Category Archives: case law

A tottering edifice built on inadequate foundations

Posted on February 17, 2015 by suesspiciousminds

The President’s decision in Re A (a child) 2015 in which the Court were asked to make a Care Order and Placement Order on a child who was not quite a year old, and refused to do so – even more significantly finding that the threshold criteria for making such orders were not made out, and castigating professionals for sloppy thinking and lack of rigour in their analysis of significant harm.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html

 

(It comes pretty close to how I expected the Supreme Court to have dealt with threshold in the Re B case, but in the event, Baroness Hale was the only one who went near that)

 

Skipping ahead to the core analysis and decision on threshold and the applications:-

 

  1. I have gone through the local authority’s various concerns in some detail. As I have explained, many of the local authority’s allegations have been abandoned or cannot, for the reasons I have given, be substantiated. What is left? I can summarise it as follows:

    i) The father is immature and can sometimes act irresponsibly. As the history of his relationships with both the mother and J illustrate all too clearly, he seems to have a tendency to fall very quickly into unsatisfactory and short-lived relationships.

    ii) In some instances, though not to the extent alleged by the local authority, the father has minimised or played down matters which were properly of concern to the local authority. He has not always been open and honest with professionals. He failed to appreciate the significance of his actions in relation to J.

    iii) To an extent the father is lacking in insight regarding A’s needs and minimises some aspects of his character and behaviours which may bear adversely on A.

    iv) On occasions the father drinks to excess. On occasions he has taken cannabis. There have been episodes of domestic discord between the father, his mother and his step-father, involving the police and, on occasions, actual violence.

    As against that, I should record that on matters of fact I found the father to be a truthful and, for the most part, reliable historian.

  2. What does this amount to? Does it suffice to establish a real possibility that A will suffer significant harm? Even if it does, has the local authority established that A’s welfare requires that he be adopted, that “nothing else will do”?
  3. In my judgment, the answer to each of these latter two questions is No. My essential reasoning is two-fold. First, the many flaws in the local authority’s case to which I have already referred go a very long way to weakening its case. Taking account of all the evidence, and surveying the wide canvass, the real picture is very different from that which the local authority would have had me accept. Secondly, and having had the advantage of hearing the father and his mother give evidence, I cannot accept that the father presents the kind of risk to A which gives rise to a real possibility of A suffering significant harm, let alone the degree of risk which would have to be demonstrated to justify a plan for adoption. I say that taking full account of all the father’s faults but also factoring in the positives identified by SW1 and giving appropriate weight to the degree of commitment to A the father has demonstrated in contact.
  4. I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.

 

And later

I am very conscious that in coming to this conclusion I am departing from the views and recommendations not merely of the local authority (that is, of SW1, SW2 and TM) but also of A’s guardian, CG. But I have to have regard to a number of factors to which I have already draw attention:

i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.

ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.

iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.

iv) The local authority failed to link the facts it relied upon with its assertions that A was at risk. Nor did CG.

v) The local authority and CG did not sufficiently reappraise the case once it had become clear that the father was no longer in a relationship with either the mother or J.

For all these reasons I am entitled, in my judgment, to come to a different conclusion. My duty is to come to my own decision having regard to all the evidence, and, for reasons which will by now be apparent, I am driven to conclusions other than those shared by the local authority and CG.

 

 

A lot to cover in this, but let’s start with the Children’s Guardian. This read to me like a Guardian who saw which way the wind was blowing and jumped off “HMS Adoption Full Speed Ahead” and onto the “good ship Naughty Local Authority”   (this is one of my pet hates – by all means criticise a Local Authority and challenge them on poor work, but don’t do it after the event)

We have a Guardian who was saying to the President that she was “appalled” by the social work assessments and evidence, but in her written evidence to the Court was supporting their conclusions and saying there wasn’t a need for any further assessments.

  1. On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step-grandfather. Nothing of this is to be found, however, in her initial case analysis. Having summarised what was reported by the local authority, she turned to the assessment of the father, which she described as “negative” and as highlighting various concerns, which she then enumerated. She said:

    “Taking into consideration all of the information contained within the documentation filed with the Court by the Local Authority I do not consider that any further assessment of either parent will assist in determining the long term plans for A.”

    Having expressed concerns about the local authority’s delay from 17 February 2014 to 16 September 2014 in issuing proceedings, she identified the need for any other potential kinship carers to be identified and assessed and recommended the making of an interim care order.

  2. The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments. The order made following the hearing recorded the guardian only as having “significant concerns regarding the delay” and as wishing matters to be concluded “swiftly”.

 

The Authority is named, but social workers are not. . I know that this vexes people, so given that it was the President who wrote the guidance saying social workers should be named AND that this judgment is a mullering, I’ll allow him to say in his own words why he decided that

 

  1. It will be noticed that I have, quite deliberately, not identified either SW1 or SW2 or TM, though their employer has, equally deliberately, been named. There is, in principle, every reason why public authorities and their employees should be named, not least when there have been failings as serious as those chronicled here. But in the case of local authorities there is a problem which has to be acknowledged.
  2. Ultimate responsibility for such failings often lies much higher up the hierarchy, with those who, if experience is anything to go by, are almost invariably completely invisible in court. The present case is a good example. Only SW1, SW2 and TM were exposed to the forensic process, although much of the responsibility for what I have had to catalogue undoubtedly lies with other, more senior, figures. Why, to take her as an example, should the hapless SW1 be exposed to public criticism and run the risk of being scapegoated when, as it might be thought, anonymous and unidentified senior management should never have put someone so inexperienced in charge of such a demanding case. And why should the social workers SW1, SW2 and TM be pilloried when the legal department, which reviewed and presumably passed the exceedingly unsatisfactory assessments, remains, like senior management, anonymous beneath the radar? It is Darlington Borough Council and its senior management that are to blame, not only SW1, SW2 and TM. It would be unjust to SW1, SW2 and TM to name and shame them when others are not similarly exposed.
  3. CG stands in a rather different position. I have expressed various criticisms of her: see paragraphs 39-40, 49 and 97 above. But it would be unfair and unjust to identify her if others are not.

Looking now at some of the detail, although much is fact specific, the President is really attacking a wider malaise, in that there was an approach here in relation to threshold which put in almost everything negative about the parents that one could think of, without proper consideration of these two issues:-

1. Could those things be proved? And proved properly, not merely relying on hearsay?

and

2. Even if proved, did they go to establishing that the child had suffered harm or was at risk of suffering harm?

To highlight one example, the father in the case had a conviction, when he was 17 for having sex with a girl who was 13. He accepted that, although said that he had not known her age at the time. The offence was nine years ago.

In her witness statement SW1 said much the same. I need not set it all out. Two passages suffice:

“[He] has failed to work openly and honestly with the Local Authority, as has his mother and her partner. [His] acceptance and understanding of the severity of the offence … continues to cause the Local Authority significant concern …

Despite several attempts of advising [him] that the Local Authority acknowledge that this offence was committed a significant period of time ago, he was unable to acknowledge the significance of this. A requires appropriate role models within his life whereby he is given the opportunity to learn socially acceptable behaviours. It appears [the father] fails to acknowledge the immoral nature of this offence, and as he did not receive a criminal conviction, feels this incident is not significant, nor is it in the interests of A for this to be explored further.”

 

That is the sort of thing that one does see in social work statements and assessments fairly often, and it is perhaps not a huge surprise that the social workers considered this something of a roadblock to their work with father and whether they could trust him.

The President puts them right, as falling foul of the second question above. They could prove it, yet, but did it MATTER? Was it harm?

  1. There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was “immoral”? The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the “current risk he poses” to “vulnerable young women”? What has that got to do with care proceedings in relation to the father’s one year old son? It is not suggested that there is any risk of the father abusing A. The social worker’s analysis is incoherent.
  2. The schedule of findings asserts (W1) that the father “minimises the significance of these events”. Perhaps he does. But where does this take the local authority? I sought elucidation from both TM and SW2. Their answer was two-fold. First, that the father’s trivialisation of what he had done would inhibit his ability to protect A were A to be at risk of future sexual abuse by others. Secondly, that it would prevent him instilling in A a proper understanding of society’s values. With all respect to those propounding such views, the first is far too speculative to justify care proceedings and the second falls foul of the fundamental principle referred to in paragraphs 14-17 above.
  3. It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings years later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men. The local authority must prove that the facts as proved give rise to a risk of significant harm to this child A. It has failed to do so, proceeding on an assumption that is not supported by evidence. The father has not helped himself by his behaviour towards the social workers, but the burden of proof is on the local authority, not on him. The fact that he was rude to the social workers does not absolve the local authority of the obligation to prove that there is a risk of significant harm. It has failed to do so.
  4. Many children, unhappily, have parents who are far from being good role models. But being an inadequate or even a bad role model is not a ground for making care orders, let alone adoption orders.

 

That is an illustration of the sort of thing that peppered the threshold, and the President really encapsulates the issue in this line here

 

9. It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

 

and then in paragraph 10

The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.

  1. Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.

12. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.

What we don’t know, to be fair, is whether this mealy-mouthed threshold document which was a tottering edifice was as drafted by the Local Authority, or the composite document that ends up being produced as an ‘agreed threshold’  – I often see responses to threshold which purport to be an agreed threshold but the revised version is so watered down and wishy washy that it no longer meets the test.  “seemed”, “appeared”  “the child said X but father denies it”, are all the sorts of things that either end up being inserted in an “agreed” threshold to remove argument and dispute OR to be put in to the document in the first place with a view to the threshold not being controversial.

After the opening bit of a threshold document that tells you the child’s name and date of birth and parents, every other paragraph should be  sharply focussed on:-

This is an allegation that can be proved and if proved would demonstrate that the child had suffered significant harm, or is at risk of significant harm.

 

As the President points out, where the case becomes dominated by the fringe issues of whether a parent has insight, or is truthful, or is open and honest, or is working with professionals, one loses sight of the actual statutory test that we are working to.  These things may have some value  (though less than is believed) when deciding on the right orders ONCE threshold is crossed, but they have no probative weight in deciding WHETHER threshold is crossed.

 

I have noticed over the last fifteen years a real shift in litigation about care proceedings from scrapping over every single allegation and inch of threshold to a rush to get threshold accepted and resolved, ideally at the first hearing, and all of the litigation being about future disposal and care plan. The President is right – it is rigour in analysing threshold and whether it is met and how which enables the Court to properly decide whether the State should be intervening at all.

 

Going back to detail, there was substantial play made of the father’s membership of the English Defence League, and it gets crowbarred into the threshold document.

  1. In her statement SW1 returned to the same theme. I need set out only the key passages:

    “the immoral nature of the values and beliefs of members of the EDL and the violence within the protests EDL members engage in is inappropriate and supports inflicting violence injury to innocent members of the Muslim heritage …

    … it is commonly known that this barbaric protestor group promote ignorance and violence in respect of the muslim community … By all means, the assessing social worker supports equality, difference of opinion and that not all races and cultures agree with one another’s beliefs and views. What cannot be condoned however is expressing these beliefs through violence, irrational behaviour and inflicting physical and psychological pain against others due to their religion, the core beliefs and subfocus of the English Defence League. A should reside within an environment that supports difference, equality and independence. He needs to be taught how to express his views systematically and in a socially acceptable way. A should not reside within an environment whereby violence is openly condoned, supported and practiced. [The father] and J need to appreciate this is the twenty first century, the world is a diverse place whereby all individuals should feel accepted, regardless of their ethnic background, race and origin.”

  2. In the schedule of findings the allegation (paragraph 5) is that the father “has been a member of the English Defence League” and that the mother “has previously stated that he has been the target of serious threats to his person and home.”
  3. As in relation to what is said about the father’s previous sexual activity, I find much of this quite extraordinary. The mere fact, if fact it be, that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour. I refer again to what was said in In re B, both by Lord Wilson of Culworth JSC and by Baroness Hale of Richmond JSC. Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings. Very properly, by the end of the hearing Mr Oliver had abandoned this part of the local authority’s case. Not before time: it should never have been part of its case. That the local authority should have thought that it could, and that its case should have been expressed in the language used by SW1, much of it endorsed by TM, is concerning.
  4. If it really were the case that the father was at risk of serious threats to his person and home, that might be a very different matter, though it is not easy to see why the appropriate remedy for such threats should be the adoption of A rather than the provision of suitable security arrangements. Be that as it may, the local authority has in my judgment failed to establish that such threats were ever uttered with any serious intent, that, if they were, there remains any continuing risk to either the father or his family, or that the risk, if any, is such as to justify its concerns. It is, after all, noteworthy that there is no suggestion that there has been any actual attempt either to harm the father or to damage his home.

 

The President was also dismissive of the items in the threshold relating to the father drinking and smoking cannabis

  1. It is further said that the father “has a history of use of illegal drugs”, that “alcohol played a part in an incident on 3 December 2014”, that his mother “says that it [alcohol] affects his temper” and that he “failed to disclose that there was a police search of the property … where he was a tenant during which there was discovered 4 cannabis plants and 18 buds on 24 April 2014”.
  2. I have no doubt that the father on occasion drinks to excess, but not to such an extent as to justify care proceedings. He may have taken cannabis on occasions, but the reality is that many parents smoke cannabis on occasions without their children coming to any harm. The police search was of a property which at the time was tenanted and there is nothing to suggest that the father was in any way complicit. These allegations take the local authority nowhere. Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.

 

Okay, say the Local Authority – you’re going to strike out the sexual offence, the lack of insight, the lack of honesty, the alcohol and drug misuse – but we’d still rely on the domestic violence. Not so fast…

I accept, and find, that there have on occasions been episodes of domestic discord between the father, his mother and more particularly his step-father, that drink has played a significant part in this, that the police have on occasions been called out, and that there was a particularly physical confrontation with violence on 3 December 2013. I accept also that there was some lack of frankness on the part of both the father and his mother in relation to the accounts they gave the local authority of that incident. This history, however, needs to be kept in perspective. Neither the number nor the frequency nor the gravity of these incidents is such, in my judgment, as to cause any major concern. Moreover, it is clear to me, having heard their evidence and watched them carefully throughout the hearing, that, despite their differences and notwithstanding these incidents, the relationship between the father and his mother is, overall, positive and mutually supportive.

 

This is probably the most significant thing about this case – it wasn’t a Local Authority who felt they were on thin ice with dad and were scratching around for threshold – they instead probably legitimately felt that there were a raft of concerns in a number of areas and that the threshold was crossed quite comfortably. As the President showed, if you dissect each and every part of the foundations with that two fold approach – (i)can you prove it? and (ii) if you can prove it, how does it establish harm or likelihood of harm, all of those foundations crumble away leaving the Local Authority with nothing.

This case would have very little to say if it were a case where the LA were “trying it on” but as it relates to a body of thinking where the threshold can be made up of ‘concerns’ or ‘worries’ or ‘issues’ rather than allegations that (a) can be proved and (b) can be shown have a direct bearing on harm or likelihood of harm to the child, it has much broader implications.

If you are a lawyer reading this case in thorough detail, I’d be surprised if you weren’t picking up a red pen and looking through some recent threshold documents.

Where does that leave a parent who has conceded the threshold as being met (given that the PLO and the case management orders press the parties to resolve this issue at the very first hearing)? Well, you’d probably argue that the President’s clarification and sharper focus might warrant looking at the threshold again. I doubt whether this alone would justify an appeal of orders already made, but it might involve some recalibration of threshold documents in cases yet to be concluded.

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A tale of two Telegraphs

Posted on February 16, 2015 by suesspiciousminds

 

Two recent stories in the Telegraph about Court cases.

 

The first, here

 

http://www.telegraph.co.uk/comment/11412971/Why-dont-the-family-courts-obey-the-law.htmlr

 

is from a writer that you all know Christopher Booker.

 

Mr Booker’s story here is that a mother in care proceedings lost her child at an interim stage because of ‘one small bruise’ and was not allowed into the Court room during most of the hearings, and that this was because of their lawyers.

 

On a court order, the two boys were taken into care, and over the following months, through several court hearings from which the parents were excluded by their lawyers

 

Last April, the couple were summoned to a final hearing to decide their sons’ future. The mother was represented by lawyers she had been given by Women’s Aid, which works closely with the local authority. As an intelligent woman, studying for a university degree, she and her partner arrived early at the court, for what was scheduled to be a five-day hearing. They were armed with files of evidence and a list of witnesses they wished to call, all of which they believed would demolish the local authority’s case.

But the mother describes how they were astonished to be told by their lawyers that again they would not be permitted to enter the court. Half an hour later, the barristers emerged to say that the judge had decided that their two boys should be placed for adoption. There was no judgment for them to see, and no possibility of any appeal against his decision. This Wednesday the couple will have a final “goodbye session” with their sons, never to see them again.

 

 

Mr Booker names His Honour Judge Jones as the judge behind this story. [He doesn’t quite give him that courtesy, instead assuming that he is on first name terms with a Judge who he’s about to rip apart in a national newspaper]

 

Now, there are two distinct possibilities here.

 

  1. Everything that Mr Booker reports here is true.
  2. What Mr Booker reports is not what happened and something has gotten lost in the telling of the story.

 

As ever with Mr Booker, he doesn’t make it explicit that there’s a single source for his story, but I can’t see a second source anywhere. Now, that doesn’t mean that it won’t turn out to be true, but I’d feel happier when dealing with extraordinary claims to see confirmation of the story from more than one source.

 

We simply don’t know until we see the judgment from His Honour Judge Jones. In fact, if the latter of those two possibilities is true, we may not even recognise the judgment as relating to this case at all.

 

It would be utterly wrong, and utterly appealable, for a Judge to make an Interim Care Order removing a child from parents without letting them into the court-room, and utterly wrong, and utterly appealable for a Judge to make a Care Order and Placement Order without allowing the parents into the Court room and allowing them to have their opportunity to fight the case if they wished to. If this happened, it would be tremendously wrong.

 

If what Mr Booker says is what actually happened, then he is utterly right to rage against it and I would join him in his rage. If I was a betting man, my money would be on the second possibility, and that he has not been given a full and complete account of what happened.

 

HOWEVER, and I will be absolutely fair to him, if he had told the story of the case before HH J Dodds where the parties attended the first hearing and the Judge made three Care Orders in a five minute hearing, I would not have believed that either, and Mr Booker would have been right and I would have been wrong.

 

I would have said so had that happened. He is also right to draw attention to that Court of Appeal decision about HH J Dodds, and it does highlight that sometimes things happen in Courts that fly in the face of everything you believe and that really unfair things can happen to people. If it happens to you, it is small consolation that it is rare and shouldn’t happen, it must be utterly devastating. Some of the people who come to Mr Booker, or any of the other campaigners, are coming with completely truthful accounts of dreadful injustice, and it is important that they have somewhere to turn, someone who will listen to them.

 

As George Orwell said – We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.

 

And although I’m not asserting that Mr Booker or any of the campaigning groups are either rough men, or would be willing to visit violence on anyone, you hopefully get the general thrust of the point. In being willing to listen to the stories of injustice that people tell them, they provide a mechanism for injustice to come to light, and that is an important thing.

 

I hope that Mr Booker is wrong here, but I accept that he could be right, and if he is, it is important that people hear of it.

 

Sometimes Judges do behave in appalling ways. Sometimes social workers do too. So sometimes, the sort of stuff that Mr Booker rages about does happen, and when it does, he is right to be bloody cross. Even if I think that sometimes Mr Booker is the boy who cries wolf, there are wolves in the world, and that boy was eventually right.

 

If and when I see a case from HH Judge Jones that relates to Care Orders, involving Denbighshire Social Services, two boys and a bruise, I will update you. Perhaps Mr Booker is right. If he is, it is a scandal and I will commend him for bringing it to light. If he is mistaken, then no doubt there will be a correction and an apology, not least to a Judge who has been accused of acting in a way that would make anyone reading it think much less of him.

 

 

[Here is an idea, which I’m sure won’t be taken up – if a parent comes to a journalist with a story that sounds extraordinary about the way they were treated in Court, get the parent to sign an authority allowing the journalist to approach the solicitor representing them, and for the solicitor to read the proposed article and tell the journalist whether that’s an accurate depiction of what really happened, or if the facts have got a bit mixed up]

 

 

Second case

 

http://www.telegraph.co.uk/news/health/news/11412861/Judge-refuses-mothers-plea-to-treat-terminally-ill-son-saying-he-should-be-allowed-to-die.html

 

In which Mrs Justice Hogg, sitting in the Court of Protection made a declaration that the hospital could lawfully stop treating an 18 year old with a brain tumour, even though that withdrawal of treatment would end his life and his parents were arguing that the treatment should continue.

 

Now, this is a story which feels much more solid. It is easier to believe when reading it that what it says happens is what happened. (Booker’s story may well turn out to be true, but it has question marks over it that this one does not)

 

The hearing was in public, which makes it a lot easier for a reporter to put out a strong story with sources – in this case, there are quotations from the judgment and comments from both sides, and the report gives the sense of what a difficult decision this must be either way. It also has the sense of being the sort of thing that happens in the Court of Protection – these are the sort of decisions that have to be taken, the evidence heard and issues raised are consistent with the way one might imagine such a hearing to take place.

 

Again, until we get the judgment, it is difficult to analyse whether the Judge was right or wrong in making that decision – we simply don’t have enough of the key pieces of information or to see how the Judge balanced the competing arguments. So when it comes up, I will share it with you, and we can have the debate – hopefully it won’t be long.

 

It is hard not to have an emotional response however, and my sympathies on an emotional level are with the parents. I don’t think there tend to be many such decisions that go with the heart rather than the head (or with the parents rather than the medics) and I tend to think that the wishes of the family ought to carry rather more weight than they often seem to at the moment, as an overall criticism of these decisions rather than saying that the Judge in this particular case got it wrong.

 

It will be interesting to see how the Judge dealt with the right to life issue, article 2 being something that binds the Court as a public body, and that being an unqualified right. There are previous decisions which do sanction this withdrawal of treatment, largely connected to the right to die with dignity

 

It does make me somewhat uncomfortable that where a family want that for a person it is generally resisted, but when the medics want it and the family oppose it, it generally happens. Is the judiciary too deferential to the views of medical professionals? That’s a much wider debate.

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really expensive legal researchers

Posted on February 16, 2015 by suesspiciousminds

Lindner v Rawlins 2015

http://www.familylaw.co.uk/news_and_comment/lindner-v-rawlins-2015-ewca-civ-51#.VNymu_msVic

 

In this case, the Court of Appeal were dealing with an appeal from a husband relating to divorce proceedings about a Judge’s refusal to order the police to provide him with information / a statement.  There had been a complaint from the wife (or the wife’s new partner, hence the husband’s interest) about an allegation of criminal damage to a Sky tv satellite dish.

The husband had done a lot of legal research, but was sadly relying on the Civil Procedure Rules and a case called Durham County Council v Dunn [2012] EWCA Civ 1654 which relates to the duties of disclosure and inspection owed by one party in litigation to the other.  Neither were really relevant in this case, which was Family Procedure Rules and relating to an order for disclosure against a third party.  I personally think that the husband had made a pretty decent fist of assembling his case, he’d just started from the wrong assumptions.

The Court of Appeal refused the appeal, but this is the relevant bit and why it is worth reporting.

The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

 

And

I agree with the judgment of Black LJ. I also wish, wholeheartedly, to endorse her observation at [32]. The procedural issue with which this appeal is concerned is technical and unusual. The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. The wife was neither present nor represented. Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.

 

It is quite easy to read this as a kicking to Chris[tian] Gray-ling and the devillish torments he has assembled for justice in his Red Room (and there’s an image you will be stuck with for the rest of the day, sorry), but I’m not quite sure that it is.

We don’t specifically get told what the husband does for a living, but we do know that there is a matrimonial home of a size for a family of four (husband, wife, two kids) and that it is in the Bromley area (because that was the original Court), so one might hazard a guess that to obtain and sustain a mortgage both parties would probably fall outside of the income limits for legal aid, even before the reforms. The husband is clearly bright and capable – one might criticise him for focussing his intellect in the wrong direction rather than moving on, but that’s by the by.

 

If I were staking money on it, it would be that this husband would not have qualified for free legal advice and representation even before Chris Grayling got his hands on the legal reins and made his changes of course.

If this was supposed to be an economy though, it isn’t. The Legal Aid Agency might have saved a few thousand in legal fees for someone to research and advise the husband (and they’d have advised against an appeal) but the taxpayer overall has lost out because three very senior Judges had to spend valuable time researching and working out the proper basis for the appeal and whether or not it should be granted.

 

 

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Lasting power of attorney – revocation.

Posted on February 13, 2015 by suesspiciousminds

Re SB 2015 http://www.bailii.org/ew/cases/EWCOP/2015/7.html is another case heard by Senior Judge Lush, involving a person who signed a Lasting Power of Attorney, giving her sons the ability to manage her financial affairs on her behalf when she lost capacity.

It is a GOOD thing to have a Lasting Power of Attorney, particularly if you know that you are suffering from an illness which is going to rob you of the capacity to make decisions for yourself. Much better that those decisions be made by someone you love and trust, rather than by strangers or a Court.

It therefore annoys me massively when the people given that trust misuse it like this man.

b) BB had used £19,038.69 of his mother’s money to pay his farm suppliers.

(c) BB had invested a further £24,000 of his mother’s funds in a biomass boiler at his farm.

(d) although SB owns two investment properties, the rental income from them had not found its way into her accounts.

 

BB’s response?

On 7 October 2014 BB filed an acknowledgment of service in which he stated that he objected to the application. He said:

“I truly believe that we still have the best interest of our Mum at heart both her welfare & finances.”

The Lasting Power of Attorney gave the son the right to manage his mother’s affair FOR HER, and for her benefit. It was not a right to spend what he was assuming was his inheritance whilst she was still alive. If she had wanted to give him this money whilst she had capacity, that would be fine, but she had not made that decision. This is dipping into (well, more plunging than dipping) his mother’s money for his own benefit.

For those who criticise the existence of the Court of Protection (and there are flaws with it, it isn’t perfect), what is your alternative for this? Let the son rob his mother blind?

The cases about sterilisation and C-sections and deprivation of liberty are the ones that get the headlines, but these financial exploitation cases are the real bread and butter of Court of Protection work. It is desperately sad that when money comes into the picture, some people are prepared to abuse the trust placed in them and use their parents money as if it were their own.

 

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Looks like I picked a bad day to give up not being a veracity assessor

Posted on February 10, 2015 by suesspiciousminds

 

Wigan BC v M (veracity assessments) 2015 http://www.bailii.org/ew/cases/EWFC/HCJ/2015/8.html

 

Veracity assessments, if you don’t know, is where you have an expert, usually a psychologist, to look at the video interviews of a child’s allegations of abuse and to advise the Court as to the features of that interview that indicate whether reliance can be placed on them.  They went through a brief spell of being popular, and then became unpopular – largely because they go to the ultimate decision of the Judge.  The Judge’s function is to decide who is telling the truth and who is lying, and thus on some level it is a bit of a cop-out to ask an expert to give them the answer.

[There is quite a lot of good research about human beings ability to assess whether people are lying, and we really are quite bad at it. The one I have in mind was specifically about whether a six year old on a video is telling the truth about whether or not they touched a particular toy – and most people who had some ‘professional’ stake in deciding whether or not people are liars did worse than the group of students who did the same exercise as a control group. In fact, people generally do reasonably well when estimating that a statement is true, and are actually slightly worse than chance when estimating that a statement is a lie.  The ‘signs’ that most of us think will be present in a liar actually correlate very badly with actual lying

In a minority of studies, accuracy in detecting lies was computed separately from accuracy in detecting truth. Where this did occur, results show a truth-bias, that is, judges are more likely to consider that messages are truthful than deceptive and, as a result, truthful messages are identified with relatively high accuracy (67%) and deceptive messages with relatively low accuracy (44%). In fact, 44% is below the level of chance, and peoplewould be more accurate at detecting lies if they simply guessed.  http://eprints.port.ac.uk/23/1/SAMJAP.pdf  “Detecting true lies”  Portsmouth University study ]

This is the first veracity assessment case I’ve seen in a few years, and certainly the first one since the test for an expert became ‘necessary to resolve the proceedings justly’

To be fair to the expert in the case, he did exactly what was asked of him and pretty much concluded that there wasn’t a need for a specific veracity assessment  “I have seen nothing to suggest that what these children say requires interpretations by an expert, beyond the accommodation of the factors identified in this report. I hope that I have set out the significant factors and possibilities in this case in such a way that weight can be placed on relevant factors, including any new information that emerges.”

 

In the end, nobody relied on the report, and the Judge at final hearing, Jackson J, indicated that the parties had been premature in seeking such an assessment.  The child in question was a capable witness who could have been called and had questions put to them, and that was a much better way of getting to the truth than having an expert look at things.

The Judge expressed doubts about whether a veracity assessment could meet the current test for expert reports – it might be informative, or useful, but it could hardly be necessary.

Veracity assessments / validation exercises

  1. Having received short submissions from the parties and having consulted the current experience of colleagues, I believe that three principles can be identified:

    1) As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true. That was the conclusion of the Court of Appeal in Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195, interpreting Section 3 of the Civil Evidence Act 1972. It held that expert evidence dealing with issues, including the ultimate issue, was admissible, subject to the overriding requirement of relevance, which, together with questions of weight, was a matter for the judge. At page 210, Butler-Sloss LJ said: “The modern view is to regulate such matters by way of weight, rather than admissibility. But when the judge is of the opinion that the witness’s expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him.”2) The Court of Appeal left open the question of whether and to what extent the court had a power to exclude evidence that was admissible and potentially relevant. That question has now been answered by FPR 2010 Rule 25.4 which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.

    3) In my view, cases in which it will be necessary to seek expert evidence of this sort will nowadays be rare. While the decision must rest on the facts of the individual case, judicial awareness of these issues has greatly increased, from the Cleveland Inquiry in 1987 to the most recent iteration of the principles of Achieving Best Evidence in 2011. In the two decades since Re M and R (above), understanding has naturally moved on. The process continues to evolve, with the final report of the Children and Vulnerable Witnesses Working Group set up in 2014 by the President of the Family Division expected shortly. The overall result is that judges have been trained in and are expected to be familiar with the assessment of evidence of this kind. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.

  2. I note that in D v B & Others [2006] EWHC 2987 (Fam), Mr Stephen (now HHJ) Wildblood QC said that “Personally I find veracity evidence of assistance in many cases in this field of exceptional difficulty.” In that case, matters had gone awry after the veracity expert went far beyond her proper remit and then changed her opinion after leaving the witness box. It might be seen as an extreme illustration of the potential pitfalls of admitting evidence of this kind.
  3. I also note the observations of Baker J in A London Borough Council v K [2009] EWHC 850 (Fam):

    “… this case has, to my mind, demonstrated that veracity or validity assessments have a limited role to play in family proceedings. They are, so far as I am aware, unused in criminal proceedings in this country, and I see strong arguments for imposing restrictions on their use in family cases as well. … there is a danger that some courts, faced with these difficult decisions, will subconsciously defer to the apparent expert. That danger has been recognised in a number of cases in which the courts have emphasised the discrete roles of the expert and the court. In the case of the veracity expert, the danger is particularly acute. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone. He cannot delegate that decision to any expert. I acknowledge that a child psychiatrist… may be able to point out some features of a child’s account that add or detract from authenticity… But, in my experience, many of these features should be obvious to judges in any event. No expert, however experienced and however well briefed about the case, will be in a position to say where the truth lies. Only the judge sees and hears all the evidence.”

  4. I entirely agree with that statement of principle. I acknowledge that judges, however experienced, benefit from the knowledge that experts bring, but that knowledge can be absorbed through judicial training and awareness of the well-known protocols of good practice; it does not have to be imparted case by case with the attendant expense that is bound to arise.
  5. In the present case, the parties now accept that the children’s evidence should have been studied before the question of a ‘veracity’ or ‘validation’ assessment was considered, and that if that course had been taken, it is unlikely that the application would have been made, let alone granted. I agree. In the event, the parties did not refer to the resulting report during the fact-finding hearing, nor did I do so when determining the veracity of the children’s allegations.

 

If your assessment of my veracity when I claimed in the title to be a veracity assessor was that I was lying, then congratulations, you were right. You might want to consider becoming a veracity assessor. Or you might not, given that you’re not going to get any instructions.

 

[I can see some scope for a veracity assessment where there is something about the child’s  background which makes them give their responses in a way that would be consistent with them being a liar when compared with an average person from England, but is more about their culture or disability, but I think that’s more about an assessment of child’s presentation or functioning than about veracity per se]

 

NB, a voracity assessment might be a very different thing, and there might still be a place for those…

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Is the Child Protection system fit for purpose – a conference on 1st June

Posted on February 6, 2015 by suesspiciousminds

 

This conference has been set up by members of the Transparency Project   http://transparencyproject.org.uk/  of which I am a tiny part  (a cog who is not pulling his weight at the moment)

 

You may know Lucy Reed from Pink Tape http://www.pinktape.co.uk , or Sarah Philimore from Child Protection Resource http://www.childprotectionresource.org.uk/ who are the driving force behind this conference. They are the Mary Berry / Paul Hollywood combo – not necessarily in that order.  Many of you may also know Jerry Lonsdale,  who is like the James Bond of the MacKenzie Friend world. And there are many other cool people involved – I’m particularly looking forward to hearing from Sir Mark Hedley and  Kristy Seddon (who is a remarkably impressive care leaver)

So this conference is open to anyone – lawyers, Judges, journalists, social workers, guardians, experts and most importantly real people.

It is going to be like the Glastonbury of family justice. As such, for the small bit I am doing, I will be writing in a blue counsel’s notebook with it behind my back, then with my pen in my teeth and finally setting fire to the notebook.

 

Policing Parents? Protecting Children? Promoting Adoption?

Do we get the child protection system we deserve

The Transparency Project is pleased to announce a multi-discliplinary conference, on 1st June 2015, which will discuss the different views and perspectives from experts, lawyers, social workers, parents and care leavers in an attempt to re-position the current unhealthily polarised debate around the child protection system.

We will be joined by Dr Lauren Devine of UWE who is currently undertaking research into the evidence base for our current system and by Brigid Featherstone, co-author of ‘Re Imagining Child Protection’.

The conference will take place at the NCVO facilities, near Kings Cross in London

Register for tickets – until Feb 28th 2015.

To register for tickets, please email sarah.phillimore@stjohnschambers.co.uk.

Please let us know which afternoon workshop you would like to attend and if you want a vegetarian meal option.

We want to keep costs low but need to charge to cover costs of venue hire and catering. Lunch and refreshments will be available on the day.

Professionals 5 + years PQE £100/Professionals 0-5 years PQE £50 – discount of 20% if 3 or more members of the same organisation book together.

Waged £30

Unwaged £5

We will be seeking accreditation for CPD points for both the Bar and solicitors.

Topics for afternoon discussion

Suggestions are coming in for the issues most likely to require debate/discussion. Please feel free to contact us to add more.

  • Section 20 agreements – the drift and delay problems. Are there adequate mechanisms in place for review of these? What’s the IRO doing?
  • The anti-authority parent – does disagreeing with or failing to co-operate with a social worker equate to being a ‘bad parent’? What can be done to improve relationships between parents and social workers? These issues are highlighted in the recent Hertfordshire case and discussions over at suesspicious minds.
  • Risk of future emotional harm – Re B [2013] is this an acceptable basis for removing children for adoption?
  • Perception of experts as independent – what should happen if experts in a case are on a ‘paid retainer’ with a LA? also an issue raised in the Hertfordshire case above.
  • Problems with ‘working together’ – example of recent disjunction between family and housing law discussed by Nearly Legal. How do we make sure family courts have the best information about issues they may not be familiar with nor fully understand?
  • Opening up the family courts – the impact on children. Is it likely to be a serious as some fear? What lessons can we learn from other jurisdictions?
  • Impact on care proceedings of the rise of litigants in person – what can be done to improve position for people who won’t get legal aid? see discussions by John Bolch on Marilyn Stowe’s blog.
  • Funding for therapeutic intervention- what options should or could be available for parents who are advised they need lengthy therapy/counselling?
  • How is the UK system viewed in Europe? – note the recent report ‘Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States’, in particular para 74 which criticises the refusal of the UK system to reverse adoption orders as a ‘misunderstanding’ of what is in the best interests of a child.

Timetable

9.15-9.45 Registration
9.45 -10.00 Introduction and welcome Sir Mark Hedley
10.00-10.30 Evaluation of the Evidence Base for current practice Dr Lauren Devine UWE
10.30-11.00 Re-Imagining Child Protection Brigid Featherstone
11.00-11.30 Coffee break
11.30-12.00 Expert reports and assessments; new directions for 2015. Lisa Wolfe and colleagues
12.00-12.30 Care leavers’ perspectives Kirsty Seddon
12.30-1.15 Parents’ perspectives on the system Introduction by Jerry Londsdale .
1.15-2.00 Lunch Invitations to complete a ‘next steps’ questionnaire online.
2.00 – 3.15 Parallel discussion groups/workshops See below
2.45-3.15 refreshments and informal discussions Post-it note ‘instant’ feedback wall
3.15-4.15 Top table panel lead Q&A discussion Top table of morning’s plenary speakers
4.15 – 4.30 Closing summary, distil the day and key outcomes – call to action? Sarah Phillimore
PM parallel discussion groups/workshops from 2pm to 3.15pm

A. Intervention versus interference: To what extent should we safeguard? Northumbria University.
B. Family Law Toolkit: how language influences outcomes, achieving best evidence. Update on case law when adoption is ‘necessary’; advice on appeal, Legal aid and exceptional funding, ‘hidden LiPs’ and issues of transparency Alice Twaite, Sarah Phillimore, Lucy Reed and Dr Kate Harrington
C. Therapeutic interventions and community support Angela Markham, Jane Auld, National Parenting Initiative, Families In Care
D. Is good enough, good enough? – expectations around parents with learning disabilities, what kind of support needed? Beth Tarleton and Nadine Tilbury, University of Bristol

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forced sterilisation

Posted on February 5, 2015 by suesspiciousminds

I normally canter through a judgment, picking out the salient bits, but I think this one really needs to be read in full to appreciate it. It would not be fair for me to look at individual passages.

This is a follow-up to this piece

Barbecue tongs and police being given power to force entry to a home

 

In which Cobb J, sitting in the Court of Protection, gave a ruling that a caesarean section was in a woman’s best interests and even that the police could force entry. It was a very unusual case.

This follow up is the same Judge, in the same Court, considering whether the woman, who lacked capacity to make decisions for herself, should be sterilised without her consent. And again whether there could be powers to forcibly enter her home, remove her and take her to hospital.  The Court do decide that these things are in her best interests.

There’s no getting away from this, the fact that a Court even have these powers makes anyone feel uncomfortable.  Critics of the system have the right to say that this feels wholly and utterly wrong, no matter how carefully it is explored.  It does end up smacking of eugenics, and the nasty side of eugenics at that. Even thinking for a minute about how terrifying it must be for this woman when the police knock down her door and she is taken to hospital for surgery she doesn’t want and doesn’t understand makes your flesh crawl.

My personal take is that I think Cobb J gives a very careful and thoughtful judgment and tries to balance the competing factors.  Parliament have given the Court of Protection this authority to make such decisions, and if they have to be made, doing it in the way Cobb J has done is the best way to do it. I think he is also right to set out that this is a truly exceptional case, with truly exceptional facts – all efforts to engage and develop the woman’s understanding about the health risks to her of further pregnancies were unsuccessful, and the health risks are life-threatening.  But we have sadly seen that unique and exceptional cases do sometimes end up being used in ones that are slightly less so, and on and on until authorities bear little resemblance to the original case.

 

The Mental Health Trust and DD 2015  http://www.bailii.org/ew/cases/EWCOP/2015/4.html

 

Even if you end up disagreeing with Cobb J’s decision (and I think you’re perfectly entitled to – this is one of those really moral and ethical arguments) please do him the courtesy of reading the judgment first. It must be a thankless job having to make decisions like this.

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CSI President : Appeal

Posted on February 5, 2015 by suesspiciousminds

 

I was a bit surprised to see that public money was spent appealing the President’s decision in Re Z Children 2014  which I wrote about here:-

CSI : President

 

The case involved a dad who wouldn’t give a DNA sample, but was in prison for murder. The police had two DNA samples – a DNA sample of the perpetrators blood from the crime scene and the one dad gave that matched it. They were prevented by law in giving the second one to the Court to be used as a paternity test sample. The President decided that they weren’t prevented in law in giving the first sample (which we all know is a match and is dad’s DNA)

I actually thought it was a very clever and intricate solution and one that won’t really cause problems for later cases.

 

Nonetheless, it was appealed, and the Court of Appeal over-ruled the President.

 

Re X and Z Another  http://www.bailii.org/ew/cases/EWCA/Civ/2015/34.html

As a result, any samples held by the police ought to only be used for the purposes of criminal law enforcement.

If you were hoping for the President to get a come-uppance, this judgment is not it. The closest they come to a criticism is this bit:-

35. Parliament cannot, when replacing Part V of PACE in 2012, have intended that Part II DNA profiles could be used outside the sphere of criminal law enforcement but that Part V DNA data could not be so used. That would be arbitrary and would make no sense. The court should be very slow to impute to Parliament an intention to legislate so as to produce results which are arbitrary and irrational.

  2. In order to avoid such absurdity and to reflect Parliament’s clear intention in POFA to legislate to remove the incompatibility between English law and the requirements of the Convention, I consider that section 22 should be construed in a way which is consistent with the scheme of Part V. That is to say, section 22 should be construed as meaning that, if the police consider that it is necessary to retain Part II DNA material for criminal law enforcement purposes, they may not use it for any other purpose

 

Given that the Court of Appeal didn’t like the President’s somewhat elastic use of statutory construction (stretch it as far as you can unless it actually snaps) he is perhaps fortunate that all of the parties in Re  X (a child: Surrogacy) 2014 liked his decision (and hence weren’t going to appeal it), because that one for me went beyond snapping point.

 

Conjurers and children’s birthday parties

 

When the President decided that a valid interpretation of THIS piece of statute

“the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”

was

“unless the Court is okay with it”

 

The President doesn’t lose many though – this one and Cheshire West are the only ones that I can remember.  (And I have some sympathy for him on this one, I think it was a child-focussed attempt to resolve a problem)

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Unfortunate and woeful – Local Authority failings

Posted on February 3, 2015 by suesspiciousminds

 

This is a High Court case in which the Judge (Keehan J) was very (and rightly) critical of the Local Authority, including criticism that when they were asked for explanations of their conduct prior to and during the proceedings those explanations were not satisfactory and amounted to not much more than attempts to defend the indefensible.

 

Northamptonshire and DS 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html

 

The case ended with a child, DS, being placed with his maternal grandparents in Latvia.

 

It began, as cock-ups so often do, with a section 20 agreement. There were some legitimate concerns that DS would be at risk in the care of his mother and his mother was asked to agree to place him in ‘voluntary’ foster care. This happened when he was 15 days old.

 

The Local Authority did not properly think about care proceedings until five months later, and even worse than that, having decided that care proceedings were the right thing to do, did not then issue them until five months after that.

 

The care proceedings were plagued by delay, most if not all being ascribed to the Local Authority, ending up with a child spending nearly two years in foster care when there were grandparents who were eventually able to care for him.

 

The Guardian and mother issued claims for Human Rights damages on behalf of the child, and the LA by the time of the final hearing were accepting that they had violated the child’s human rights in all of these human rights claims:-

 

 

(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

(b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights. *

(c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights.

(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights.

(e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights.

(f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.

 

 

*you don’t often hear of article 13 rights, but it was a good call in this case:-

 

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

 

There wasn’t an effective remedy until the LA issued the care proceedings that should have begun in February at worst, but instead started in November.

 

A package amounting to £17,000 was agreed by the Local Authority and approved by the Court.

 

Looking at some of the particular criticisms made by the Court:-

 

 

Inexperience of the worker and delay in issuing

 

 

I cannot begin to understand why an inexperienced social worker who was not familiar with care proceedings was allocated as a social worker for a 15 day old baby. I do not understand why it took until August to provide her with support or why senior managers did not intervene in this case. It is wholly inexcusable for a local authority to take three months to decide to issue care proceedings in respect of a very young baby and then a further five months to issue care proceedings. The fact that the parents are Latvian and that close family members lived abroad, provides no explanation less still an excuse for the extraordinary delay in this case.

 

 

The changes in social worker

 

I appreciate that social services’ departments have difficulties recruiting and retaining social workers but it is deeply worrying that over the course of these proceedings DS has been allocated no less than eight different social workers. It is evident to me that neither the social workers, nor the senior managers at Northampton Children’s Services Department had DS’s welfare best interests at the forefront of their minds. Worse still they did nothing to promote them. Their chaotic approach to this young baby’s care and future life was dismal.

 

 

The section 20 agreement

 

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.

 

The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.

 

 

Whether the s20 ‘consent’ was really meaningful consent

 

On 30 January the local authority concluded that DS was at risk of harm in the care of his mother and secured her agreement to him being placed with foster carers. I question how effective that consent was when it was sought without the mother having the benefit of an interpreter.

 

And overall

 

The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.

 

 

 

None of this is good. It is, in fact, deeply bad.

 

Critics of the family justice system, and there are many, are entitled to point to a case like this and say that this is what goes on. The parents in this case, and the child in this case, were badly let down by professionals and there were systemic failures to put things right.

 

It is only a small crumb of comfort that this was a case in which the Judge dealing with it was prepared to be tenacious and forensic about those failures, with a view to preventing them happening to other unfortunate families.

 

As the Judge says at the end

 

I trust that the events of the first 23 months of DS’s life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so.

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From Bratislava to Llangefni

Posted on February 2, 2015 by suesspiciousminds

The President making a costs order against Capita for failure to provide a Slovak interpreter for a final hearing.

In the matter of Capita Translation and Interpreting Ltd 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/5.html

 

You might remember that what used to happen for interpreters is that you would find one, book one, they would turn up and interpret and then you would pay them. That was all far too simple, so the MOJ introduced a helpful layer of complexity and commerciality, by bringing a third party into the process.

Now what happens is you want an interpreter, you ask the Court, the Court ask Capita, Capita find an interpreter, they turn up *(ahem), you ring the Court saying where are they?, the Court say “it’s capita’s fault, not ours”, you try to explain to the client as best you can that nobody has come to interpret, you get shouted at by the Court, you adjourn off and do it all again when this time an interpreter does turn up, you pay Capita, Capita pay the interpreter.

I wrote about the President’s first go at this back in May 2014

All a matter of interpretation

 

When it emerged that Capita don’t employ interpreters, but used freelancers and that they simply didn’t have any control over whether ones they had booked to go to Court actually turned up at that hearing, or chose to do a more lucrative local hearing instead; and moreover that there was a particular systemic problem with Slovak interpreters.

 

The President said at that time:-

Ms Facchini’s statement is dated 14 May 2014. I need not go into the full details. That is a matter for a future occasion. For immediate purposes there are three points demanding notice. The first is that, according to Ms Facchini, the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted. The consequence, apparently, was that in this case the two interpreters who had accepted the assignment (one on 14 and the other on 17 April 2014) later cancelled (on 5 and 1 May 2014 respectively). The second is that it is only at 2pm on the day before the hearing that Capita notifies the court that there is no interpreter assigned. The third is the revelation that on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. This is on any view a concerning state of affairs. If the consequence is that a hearing such as that before me on 7 May 2014 has to be abandoned then that is an unacceptable state of affairs. It might be thought that something needs to be done.

12 Whether the underlying causes are to be found in the nature of the contract between the Ministry of Justice and HMCTS or whoever and Capita, or in the nature of the contract between Capita and the interpreters it retains, or in the sums paid respectively to Capita and its interpreters, or in an inadequate supply of interpreters (unlikely one might have thought in a language such as Slovak), I do not know. We need to find out.

 

This is the judgment about whether Capita should pay the parties wasted costs – relying in part on Cobb J’s decision that costs could be paid by a third party who is not part of the litigation if the fault lay with them.

The particular problem with Slovak interpreters was touched on again – it being a matter of supply and demand

The wider context is illuminated by Statistics on the use of language services in courts and tribunals: Statistical bulletin, 30 January 2012 to 31 December 2013, published by the Ministry of Justice on 17 April 2014. In Q2 2012, Capita’s overall ‘success rate’ in providing interpreters requested by courts and tribunals was 92.4%. After a dip, coinciding with Capita’s reduction in the mileage rate paid to interpreters, the overall success rate had climbed again to 93.4% in Q4 2013. For civil and family cases the success rate in 2013 was lower, at 89.8%. What is striking, however, is the markedly lower success rate in relation to the provision of Slovak interpreters, only 77.7% in 2013, which was “reflected in the complaint rate which is amongst the highest of all language requests.” Indeed, “Of the 10 languages with most complaints in 2013, the language with the highest complaint rate was Slovak (8.7%). The majority of Slovak complaints came from tribunals where there was a 23.6 complaint rate.” In relation to the overall complaint rate, “In 2013, most complaints were in the South East (2,400) – 35.8% of all complaints reported. The South East had a relatively high complaint rate of 5.7%, well above the 4.1% UK average.”[1]

The President ordered that Capita pay the wasted costs, but did not go as far as many of us would hope in saying that this should become commonplace in cases where hearings don’t go ahead because of a cock-up with interpreters

There was a certain amount of discussion before me as to whether Capita’s obligation to provide an interpreter is dependent upon it having been given reasonable notice and, if it is, as to what amounts to reasonable notice. The point does not in fact arise for decision because on any basis Capita was given more than adequate notice of the need for interpreters at the hearing on 7 May 2014. I propose to say only this. It is clear from the analysis in the ALS case that Capita is required to provide interpreters not merely 24 hours a day but also at what may be very short notice. Notice will in the nature of things often be a matter of hours at most rather than days. But there may come a point at which, given the circumstances of the particular assignment, the notice given is so short as to be meaningless. Suppose, for example, that at 10.00am the court at Llangefni (on the Isle of Anglesey) were to inform Capita that it needs an interpreter in Slovak for a hearing starting at 10.30. Would Capita be in breach of its obligations? This is a matter to be decided another day when the point arises. But without, I emphasise, deciding the point one way or the other, I have, as indicated (see paragraph 39 above), given Capita the benefit of the doubt in relation to the 37 minutes’ notice it was given of the hearing on 9 August 2012.

 

It is refreshing to see a Judge sitting in London who in stretching for a metaphor about somewhere being far away, casts his imagination further than Watford or Preston, and goes for somewhere off the coast of Wales. Hello people of Llangefni. You don’t get much love in law reports, so this is your moment.

The President rather nicely points out that a target of 98% is not really that useful – in every case where you need an interpreter, you actually need one – you don’t need them 98% of the time.

There have been serial failures by Capita in this case against a background of wider systemic problems. Applying the standard identified by Morritt LJ in the Globe case and Cobb J in B v B, and having regard to the principles of general application to be drawn from the ALS case, it is my judgment just in all the circumstances to make the order Mr Howard seeks. In this case, just as in B v B, the failures (here on the part of Capita, there on the part of the local authority) were, to adopt Cobb J’s words, not minor but extensive, and, at two different stages of the litigation, they had a profound effect on the conduct of the proceedings.

  2. I emphasise that I have reached this decision on the facts of this particular case. I am not to be understood as suggesting that Capita will be liable for each and every failure to provide an interpreter. The ALS case is clear authority against any such proposition. Nor am I to be understood as suggesting that Capita will be liable for each and every failure to provide a Slovak interpreter, lamentable though its failures to provide such interpreters were in this particular case and, seemingly, more generally. Everything will depend upon the precise circumstances of the particular case.
  3. Nor should it be assumed that a similar liability will extend to other private-sector contractors whose failures can impact adversely upon the court sitting-day, for example, the companies responsible for producing prisoners at court or the companies responsible for the maintenance of court buildings. Much may turn on the precise term of the agreements under which they operate, of which I know nothing and which may, for all I know, be very significantly and materially different from Capita’s agreement with the Secretary of State.

 

Given the President’s attempt to build bridges between Wales and the Slovak people, I’ll add my own

poď by sem. Nebudem klamať, že je to poriadok rozsudok

 

 

[Come over by here, I won’t lie to you, that’s a tidy judgment…]

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