Category Archives: case law

Defying the Court of Protection – is there such a thing as committal in Court of Protection?

Posted on February 2, 2015 by suesspiciousminds

 

 

MSAM v MMAM 2015 is a Court of Protection case tackling something for the first time.

 

In this case

 

http://www.bailii.org/ew/cases/EWCOP/2015/3.html

 

Mrs MMAM is 76. Her health deteriorated and she was living in parlous conditions at home. Following assessments, it was felt that she lacked capacity to make decisions for herself and was unable to remain in her own home.

 

The Court of Protection considered the case and made the following declarations on 20th February 2014 :-

 

“It is hereby declared pursuant to S.48 of the Mental Capacity Act 2005 that: it is lawful and in the First Respondents best interest to continue to reside and receive care at X residential home and any deprivation of her liberty occasioned by residing there is approved by the Court pursuant to S.4 A16 of the Mental Capacity Act 2005.”

 

 

On 1st April 2014, MMAM’s grandson attended the X residential home and removed her from that home, the manager of the home believing that he had no legal authority to prevent this.

 

 

It is important to note that she was then removed to Saudi Arabia, and also important to note that MMAM’s son (MSAM) had been a party to the Court of Protection proceedings and had not been challenging the plan at that hearing.

 

 

On the 1st April 2014 Mrs MMAM left the jurisdiction. I have been told she is currently residing in Saudi Arabia. On the morning 1st April the Second Respondent (Grandson) took Mrs MMAM from the X road residential home. He did so with the compliance of the manager who believed that he had no legal basis to prevent such a course. He was apparently told that Mrs MMAM was going with her grandson to the Saudi Arabian Embassy. She was taken there and her travel documents were provided which appeared to have enabled her to be booked on the very next available flight from London to Jeddah which left that evening. The grandson purports to outline the events of that day in his statement dated the 13th May. I say without hesitation that I found his account to be self serving and disingenuous. The description of what is said to be Mrs MMAM’s behaviour on that day bears absolutely no relationship to anything I have read about her in any other document. At paragraph 8 the grandson states

 

“We took a taxi to the Embassy arriving just before 10am, my grandmother, without entering security, had found the way to the meeting ahead of me. Once I had introduced her, I left her to discuss her affairs as I had understood from my father I should not participate in discussing the case with officials and her in any detail. A few hours went by, I was summoned and asked to accompany my grandmother to a place where food was given to her and then we were taken to a rest facility. Little later someone from the embassy came to take her and I was told to return home and that they would contact me as required.”

If that was indeed in any way accurate and Mrs MMAM had been left on her own at the Embassy, in my view, she would have been, on the basis of everything I have read, confused and probably rather frightened. The statement is entirely unconvincing. In the paragraphs that follow any aspiration to credibility is lost, if not abandoned.

 

“That night the manager from X road called me regarding my grandmother, I said she must still be with the embassy staff if she wasn’t back at X road. Someone from the Local Authority also contacted me, he asked me whether I felt she was safe or not? I told them I believe she was and would contact them if I heard anything. I then received a call to let me know that my grandmother was safe, ‘not to worry’ and I relayed the message to staff…. the next day I heard news that my grandmother was in Saudi Arabia.”

Later he states:

 

“The manner and speed of her repatriation has taken me by surprise. I do not want to speculate on the matter but I’m aware the situation has pleased my grandmother and family. Perhaps with the benefit of hindsight, the time constrained medical condition made the embassy action inevitable; though I do not believe any of the people aware of my grandmother’s appointment with the embassy expected it and I certainly did not.

‘I would like to thank the court for its measured consideration and on behalf of both myself and my grandmother I want to express our gratitude to Judge Batton, the staff of X Road and the doctors. I am eternally grateful to found, in all of them, definitely the living personification of the oath undertaken by each of them.”

The picture presented is a complete fabrication. This old, sick, largely incapacitous lady further burdened by an ‘abnormal belief system’ would simply not have been able to function effectively or autonomously in the way the grandson asserts. It is clear from the above passages that the grandson was acting entirely on his father’s instructions. That is the dynamic of their relationship which I have observed for myself in the courtroom at previous hearings. The reference to “the time constrained medical condition” sadly relates to the fact that Mrs MMAM is suffering from metastasised bowel cancer. The statement requires recasting in reality. Mr MASM and his son have plainly colluded to defeat the declaration made by this court. Mr MASM has done so notwithstanding that he acquiesced to the declaration made and drafted in the terms that it was. He was the applicant in this litigation. In my judgement he has acted with cynical disregard to the objectives of this process and, in the light of the declarations drawn, it must follow that his actions are entirely inconsistent with the best interests of this vulnerable and incapacitous woman, who is of course his own mother. The reasons for this planned deception are not immediately clear, but I draw from this history and from the actions of these two men that their motivation is likely family’s financial self-interest. It seems to me that if Mr MASM had genuinely believed that his mother’s interest did not lie in her remaining in the residential unit for the reasons Dr Arnold said then he had every opportunity to put those conclusions to the assay by cross examination. He chose not to do so despite being represented by counsel.

 

 

The legal question then arose :-

 

  1. Was this action a breach of the Court of Protection’s declaration and authorisation of Deprivation of Liberty?
  2. And if so, what are the sanctions for such a breach

 

 

Within the law relating to children, these sort of actions have been going on for a long time, and it is settled law that a breach of a Court order can lead to an application for committal for contempt of court, and to imprisonment if the breach can be proved to the criminal standard of proof. But this is new to Court of Protection cases.

 

Though this case raises important issues of law and practice it must be emphasised that conduct of the kind seen here is rare, indeed in my experience it is unprecedented. Many of the litigants who come before the Court of Protection are at a time of acute distress in their lives, as a cursory glance at the case law of this still fledgling court will show. The issues could not be more challenging, not infrequently they quite literally involve decisions relating to life and death. Inevitably, some litigants do not achieve their objectives neither wholly nor in part but they respect the process. More than once I have observed that the importance to a family of being heard in decisions of this magnitude matters almost as much as the outcome itself. Sometimes the medical and ethical issues raised are such that NHS Trusts seek the authorisation of the court to endorse or reject a particular course of action. The court ultimately gives its conclusion by declaration both in relation to lawfulness and best interests. The terms of these declarations often cannot and indeed should not seek to be too prescriptive.

 

Keehan J reviewed the powers of the Court of Protection to enforce its orders (and note the criticisms of the LA for its ‘supine’ response)

 

The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014) All this said the Court of Protection jurisdiction is limited to the promotion of ‘the purposes of’ (my emphasis) the Mental Capacity Act 2005 (MCA) and, it follows, the appropriate order may be, from time to time, to direct the Deputy or some other person to take proceedings of a different kind in another court where the objectives fall outside the remit of the MCA.

 

Finally, of course, the court may direct penal notices to be attached to any order, warning the person of the consequences of disobedience to the order i.e. that it would be a contempt of court punishable by imprisonment and or a fine (or where relevant sequestration of assets). An application for committal of a person for contempt can be made to any judge of the Court of Protection by issuing an Application Notice stating the grounds of the application supported by affidavit in accordance with practice directions. (COPR 2007 makes additional provisions). In addition to this the court may make an order for committal on its own initiative against a person guilty of contempt of court which may include misbehaviour in the face of the court.

 

Initially the Local Authority considered that it had been comprehensively thwarted by Mr MASM’s unilateral actions. In a response which I considered to be supine, they advance no opposition to Mr MASM’s application to withdraw the proceedings. I was roundly critical of that reaction. Mrs MMAM had been rescued from squalor and neglect. I have been shown photographs of her previous living conditions. Her grandson, the man who negotiated what he calls her “repatriation” was living in the same house as his grandmother whilst her circumstances had reduced to the parlous conditions that I have described. In addition, Mrs MMAM lacked capacity in relation to medical, welfare and litigation decisions. Moreover she was in addition gravely ill physically. Local Authority’s simply have to absorb the extent of their responsibilities in these challenging cases. Vulnerable adults must be protected every bit as sedulously as vulnerable children. I emphasise that it is the safeguarding obligation that is similar- I do not suggest that vulnerable adults and children should be regarded as the same. Accordingly, I asked the Local Authority, the Official Solicitor and Mr MASM to reflect on the questions identified in paragraph 13 above.

I

 

 

Rather interestingly, both the LA and the family were submitting to the Court that the Court of Protection’s power in terms of making a declaration of best interests was a narrow one, limited to making a declaration of what was in MMAM’s best interests and not to making a prohibitive order.

 

If the declaration of interests was looked at in that way, the Court had not, and could not, make an order that prohibited the family removing MMAM and thus there was no order that could amount to a contempt of Court or a committal for contempt.

 

The Official Solicitor took a different view (and placed reliance on amongst others, a case called Long Wellesley, involving wardship and an MP removing his daughter from wardship without permission)

 

The Official Solicitor distils from these authorities the following propositions, namely that where:

 

  1. i) an application was issued in the Court of Protection specifically seeking the Court’s permission to remove P from the jurisdiction;

 

  1. ii) the court was seized of the matter;

 

iii) the court declared on an interim basis that it is in P’s best interests to live at a certain address within the jurisdiction;

 

  1. iv) it follows that a party, with knowledge of the application and court’s orders would commit a contempt of court by removing or organising for the removal of P from the jurisdiction without the court’s permission.

 

It is contended that this amounts to a contempt of court, even when no injunctive order has been made. In essence the argument is:

 

  1. i) the principles of wardship and parens patriae should apply to the Court of Protection, given the supervisory and protective nature of the Court of Protection’s jurisdiction, and P should be protected as would a ward of court and/or because;

 

  1. ii) such a person would be deliberately treating the declaratory order of the court as unworthy of notice.

 

 

 

So, the question is :- is a declaration of best interests something that if a person knows of it and thwarts it, a contempt of Court? Or is that only the case if the Court has the power to, and decides to, make an order that is prohibitive in nature and clear on the face of the order what a breach would be and what the consequences of breach might be.

 

That is, the difference between an order that says:-

 

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk

 

And

 

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk and her son and grandson shall not remove her from that property nor instruct others to do so. [and when sent to her son and grandson, the order also says “you must obey this order. If you do not, you may be sent to prison for contempt of court”]

 

You don’t often have cases in family law (or Court of Protection) where the litigation about the Spycatcher book is important, but in this one, it was an important part of the judicial reasoning as to what the status of a declaration of best interests was.

 

[It is a fascinating analysis, but beyond the scope of this piece – if you are interested in the fine detail, the judgment is well worth reading]

 

 

Drawing the strands of the case law, the legal framework and the agreed facts together, the following points emerge:-

 

  1. i) The Court made clear personal welfare decisions on behalf of an incapacitated woman which every party agreed to be in her best interests;

 

  1. ii) Breach of Court Orders even in the absence of a Penal Notice may nonetheless potentially be a contempt where there is a wanton disregard for the court’s decision;

 

iii) Some case law also suggests that in the exercise of the parens patriae any action hampering the objectives of the court is an interference with the administration of justice and therefore a criminal contempt see RE B(JA) (an infant) 1965 CH1112 at P1117:

 

‘any action which tends to hamper the court in carrying out its duty [to protects it’s ward] is an interference with the administration of justice and a criminal contempt’

 

 

If that third point applied to vulnerable adults, then a contempt of court could arise in circumstances where a person just hampered or interfered with the best interests decision, rather than in circumstances of the second point (wanton disregard for the Court’s decision)

 

The Official Solicitor was arguing in relation to that third point that in terms of safeguarding vulnerable adults and safeguarding children, the same principles applied in full. Keehan J was more guarded

 

 

Addressing the Official Solicitor’s argument in relation to actions hampering the exercise of the parens patriae I do not consider that the jurisdiction I am exercising here equates seamlessly with the exercise of the parens patriae or wardship jurisdiction in relation to children. Nor do I consider that Munby J intended to go so far in Re SA (supra). Whilst both jurisdictions require there to be a sedulous protection of the vulnerable, there is a paternalistic quality to wardship which does not easily equate to and is perhaps even inconsistent with the protection of the incapacitous adult, in respect of whom capacity will or may vary from day to day or on issue to issue. There is in addition, the obligation to promote a return to capacity wherever possible. The Court of Protection has a protective and supervisory role but wardship goes much further, it invests the judge with ultimate responsibility. The child becomes the judge’s ward. There is no parallel in the Court of Protection and it would be wrong, in my view, to rely on this now dated and limited case law (identified by Mr McKendrick) to permit this Court to reach for a power which is not specifically provided for in the comprehensive legislative framework of the Mental Capacity Act 2005.

 

The law in relation to children has also moved on from the landscape surveyed by Lord Atkinson in Scott v Scott [1913] AC 417, particularly since the inception of the Children Act 1989, drafted of course, with ECHR compatibility in mind. Lord Atkinson’s description of a ‘paternal and quasi domestic jurisdiction over the person and property of the wards’ has little resonance for practitioners for whom ‘family life’, protected under Article 8 of the ECHR, is evaluated by analysing competing rights and interests, where the autonomy of the child is also afforded great respect. Unsurprisingly and partly in response to the range of these principles the scope and ambit of wardship has reduced very considerably (Section 100 Children Act 1989 repealed Section 7 of the Family Law Reform Act 1969, the route by which the High Court had derived its power to place a ward of court in the care, or under the supervision of a Local Authority). Whilst Mr McKendrick is entirely right to draw this line of authority to my attention, the position in relation to wardship is, to my mind, largely anomalous, predicated as it is on the somewhat artificial premise that the court represents the Sovereign as parens patriae and cannot therefore be resolving contested issues as between the parties in an non adversarial arena (see Arlidge, Eady and Smith on contempt (4 edition) (Para 11-338). Mr McKendrick put much emphasis on the judgment of Munby J in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 84. In particular he referred me to par 84:

 

“As I have said, the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions.”

It is important to emphasise that Munby J whilst emphasising the similarity of the two jurisdictions ‘for all practical purposes’ also notes the essentially different, indeed unique, nature of the wardship jurisdiction, later in the same paragraph:

 

“The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult.”

 

 

Keehan J decided that ultimately, the third point did not apply to vulnerable adults, and that despite the family’s conduct being entirely inimical to MMAM’s welfare and wellbeing, what was needed for a contempt and a committal remedy in Court of Protection cases was an order drawn in a prohibitive way with a penal notice. Keehan J decided that the Court of Protection had powers under s16 Mental Capacity Act 2005 to make such orders arising from their declaration of best interests

 

 

Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual’s welfare. There may, in simple terms, be a ‘second best’ option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard.

 

 

Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be ‘defiance’ of a ‘declaration’ nor can there be an ‘enforcement’ of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother’s best interests. The course he took was not a ‘second best’ option but one entirely inimical to his mother’s welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings.

 

 

 

As a result, there was no legal power, from the orders that were in placed, to lodge a committal notice or to commit the family to prison for their actions. All that Keehan J could do was to criticise them for their actions and order that they pay the costs of this hearing (which were probably considerable, given the amount of legal research that was needed – once people get into reading Spycatcher and 1831 cases about dubious MPs http://hansard.millbanksystems.com/lords/1831/jul/19/privilege-case-of-mr-long-wellesley not to mention the entire law of contempt, wardship and penal notices, the costs do mount up)

 

He also suggested that the LA should probably think very hard about whether it was sensible for the son to remain MMAM’s deputy with powers over her financial affairs.

 

As for more general guidance

 

 

Such guidance as I can give can only be limited:

 

  1. i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the ‘making of orders’ as well as ‘taking decisions’ in relation to P’s personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so;

 

  1. ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court;

 

iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate;

 

  1. iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable;

 

  1. v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting (supra).

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Sentence first, verdict afterwards

Posted on February 2, 2015 by suesspiciousminds

Some extraordinary appeals kicking around – there’s a cracker called Re A, which involves a judge shouting at a 13 year old child and threatening to make costs orders against her personally (but I’m waiting for that to go up on Bailii).

 

In the meantime, this little treasure.

Re S-W children 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/27.html

 

Three children, 14, 11 and 10. They’d been living with grandparents for about a year and a half by the time the case came to Court, because the mother was having problems with alcohol and drugs and was struggling to end a violent relationship.  There had been a period just before issue where rehabilitation looked like a possibility, but the assessment looking at that had been unsuccessful.

It wasn’t an initial hearing where there looked to be great prospects of these children returning to mother’s care, but one has to bear in mind that these were not tiny tots, but children of 14,11 and 10, and who would have their own views to express and be considered.

The Children’s Guardian had made it plain in the initial document that she hadn’t been able to meet the children yet, but knew that all three were saying they wanted to go home to mother, and that this would be an important part of her work.

The first hearing then, was one in which all of the lawyers were in agreement that there was some work to be done

 

i) The local authority would pay for a drugs hair strand test on the mother. This was a matter of considerable importance …….because

ii) the local authority were to convene a Family Group conference in order to see if a way could be found for LW to return, in whole or part, to the care of his mother. It was hoped that if that could safely be achieved, it might act as a break on the disruptive behaviour which was leading to the constant breakdown in his placements. The local authority note of the meeting says “is it just about good enough with mum, may be able to go back.” The timetable was to provide for an addendum to the parenting assessment already filed by the local authority;

iii) Efforts were to be made to trace the father of ES who had not been served;

iv) Neither of the grandmothers wished to be considered as foster carers and therefore Special Guardianship assessments were to be carried out by the local authority with a view to securing the future of those two children by the making of Special Guardianship Orders;

v) It was agreed that a slimmed down number of documents from that listed by the Guardian in her report would be disclosed, but that only one or two of those documents would be placed in the bundle. This would allow the Guardian to carry out a full review of the case whilst ensuring compliance with Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)… the Bundles Direction) para 5.1 which limits the court bundle to 350 pages of A4 text; (see also Re W (Children)(Strict Compliance with Court Orders) [2014] EWFC 22);

vi) The matter would be listed for an early Issues Resolution Hearing (IRH) with a view to the case being concluded substantially within 26 weeks.

 

The Judge, His Honour Judge Dodds (who you might remember from https://suesspiciousminds.com/2014/07/02/go-on-then-appeal-me-i-dare-you     – they did, he lost)  took something of a robust approach, making Care Orders and ending the case at the first hearing, making that decision within minutes, not listening to anyone, and not giving a judgment.

 

  1. A transcript of the hearing in front of the judge has been made available; it reveals that within a matter of minutes, the judge had made abundantly clear, in trenchant terms, his determination to conclude the case there and then by making final care orders. The judge was fortified in his approach, he told the parties, by the fact that the previous week (30 July 2014), an application for permission to appeal in relation to another final care order he had made at the CMH in a different case had been refused by McFarlane LJ : Re H (Children) Case No: B4/2014/2033.
  2. The judge was scathing of the Guardian’s report and her reasons for requesting further information, saying that “advice about the practice direction that came in on 31st July” (a reference to the new Bundles Direction), would signal the end to what he referred to as “this sort of Victorian detail”.
  3. In relation to LW’s situation he said that whilst he wished LW “every good luck in the world but the Children Act and the court has nothing to do with it”.
  4. All the parties crumbled under the judge’s caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews).
  5. At one stage the judge referred to the mother as looking “upset and bewildered”. It is hard to see how she could have looked otherwise given the course the proceedings were taking.
  6. The judge gave neither a judgment nor reasons prior to making final care orders in relation to all three children.

 

I imagine there was something of a sprint or scissors-paper-stone battle as to which of the parties was going to appeal this first.  Bear in mind that this was a DIRECTIONS hearing, the first hearing in the case and that nobody had been suggesting that the Court should make final orders.

 

The Court of Appeal had to consider whether the Judge might, just might, have exceeded his robust case management powers, and instead made an order which was disproportionate and unfair.

The fact that when Permission to appeal was granted, McFarlane LJ had effectively said to the appeal judges “Bloody hell folks, you really need to check THIS ONE out” was rather telling:-

“In any event, there is a compelling reason sufficient to justify this case being considered by the Court of Appeal. The judge’s approach could not have been more robust. He sought to justify such an approach on the basis that recent family justice reforms and case law. There is a need for the Court of Appeal to consider whether such a robust summary approach is justified and/or required by the recent extensive changes to procedure and case law and, if so, how the basic requirements of a fair trial and judicial analysis are to be accommodated in such a process”.

 

Nicely put.  The  approach adopted ‘could not have been more robust’  – well, not unless the advocates in sequential order had carefully and precisely driven their cars into the Judge’s own car in front of him, moments before the hearing. The Court of Appeal do wonders with their “hell to the power of no, squared”

  1. The expectation is therefore that a CMH will ordinarily be an essential management hearing designed to get the case in proper order to enable it to be ready for disposal, whether by consent or following a contested hearing, within 26 weeks. This is in contrast to the IRH when all the evidence, including expert evidence should be filed and where, unlike the CMH, the rules specifically require consideration to be given as to whether the IRH “can be used as a final hearing” (PD12A Stage 3- Issues Resolution Hearing)
  2. Every care judge will be conscious that, whilst it is in a child’s best interests for their future to be determined without delay, it is equally in their best interests that the management of the case which determines their future should be fair and Article 6 compliant. The danger lies when, as unfortunately happened here, vigorous and robust case management tips over into an unfair summary disposal of a case.

 

The President took up the baton

  1. My Lord has drawn attention to the famous words of Lord Hewart CJ in R v Sussex Justices [1924] 1 KB 256, 259. In the present case it is unhappily all too apparent that no dispassionate observer of the proceedings or reader of the transcript could think that justice was done, let alone that it was seen to be done. It was not.
  2. Vigorous and robust case management has a vital role to play in all family cases, but as rule 1.1 of the Family Procedure Rules 2010 makes clear, the duty of the court is to “deal with cases justly, having regard to any welfare issues involved”. So, as my Lord has emphasised, robustness cannot trump fairness.
  3. In the context of case management, fairness has two aspects: first, the case management hearing itself must be conducted fairly; secondly, as I observed in the passage in Re TG to which my Lord has referred, the task of the case management judge is to arrange a trial that is fair. Here, there was a failure in both respects.
  4. We are all familiar with the aphorism that ‘justice delayed is justice denied’. But justice can equally be denied if inappropriately accelerated. An unseemly rush to judgment can too easily lead to injustice. As Pauffley J warned in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 1 FLR 1384, para 40, “Justice must never be sacrificed upon the altar of speed.”
  5. Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case: see Re TG, paras 27-28. But these powers must always be exercised, especially in care cases where the stakes are so high, in a way which pays due regard to two fundamental principles which apply as much to family cases as to any other type of case.
  6. First, a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn. It is one of the oldest principles of our law – it goes back over 400 years, to the earliest years of the seventeenth century – that no-one is to be condemned unheard: see Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, paras 28-29. As I observed (para 55):

    “The fact, if fact it be, that the circumstances are such as to justify intervention by the State, … does not absolve the State of its duty nonetheless to act fairly. It is not enough for the State to make a fair decision: the State must itself act fairly in the way in which it goes about arriving at its decision.”

    A parent who wishes to give evidence in answer to a local authority’s care application must surely be permitted to do so.

  7. Secondly, there is the right to confront ones accusers. So, a parent who wishes to cross-examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so.
  8. I stress the word important. I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to ‘testing the evidence’ or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome.
  9. Quite apart from the fundamentally important points of principle which are here in play, there is great danger in jumping too quickly to the view that nothing is likely to be achieved by hearing evidence or allowing cross-examination, in concluding that the outcome is obvious. My Lord has referred to what Megarry J said in John v Rees. The forensic context there was far removed from the one with which are here concerned, but the point is equally apposite. As I said in Re TG, para 72:

    “Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel.”

  10. I agree with my Lady that there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate. Re H, to which my Lady has referred, was such a case, but the particular and unusual facts which there justified a summary process need to be borne in mind. Re H is not and must not be treated as justification for any general principle, let alone for proceeding as the judge did in the present case.
  11. Quite apart from the fact that such a ruthlessly truncated process as the judge adopted here was fundamentally unprincipled and unfair, it also prevented both the children’s guardian and the court doing what the law demanded of them in terms of complying with the requirements of the Children Act 1989 and PD12A. I agree with my Lady’s analysis, in particular in relation to care plans and the meaning and effect of the various provisions in sections 31 and 31A of the Act to which she has referred.

 

Now, of course Judges are human beings, and can have a bad day. And of course, there are some Judges who would have read the background and thought “well, this is one that has some inevitability written all over it”. There might even be Judges who would cut back on the timetable proposed by the parties and view this as a fast track case. One could make a reasonable argument for finishing this case in 10 weeks rather than 26.

There might even be Judges who are unable to supress what their eyebrows think of the whole state of affairs.

But if you’re a Judge in a family case who has made a decision which the appeal Courts can describe as ruthlesss, fundamentally unprincipled and unfair, then things have gone very badly wrong.

I don’t practice in this particular area of the country, but I wonder whether any advocate representing a parent could possibly feel that their client is going to get a fair hearing from a Judge who was capable of making a decision of this sort.

 

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Children and parties

Posted on January 27, 2015 by suesspiciousminds

 

 

Not children’s parties, as in the woman who sent some parents an invoice for failure to attend at her child’s party at a dry ski slope resort.

Expert: Invitation to Child’s Party Not Enforceable

 

This is the Court of Appeal setting out whether children who are the subjects of an order can appeal that order, or be made a party to the appeal.

RE M (Republic of Ireland) (Child’s objections) (Joinder of children as parties to appeal) 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/26.html

 

(The Republic of Ireland bit only refers to the country where the children were being ordered to return to – this is a classic Article 13 Hague Convention piece of litigation, and the principles apply across the board)

 

The Court of Appeal indicate a degree of growing tired of appeals about article 13 and indeed Brussels II, and I have to say that I feel their pain.

  1. In cases under the1980 Hague Convention, speed is of the essence. The object of the Convention is to return abducted children as soon as possible to their home country, restoring the status quo and enabling the courts there to determine whatever disputes there are about their future upbringing. The longer the time that elapses following a wrongful removal or retention, the more difficult it becomes to return the child. In recognition of this, judgment is expected to be given no later than 6 weeks after the commencement of the proceedings (see Article 11(3) of Brussels IIa (Council Regulation (EC) No 2201/2003 of 27 November 2003, hereafter simply “Brussels IIa”) and Article 11 of the 1980 Convention. The procedure adopted is summary.
  2. It may be thought paradoxical that a summary procedure such as this should have generated the quantity of jurisprudence that the 1980 Convention has. Over the years there have been many technical and sophisticated legal arguments about how its terms should be interpreted and a significant number of appeals.
  3. Technicality of this sort gets in the way of the objectives of the Convention. In Re P-J (Children) [2009] EWCA Civ 588[2010] 1 WLR 1237, Wilson LJ (as he then was) observed, “Nowadays not all law can be simple law; but the best law remains simple law.” In recent times, it has become increasingly apparent that the law relating to child’s objections under Article 13 of the Convention, as it is presently perceived to be, is far from simple law. To judge by the number of applications to the Court of Appeal for permission to appeal on this point, it is not at all easy to put into practice. Does this have to be the case?

There were two major rows in this appeal. The first was whether a previously decided case, Re T  (which indicated that if a child did object to a move, that would probably be determinative of the application) was now wrong, in the light of the principles arising from the Supreme Court that children as young as 6 could voice an objection   – and the Court of Appeal decided that Re T doesn’t really stand up any more on that point – the child’s objection is one of the range of factors to be considered but is not determinative of the application.

The second was whether the children, who manifestly were objecting but the original trial judge had held were not, could be parties to the appeal or even bring an appeal.

 

The Court of Appeal decided that children CAN appeal or be joined and also give some practical guidance.

  1. There was no dispute that there was binding Court of Appeal authority establishing that the children could in principle be permitted to bring their own appeal, even though they had not been parties in the court below, see for example George Wimpey Ltd v Tewkesbury Borough Council [2008] 1 WLR 1649, referred to in Re LC by Lord Wilson at §11. Neither was there any dispute that they could be joined as parties for the first time at the appeal stage of proceedings. However, the procedural framework for their participation is possibly somewhat deficient.
  2. The FPR 2010 deal comprehensively with the participation of children in proceedings but it was agreed between the parties that when the question of the participation of a child arises for the first time at the Court of Appeal stage, it is not the FPR 2010 which apply but the CPR 1998, which do not cover the ground as thoroughly.
  3. I have already referred to Rule 16.2 FPR which provides that the court may only make a child a party if it considers that it is in the child’s best interests to do so. There is no equivalent provision in the CPR. Rule 19.1 and 19.2 CPR provide:

    “19.1 Any number of claimants or defendants may be joined as parties to a claim.

    19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period).

    (2) The court may order a person to be added as a new party if –

    (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

    (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

    (3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.

    (4) The court may order a new party to be substituted for an existing one if –

    (a) the existing party’s interest or liability has passed to the new party; and

    (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.”

  4. Rule 52.1 defines “appellant” and “respondent” for the purposes of part 52 as follows:

    “(d) ‘appellant’ means a person who brings or seeks to bring an appeal;

    (e) ‘respondent’ means –

    (i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and

    (ii) a person who is permitted by the appeal court to be a party to the appeal;”

    It includes no guidance at all as to when a person should be permitted by the appeal court to be a party to the appeal, let alone any guidance tailored to the situation of a child who wishes to participate. This does not mean, in my view, that welfare considerations are irrelevant to the decision whether to join the child; they are, as I observed in Re LC, “by no means out of place”. But they are not necessarily determinative and there is no best interests threshold such as there is in the FPR. Although not strictly applicable, I see no reason why regard should not be had to the guidance provided in Practice Direction 16A of the FPR to the extent that it may prove useful in the rather different circumstances of the Court of Appeal and the specialist sphere of Hague Convention proceedings. Lord Wilson referred to it at §§50 et seq of Re LC and I will not rehearse it further here.

  5. Neither is there any equivalent in the CPR to the provisions of the FPR which require or permit a guardian to be appointed for a child. It may be that the provision in CPR Rule 52.10(1) whereby, in relation to an appeal, the Court of Appeal has all the powers of the lower court, would provide a basis for the appointment of a guardian. But that does not arise for decision in this case. Adequate protection for the child’s interests on an appeal can generally be achieved in any event by means of a litigation friend appointed in accordance with Part 21 CPR.
  6. Part 21 CPR deals with children and protected parties. A ‘child’ means a person under 18 years of age (Rule 21.1(2)(b)). Rule 21.2(2) provides that a child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under Rule 21.2(3) permitting the child to conduct the proceedings without. Rule 21.2(4) provides that an application for an order under Rule 21.2(3) can be made by the child. If the child already has a litigation friend, it must be made on notice to the litigation friend but may otherwise be made without notice. The court may appoint a litigation friend by order (Rule 21.6). Alternatively, Rules 21.4 and 21.5 deal with becoming a litigation friend without an order.
  7. The functions of a guardian are well understood by family practitioners and are set out in the FPR. CAFCASS guardians (often with a social work background) are the most familiar guardians but they are not the only type. Lord Wilson observed in Re LC that, had Cobb J made T a party to the first instance proceedings in that case, she would have been required to act by a guardian but that such a status might have been conferred on her solicitor. He also observed (§55) that the grant of party status to a child leaves the court with a wide discretion to determine the extent of the role which he or she should play in the proceedings. He explained the sort of involvement he would have contemplated had T been a party and said that it would have been for her guardian to decide which of the documents filed in the proceedings should be shown to T.
  8. The functions of a litigation friend are no doubt fully understood in the usual civil context in which the system operates although the researches of counsel did not produce any authorities to enlighten us further about how they actually carry out their functions or as to the principles that the court should apply when deciding whether to order that a litigation friend is not necessary. How a litigation friend is to function in the very different environment of an appeal in a Hague Convention case is rather more opaque. No guidance is to be found about that.
  9. Fortunately, this area of work is well served by very experienced solicitors who are familiar with these sorts of proceedings and extremely capable of looking after the interests of the children affected by them. In this case, the solicitor for J and D was appointed as their litigation friend and appears to have been able to discharge that role efficiently and without encountering any difficulties in practice. This sort of arrangement may often commend itself where the question of joining children at the appeal stage arises.
  10. Children need to know that their views are being listened to and that their particular concerns are not being lost in the argument between their parents but it must be recognised that direct participation in proceedings can be harmful for children. As Lord Wilson said in §48 of Re LC, “[t]he intrusion of the children into the forensic arena….can prove very damaging to family relationships even in the long term and definitely affects their interests”. I therefore contemplate that it may be necessary for a litigation friend to guide and regulate the child’s own participation in the proceedings, just as a guardian would. He or she will no doubt determine which documents filed in the proceedings should be shown to the child and take decisions, in consultation with the child, about whether the child should attend the court hearing. In the very unlikely event that an intractable issue arises between the litigation friend and the child, there may be no alternative but to ask the court to give directions, but I would expect such a situation to be extremely rare. What I do not think a litigation friend can do is provide a welfare assessment for the court in relation to the child as a guardian would do. However, where the litigation friend is the child’s solicitor, as I anticipate will be so in the vast majority of cases, he or she will no doubt assess the case and guide and support the child in their approach to the litigation, as any solicitor would do for an adult client.

 

Just in case you were thinking that a door has been opened here, the Court of Appeal try to close it, just like you might if you open your door on a Sunday just as Sky Super Sunday is about to begin only to find two well-dressed people wanting to talk to you about Jesus. The door might still be technically open, but there’s no way that anyone is feeling like there is a welcome invitation to come in and break Jammy Dodgers with you.

I end this section of my judgment with a cautionary note. It should not be expected that an application for children to be involved in proceedings, either as appellants or as respondents, for the first time in the Court of Appeal will be received sympathetically. By the time the matter reaches the Court of Appeal, it is usually far too late in the day to address this sort of issue. I have said several times already, and make no apology for saying again, that this needs to be thought of at the very outset of the proceedings. As to how an application made at that stage may fare, nothing that I have said in this judgment is intended to affect the existing jurisprudence on the subject.

 

 

 

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Rihanna you’re a Womble !

Posted on January 23, 2015 by suesspiciousminds

 

 

This is not child protection at all, and a solid 80% of what follows is nonsense, but it is all based on a commercial law case called Fenty and Others v Arcadia Group 2015 just decided in the Court of Appeal.   (the case is really Rihanna v Topshop, but that’s the formal name – Fenty is Rihanna’s surname, and Arcadia own Topshop)

 

 

This is the original judgment

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/2310.html&query=fenty&method=boolean

 

 

and this is the appeal

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/3.html

 

 

Quickly, because this might confuse older readers, younger readers and No-Telly Neville.   Rihanna is a current pop star, with a substantial batch of hit songs and is also a fashion icon for young people – she is cool. The Wombles are a group of fictional furry creatures who live on Wimbledon common and who make good use of the things that they find, things that the everyday folks leave behind. They pick up rubbish.

 

 

Major recording artist with a string of catchy hits

Major recording artist with a string of catchy hits

Picks up rubbish (yes, I went there with the Chris Brown gag)

Picks up rubbish (yes, I went there with the Chris Brown gag)

 

[Note that use of any image of the Wombles or Rihanna does not imply that either of them endorse the Suesspicious Minds website   – but let’s be honest, we all know that if they want to find out information about family law in the UK, they don’t go anywhere ELSE to find it]

 

You are probably asking yourself at this point, how the Wombles and Rihanna come together in the English Courts – and possibly also whether there is a musical collaboration in the offing. I will relate to you, how their histories enweave.

 

The case was about Topshop selling a T-shirt with a photographic image of Rihanna, and Rihanna suing them.

 

The Court of Appeal point out quickly that in England, unlike America, there is no such thing as “image rights” – Rihanna, as a celebrity, does not own the copyright in her image or photograph or appearance. The copyright lies with the creator of the photograph, who had consented to its use.

 

The case was, instead, dealt with under the umbrella-ella-ella of “passing off”

 

the law of passing off is not designed to protect a person against fair competition. Nor does it protect a person against the sale by others of the same goods or even copied goods. What it protects is goodwill and it prevents one person passing off his goods or services as those of another. As Lord Oliver of Aylmerton explained in Reckitt & Colman Products Ltd v Borden Inc & Ors [1990] RPC 341 at page 406, a claimant must establish three elements in order to succeed in such a claim. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the particular name or get up under which the goods or services are offered to the public, such that the name or get up is recognised by the public as distinctive of the claimant’s goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public leading or likely to lead the public to believe that the goods or services offered by him are the goods or services of the claimant. Third, he must demonstrate that he suffers or, in a quia timet action that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the claimant.

 

 

For this case, Rihanna would have to show that :-

 

  • She has a degree of goodwill in her name and reputation, particularly in fashion
  • That Topshop had led the public to believe that the T-shirt was a Rihanna product in some way
  • That she suffers loss or potential loss as a result of people believing that this was an official or endorsed product.

 

 

Would she win, or would Topshop be able to say that Rihanna had found love, and a hopeless case?

 

The judgment is worth reading – the original trial Judge had been very switched on and in touch in relation to Rihanna, celebrity culture, young people, viral marketing and fashion, including that the item Rihanna was wearing on the unauthorised T-shirt being a “bralet”  – and resisted, where I would have not, of saying it was a bralet for a starlet.

 

 

This was his original conclusion

 

There followed an overall evaluation by the judge of the various findings which he had made up to this point. He considered that the fact that the t-shirt was a fashion garment and the further fact that it was on sale in a high street retailer did not assist one side or the other. However, the nature of the image itself was a fairly strong indication that the t-shirt might be authorised and approved by Rihanna herself. So also, the public links between Topshop and famous stars in general and, more importantly, Rihanna in particular, would enhance the risk of consumers believing the garment had been authorised by her. He recognised that the fact that neither the swing tag nor the neck label carried the Rihanna name or the R slash logo pointed against authorisation but, in his view, this was not sufficient to negate the contrary impression. He summarised the position this way:

 

“72. … Although I accept that a good number of purchasers will buy the t-shirt without giving the question of authorisation any thought at all, in my judgment a substantial portion of those considering the product will be induced to think it is a garment authorised by the artist. The persons who do this will be the Rihanna fans. They will recognise or think they recognise the particular image of Rihanna, not simply as a picture of the artist, but as a particular picture of her associated with a particular context, the recent Talk That Talk album. For those persons the idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon. Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorisation itself. In both cases they will have been deceived.”

Finally, the judge dealt with damage. He considered that if, as he believed to be the case, a substantial number of consumers were likely to be deceived into buying the t-shirt because of a false belief that it had been authorised by Rihanna then that would obviously damage her goodwill. It would result in a loss of sales to her merchandising business and also represent a loss of control over her reputation in the fashion sphere. It was, he thought, for her to choose which garments she endorsed. In all the circumstances, Topshop’s sale of the t-shirt without her approval amounted to passing off.

 

 

I enjoyed the detail that Topshop had commissioned some market research prior to the trial, getting people to look at the T-shirt and comment as to whether they thought it was an official piece of Rihanna merchandise. They called the author of that research.

 

Sadly, as she was a trainee solicitor working at the firm representing Topshop, one might think that she wasn’t the most impartial witness ever to take the stand. I think the Judge was very kind about that

 

 

 

Mrs Armstrong is a trainee solicitor in the defendants’ solicitors currently seconded to the legal team at Arcadia, the parent group of the defendants. She gave evidence of efforts she had undertaken to find out if Topshop staff were aware of any feedback from customers concerning the t-shirt. She was a good witness but I am not satisfied the exercise Mrs Armstrong described was sufficiently rigorous to establish the proposition advanced, that there had been no comments or relevant feedback relating to the product.

 

 

But where, Suesspicious Minds are the Wombles? Do not worry, I am about to go with the Orinoco Flow

 

 

In the original judgment, there are a number of legal authorities referred to. Two stood out for me

 

In the 1970s there were a number of cases in which merchandising rights were not found to exist before the English courts. These included Tavener Rutledge v Trexapalm (Kojak Lollipops, the “unauthorised” local lollipop retailer succeeded against the makers of the television program) [1977] RPC 275

 

 

[I remember those Kojak lollipops! Also this story reminded me that when I was eight and a barber asked me how I wanted my hair cut (the only acceptable answers at the time being “short back and sides” or “just a little bit shorter all over”) I instead said “Well, I like the police, and I like lollipops, but I don’t want to look like Kojak”   – this being the first time I wrote my own material rather than relying on the Big Daddy bumper joke book. Note for Neville, Kojak was a TV detective in the 70s who had two gimmicks – he was bald, and he sucked lollipops. He also had a catchphrase, see next gag]

 

For God’s sake, Suesspicious Minds, I hear you cry. I did not start reading an article called “Rihanna, who loves you baby?”  – where the chuff are the Wombles?

 

The next merchandising authority where a celebrity was used to endorse a product without that celeb’s permission was this:-

 

Wombles v Womble Skip Hire (skips for collecting rubbish branded Womble, injunction refused) [1975] FSR 488

 

 

 

[It is beyond the scope of this article, but the case that altered the Wombles precedent involved Teenaged Mutant Ninja Turtles. I am SERIOUSLY thinking about becoming a lawyer specialising in “passing off” cases if I would get to bring Kojak, Wombles and Ninja Turtles to Court in my bundle of authorities]

 

 

I can’t really think about Wombles v Womble Skip Hire without envisaging the actual real wombles becoming outraged and sitting in a solicitors waiting room and bringing the case. Orinco sat behind counsel with his nose in a bowl of porridge, Tobermory with a pencil behind his ear rebuilding the witness box and Madame Cholet checking out the RCJ cafeteria.  Or a procession of them walking purposefully down the hallways  (possibly with a Womble cover version of “Little Green Bag” playing in the background)

 

But even better, in my mind, is that at some point, Rihanna’s legal team had to tell her that there was a case that would help in her litigation and that it is about Wombles. And them having to explain to Rihanna what a womble is. For some reason in my imagination, Rihanna’s lawyer sounds like a New York wise-guy (which he or she absolutely is not, in real life, in any way, and this should not be construed as any suggestion that they are anything other than amazing human beings)

 

“So, they’re like sort of bears, see, but they wear clothes and hats. And they have snouts, and they have bright black shiny noses and one of them eats porridge and falls asleep – like all the time. That one is Orinoco, see?  And the main man, he’s Great Uncle Bulgaria, and he sends his crew out every day to find a copy of the Times for him. They all live in a burrow, and the burrow is wallpapered with old newspapers. And they have a French chef, and she’s a womble too – they call her Madame Cholet. You know the Smurfs, right? Like smurfs, only not. Both have an old man leader, and only one girl. But wombles, they ain’t blue “

 

“Are you billing me for this?”

Rihanna wins the Court of Appeal case, just as the Wombles won their own case about protecting other people using their image to sell unauthorised products. So Rihanna, you’re a womble.

 

 

 

 

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Fifty-fifty – equal parenting time

Posted on January 23, 2015 by suesspiciousminds

 

 

 

As far as I know, Re M (A Child) 2014 is the first time the Court of Appeal have dealt with a case involving equal parenting time since the Children and Families Act with its controversial clause came into being.

 

http://familylawhub.co.uk/default.aspx?i=ce4491

 

This case has some other remarkable features, but just focussing on what the Court of Appeal say about equal parenting time – that being the order that the trial Judge made.

 

 

There is no longer any need, because of the change in the legislation, to impose a “shared” order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent.

 

If you are one of the campaign groups representing fathers, the Court of Appeal saying that a 50-50 split will be a “rare order” “only to be contemplated where there is confidence it will not work to the disadvantage of the child” is not something you wanted to hear.   So all parents are equal, but some are more equal than others.

 

Anyway, the meat of this appeal was more on the issue of whether a Court can impose a condition on WHERE a parent will live when making an order that says that the child will live with them (residence order, in old money)

 

 

In this case, the boy is 5 ½ .

 

The circumstances as they were before the judge was that for some time the mother had set up home with W in Newcastle whereas the father lived in London with his two older children, half siblings of W, and it was impracticable to consider the father moving from London, given his commitments there and, in particular, his longstanding employment.

 

 

There were a series of findings about the father’s conduct that had led the mother to move out of the family home in London and move to Newcastle, the atmosphere in the family home having become ‘toxic’

 

So far as allegations that the mother made against the father, the judge made a greater number of findings. They all, in one aspect or another, relate to the degree of control that the father sought to assert over the family as a whole, but in particular over the mother.

 

One aspect that understandably had prominence was the unfortunate fact that the father was confirmed, as time went on, to be HIV positive. The question arose as to when he knew or must have known that that was the case and whether he told the mother promptly about that and, if not, why not. In short terms, the judge found that there did come a time when the father will have known that it was highly likely that he was HIV positive, but it was not for some year or more after that time that he told the mother about this, despite some active continuing sexual contact between them. The judge describes her finding in this regard as: “Appalling behaviour on behalf of the father. The mother was understandably terrified with this news.” The judge, in short, found the mother’s allegation proved.

 

The mother’s case was that the boy should live with her in Newcastle and spend some time with his father.

 

Father was saying that the boy should live with him in London and spend some time with his mother.

 

 

 

The Judge made an order which seemed utterly bizarre on the face of it, particularly given the findings made, which was that the boy would live with father in London and IF mother moved to London, there would then be a 50-50 split of time.

 

The judge, in the event, made an order that provided for W to be returned from Newcastle to live with his father in London and provided in the interim for arrangements for the mother to have contact. The order further provided that if the mother moved back to the London area herself, she would have substantial contact with her son. Indeed, we have seen a draft order, which counsel have explained to us is more than simply a suggestion of an order as a result of negotiation between counsel, but arose as a result of direct invention from the judge at two or three hearings up to and including 8 July 2014. The basis of the order is that if the mother moves to London, W: “shall live with his father and mother with the principle of equal shared time to include half of all school holidays.” In the meantime, or if the mother does not move to London, the provision was for holidays to be split into equal shares. For each alternate fortnight, so that is once every four weeks, W would travel with the father up to Newcastle to spend most of Saturday and half of Sunday with the mother, and, on another fortnight on each four week cycle, the mother would travel to London to have a similar amount of time with him

 

The mother appealed, on the basis that (a) given the findings and facts a decision to split the time equally was perverse (b) the evidence was that mother did not want to move back to London and would have considerable difficulty in doing so and (c) this stipulation amounted to attaching a condition to residence – something which is only to be done in exceptional circumstances which this was not.

 

 

Let us be fair to the Judge – this ‘third way’ compromise had been suggested by the CAFCASS officer.

 

“42.The recommendation of Mr Power is that W should be returned to the father and it is the hope from Mr Power that the mother will feel able to relocate back to London and therefore there can be come shared care arrangement. The mother says that it is quite impractical; she does not have a job, she does not have income, she does not know where she could afford to live and it is of note that neither party have initiated court proceedings so there are no financial provision proceedings in being. So at the moment the position is that the mother has no known resources such that she can obtain from her family or from by finding a job. She says that if she has to come back to London she does not know that she can find accommodation. She looked into the possibility of finding accommodation and a refuge is one possibility but the problem about that is that at the time she requested alternative accommodation she was told the only then available refuge was in Manchester. 43. Mr Power was of the view that, biding her time while she remains in Newcastle, that a London refuge would eventually be available to a suitable place and that in his experience people are satisfactorily re‑housed, usually within a period of six months, and that whereas living in a refuge is not something one would necessarily wish to do it was perfectly adequate if W were to live with the mother in the refuge. It is fair to say that, looking at the large amount of documentation produced for this hearing, that the mother in the past has been able to potentially find herself accommodation; at one stage she has through her brother I think paid for four months worth of rent in a flat if the father would co‑operate to allow for some further finance of that in the future but the father refused so she has looked into the possibility and obtained money from her brother. Her brother, also I think, is in medicine or science and lives on the continent and he has helped her financially in the past.”

 

 

 

The Court of Appeal give me a lovely new phrase to use – referring to key passages of the judgment, they say that these are the “engine room” of the judgment. Stealing that!

 

In paragraph 46, the judge, looking at W’s best interests, said this: “46.It is vital for him that he should have the continued love and care from his mother in the future as he has had in the past. 47. So looking at those two options, those are really the only two options. Either W stays in Newcastle with the mother under the regime she puts forward or some other workable contact arrangement, what these days are child arrangement and sharing of care, or she comes down to London and she with the father, together, care for W. Mr Power, when asked about what he had in mind with a shared care arrangement, said that he would hope that the mother would have at least half the care of W and possibly more than half the care of W depending upon her commitments, but he could not be more definite about the arrangements because at the moment the plans are inchoate.

 

  1. The father’s proposal if W was returned to London would be that W would see his mother very little indeed. Having heard the evidence he said that he would support what Mr Power recommended. Therefore if the mother can remove herself back to London then she should be able to have a substantial part of the care of W depending upon where in London she is able to live. Of course the court cannot force the mother to move back to London; it will have to be a decision for to make but looking at all the options. The court must make the decision which is the least destructive of family life, must make no order unless an order is necessary and must make a proportionate order. It is a difficult balancing exercise but the balancing exercise must be carried out in what is in this little boy’s best interest. I have no doubt it would be in the mother’s best interest that she should remain in Newcastle. She is happy there and she has a very nice home and there are suitable arrangements for W but this case sadly cannot be decided upon what is in the mother’s best interests; it has to be decided on what is in W’s best interest. I am well aware that she in a difficult predicament because of at the moment she has no income, she has no job and her immigration status is questionable but she is, I find, a resourceful woman and she has been able to achieve that which she wanted, within reason, in her circumstances whilst she was living with the father. Although I have found father was controlling, nevertheless she did go out, she went to courses, she had a job, she left when she chose to to take W to see family or friends. She says she has no friends now but she obtained friends over Facebook and in the past she went to stay with one friend, S, and at one stage she was able to be friendly with her brother’s fiancée but that too has come to an end. So she is a woman who is capable of making friends, who is capable of arranging life as best she may even when in that toxic atmosphere. Therefore I am satisfied that if she decides she wants to move back to London then she will be able to find one way or another that will enable her to do so. As I say, at the moment, there are no financial proceedings so I know not how they may work out if such applications were made; that is not for this court and it is certainly not for this court today.

 

  1. Therefore, carrying out that balancing exercise and looking at what is in the best interests of W, I have come to the conclusion that it is in the best interest of W that he now should be returned to the father’s home and that he should live there under a shared care arrangement; a child arrangement where, in principle, the mother should have a substantial part of the care of W but that of course cannot be put in place until and unless the mother is willing and able to move back to London. If she is not, and in the meantime whilst she remains in Newcastle, sensible arrangements will need to be made so that she can see W and I will leave the parties to see if they can, by agreement, work out a sensible regime. There needs to be a date when W is moved back here; clearly he needs to be back in time for the start of school in September and consideration needs to be given to what happens in the meantime and no doubt arrangements will have to be made but in my judgment, for this little boy, the familiarity of school and the church that he has been going to is, I agree with Mr Power, what is the most stable part of W’s life in the light of the fact that his parents are separated. Therefore, in my judgment, W should return to live with the father. The order should reflect the fact that, in principle, the mother should have part of the care of W when and if she is able to come and live in the proximity to the father and to W’s school and until such time as that happens, what used to be described as contact arrangements will have to be worked out.”

 

Those paragraphs are the engine room of the judge’s judgment and have been the focus of the appeal before us

 

 

So, the Court of Appeal had to consider whether what the Judge had done did amount to attaching a condition on residence and whether that was justified.

 

The law on that really emerges from Re E (Residence : Imposition of Conditions) 1997 2 FLR 638 – “where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to chose where he/she will live within the United Kingdom or with whom. There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence”

 

The Court do have the legal power to make conditions under s11(7), but unless there are exceptional circumstances, they ought to have decided which of the two competing plans (with mum in Newcastle or with dad in London) was the right plan, rather than imposing an order which effectively compelled mother to move to London against her wishes.

 

 

In my view, the judge should have made a clear choice, hard though it would have been, between W remaining living in the care of the mother in Newcastle or living in the care of the father in London and she should not have endorsed the halfway house arrangement that she did, which, for the reasons I have given, was, first of all, in my view, impermissible as a back door condition, but secondly, and perhaps more importantly, was simply not justified on the evidence and hard to understand as a concept that would be compatible with the child’s welfare. For those reasons, I would allow the appeal and set aside the judge’s order.

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Christmas mass

Posted on January 22, 2015 by suesspiciousminds

I think that I’ve found the Court of Appeal case from THIS Daily Telegraph story

http://www.telegraph.co.uk/news/religion/11355745/Judge-orders-father-to-take-his-children-to-church.html

 

Or rather, Rich Greenhill found it. My mistake in searching was to be looking for a case about Catholic Mass, Christmas, Catholicism or even religion. That turned up nothing, so it is more of a brute force approach.

All we really know, to find the case, is that it was an appeal from HH Judge Orrell, the report says “children” so there’s more than one child, and the original case was heard in 2009.  Oh, and the Daily Telegraph father says that his oldest son is now ten, so we know that the case is about a boy born in 2004.

So, I found one Court of Appeal decision in 2009 from HH J Orrell, but it relates to one child, and doesn’t mention Christmas mass, catholicism or religion.  I don’t think it is therefore Re B (a child) 2009.

And Rich Greenhill sent me Re F (Children) 2013, which is a refusal of permission to appeal from a judgment by HH J Orrell and it is about two children, and it does mention  that the father would be spending some of the Christmas holidays with the children – there were a huge number of complaints by father, but attendance at Christmas Mass isn’t one of them.  And the order being appealed was from 2011.

Initially, I discounted it.

But but but, the Re F judgment does describe the father as Dr F, and we DO know from the Telegraph story that the father in their case was a “51 year old psychologist”

The children were two boys, the oldest being born in January 2004, so I think that’s another tick in the box.

And the appeal hearing here is about final orders, and says that the proceedings began in 2009 so it is possible that we are talking about the same case, just at a later stage.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/49.html&query=Orrell&method=boolean

 

I’d be reluctant to put too much store by the Daily Telegraph father and Dr F being the same person – it might instead be that they are two unrelated cases and that the Court of Appeal case with Daily Telegraph dad has not been reported.

Those are the only two  reported cases in the relevant timeframe where the Court of Appeal considered a private law case appeal against an order of HH Judge Orrell. And Re B doesn’t seem at all right because it was dealing with a 14 year old girl (who presumably would just decide for herself what she wanted to do on Christmas Eve) and not two children.

Re F  – is an appeal from HH J Orrell, relates to two boys, the oldest is the same age as the Daily Telegraph story, and is private law. And the father in both cases has a professional qualification which might entitle him to be addressed as Dr.

Even if Re F is the same one, it doesn’t help that much, but it doesn’t actually report the substantial feature of the Telegraph’s story, which is a complaint that the Judge :-

(a) Made an order that wasn’t asked for

(b) Made an order that was unfair

(c) That order was requiring a father to take his children to Christmas Mass, despite him not being Catholic.

(d) Had done so as a result of the Judge’s own religious beliefs rather than on any argument.

And the appeal as reported doesn’t tackle any of that.

 

 

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Criticism of professionals – two cases

Posted on January 20, 2015 by suesspiciousminds

These aren’t earth-shattering judgments (though I think that both are very well written and constructed, and worth sharing for that alone) and they aren’t precedent authorities for any points, but both raise practice issues which are valuable, and they also show that Judges are prepared to call out faults when they see them.

They also both have happy endings for the families concerned, and that’s nice to see.

 

The first is in relation to a Guardian,

Re R (Care proceedings :Rehabilitation) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B193.html

 

It involved two children, one nearly 8 and one 4 1/2. The Local Authority final plan was for both children to be returned to their mother’s care, the Guardian opposed that and wanted the children to be made the subject of a Special Guardianship Order and to live with their current foster carer (a family friend).

 

This is what the Judge said about the Guardian’s evidence and report.

217 There are two aspects of the guardian’s final report that concern me. I have noted that in his analysis of the advantages of being brought up by a natural parent the guardian said very little about the benefits of that, although it is universally accepted by professionals and the courts. He provided helpful answers when I specifically asked him about it, and Miss Shah in her oral submissions suggested that the advantages are so obvious that the guardian did not need to set them out in his report. In my view, that is not the appropriate or just approach to the analysis by a guardian who, in a final report, asks the court not to return the children to their mother’s care, and it would be a pity if that omission perpetuated the mother’s impression that the guardian remained set in his views against her.

218 I also found it remarkable that in his final analysis the guardian did not mention Miss Jones’ report. There was no summary, no analysis, nor any explanation of his reasons for rejecting the views of a jointly instructed expert. That he does reject her views is obvious from his position, and he had raised questions with her at an earlier stage. Nevertheless I consider that a serious omission.

219 Further, I noted that the guardian described the carer as a member of the children’s family and argued for a different approach to the right to family life on that basis, although he had previously described her as a “family friend”. Also in his oral evidence he referred to the children’s attachment to their mother as “insecure”, although he had previously described it in his report as “secure”.

220 These two matters have raised a concern that at the final hearing aspects of the guardian’s case have been overstated in an effort to support his argument that the children should remain in the care of the carer.

221 The guardian considers the case as finely balanced, but ultimately prefers the “status quo”, the continuation of the children’s placement with the carer under a special guardianship arrangement. He considers the local authority’s final care plan to be “high risk”. I accept that if the mother does relapse and the rehabilitation plan breaks down it would be catastrophic for the children. I have considered the other risks. I am persuaded that the mother will deal with them with support robustly.

 

And in case you think that as a Local Authority lawyer, I’m just reporting a Guardian getting a hard time for my own amusement, the next case involves a Judge seriously criticising social workers.

 

This is Re EH (Supervision Order) 2014

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B78.html

This case involves a girl aged 6 1/2. The final order made was a Supervision Order , which means that the girl would live with her father.

This is what the Judge had to say about the complaints that the parents made about the way they were treated by the Local Authority.

 

63. a) I deal with this issue here, not because the local authority’s capacity to care for EH arises, but because its approach has had an evident impact on all those discussed above, and with the agreement by all parties that there should be a Supervision Order it is clear that the Local Authority’s future conduct of the case will have an important effect upon EH’s future care.

(b) The parents, Mr and Mrs B and the Guardian have all raised concerns about the approach taken by the Local Authority in general and this Social Worker in particular.

(c) I am aware that it can be said that parents are bound to criticise a Social Worker involved in child protection proceedings relating to their child, and that the Social Worker is in a no-win situation, but it is not as simple as that. The roles a social worker and a local authority play are crucial and must demonstrate a real effort to work in partnership with a family, a readiness to try and rebuild a family and identify support to do so, a fair and robust analysis of all the information available, and sensitive interaction with the family to support all the above.

(d) I have already noted a number of concerning features earlier in this judgment: a failure by the Social Worker to include and consider carefully all the available evidence of the Father’s relationship and interaction with EH, and particularly her own s37 analysis; an unquestioning acceptance of the extreme analysis of the FAST assessor; a failure to include in the social work analysis of EH’s presentation during the FAST assessment crucial information that the Mother had told EH she might be removed into foster care and other potentially relevant factors; a failure to provide any adequate analysis of EH’s needs in terms of her close and loving relationships with her parents and the impact upon her of being removed from their care with limited contact; and an excessively rigid and negative reaction to the concerns raised in Mr and Mrs B’s viability assessment.

(e) As already mentioned, the downturn in the Local Authority’s approach and the parents’ relationship with the Local Authority and the Social Worker appears to have begun with the angry response received by the Social Worker and Practice Manager Jenny Jones in mid-March 2013 when Father was requested at short notice to extend his weekend staying contact. The negative viability assessment of Mr and Mrs B by the Social Worker followed in May 2013. This appears to have been communicated excessively bluntly and negatively to Mr and Mrs B, according to their account to the Guardian (E125). I take into account that they were not questioned directly about this while giving evidence and so I have to rely on the Guardian’s account of her conversation with them, but I also note that they were not challenged that this had been their experience, and I find that they had no reason to lie about this to the Guardian and they came across as entirely honest and helpful witnesses. I have subsequently seen an entirely proper letter, sent on 5.6.13 shortly after these conversations took place, setting out advice to Mr and Mrs B as to what steps they could take. By then however, that damage was done.

(f) The proceedings were then issued and first steps taken to progress the case. On 21.8.13 a FAST planning meeting took place between the Social Worker, Ms Mayet the FAST assessor and the Father. I have already found that his approach was hostile and unhelpful in trying to arrange dates for the FAST assessment. However, it was followed by the Social Worker, later at the same meeting, pressing Father to sign adoption medical consent and parental health forms. I accept the Guardian’s evidence that this was poor professional practice, and in any event it lacked sensitivity or any awareness of the meaning of these proceedings and assessments for the parents. A meeting about the Local Authority’s plan for adoption (even if a parallel plan) should not ride immediately on the back of a meeting that is about the assessment of that parent’s parenting. It will instantly undermine the parent’s faith in that assessment, particularly where the Local Authority is the assessor, and will appear to be grossly insensitive and as if the Local Authority are approaching the case with a closed mind. A separate meeting with a proper explanation of the parallel planning process should have been conducted.

(g) A similar and wholly unnecessary pressure and insensitivity was evident in the Social Worker’s actions on 8.11.13. On that date DJ Pilling’s judgment relating to the parents’ and Guardian’s applications for further assessment by ISWs was awaited from the contested hearing the day before on 7.11.13, and was handed down by email on the afternoon of 8.11.13. However, the Social Worker persisted with a meeting with Mother on 8.11.13, with the approval of her manager Jenny Jones, at which she sat with her for a lengthy period of time persuading her to complete parts of the Child Permanence Report which covers the views of the parent in relation to the proposed plan for adoption and contains a section relating to what information the parent would like the child to know in the future if adopted. I have seen that document. Understandably, the Mother described herself as intensely distressed by this exercise. The excuse for putting this highly vulnerable Mother through this was that the Social Worker had to prepare documents for the Agency Decision Maker to consider the Local Authority’s plan for adoption and that she would have been in trouble if the documents were not ready. However, she of course conceded that as soon as an assessment is to be carried out an ADM is not in a position to approve a plan for adoption, and of course it turned out that DJ Pilling’s judgment confirmed that both the Father and Mr and Mrs B should be further and independently assessed. Simply waiting one day for that decision would have saved the Mother a great deal of unnecessary distress and saved the Social Worker a waste of her time on preparing wholly unneeded documents. I could not fathom what drove the Social Worker and her manager to continue with this course of action in those circumstances. It cannot but have led the family to be convinced that the Local Authority was not prepared to think supportively and openly about the possibility of EH remaining in her family, and that the Social Worker was prepared to put the Mother through an intensely distressing experience come what may.

(h) Given that one of the key criticisms of the Mother was that she was failing to engage with the Social Worker, and of the Father was that he was aggressive and abusive to the Social Worker, I find it astonishing that she should take (or have been advised to take) such insensitive steps that cannot but have worsened the prospect of improving her working relationship with each of them.

(i) The Guardian was also concerned that the Social Worker called the police twice to EH’s home, in summer 2013 and February 2014. She considered that this was excessive and heavy-handed, particularly where a child is attending school and contact with another parent, and she could be seen through the window in summer 2013. It had a frightening impact on EH and again must have led the family to feel that the Social Worker had an excessively negative attitude towards the family.

(j) I note and accept that the Social Worker has agreed with hindsight in her oral evidence that some of these steps were not best practice and expressed regret through the Local Authority’s advocate for some of these actions. However, the matter unfortunately goes a stage further.

(k) In her final statement dated 21.2.14 at C143 the Social Worker reported a comment of the Mother’s that she had not in fact wanted the Father to spend Christmas with her and EH. The Social Worker then used this comment to suggest that the Father was again being inappropriately overbearing and that the Mother was being excessively weak, with consequent damaging exposure of EH to their relationship difficulties. However, during her oral evidence the Social Worker let slip that the Mother had in fact invited the Father to come for Christmas as EH had requested it. This is wholly absent from her written account and as a result it becomes a distorted and wholly misleading version of what occurred. Nowhere is the Mother’s willing and appropriate response to her daughter’s request mentioned. I am astonished that this could be characterised by the Social Worker as the Father overlooking the Mother’s feelings and the Mother being too uncomfortable to assert her wishes against him, when it was clearly nothing of the sort. This level of distortion to fit the Local Authority’s case is unhelpful in the extreme, unprofessional and frankly a misrepresentation of the true situation.

(l) Additionally, last week the Social Worker concedes that she answered Mother’s questions about what would happened at the end of this case by openly discussing in front of EH the need to pack a bag for EH. I fail to see how this should have arisen at all. The Social Worker should have either had this discussion long before with the Mother or should have deflected her questions so as to have the conversation in EH’s absence. This was a hugely insensitive and potentially destabilising discussion for EH to overhear. It is frankly flabbergasting to hear that that a child protection professional has acted this way. It is as if the child’s feelings are invisible.

(m) I must express my disappointment at having to consider these examples of the Local Authority failing to approach this case sensitively and with the aim of truly working in partnership with a family, and I consider that the family’s concerns as to the insensitive and negative approach they have been treated to are justified. Some examples appear to be the responsibility of the Social Worker and some of her management within her team. The attitudes betrayed by these examples must change for the Supervision Order to be properly administered by the Local Authority in EH’s interests. This is particularly the case given my findings in relation to EH and her Father that do not follow the Local Authority’s position adopted thus far.

(n) I am very grateful to the Local Authority for the addendum document dated 13.3.14 which adds to their care plan. I am also grateful for the Local Authority’s decision of which I have been informed this morning: to change the team which will be responsible for the Supervision Order. The Local Authority had originally confirmed that the Social Worker would change but that the team would remain the same and the manager Jenny Jones would remain in direct charge of the case. The Guardian had expressed the view that it would be preferable for the team and the manager to change. While aware of the limitations on my powers, I concurred and I had invited the Local Authority to think carefully and creatively about how to achieve the fresh start that it appears from the concerns set out above are urgently required to serve this family fairly, to enable the Local Authority, the Senior Social Worker and the Professional Assistant to look at these parents with a fresh eye, and to be able to work in partnership with them successfully. I had reminded the Local Authority to consider the guidance of Sir James Munby P in Re BS (2013) at §29 in terms of doing what is necessary to make the orders of the court work and not to be limited by resource arguments.

 

It is important, and in saying this, I’m aware that my own words might come back to haunt me in the future, that where parents have not been treated fairly and professionals have not behaved as they should, that Judges properly call them out on this, as these two Judges have done. Care proceedings are terrifying and confusing for parents and the very least that they can expect is that professionals treat them fairly and with dignity.

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Judge orders A father to take his child to Mass

Posted on January 20, 2015 by suesspiciousminds

 

[“A father”, not as I’d wrongly typed originally “His father”  – a Judge who ordered his own father to take his child (the Judge) to Mass would be legally impossible and is a sort of mix between Judge John Deed (for impropriety) and Doogie Howser MD (for a Judge who is still a child)  ]

This is a story in the Daily Telegraph

http://www.telegraph.co.uk/news/religion/11355745/Judge-orders-father-to-take-his-children-to-church.html

 

The gist of it is that His Honour Judge Orrell ordered a father in private law proceedings that when the child is with him, he will take the child to Catholic mass.  The order applies to Christmas only. The father is not Catholic, but the mother is.

“If the children are with their father at Christmas he will undertake that they will attend the Christmas mass.”

The Daily Telegraph say that they have seen the Court transcripts (I have not) and that the Judge discussed his own Catholicism during the hearing.

 

So, a number of quick points on this.

 

1. I haven’t been able to find a judgment on this case on any of the law websites.

2. Initially, my thinking was that this was an order that had been made in the run-up to Christmas this year, hence the topicality of the story as we are now late January.

3. The article does tuck away, in the midst of its hatchet-job on His Honour Judge Orrell, that the father involved appealed this case unsuccessfully and also failed in a judicial review challenge. (I haven’t been able to find either of those reported). I’d suspect that the order in question might be a bit older than December 2014 then, to have got the appeal and judicial review heard by now.  In fact, when you read the detail of the article, the order complained of was in 2009. But it remains in force.

4. If the appeal transcript does come to light (it may have been refused permission on the papers – you don’t always get a published judgment for that) I’ll put a link up to it so that we can read it for ourselves.

5. I’ll assume that the sub-headline “Child care proceedings challenged after judge tells father he has a legal requirement to take his sons to Catholic mass” which is wrong on both the nature of the proceedings and the legal requirement issue, is the work of a sub-editor and not the author of the piece.

6. The Court does have power, if two parents are arguing about religious upbringing of a child, to make orders stipulating how the child’s faith is to be observed.  If, as the article claims, this was not a request by the mother, but of the Judge’s own motion, that would be unusual  (not unlawful, but unusual).

7. If, as the article claims, the Judge had made the decision because of his own attitude to faith and imposing his own values on the case, that would have been something that would have troubled the Court of Appeal.  Without seeing the transcript, or the Court of Appeal decision, I can’t tell you definitively whether what has claimed happened.  To be fair to this father, the fact that his appeal was unsuccessful does not NECESSARILY mean that his claim was not accurate, he might have lodged his appeal in a flawed way or not highlighted that particular aspect.

8. There is an interesting issue about whether, when deciding a child’s religious upbringing, one parent’s lack of faith is to be respected as much as the other parent’s faith. Are they on an equal footing for the law, or does the person with faith have a head-start?

 

An interesting case, I wish that we knew a little more. The appeal judgment would help enormously.

The bald order does seem harsh, for a parent who does not believe in Catholicism, but without knowing the circumstances, we don’t know, for example, whether Christmas mass was such an important issue for the mother / child, that directing that father take them was the only way of getting him to have contact on Christmas Day. It might have been a trade-off.

As someone who does not follow a faith, I’d have similar feelings to this father if a Judge imposed on me a requirement to go to church, so I have sympathy with his position and objection, and I think that this is a newsworthy story – I just wish that we had the appeal judgment to get more understanding of the factual and legal issues involved and why the decision was upheld.

 

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FGM – an important authority

Posted on January 14, 2015 by suesspiciousminds

The President has given judgment in care proceedings where alleged Female Genital Mutilation was the sole issue

Re B and G  (Children ) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/3.html

Being the first reported case on this issue, it is significant anyway, but I think the President really comes into his own when he is giving a judgment of this kind  (I’m less keen on Views and Practice Directions and model orders, but this sort of thing he excels at)

It is going to be worth holding in mind that B was male, and G female. This will become important later on.

Firstly, and importantly, one should note that the Court found that the allegation that G had been subjected to Female Genital Mutilation was not proven, and thus did not happen. This despite two experts who examined G reaching that conclusion.

A lay person might well think that the factual issue of whether or not a procedure to remove a part of the body happened would be fairly straightforward, it turned out not to be.

The medical professionals in the case were criticised by both the parents advocates and ultimately by the Court.

  1. Mr Myers and Mr Ekaney invited me to accept Professor Creighton’s evidence. Mr Myers suggested that Dr Share’s evidence demonstrated the lack of awareness and training within the medical profession on the issue of FGM. Despite being a respected and experienced consultant community paediatrician with expertise and extensive experience in conducting child protection investigations, she openly and honestly admitted to having made significant errors in her reports. Mr Ekaney made similar points, questioning her expertise, whether clinical or forensic, in FGM cases. In relation to Dr Momoh neither pulled their punches. Mr Myers submitted that both her report and her oral evidence were “well below the standard required of an expert witness”. He described her evidence as “confused, contradictory and wholly unreliable” and submitted that I should attach no weight at all to her evidence on scarring. Mr Ekaney characterised her oral evidence as “unclear, dogmatic and unreliable”.
  2. It is unavoidable that I make findings about the expertise and reliability of the three experts.
  3. Dr Share is an experienced and highly regarded consultant community paediatrician but did not put herself forward as having particular expertise in FGM. She very candidly admitted that her initial findings were wrong and that she had changed her mind even after the second examination. In giving oral evidence she was an entirely honest, open and frank witness. The critical question is how reliable a witness she was in terms of what she thought she had seen when examining G.
  4. I regret to have to say that Dr Momoh merited all the harsh criticism expressed by Mr Myers and Mr Ekaney. Whatever her expertise in relation to FGM in pregnant women, in relation to young children it was extremely limited. Her inability in the witness box to provide explanations for matters that cried out for explanation was striking. Her report dated 23 April 2014 was a remarkably shoddy piece of work. A report that says, without further explanation or elaboration, and this is all it said, “It appears that [G] has been subjected to some form of FGM as her vulva does not appear normal”, is worse than useless. In my judgment her report and her oral evidence were well below the standard required of an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory.
  5. In contrast, Professor Creighton merited all the encomiums she received from Mr Hayes, Mr Myers and Mr Ekaney. She was the only one of the three with real experience of FGM in a paediatric context. Her evidence, both written and oral, was clear and measured; it did not change; it was delivered with authority; it carried conviction.
  6. I make every allowance for the fact that Dr Share and Dr Momoh examined G with the naked eye, Dr Share twice, whilst Professor Creighton did not, but I nonetheless find it quite impossible to rely upon their evidence as reliably establishing, even on a balance of probabilities, that G had been subjected to FGM.
  7. The fundamental problem is that, on their own evidence, neither Dr Share nor Dr Momoh has been able to give a clear, accurate or consistent account of what it is they thought they were seeing when examining G:

    i) Dr Share began off thinking that what she had seen was the removal of tissue, that is, FGM WHO Type I and possibly Type II; she ended up thinking that what she had seen was a scar, FGM WHO Type IV.

    ii) Dr Momoh recorded missing tissue; she also ended up thinking that what she had seen was a scar.

  8. An equally significant problem is presented by the fact that Dr Share and Dr Momoh disagree about the features of the scar they both say they saw. Dr Share described it as “curved” and “raised”, Dr Momoh as “straight” and not raised. As Mr Ekaney observed, they cannot both be right.
  9. Another significant problem is presented by the difficulties both Dr Share and, in much greater measure, Dr Momoh had in explaining the content of Dr Momoh’s notes of their joint examination.
  10. For all these reasons, and having regard also to all the other troubling aspects of their evidence to which I have drawn attention, I find it quite impossible to rely upon Dr Share’s and Dr Momoh’s evidence as establishing the local authority’s case. I am not persuaded of the presence of the scar which is now the only feature relied upon by the local authority in support of its allegation of FGM.

 

The President went on to give some specific guidance for the medical assessment process

i) There is a dearth of medical experts in this area, particularly in relation to FGM in young children. Specific training and education is highly desirable. As Professor Creighton explained (Transcript pages 23, 27-28), there is an awareness problem and a need for more education and training of medical professionals, including paediatricians. In answer to my question, “presumably we need more paediatric expertise than we have at present?” (Transcript page 29), she said “Yes, definitely”. She told me (Transcript pages 28-29) that there are at present only 12 specialist FGM clinics throughout the country, of which six are in London, and that her clinic at University College Hospital is the only specialist paediatric FGM clinic in the country.

ii) Knowledge and understanding of the classification and categorisation of the various types of FGM is vital. The WHO classification is the one widely used. For forensic purposes, the WHO classification, as recommended by Professor Creighton (Transcript page 2), is the one that should be used.

iii) Careful planning of the process of examination is required to ensure that an expert with the appropriate level of relevant expertise is instructed at the earliest opportunity. Wherever feasible, referrals should be made as early as possible to one of the specialist FGM clinics referred to by Professor Creighton. If that is not possible, consideration should be given to arranging for a suitably qualified safeguarding consultant paediatrician to carry out an examination recorded with the use of a colposcope so that the images can be reviewed subsequently by an appropriate expert.

iv) Whoever is conducting the examination, the colposcope should be used wherever possible.

v) Whoever is conducting the examination, it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. If an opinion is expressed in relation to FGM, it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed, which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely, by reference to what is recorded as having been observed.

I heard on the radio this morning criticism that despite many reported cases of FGM there had not yet been a criminal prosecution – this case perhaps illustrates that it isn’t going to be as easy to prove to a criminal standard whether it occurred as the press and public might think.

The Local Authority having not proved their central allegation (that G had been subjected to FGM) they were also not able to prove that there was a likelihood of this in the future, and thus threshold was not proved and no orders were made. Although the family had probably spent 6 months or so under suspicion with substantial impact upon them.

Of wider impact, however, are the President’s observations on two points.

Firstly, does FGM if proven, amount to significant harm?  (One might think that this is a no-brainer, but the President had to consider the cultural issues and the fact that male circumcision is something that does not routinely trouble anyone, let alone the Courts; and thus if FGM was the sole issue how would significant harm for the male child B be established IF G had been subject to FGM? Also, remember that the significant harm test includes a component of “not being what it would be reasonable to expect a parent to provide”  – so if FGM is part of the parents cultural matrix, are they being unreasonable?)

It is quite a long analysis, paras 54-73, so I’ll skip to the conclusion (but it is worth reading in full)

  1. Moving on to the second limb of the statutory test, Mr Hayes submits that in assessing whether the infliction of any form of FGM can ever be an aspect of “reasonable” parenting, it is vital to bear in mind that FGM involves physical harm which, it is common ground, has (except in the very narrow circumstances defined in section 1(2)(a) of the Female Genital Mutilation Act 2003, not relevant in a case such as this) no medical justification and confers no health benefits. The fact that it may be a “cultural” practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So, he submits, it can never be reasonable parenting to inflict any form of FGM on a child. I agree.
  2. It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two.[2] FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.
  3. I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with section 31 of the Children Act 1989; male circumcision without more will not

 

The next key proposition was that the LA involved had been saying that if the allegation that the parents had been involved in FGM relating to G, the appropriate care plan would be adoption of both B and G.  The Judge expressed doubts as to that as a general proposition. But one can see the real problem – it might be justification to adopt the female child but it obviously can’t be justification to adopt the male sibling, and that leads to splitting the siblings.  And the obvious point that once the FGM has been carried out, the horse has bolted – the parents can’t carry out that form of abuse on the child in the future, so future harm is non-existent.  [In the absence of evidence about harsh treatment or neglect in other regards]

 

  1. Since in the circumstances the point was only briefly explored in submissions, I propose to say very little about it. No generalisations are possible. Much will obviously depend upon the particular type of FGM in question, upon the nature and significance of any other ‘threshold’ findings, and, more generally, upon a very wide range of welfare issues as they arise in the particular circumstances of the specific case. Arriving at an overall welfare evaluation and identifying the appropriately proportionate outcome is likely to be especially difficult in many FGM cases.
  2. There are two particular problems. The first is that once a girl has been subjected to FGM, the damage has been done but, on the evidence I have heard, she is unlikely to be subjected to further FGM (though of course female siblings who have not yet been subjected to it are likely to be at risk of FGM). How does that reality feed through into an overall welfare evaluation? The other problem is that, by definition, FGM is practised only on girls and not on boys. In a case where FGM is the only ‘threshold’ factor in play, there will be no statutory basis for care proceedings in relation to any male sibling(s). Suppose, for example, that the FGM is so severe and the circumstances so far as concerns the girl are such that, were she an only child, adoption would be the appropriate outcome: what is the appropriate outcome if she has a brother who cannot be made the subject of proceedings? Is her welfare best served by separating her permanently from her parents at the price of severing the sibling bond? Or is it best served by preserving the family unit? I do not hazard an answer. I merely identify the very real difficulties than can arise in such a case. In cases where there are other threshold factors in play, balancing the welfare arguments as between the girl(s) and the boy(s) may be more than usually complex, particularly if FGM is a factor of magnetic importance.
  3. The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.
  4. I add a final observation. Plainly, given the nature of the evil, prevention is infinitely better than ‘cure’. Local authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. And, as I have already said, the court must not hesitate to use every weapon in its protective arsenal if faced with a case of actual or anticipated FGM. An important tool which lies readily to hand for use by local authorities is that provided by section 100 of the 1989 Act. The inherent jurisdiction, as well as all the other jurisdictions of the High Court and the Family Court, must be as vigorously mobilised in the prevention of FGM as they have hitherto been in relation to forced marriage. Given what we now know is the distressingly great prevalence of FGM in this country even today, some thirty years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, I suspect, if not the first one of only a handful of FGM cases that have yet found their way to the family courts. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil but they have an important role to play and a very much greater role than they have hitherto been able to play.

I’ll repeat para 77, because it is key

The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.

I’ve never had an FGM case so I haven’t had cause to think about it in this amount of detail, but being honest with myself, I think I would have considered that (a) it would be easy to prove (b) I wouldn’t even have questioned whether it crossed threshold and (c) adoption would have been in my mind. So, this case is helpful in getting practitioners (and even Judges) to look at the situation in more detail.

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A whole heap of trouble (secure accommodation)

Posted on January 12, 2015 by suesspiciousminds

You don’t often get secure accommodation judgments published, largely because they are usually decided by Justices rather than Judges so don’t fall into the publication scheme, but this one was decided by Mr Justice Hayden and throws up some interesting philosophical issues.

London Borough of Barking and Dagenham 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4436.html

 

There’s an exercise in philosophy where one starts putting individual pebbles on a table. You add one at a time, every few seconds. At some point, what you have is a heap or a pile of pebbles. But if you are adding them one at a time, it is difficult to see the point at which you go from “non-heap” to “heap”.  Equally, once you have a heap of pebbles and start removing one at a time, finding that precise point at which you’ve removed the pebble that turns it from “heap” to “non-heap” happens.  Obviously we can all agree that 3 pebbles aren’t a heap, and that 300 are, but where that precise boundary line happens is much more fuzzy.

 

In this case, the heap issue arises in part on the legal test for making a Secure Accommodation Order (which, lets not forget, is an order that allows a family Court to sanction a child being locked up not as punishment for a criminal offence but for their own good)

“Use of accommodation for restricting liberty

(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (‘secure accommodation’) unless it appears –

(a) that –

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.”

 

They are alternate tests – either (a) OR (b),  you don’t have to satisfy both  (though in many such applications, both limbs are satisfied).

Now, for ground (a) it all flows from “has a history of absconding”, so how many incidents of absconding amount to a history. One incident isn’t a history, fifty clear is. But at what point do the number of incidents crystallise into a “history”

For the purposes of this application, I find that SS has absconded on two occasions. I doubt whether that can truly be said to be a history of absconding and it is, as I said, significant that, on the second occasion, it was she who sought to return to the foster carer. I am, however, entirely satisfied that she is likely to abscond in the future, if not in secure accommodation, in the sense that there is a real possibility of her absconding. I am absolutely sure that she is at risk of significant emotional and/or physical harm were she to do so.

This was one of those cases where the child was the victim of Child Sexual Exploitation by unsavoury adults, but because of the difficulty in prosecuting such adults for their criminal behaviour, the child is locked up instead, a state of affairs which post the Rochdale child grooming debacle, is happening more and more.

  1. It scarcely needs to be said that restricting the liberty of a child is an extremely serious step, especially where the child has not committed any criminal offence, nor is alleged to have committed any criminal offence. It is for this reason that the process is tightly regulated by the Children Act 1989 in the way I have set out, but also in the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No.2) Regulations 1991. The use of s.25 will very rarely be appropriate and it must always remain a measure of last resort. By this I mean not merely that the conventional options for a child in care must have been exhausted but so too must the ‘unconventional’, i.e. the creative alternative packages of support that resourceful social workers can devise when given time, space and, of course, finances to do so. Nor should the fact that a particular type of placement may not have worked well for the child in the past mean that it should not be tried again. Locking a child up (I make no apology for the bluntness of the language, for that is how these young people see it and, ultimately, that is what is involved) is corrosive of a young persons spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution.
  2. The courts have seen a number of cases in recent years where vulnerable young girls have been exploited in a variety of ways by groups of predatory men. That so many of these men escape prosecution and continue to enjoy their liberty whilst the young girls they exploit are locked up (for their own protection) sends very confusing messages to the girls themselves, to the distorted minds of the men who prey on them and to society more generally.
  3. I have heard something of the regime the unit in which SS has been resident. I have no reason to believe that it is any different to any other of the welfare-based units. I equally have no doubt that those who run and work in them and the variety of disciplines which support such units are all highly motivated to help. There will be circumstances where young people have to be incarcerated to protect them, ultimately, from themselves.
  4. That said, I heard that this unit has what is referred to as an “air-locked security system”; that is to say that only one room can be left open at any stage. There is no computer access. There is a reward system by which privileges are both earned, and taken away. It is difficult not to see, from the eyes of the young people concerned, a custodial complexion to this environment. It has the most profound disadvantage in the case of SS in that it must surely reinforce her own already overactive sense of having done wrong.
  5. I do not criticise the structure or regime of this, or, indeed the other units. I recognise, as I have already stated, that they have a place in the panoply of strategies required to safeguard vulnerable children, but I was not satisfied that such a regime was a proportionate interference in SS’s life and so, to investigate it further, I asked Ms. Lewis, counsel on behalf of the Local Authority, whether she could contact senior officials within the unit so that I could have some closer idea both of the nature of the regime in operation and the philosophy which underpins it. At very short notice, the deputy principal was able to make herself available. She told me that, for young women in the situation of SS, such units could only really try and achieve one objective and that was to keep the young people concerned safe in a time of crisis “only long enough to find them somewhere more suitable”. That seems to me to crystallise the very limited scope of this provision.

 

There’s a peculiar wrinkle with the law on Secure Accommodation, which I was always surprised survived the Human Rights Act but still stands. It is this – unlike any other order in the Children Act which is subject to the “no order” principle and the “welfare paramountcy” principle, orders under s25 are MANDATORY if the Court find that the criteria are made out.

The role of the Court on secure accommodation applications is not, as with any other Children Act application, to decide on both the facts and what to do with those facts for the child’s best interests, but to simply decide whether factually the grounds for the order are made out, and if so  to make the order.

The provision goes on, at subsection (3), to provide that:

“It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied (inaudible)”

And (4):

“If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.”

 

This doesn’t always sit entirely comfortably with the suggestions and recommendations that a Secure Accommodation Order ought to be a last resort.

 

What is a Court to do where it considers that the s25 threshold is met, but that the making of a Secure Accommodation Order is not proportionate? (It surely HAS to consider whether it is proportionate, because it is an article 8 interference with the child’s right to private and family life)    i.e, the LA consider that the case has reached that “last resort” stage, but the Court think that more could be done?

If the case is being brought on the second limb

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons

then the Court COULD conclude that really an attempt should be made to place the child in another form of accommodation with different resources and safeguards as one last try, and so the criteria is not made out.

 

What about the first limb?

(a) that –

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm;

 

That’s probably harder to resist – if factually there IS, a history of accommodation and if factually there IS a likelihood of significant harm if the child absconds again  (and that likelihood is the ‘risk that cannot sensibly be ignored’ provided that there’s some factual basis for thinking that that risk exists), it is hard for the Court to avoid making the order, even if they don’t consider that Secure Accommodation is the right order for the child.

So you can see that the issue of what amounts to a history of absconding can be important as to whether the Court are in charge of the order, or whether they are just there to factually determine that the criteria are made out.

 

[This judgment is also a good go-to resource for the law on secure accommodation, as the Judge gives a very punchy summary of the key issues, in part because not all of the parties in the case had quite grasped the rather unusual nature of s25]

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