Category Archives: case law

Poppi Worthington

Posted on April 27, 2015 by suesspiciousminds

 

There has been a lot of media interest and frustration about the death of Poppi Worthington.  She died in December 2012 and was just thirteen months old. A finding of fact hearing took place in care proceedings and judgment was given on that in March 2014.  Despite media interest and applications, the contents of that judgment are still not known other than to those directly involved in the case.

A reporting restriction order remains in place, that prevents the contents of that hearing being shared in the media or published. [As ever with reporting restriction orders, they apply to me and to my commentators, so if the information is leaked elsewhere on the net, please do not link to it]

We do know that an inquest took place, with an open verdict and the Coroner releasing Poppi’s name into the real world and was recorded as describing her death as ‘unusual and strange’

The Press were interested in the suggestions that either the finding of fact hearing in the care proceedings might be a miscarriage of justice (based on the Coroner’s verdict being open, rather than concluding that Poppi was unlawfully killed)  OR that the finding of fact hearing was critical of the Local Authority and social workers and that this was being hushed up.

[See for example, the Daily Mail piece here http://www.dailymail.co.uk/news/article-2810262/How-council-tried-baby-s-death-secret-protect-social-workers.html   ]

Either of those things are possible, it is really hard to prove or disprove them until we see the judgment itself.

For a long time, the decision to hold back the contents of the judgment despite media interest, was on the basis that there might be a pending criminal trial.

The police decided on 16th March 2015 not to charge the father with any criminal offences. The Press obviously thought that this would mean that the judgment would be released and they could tell Poppi’s story.

However, as a result of enquiries that had been made in the police investigation, including fresh medical experts, the father considered that there was scope to challenge the decision of the fact finding hearing and the decision to make Care Orders on Poppi’s siblings.  [I don’t think it is rocket science to infer that the final outcome of the finding of fact hearing was that father had done something to Poppi that led to her death, which he disputes]

 

The issues then for Mr Justice Peter Jackson to resolve were :

1. Should this be an application to the Court of Appeal on fresh evidence OR an application for re-hearing made to the High Court who had originally heard the case?

2. If the latter, should the application for re-hearing be granted?

3. Should the original judgment be published prior to the conclusion of that appeal/re-hearing?

And that is what he dealt with in the case of Cumbria County Council v M and F (Application for rehearing) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/35.html

 

 

  1. At the original hearing, the main medical evidence came from three pathologists. Dr Alison Armour, Dr Stephanie Bitetti and Dr Stephen Leadbeatter and from Dr Victoria Evans, a paediatrician. Their opinions coincided in some respects and diverged in others. I substantially accepted the evidence of Dr Armour.
  2. As a result of the fact-finding judgment, the police commissioned further medical enquiries. Opinions have now been given by Dr Nathaniel Cary (pathologist) and Dr Liina Kiho (histopathologist). Their views diverge in a number of respects from those of Dr Armour. An opinion has also been obtained from Dr Victoria Aziz, who is described as a forensic examiner.
  3. In their submissions, the parties have analysed the extent to which the more recent pathology evidence differs from that which was given that the original hearing, with reference to five particular post-mortem appearances.
  4. On behalf of the father and the Guardian, it is argued that the additional medical evidence raises issues of sufficient importance to warrant a rehearing. On behalf of the local authority and the mother, it is said that the issues are ones of nuance and interpretation that do not amount to a reason for reopening the matter. It is also said that the process by which the new evidence was gathered may have had shortcomings.
  5. In my view, the further evidence contains matters of mixed fact and opinion that deserve further consideration. In particular, it contains an alternative unifying hypothesis for the post-mortem appearances. That hypothesis was not overlooked at the earlier hearing, but it did not receive the degree of attention that is now being paid to it. Arguments about any consequences arising from the process by which the further opinions were obtained cannot be resolved without significant further inquiry, and a decision on the father’s application should not in my view be postponed for that to occur.
  6. The circumstances in which the court will reopen established findings of fact are rare. There is a public and private interest in litigation being final. The impact of a renewal of the litigation on the family members can be significant, as is undoubtedly the case here. Further proceedings are also expensive, in this case to the public, and consume court time that is needed for other cases.
  7. There are two ways in which an application for a further hearing can be made. The first is by way of an application to appeal out of time on the basis of fresh evidence. The second is by way of an application to the trial court for a rehearing. In this case, the latter course has been selected. It is argued on behalf of the mother that the former course would have been better. However, it is acknowledged that the appeal route would be likely to lengthen the overall process in circumstances where the earliest resolution is in the interests of the children. In the overall circumstances, and bearing in mind that this court has had an ongoing involvement since the conclusion of the care proceedings because of issues of publicity, I find that the father’s application is appropriately made here.

 

So, in these circumstances, an application for re-hearing was better than an application to appeal. What about the merits of the application itself?

  1. His choice of venue will have been influenced by the way in which the tests that apply in each court have been articulated. An application to appeal out of time engages the well-known test in Ladd v Marshall 1954 1 WLR 1489. The new evidence must be such that it would probably have an important influence on the result of the case, though it need not be decisive, and it must be apparently credible, though it need not be incontrovertible. An application to the first instance court for a rehearing engages the guidance contained in paragraph 33 of the decision of the President in Re ZZ (Children) 2014 EWFC 9 where he endorsed the words of Mrs Justice Hale in an earlier decision: “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions on the same evidence … The court will want to know … whether there is any new evidence or information casting doubt on the accuracy of the original findings.” To this, the President added that “one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my own part I would be disinclined to set the test any higher.”
  2. There may be cases in which the formulations of the tests on appeal and at first instance might make a difference to the outcome, but I do not consider that this is one of them. The court’s overriding objective is to deal with cases justly, having regard to welfare issues involved, and that is my goal.
  3. The considerations that persuade me that justice requires that a further hearing should take place are these:

    (i) The finding of fact addressed in the more recent evidence is of central importance for the family. It is of a kind that determines the children’s future and is of great significance to the parents.(ii) It will be important for the children to have an accurate understanding of what happened to their sister. The more recent evidence has the effect of raising doubt about the existing conclusion. The children’s welfare requires that the matter is resolved.

    (iii) The more recent evidence, like the previous medical evidence, comes from a reputable source; further, it was commissioned in response to concerns expressed by this court about the earlier police enquiry.

    (iv) While the outcome of a further hearing cannot be foreseen, it is possible that a review of the overall medical evidence may lead to a different conclusion. It may, or it may not. What can be said is that there is a serious issue to determine in the light of the further opinions.

  4. As to the scope of the further hearing, oral evidence is likely to be limited to medical testimony. I am unlikely to admit other oral evidence, unless a particular matter needs clarification. Transcripts and notes of evidence from the earlier proceedings will be gathered. A meeting of the doctors should be held in order to establish points of agreement and disagreement. The parties will present a draft directions order, having made further enquiries.
  5. At an earlier stage, the father submitted that any rehearing should take place before a different judge. That submission was not in the end pursued, in my view correctly. There are considerable advantages in judicial continuity in a case of this complexity.
  6. The outcome is that the further hearing will take place in the autumn.

 

So there will be a re-hearing in the autumn. But we are not yet into May – what happens between now and then?

 

As to the publication of the original judgment, I remain on view that this is not appropriate at this point in time, for the reasons given on 30 March. However, I have expressed a provisional view that it should be published at or around the time that the rehearing begins, rather than it being withheld until that hearing ends. There is a proper public interest in the course that these proceedings, and the other procedures surrounding Poppi’s death, have taken. The media will be able to describe matters more effectively if the original findings can be described at the point when they come under review. I have also raised the possibility of the further hearing taking place in public. I will hear from the parties and the media about these issues at the next directions hearing.

 

So the judgment will not be published until the autumn. It MIGHT be published before the re-hearing finishes, and even possibly at around the time that it begins.

The reference to the judgment on 30th March is this one – which was considering the position given that the police had dropped their case against father, but father was wanting to challenge the findings in the family Court.

From that judgment

http://www.bailii.org/ew/cases/EWHC/Fam/2015/918.html

 

  1. On the question of publication of the judgment, there is division between the parties:

    (i) The media, on whose behalf Ms Caoilfhionn Gallagher has presented written submissions, supplemented today by Mr Murphy, argues for publication. It says that the matter is of the highest public interest, both as to the circumstances of the death and as to any agency failures. There is a risk that an information vacuum will be filled with inaccurate speculation. Moreover, continued non-publication would be likely to reignite concerns about “secret courts” and lack of transparency in the family justice system.(ii) The local authority argues that the judgment should be published now that a charging decision has been taken. Even if the findings are reopened, there is a public interest in being informed about the process as it occurs.

    (iii) The mother supports publication, particularly as non-publication heightens speculation in an unhelpful way.

    (iv) The father opposes publication at this point. On his behalf, Mr Rowley QC argues that the evidence gathered during the father’s criminal investigation forms a credible basis for querying the court’s findings. He submits that it would be wrong, taking into account the father’s rights, to publish the judgment ahead of a decision about whether the findings will or will not be reviewed.

    (v) On behalf of the children, the Children’s Guardian opposes publication of the judgment at this time. The children, whose future plans remain at a sensitive stage, would have to face a heavy bout of publicity now with the possibility of further, conflicting publicity at a later stage.

  2. The Practice Guidance issued by the President of the Family Division on 16 January 2014 and entitled “Transparency in the Family Courts: Publication of Judgments” [2014] 1 FLR 733 advises that fact-finding judgments in serious cases should be published unless there are compelling reasons to the contrary. Quite apart from that guidance, this should in my view be the starting point in a case of this kind. The public interest that the media contends for is very significant indeed. As I have said elsewhere, I am aware of the value of the media being able to describe events in real time as they unfold. The risk of speculation replacing information is also a relevant consideration.
  3. I have nevertheless concluded that it would not be right for the fact-finding judgment to be published now. The court retains control over the question of publication and must give due weight to the public interest, the interests of justice and the interests of the individual parties, not least those of the children concerned. It would be wrong in my view to place in the public domain a judgment that would be likely to receive considerable publicity immediately before taking a decision on the question of whether that judgment should be reviewed. To do so would be unfair to the father and contrary to the welfare of the children.
  4. I well understand the desire of the media to carry out its role as fully as possible, and the frustration that is felt at the course of events in this case, in particular where one obstacle to publication is removed only to be replaced by another. However, I am clear that a proper balancing of the rights of all concerned leads to the conclusion that the judgment cannot be published yet. In saying this, I repeat my intention that it shall be published when it can be.

 

Given the Daily Mail story linked to earlier, it is worth noting that at the hearing on 30th March, the Local Authority (i.e Social Services) were of the same view as the Press, that the original judgment should be released and published.  I can also see however, that if you were the father, hoping to get that decision overturned that you wouldn’t want the Press reporting all the details of how a Court found that you did something dreadful to your child BEFORE you get a chance to persuade the Court that they had got this wrong. I can also see that for the Guardian, representing the children, it would not be ideal to see in the papers terrible headlines about your father and your sibling, and then possibly to have a different version of events and fresh stories AFTER the re-hearing.  But also, I can see that this all feels very unsatisfactory – the Press have a story here which is a genuine public interest. Maybe there were failings from professionals from which others could learn, maybe not. Maybe a family has been broken up as a result of a mistake in the family courts, maybe not.  The Press legitimately want to report the story and they aren’t able to do so.

Not an easy situation.

I also note that there is to be a Serious Case Review (which is the internal investigation where a child dies and there might be lessons to be learned). Those generally have to be published, so I wonder if the report might be timed to come in after the autumn re-hearing; as otherwise the Press could legitimately report on the conclusions and substance of that report.

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And we can throw in a word like “circumcision” / cos we ain’t going in for Eurovision

Posted on April 27, 2015 by suesspiciousminds

 

In Re W (Children) 2015, the Court of Appeal had to deal with an appeal arising from a refusal to grant a parent leave to oppose the making of an adoption order.  [I know that like Rizzle Kicks you are saying “Let’s snip to the good bit” – have patience, it is about a third of the way down the page]

http://www.bailii.org/ew/cases/EWCA/Civ/2015/403.html

 

As the case was being dealt with by the President (amongst others), we were always going to begin with an admonishment about Practice Directions.

I interpose to observe that this is yet another example of practice which is not merely unacceptable for reasons which ought to be obvious – the court needs to know both the author(s) and the date of such a document – but is in fact in plain breach of PD27A, para 4.2. This is not the first time I have had occasion to complain about this in recent months: see Re L (A Child) [2015] EWFC 15. I said this (para 14):

“PD27A para 4.2 states that:

“All statements, affidavits, care plans, experts’ reports and other reports included in the bundle must be copies of originals which have been signed and dated.”

This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11.”

I continued (para 23):

“This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough … The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions”.

I spelt out what those sanctions might involve. Here we merely identify the delinquent local authority as Coventry City Council.

It can only be a matter of time before the President issues an edict that prescibes a rap over the knuckles with a ruler for breaches of PD27. Or perhaps a dunces cap, constructed of foolscap paper, to be worn by those responsible for the breaches for the duration of the proceedings.

I can see that it must be irksome for a Judge not to have the signed and dated documents in front of them, this seems a far more legitimate complaint than whether the documents are on double-sided paper. But nonetheless I am adding it to my file of “The Welfare of the Bundle is Paramount” cases.

There were a lot of gripes about the original way that the trial judge managed the application, but it finally turned on this particular point:-

  1. In the first of those two paragraphs, Judge Watson said this:

    “So far as M is concerned there has been a very specific matter which has been raised and has been raised consistently throughout the proceedings and that is that for some reason he was not circumcised. I do not know the reasons for that. It could well be to do with the time and the age he was when he was taken into foster care, but for whatever reason he was not circumcised. The social worker has indicated in her statement that on 3 September there was an agreement that M should be circumcised and I am satisfied that it would be in his cultural and religious best interests to be circumcised. It is what his parents wish and it is a wish which ought to be recognised and perhaps should have been recognised before to date [sic].”

  2. The final paragraph of her judgment underwent some revision. In the draft transcript sent to her for approval, Judge Watson was recorded as having said this:

    “I am therefore going to say that I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the adoption order in relation to B. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

    As approved by Judge Watson the final paragraph reads as follows:

    “I am therefore going to say that I will refuse leave to oppose the adoption but I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the final adoption order in relation to B in 7 days time. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

  3. I have already set out Judge Watson’s order in full. So far as relevant to this point, the key parts of the order are these:

    “upon the court indicating that the Adoption Order for M will be made upon written confirmation to the court that he has undertaken a procedure for circumcision

3 The court has approved an Adoption Order in respect of M such order to be made upon notification of the procedure as set out above.

 

And that, of course, is the Court making an Adoption Order on a conditional basis, which is not allowed.

 

  1. The first relates to M’s circumcision. It is tolerably clear from the order, though the language of the judgment (whichever version one takes) is unclear and, to my mind ambiguous, that Judge Watson did not on 29 September 2014 make an immediately effective adoption order in relation to M. According to the language of the order it “will be made” and is “to be made” upon the happening of the specified event. In other words, perfection of an adoption order in relation to M was expressed to be subject to what as a matter of law is properly described as a condition precedent, namely that M be circumcised. Ms Bazley and Ms McGrath submit that the court cannot properly make an adoption order effective only on satisfaction of a condition precedent. As they ask rhetorically, what is to happen if the condition precedent cannot be satisfied? Does one treat the condition precedent as determinative, with the consequence that the child is not adopted – and if so, what is to happen? Or does one treat the decision for adoption as determinative and, in effect, ignore the condition precedent? They pose the questions not for the purpose of inviting answers but in order to demonstrate that such an order is not merely unworkable in practice but also wrong as a matter of principle. How, after all, does an adoption order subject to such a condition precedent meet the ‘adoption as a last resort’ principle spelt out in the authorities?
  2. In the event the issue has arisen in a very practical way because Ms McGrath told us on instructions that the local authority has been unable to identify any NHS hospital or private clinic willing to perform a circumcision on a child of M’s age, absent medical reasons for doing so – a position, we were told, that is unlike to change.
  3. I agree with Ms Bazley and Ms McGrath. Paragraph 3 of the order is irretrievably flawed. It is in a form which is wrong as a matter of substance. No adoption order can be made expressed to be subject to satisfaction of a condition precedent. Accordingly, in relation to paragraph 3 of the order the appeal must be allowed on this ground also.

 

Nicely argued. You can’t really say that adoption is the last resort (but only if the child no longer has a foreskin).

The underlined bit is odd –  there are a great many male children who have such an operation without there being any medical reasons – we can see the parental desire for this procedure was religious / cultural – so wouldn’t that be your starting point for having the process undertaken?

I can’t find from the judgment how old M was – certainly under the cut-off point for adoption. If he was say five or six, I can see why a GP / hospital consultant might be nervous about the procedure without medical cause. But surely it was a solveable problem. It was perhaps fortunate that the appeal arose, as otherwise this child would have been in a Schroedinger’s Cat style limbo – he can’t be adopted without the circumcision, but the LA can’t get the circumcision done. And no simple vehicle for taking that back to Court to vary the order, and they could have run out of time to lodge the appeal. It could have been very problematic  (which is a major reason why you can’t attach a condition to the making of an adoption order)

 

The other two legal quirks in the case were these.

 

Firstly, in the care proceedings, nine days before the final hearing on a younger sibling JE  began, the parents produced a letter from an Aunt who wished to care for the children.  That led the Judge to decide that the case could not be concluded, but that he could conclude that neither parent could care for JE

  1. On 1 September 2014, Judge Cleary gave judgment following what had been intended to be the final hearing in relation to Je. He explained why finality had not been achieved. For present purposes there are two matters to be noted.
  2. First, Judge Cleary recorded his inability to get to the bottom of what had happened in relation to the various assessments of Aunt A. In his judgment he referred in scathing terms to the fact that the case worker “had a woefully inadequate grasp of what was going on, a wholesale lack of relevant papers and no, or no clear knowledge of the passage of information to and from Belgium”. He commented, “It was, as the caseworker conceded, a fiasco.” He directed a further assessment of Aunt A by an independent social worker who I shall refer to as ISW.
  3. Secondly, Judge Cleary ruled out both parents as carers for Je:

    “I have quite enough information in respect of the parents, and enough evidence to require me to conclude that neither [the father] nor [the mother] is in a position to care for Je, and I therefore conclude that a North Yorkshire declaration is appropriate.”

  4. The legal significance of this is that North Yorkshire was a 2008 High Court authority thought by some (me) to have been a pragmatic solution to a tough situation and being hard to justify given what the Court of Appeal said in Re G that it is no longer a linear ruling out process. North Yorkshire is exactly that – the Court ruling out the parents and then having a later hearing to consider an alternative carer/ adoption. I thought North Yorkshire was dead in the water after Re B, R B-S and particularly Re G.

The President gave it an unexpected kiss of life in Re R, but in that case the Court had not been asked to determine that issue and it had not arisen, so his remarks were at best obiter.  Here however, they are ratio and are binding.  It is official, North Yorkshire declarations are compatible with adoption.  (I can’t see how, but I don’t make the rules, I just write about them)

That is a reference to the decision of my Lady, then Black J, in North Yorkshire County Council v B [2008] 1 FLR 1645. That case is still good law: see Re R (A Child) [2014] EWCA Civ 1625. As I said (para 67):

“Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out.”

So in principle Judge Cleary was entitled to proceed as he did and there has been, so far as we are aware, no challenge by either parent to his decision.

 

Flowing from that, just days after the Court had ruled both parents out as carers for JE but embarked upon an assessment of the aunt, by happenstance, the leave to oppose adoption hearing took place, before a different Judge, Judge Watson.

At that time, the ISW had not reported on the aunt as a potential carer of JE (and she was also putting herself forward as a carer for B and M).  Two days after the leave to oppose hearing, the ISW report DID arrive, ruling the aunt out as a carer.

 

At the time of the leave to oppose hearing then, Judge Watson knew that Judge Cleary had ruled out the parents as carers for JE, but had directed an assessment of the aunt, and the outcome of that assessment was not known.

There’s quite a law anorak debate about whether the findings and decisions of Judge Cleary were binding on Judge Watson, or whether they were a starting point that she was entitled to rely on, but could deviate from if there were reason to do so.

  1. Judge Watson was entitled to take as a starting point, as the factual baseline, the various findings set out by Judge Cleary in his judgments of 12 December 2012 and 31 January 2013 and the fact that on 1 September 2014 Judge Cleary had ruled out the parents as prospective carers for Je: see In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 and In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95. The same approach applies (see Re Z, para 32) whether the matter is before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. So Judge Watson was entitled to rely on Judge Cleary’s decision on 1 September 2014 even though it arose in the context of the proceedings in relation to Je being heard by a different judge whereas the proceedings before Judge Watson related to B and M.
  2. A judge can revisit earlier findings and depart from them if there is good reason to do so. The approach was indicated by Hale J, as she then was, in Re B, page 129:

    “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence … The court will want to know … whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

    In Re Z, I said that I agreed with that, though adding (para 33) that one does not rehear a previously determined issue:

    “unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge.”

  3. It is not clear to me that Judge Watson was ever invited to go behind Judge Cleary’s decision on 1 September 2014. In any event, I cannot see that there were any solid grounds for challenging his decision. Judge Watson, in my judgment, was entitled to feed that decision into her overall appraisal of whether – I am leaving Aunt A on one side – there had been any change in the circumstances of the parents.
  4. What Judge Watson said in her judgment on the point was this:

    “sadly for [the mother], on 1 September of this year she was ruled out as a potential parent and carer for Je.

    That of course is a matter of weeks before this decision that I have to take and it is very difficult for me in those circumstances to satisfy myself that she has made those solid and significant changes an her circumstances which would justify me granting her leave to oppose the adoption.

    …

    His Honour Judge Cleary also ruled [the father] out as a prospective carer for Je. Again I am in considerable difficulty in seeking to accept the submissions made by [him] that he has also made an improvement and a significant change in his circumstance such that would justify the grant of leave to oppose the making of an adoption application because that does not accord with the judgment of HHJ Cleary.

    Three weeks [sic] Judge Cleary was unable to accept that there had been a reversal, what I described as a sea change, in [the father’s] approach to the findings and to his involvement in the findings made by Judge Cleary in relation to the parenting of all of the children, but particularly the older children. I was not the judge who heard the fact-finding hearing and I must accept that if Judge Cleary made those findings and concluded the welfare of the children could not be best served by considering placement at home for the children that, if not appealed, is binding on this court, as it is of course on Judge Cleary when he made the decision in relation to Je, and again reviewed that decision in September and concluded that the changes were not significant and that Je could not be returned to the care of his parents.

    I cannot accept that in the light of the findings of His Honour Judge Cleary as recently as 1 September that there has been this change in circumstances, this improvement in the father’s position that would justify the granting of leave to oppose the adoption.”

  5. It might have been wiser if, instead of using the phrase “binding on this court”, Judge Watson had chosen words that better reflected the legal position, but taking these passages in the round, and reading them in the context of the judgment as a whole, I do not think that Judge Watson either misdirected herself in law or proceeded in a manner that was not open to her.

 

The orders were overturned and sent back for re-hearing, but for all of the legal high-concept and anoraking and argument, it was the Judge’s decision that M should be circumcised before the adoption order was finally made that really won the appeal.

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No broad presumption in favour of a natural parent

Posted on April 27, 2015 by suesspiciousminds

The Court of Appeal in Re E-R (A child) 2015 had to deal with a very emotionally difficult case.  [Don’t ask me why they call the case “Re E-R a child, but then use T as the child’s codename throughout. I have no idea why, it makes no sense] 

 

T was five years and nine months old. She had lived with both parents until she was two and they separated, and from then on with her mother. Her mother sadly was diagnosed with cancer.  The separation from the father had been very acriminious and the father had drifted out of T’s life.

 

The mother had made a will appointing a friend SJH as testamentary guardian, wanting SJH to care for T after her death. She and T moved in with SJH, who provided the mother and T with care.  SJH made an application for a Special Guardianship Order whilst the mother was unwell but still alive.

 

His Honour Judge Vincent at the family court sitting at Truro on the 30th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.

The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.

 

Very sadly, the mother died before knowing the outcome of the appeal and thus without knowing whether her daughter would continue to live with SJH or whether she would be removed and placed with the father.

The Court note at the end, but I think it is very important, that everyone in this case struggled with the law (counsel in the first hearing and the Judge) and that father had not been able to be represented and had to represent himself in the Court of Appeal on extremely tricky points of law. A wholly unacceptable situation.

  1. This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:

    i) The relevant law was not brought to his attention; as a consequence his analysis was conducted on the basis that there was a presumption that T should live with her father. This was wrong in law and as already indicated, upon that basis alone, the appeal must be allowed.

    ii) The judge might nevertheless have been better able to analyse the complicated issues which were thrown up had he had the benefit of something more than the somewhat one dimensional and superficial reports which were available to him.

  2. The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.
  3. The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?
  4. Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives

 

The Court of Appeal did overturn the order and send it back for re-hearing.  That does not automatically mean that the decision is that T will live with SJH, but just that in making the decision it is not a starting point or broad presumption that it would be better for a child to live with a birth parent.  The Court of Appeal were at pains to point out that just as there’s no starting point or broad presumption that natural parent should prevail, nor was there one that the status quo should prevail.

  1. The Law
  2. In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

    30. My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

    “We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”

    Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

    31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

    “I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved”

  3. In her conclusion Baroness Hale said:

    “44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

  4. In Re B (a child) 2009 UKSC 5; [2010] 1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:

    This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”

  5. When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.
  6. I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.
  7. In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor – custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

    I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

  8. In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.
  9. In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

 

I’ll clarify this – this is the law for PRIVATE law proceedings, and in care proceedings, there is clear authority that the best person to bring up a child is the parent.

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided thechild’s moral and physical health are not endangered.”

Lord Templeman in Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139 at 141A.

This has been cited approvingly in dozens of cases and is a fundamental underpinning of public children law.  It at essence means that it is not the job of the Court when considering a Care Order application to think about whether the child might have a happier life, or better standard of living and better opportunities if they lived with foster carers or nice adopters, but to decide whether the parents care of the child was harmful to them in a way that could not continue. It is the bulwark against social engineering.

(Many would argue, and Owen Jones in particular has argued that a large part of the adoption system is social engineering, moving children from poor working-class families to middle-class ones, but if the Court does its job properly this ought not to happen)

There might well be some tricky decisions in future months when the options before the Court are not parent v foster care, but ‘good enough but not great parent’ versus ‘stellar grandparents’ – it must be very hard to resist the tempation to ‘fix’ the children’s lives by leaving them with far more capable grandparents. But that is a tempation that Lord Templeman warned us to avoid.

 

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A heartbreaking case of staggering genius

Posted on April 15, 2015 by suesspiciousminds

 

It isn’t really heartbreaking – when you read about how two people are arguing about how to divide a fortune of £144 million it stirs up the expression ‘my heart bleeds’, but it is a case where Holman J tackles the word ‘genius’   – and his approach interested me.

Gray v Work 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/834.html

 

It so happens that I agree with Holman J that the word is massively overused.  Just as a quick random sampling – 458,000 hits for “wayne rooney genius” and 35 million for ‘george north genius’  – both of whom are exceptionally talented and gifted sportsmen, but they aren’t geniuses  (geni-ii?)

  1. Paragraph 80 of Charman, excerpted in paragraph (vi) above, is one of several authorities that employ the word “genius”. It appears also in Lambert, and very recently in Cooper-Hohn, and in other authorities in which the court has debated whether the person claiming a special contribution possesses the quality of “genius.” I personally find that a difficult, and perhaps unhelpful, word in this context. To my mind, the word “genius” tends to be over-used and is properly reserved for Leonardo Da Vinci, Mozart, Einstein, and others like them. It may lead, as it did in this case, to the rather crude question to (in this case) the husband: “You don’t describe yourself as a genius, do you?” Not surprisingly, the husband, like any person with a modicum of modesty, was rather nonplussed by the question. Oscar Wilde is famously said to have declared that he had nothing to declare but his genius. More modest, even if exceptionally talented, people may be slow to make such a claim.
  2. What I understand is meant by the word “genius” in this context, and what is required for a claim to a special contribution to succeed, is some “exceptional and individual quality which deserves special treatment.” See Charman at paragraph 80. But the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.
  3. It is clear from the above propositions and the outcome in other cases that hard work alone is not enough. Many people work extremely hard at every level of society and employment. Hard work alone lacks the necessary quality of exceptionality. Further, to attach special weight to hard work in employment risks undervaluing in a highly discriminatory way the hard work involved in running a home and rearing children.
  4. It is clear also that a successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time, or benefiting from a period of boom is not enough. It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.

 

[I think personally I would go with Da Vinci, Mozart, Darwin and Einstein, and I don’t tend to use genius for anyone else – I know that my definition is narrow. {I wrestled with including Orwell, but had to finally conclude that this would open the door to too many others. If Sherlock Holmes had been a real person, would he have been a genius? Just short, I think.}  It would be a definition which means that the special contribution ancillary relief test would not be met for anyone, were I deciding it, since those four men are long gone. And actually it conflicts with the second definition in the dictionary

an exceptionally intelligent person or one with exceptional skill in a particular area of activity.  So in the unlikely event that I was sitting on the Court of Appeal, I would overrule my own definition as being wrong…]
The other issue of general application relates to the ever popular (and I use ‘popular’ here to mean ‘hatefully recurring and more difficult to ignore than one would ideally like’ as in “One Direction are a very popular band”) theme of excessively large bundles
  1. The parties have spent approaching £3,000,000 on legal fees and associated expenditure. For that, you get very high quality legal teams, and each of them has been very well represented, but it does not appear to have facilitated a conciliatory outcome to this case.
  2. Further, some of the spending has been, in my view, profligate and unnecessary. Ordinary people litigating in the family courts about very serious issues, such as whether their children should be adopted or returned from care or whether life support of a child should be maintained or ended, do not have the luxury of, nor, frankly, the need for, two shorthand writers in court throughout the hearing, producing overnight transcripts to which negligible reference was later made. It is an extravagance. Whilst it was a privilege to hear from two Texan matrimonial lawyers, I do not think the cost of their travel and attendance was justifiable or necessary.
  3. The bundles were excessive and proved inconvenient for me, for witnesses who struggled with them in the witness box, and at least at one stage for Mr Howard QC. At one point we had the absurdity of going to one bundle for a letter and another bundle for the reply. There was a pre-trial hearing before a circuit judge on 3rd December 2014. He had no other involvement in the case either before or after that day. Amongst many other directions, he did formally give “permission for the trial bundle to be extended to six lever arch files…” I asked Mr Tim Bishop QC, who appeared on behalf of the wife, and who was present on 3rd December 2014, whether the circuit judge had exercised his own independent discretion in agreeing to six bundles, or whether he had been seduced by counsel. Mr Bishop immediately and frankly said that the judge had been seduced by counsel and that it was not an independent assessment by the judge. It was rubber stamped. This is not how the very important Practice Direction 27A is intended to be applied. Further, the cardinal and over arching words of the practice direction are the opening words of paragraph 4.1: “The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing …” However many bundles the court may authorise, there should be no document within them which does not fall within that rubric in paragraph 4.1. I have not kept a tally in the present case, but I am confident that the total number of documents read or referred to is less than half the total of well over two thousand pages assembled in the bundles.
  4. In his judgment in L (a child) [2015] EWFC 15, handed down last week, the President of the Family Division has given due and crystal clear warning that these excesses will no longer be tolerated. What I wish to emphasise is that although that judgment related to care proceedings, every single word of the relevant part of it applies no less, and arguably more, to financial remedy proceedings.

I did rather like the language of whether in agreeing that there should be six bundles in the case, the Judge had been ‘seduced by counsel’.

I’m not sure that seduction efforts that involve allowing a Judge to permit additional lever arch files into evidence is going to be a subject matter that would particularly tempt Hollywood into incorporating it into Rom-coms, and probably it will be a while before my huge rollercoaster of a script “Pride and Pagination” gets picked up by Hugh Grant, but a man can dream.    [My action-ancillary-adventure movie starring Matt Damon  “The Besterman Cushion” is in post-production, so there’s that]

[I would have to say that having a letter in one bundle and the reply to that letter in a different one is fairly illustrative of things having gotten completely out of hand]

It is different counsel who later on posits that in the list of assets that the wife has suggested should be transferred to her contains some ‘duffs’ as well as ‘plums’  – I don’t think I am anywhere near well-bred enough to ever get away with using it; but I still liked it.

  1. The wife and her legal team have attempted to avoid the dispute as to discounts by proposing what they call Wells v Wells sharing. They have identified about 24 assets in the asset schedule which they suggest should be transferred in whole or in part to the wife, inclusive of any inherent discount. Whilst I welcome and appreciate their desire to minimise costs and potential further litigation, I am unable to accept that proposal. The present hearing has been largely occupied with the evidence and argument as to the two issues of the agreement and of special contribution. There simply has not been time, in the time estimated and allotted for this hearing, to hear either evidence or argument as to discounts.
  2. Mr Bishop says that their proposed Wells v Wells sharing list contains “duffs” as well as “plums”. But that is mere assertion. I am simply unable to engage judicially in consideration of discounts, save on an item by item basis, upon which the court would need to hear both evidence and argument.

The case is well worth a read if you do ancillary relief, or enjoy watching very well paid lawyers squabble about millionaire’s money. The husband clearly had cojones that would have been setting off the security metal detector given that they began with an offer that was 2% to the wife, 98% to the husband and over the course of the hearing shifted that.

Very sensible, to shift.

But probably not from 2% to 0%.

The wife ended up with 50%  – which one might have thought was a result that one could have guessed at without spending three million on lawyers, but I suppose if you thought you could get away with 98% of the assets it was worth a punt.

 

Yet another of those big money cases that ate up precious High Court time, for a very small fee. I do wonder if the time has come for the Court to get a percentage of the assets in dispute where one is dealing with sums over twenty five million. The ancillary relief Court fee of £255 is not touching the sides of what these cases are actually costing the taxpayer.

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Crime and care

Posted on April 10, 2015 by suesspiciousminds

 

This was an appeal decision, which really arose from the Court in care proceedings making findings that sexual abuse allegations against a father were proven (and then making Care Orders and Placement Orders) and the criminal trial then going down the route that the allegations were concocted and the jury unanimously acquitting the father.

The father applied for a re-hearing of the care proceedings.  As part of that re-hearing, it was vital to see exactly what the Judge in the criminal proceedings had said as part of his summing up to the jury before their acquittal. That information was very slow in coming forward and the Judge in the care proceedings refused father’s application for an adjournment to get that evidence.

 

Thus resulting in the summary of this case being :-

Appeal against refusal of an application for an adjournment of an application made by the appellant father for a re-hearing of care proceedings. Appeal dismissed.   {via Family Lore}

John Bolch at Family Lore managed to compress the nub of the appeal into a very short space, with remarkable economy.

Re U (Children) 2015  http://www.bailii.org/ew/cases/EWCA/Civ/2015/334.html

 

[I have to say that I don’t entirely agree with the Court of Appeal on this one. I’m not saying that I would necessarily have overturned the original findings, but I would have wanted to see exactly what the Judge in the criminal Court directed the jury, and probably the transcripts of evidence in the criminal case before deciding whether this was important fresh evidence]

In the care proceedings, there had been a number of allegations including of physical abuse, but the allegation in question was of a sexual nature.  The parents case was that these allegations were false and had been put into the child’s mind by a community worker named Raj.

 

  1. The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
  2. Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
  3. The focus in both the care proceedings (in relation to ZU’s allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
  4. In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj’s evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
  1. Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as “utterly unconvincing witness” clearly “partial and biased”. He did not accept her evidence and believed it likely that she had been “put up to it by the father or someone on the father’s behalf”.
  2. Accordingly the judge, having analysed various inconsistencies that he had identified in the girls’ evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.

The Judge in the care proceedings thus went on to make findings of fact that ZU had been sexually abused by the father.

There were, as I said earlier, other issues that went to threshold, including a finding that the children had been hit

 

The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:

“Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children.”

The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father’s instruction. The judge made the inevitable finding that the mother had failed to protect the children.

 

But, staying with ZU’s allegations of sexual abuse, the Judge in the care proceedings had concluded that the parents explanation that Raj had concocted these allegations and put them in ZU’s mind was not correct.

 

By the time the criminal proceedings took place, two months later, the mother, father, ZU and Raj all gave evidence and the father was acquitted of the sexual abuse allegations.

He then made an application for a re-hearing of the care proceedings, on the basis of what had happened during the criminal proceedings.

“5. It is understood that at the criminal trial of the father before HHJ Saggerson sitting with the jury ZU admitted under cross examination that she had only made allegations of sexual abuse against her father after she had met Raj and commenced a relationship with him. It is understood that she accepted her motivation had been to take revenge on her father as she desired that her parents separate. HHJ Saggerson directed the jury on the basis that there were many inconsistencies in the evidence given by ZU and that further the evidence of Raj could not be relied upon. The jury returned a unanimous verdict of “not guilty” and the father was acquitted.”

Remember that the criminal court is applying a higher standard of proof   [What most people still think of as ‘beyond reasonable doubt’ but is actually now to convict the juror must be persuaded ‘so that they are sure’ in percentage terms probably high 80s, if not 90s]  rather than the civil standard of proof in care proceedings [more likely than not – i.e 50.01% or more]

 

But this seemed to be more than a Judge just indicating that it was impossible to be sure, and verging towards an indication that the evidence of Raj and ZU was such that it would be unsafe to rely on it due to the flaws in it.

When considering the father’s application for re-hearing then, the substance of what the criminal Judge had said was vital.

  1. The local authority did not accept the accuracy of this summary in the absence of a transcript of the evidence or summing up. Accordingly when the matter came back before HHJ Wilding on the 27 October 2014, the application was adjourned by consent until 12 December 2014 to allow a transcript to be obtained. The order made by the judge on the 27 October 2014 contained a number of recitals including:

    And the court expresses the view that a transcript of the summing up by HHJ Saggerson in the trial of R v KU would assist the court in determining the issues.

  2. The matter came on before the judge on 12 December 2014, when unhappily, but perhaps predictably, the transcript remained unavailable notwithstanding that the requisite application form had been sent to the Crown Court by the proposed appellant’s solicitors some weeks previously.

 

On 12th December then, the father asked for an adjourment to get this evidence. The Court refused the adjournment and went on to consider the father’s application for a re-hearing in the absence of that evidence.

  1. The inevitable application for a further adjournment was made on behalf of the appellant in order for the transcript to be obtained. The application was opposed by both the local authority and the guardian, although supported by the mother. The judge refused the application for a further adjournment and set out his reasons in an extempore judgment. He then went on to hear the substantive application for a rehearing, which he refused for reasons to be given at a later date.

    The Refusal of the Adjournment

  2. The judge, as he identified in his extempore judgement, was faced with balancing two rival issues saying:

    “[8] Clearly there are a number of competing issues here. There is the need to ensure justice to the father and the mother and the children. There is a need to have finality in respect of the proceedings generally, but in relation to children particularly and to avoid delay. It is not I confess, an easy decision to make weighing up each of those factors.”

  3. The judge then weighed up, on the one hand the detriment to the welfare of the children in the event of further delay and on the other, the prejudice to the father if his ability to make an effective application for a rehearing was undermined by the denial of a further adjournment.

 

Of course, in a practical sense, the delay for the children still occurred, since the decision was appealed, and the appeal Court didn’t hear the case until mid March. It might have been a far less disruptive delay to have waited until mid January to actually get the transcript of the Judge’s summing up…

 

The Court of Appeal accepted that any decision made by the Judge hearing that application would be imperfect.

  1. When the judge heard the application for an adjournment on 12 December 2014, it was already 19 months since proceedings had been issued and over 5 months since the placement orders had been made. Had the judge allowed the adjournment, it was anticipated that it would be something in the region of 5 months from the date of the making of the application, until the next case management hearing, (just a little under the statutory time limit for the whole of a care case from beginning to end). It was accepted by Counsel that if he were to succeed in his ultimate goal to set aside the findings of sexual abuse, there would thereafter be further substantial delay for these children; the summing up when obtained would not be evidence in itself but would provide a pointer as to which, if any, transcripts of evidence from the criminal proceedings should be obtained for consideration by the court in determining the father’s application.
  2. In the event that the judge, having examined the transcripts of evidence ultimately allowed the case to be reopened, further delay would ensue as many months would inevitably pass before a retrial of the sexual abuse allegations could be accommodated. The judge was only too well aware that the two younger children, settled in their adoptive placement, were developing the attachments vital to their future well being, and that their prospective adoptive parents would be living with the near intolerable strain brought about by the protracted uncertainty as to the children’s future; strain which would necessarily impact on the family environment to the detriment of the children.
  3. The older children too were, and would be, further affected by delay. They were in foster care, still connected to their family and living with the uncertainty of whether the case had come to an end or whether, in AU’s case, she might have to give evidence again.
  4. If delay sat heavily on one side of the scales, on the other side was the prejudice to the father if he were unable to draw upon what he asserted to be the evidence in the criminal proceedings; evidence which it was submitted on his behalf, had led to an acquittal and which notwithstanding the differing standard of proof applicable in the two jurisdictions, significantly undermined the findings made in the care proceedings. The care judge recognised that there was little the father could do to further his application without more than the assertions he was putting forward as to the content of the summing up.
  5. The judge frankly recognised the difficulties inherent in whichever decision he reached, but a decision had to be made. This was a classic example of a case where any decision made by the judge would be “imperfect”.

 

With that in mind, the Court of Appeal considered that there had been a proper balancing exercise about the pros and cons of the father’s application for an adjournment and the Judge was right to refuse it

  1. In my judgment the judge was entitled to conclude that the balance lay in favour of refusing the application for a further adjournment. He properly identified the competing arguments and weighed each one up briefly but with care. He clearly had at the forefront of his mind the importance of the application and the potential prejudice to the father’s case which would result from a refusal. The judge had had the advantage of conducting a lengthy trial and of making his own assessment of the parties prior to making the findings of fact to the civil standard of proof. He appropriately considered the father’s case at its highest and properly bore in mind the other extensive findings, which were unaffected by the criminal trial and which were in themselves serious, before concluding that the further substantial delay which would be occasioned by a further adjournment could not be countenanced in the interests of the children.
  2. In my judgment the judge conducted the appropriate balancing exercise and reached a conclusion which cannot be categorised as wrong and accordingly I would dismiss Grounds 1–3 of the Grounds of Appeal which relate to the refusal to adjourn.

 

[It is really hard for me to put out of my mind that the reason father’s case was prejudiced here was not due to any inaction on his part or those acting for him, but on the delays in the Court process of obtaining a transcript that was so vitally important. The Court of Appeal have remarked many times on how slow the transcription of judgments for appeals has been and how the system gets bogged down. Here, that transcript was not just an informative document but a piece of evidence that the father was deprived of making use of, because the system is so unfit for purpose. That leaves a very bad taste in my mouth]

 

Having lost the argument that the application for an adjournment should have been granted rather than refused, the father was inevitably going to lose the second part of his appeal that the re-hearing should have been ordered.

  1. Application for a rehearing
  2. By Ground 5 the father seeks to appeal the judge’s dismissal of the substantive application for a rehearing pursuant to s31F(6) Matrimonial and Family Proceedings Act 1984.
  3. In considering this application the judge made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95, an approach which was not resisted by any of the parties. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others and adopted by the President in Re ZZ at [12] as:

    …Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist

  4. In considering the first stage the President said [33]

    ……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.

  5. The judge explained that there was no evidence to support the father’s submission other than his own assertions about what had happened at the trial The judge’s decision to refuse to permit a reconsideration of the findings of sexual abuse did not rely exclusively on the absence of the availability of the summary of evidence that the father had hoped would be found within the summing up. The judge concluded there were no grounds, let alone solid grounds, for revisiting his findings. The judge pointed to the fact that he had seen and heard all the witnesses and that he was alert to the father’s case that ZU had ulterior motives for making the allegations. In relation to the criminal trial, the judge observed that even had the judge conducting the criminal trial said that which the father alleged he had in the summing up, care proceedings are conducted to a different standard of proof. The judge alluded also to the likelihood there was significantly more surrounding evidence available to the him as the judge in the care proceedings than that put before the jury in the criminal proceedings; an observation accepted on behalf of the father.
  6. Not only did the judge unequivocally conclude that the first limb of the test was not satisfied, but he referred to the other serious findings of physical and emotional abuse and domestic violence saying There is no suggestion… that those findings would not stand against the father, and indeed the mother. Finally the judge concluded that even had the father passed the first test in Re ZZ, there would be no reason for further investigation as there was more than adequate material which is unchallenged, to found the making of the orders that have been made in respect of each of the children.
  7. I agree with the analysis of the judge, who was well aware that his decision meant that the father would be unable to challenge the findings of sexual abuse. Given the totality of the unimpeachable findings and the need for finality in the interest of these four damaged children, I cannot see upon what basis the court could conclude that the earlier findings need revisiting in order for a court to reach the right decision in the interests of the children.
  8. I would accordingly dismiss the father’s appeal in relation to the substantive application for a rehearing of the finding of fact hearing.

 

I personally think that if the father had been able to obtain a transcript from the criminal trial showing that an experienced Judge had seen ZU and Raj crumble under forensic examination and shown themselves to be unreliable witnesses who had concocted this story and more importantly that ZU had accepted in her evidence that she HAD fabricated the allegations, that would have been enough to meet the test.

Of course, it might be that the transcript would, if obtained, fall substantially short of that. Perhaps father was over-stating it. Perhaps he was completely right. We will never know. It doesn’t seem that it even materialised for the Court of Appeal hearing.

Have the Courts here really upheld the father’s article 6 right to fair trial? Given that father was deprived of the key piece of evidence not because he was dilatory or hapless, but because the Court system for getting a vital transcript was so hopeless.

Well, they have upheld his Article 6 rights , because the Court of Appeal say so. But I haven’t read many Court of Appeal decisions that made me feel so squirmy and uncomfortable  (Cheshire West in Court of Appeal  was the last one I felt like this about)

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section 20 and Brussels II

Posted on April 7, 2015 by suesspiciousminds

 

If section 20 voluntary accommodation has been the Wild West for most of the 25 year duration of the Children Act 1989, then in the last few years the Courts have been polishing up the sheriff badges and bringing law and order to the Wild West.  As a result, the territory that remains wild and lawless is shrinking, and may in a few years be limited to a bare patch of land with tumbleweed and old-timers chewing tobacco and relaying curious yarns of how things used to be, way back when.

[If you want to sing that every cowboy has a sad sad song, just as every rose has its thorns, now would be the time]

 

We have had:-

 

Re CA (A baby) 2012  http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

  1. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.
  2. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights.
  3. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.
  4. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers

Re C (a child) 2014  – dealing with parents who were deaf and had cognitive issues  http://www.familylawweek.co.uk/site.aspx?i=ed128597

there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the Children Act. To rely upon the mother who, even if she did not have the unfortunate cognitive disability she has, to interpret complicated matters such as section 20 of the Children Act and the authority being given to the local authority to the father was to put an undue burden on her. Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that crucial meeting

Re P (A child: Use of section 20) 2014 http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.

Northamptonshire and DS 2014 http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html   :- The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

 

We can add to that now, this important passage from Hayden J in  RE SR (A child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/742.html

I must emphasise that where there is, as here, obvious potential for a jurisdictional issue, protracted periods under section 20 voluntary arrangements are highly undesirable. For my part, I simply cannot see how it was ever thought that such an arrangement was appropriate in this case. It has led to avoidable delay and has proved to be inimical to SR’s welfare. Moreover, the objective within care proceedings must always be to consider any conflict of jurisdiction at the earliest stages and, if the matter needs to be tried, it should be so expeditiously.

 

In this case, there had been a very difficult argument about whether the child was habitually resident in England or Morocco. As you can see, the view of Hayden J was that section 20 was inappropriate in a case where there was a real issue about whether the English legal system had jurisdiction.

If you do Brussels II work, there is some very helpful advice about the Moroccan legal system as it relates to children, that would save hours of painful research.

I was persuaded, on the 12th January 2015, to permit instruction of an expert in Islamic and Middle Eastern Law to address key legal and cultural features of the Moroccan care system. Mr Andrew Allen was instructed, an expert in Islamic and Middle Eastern law, a practising barrister, formerly a Deputy Director of the Centre of Islamic and Middle Eastern Law at the University of |London. The child’s solicitor took the lead in Mr Allen’s instruction. Nine questions were identified which were answered succinctly in summary following, a more detailed exegesis of the law. They were ultimately non contentious. To complete my summary of the competing jurisdictional frameworks I set them out in full:

1. What are the principles that determine an application under Moroccan law for the following orders in relation to a child:

(i) Parental responsibility or rights;

(ii) Custody; and

(iii) Access.

Both parents have parental responsibility. No application is required.

The basic principle applied in custody and access applications is the interests of the child.

2. Does Moroccan law provide as a matter of right or custom for custody changing from one parent to another or to another person during the course of a child’s childhood?

There is no shift from mother to father at a certain age, as is the case in some Muslim countries (unless the mother re-marries)Article 171 of the Mudawana provides that priority in terms of child custody goes first to the mother, then the father, then the maternal grandmother, unless a judge determines otherwise “in view of what would serve the interests of the child”. Applications can be made during a child’s minority and custody can shift. Article 170 states that “The right of custody shall be restored to the person entitled to it when the grounds for its withdrawal no longer exist. The court may reconsider custody when it is in the interests of the child.” Once a child is 15, the child may chose which parent to live with under Article 166.

3. Is there any form of public funding or legal aid available for making any application for orders identified in (1) above?

Public funding is theoretically available. I would tentatively suggest that the practicalities of finding a sufficiently informed lawyer to take on a case for a foreigner, under the Moroccan legal aid system are probably insurmountable.

4. Do the Moroccan courts have experience of recognising and enforcing orders between the UK and Morocco under the 1996 Hague Convention?

The Mudawana is drafted with express reference to Morocco’s international treaty obligations. I am unaware of any Moroccan case applying the 1996 Hague Convention in relation to the UK but the convention does apply as between Morocco and the UK. The existence of the Convention is not known by all Moroccan family judges. Its application is not uniform.

5. How long would it take for a Moroccan court to recognise and enforce an order made in England and Wales?

A Moroccan court would not simply ‘recognise and enforce’ a UK court order. It would give it due weight (in particular if the order is provided in Arabic translation). If Morocco became the habitual residence of SR, then the Moroccan Courts would have jurisdiction and will apply Moroccan law, taking into account UK law (or a UK court order) if appropriate. I do not have knowledge of how long any Moroccan family court process would typically take.

6. Can proceedings be initiated, and if they can which body would initiate them, in respect of a child who is suffering or may suffer significant harm in Morocco?

There is a child protection system in Morocco and the government of Morocco operates a child protection policy. However most child custody issues are sorted out within the family. There have been criticisms of the Moroccan child protection system as it has been applied to returned asylum seekers from mainland Europe (specifically Spain).[1] Under Article 177, the Office of the Public Prosecutor (which despite its name is a part of the judiciary and deals with civil, family and criminal matters) would initiate any court action necessary. Article 172 of the Mudawana states that “The court may resort to the assistance of a social worker to prepare a report on the custodian’s home and the extent to which it meets the material and moral needs of the child.”

7. In what circumstances would the proceedings contemplated in (6) be initiated?

In any of the situations covered by Article 54 of the Mudawana (as set out above).

8. Prior to the mother’s removal of SR from the jurisdiction of Morocco what rights did the father have under Moroccan law in relation to SR?

The father had obligations towards SR as a parent rather than rights. Custody would have gone to the mother under Article 171 of the Mudawana. The father would have had the right to contact under Article 180 and the right referred to in the question below.

9. Did the father have any right, without applying to court, to object to the removal of SR from Morocco by the mother?

Article 179 of the Mudawana gives the court the ability to impose restrictions. In the absence of a court order, the commentary that I have read appears consistently to state that a father must approve a child’s departure from Morocco. I have been unable to locate a specific statute or other piece of legislation confirming this point.

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Your laws do not apply to me

Posted on April 2, 2015 by suesspiciousminds

I have written before about the Freeman of the Land phenomenon, last time using a Tom Jones lyric, this time it is Billy Bragg.

Now you found the secret code I use

It doesn’t tend to work, when you try to use legal gibberish to persuade a Court that they have no power to deal with your case or make decisions.

Her Honour Judge Lynch dealt with this sort of thing very well in Re A Child 2015   (none of this is binding precedent but it is illuminating nonetheless)

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B34.html

 

The backdrop to this was that very serious findings of sexual assault against the children were made against the step-father, and mother was found to have failed to protect. Criminal charges for these matters are pending against the step-father.

The mother and step-father in this case refused to participate in a social work assessment. An independent social work asssessment was arranged and they refused to participate in that too. They also made various applications in the High Court about the Judge.

Sadly, given how things turned out as a result of this, the mother had started off the proceedings in a much better way:-

At the very beginning of these proceedings the mother filed a statement acknowledging she could not put her head in the sand and needed to engage with the court process. She said that she realised she could not remain in a relationship with her husband due to the findings made against him and she said she was prepared to separate from him and put her daughter’s needs above her own. She said her husband accepted that and indeed he confirmed that in his own first statement.

That would have made her prospects of success at final hearing much better if she could have seen that through.

 

However, by final hearing, they were refusing to accept that the Court had any jurisdiction over them and the child and – this is a new one on me – they put their Child in Trust. They also refused to name the child. (presumably on the basis that if the child had no name then she did not exist as a legal entity. Wrong)

 

  1. Turning to the parents case, I should say at the outset it is very clear to me from the documentation they have filed that they do not accept the authority of this court to make decisions regarding their daughter. The father’s first statement from last July, prepared when he was represented by solicitors, exhibit a document setting out his principles and beliefs, relying on for example ‘Canons from the Canonum de Ius Positivum’. In the final documentation filed by the parents on 23 February they have provided a number of documents written in a quasi-legal fashion and which are not always easy to follow. It is maybe simplest to give a sense of this by quoting from the front page these words : “This skeleton argument is valid assertion of divine, inalienable and natural rights, and all right here asserted and reserved are subject to accepted law through justice as preserved by the Holy Bible, Universal Declaration of Human Rights, European Convention on Human Rights, Human Rights Act 1988, Bill of Rights, Lex Mercatoria, Treaty of International Law, Apostolic Letters issued motu proprio by the Pontiff Francis II”. I confess I have found it hard to make sense of their view of authority, their philosophical stance.
  2. The parents have also, as I understand their documentation, placed their child within family trust – as they put it, “we have settled her entire Legal Estate into a Private Trust”. As I understand it they take the view that disclosing information pertaining to the existence of the child would be a breach of that private trust, which to them includes the registration of their child’s birth.
  3. I am not going to address these issues in any detail but I am clear that this court operates within the legal structure of this country, is a lawful body, and has power to make decisions regarding this child. I do not accept that purporting to place her within a family trust precludes this court from making orders in respect of her.

 

The mother concludes in her final document : “Failure of the judge to consider that the Applicant has proven NO valid cause of action against 1st Respondent and the Applicant holds NO LEGAL TITLE and that 1st Respondent gives NO CONSENT to adoption will result in a clear breach of COMMON LAW, CONVENTION RIGHTS, FRAUD ACT, COURT RULES and all necessary laws that prohibit forced adoption and the judge will unfortunately be held personally liable for abuse of public office and the said breaches of any court order authorizing the abduction of 1st Respondent progeny.” [E183] She therefore requires that the child should be immediately returned to the care of both parents or alternatively the case should be transferred to a High Court judge to determine the case.

The Canons stuff is very peculiar if you look it up. http://one-heaven.org/canons/positive_law/    This is not some cobbled together “Property is theft and down with The Man” nonsense – this is something that somebody has put a LOT of effort into.  It might very well represent a different and better version of law than that used by sovereign states – I haven’t time to do the analysis.

But it is no more binding law than it would be binding for me to write down on a piece of paper  “George Osborne must pay Suesspicious Minds ten million pounds and Suesspicious Minds must be allowed to be in the next series of Game of Thrones and he must be allowed to be tougher than Bronn,  Ned Stark, the Hound and Oberyn Martell put together” and expect a Court to enforce it.

 

The parents declined to give evidence during the hearing. The local authority wished to cross-examine them and invited me to compel the parents to give evidence. I did so direct, warning them of the consequences, but each of the parents refused to give evidence. I have therefore had to look at their written evidence in the light of that refusal.

 

The judgment is very thoughtful, very careful and very fair. Sadly for this mother, her belief that this mumbo-jumbo would save her prevented her from the reality of her situation, that what she had said at the outset would probably have resulted in the child being with her, if she had stuck to it.

This mumbo-jumbo is dangerous.

You can rail against the law, argue that the law is unfair, campaign to change the law, try to change the law via appeals or lobbying your MP, but you can’t just put your fingers in your ears and say “This law doesn’t apply to me, la la la”

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Children travelling to join ISIS

Posted on April 1, 2015 by suesspiciousminds

The Tower Hamlets case attracted quite a bit of media attention, and the judgment is now out. It contains quite a bit of practical guidance for all agencies where there is a concern that a child is going to be sent or going under their own volition to a country such as Syria with an intention that they join a terrorist organisation such as ISIS.

Tower Hamlets v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/869.html

The case was heard, alongside another one mentioned in paragraph 6, by Mr Justice Hayden.

The Judge recognised that the seizure of the children’s passports did not require any evolution or extension of the law, but could be done under existing provisions, but did set out some practical recommendations to be followed.

 

  1. This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
  2. Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
  3. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.

 

The Judge went on to explain that by candour, he did not just mean honesty and that this was a given, but that the evidence presented to the Court for such an application must be the fullest possible, and that even evidence that would seem to be harmful or hinder the application must be shared with the Court.

  1. Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
  2. This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
  3. Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.

There were a couple of points in the Tower Hamlets case that prompted that – the first being that the orders made necessarily required the police to take a number of actions – the Court had understood that the police were aware and supportive, only to learn at a later stage that the police were unhappy about some of the things they had been asked to do.

This was very serious. Counsel for the Local Authority had specifically addressed the Court on this, and his instructions had been plain that the police supported the Local Authority applications and said so unequivocally to the Court twice. [I will make it really plain that the Judge was satisfied that Counsel had been sold a pup, rather than was intentionally misleading the Court]

 

  1. I had been told by Mr Barnes, counsel who appears on behalf of Tower Hamlets, at the first hearing, on 20 March, when the Local Authority appeared alone, that the police supported the Local Authority’s actions. In fact, I twice asked whether that was the case, and twice Mr Barnes reassured me, unequivocally, that it was. I have no doubt at all that those were his instructions.

Hoerver, after the orders were made, it had become obvious that the police had not been as involved in the process as the Court had been led to understand. To the point that the police had been liaising with the High Court tipstaff about wanting to see if the passports could be handed over voluntarily by the families, and the Judge suspended his orders.

 

  1. However, on Saturday afternoon, I received a telephone call from the High Court Tipstaff to inform me that the police considered that they had not had proper chance to evaluate the risk identified in the Local Authority’s application. And insofar as they had, they considered that enforcement of the orders might not be required.
  2. In essence, I was told, they wished to see if it might be possible to secure the surrender of the passports, as contemplated by the orders, by cooperation with the families.
  3. In view of the fact that this information, given to the High Court Tipstaff, came from a team specialist in counter terrorism, and I have been told authorised at very senior level, I ordered the immediate suspension of my earlier order.

 

That is obviously extremely serious, and the Judge rightly explored it further on the return date.

  1. However, during the course of that hearing, Mr Barnes confirmed that a misleading impression had indeed been given by the Local Authority to the court on 20 March.
  2. Whilst it is correct to say that the police had been informed of the applications, as I was told, investigation of how and when they were told, undertaken at my insistence, revealed that they had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response.
  3. I pause to say that by 3.30 that afternoon the Local Authority were already before me.
  4. I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.

Very serious indeed.

 

The second was that there had been an issue over whether one of the children’s passports was (a) missing and (b) whether it was expired in any event. This was obviously a very critical point, given that what was being sought was orders to prevent the children leaving the country. The Court had been given information about this, in good faith, that later turned out not to be accurate. (It is all set out at the end of the judgment if you want to know more)

 

I should like to take this opportunity to distil a number of core principles.

(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;

(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;

(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;

(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;

(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be ‘hard’ evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;

(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;

(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the ‘jigsaw effect’. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;

(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with whom they interact more generally;

(ix) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. An ongoing dialogue in which each party respects, and I make no apology for repeating the word respect, the contribution of the other, is most likely to achieve good and informed decision making.

 

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Gilded cage – junior edition

Posted on April 1, 2015 by suesspiciousminds

 

Those of you who follow deprivation of liberty cases will be aware that the landscape is markedly different after the Supreme Court in Cheshire West.  Just how different remains to be seen, as individual cases come before the Courts and are tackled.

 

Keehan J was faced with a difficult concrete example of the uncertainty following Cheshire West in

 

Re D (A Child :Deprivation of liberty) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/922.html

 

This case involved a boy, not quite sixteen, with considerable difficulties.

D was born on 23 April 1999 and is 15 years of age. He was diagnosed with Attention Deficit Hyperactivity Disorder at the age of 4, with Asperger’s Syndrome at the age of 7 and with Tourette’s syndrome at the age of 8.

 

He had been admitted to hospital for psychiatric treatment as a result and is just about to be discharged into a residential care setting. He had been on a locked psychiatric ward for 15 months. This is obviously a very high-end example.

 

In this case, as a result of the Cheshire West decision, there was considerable dispute about whether D was being deprived of his liberty and whether his parents consent to this was sufficient to allow this or whether a DoLs authorisation was required.

The hospital trust considered that DoLS authorisation was required and that to conclude that D’s parents had the right to consent to D being deprived of his liberty was too broad a view of PR.

The Local Authority considered that D’s parents were consenting, and thus this was not a deprivation of liberty in the DoLS sense.

  1. The Applicant Trust submits that the circumstances in which D lives at Hospital B satisfy the first limb of the Cheshire West test namely:

    “the objective component of the confinement in a particular restricted place for a not negligible length of time.”

  2. Further the Trust submits that D’s parents cannot consent to his placement at Hospital B because such a decision, to consent to what would otherwise amount to a deprivation of liberty, falls outside the ‘zone of parental responsibility’.
  3. Accordingly, the Trust submits the appropriate course is to seek the court’s approval of D’s placement under the inherent jurisdiction of the High Court.
  4. The local authority adopts a diametrically opposed stance. It submits that the circumstances of D’s placement do not amount to a deprivation of liberty. Further, it submits that the decision of D’s parents to consent to his placement at Hospital B falls within the proper exercise of parental responsibility. Accordingly what might otherwise constitute a deprivation of liberty does not do so because the second and third limbs of the test in Cheshire West are not satisfied namely:

    ” (b) the subjective component of lack of valid consent; and

    (c) the attribution of responsibility to the state”.

This has substantial implications – all disabled children who are receiving care from the State and whose liberty is being restricted (in order to keep them safe) on the Trust’s interpretation of Cheshire West would need to have that deprivation of liberty authorised – even if the parents were consenting. The real bad news there is that for people under 16, the Mental Capacity Act 2005 doesn’t cover them and such deprivation of liberty would have to be authorised under the Children Act 1989.  Which means, to spell it out, placing all of those disabled children in Secure Accommodation.

 

Which also means making Court applications. Which also means the residential homes that are caring for these disabled children needing to go through the registration process to qualify as Secure Units.

 

It is an interpretation of Cheshire West which does make logical sense from the judgment, but which has immensely worrying consequences. Not least that the Secure Accommodation provisions might well not be met for these children and the alternative would be that carers at the residential units would thus have no power to restrict the children’s movements  (for example, not being able to stop them from running into the road)

 

[I note that Keehan J in this case specifically rules that the High Court can authorise deprivation of liberty for children under the inherent jurisdiction. I’m really rather dubious about that. I know the inherent jurisdiction is a magic bullet for every situation with almost limitless powers, but to use it to sidestep s25 Secure Accommodation provisions seems to me to have real difficulties with s100 – particularly s100 (4) (a) which bars granting leave to a Local Authority to make an application under the inherent jurisdiction if there is a statutory order the LA could apply for instead, and s100 (4) (b) which says that leave can’t be granted unless the Court is satisfied that significant harm would result to the child otherwise. Would anyone ever appeal it? probably not. ]

 

Any Local Authority lawyer dealing with deprivation of liberty or disabled / disturbed children is really really nervous about how this case is going to turn out. It is a big test case.

Here’s the practical arrangements for D, to consider whether they amount to a deprivation of liberty

Dr K describes D’s life at Hospital B as follows:

“D is residing on X one of the two buildings which make up the adolescent service. Each building is a six-bedded unit. Each young person has their own bedroom, and shares bathroom and living areas with the other patients. There is a school room attached to each building, and all the students receive full time education provided from a special school outreach service.”

“D’s unit is staffed 24 hours a day.

It has a locked front door. D does not leave the ward without a staff member or his family accompanying him. He has been offered opportunity to undertake small tasks by himself, such as emptying the bins, but he says he is scared. Unescorted leave would be considered as part of his treatment package to see how he fares.

D has his own bedroom, which he can access whilst he is on the unit at his leisure. He shares a bathroom and residential areas within the building.

D is on general observations. This means that he is checked on every half an hour or so. However, D seeks out contact with staff more regularly within that time and this means that he is under direct observation on a much more regular basis. I am of the view that he is under constant supervision and control.

His school is integral to the building. He goes off site for all relevant school activities such as, to music sessions on site, and to activities which take place in the community, such as shopping and cafes. He leaves the unit on a daily basis, accompanied by staff.

He is independent in his self-care, and requires minimal support for this. He eats a varied diet independently, and is able to vocalise his preferences.

Attempts to engage him in more serious conversation unnerves him, and he will try to deflect the subject, or directly challenge the person, by telling them that he is not happy. I am of the view that this is reflected in the anxiety he has shown around his discharge. My team will need to manage this carefully within the discharge process.

When out in the community, D is supported one-to-one. He has stated that he would be anxious to go out on his own, and prefers to be accompanied by staff. On occasion he has to be reminded about his behaviour when out, as he might stare and pull faces at strangers. He has been encouraged to do some tasks independently, such as emptying the bins outside, but he has stated that he was too anxious to do it by himself and so he is accompanied when doing this.”

 

That does seem, from Cheshire West, to be deprivation of liberty, and indeed Keehan J found it to be so, and all parties accepted that those circumstances did amount to a deprivation of liberty following Cheshire West.

In the ultimate analysis counsel for the Trust and counsel for the local authority accepted that the circumstances in which D was accommodated amounted to a deprivation of liberty subject to the issue of consent to the placement.

On the facts of this case I am wholly satisfied that D lives in conditions which amount to a deprivation of his liberty. He is under constant supervision and control. The fact that D enjoys residing in the unit in Hospital B, that he is comfortable there and readily seeks out and engages with members of staff are irrelevant factors when considering whether there is a deprivation of liberty. So too are the facts that the arrangements have been made in his welfare best interests and have been, and are, to his benefit. A gilded cage is still a cage.

 

The issue then, was whether the parents could consent to D’s liberty being deprived in this way.

  1. Mr Cowen, on behalf of the local authority sought to contend that:

    i) Cheshire West did not apply to those cases where the young person concerned was under the age of 16 years;

    ii) in such a case the decision in Cheshire West, that the disability or mental disorder of the young person concerned was irrelevant to the question of whether there was a deprivation of liberty, did not apply; and

    iii) the court should prefer and apply the ‘relative normality’ test propounded by the Court of Appeal in P and Q.

  2. I do not accept any of those propositions. The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but ‘the starting point should be the same as that for everyone else’, per Baroness Hale: Cheshire West at paragraph 45.
  3. The majority in Cheshire West decided that what it means to be deprived of liberty is the same for everyone, whether or not they have a physical or mental disability: per Baroness Hale in Cheshire West at paragraph 46.
  4. I accept the essential ratio of Cheshire West does not apply to the circumstances of this case. Nevertheless, in my view, the acid test definitions of a deprivation of liberty apply as much to D as they did to the subjects of the appeals in Cheshire West.
  5. In the premises I do not accept the local authority’s third submission that I should reject the approach of the Supreme Court in Cheshire West and apply the Court of Appeal’s test of ‘relative normality’. I do not understand the logic of the submission that I should hold that the decision of the Supreme Court does not apply to the facts of this case but then resurrect and apply the test propounded by the Court of Appeal which was expressly rejected by the majority of the Supreme Court.
  6. The essential issue in this case is whether D’s parents can, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (ie the 2nd limb in Cheshire West is not satisfied).

 

That’s quite dense, so I’ll walk you through it. The argument was that Cheshire West, being a Mental Capacity Act case, doesn’t strictly apply to minors. The Judge said that this was right, but that the Supreme Court’s acid test as to what sort of restrictions amounted to a deprivation of liberty DID apply also to children, and that the Local Authority’s argument that the restrictions in place for D were the sort of restrictions that a child like D would have (relative normality) was exactly the decision reached by the Court of Appeal in Cheshire West that had been rejected.

When considering whether D’s liberty had been deprived, his physical or mental disabilities were not a relevant factor  – they might well be relevant when later considering whether those restrictions were the right thing for him but not at the stage of considering whether they amounted to a deprivation of liberty.

The argument that children like D need these restrictions, so they aren’t a deprivation of liberty in the way that they would be for a child who didn’t have D’s issues was completely rejected by the High Court.

The sole issue was whether the parents could exercise parental responsibility to CONSENT to those restrictions, thus making the deprivation of liberty one that was effectively consented to, and thus not a breach of Article 5.  IF the parents could consent, then there would not NEED to be a court order or declaration to justify the article 5 breach, since the restrictions would be by consent and the breach would fall away.

 

Mr McKendrick for the Trust set out the arguments for why the Trust considered that the parents could NOT consent.  (I have to confess that in reading this, much as I want the LA to win this argument and so much rides on it, I was thinking that Mr McKendrick’s points were right)

48. Mr McKendrick reminds me that Dr K does not consider D to be Gillick competent to consent to his residence, treatment or care. He referred me to the provision of the new MHA Code of Practice which comes into effect on 1 April 2015. Paragraphs 19.47 – 19.48 provide:

      1. 19.47 An additional and significant factor when considering whether the proposed intervention in relation to a child or young person is a restriction of liberty or amounts to a deprivation of liberty is the role of parental control and supervision. Practitioners will need to determine whether the care regime for, and restrictions placed on, the child or young person accord with the degree of parenting control and supervision that would be expected for a child or young person of that age. For example, whereas it is usual for a child of under 12 years not to be allowed out unaccompanied without their parent’s permission, this would not usually be an acceptable restriction on a 17 year old. Account also needs to be taken of the particular experience of the child or young person. For example, a younger child who has been caring for their parent, including shopping for the household and/or accompanying their parent to medical appointments, might not be used to being prevented from going out unaccompanied.
      1. 19.48 Prior to the Supreme Court’s judgment in Cheshire West, case law had established that persons with parental responsibility cannot authorise a deprivation of liberty. Cheshire West clarified the elements establishing a deprivation of liberty, but did not expressly decide whether a person with parental responsibility could, and if so in what circumstances, consent to restrictions that would, without their consent, amount to a deprivation of liberty. In determining whether a person with parental responsibility can consent to the arrangements which would, without their consent, amount to a deprivation of liberty, practitioners will need to consider and apply developments in case law following Cheshire West. In determining the limits of parental responsibility, decision-makers must carefully consider and balance: (i) the child’s right to liberty under article 5, which should be informed by article 37 of the UNCRC, (ii) the parent’s right to respect for the right to family life under article 8, which includes the concept of parental responsibility for the care and custody of minor children, and (iii) the child’s right to autonomy which is also protected under article 8. Decision makers should seek their own legal advice in respect of cases before them. (Chapter 26 provides guidance on the use of restrictive interventions.)
  2. The Trust submitted that D’s parents cannot consent to a deprivation of his liberty in Hospital B for 11 reasons: i) D has the same Article 5 ECHR rights as an adult and the same definition of deprivation of liberty applies to him as it does to adults;

    ii) D has a mental disorder, he is deprived of his liberty pursuant to Article 5 (1) (e) – see Cheshire at paragraph 6, per Baroness Hale: “Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL”;

    iii) D has been resident on a locked psychiatric ward for fifteen months;

    iv) D can only leave that ward with adult 1:1 supervision;

    v) whilst his parents consented to his placement, such consent much be seen in the context they could not accommodate him at their home;

    vi) he does not lead a life of relative normalcy;

    vii) D is fifteen and shortly will be afforded the protection of the MCA to authorise and review any deprivation of liberty occasioned by being deprived of his liberty at Hospital B (by way of application of s. 4A MCA, given Schedule A1 would not apply to him until he is 18);

    viii) to rely (effectively solely) on parental consent, when D’s parents cannot accommodate and care for him (and have no or other limited options for their son) is an insufficient safeguard to protect D’s Article 5 ECHR rights;

    ix) parental consent over a period of fifteen months, as means of review and safeguard, is not compliant with Article 5 (4);

    x) it is out with the reasonable zone of parental control to authorise the deprivation of liberty for such a prolonged period of time and is inconsistent with a child’s Article 5 ECHR right;

    xi) hospital clinicians remain uneasy about caring for and depriving a child of his liberty, given the length of time and given his age, with only authority provided by way of parental consent.

  3. The Trust concludes its submissions as follows:

    The applicant recognises there may be cases where parents can authorise the deprivation of liberty of a younger child for a shorter period of time, in a hospital setting. The applicants are not certain the concession approved by the court in RK is correct. Indeed it seems clear parents can authorise the first stage of the deprivation of liberty test (i.e. they can deprive, rather than just restrict, the liberty of their children, at home) but that such deprivation is not an Article 5 deprivation of liberty, because it is not attributable to the state. Each case ultimately must be considered on its facts (however unpalatable such an approach may be in respect of public resource considerations).

    Whilst the applicant (in many ways) would gratefully submit that D is not deprived of his liberty, it does not consider it is appropriate for a public body to interpret the law in a manner disadvantageous to the protection of a vulnerable child’s rights. Whilst the applicant would readily adopt a “pragmatic approach” as identified by Gross LK in RK, the applicant submits the preferred conclusion, on the facts of these proceedings, is that D is deprived of his liberty, such deprivation is attributable to the state and his parents cannot provide valid consent.

 

Powerful stuff.

Here comes the decision.

  1. When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
  2. An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.
  3. The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
  4. The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.
  5. I acknowledge that D is not now cared for at home nor ‘in a home setting’. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise?
  6. Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in D’s best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents’ role to make informed decisions about their son’s care and living arrangements?
  7. I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in D’s life or that of his family.
  8. I accept the position might well be very different if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter.
  9. The position could not be more different here. D’s parents have regular phone calls with him. They regularly visit him at the unit. Every weekend D has supported visits to the family home. He greatly enjoys spending time at home with his parents and his younger brother.
  10. In my judgment, on the facts of this case, it would be wholly disproportionate, and fly in the face of common sense, to rule that the decision of the parents to place D at Hospital B was not well within the zone of parental responsibility. Conclusions
  11. I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents’ consent to his placement there.
  12. I am satisfied that, on the particular facts of this case, the consent of D’s parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the ‘zone of parental responsibility’. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement.

 

So whilst for D, a gilded cage is still a cage and one doesn’t take into account his disabilities, whether or not his parents are able to consent to him being in that cage is a decision that CAN take into account his disabilities.

 

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Only just over the threshold

Posted on March 30, 2015 by suesspiciousminds

 

I am tending to think that there’s a repositioning of the threshold criteria going on at the moment. It is a little hard to call, since there’s always been the unspoken background that what constitutes threshold in Liverpool doesn’t necessarily be the same things that consitute threshold in Torquay. But it feels that Re A and Re J are a subtle raising of the bar.

When a bar is raised, it can be tricky to work out exactly where that bar now is. We know that on the facts of Re A, threshold was not made out, but we don’t know if it was miles short or inches short.

Which is why when the President decides a case and says that the threshold criteria was satisfied but only just, it gives us some potentially useful information.

 

Leeds City Council v M and others 2015   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/27.html  is the follow-up to the President’s judgment on Female Genital Mutilation (you may remember, this was the case where that was alleged, and the President had to decide (a) if it had happened (no) (b) whether it could amount to threshold (yes) (c) Would it amount to risk of harm to a male child (no) and (d) if it had happened, would it by itself justify adoption (no)

 

FGM – an important authority

The President’s first judgment pre-dated Re A, which is what makes me think that there’s a shift in thinking. The President here didn’t seem to be struggling with the idea that domestic violence, even if not of the most serious nature could amount to significant harm:-

 

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

The President had said in the first case that adoption, the LA’s plan, was not proportionate, and was seeking an alternative resolution. This case is that resolution.

In giving his final judgment, the President identified four key areas where the LA contended threshold was met:-

1. Mother’s mental health

2. Domestic violence

3. Neglect and physical abuse

4. Lack of cooperation / engagement

Remember, the President concluded that threshold WAS met, but only just.

I am prepared to accept, in the light of my findings, that threshold is established, though not by a very large margin.

So, looking at things in detail

 

1. Mother’s mental health

The psychiatrist, Dr T, made the diagnosis that mother had ‘schizo-affective disorder’, currently in remission, but a lifelong condition vulnerable to relapse caused by stress. Dr T said at least 12 months’ stability in M’s condition was essential if B and G were to be safe in her care and that the necessary period had not yet elapsed. If stability and compliance could not be maintained over that length of time, it would be “very risky” for them to be returned to her care

The Judge accepted Dr T’s evidence and opinion.

 

  • I accept that there has been improvement in M’s mental health. But Dr T’s evidence, which I accept, is clear, compelling and withstood all challenge. It would be irresponsible not to heed and give effect to it. In my judgment, M is not at present able to look after B and G.

[You might look at that and say that this in and of itself is sufficient to cross the threshold – there’s a factual matrix which allows the Court to establish that there is a risk of significant harm – remember that if a factual matrix is established, the risk itself does not have to be more likely than not, it is sufficient to be a risk which cannot sensibly be ignored, as decided by the House of Lords in H and R 1996. ]

 

2. Domestic violence

 

The mother had made allegations of domestic violence against the father, but later retracted them. The Court had heard evidence from mother and father.

My conclusion, having carefully considered the mass of material put to me and the helpfully detailed submissions from counsel, is that there was, as I have said, a greater degree of marital discord than either M or F was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety. It was, as Mr Ekaney submits, at the lower end of the scale. Beyond that it would not be right to go.

 

Remembering that the definition of ‘harm’ was expanded in the Children Act 1989  to include the words in bold  “harm” means ill-treatment or the impairment of health or development [including, for example, impairment suffered from seeing or hearing the ill-treatment of another];     – the words being added in the Adoption and Children Act 2002. So a child being exposed to domestic violence, or at risk of being so exposed can be considered to have suffered harm, or risk of such harm – the issue really being whether it is significant.  The President does not, in his judgment, specify whether his conclusion about domestic violence here amounted to significant harm or the risk thereof.  The best we can do is go back to this bit

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

 

 

and suggest that domestic violence was part of the factual matrix that led the President to conclude that threshold was crossed, though not by a very large margin.

 

3. Neglect and physical abuse

 

This is the section where you get to see the Re A dynamics play out. There are facts established to show what happened to the children

There were two very specific allegations of neglect, amongst more general complaints

in October 2013, G was taken to nursery with spare clothes that were damp, soiled and smelled of urine; much more significant, on 7 November 2013 M, it is said, abandoned G in an alleyway in the city centre, where she was found cold, wet and very distressed. 

[The mother accepted the abandonment. G was born in July 2011, remember]

 

There is no doubt that B and G experienced instability and inconsistency of care, brought about by M’s recurrent mental health difficulties and F’s limited ability to cope with them. There were the specific instances of neglect I have already referred to.  To the extent that there was marital discord between F and M, B and G were exposed to it. I think it is probable that on a few occasions B and G were exposed to mild chastisement – but nothing more serious.

 

But as Re A showed us, establishing a contested (or accepted fact) as being proven is only half of the story. The next stage is for the Local Authority to satisfy the Court that what happened caused the children harm.

In this case, the Guardian considered that the children did not present as having been damaged by their experiences

“Without exception these two children have been described in very positive ways; it is clear they are delightful and endearing children who make a good impression on anyone who meets them. It is also clear that the first impressions of these children did not signify children who had been exposed to neglect, or an abusive home environment. They appeared to have been protected from the worst excesses of the mother’s mental health challenges. They have experienced positive parenting.”

 

The President says

I entirely agree. The guardian’s analysis accords with everything I have read and heard.

What is important, however, is the fact that, as I have already found, none of this seems to have had any significant or prolonged impact on either B or G – so nothing they have been exposed to can have been that serious.

 

The President doesn’t say so explicitly (which is somewhat vexing for those of us who are trying to decipher the Delphic offerings), but I think that that final remark can be read to mean that he did not accept that the threshold was made out on the basis of the neglect aspects.

Frankly, I think abandoning a 2 1/2 year old child in an alleyway is significant harm, but it appears that I am wrong about that.

 

Firstly, this troubles me because that sort of thing also feeds into risk of future harm, and of course a child isn’t yet showing the ill-effects of future harm. This approach seems to ignore future harm entirely.

The other thing that concerns me about this approach is that I can forsee that we are ending up with a different threshold criteria for a resilient child, who is exposed to poor parenting but has inner qualities that allow them to cope, and a fragile child whose reaction to the same parenting is marked and plain to see.  And it also requires that the child is showing the effects of the harm that they have suffered in a very visible and measurable way – I know that the neuroscience is controversial, but there is at least some evidence to suggest that neglect has much longer repercussions than the immediate visible impact.

 

4. Lack of cooperation / engagement

 

Here the parents made concessions

 

 

  • M admits poor engagement with professionals due to her mental health problems.
  • F accepts that, prior to the children being taken into care, he failed to engage and co-operate with the local authority and that this led to him adopting what was understandably perceived as a controlling attitude towards M. This, I accept, was driven by the two factors to which Mr Ekaney drew attention. The first was F’s perplexity about the family situation, largely caused by his failure to recognise the nature and extent of and inability to understand M’s mental health difficulties. The other was F’s desire to protect his family and his fear, from his perspective well-founded fear, that B and G would be removed from their care. Since B and G were taken into care, F’s attitude has changed. There has been, as Mr Ekaney puts it, a high level of co-operation and engagement with the local authority, coupled with a high level of commitment to B and G. And, as I accept, this is not due to any compulsion; it reflects F’s growing realisation and acceptance of the underlying realities.
  • Given M’s and F’s concessions, which appropriately reflect the reality of what was going on, there is no need for me to make any further findings.

 

[Well, there is a slight need – again, I am assuming that this was not found to have amounted to significant harm or the risk of significant harm, but it is rather difficult to say for certain, because the judgment doesn’t outline it.  To be honest, I do not envy the Local Authority advocate who had to draw up a final settled threshold based on this judgment. I THINK that the totality of the judgment suggests that findings of fact were made across points 1-4, but only those in points 1 and 2 amounted also to findings of significant harm. But I would not race to Paddy Power with bundles* of fivers to back that conclusion. My actual bet would be that over the next year, the number of cases where threshold is agreed rather than fought out will dramatically reduce. And as we can’t have fact finding hearings any more, thresholds will be fought out at final hearings. How’s that going to work out for 26 weeks, I wonder?]

 

 

The President ruled that whilst mother could not care for the children now or within their timescales, the father could and should be given that opportunity, and the children would be placed with him under Supervision Orders.

So there we have it, on these facts, the case crossed the threshold, but not by a very large margin.

 

 

*IF I did happen to be going to the bookies with bundles of fivers, I would ensure that in accordance with Practice Direction 27 there were (a) no more than 350 of them (b) They were A4 sized  and (c) that they were printed only on one side. Which explains why Paddy Power doesn’t want me going in there any more.

 

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