that very valuable court time is being lost. There is now immense pressure for every hour of court time to be used to its very fullest advantage and if one case is neglectfully prepared, as this one has been, it means that other cases and, other children and other parties suffer. It also means that public money is being used to fund the inefficiency of those people who do not engage in the system properly. It is perhaps commonplace but, nevertheless I do observe that the Local Authority that contends that the mother has not ‘co-operated with professionals’ has, itself shown a distinct and at least commensurate lack of co-operation with the court.
  6. I am therefore adjourning this case to an IRH before me in September and will list a final hearing, again before me, as soon as possible afterwards. I will also try to call the case in for review once the report of the independent social worker has been obtained. I will release this judgment on BAILII. I know that it will be picked up at least by the local press and I consider that people in South Gloucestershire need to know how their Local Authority is functioning.

 

I think that there’s a lot of powerful and impressive stuff in this judgment. The ‘four C’s’ approach of Collaborative, Communication, Change and Committment is a damn fine philosophy.

I had a long quibble about whether the passages in the judgment that say that there are ‘far too many’ expert assessments in Bristol Courts and that the Courts must ‘crack down on them’ were somewhat blurring the lines between the statutory requirements and judicial impartiality on applying the requirements to the facts in an individual case, and Judges in their role of being spanked for their poor performance on statistics.  But I think on re-reading that HH Judge Wildblood QC does (just ) enough to put this marker on the right side. (just)

 

So, instead,this (unconnected to HH J Wildblood QC who uses plain English where possible):-

 

Bearing in mind that coming across an impenetrable allusion in judgments is an occupational hazard  (“I thought I had seen a white leopard”  “As in the famous quotation by Lord Wellington  [quotation not supplied]”  “contumelious” and so forth),   I think that we do rather better than America.  As you may have heard, in the gay marriage case in the US Supreme Court, the words ‘apple-sauce’ ‘arrgle-bargle’ and ‘jiggery-pokery’ were used, but this Judge goes even further

http://blogs.wsj.com/law/2008/02/04/the-linguistic-talents-of-judge-bruce-selya-2/

 

 

  • Defenestration. Don’t walk past an open window if Selya is inside writing an opinion: He is liable to defenestrate anything and everything. Items thrown out the window in Selya opinions include speedy trial claims, punitive damages awards, arbitral awards, claims of co-fiduciary liability and laws that unduly favor in-state interests. The latter, Selya has noted, “routinely will be defenestrated under the dormant commerce clause.” 
  • Philotheoparoptesism. Philotheoparoptesism refers to the practice of disposing of heretics by burning them or boiling them in oil. Another judge challenged Selya to include this word in a decision, which resulted in its sole reported usage (in secular courts, at least). For the record, Selya declined to consign a misguided prosecutor “to the juridical equivalent of philotheoparoptesism.”
  • Repastinate. To repastinate means to plow the same ground a second time. When considering appeals that raise previously decided issues, Selya and his colleagues have come down firmly and repeatedly on the side of “no repastination.”
  • Sockdolager. A sockdolager is a final, decisive blow. Selya’s published opinions deliver almost 60 sockdolagers, which is more “sock” than one finds in the decisions of the rest of the federal judiciary.
  • Thaumaturgical. The 1st Circuit takes a dim view of magical arguments, or what in one opinion Selya called “thaumaturgical feat[s] of rhetorical prestidigitation.”

 

 

Defenestration I knew, due to the ‘Defenestration of Prague’ and thaumaturgical I knew, because I love magic. The others, not a scooby.

Of these words, I found that only one of them appeared in Bailii law reports – three times in all.  http://www.bailii.org/ew/cases/EWCA/Crim/2009/649.html

 

In R v Johnson 2009, I think the Court of Appeal use it wrongly, when they describe a burglar leaving a building .As a matter of inference, he left the premises by means of defenestration .

I think that defenestration involves throwing something out of, or being thrown out of. I don’t think jumping or climbing out counts.

The second one Downing v NK Coating Limited 2010 http://www.bailii.org/nie/cases/NIIT/2010/07397_09IT.html fails for the same reason, but it does bizarrely involve the Court having to think about a lab assistant who left his office by climbing out of a window, thus leaving a urine sample unattended and potentially able to be tampered with.

And Ormerod and Gunn  is more of an essay (an interesting one) and once again, is referring to cases of people jumping out of windows, albeit to escape a threat of assault. It also talks about our old friend, Wilkinson v Downton 1887 http://www.bailii.org/uk/other/journals/WebJCLI/1997/issue3/gunn3.html

 

So I haven’t found the term being used in its proper sense. The challenge is on.

 

It appears that the English Courts are fonder of throwing things out of windows then they are in magic, ploughing, boiling people in oil [glossing over the Middle Ages law reports], or whatever the heck sockdologing is…

 

 

[Ha! In an unwitting irony, it turns out that one meaning of sockdologer is to determine something in a decisive and final manner. Which is clearly something that the English Courts aren’t interested in doing.  I honestly didn’t know that when I wrote the previous sentence. ]

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Oh what a tangled web we weave

Posted on July 2, 2015 by suesspiciousminds

 

I do love it when I learn something new.

This is a case decided by a Circuit Judge, Her Honour Judge Taylor, in a case where a woman had lied to a man as to whether he was the biological father of her child.  He was then suing her for deceit.

[I confess my ignorance, I didn’t know that you could sue someone for deceit. Helpfully, HH Judge Taylor sets out all of the relevant law, so now I not only know that the concept exists, but what you need to prove]

X v Y 2015

http://www.bailii.org/ew/cases/Misc/2015/B10.html

 

I can already hear, as I type this, the sound of readers ears pricking up at the idea of being able to sue for deceit.  [We have discussed before that you can’t sue for defamation for anything that someone says in Court or puts in a Court statement, and that a criminal prosecution for perjury is (a) difficult, and (b) not the decision of the victim, but of the Director of Public Prosecutions. So is suing for deceit a remedy? We shall see]

The law and deceit

45 Following the cases of P v B [2001] 1 FLR 1041 and A v B [2007] EWHC 1248 QB, followed in Rodwell v Rodwell [2011], it is clear that the cause of action in deceit may arise in cases such as this in a domestic context.

46 In A v B at para.43 Blofeld J set out the ingredients of deceit.

(1) a representation by words of conduct.  [Suess note, I think that is a typo and it should be ‘or’ conduct. meaning that you could give rise to a deceit action by semaphore, or more realistically that when asked a direct question the person nodded, shook their head, or put their thumbs up or some obvious gesture of that kind…]

(2) Secondly, that representation must be untrue to the knowledge of the maker at the time the representation was made.

(3) Thirdly, the maker must make the representation by fraud, either deliberately or recklessly, in the sense that he or she could not care whether the representation was true or not.

(4) Fourthly, the representation must be made with the intention that it should be acted upon by the claimant.

(5) Fifthly, it must be proved the claimant acted upon the fraudulent misrepresentation and therefore suffered damage.

 

In English

 

(1) that the other person said something

(2) that when they said it, they knew it wasn’t true

(3) that there was either intention, or recklessness that you might believe it

(4) That  they MEANT you to do something as a result of believing it, and that you acted on what the person said  (i.e you didn’t just believe it, that belief caused you to do something about it)

(5) That those actions caused you loss or harm

 

So, for the immediate question on your lips “If a social worker tells lies about me, can I sue them for deceit?”  I think that the fourth ingredient is the problematic one.  In order to sue for deceit, you need to show that not only was there a lie, but that you believed it. And that you did something as a result of believing it. If you never believed the lie, then you weren’t deceived.

You can only sue for deceit if the person successfully deceived you.  A lie is different to a deceit – telling a lie that you didn’t believe isn’t a deceit, it is an unsuccessful attempt to deceive.

[It might be possible to construct such a case – that the social worker told a lie about mum, dad believed it, dad did something as a result, and dad suffered loss.  Or I suppose the section 20 style case where a parent is told that it will just be for a few days and having signed the agreement never gets the child back]

 

In this particular case, the couple had made use of a fertility clinic. The man had had a vasectomy, but had taken the precaution of having his sperm frozen before the procedure. He had been told by the woman that she, with his consent, had used his sperm to conceive a child through the fertility clinic.  In fact, she had not. The sperm used had been another mans. DNA testing later proved that the child was not his.  The man had made maintenance payments to the woman for this child.

The woman’s case was that she had taken two samples to the clinic, one from the man and one from another person and that she had not known which sample was used – so she had not been honest with the man that there was a possibility that the child was not his, but had not lied to him because she did not know that he definitely was not the father.

 

The Judge held that the ingredients for a claim of deceit were all made out.

 

84. On the facts of this case where I have found there has been clear deceit and fraud in relation to the agreement, in my judgment it is right that the court order repayment of these sums which are not for the benefit of Z. The sum claimed in respect of these payments for maintenance to Y is £22,845 plus interest which has been calculated to date at £2,476 making a total of £25,321.

  1. Consequently, the sums that I award are the sum of £10,000 of general damages plus £4,000 in respect of the loss of earning capacity and the £25,321 inclusive of interest in relation to the maintenance of the property.

 

 

 

 

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Mother and solicitor sitting in a tree…

Posted on June 30, 2015 by suesspiciousminds

 

This is a case called Re K v D (Parental Conflict) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/49.html

 

It involves a separated couple, who were described by the Judge as being “100% British, but with no intention of paying tax here” and who owned a mansion worth about £5.5 million in the name of a company, in the British Virgin Islands. They were involved in acrimonious litigation about their children.

 

And indeed everything else.

The parents’ legal bills have of course been rocketing. Paid and owed, they already exceed £½ million after only a few months of hostilities. The current figures, which do not include the costs of the other participants in the financial proceedings, are these:

Mother Children Act £147,000

Financial £170,000

Previous solicitors £47,300

Father Children act £88,400

Financial £51,900

A particularly unedifying aspect is the argument about maintenance for the children

On 18 February 2015, this court made a financial order at a hearing at which not only the parents but two other entities (including the BVI company) were represented. Having heard from no less than six counsel (three Queen’s Counsel and three junior counsel) the Deputy District Judge accepted undertakings from the father to pay the bills on the family home and the children’s school fees and ordered him to pay the mother monthly maintenance pending suit of £6,500 and a monthly litigation fund of £16,000. The net effect is that for every pound of maintenance for the family a slightly larger sum is due to be paid for the maintenance of just one of the four legal teams. In fact, since the order was so recently made and the undertakings given, the father has ignored it altogether. Apart from a payment of £3,000 in May, he has paid nothing. In four months, arrears of £113,000 have accumulated. The effect on the mother, and consequently on the children, is obvious, and their school places are under threat. Yet this is a man who was as recently as June 2013 given an unsecured loan of $1 million by a billionaire friend.

Yes, you read that right, the Court had ordered the father to pay £6,500 a month in maintenance for his children, but £16,000 a month towards his wife’s legal fees. Something has gone badly wrong here.

The father isn’t so far paying any of this. That’s not attractive. Even less attractive is not paying that maintenance and then doing THIS

(10) Despite his almost total default in meeting his financial obligations in 2015, the father, who has an empty property in Kent, stayed in a five-star hotel on Park Lane for four nights in May with his girlfriend and for six nights in the week of this hearing.

https://www.youtube.com/watch?v=MgGCIZi1UjY

As you can see from the name of the case, there was a sufficient amount of parental conflict for the Judge not only to remark upon it, but name the case after it.  Given what sort of stuff Judges see on a daily basis, when one names your case “Parental Conflict” then you may be taking this whole conflict thing too far.

However, not everyone in the case was in conflict.

The Judge had to deal with some allegations as to whether mother’s solicitor had gone the extra mile for his client….

 

(7) For her part, in September 2014 the mother instructed her current solicitor (no purpose would be served by naming him and the firm’s name is redacted in the title of this published judgment). They began a relationship about six weeks later. At the outset of the retainer the mother sold her car and paid the solicitor the proceeds of £20,000 for his legal services. Since then, she has incurred some £300,000 of legal fees, all unpaid. The couple has travelled abroad, with the solicitor taking the mother for a weekend in Barcelona in December and going with the mother and children to Paris during the February half term. The solicitor spent Christmas in the family home with the mother and children and is a regular overnight visitor to the home. As the father is in flagrant default in paying maintenance, the solicitor has been offering necessary financial support to the mother to cover some bills and expenses: instead of the client paying the solicitor, in this case it is the other way round. The propriety of the mother’s solicitor acting for her in the circumstances has been referred to the Solicitors Regulation Authority by the solicitor himself and by the father’s solicitors, and I return to this below.

 

If you are thinking that it is a bad, bad feeling to have a Judge question your propriety as a solicitor during a hearing, add into the mix that he is admonishing you about your love life, that he is doing this IN FRONT of your current lover’s ex-boyfriend, in the middle of a Court case about their children at which you are representing her.  That’s almost as though someone has gone into the head of a lawyer and used what they have learned to craft them the ultimate nightmare scenario.  The only thing lacking is that bit where you have to stand up and address the Judge and realise that you have no trousers on.   (I have that particular nightmare at least once a month.  Just me? Oh, well then I was just kidding)

It gets a bit worse for the solicitor later on. If you don’t like lawyers, or you are a fan of schadenfreude, keep reading.

 

The fact that THIS next paragraph barely rates a mention is illustrative of just how bad things were getting for this solicitor.

 

(9) Although she initially denied it, the mother was compelled to accept that at various times since October, her solicitor has been employing a private detective who has, I find, been following the father and no doubt making other investigations on the mother’s behalf. The mother, her solicitor and the detective dined together on the night before the mother gave evidence. The detective’s fees amount to £4,200, unpaid

 

No, I can’t see much wrong with taking your client / lover out for dinner the night before she is due to give her critical evidence.  And inviting your secret private detective along too.

 

What could be worse than the Court dissecting the fact that you are in a relationship with your own client, are paying her legal expenses yourself (?), spent Christmas with her, put yourself in a position where an allegation of coaching your client the night before her evidence could be made against you and getting yourself reported to the Solicitors Regulation Authority?

Well, what could be worse is putting yourself in a position where you might be called as a witness to give evidence in said case..

 

And then trying to claim that any and all conversations with the mother were covered by legal professional privilege, and so you wouldn’t reveal the contents.

Now, I’ve had clients in my time that needed a LOT of legal advice.  I mean a LOT.  But I’ve never had any that needed that advice to be dispensed over Christmas dinner, or in overnight staying visits at the house.  I am pretty sure (unless the relationship was the dullest in recorded history) that quite a lot of the time that the solicitor and mother spent together was NOT in the role of solicitor and client giving privileged legal advice.

At this point, I am sorely tempted to do a riff about the sort of technical legal questions that might be posed by a client to their solicitor during said overnight staying visits, but that is beneath me.  [It isn’t, but I’m sure you can think of your own material here, and it will be funnier than mine]

 

 

  • The last matter concerns the position of the mother’s solicitor. I have not been asked to make any order about this and do not do so. However, it is a matter that is plainly relevant to the interests of the children and the integrity of the court proceedings as a whole.
  • The mother wishes her solicitor to continue to act and the solicitor considers that he can do so.
  • There may be no absolute bar on a personal relationship between solicitor and client but in this case I see grave difficulties for a number of reasons:

 

(1) This is a highly acrimonious dispute and the personal involvement of the mother’s solicitor exacerbates it.(2) In the course of this hearing alone, there have been several moments when the mother has been challenged about situations in which her solicitor would be a compellable witness. Two examples arose in relation to events on Sunday and Tuesday of this very week. Another example concerns the visit to Paris at half term. The father says that E was told not to tell him about this. The mother denies that. Where does that place the solicitor?

(3) Another concern arises about the solicitor also acting for a Mr C, who is providing information to the mother about the father.

(4) I refer to the solicitor’s response to the concerns raised on the father’s behalf. Four letters have been written asking for an explanation of the nature of his relationship with the mother. The only reply has been this: “The meetings between [the mother] and representatives of our firm are subject to legal professional privilege. However, without prejudice to that privilege, we can confirm that no discussions concerning the case have occurred or will occur in the presence of or in the hearing of the children.” That entirely unsatisfactory and, I am afraid to say, disingenuous response (and the fact that every subsequent request for information has been ignored) demonstrates that the solicitor is in a situation where he cannot give independent professional advice to the mother.

(5) I have serious concern about the mother’s position should her relationship with the solicitor come into difficulties at any time in the future, and about the solicitor’s position should he be challenged about his professional service.

(6) Lastly, at the end of the hearing, the parties asked me to determine an issue about distribution of monies due to be received by the father and subject to a freezing order. Those submissions revealed that in February, when the District Judge ordered the father to pay the mother £16,000 for her monthly legal bills, the solicitor’s relationship with the mother was not revealed to the father or the court. It was plainly a material and disclosable fact on such an application and I was surprised to hear a contrary submission. I shall not direct the release of litigation funds at this stage. The hearing in July will be an opportunity for the father to put his case on the issue.

 

  • I am aware that the mother would be placed in great difficulty by the withdrawal of her solicitor, but the ends cannot justify the means if it is not proper for him to be acting.
  • I direct the parties to refer these observations to the SRA and, if the solicitor continues to accept instructions, to any judge conducting future hearing

 

I am prepared to go out on a limb here, and say that if, as a lawyer, the final sixteen lines in a High Court judgment are ABOUT YOU, then things have gone badly wrong.

 

I don’t know what to advise this solicitor, who is clearly so irrestible to women that any thoughts of propriety have to go out of the window. Perhaps, and this is all I can offer, consider changing your aftershave?

 

 

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Anonymity for victim of child sexual abuse/exploitation

Posted on June 30, 2015 by suesspiciousminds

 

The High Court considered an application to extend a Reporting Restriction Order on a 17 year old, AB, which would expire when she became 18 to be throughout her life.

 

Birmingham City Council and Riaz 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1857.html

AB was the victim in a high-profile case of child sexual exploitation – you may remember it as the one where Keehan J, in the High Court, made an order that the adult males suspected of having abused AB would be (a) subject to orders preventing them from being around children and (b) named and shamed, so that the press were able to report their names and print photographs alongside a story that they were men who had targeted and groomed children for sexual purposes.

 

Remember that in that case, there had been no criminal trial and was never likely to be, and that the men had not gone through a process of contesting the allegations and having the Judge decide whether they were true.  Just that on the civil standard of proof the evidence was such that an order preventing them from harming other children was appropriate.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

The Local Authority, Birmingham applied to extend the Reporting Restriction Order on AB for her whole life. They argued that AB was a victim, that any story about the case could be told without her name, that she had been a child and deserved protection not press exposure and no doubt that if the result for AB of having told her story and made her allegations was that she was made notorious and everyone who met her would know for the rest of her life what happened to her, that would deter other victims.

The Press were not arguing that they wanted to name her, but were concerned about a precedent emerging.

When looking at the case, Keehan J identified that as a result of s78 of the Criminal Justice and Courts Act 2015, Criminal Courts had the power to make orders saying that the name of a victim or a witness could be subject to an order that it not be reported.  There is also an authority of the Court of Appeal JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 that permits such orders being made to preserve the anonymity of children who receive financial settlements.  Again, that makes perfect sense – if you receive compensation for something terrible in your childhood, why should everyone that you meet in your life get to know all the personal details?

 

With this sort of case, it is more tricky.

As was put to Keehan J, an order preserving the anonymity and identity of an adult [other than as the result of Court of Protection or care proceedings/adoption] has happened in three cases in English legal history.

The cases are all pretty notorious – Mary Bell, Thompson and Venables, and Maxine Carr.  It is no small thing to add a name to that list.

On the pro side of things, I’d probably argue that those were all people who did something wrong (and where a child died as a result – Maxine Carr having the lowest culpability), whereas  AB was a victim. Why on earth should a victim get less protection than a person who was responsible to some degree for the murder of a child?

On the con side, the three cases above involved a CHANGE of identity.  The press and public knew who Mary Bell and the others were, and indeed photographs were available. The press can publish those photographs even now. The public wasn’t being told that they couldn’t know that Mary Bell had killed a child, they just couldn’t know her new identity.

 

I’m struggling to be balanced here, since for me the case for AB to have anonymity for life is overwhelming, but I can see that it is establishing a precedent  (and just with the inherent jurisdiction cases, there’s a later danger that such a precedent in a deserving and solid case can be later used to advance the jurisdiction further and further away)

Mr Dodd, for the Press Association  (given a tricky brief) did pretty well with it

  1. Mr Dodd submits that the court should proceed cautiously before filling in a lacuna left by Parliament. He referred me to paragraph 20 of the opinion of Lord Steyn in the case of Re S(FC) (A Child) [2004] UKHL 47 where he said:

    “20. There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.”

  2. Of particular note is the caveat entered by Lord Steyn to the courts creating further exceptions to the general principle of open justice “except in the most compelling of circumstances”. 

 

 

Keehan J considers matters in a very thorough manner and it is an exemplary judgment  (whilst I think that some of the analysis in the initial Riaz case is not as rigorous as I would have hoped, given the serious nature of what was being done there and the likelihood that the approach would be used in other later cases, I can’t fault this judgment)

 

  1. Discussion
  2. I entirely accept the high importance accorded to the general principle of open justice. It was because of the considerable public interest in the issue of CSE that I directed the matter to be heard in open court in October 2014 and thereafter.
  3. The mere fact that there are only three reported cases of lifelong anonymity being granted in civil/family proceedings, should not deter me from undertaking my primary task which is to undertake a rigorous analysis of the competing Article 8 rights of AB and the Article 10 rights of the press and broadcast media.
  4. It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.
  5. What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.
  6. AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.
  7. I accept the Press Association and the Times do not wish to identify AB, but their approach does not bind and may not reflect the approach of other members of the press or broadcast media or those who use social media sites.
  8. I take account and accord considerable weight to the serious adverse consequences for AB if she were to be identified as a victim of CSE in the press, broadcast media or on social media sites. I accept the opinions and conclusions of the social worker and the psychologist. AB remains a very vulnerable young woman. In my judgment adverse publicity about her as a victim of CSE is likely to have a serious deleterious effect on her emotional and psychological well being.
  9. I have earnestly reflected on this difficult issue of whether I should grant a RRO to afford AB lifelong anonymity. I have taken account of the high priority accorded by Parliament and the courts to the protection of victims and especially to young people.
  10. I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.
    1. I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.

 

 

 

 

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