Category Archives: case law

The tussels from Brussels

Posted on December 9, 2014 by suesspiciousminds

 

{Warning, this post contains some Brussels II stuff, but it also has something potentially important – I’ll try to keep it short}

 

A v D and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3851.html

 

It involves a 3 year old girl, mother is Polish, father English. They lived together in England but then separated. Father became worried that mother would remove the child to Poland, and applied to the English Courts for an order preventing that.

In April 2012, the father, concerned that the mother might remove E to Poland, issued proceedings in the Bournemouth County Court seeking a prohibited steps order preventing her from removing the child from the jurisdiction, together with a parental responsibility order. After two preliminary hearings, the matter came before District Judge Dancey on 3rd May 2012. A transcript if that hearing is now available. The mother, who was represented, gave evidence on oath stating that, if she were permitted to take the child to Poland for a visit between 14th May 2012 and 16th July 2012, she would return E to this jurisdiction at the end of that period. The father, who was acting in person, indicated that he would not oppose the mother taking E to Poland for a holiday, although he expressed some unhappiness at the length of the proposed visit. On the basis of the mother’s undertaking, the District Judge made an order permitting the mother to remove E to Poland for the purposes of a holiday between 14th May and 16th July 2012.

 

It will not surprise any of you cynical hard-bitten readers to learn that she never came back from that holiday.

 

  1. Shortly after arriving in Poland, the mother applied to a court in that country for a custody order and subsequently wrote to the Bournemouth County Court stating that she did not intend to return. On 24th July 2012, the father filed an application with the Central Authority for England and Wales under the Hague Child Abduction Convention 1980 and Council Regulation (EC) 2201/2003, (hereafter referred to as Brussels II Revised), seeking the summary return of E to this jurisdiction. On 10th August, the father’s application in the county court was adjourned generally with liberty to restore. The father’s application under the Hague Convention was pursued via the Central Authorities but on 17th December 2012, it was dismissed by the district court in Ruda Slaska in Poland. The father’s appeal against that decision was subsequently dismissed on 24th October 2013.
  2. On 30th April 2014, the father made an application in the existing English proceedings seeking an order committing the mother for contempt of court, an order for parental responsibility and a contact order. The application was transferred to the High Court and listed before me in July 2014 to consider as a preliminary issue whether or not the court had jurisdiction to entertain the application. In the reserved judgment delivered 31st July, I held that this court had jurisdiction to entertain the father’s application for orders concerning matters of parental responsibility. In the course of legal argument at the hearing, however, I indicated to Mr Edward Devereux, counsel for the father, that I proposed to consider whether the court should exercise its power under Article 15 of Brussels II Revised to transfer the case to Poland. Mr Devereux thereupon submitted that the court had no power to transfer proceedings under Article 15 because no party to the proceedings accepted the transfer, but seeing that this argument did not initially find favour with the court, he asked for further time to consider the issue, having regard to the fact that it had only arisen in the course of argument.

 

I’ll dash through it quickly, because everyone hates Brussels II. A Court can, and now must, consider whether the proceedings ought to be transferred to another EU Country to deal with, if they are better placed to deal with them AND the child has a connection to that country.

 

For these purposes, the connection is either:-

That the mother, who has PR, is now habitually resident in Poland

OR

that the child has acquired habitual residence in Poland AFTER the English Court started to deal with the case

 

The father’s case (and I have a huge amount of sympathy for him here) is that the mother and child are only in Poland because mum abducted him and breached Court orders, yet she is now being rewarded by having the Court case on home turf – to transfer would be to reward her for her wrong-doings.

 

  1. First, Mr Devereux informed me that this case presents a factual situation which, so far as counsel have been able to discover, has not been considered before in any reported case, that is to say a proposal, arising in private law proceedings following the unlawful retention of a child, to transfer the proceedings under Article 15 to the country in which the child has been unlawfully retained. Mr Devereux stressed the fact that E is only in Poland as a result of a wrongful act perpetrated by her mother. On any view this is a blatant case of child abduction and it is not right for a court to reward a party who has acted unlawfully. Furthermore, the mother appears to have committed perjury before the English court. A transcript of the proceedings before District Judge Dancey has now been obtained and demonstrates clearly that the mother gave a promise on oath that she would return E to the jurisdiction of this court in July 2012 at the conclusion of the holiday. The father has launched committal proceedings for contempt of court arising out of the mother’s breach of her undertaking and it is asserted on behalf of the father that he will continue to press this application. In those circumstances, proceedings will in any event be continued in this jurisdiction. Mr. Devereux submitted that it would therefore be undesirable for proceedings to be continuing in both countries.
  2. Mr Devereux further contrasted the respective abilities of the parties to participate in proceedings in the two countries. The mother was able actively and properly to engage in proceedings in this country. She has a good understanding of the English language, as is plain from her oral evidence before District Judge Dancey. She was able to give a promise on oath which the judge felt able to accept. In contrast, the father asserts that he has no knowledge of the Polish language and no understanding of the procedures of the Polish courts. He does not have the means to travel to Poland and stay there to participate in proceedings. Poland has a system of legal aid but, as demonstrated in he expert report from Dr Kasinska-Wiercinska, there are in practice a number of difficulties facing a litigant in the father’s position who wishes to apply for such assistance.
  3. Mr Devereux further submitted that, all things being equal, E’s best interests would be served by having a relationship with her father and her father being involved in her upbringing. This court can ensure that this happens speedily by making a child arrangements order for contact and issuing an Annex III certificate which could be automatically enforceable in Poland. In contrast, if the case is transferred to Poland there is, submitted Mr Devereux, no guarantee that any application made by the father would be heard expeditiously nor, if and when it was heard, that he would be granted contact with his daughter.

 

As the Judge was Baker J, the law is flawlessly applied and set out, and the approach was really to answer the three questions posed by Munby J (as he then was)

In AB v JLB Brussels II Revised Article 15 [2009] 1 FLR 517 at paragraph 35 Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a request under Article 15:

“First, it must determine whether the child has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State. . . . .Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))?

Secondly, it must determine whether the court of that other Member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

Baker J found that the answer to all three questions was yes, and that the Polish authorities should be asked to take over the case.

Part of his thinking here was that with a mother who was living in Poland and adamant that she would not return to England and play no part in any Court proceedings in England, there was no likelihood of any actual contact for father getting underway.  [My reading of the case is that father was seeking to spend time with the child, rather than have the child live with him full-time. That might have made a difference, it is hard to say]

 

25. ..without the mother’s cooperation and participation in the proceedings, it is highly unlikely that any court will make any order for contact in this case. All the evidence suggests that the mother does not intend to take part in these English proceedings, and without her co-operation the father’s application for contact cannot be resolved by the English court. The fact that the father is intending to pursue his application in this jurisdiction to commit the mother for contempt makes her participation in any English proceedings concerning parental responsibility and contact even less likely. She may also be reluctant to take part in proceedings in Poland, but crucially the Polish court would have the power, should it choose to exercise it, to oblige her to participate. Although the father would be at a considerable disadvantage were he required to participate in proceedings in Poland, it is reasonable to expect him to do so to the best of his ability. It may be possible, however, for ways to be found to assist his participation in Polish proceedings.

  2. When one turns from the fact-finding hearing to the welfare stage of the proceedings, it is plain that the balance of the evidence on welfare matters lies in Poland. I agree with Miss Green’s observation that the Polish courts have a very real advantage by reason of the child’s presence within their jurisdiction. This makes it possible for all necessary enquiries and investigations as to her welfare to be carried out there. E is living in Poland. Her life centres round her mother and friends and family in that country. Any contact will inevitably have to start in Poland. There would of course have to be some investigation of the father’s circumstances, which would involve consideration of his home and life in this country. But the preponderance of evidence as to welfare matters will arise in Poland.

 

I don’t doubt that this is the right decision in law – I’m a fully paid-up member of the Baker J fan-club  (I have the badge, and I know the secret handshake), but God, this seems utterly unfair to this father. He did the right thing – he got an order from a Court to stop mum taking the child to Poland, only to find that in the teeth of someone who was prepared to breach it, Article 15 of Brussels II rewards her and punishes him.

And this happened without mum even ASKING for Brussels II to apply.

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Seeking costs against the Public Guardian in a financial safeguarding case

Posted on December 9, 2014 by suesspiciousminds

 

The Public Guardian and CT and EY 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/51.html

 

As District Judge Lush observed, this is the first reported case where a costs order has been sought against the Public Guardian.

 

By way of quick background, CT is 85 and had a stroke a year ago, which later led to a diagnosis of dementia. There has been a considerable family schism, and CT is close to his daughter EY but not close to much of the rest of his family.

 

A month after his stroke, he entered into a Lasting Power of Attorney arrangement, appointing EY as his sole attorney.

 

In July 2014, the Public Guardian, having received a referral that EY was misusing the Lasting Power of Attorney, conducted an investigation and made an application to the Court of Protection under s48 of the Mental Capacity Act 2005 for declarations about whether CT had capacity and if not what directions / declarations should be made about his affairs.

 

  1. The application was accompanied by a witness statement made by David Richards, an investigations officer with the OPG, who said that:

 

 

(a) in September 2013 CT’s son and daughter-in-law had raised concerns with the OPG.

 

(b) on 13 June 2013 CT had severed the joint tenancy of the matrimonial home and the adjoining property, which he and his wife also own.

 

(c) CT had ceased paying the utility bills on the matrimonial home; had stopped transferring housekeeping money to his wife, and had closed their joint bank account.

 

(d) in September 2013 CT applied to the Land Registry to register the matrimonial home in his sole name.

 

(e) on 30 September 2013 a Court of Protection General Visitor, Emma Farrar, saw him at Grays Court Community Hospital. She thought that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so.

 

(f) Havering Social Services had raised a safeguarding alert.

 

(g) the OPG asked EY for an account of her dealings.

 

(h) EY replied her father still had capacity and that the OPG’s enquiries were an invasion of his privacy.

 

(i) in January 2014 the OPG commissioned a visit from a Court of Protection Special Visitor (Dr T.G. Tennent, DM, FRCPsych) but EY and her partner, who is employed by Moss & Coleman Solicitors, refused to let him visit CT.

 

(j) Dr Tennent was, nevertheless able to examine CT’s medical records, and in his report, dated 31 March 2103, he came to the conclusion that CT had capacity (a) to make the LPA and (b) to sever the joint tenancies, but that it was “impossible to offer any opinion as to Mr Todd’s current capacity in relation to the queries (c) to (j).”

 

 

There then follows a somewhat complex history, but the substance of it was that the expert who examined CT, Professor Jacoby, was of the view that CT’s capacity fluctuated, but that there were times and had been times when he had had capacity to make his own financial decisions (and thus the LPA wasn’t being used at all at those times)

 

  1. Professor Jacoby prefaced his assessment of CT’s capacity with the following preliminary remarks:

 

 

 

“I shall deal with the separate capacities as set out in my instructions which were taken from the directions order of 20 August 2014. Before doing so I wish to stress that I am relying on CT’s mental state as I observed it on 2 October 2014. However, I believe his mental state fluctuates both as regards his dementia and his episodes of delirium. I should make the following preliminary remarks:

 

 

(a) When he is delirious, in my opinion, he does not have any of the capacities listed below.

 

(b) When he is not delirious, but his dementia is more prominent, his capacities are weaker than when he is at his best.

 

(c) When he is at his best he does retain some capacities as described below.

 

(d) When he is at his best he is able to communicate his decisions, and I shall not comment further on this fourth limb of section 3(1) of the Mental Capacity Act 2005.

 

(e) When at his best I believe that his capacities can be enhanced by assistance in line with the judgment of Gibson LJ in Hoff et al v Atherton [2003] EWCA Civ 1554, in which he stated “it is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as may have been given [my italics]) to understand the nature and effect of the particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffmann J.).” As I understand it, although I may be corrected by the court, giving assistance to persons with marginal capacities in order to enhance them is within the spirit of the Mental Capacity Act 2005.”

 

…

 

  1. Professor Jacoby concluded his report as follows:

 

 

 

“In my opinion, when CT is at his current best and not in an episode of delirium, he retains the capacity to manage his affairs and to revoke or make an LPA, but that his capacities would be enhanced by disinterested advice. His capacity to litigate is not totally lacking but is, in my opinion, below a sufficient threshold, and he would, therefore, require a litigation friend.”

 

If CT had capacity at the time when he made decisions to sever the tenancy, stop paying money to his estranged wife and so on, then this was not a matter for the Court of Protection. As we know, if a person has capacity, then they can make decisions for themselves that another person might consider foolish or ill-conceived.

 

EY sought that the application be dismissed and sought that the Office of the Public Guardian should pay the costs.

 

  1. On 14 August 2014 EY filed an acknowledgment of service, accompanied by a witness statement, in which she objected to the application and said that:

 

 

 

“The evidence in the attached witness statement shows unequivocally that CT had the capacity to make complex decisions in relation to his finances and property in September 2013. He underwent a further capacity assessment in November 2013 prior to discharge from hospital after nearly six months treatment and he was again assessed as having the capacity to make the very difficult and important decision as to his destination and future place of residence following his discharge. There has been no stroke activity since the incident in May 2013, nor any other event which might cause or signal a material change in his capacity since the last test was carried out some nine months ago. There is therefore no valid reason why he should not be presumed to have capacity at this time.”

 

 

  1. EY proposed that “the application be dismissed and the OPG be ordered to pay the respondents’ costs (including the costs of taking legal advice).”

 

 

In most financial disputes, the person who loses the case is at risk of being ordered to pay the other side’s legal costs. It is a little different in Court of Protection cases.

 

Firstly, the Court of Protection have a general discretion (subject to other Rules) Section 55(1) MCA 2005 provides that “Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.”

 

In terms of those Rules, they are set out in the Court of Protection Rules 2007 – they can be simplified like this:-

 

  • Normally if the proceedings relate to property of a vulnerable person, the costs of the proceedings are paid by that person or his estate
  • That starting point can be departed from if the Court thinks it is justified, and can take into account the conduct of the parties.
  • Conduct can include a wide variety of things, including before proceedings began.

 

 

Property and affairs – the general rule

 

 

  1. Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.

 

 

Departing from the general rule

 

 

  1. – (1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including:

 

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings.

 

(2) The conduct of the parties includes:

 

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c) the manner in which a party has made or responded to an application or a particular issue; and

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

 

(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

 

 

 

In this situation, EY argued that the Office of the Public Guardian had really jumped the gun – they had brought a case based on EY misusing the Lasting Power of Attorney, when closer investigation would have shown that the decisions complained of had been made by CT himself. If the Public Guardian had conducted the investigation properly, there would have been no application and thus CT and EY would not have incurred any legal costs.

 

District Judge Lush felt that things were more complicated than that – the assessment of capacity had shown that CT’s capacity fluctuated and thus there had been times when EY was (or ought to have been) exercising the Lasting Power of Attorney.

 

The Judge also felt that EY had been obstructive in the investigation, causing some of these problems as a result of her own actions.

 

  1. EY makes the point that she was not using the LPA because CT still had capacity, but even this is disingenuous. Professor Jacoby states in his report that “He is subject to recurrent episodes of delirium. … When he is delirious, in my opinion, he does not have any of the capacities listed below.” She should have been using the LPA during the recurrent episodes when CT lacked capacity.

 

 

  1. The point is made that CT’s capacity should have been presumed. The precise wording of section 1(2) of the Mental Capacity Act is that “a person is assumed to have capacity unless it is established that he lacks capacity.” The Court of Protection General Visitor believed that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so. The reason why the OPG asked a Special Visitor to see CT was so that a specialist could look for objective evidence that would be sufficient, on the balance of probabilities, to establish whether CT had capacity or not and, accordingly, whether the Court of Protection had jurisdiction or not.

 

 

  1. EY would not allow the Court of Protection Special Visitor to examine CT because she mistrusted anything to do with the OPG. The Special Visitor’s report would have been provided to CT free of charge, from public funds, but EY insisted on instructing an independent expert, instead. This resulted in the proceedings being more expensive and protracted than they need have been.

 

 

  1. I have no real concerns about the OPG’s conduct. Any investigation will seem heavy-handed to the person under the spotlight, but the OPG’s conduct was by no means disproportionate and does not even approach the threshold identified by Mr Justice Jonathan Baker in G v E (Costs). The OPG certainly did not act in blatant disregard of the Mental Capacity Act processes or in breach of CT’s rights under the European Convention on Human Rights. Having regard to all the circumstances, it would be unjust to penalise the OPG by way of a costs order.

 

 

 

Bearing in mind the usual rule, the legal costs of all of the proceedings would be met by CT. The Judge, having been invited to look at costs, had to consider whether that approach would be fair and just, given the actions of EY.

 

(This must have caused a bitter taste – having asked for the Public Guardian to pay the costs, EY found herself at risk of having to pay a portion of the costs herself)

 

  1. There is no doubt about it. EY and her partner refused, without reasonable cause, to let the Special Visitor visit CT or even speak to him over the phone. Dr Tennent’s report of 31 March 2014 stated:

 

 

 

“Over the course of these conversations EY referred everything to her partner. Quite politely they told me that CT did not want to see me but would not permit me to speak directly with him. They would not provide me with the name or address of CT’s current general practitioner. As I understood it, they were of the view that although CT had made an LPA he was still capable of managing his own affairs and they were not using the LPA and therefore the OPG should not be involved with his affairs. They told me that they were in correspondence with the Office of the Public Guardian about the matter and that until this had been resolved they did not want me to visit their home.”

 

 

  1. EY’s insinuation that a Court of Protection Special Visitor is neither independent nor impartial is both unwarranted and offensive.

 

 

  1. For me, the most striking feature of Professor Jacoby’s report was the repetition of a theme, which, like Ravel’s Boléro, rises in a continuous crescendo.

 

 

  1. In response to question (2) he said:

 

 

 

“Again, I consider that he would benefit from disinterested advice before making this decision.”

 

 

  1. He deliberately highlighted the word ‘disinterested’ by italicising it.

 

 

  1. In response to question (4), he said:

 

 

 

“Where more complex decisions are required he would, in my opinion, benefit from disinterested advice.”

 

 

  1. In his reply to question (5), Professor Jacoby said:

 

 

 

“I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions.”

 

 

  1. In his conclusion, which I have set out in paragraph 23, he said:

 

 

 

“… his capacities would be enhanced by disinterested advice.”

 

 

  1. And in response to question (4) again, the professor actually ventured to say that:

 

 

 

“I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway. However, because he is now dependent on her for his day to day care he might be more likely to accept her advice without more careful consideration.”

 

 

  1. I have never before read a report on someone’s capacity that has contained so many references to the need for ‘disinterested advice’. The only interpretation of this can be that Professor Jacoby believed that, although CT still has capacity in certain areas, he is being influenced by his daughter, and her advice is anything but disinterested.

 

 

[

 

The Judge decided that it would be wrong for CT to be ordered to pay EY’s legal costs, and EY would be responsible for her own costs

 

 

Decision

 

 

  1. If I were to apply the general rule for costs in a property and affairs case (rule 156), I would be required to order CT to pay the costs of these proceedings.

 

 

  1. The Public Guardian was seeking no order as to his own costs, whereas EY was seeking an order that her costs should be paid by the Public Guardian.

 

 

  1. For the reasons given above, and having regard to all the circumstances, I consider that a departure from the general rule is justified and I shall order EY to pay her own costs because her conduct, before and during the proceedings, has been aggressive and disingenuous and has resulted in both sides’ costs being far greater than they would otherwise have been.

 

 

  1. The overall effect is that I shall make no order for costs, though, having agreed to commission a report from a single joint expert, the Public Guardian and EY are jointly liable to pay a half of Professor Jacoby’s fee of £2,200 (£1,850 + VAT) for reading the documents, travelling from Oxfordshire to Essex, examining CT, and writing his report.

 

 

 

There is scope for a costs order to be made against the Office of the Public Guardian, if they behaved unreasonably in the course of the litigation, but this was not the case for it.

 

As my old law tutor used to say about Equity – “he who comes to Court must come with clean hands”

 

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Drinking during pregnancy

Posted on December 8, 2014 by suesspiciousminds

 

There was quite a lot of media attention about the Court of Appeal’s decision in

 

RE CP and Criminal Injuries Compensation Authority 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1554.html

 

and quite a bit of that media attention missed the point really.  [Which is fair enough, because the point was obscure and technical, and a far better story for selling newspapers is whether we are going to send mothers to prison for having a glass of wine during pregnancy]

 

The case was not about whether mothers should be prosecuted for drinking whilst pregnant, but whether technically they COULD be, which would allow for children who suffered damage (Foetal Alcohol Syndrome) to receive compensation from the Criminal Injuries Compensation Authority.

 

The Criminal Injuries Compensation Authority was set up by Government to make payments to people who are the innocent victims of crime.

 

“from people who have been physically or mentally injured because they were the innocent victim of a violent crime…”.

 

A person does not have to show that the perpetrator of that crime was later convicted of the offence, it is sufficient to show that (a)there was a violent crime and (b) they were physically or mentally injured.

 

The case was also not about whether or not it is a bad thing for mothers to drink during pregnancy. The Court did not hear arguments about whether consumption of alcohol causes harm to foetuses and whether that harm continues after the baby is born; that was a point that was accepted by all of the parties.

 

 

 

For a while, the Criminal Injuries Compensation Authority (CICA) were paying some claims on behalf of children who had Foetal Alcohol Syndrome due to their mother drinking during pregnancy, but then stopped.

 

CB’s case was brought as a test case for around 80 similar cases where children were possibly going to receive compensation if the Court of Appeal found that the consumption of alcohol in pregnancy was capable of being a crime.

 

If it isn’t capable of being a crime, no CICA compensation.

 

So, firstly, what crime are we talking about?

 

s23 of the Offences Against the Persons Act 1861. This provides:

 

“Maliciously administering poison, etc so as to endanger life or inflict grievous bodily harm.

Whosoever shall unlawfully administer to… any other person, any poison or destructive or noxious thing, so as thereby…to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted there of shall be liable…to be kept in penal servitude for any term not exceeding ten years”

 

 

As with any criminal offence, there are a lot of ingredients – unlawful administration, of something, to any other person that something being noxious, and the administration causing grievous bodily harm to that person

 

We could make this very complicated, but I’ll try instead to make it very simple.

 

If a mother takes her six year old child, and makes him drink a bottle of gin and he suffers as a result, liver damage or kidney failure, or even if he is just hospitalised, the offence under s23 is made out. The alcohol is a noxious thing, the administering is unlawful and grievous bodily harm was suffered.

 

But with a child in the womb, it was uncertain whether the offence under s23 was capable of being committed.

 

And that is a result of this bit in the statute “any other person”   – at the time the noxious thing was administered, was the victim a person?

 

 

That gets us into huge theological and pro-choice v pro-life debate; some people will feel very strongly that a foetus is a person, some will feel very strongly that until birth the foetus is not a person, some might feel that it depends on the age of the foetus, still others will feel that it depends if the foetus has reached a stage where it would be capable of being born alive.

 

But we can cut through all of that (fascinating and controversial as it is), because the Courts have given decisions on the legal position before.

 

And as the decision was from the House of Lords, it is powerful authority

 

  1. In Attorney General’s Reference (No 3 of 1994) [1998] A.C. 245, the House of Lords considered the case of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, which survived for only 121 days. The stabbing set in train events which caused the premature birth, which itself led to the child’s death, its chances of survival being very significantly reduced by the fact of the premature birth. Thus, a chain of causation between the stabbing and the death of the child was established. The issue was whether in those circumstances the crimes of murder or manslaughter could be committed.

 

  1. Their Lordships held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother. It was held that whilst there could not be a conviction for murder, there was sufficient for a conviction for manslaughter. The defendant in stabbing, had intended to commit an act which was unlawful and which any reasonable person would recognise as creating a risk of harm to some other person. Although a foetus was not a living person, the possibility of a dangerous act directed at a pregnant woman causing harm to a child to whom she subsequently gave birth, made it permissible to regard that child as within the scope of the defendant’s mens rea for the purposes of manslaughter when committing the unlawful act. Accordingly the crime of manslaughter could be committed even though the child was neither the intended victim nor could it have been foreseen as likely to suffer harm after being born alive. Thus the trial Judge should not have held that there was no case to answer on manslaughter on the basis that at the material time there was no victim capable of dying as a direct and immediate result of what was done.

 

  1. At paragraph 15 of its decision, the Upper Tribunal referred to the fact that Lord Mustill had identified a number of established rules relating to criminal liability. It continued;

 

 

“One of these was that in the absence of a specific statutory provision, an embryo or foetus in utero does not have a human personality and cannot be the victim of a crime of violence.

Although the foetus is a unique organism it does not have the attributes that make it a person. As Lord Mustill said (at 262D, my emphasis): “The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person… “.”

 

 

The “rules” set down by the House of Lords included these:-

 

“3. Except under statute an embryo or foetus in utero can not be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder.

….

  1. The existence of an interval of time between the doing of an act by a defendant with the necessary wrongful intent and its impact on the victim in a manner which leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death. …
  2. Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility even if the harm would not have been criminal (apart from statute) if it had been suffered in utero.”

 

 

 

So, the CICA were arguing broadly that as the foetus was not a person at the time the mother was administering the noxious substance (alcohol), there was no s23 offence.

 

And those representing CB were arguing broadly that IF there was consumption of alcohol in the womb, but the consequences of the harm were suffered after the baby was born, the s23 offence is capable of being made out.

 

 

[The CICA placing weight on rule 3 above, and CB placing weight on rules 4 and 5 above]

 

 

  1. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime. This, no doubt, is why Mr Foy albeit with some hesitation, sought to rely on the first limb of his argument as it would avoid this difficulty which arises under the second limb. He sought to meet the objection to the second limb by arguing that where FASD occurs, the foetus is damaged before birth, but that after birth there is continuing damage by reason of retardation. To the observation that what occurred after birth was simply the consequences of damage caused before birth, he submitted that these are continuing and that the court should be slow to distinguish between damage done and subsequent consequences or symptoms.

 

  1. I cannot accept this analysis. The reality is that the harm has been done to the child whilst it is in utero. The fact that if the child is born alive it will suffer the consequences of the insult to it whilst in the womb does not mean that after birth it has sustained damage by reason of the administration of the noxious substance. One only has to cast one’s mind back to the Thalidomide tragedy. The injury was done to the affected children by the administration of the drug whilst they were still in the womb. Those children who were born affected were born with missing or ill-developed limbs. Whilst they suffered the consequences on a lifetime basis after birth, they did not sustain any additional damage after birth by virtue of administration of the drug.

 

  1. Reference to the expert evidence of Dr Kathryn Ward, an experienced consultant paediatrician, whose very detailed report was before the First Tier Tribunal, (and which was not disputed), shows that the harm which is done by ingestion of excessive alcohol in pregnancy is done whilst the child is in the womb. The child would then, when born, show damage demonstrated by growth deficiency, physical anomalies and dysfunction of the central nervous system. Very often, as in this case, the full extent of retardation and damage will not become evident until the child reaches milestones in its development, at which point matters can be assessed. The fact that such deficits cannot be identified until that stage does not constitute fresh damage. It merely means that the damage was already done but has only then become apparent.

 

  1. It seems to me that this is fatal to the appellant’s contention. The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute “any other person” within the meaning of s23. The basis upon which the actus reus is extended in a manslaughter case cannot apply here since nothing equivalent to death occurred to CP after her birth.

 

 

 

What the Court of Appeal say in effect is that in the absence of Parliament specifically saying that an offence can be committed against a foetus in the womb, the Courts should be reluctant to take that upon themselves. Parliament has passed some legislation about offences that a mother can perpetrate on a foetus (using poison to attempt to procure a miscarriage, for example) and if Parliament had wanted to make excessive consumption of alcohol during pregnancy a criminal offence, it could have done so.

 

 

  1. If section 23 had expressly included a foetus as well as “any other person”, EQ would have committed the actus reus of the offence during her pregnancy. But that is not what Parliament has provided. Accordingly, it is because a foetus does not come within the ambit of section 23 that Mr Foy’s argument breaks down.

 

  1. I am fortified in the conclusion that I have reached by a number of other considerations. First, the approach to section 23 that I have adopted is consistent with the established structure of the criminal law as it relates to the foetus. Parliament has identified certain circumstances where criminal liability arises if a mother causes injury to her foetus. Thus the offence of a pregnant woman using poison, with intent to procure her own miscarriage (section 58 of the Offences Against the Person Act 1861) specifically provides for circumstances in which a woman administers poison or a noxious thing to herself. This offence does not apply to the circumstances of the present case because it requires intent. Section 1 of the Infant Life (Preservation) Act 1929 provides that it is an offence to destroy the life of a child capable of being born alive before it is born. Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so outside these offences. Since the relationship between a pregnant woman and her foetus is an area in which Parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.

 

 

CB’s appeal was unsuccessful and it is therefore NOT a criminal offence to excessively consume alcohol during pregnancy. (As said at the outset, it is not a green light to mothers to do that)

 

I think that most lawyers felt that CB’s case was not going to succeed, and that a foetus would not (at present) be classed as ‘any other person’ in a legal sense to make out the s23 offence.

 

Does that mean that it was a waste of time? Well, not really. Firstly, it has drawn publicity and attention to the risks of drinking during pregnancy. Secondly, it has drawn attention to the fact that children like CB aren’t receiving compensation and won’t unless Parliament either change the law (or probably more sensibly change the terms of reference for the CICA to allow them to pay compensation for victims of violent offences AND victims of Foetal Alcohol Syndrome)

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I would put this as a must-read (adoption case, dynamite)

Posted on December 5, 2014 by suesspiciousminds

 

The case is very fact-specific (the facts are extraordinary) but it is still very important.

 

I’ve written before about the leave to oppose adoption case law and whether this is a meaningful legal right given that there are no reported cases of an adoption being successfully opposed (there’s one law report of a Court being persuaded to make a Residence Order rather than adoption, but the child remaining with the prospective adopters).

 

For it to be a meaningful legal right, there must be some set of circumstances which would result in the opposition to adoption resulting in placement back in the birth family. But, the consequences of that for the recruitment and retention of adopters is massive.

 

As Holman J observed, this case is likely to attract strong opinions on both sides, and it does turn very much on an unprecedented set of facts.

 

Re A and B and Rotherham Metropolitan Borough Council 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/47.html

 

 

 

The child, C, was the subject of Care proceedings and a Care Order and Placement Order were made in August 2013. The child was placed with prospective adopters (A and B) and they duly applied for an adoption order.

 

At the time of this hearing, the child was 20 months old and had lived with A and B for 13 months.

 

The child’s genetic father, who had not been a party to the care proceedings (and who does not hold PR for the child) sought leave to oppose.

 

This is the telling paragraph

 

It is accepted by all concerned in this case that if the father had come forward and the true paternity had been established at any time up to the moment when the child was actually placed with A and B, then he would not have been placed with them and, after due assessment of her, would almost certainly have been placed with the aunt.

 

 

I’d urge you to read the whole thing, but that paragraph is dynamite.

 

As is this one

 

The case and dilemma has provoked divergent professional opinions. The front line social workers for each of the child and A and B support the making of an adoption order. A child psychologist who was jointly instructed to perform a “paper exercise”, but has not met anyone concerned, favours the making of an adoption order. The Director of Safeguarding Children and Families and interim Strategic Director Children’s Services of the local authority (equivalent to the Director of Social Services in this field), who is the decision maker and who expresses the considered opinion and case of the local authority, firmly resists adoption and advocates that the child moves to live with the aunt. The child’s guardian also strongly advocates that outcome.

 

 

That made me blink several times, so I will spell it out. The social workers supported the adoption, but the Guardian AND MORE SIGNIFICANTLY the Director of Social Services supported the child being placed with the paternal aunt.

 

That really is an extremely difficult issue to resolve. As a Local Authority legal hack, the idea of a Director and Social Worker in an intractable difference of opinion makes me shudder. [This Director was clearly very fair minded in not just saying “well, I’m the big boss, so do what I say”]

 

I’m not surprised by what Holman J says at the opening of this judgment.

 

 

I have been a full time judge of the Family Division for almost twenty years. In all that time, apart from cases concerning serious ill health, I have rarely heard a more harrowing case. The hearing was a very painful one for all concerned, and I sincerely thank all parties and the professional witnesses for their attention, dignity and, to the extent possible, good humour. I know, and deeply regret, that my decision will cause intense grief. After hearing all the evidence and argument, and after due consideration, I am, however, clear as to the outcome, which I do not reach narrowly or marginally.

 

 

I’ve read many of Holman J’s judgments over the last few years, and he really has dealt with harrowing, peculiar and emotionally draining cases repeatedly, so to say that speaks volumes.

 

 

This passage will probably appear again – it is how the Court deals with the issue of “speculation” (and I think it is wonderfully constructed)

 

There is one further “legal” matter which it is convenient to mention in this section of this judgment. At times during the hearing, when longer term risks or advantages were being mentioned or considered, Mr Power referred, understandably but somewhat dismissively, to “speculation”. Advocates, and also judges, often do dismiss points as speculative or speculation. However, in relation to adoption, the Adoption and Children Act 2002 very clearly does require courts (and adoption agencies) to speculate. It requires, as the overarching duty, that the paramount consideration must be the child’s welfare throughout his life. This child is still less than two. He is healthy, and his normal life expectancy may be around a further 80 years. It is probable (but speculative) that he and his half sister, F, and his cousin, G, will outlive all the adults in this case by many years. I am required by statute to take a very long term view, but I cannot gaze into a crystal ball. I can only speculate. More specifically, the court is required by section 1(4) (c) of the Act to have regard to “the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person.” Whilst that paragraph requires the court to consider only the “likely” effect, any such consideration involves speculation; and (speaking generally) the further ahead one looks (and one must envisage a whole lifetime) the more speculative such consideration necessarily becomes. My decision in this case does include speculation. That is what Parliament has told me to do.

 

 

You may, as I was, be interested in how it was that this aunt was not a feature in the care proceedings. If she had been known about then, the Placement Order would not have been made and the child never placed with the prospective adopters A and B. So why wasn’t she known about?

 

 

This is the most fact-specific bit of the case, I think. (It is not THAT unusual for a birth father to be untraced during the proceedings and to appear later, it is the WHY that is significant here. Mr E here is NOT the genetic father, but he is the man who appears on the birth certificate as the father, and who was treated as the father in care proceedings)

 

The mother is a young woman of white ethnicity who is still in her very early twenties. She has had problems with both alcohol and drugs. While a teenager she had already had two children by different fathers. They are now aged about 5 and nearly 4. They were removed into care and have since been adopted together by one adoptive family. (I will refer to them later as the adopted maternal half siblings.) The mother began a relationship with Mr E. He, too, has had an unstable past and has a criminal record for a range of offences of both violence and dishonesty, and a recorded history of drug abuse. In March 2013 the mother gave birth to C. He was a normal, healthy baby, and is now a normal, healthy young child. As had already been pre-planned by Rotherham, care proceedings were immediately commenced and the baby was removed from the mother five days after his birth and placed with foster parents. Neither the mother nor Mr E engaged with the care proceedings nor, effectively, with the local authority. However, the mother and Mr E jointly registered the birth on 18 April 2013, jointly stating and signing that Mr E was the father to the best of their knowledge and belief.

 

[Keep that in mind – the mother was white]

 

 

The child’s social worker, from the end of March 2013 and still now, is Miss Claire Fogwill. She did not know or meet Mr E for some time. She did, however, see the baby. I have seen photographs taken of him shortly after his birth, including the original colour photograph which is part of the later formal application form for the placement order. Although not black, the baby is very obviously very brown and has obvious negroid features. These are not racist comments. They are relevant facts. As all concerned with the case agree, he very obviously appeared to be of mixed race. Miss Fogwill said in her oral evidence that “when [she] first saw him as a baby he seemed obviously to have a black parent or at any rate a strong black/negroid genetic strain.”

 

Miss Fogwill was finally able to meet Mr E, who was in prison, on 22 May 2013. She said that she was expecting to meet a black man and “was quite shocked” when he came into the room, since he appeared to be an entirely white man. She asked him whether he was the biological father. He said that he was. (It is, of course, entirely possible that the mother had assured Mr E that he was the father, if she had never confessed to him that she had been having sex on the side with the actual father. As I have no evidence at all from either the mother or Mr E, I simply do not know.) Miss Fogwill questioned Mr E further and, according to Miss Fogwill, he told her that the baby was very brown because he, Mr E, had a Burmese mother, and added that the baby would become paler with age. Neither Miss Fogwill nor, so far as I am aware, anyone else, took any steps to seek to verify whether in truth Mr E has a Burmese mother. I personally do not have the slightest idea. Miss Fogwill claimed that she was “not able to meet the mother again to ask her about paternity”, but in truth she made little effort to do so, and she made no enquiries of the mother’s own mother whose whereabouts were settled and known.

 

Miss Fogwill made reports to Looked After Reviews on 12 April, 13 May and 11 July 2013. Also present at, and chairing, these reviews was the Independent Reviewing Officer (IRO). The minutes of the first two reviews record that the child “… is a child of mixed heritage. His mother is white British … the social worker is, to date, unclear of father’s ethnicity and has asked [sic] father to clarify this …” The minutes of the review on 11 July, also chaired by the IRO, record that “… the social worker has clarified with father that he is dual heritage as his mother is Burmese … the parents wished for the child to be referred to as White British, despite his presentation not reflecting this. Father [viz Mr E] informed the social worker that he expected the child’s skin colour to change with age …” There is no hint in those minutes that the IRO queried the account of paternity or suggested that further enquiries should be made. I do not make a criticism of the IRO for she has not been involved in this hearing and has had no opportunity to state her own point of view, but I accept the point made by Mr Prest that the responsibility of Miss Fogwill appears to have been shared with others. Miss Fogwill has, however, accepted that she made a serious error in swallowing the explanation of the Burmese mother (i.e. the child’s grandmother) and not investigating paternity further, and she has apologised from the witness box to both the true paternal family and the applicants for adoption. Miss Fogwill’s formal report to the court dated 28 June 2013 in support of the application for a placement order depicts a photograph of the child as I have already described, and refers to his having black hair and brown eyes and a dark complexion. It continues that the mother is white British and Mr E is half white British and half Burmese as his mum was Burmese and father white British. “[C’s] skin is quite dark however [Mr E] states that as [C] becomes older his skin will become paler. [Mr E’s] skin is white.”

 

The present guardian, Mrs Sheila Hassall, also acted in the care and placement proceedings. In her report dated 19 July 2013 she describes Mr E as “White British Burmese” and says at paragraph 12 “[C’s] paternal grandmother is Burmese, although I understand his father [viz Mr E] views himself as white British. At present [C] has the appearance of a baby who is not white British …” As I understand it, the guardian herself never actually met either the mother or Mr E. So she merely accepted the story via the social worker. She said that she only ever saw a blurred black and white photocopy photograph of the child. She said that she visited the baby once at the home of the foster mother. However he was asleep, face downwards, with his head largely covered. She only saw one arm sticking out. The arm looked brown but she did not examine the baby further. Mrs Hassall accepted her share of responsibility. She said during her oral evidence: “I make a heartfelt apology we are in this situation. I feel desperately sorry for all those involved.”

 

I have already referred to the report to the court for the application for a placement order. I do not know whether the circuit judge saw the original with the colour photograph which, as I have described, very clearly depicts a brown child of mixed race with negroid features; or whether he saw a black and white photocopy, one version of which I have seen, which shows the child’s face as a barely distinguishable large black blob like a large blob of spilt ink. At all events, the judge appears not to have raised any question about true paternity at the, probably short, hearing when he made the care and placement orders.

 

 

If you are following this, Mr E was named as the father on the birth certificate, the mother said that he was the father, and he said he was the father. The contradictory evidence (of people’s eyes) was firstly an area that people feel uncomfortable with – that of colour, and secondly Mr E had given an explanation for it that was accepted. On that first point, just reading the paragraph, even when said by a Judge, it made me feel uncomfortable to read that ‘n’ word.

 

So a last opportunity seriously to question paternity and consider obvious avenues of further enquiry was lost. I accept, of course, that such enquiries might not necessarily have uncovered the true father, but they well might have done, for the affair between the true father and the mother was well known in the community and circle within which they lived. The mother’s own mother certainly knew the true facts, as will later appear.

 

 

Let’s also not forget that in a culture of 26 weeks, no delay, and assessments only being done if they are ‘necessary’, it might have taken some persuasion to get the DNA test of Mr E done. If it had been done, the proceedings would have been delayed, but an inordinate amount of time and pain would have been avoided.

 

How did the real father ever find out about this? Deep breath, because this is quite complicated too.

 

The father was in a long-term relationship with someone else, Miss D. When he had been sleeping with the mother, he was cheating on Miss D. There had been speculation in the community and gossip, and someone came up to Miss D and showed her a photograph of the child as a baby.

 

Soon after the child was born someone showed Miss D a photograph of the baby. She could see that the colour and the features looked like her own daughter, F, and also like the father. She told him “I really think he is your child.” He continued to deny to her that he had had sex with the mother and that, therefore, he could be the father.

 

It seems, though this is not explicit, that these suspicions continued and finally the father’s sister (the aunt in question) approached the Local Authority in March 2014   to say that she thought her brother was the true father of this child. (For timing purposes, that’s seven months after the Placement Order, and two months after the prospective adopters had made their application to adopt)

 

On 6 March 2014 the aunt first contacted the social services and said that her brother might be the father of the baby. Miss Fogwill was shocked and surprised by this news. She and a more senior colleague interviewed the father on 14 March 2014. She then immediately arranged for DNA sampling and testing of the baby and the man, and a report dated 24 March 2014 established a 99.9999 per cent probability that he is indeed the father. All parties including A and B accept that he definitely is the father and the case has since proceeded on that basis. The father is a black African who was born and brought up in that continent. He is now aged 32. His own father died when he was young. He himself travelled to England in 2001 and claimed asylum. He has lived here ever since and has indefinite leave to remain. He is the seventh of a large family of eight children. His own mother, now aged 64, now lives in the Midlands. Two brothers live in the Midlands and South Wales. A sister lives in East Anglia, and his youngest sister, the aunt, lives in the Home Counties. The brothers and sisters in England and Wales have between them eight children who are paternal first cousins of C. Some of them are of mixed race, having also a white parent. The father’s three other siblings live variously within Africa and Canada. There is, therefore, a considerable extended paternal family, mostly located within England and Wales.

 

 

But hold on a minute – this all happened within a small community, and whether the father knew or not that he was the genetic father of this baby, he must surely have known that as he had been sleeping with the mother, there was a chance that he might have been?   The Judge found that he was aware of that.

 

And did he know that the baby was in care?

 

This evidence as a whole satisfies me that, within a very few weeks of the birth at the latest, the father knew perfectly well that it was highly likely that he was the father of the baby. He could not of course be certain, since he knew also that the mother had had other sexual partners. But she told him, in effect, that the baby was half black and that he had been her only black partner. Short of DNA testing, the likelihood was obvious.

 

He took no action at all. He showed no real interest in the baby, or even much interest in seeing him, although he did ask the mother if he could do so. I do not know why not, but it was probably due, at least in part, to his continuing stance of denial to Miss D. Whatever the reason, it is a significant part of the history of this case that for almost a year the father showed no interest at all in, or commitment at all to, the child, and denied rather than asserted that he was the father. So as well as the responsibility of Rotherham, the guardian, and possibly the court, for not investigating paternity further, a very heavy responsibility for events lies upon the father. If he had shown any real interest in the baby and put himself forward in any way as the likely father, then the true facts would probably have emerged much earlier and the baby would never have been placed with A and B.

 

A separate and distinct question is when the father first learned that the baby was in care. His case is that he learned this for the first time at the beginning of March 2014. He said that he saw the mother’s mother in the town. He asked her where the child was. The mother’s mother said that he was in care and that the mother had lied to him. He then immediately spoke to and told his sister, the aunt, and at his request she immediately contacted the social services. He says that in the first weeks after the birth he had indeed asked the mother if he could see the baby and she had fobbed him off by saying that the baby was staying with her mother or sister. She also misled him into thinking that she was caring for the baby by asking him on a few occasions for money for nappies.

 

To the very end of his evidence, even when recalled and admitting what I have recorded above with regard to his knowledge of paternity, the father remained adamant that it was only around early March 2014 that he first learned that the baby was in care, and that he at once informed the social services and requested that he or his family could care for the baby.

 

 

This last point might be critical – if the father knew that he was probably the baby’s father, he could have legitimately kept quiet not to rock the boat and jeopardise his relationship with Miss D UP UNTIL he knew that the baby was in care, whereupon it was time to speak up.

 

The Court concluded that his evidence that he had not known until shortly before his sister approached Social Services should be accepted.

 

I have to decide whether I am satisfied on a balance of probability that the father knew that the baby was in care as early as about April 2013, as the local authority allege; or only in early March 2014, as he himself claims. On this issue there is force in the point Miss Ford makes on the third page of her written closing submissions dated 21.11.14, and as she elaborated orally. The father’s case is that he first learned that the baby, of whom he was likely to be the father, was in care in early March 2014. He immediately contacted the social services (initially via his sister) and has, unquestionably, strenuously sought the move of the child to live with him or his family ever since. It was only later that he learned that the child had actually been placed for adoption or that there was a current application to adopt him. So, as Miss Ford puts it, his conduct by contacting social workers in March 2014 can only be explained by his having only recently learned that the child was in care. No other event or trigger has been identified as to why, having done nothing and shown no interest for so long, he suddenly did then make the contact which he did. Miss Ford asks, rhetorically: Assuming that he had known that the child was in care from, say, mid or late April 2013, why did he suddenly do something and with such resolve in March 2014? She submits that the activity in and after March 2014, for which there is no known other explanation, is really only consistent with his having recently learned in March 2014 that the child was in care.

 

I take into account the demeanour of the father in the witness box when he was recalled. At the same time as now admitting that soon after the birth the mother herself had told him that he was the father, he maintained his account, apparently convincingly, that he only knew that the baby was in care almost a year later, and said that the social worker must have misunderstood him. I also accept the force of Miss Ford’s point as described in the previous paragraph. There was room for misunderstanding, and I am not satisfied on a balance of probability that the father knew that the baby had been taken into care earlier than early March 2014, when he took action at once.

 

 

 

So, that’s how this situation arose. The person who had been treated as the father in the care proceedings was not the real father, and the real father had not known of the care proceedings because nobody had thought to tell him. The only person who knew both key sets of facts was the mother, and she had taken no action.  [The maternal grandmother might have known, by my reading, but whether that is definitive is hard to say]

 

 

The judgment then talks about the various assessments, but the long and the short of it is, the options available were to make an adoption order to A and B, or to remove the child from A and B and to place with the paternal aunt.

 

A and B were clearly very good, capable and loving people, well capable of caring for the child. The Judge said this about them :-

 

 

Even before C was matched with them, A and B prepared themselves very thoroughly as prospective adopters. They read widely. They attended courses. They learned about the importance of attachment, stimulation and other parenting qualities. This stood them and him in good stead. I accept unreservedly the current assessment by Miss Lancaster that A and B are the “perfect” adoptive couple. She said in her oral evidence that in spite of all the challenges they are remarkable people. They are excellent adopters doing a remarkable job. If she could paint the ideal adopters they are not far from the mark. They have an excellent understanding about attachment, about which they were trained. The have a very good understanding about the impact of loss and trauma. They have great appreciation of the kind of parenting styles that work well.

 

I accept unreservedly that C is now very well attached to A and B. He feels, and is, secure with them. They provide an excellent home. They are also undoubtedly deeply attached to him. B said very movingly “He is such a happy, settled, loving little person who knows who we are … I am so proud of him. I love him so much. I will always love him. He will always be my son.” C is also a familiar and much loved member of the extended families of both A and B.

 

There is no doubt that if the true paternal family had not emerged and put themselves forward in the way that they have, an adoption order would have been made several months ago.

 

 

And the Aunt?

My own impression of the aunt was very favourable. She is much more articulate than her brother, the father. She appeared to be thoughtful and flexible, and insightful and understanding of the issues in this case. She said that she has prepared her own son, G, for the possibility that he might be joined by another, younger, boy. She talks to G about C, and G would not be surprised if C became part of their family. She said that G himself is a lovely boy, very caring and very sharing, who plays very well with other kids. She paid generous and sincere tribute to A and B although of course she has never met nor seen them. She said she was just so grateful for what they have done. It is beautiful. They have taken very good care of him.

 

 

Even the social workers who were supporting the child being adopted by A and B were not critical of the aunt, just feeling that the child ought not to be moved.

 

 

[I will quickly note that the Aunt and Miss D were represented pro bono by counsel and solicitors, which was an extremely helpful and generous thing]

 

Holman J made it plain at the outset and repeatedly, that he was not approaching the case in a narrow “nothing else will do” manner, due to the recent authorities, but in weighing everything up as to what order would best meet the child’s needs throughout their lifetime.

 

 

The legal framework as I have so far described it is agreed by all the advocates in the case, including that I must apply all the relevant parts of section 1 of the Act. In their written skeleton arguments and written final submissions, as well as in their brief oral final submissions, there has been some debate between the advocates as to whether, in applying section 1, I should adopt the approach that I should only make an adoption order if “nothing else will do”. This led to some brief examination of the judgments of the Supreme Court in Re B (a child) [2013] UKSC 33, and some later judgments of the Court of Appeal in which that court appears to have been exercised by what the Supreme Court actually meant by what they said in Re B (most recently the judgments delivered by the Court of Appeal only two weeks ago on 18 November 2014 in CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479).

 

In my view that is a debate and territory into which I need not and should not enter. The legal and factual situations in those cases were different. In the present case, the child has already been lawfully and appropriately placed for adoption with A and B for over a year. A range of rights under Article 8 of the ECHR is engaged. There is a continuing legal relationship between the child and his paternal genetic family, with whom he has a father, grandmother, aunts, uncles and a paternal half sibling, but no current psychological relationship. He has never met any of them. (He also has several cousins but they are outside the definition of “relative” in section 144 (1) of the Act.) In this case the child unquestionably also has a private and family life and a home with A and B, and they with him, for which all three of them have the right to respect under Article 8. With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”. (Indeed Mr Nicholas Power might have argued on behalf of A and B, but wisely chose not to do so, that there could now be no interference with the Article 8 rights as between A and B and C mutually except if “necessary” within the meaning of Article 8(2).) Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires. If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

 

 

 

The parties had all drawn up balance sheets, and the Judge said something that I find very helpful when looking at balance sheets.

 

I have read and re-read those “balance sheets” and all the written closing submissions, and I have all the points listed there in mind. Judges frequently use the language of “balance” and “balance sheets” (and I do myself. I think lists such as the above are indeed very helpful). But the analogy with balancing scales may be misleading. When weights or objects are put on either side of a scale, their individual precise weights are known, or ascertainable. You can put four objects in one scale pan and seven in the other, and the scales will come down one way or the other due to the aggregate of the individual precise and ascertainable weights on each side. In a case such as this, however, none of the factors have precise weights. All that may be said of any individual factor is that, as a matter of judgment, it is more or less important or weighty than another. Mr Power’s list is long on the advantages of adoption and short on the disadvantages. It is not, however, the number of factors which counts but their respective importance. The Adoption and Children Act 2002 does not itself use the language of balance. It requires the court to “have regard to” all relevant matters, including those specifically referred to in section 1(4). The effect of section 1(6) is that the court must then make a judgment (applying section 1(2) and the paramountcy of welfare throughout the child’s life) whether making (in this case) an adoption order “would be better for the child than not doing so.”

 

 

 

I often read judgments from the High Court and thank my lucky stars that I am not, and never will be a Judge called upon to decide between two impossible situations. This was one of those occasions.

 

My condensing of this judgment is not, and could not be, a fair reflection of the deliberation that the Judge undertook. I would urge you to read the whole judgment to get a proper reflection of the complexities of this matter.

 

Nonetheless, you want to know the outcome, and I need to give it to you, so that debate can occur.

 

 

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

 

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

 

The care order made on 2 August 2013 now once again has effect. Rotherham, in whose care C again now is, must engage intensively with all the relevant parties, and file and circulate within three weeks a written care plan setting out their plan for C and how they will implement, in the least damaging way, the process of his move from A and B to the aunt. It is impossible for me or any court to micro-manage that plan and process, and inconsistent with the respective roles and duties of the local authority and the court that I or the court should attempt to do so. If (as I sincerely hope will not be the case) any further resort to the court is necessary, application must be made locally to the designated family judge in Sheffield. A copy of this judgment must be given to, and read by, the Independent Reviewing Officer and all social workers having any continuing role with these families.

 

I have found this decision extremely painful, for I sincerely and deeply appreciate the intense grief it will cause to A and B and to their extended families and friends. But I have not, in the end, found it difficult; and, as I said at the outset of this judgment, it is not one which I reach narrowly or marginally. At the directions hearing in Leeds, when I had read few of the papers (and there were several key documents still to come) and before I had heard any of the oral evidence or argument, I described this as a finely balanced case. By the end, I do not think that it is. I am clear that the welfare of C throughout his life decisively requires that he is not adopted but moves to live with the aunt. It is my duty to make that welfare paramount.

 

 

 

There are a lot of very fact specific components to this case – it is unlikely that another case with exactly these issues will ever appear again. So it is not a definitive ruling for anything other than a case with these particular facts.

 

Nonetheless it is

 

 

  • The first successfully opposed adoption that I have seen since the 2002 Act came into being (and I didn’t find any reported ones going back to the 1976 Act, though I could have missed them)

And

 

  • Potentially significant – here, the assertions of mother and Mr E that Mr E was the father was accepted, and a true father emerged later. That particular set of circumstances (stripped of all of the ethnic features and clandestine affairs) is probably not that unusual. Local Authorities and Courts are somewhat dependent on a mother telling them that there is more than one putative father. Will we see successful challenges to adoption on that narrower aspect? Will we see Courts being more inclined to DNA test putative fathers even where mother is saying that there is only one putative father?

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Tarama-TOLATA

Posted on December 5, 2014 by suesspiciousminds

 

I don’t normally write on financial cases, but this one is rather significant (and one can see that it might end up bleeding into other areas)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4110.html

 

Seagrove v Sullivan (Practice Directions re bundles and citations of authorities) 2014

 

This was a case in which Mr Sullivan had lived with Ms Seagrove for over twenty years and they had had children together, but never married. The youngest child was ten. Mr Sullivan owned a house, valued at around £2,300,000.

 

The equity in that property amounted to about £1 million.

 

Ms Seagrove had made a claim under TOLATA Trusts of Land and Appointment of Trustees Act 1996, and under Schedule 1 of the Children Act 1989 to seek a financial interest in that property and its 14 acres of land, as there was no marriage ancillary relief was not an option.

 

The case came before Holman J.

 

He was, well aghast doesn’t seem to overstate it. This former couple were litigating about whether Ms Seagrove was entitled to a half share in a property whose equity is worth a million, so the sum of money in dispute is £500,000.

 

For reasons that are unintelligible (unless you do cases involving financial disputes between former lovers where things have gone sour), they’ve spent £1,300,000 so far, arguing about £500,000.

 

Since she first instructed solicitors following the breakdown of their relationship, Sandra has incurred (including her estimated costs to the end of a fully contested current hearing) costs of about £800,000 inclusive of VAT. She, indeed, currently appears to be heavily in debt as a result. Larry has incurred costs of about £506,000, inclusive of VAT. So, between them, these two parties, who lived together for over 20 years and bore three children, to whom I am sure they are each devoted, have now incurred, or anticipate incurring, expenditure of about £1,300,000 on legal costs.

 

 

What are they arguing about? They are arguing about a claimed half share in an asset that may be worth around £1 million. So they are arguing about £500,000. What they have incurred in costs is not far short of three times the amount in dispute. Others might use other words of description, but as this is a judgment in a courtroom, I will merely say that the costs, and also the scale and intensity of this litigation, have been, and are, completely disproportionate.

 

 

Holman J was also considerably irritated at the volume of papers lodged in the case.

 

Having referred to the completely disproportionate costs that have been incurred, I turn now to the documentation which underlines the scale and intensity of this dispute. There were delivered to the court yesterday, or the day before, five large lever arch bundles of documents, which comprise over 2,000 pages, inclusive of the respective skeleton arguments, which are each just under 25 pages. There were also delivered to the court two large bundles and one more slender bundle containing no less than 32 authorities. As if that were not bad enough (as I will later describe), I was, frankly, flabbergasted this morning when the solicitors arrived at the court at about 10.10 am with another large cardboard box containing an additional five large lever arch files of additional documents (these are the ones with lavender coloured card on their spines). I have been told that those additional five bundles contain around a further 1,500 pages of documents. So, in aggregate, at the outset of this hearing, these parties are expecting consideration of all or part of 3,500 pages of documents as well as all or part of the 32 authorities. This needs to be considered within the framework that rule makers and the most senior judiciary have endeavoured to establish in order to ensure the proportionality of litigation.

 

 

It has been many years since I did a TOLATA claim, but a quick look at the Court fees schedule suggests that the fee is probably £255 (treating it as a family financial application), but no higher than £2,000 (treating it as a money claim).

 

I don’t know Holman J’s hourly rate, but to read 3000 pages is a considerable expense to the taxpayer, which is in no way covered by that standard fee.

 

I can imagine the baleful look that the solicitor got when he or she came in with a box of five further lever arch files.

 

 

Building on Mostyn J’s recent decision in Re J, Holman J reminded everyone about the Rules on bundles

 

 

In order to try to exert some control over documentation, which always has a considerable knock-on effect on the length and complexity of hearings, numerous practice directions have been made over the years by Presidents of the Family Division and other heads of divisions. The current practice direction in relation to bundles and documents is Practice Direction 27A, which is itself part of Part 27 of the Family Procedure Rules. This practice direction was issued by the President of the Family Division in April 2014. It was issued after a process of consultation with the well known professional organisations and associations of both the solicitors’ and barristers’ branches of the profession. It did not come out of the blue, and its existence has patently been well known now for an appreciable period of time by all the lawyers engaged in this case.

 

 

Of most relevance to the present situation is paragraph 5.1. That was specified by paragraph 13.2 to “have effect from 31 July 2014”. We are now four months on from 31 July 2014. Paragraph 5.1 provides as follows:

 

 

“Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one [I emphasise the word, one]A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.”

 

A later “statement”, to which I will shortly refer, makes plain that the 350 sides of text must be inclusive, not exclusive, of the sides of paper in counsel’s skeleton arguments

 

 

That’s right – unless the Court has specifically directed so, there is to be ONE bundle, of no more than 350 pages (including skeletons)

 

Holman J noted what Mostyn J had said when deprecating the practice which has sprung up of the parties agreeing the contents of that one bundle between themselves, but then lodging loads of supplementary bundles on the basis that the Court would be bounced into allowing all of that material, and agreed.

 

 

Mostyn J continued in a very important passage:

 

 

‘I also deprecate a practice of circumvention of which I have become aware. That is for the lawyers for both sides to agree a single “core” bundle and, in addition, an archive of many volumes of expensively prepared secondary or background material. This archive is then brought to trial in the confident belief and expectation that the trial judge will grant permission pursuant to PD27A para 5.1 at the final hearing itself to use documents from the archive. This is no better than the old regime which the new prescription was designed to stamp out … It is possible, of course, that, unexpectedly, further documents may be need to be deployed at the final hearing; but the starting point, and the usual finishing point must be that all the relevant documents should be in the single bundle …”

 

 

The advocates attempted to argue that a previous direction given in the proceedings that

 

Bundles are to be agreed between the solicitors (in consultation with counsel) and prepared by no later than 14 days before the final hearing.

 

Was in effect a direction that the parties could lodge such documents as they agreed amongst themselves.

 

“I thought we had Cate Blanchett?”

 

https://www.youtube.com/watch?v=JDUoTHj8AJ4

 

Holman J manifestly disagreed

 

The argument was that, by saying that “bundles are to be agreed between solicitors”, Moor J was giving some apparent carte blanche to the parties, through their solicitors, to include in the bundles anything that they wished to do so. Mr Wagstaffe denied that he was advancing such an argument, but, frankly, that is what his argument amounts to. He submits that the use of the words “bundles are to be agreed between solicitors” amounted to a “specific direction otherwise” and authorised bundles to exceed a total of 350 sides of text. Logically, his argument does mean that all and any documents that the solicitors “agreed” could go into the bundles could indeed be included, no matter how many or how long.

 

 

To my mind, that argument is spurious. It is inconceivable that, at the same time as ruling, by paragraph 10 of his order, that skeleton arguments were not permitted to exceed 25 pages, Moor J could have intended, or for a moment contemplated, that he was giving carte blanche * to these solicitors and parties to put in whatever documents they liked, no matter how many pages. In my view, there is no “specific direction” otherwise in this case and, as castigated by Mostyn J at paragraph 47 of J v J, the lawyers in this case have approached the case as if the terms of the practice direction “just did not apply to them”.

 

 

The courts have to exert discipline in relation to this. I stress, as Mostyn J did in J v J at paragraph 53, that if parties wish, at their own expense, to litigate to their hearts’ content, with thousands and thousands of pages of documents, there is a mechanism available to them known as private arbitration. But litigation within the courts has to be the subject of much more rigorous discipline and structure, precisely because the courts have a duty to ensure that an appropriate, but only an appropriate, share of the court’s resources are allocated to any one case. The same judges have to deal also with an enormous number of very difficult cases involving the future of vulnerable children, and the care and treatment of sick people, including mentally incapacitated people. It is simply not tolerable that we go on and on affording to people like Sandra and Larry an estimated eight days of court time on a dispute that ultimately is measured in something not exceeding about £500,000.

 

 

The cost of running these courts is not inconsiderable. I cannot specify what the daily cost is, for I do not know, but the state has to provide and pay for the judge, the court staff, the “back office” staff, the provision of the courtroom, the maintenance of the courtroom and all the other associated costs. It is obvious that the daily running costs of a court and courtroom such as this run into several thousands of pounds. Multiply that by eight and one can see at once that there is an expectation that this state, which as we all know is struggling still to rein in the deficit following the recession, should expend completely disproportionate amounts on resolving issues and disputes of this kind.

 

 

[* the Judge clearly meant “Cate Blanchett” here]

 

https://www.youtube.com/watch?v=JDUoTHj8AJ4

 

 

The Judge also looked at the timescales for the final hearing

 

 

 

A large part of the ridiculous time estimates in this and other financial cases is referable to the sort of volume of documents, including authorities, that parties still assemble and marshal. This case was given an estimate of eight days, with a detailed trial template. That template contemplates that, after one day of reading and six days of evidence and argument, the judge should be able to give an ex tempore judgment on the afternoon of the eighth day, after merely the morning of the eighth day for consideration. It is fair to the parties and their lawyers to say that that “trial template” was annexed to the order made by Moor J on 11 June 2014. It may be that that particular judge has the mental capacity to listen to seven days of evidence and argument, to absorb up to 3,500 pages of documents and 32 authorities, and still give an ex tempore judgment in what, on that scenario, would be a very detailed case, after merely one morning of consideration. Frankly, I doubt it.

 

 

Currently, this estimate is an unrealistic estimate for a case on the scale that the parties or their lawyers contemplate. If this case were to run, including all the evidence and submissions, to the end of day seven, it would manifestly require at least two days for preparation of a detailed, considered judgment, and then a day for delivery of the judgment and working out the aftermath. In other words, frankly, as things stand, the estimate that the parties are putting forward is one not of eight, but of ten days.

 

 

If you think that Holman J was about to take ten days of litigation over £500,000 when the parties had already blown £1,300,000 arguing about it, then I have a bridge that I am interested in selling you.

 

I am absolutely determined, in this case, not to allow that to happen. There has been wholesale breach of the practice direction and of Mostyn J’s statement with regard to documents, and total disregard of the Lord Chief Justice’s direction with regard to the citation of authorities. I propose to deal with it, in this case, as follows. Except for the two skeleton arguments and the chronology, every single piece of paper that has so far been lodged will be taken away from this courtroom now. All the bundles of authorities will be taken away from this courtroom now.

              

 

I will adjourn this case now until 10.30 tomorrow morning. At 10.30 tomorrow morning, unless by then the parties have reached an overall settlement of this case, they must attend with one, single, composite bundle, containing not more than 300 pages as the President’s direction requires. I say 300, for I am excluding and retaining the two existing skeleton arguments, which, as I have said, extend to about 50 pages. There must be only one bundle of not more than five authorities.

 

 

If the parties cannot agree as to the contents of the documents bundle, then each side can select 150 pages of their own choosing, thereby making the total of 300. If they cannot agree on authorities, then they must at least agree on one essential authority (probably Jones v Kernott) and they may each include two further authorities of their own choosing.

 

 

On the skeleton authorities, Holman J was perplexed to see a bundle of 32 authorities, given that the two leading authorities are from the Supreme Court and that those authorities marshall and draw together all of the previous jurisprudence.

 

This morning, Mr Christopher Wagstaffe QC, on behalf of Sandra, and Mr Richard Todd QC, on behalf of Larry, have endeavoured to address these matters and, to some extent, to justify their positions. It is fair to say that, on behalf of Larry, Mr Todd immediately said that it was “absolutely right that the costs are disproportionate” and indicated that he and his side share my concern about the scale of the documentation. But even Mr Todd, in relation to the assembly of the 32 authorities in apparent disregard of the Lord Chief Justice’s practice direction, sought to justify his position. He fastened on the words “unless the scale of the appeal warrants more extensive citation”. He suggested in a general way that the law in relation to the topic of beneficial interests is complex, so that, somehow, the scale of this case warrants the citation of no less than 32 authorities.

 

 

I completely reject that suggestion. When the Lord Chief Justice referred to “the scale of the appeal”, which may be paraphrased as meaning, in this context, “the scale of the case”, that does not simply refer to legal complexity, but to the actual scale of the underlying litigation. This is not litigation about tens of millions of pounds. It is litigation about a half share in the former home in which these parties lived with their three children, having an equity of around £1 million and a half share, therefore, of around £500,000. In the context of family financial litigation, this is, in fact, a relatively small scale case these days.

 

 

The whole topic of beneficial interests following cohabitation has been the subject of recent consideration by the Supreme Court, in particular in the well known cases of Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53. It would be surprising, frankly, if it was necessary to look beyond those two authorities; but most certainly, when the Supreme Court has, on more than one recent occasion, traversed all the historic law in relation to this topic, it is quite ridiculous and completely disproportionate to produce bundles of no less than 32 authorities. I know that some of Mr Todd’s authorities relate to some separate argument that he wishes to run with regard to “laches” and limitation, but that does not provisionally strike me as a very promising line of argument in this case.

 

 

Mr Wagstaffe began by referring to the undoubted fact that, in the recent authorities to which I have just referred, the Supreme Court have said one has to have regard to the whole course of dealing between the parties; and of course I accept that. In a general way, one does indeed have to begin at the start of the relationship between Sandra and Larry in 1989 and look at their financial dealings since then. That is why, provisionally, it does not seem to me that Mr Todd’s argument based on laches and limitation is on very fertile ground.

 

 

The Supreme Court, by what they said in those authorities, cannot have intended courts to disregard the overriding objective in both the Civil Procedure Rules and the Family Procedure Rules; nor to disregard such an integral part of the Family Procedure Rules as the practice direction with regard to court bundles. The court must, from first to last, have regard to proportionality and all the other non-exhaustive matters listed in rule 1.1(2). So I do not accept for one moment that there is something about the facts or legal context of this case which enables or requires proportionality and the practice direction to be disregarded.

 

 

The Judge invited the parties in very strong terms to stop throwing their money at lawyers and come to a sensible agreement, which they duly managed the next day.

 

If you have a Court hearing next week before Holman J and you have ten bundles, I’d get on the phone to the other side and get 300 pages agreed, pronto.

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I come not to praise “nothing else will do” but to bury it

Posted on December 4, 2014 by suesspiciousminds

 

I think one could safely say that five Court of Appeal decisions in five weeks whose thrust is “don’t come wingeing to us about nothing else will do” counts as a hint being heavily dropped, much like my own heavy-handed hints that a Darcey Bussell calendar would hit the spot over this festive period.

 

Hints, of course, are not always taken.

 

[I know of more forthcoming decisions from the Court of Appeal, and I suspect there will be a few working their way through the system before Counsel for the appellant makes a difficult telephone call saying “we’re doomed, we need to drop this”]

 

Re T (Children ) (Rev 1) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1549.html

 

The original case had involved 6 children, the youngest two being made subject to Placement Orders, and the older four being made subject to Supervision Orders and placed with their father.

 

The mother’s appeal was largely based on a claim that the Judge had failed to properly analyse whether adoption was proportionate and that “nothing else will do” and whether a placement with her instead might have met the children’s needs.

 

Reading between the lines on this one, mother’s counsel was put through the wringer by the Court of Appeal who have a somewhat different approach to that taken earlier in the year and last autumn.

Ms O’ Leary concedes, without hesitation, that :

i) HHJ Waller is a well known and experienced family judge who gave a long, carefully considered and thorough judgment having seen and heard the parties give evidence.ii) The Social work report was ‘exemplary’ including the way in which it dealt with the question of future placement alternatives for the children in a balance sheet form. The social worker gave evidence and the judge undoubtedly had in mind the totality of her evidence.

iii) The authors of the FAST assessment report were not required by the mother to give evidence. It was conceded on behalf of the mother that the authors of that assessment would have been the people through whom to challenge the assessment generally, or to put a case that the mother could cope with two children if not with six.

iv) The judge had not been asked to consider the return of the two youngest children; the mother’s case had been unclear, but at trial she had been seeking the return of at least three of the children (including J and O).

v) The judge not only expressed his understanding that adoption is an order of “last resort” [48] but expressed on a human level, that “it is with great reluctance and after careful consideration” [265], that he reached the decision to grant the care and placement orders.

 

The issue of interest in this appeal, other than it being yet more bolstering of an argument that appeals based solely on “nothing else will do” are not going to be cutting much mustard anymore, is that the judgment at first instance did not contain a single section in which all of the analysis and proportionality assessment was self-contained, but the Court of Appeal ruled definitively that if this material was threaded through the judgment as a whole, that was sufficient.

 

  1. The judge recognising that the care plan of the local authority was one of adoption thereafter asked himself the right question namely whether “the permanent separation from the natural family and relatives and the severance of legal ties, is necessary or whether there is any other realistic option” [277].
  2. Whilst not corralled in one section of the judge’s judgment, the positives and negatives of both rehabilitation and of adoption are threaded through the judgment; they are no less a part of the Re BS exercise for that. The judge as he was entitled to do, answered the question he had posed and decided, on the facts and in the light of his careful welfare analysis, that the children’s future welfare could not be safeguarded with the mother and therefore other alternatives had to be considered.
  3. In this case it was accepted that given the ages of the children and the absence of any family members to care for them, adoption was the only realistic alternative to rehabilitation. Where the judge had only two options available to him his decision making process is not rendered “linear” simply by virtue of his conclusion that rehabilitation is not in the best interests of the children, so leaving adoption as the only realistic option for the children concerned. The “holistic” consideration to be applied in applications for adoption had been implicitly, if not explicitly, conducted through the careful weighing up of the benefits for and against rehabilitation and for and against adoption which are found within the body of the judgment.

 

 

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Baby without a name / child removed because of father’s aggression towards social workers

Posted on December 4, 2014 by suesspiciousminds

 

The Court of Appeal have given judgment in the full Permission to appeal application by these parents from a Care Order and Placement Order decision at first instance.

 

 

Re BP and SP v Hertfordshire 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1524.html

 

 

This case was covered by me when Ryder LJ first gave a judgment on the papers moving it forward to fuller hearing

 

https://suesspiciousminds.com/2014/08/02/we-are-all-unquantified-risks/

 

 

[You might recall, if I jog your memory, that this was the case involving a child where there had been no naming ceremony, and the father had assaulted the social worker – and at the hearing before Ryder LJ the thrust of the argument had been “if the child was removed because the father was a risk to social workers, was that wrong?”

 

If you don’t remember that, you might remember the Telegraph’s report about the case

 

http://www.telegraph.co.uk/news/uknews/10855218/Child-with-no-name-must-be-adopted-judge-rules.html ]

 

These were Ryder LJ’s strong words at that initial permission hearing (but the permission hearing could not ultimately reach a decision because the parents and their McKenzie Friends did not have the court papers from the care proceedings that would be vital in reaching a proper determination of the basis on which orders had been made.

 

These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

 

 

At this hearing, the papers were available, and the application was heard by three Judges. Ryder LJ gives the lead decision, and again reminded everyone that “nothing else will do” is not a legal test or principle.

 

There was no error of law made by Judge Mellanby and Judge Waller was right to dismiss the first appeal. This is not a case in which it can be argued that there was any misapprehension by either judge about what the concept of proportionality might mean and it is perhaps appropriate to remind practitioners and ‘interested McKenzie Friends’ that ‘nothing else will do’ is not a new legal test, rather it is part of the description used by the Supreme Court for the proportionality evaluation that is to be undertaken by the court. The language used must not be divorced from the phrase that qualified it, namely: “the overriding requirements pertaining to the child’s best interests” (see [77] and [215] of Re B (A Child) [2014] UKSC 33).

 

 

 

 

In relation to the father’s main point of appeal, the Court of Appeal encapsulate it like this :-

 

In layman’s terms he was saying: it is not a sufficient reason that my children are permanently removed from my care because I disagree with the local authority and will not co-operate with them.

 

 

Their decision and analysis in relation to this, having seen all of the papers (that were of course not available to Ryder LJ at the previous hearing ) was this

 

 

On the facts of another case that might be a successful submission but that simplistic analysis does not adequately examine the facts relating to this father’s antagonistic behaviour and lack of co-operation. There is of course no general duty on a citizen to co-operate with an agency of the state unless that duty is described in law. That said, these proceedings might not have been taken had father co-operated and it may not be too much of a speculation to say that, given his capabilities to provide support for mother and the children, there may not have been a need for the proceedings to be completed i.e. they may not have been pursued to an adverse conclusion had he demonstrated that he was prepared to act in the best interests of his children.

 

 

The significance of the father’s conduct is not that his children were removed because he had the temerity to argue with the local authority: to put it in that way misses the point. The welfare issue that was legitimately pursued by the local authority was that father’s antagonistic and unco-operative behaviour was indulged in by him to the detriment of his children. By way of examples, the following are relevant:

 

 

  1. father exhibited sustained antagonistic behaviour throughout the proceedings before DJ Mellanby who concluded that his behaviour was likely to continue;

 

  1. the consultant psychiatrist relied upon by DJ Mellanby was of the opinion that father would not change his aggressive behaviour;

 

  1. father had assaulted the social worker in the presence of P in respect of which he has been been convicted and since then he has also been convicted of an offence of threats to kill for which he was sentenced to a term of imprisonment;

 

  1. father was unlikely to be able to manage his behaviour even in the presence of his children;

 

  1. father prioritised his own needs above those of his children:

 

  1. by refusing to engage with the local authority to agree contact with his sons even to the extent of denying B a relationship with him;
  2. by refusing to comply with assessments or engage with the children’s guardian;

iii. caused an unnecessary change of placement for P;

 

  1. father is unlikely to change his behaviour;

 

  1. mother is unable to control father’s behaviour.

 

Given the nature of the positives that the parents demonstrated in the residential assessment and despite the recorded antagonism that he exhibited during that assessment and thereafter, DJ Mellanby gave father ‘one last chance’ in the proceedings relating to P. She did so in response to the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 WLR 563 which had been handed down during the proceedings. In so doing she was being more than fair to the parents. She allowed a further examination of the evidence and of the father’s ability to change in the hope that the parents might provide a realistic alternative to long term placement away from the family.

 

 

Sadly, father failed to act on that opportunity and remained implacably opposed to any child protection mechanism or support that would verify that P was safe. He had refused access to the social work team in October 2012, he refused to engage with further assessment which would have been able to demonstrate that the positives had been carried across into the family home and ultimately when access was again refused in February 2013 it had to be obtained with the assistance of the police. Father’s written submissions to this court highlight the fact that mother would have been left in the care of the children when he was at work and in the context of the opinion that mother could not cope on her own, there was a legitimate child protection interest in the adequacy of the arrangements that the family had put in place once they were at home and no longer in a professionally supported setting.

 

 

There was ample material before both courts to justify the conclusion that the children’s father represented a greater risk to them than the benefit he provided by his capability to support their mother. The welfare evaluation of the parents was accordingly adverse i.e. the detriments outweighed the benefits. To the extent that he was able to argue, as he did at the first permission hearing, that he was an un-assessed risk, that ignores the evidence that was before the court, the father’s refusal to co-operate with assessments and the court’s ability and indeed duty to undertake its own analysis for the purposes of section 1(3) of the 1989 Act. The local authority were able to prove both of their cases and the family was unable to take advantage of such support services as the local authority might have been under a duty to provide because father refused to participate in any arrangement that would have demonstrated the efficacy of the same.

 

 

In any event, it is the parents’ case that they do not need help. They deny that the assault in the presence of P (and indeed the continuing aggression thereafter) would have had any effect on P. They deny that either of the children would be likely to be adversely affected by father’s continuing and uncontrolled aggressive behaviour. They are oblivious to the confusing and frightening effects of father’s conduct. They are unable to see that it was their own failure to co-operate within proceedings when they had access to the court to argue their case and non means and non merits tested public funding to facilitate the same that led to the removal of P. Father’s written submissions to this court continue to assert that father will not deal with social workers.

 

 

 

Against that factual backdrop, the Court of Appeal was satisfied that father’s bare assertion that he might be a risk to social workers but not to his child was not bourne out by the evidence, and thus that limb of the appeal was not successful.

 

The interesting academic argument about whether threshold is met as a result of a parent behaving aggressively to a social worker but not to a child or in the presence of a child, will have to wait for another case.

 

 

A fresh limb of appeal was raised, which was that within pre-proceedings work, an expert had been instructed, and the parents subsequently learned that this expert was on a retainer basis with the Local Authority in that they had agreed to do 20 hours of work with the Local Authority each week for 46 weeks of the year, making them really semi-employed by the Local Authority (not in an employment law sense, but leading the parents to question whether such an arrangement could still result in the expert being considered ‘independent’)

 

A separate issue arose during the first permission hearing that has become the second ground of appeal before this court. That relates to the independence of the psychologist. It transpires that on 4 March 2013 the local authority entered into a form of contract with the psychologist described by them as a ‘retainer’ by which the psychologist agreed to work for an agreed hourly rate and for up to 20 hours a week during 46 weeks of the year. Any work covered by the retainer was to be undertaken with a transparent letter of instruction and the psychologist was expected to act in accordance with the obligations of an expert (see for example, Family Proceedings Rules 2010 Part 25, PD25B 9.1(i)).

 

 

The arrangement enabled the local authority to rely upon independent expert advice that may have been obtained by them pre-proceedings where they needed it to supplement their own social workers and in-house advisors and which would subsequently be respected within family proceedings (in accordance with the guidance given for example in Oldham MBC v GW & Ors [2007] EWHC 136 (Fam) at [24] and [91]). The independence of the expert would enable other parties to join in the instruction if they chose to do so. We are told that the arrangement was revealed to solicitors then acting for the mother and each of the children in a circular letter. The arrangement was not specifically referred to in either of the proceedings concerning P and B.

 

 

The funding arrangement of the psychologist should have been notified to the court and to the parties in the proceedings not just by way of a circular letter that may not have come to their attention. The perception of fairness is very important in proceedings that can involve the permanent removal of a child from a parent’s care. There is a hypothetical conflict of interest that can be implied in the financial arrangements. There is, however, no actual conflict of interest on the facts of this case nor any complaint that the psychologist did anything that could have amounted to a breach of her obligations as an independent expert. Far from it, she was not even cross examined as to any of her opinions or the work she had done. This court has been shown no material that would have warranted cross examination other than the disagreement of the parents with the expert’s ultimate conclusion. The assertion that the error in referring to her as a ‘Dr’ in the letter of instruction or the implication that she was unqualified for the task that all parties agreed is without foundation in that no valid complaint is based on the same. Accordingly, although the situation is regrettable, the manner in which the expert was selected and did her work gives rise to no issue that is capable of undermining the determinations appealed and the alleged procedural irregularity is insufficient on the facts of this case to warrant further consideration.

 

 

Such an arrangement, the Court of Appeal say, could be capable of giving rise to a conflict of interest, and proper transparency needs to take place (not just burying the disclosure deep in the pages of boilerplate Letter of Instruction); but there had not been a conflict of interest in this case – the Court of Appeal noted that there had been no cross-examination of the expert by the parents, who would have been entitled to do so if they challenged the report.

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Serious case review – can a failure to call one be judicially reviewed?

Posted on December 1, 2014 by suesspiciousminds

 

In this case, Deeqa Mohammed v Local Safeguarding Children’s Board of Islington 2014   , the mother of a child, Nawaal Mohammed sought to judicially review the decision of Islington’s Local Safeguarding Children’s Board NOT to hold a Serious Case Review, following Nawaal’s tragic death at the age of 7 years and 4 months.

 

http://www.bailii.org/ew/cases/EWHC/Admin/2014/3966.html

 

[In this post, contrary to my usual practice – the underlining here is all to show the Court’s emphasis rather than my own]

 

Nawaal had fallen from the window of her home on the 11th storey of a block of flats.

 

The mother was claiming that this death had been as a result of neglect and mistakes by professionals and that the Regulation governing Serious Case Reviews when talking of ‘abuse or neglect’ should cover neglect and abuse by professionals as well as the child’s carers.

 

Reg 5 1(e) of the LSCB Regs 2006, setting out the functions of the LSCB

 

1(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned. .

 

And

 

Reg 5(2) For the purposes of paragraph (1)(e) a serious case is one where—

(a)abuse or neglect of a child is known or suspected; and .

(b)either— .

(i)the child has died; or .

(ii)the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child.

 

 

 

 

The importance of this is that if either of those criteria is met, the LSCB MUST hold a Serious Case Review – they have discretion about other cases, but in that type of case they HAVE to hold the Serious Case Review.

 

 

 

At the outset of the hearing, leading counsel for the Claimant, Mr Ian Wise QC, indicated that the Claimant wished to amend/refine her claim to substitute for the mandatory order (see [2] above) a declaratory order in these terms:

 

“a declaration that known or suspected abuse or neglect of a child in Regulation 5(2)(a) of the Local Safeguarding Children Board’s Regulations 2006 includes known or suspected abuse or neglect on the part of a public body”.

This re-formulation of the claim had been presaged in the original grounds of the claim (per §2(ii) of the Claimant’s Grounds) viz:

 

“Clarification of the law is necessary to ensure that failings including neglect of children on the part of public bodies give rise to a duty to instigate serious case reviews where the child dies or is seriously harmed and there is concern at the way the relevant agencies have worked to safeguard the child.” (my emphasis)

In essence, the Claimant wished to contend that the London Borough of Islington – either through its children’s services, its disabilities’ services and/or housing department – had been responsible for actual or suspected ‘neglect’ of Nawaal. In the circumstances, it was to be argued, the LSCB was required to commission an SCR.

 

 

The family had been known to Social Services and other professionals, who had been visiting – in part due to Nawaal’s challenging behaviour on the autistic spectrum, and the ‘smoking gun’ is probably this line from a social worker’s recording of a visit.

 

 

On numerous occasions in the period between 2010 and 2013, it appears that LB Islington was advised of Nawaal’s lack of safety awareness, her unpredictability, her craving for being outside and for climbing and exploring, and her challenging behaviour. In February 2013, the Claimant’s solicitors threatened LB Islington with judicial review proceedings for its failure to carry out a proper needs assessment for the purposes of her housing application. The various communications from the interested agencies (or at least some of them) are detailed in the Grounds of Claim; I have read those, together with the Claimant’s statement, with care although it is unnecessary for me to rehearse the contents more fully here. It suffices for me to reproduce a communication written by LB Islington on 25 March 2013, in which it was said that:

 

“Nawaal has no awareness of danger and enjoys climbing and jumping… if the window is open just a crack she will try and get out through it regardless of where it is … the longer Nawaal is inside the more frustrated she gets … she has no awareness of danger and enjoys climbing… This is a situation that is far too dangerous to continue this way. It is not a case of if Nawaal will fall but a case of when.” (emphasis added)

 

 

 

As the Judge said, this appalling prophecy sadly came true three months later.

 

The agencies looked at this, and considered whether to hold a Serious Case Review, but in effect decided that the death had not occurred as a result of violence, abuse or neglect. [Note here what the Coroner is reported to have said at the inquest]

 

Following Nawaal’s death, the Defendant arranged and held ‘Rapid Response’ meetings (28 June 2013 and 28 July 2013) to evaluate the circumstances of this tragic event, and in order to establish if there were (and if so what) lessons to be learned. A Multi Agency Management Review was convened, which ultimately reported on 22 February 2014.

 

On 4 September 2013, Dr. Tony Wheeler, a community paediatrician and Chair of the ‘Rapid Response’ meetings (as designated doctor for child death and safeguarding, with responsibility for reviewing services provided for all children in the area of the Defendant who have died), wrote to the Claimant attaching his report for the Coroner; in that report it was said that:

 

“The issues identified were focused on housing, and abuse and neglect were not identified as factors in Nawaal’s care or death. The consensus at both Rapid Response Meetings was that the requirements for a serious case review were not met.” (emphasis added)

 

In this regard, the reference in the report to the absence of ‘abuse and neglect’ plainly, it seems to me, referred to the provision and quality of parental care. Dr. Wheeler’s report concludes by indicating that ongoing consideration of the case would pass to the Islington Child Death Overview Panel (CDOP). Later (December 2013) Dr. Wheeler indicated that the CDOP would not review the case further until the post mortem results were obtained.

 

An inquest into Nawaal’s death had been opened; this process concluded in February 2014, with the Coroner finding (so I am advised) that “the fall was foreseen by various organisations working with the family who had been communicating concerns to the council since May 2010”. The verdict was one of accidental death.

 

 

The mother invited the LSCB to reconsider and to hold a Serious Case Review and when those discussions did not bear fruit *, issued her claim for judicial review.

 

 

(*actually, it’s a bit more complicated than that – after the claim was issued, the LSCB did agree to hold the Serious Case Review, but Ms Mohammed and those advising her felt that there was a broader issue of principle here and that it would benefit other families to have the Court give a declaration that in a case where it is alleged or suspected that neglect by professionals was a contributory factor, a Serious Case Review ought to be convened. NPIE in the paragraphs below is the National Panel of Independent Experts, a body from whom the LSCB sought advice)

 

The NPIE was duly instructed on 29 July 2014 by Alan Caton, the Defendant’s independent chair. The Defendant invited the Claimant to withdraw the claim, but she declined to do so. The hearing of the Claimant’s renewed oral application for permission to apply for Judicial Review was scheduled for 12 August 2014; this hearing was vacated by Nicola Davies J. when it transpired that the NPIE was to meet on the preceding day. In acceding to the application to adjourn, Nicola Davies J directed that:

 

“Within 14 days of being notified of the view of the Independent Panel of Experts … the Claimant shall notify the Court whether she wishes to proceed with the claim; if so the permission application to be listed as soon as possible thereafter”.

On 18 August 2014 the NPIE wrote to the Defendant in these terms:

 

“Following very careful consideration of the information provided at their meeting on 11 August, the Panel are strongly of the view that there is clear evidence of Islington LBC’s failure to protect the safety and wellbeing of child Nawaal. However, on the specific issue of whether an SCR is required, they concluded that in the apparent absence of relevant case law, or an explicit policy direction from the Department for Education as to whether a body such as a local authority can be guilty of neglect within the remit of Regulation 5(2)(a) of the LSCB’s Regulations (2006) as set out in Working Together 2013, it is not possible for the Panel to be definitive as to whether the criteria for an SCR are met. The Panel take the view that the particular issues raised by this case are more appropriately addressed either with a determination in the courts or by a clear policy directive from the Department for Education.” (emphasis added).

 

That advice was provided to the Claimant on 26 August 2014 by e-mail. On the following day, 27 August 2014, the Defendant’s solicitor wrote further to the Claimant’s solicitors in these terms:

 

“Further to my email … I have received the Defendant’s instructions. Yesterday morning the Board met to consider the Panel’s views. The Board has considered those views as sought by its referral to the Panel. With those views in mind, the Board will exercise its power to commission a Serious Case Review in this case, notwithstanding there is no duty to do so.”

 

On 29 August 2014 the Claimant’s solicitors, in acknowledging this significant development, wrote to the Defendant’s solicitors:

 

“The position generally remains unsatisfactory as in the light of the advice of the Expert Panel there is plainly a need for clarification about the circumstances in which an SCR should take place, we therefore consider that there is a real public interest in this case continuing and intend to seek a declaration as to the circumstances when a Serious Case Review should be instigated. … We write to enquire whether your client will be prepared to agree that the litigation should continue … We consider that the Secretary of State should be joined and it would be for him/her to respond substantively to the claim for a declaration. … This is obviously an unusual case. We invite you to consider our proposal carefully.”

 

On 8 September 2014, the Defendant’s solicitor sent a detailed reply rejecting the proposal that the litigation continue, and invited the Claimant to abandon the application “without more ado”. Not insignificantly, it further indicated that “the Board will entertain any contentions of institutional neglect pursued before it”; the Defendant argued that the claim was now “academic”, and without merit. Notwithstanding these representations, on the same day the Claimant notified the court the she intended to prosecute her claim.

 

 

 

The judicial review here was refused, for the following reasons [underlining in this bit is mine, for emphasis]:-

 

 

I refuse this application for permission to apply for judicial review. This decision, inevitably starkly expressed, does not reflect my considerable sympathy for the Claimant in suffering such an appalling family tragedy in the circumstances described earlier in this judgment. The refusal of this application should not be treated or understood as any indication of my views about the action or inaction of the LB Islington, or the associated relevant agencies, in the discharge (or otherwise) of their responsibilities towards the Claimant and her children.

 

However, I have reached this decision clearly for the following reasons:

 

  1. The claim as pleaded in its revised form does not enjoy a reasonable prospect of success; ‘neglect’ in regulation 5(2) does not, in my judgment, cover ‘neglect’ by a public body in failing to discharge its safeguarding duties to a child;
  2. The claim is academic, the Defendant having now agreed to conduct an SCR, which will include consideration of “institutional neglect”; there is insufficient justification in permitting the claim to proceed when there is now no lis between the parties;

iii. I am of the view that if consideration is to be given to a potentially wider remit of regulation 5(2)(a), this should be considered by the Secretary of State in the Department for Education in the first instance, not the court;

  1. The claim is premature; until the SCR has taken place, and/or the Secretary of State has considered the issue, there is no proper framework or decision, within which to consider this point of principle.

 

 

 

[As an academic exercise, the Court’s analysis of when it is proper for a Court to resolve an ‘academic’ argument between the parties is interesting – in effect it turns on this, from Secretary of State for the Home Department ex parte Salem 1997 :-

 

“The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”

 

And thus, having established that the Islington LSCB were going to conduct a Serious Case Review, the case itself was an ‘academic’ exercise and one which should only be carried out if it was going to have a bearing on a large number of similar cases, which it wasn’t]

 

 

In relation to the third limb – that any such change to the Regs should be for the Secretary of State, the Court noted that coincidentally the Secretary of State had given that same day of the hearing a speech on the issue of Serious Case Reviews and reform

 

My conclusion on this aspect was fortified by my discovery that, on the day of the oral hearing of this application before me on 12 November, Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, was coincidentally addressing the LSCB Chair’s annual conference in these terms:

 

“I’m still concerned about cases where SCRs are not even being commissioned. About times when debates over semantics get in the way of finding out what went wrong. This may not happen that often, but it happens often enough for me and the panel to be concerned. So, following the panel’s recommendation, we’re planning further clarification of ‘Working together to safeguard children‘, so it will now include guidance about what ‘serious harm’ actually means in the context of making decisions on whether or not to commission an SCR. And to help you with information sharing, we’re planning to clarify in Working Together the need for local authorities to notify serious incidents.” (emphasis added) (source: MoJ).

 

This announcement followed, and specifically drew upon, the first annual report of the NPIE on Serious Case Reviews (July 2014) (DFE-00531-2014) (a report which was published shortly before the NPIE sent out its advice letter in this case, the contents of which are set out at [26] above). In that report, the panel had made the following significant observations as follows:

 

“The panel’s view is that opportunities to learn from mistakes are being overlooked in the argument over where the SCR initiation line is drawn. It is essential that everyone sees lessons for children’s protection (looking backwards and forwards) as the central issue, not the need to abide only by the letter of the law.” [19]

“The panel would encourage more LSCBs to consider carrying out a proportionate SCR, even in cases where the statutory criteria are not met, rather than another type of less formal review, so lessons may be understood and shared more widely. Indeed, it is their view that use of a range of investigative tools and techniques to carry out a review in a way which is flexible and relevant to the individual case circumstances may be more appropriate than a more fixed methodology” [20].

 

 

And that thus, the judicial review claim could now be considered premature given that the changes sought might be addressed in the Secretary of State’s forthcoming guidance. It is noteworthy that both the Secretary of State and NPIE have urged LSCBs not to shelter behind the technicalities and semantics of the Regs and to hold Serious Case Reviews or something similar where there are lessons to be learned.

 

 

[It may be occurring to lawyers with a civil background that an alternative route to judicial review might have been a claim for negligence, given that ‘smoking gun’ recording and the failure to take action in the three months before that appalling prophecy came true (coupled with the Coroner’s remarks). Not necessarily easy to run a negligence claim and I couldn’t possibly make any predictions about whether it has legs or not. I’m pretty sure that as the mother was represented by a Silk in these proceedings, it is an issue which has been given some considerable thought]

 

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Over-egging the pudding

Posted on November 28, 2014 by suesspiciousminds

I seem to be jumping the gun on the Christmassy theme, it still (just) being November and having done a Santa Claus is coming to town post yesterday and a pudding one today.

 

[Quick tangent – I am myself surprised to learn that in the phrase ‘over-egging the pudding’ one is not talking about the sort of eggs that have yolks and whites. It seemed immediately obvious that it was about putting too many eggs in the pudding, but no – it means in this sense the ancient Anglo-Saxon use of ‘egg’ as in excite. So it means not whipping something up too much. Also ‘pudding’ here means sausage, not a dessert. So literally “don’t over-excite the sausage”   – apologies to anyone who typed “over-excite the sausage” into Google – this really isn’t the sort of site you were after. Just move on.   The metaphor works much better as ‘don’t put too many eggs into your pudding mixture’ than ‘don’t over-excite the sausage’  *]

 

Anyway, this case is about social workers over-egging the pudding when giving their evidence and presenting their arguments.

 

This is a County Court case (feel free to read that as being “Family Court sitting in a building which is called a County Court” if you are in the Ministry of Justice ) so it is not precedent, but it contains some important lessons and it is well worth a read.

 

Sanchia Berg of the BBC has written a good piece on it here http://www.bbc.co.uk/news/uk-england-humber-30227974

 

 

The case is North East Lincolnshire v G and L 2014

 

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B77.html

 

It was a case involving a three year old child called J. His mother had been unable to care for him due to substance misuse problems and she sadly died within the course of the proceedings. The two options that came before the Court were placement with grandparents, or adoption.

 

The Local Authority and the Guardian were recommending adoption and considered that the grandparents could not meet the child’s needs. It was said that the grandparents had had a history of alcohol misuse and domestic violence.

 

The Judge disagreed, but more than that, criticised the Local Authority witnesses for taking a biased approach and not being fair.

 

 

I heard evidence over two days. I heard in particular from Neil Swaby who had been the social worker for a substantial period, and also from Rachel Olley. During the course of that evidence the local authority’s case was severely undermined. Neil Swaby seemed very reluctant to accept that anything positive could be said about either set of grandparents. When he was referred to positive things said in the papers about them, he would say things like, “Well, I suppose you could say that”. He was very begrudging indeed in his evidence and I had the clear impression that he was, for whatever reason, whether it was his own inclination or instructions from above, that he was intent on saying only things which supported the local authority’s case and was very reluctant to make any concessions which would undermine that case.

 

           I then heard evidence from Rachel Olley whose evidence was totally discredited in my view. She sought to make it a substantial plank of her evidence that J was a child who had real behavioural problems, and had had them throughout his placement with foster carers. That, unfortunately, conflicted very strongly with not only what she had said in her own statement but what was said in the adoption social worker’s statement. Again I had the very strong impression that the local authority witnesses were intent on playing up any factors which were unfavourable to the grandparents and playing down any factors which might be favourable. In those circumstances I found it very difficult to give any weight at all to their evidence.

 

 

From time to time, I provide social workers with training, and a key part of that training is letting them know that a major thing that the Court is looking for is fairness. The power of the State is substantial and it is essential that when the State is making decisions and recommendations that can have such a devastating effect on people that they are being fair. That means giving credit for things that parents do well, seeing the positives, looking for the positives – it means saying sorry when the State have made a mistake or got something wrong, and it means not cherry picking in your evidence so that you focus entirely on the bad points and ignore the good points.

 

Things like this :-

 

When he was referred to positive things said in the papers about them, he would say things like, “Well, I suppose you could say that”

 

Can only persuade a Court that the worker is not fair and reasonable.

 

{I don’t mean in this piece to have a go at the individual workers concerned – firstly, anyone can have a bad day or a bad case, and secondly, I think the mistakes that these workers made are sadly not unique to them and are symptomatic of a culture of defensive practice and a preoccupation with ‘winning’ and ‘child rescue’. What these two workers did is not unique – it is rare for a Judge to nail someone for it so vividly and name them, but it does happen. Yes, a social worker has to present their professional opinion, yes they have to make a decision, yes sometimes that decision will be very painful for the family – but within all of that, the social worker should still be alive to the other side of the argument – to see how else it could be looked at, to acknowledge the real positives that the family have to offer}.

 

The Judge did say that he had rarely encountered this sort of behaviour in evidence from social workers, but that it made it very difficult if not impossible to rely on their evidence

 

Having heard the evidence of Neil Swaby and Rachel Olley I took the view, as I have already indicated, that the local authority’s case was wholly undermined. Their concerns appeared to be grossly overstated in order to try and achieve their ends. I have never, in over ten years of hearing care cases taken the view, as I did in this case, that the local authority’s witnesses were visibly biased in their attempts to support the local authority’s case. It is very unfortunate and I hope I shall never see that again.

 

 

 

The Judge looked at the particular criticisms of the grandparents, and set those into context. (The Judge doesn’t quote Hedley J’s masterful analysis in Re L, but the spirit of it is clear to see)

 

So far as Mr. and Mrs. C are concerned, may I say, I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr. and Mrs. C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the Courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the Courts

 

 

There was a new social worker brought into the case, a Mr Nelson. The Judge was critical of one portion of Mr Nelson’s evidence – and this will no doubt strike a chord with anyone who does children cases regularly – it is a hint that things are probably untoward but that we simply don’t know yet to what extent – a technique that is really easy to assert but because it is so nebulous and flimsy really difficult to analyse.

 

Dealing with Mr. Nelson’s report I find it is significant that Mr. Nelson seems to try to revive at least one aspect of the local authority’s case which had been discredited. For example, in relation to I who from the papers I had read, appears, despite his problems, to be a nice lad, Mr. Nelson sets out the history of the problems that I has had and concludes in paragraph 3.5 by saying, “At the time of writing this report I’s problematic behaviour is not known”. There is the clear implication in that sentence that there must be some problematic behaviour from I but Mr. Nelson does not know what it is. That smacks to me of the same bias that I regrettably have to say I saw from Neil Swaby and Rachel Olley

 

 

Another criticism of the grandparents was that if J were placed with them, he would not have his own bedroom and would need to share a room – what the Judge says here is telling

 

 

Mr. Nelson also raises issues which it seems to me are not serious issues. For example he raises an issue about the sleeping arrangements. Now, I accept, of course, that in an ideal world each child would have his own – his or her own bedroom and certainly you would not have children of different sexes sharing at least beyond a certain age. But we live in fact in a world where probably the majority of families all sleep in the same bedroom and so it cannot be said that the fact that a child may have to share a room is a significant problem

 

 

The case is not decisive of anything other than the result for the individual family and individual child, but it does raise some wider issues about the importance of being fair, the importance of not setting the bar too high for family members and the importance of being realistic about your expectations and seeing things in the round.

 

 

Have a good weekend everyone and don’t over-excite any sausages.

 

 

*[As with any Etymology, you have to take these explanations with a pinch of salt.  And oh God, looking at the eytomological explanation of “take it with a pinch of salt” opens up a whole new can of worms… and so the long day wears on]

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Beware the PLO my son! the jaws that bite, the claws that catch (Is the PLO coming to Court of Protection?)

Posted on November 27, 2014 by suesspiciousminds

 

Having opened with Lewis Carroll, I’ll digress to Bruce Springsteen – if you practice in the Court of Protection –  “You’d better not pout, you’d better not cry, you’d better watch out, I’m telling you why – the PLO is coming to town”

 

Cases A and B (Court of Protection : Delay and Costs) 2014

http://www.bailii.org/ew/cases/EWCOP/2014/48.html

Mr Justice Peter Jackson  (I know, it is supposed to be Jackson J, but when there are two Jackson J’s, that just causes confusion) gave a judgment in two linked Court of Protection cases that had gone on an inordinate length of time and cost an inordinate amount of public money, and ended with this exhortation to the President  (who of course wears those two hats of President of the Family Division And President of the Court of Protection)

 

The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?

 

I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.

 

Brace yourselves, Court of Protection folk, for “streamlining” and “case management” and “standardised documents” most of which will make you wish that you had taken a different career path – for example, rather than “Law” that you had decided to become a practice subject for CIA agents working on their interrogation techniques.

The Judge has a point here, we absolutely would not tolerate cases involving a vulnerable 8 year old taking 5 years* (*although see case after case of private law children cases that drag on for years and years) and costing this sort of money.

 

  1. In Case A, the proceedings lasted for 18 months. In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.
  2. In Case B, the proceedings lasted for five years. In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.
  3. These figures are conservative estimates.
  4. Each case therefore generated legal costs at a rate of approximately £9,000 per month.

 

The Judge draws a comparison between taxi drivers and advocates (and not the usual “cab-rank principle” one)

  1. Just as the meter in a taxi keeps running even when not much is happening, so there is a direct correlation between delay and expense. As noted above, the great majority of the cost of these cases fell on the state. Public money is in short supply, not least in the area of legal aid, and must be focussed on where it is most needed: there are currently cases in the Family Court that cannot be fairly tried for lack of paid legal representation. Likewise, Court of Protection cases like these are of real importance and undoubtedly need proper public funding, but they are almost all capable of being decided quickly and efficiently, as the Rules require.
  2. In short, whether we are spending public or private money, the court and the parties have a duty to ensure that the costs are reasonable. That duty perhaps bites particularly sharply when we are deciding that an incapacitated person’s money should be spent on deciding his future, whether he likes it or not.

 

It is very hard to argue against that, and there can be little worse than burning through a vulnerable person’s money in order to protect them from financial or alleged financial abuse (see for example Re G, and the “94 year old woman subject to gagging order” case)

 

What drives up those costs? The Judge identified two major things – a search for a perfect solution, rather than a decent solution that carries with it some imperfections, and a tendency to deal with every concievable issue rather than to focus on what really matters.

 

A common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” calls for a sensible decision, not the pursuit of perfection.

Likewise, there is a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved. As Mrs Justice Parker said in Re PB [2014] EWCOP 14:

“All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources and other court users.”

  1. There is also a tendency for professional co-operation to be dissipated in litigation. This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.
  2. The problem of excessive costs is not confined to the Court of Protection. In his recent judgment in J v J [2014] EWHC 3654 (Fam). Mr Justice Mostyn referred to the £920,000 spent by a divorcing couple on financial proceedings as “grotesque”. In V v V [2011] EWHC 1190 (Fam), I described the sum of £925,000 spent by a couple who had not even begun their financial proceedings as “absurd”. Yet everyday experience in the High Court, Family Court and Court of Protection shows that these are by no means isolated examples: in some case the costs are even greater. There is a danger that we become habituated to what Mostyn J called “this madness”, and that we admire the problem instead of eliminating it.
  3. The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings.

 

I hope that if there is going to be a committee or working group on solving some of the problems in the Court of Protection that they can co-opt Mr Justice Peter Jackson and District Judge Eldergill onto it – both of them are extremely sensitive and sensible Judges and the Court of Protection could do a lot worse than have its future steered by them.

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