Category Archives: case law

Reporting restriction orders – a pragmatic suggestion

Posted on June 23, 2014 by suesspiciousminds

London Borough of Waltham Forest and AD 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1985.html

 

This was an application by Waltham Forest for a Reporting Restriction Order to prevent the Press from naming a 3 year old child who had been present when her father murdered her mother. There’s evidently a criminal trial coming up, and there’s a substantial human interest story in the tragic circumstances of this little girl. The Press were always going to run the story – the issue for Waltham Forest was whether the Press should run that story WITHOUT identifying the child.

 

 

  • Miss Howard, in her submissions, also refers to the expert reports provided by Dr. Jones, a consultant psychiatrist and Dr. Graham, a psychologist, in the public law care proceedings. They have both examined and assessed EI. They, understandably, set out the dreadful emotional and psychological impact that witnessing the death of her mother will have on EI, compounded by this tragic loss of her mother and, if her father is convicted, the loss of her father for a considerable period of time. Their assessments are deeply troubling to read as to the future that EI now faces. Everybody will undoubtedly have the greatest possible sympathy for the terrible position that EI finds herself in now and will undoubtedly do for the rest of her life. I note that neither of those experts have been asked to give an opinion on what potential further damage, if any, publicity about EI and her mother and father would have upon her.

 

 

 

 

  • In the submissions on behalf of the local authority it is asserted that if EI is identified as being the child involved in this case, it will have an adverse impact on her. It is asserted that it would thwart the therapeutic process that she is engaged in now and will continue to be involved with for some time to come. It is asserted that although the reporting of the father’s trial may be of short duration – a matter of a few days or a week – anything which appears on the internet will be there for the rest of EI’s life and that were she, when she is older, to come across her name in association with her mother’s death and her father’s trial, it may have an adverse impact upon her. It is further asserted that if, in her daily life – when she starts school, for example – friends or others were to search her name on the internet, they would raise her family history with her and that would undo the benefits of the therapy that she has received and will receive. Accordingly, it is submitted that it is necessary for the court to grant a reporting restriction order in narrow terms that would prevent the publication of EI’s name.

 

The Press Association took a slightly different view

 

 

  • Mr. Dodd makes the submission that the matter has already been the subject of press reporting. However, he makes the powerful point that the evidence of harm to EI, if she is named, is speculative. He also makes the strong submission that the question is not, “Why should the press name EI?” but rather, “Why may the press not name EI?” He further submits that the issue of the use of EI’s name in connection with the reporting of the father’s criminal trial and the death of the mother is a matter to be left to the decisions of individual editors. He also makes the powerful point that just because some elements of the press or broadcast media, or others, may misuse the naming of EI is not a justification or a reason for injuncting the whole of the press.

 

 

 

 

  • Lord Rodger of Earlsferry observed in Re Guardian News & Media Ltd. & Ors. at paragraph 72,

 

 

 

“Of course, allowing the press to identify M and the other appellants would not be risk-free. It is conceivable that some of the press coverage might be outrageously hostile to M and the other appellants – even though nothing particularly significant appears to have been published when Mr al-Ghabra’s identity was revealed. But the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation”.

 

 

  • In considering the competing Articles – Article 10 and Article 8 – and in considering the merits of the application made by the local authority one of course has the greatest possible sympathy for EI. She very sadly will have to live with the tragic events of 31 July, 2013 for the rest of her life. The decision I have to make, however, is whether there is sufficient evidence of harm to EI if she is named, which when balanced against the freedom of expression under Article 10 of the press & broadcast media, it is an absolute necessity for me to make the reporting restrictions order sought. Mr. Dodd tells me, and I accept, that some newspaper editors have already made the decision that they will not name EI in any reporting of the father’s criminal trial.

 

They put the question very powerfully, and in the correct way in law – the question is not “Why should the Press name EL?” but “why should the Press not name EL?”

 

The Judge was not persuaded that the article 8 right to privacy for the child outweighed the article 10 right to free expression and declined to make the Reporting Restriction Order.

 

  • I accept that EI faces, emotionally and psychologically, a very difficult future. I accept that there is a possibility that if she is named in either the press or the broadcast media – in particular, on the internet – that at some future date she may come across that and it may cause her some distress or other people with whom she is associated may come across it and mention it to her. That, I accept, may cause her some distress.

 

 

 

 

  • However, I am not satisfied that there is clear or cogent evidence that that risk would either thwart the therapy that she is receiving or would undoubtedly undo the benefits she may derive from her therapy. I consider the potential risks of further harm to EI, if she is named in connection with the reporting of her father’s trial, to be speculative and speculation. Even if I am wrong about that, the risks of further additional harm to EI do not overcome the high hurdle that is required for the granting of a reporting restrictions order. If one was solely concerned with the welfare best interests of EI it may well be that the court would want to take the course of least harm to EI and, accordingly, would make an order. That is not the position the court is in. The court is having to balance the Article 8 rights of EI with the Article 10 rights of the press and broadcast media. I am not satisfied that the naming of EI and the risks of that to her are so clear or compelling that it justifies placing a restriction upon the press and broadcast media in the manner in which they report the father’s trial. It is submitted on behalf of the local authority that this case is very different from other reported cases because the child was present when her mother was killed. I accept that is an extremely unusual feature. But, I also have to accept that that feature is one which will be, I have no doubt, of considerable interest to the press and broadcast media and to their readers, viewers and listeners.

 

The more important issue is the Judge’s pragmatic suggestion for Local Authorities in this sort of situation in future (no doubt with an eye to the costs to the public purse and the time pressures on the Courts)

 

Mr Dodd (for the Press Association) submits that applications for reporting restriction orders by local authorities are increasingly being made at considerable cost in time and money. I endorse his submissions that local authorities, in particular, ought to give very careful thought to alternative means of achieving the aim that they seek when they apply for a reporting restriction order – namely, local authorities should, in future, consider writing to editors of the press and broadcast media, inviting them, for example, not to name a particular child or children in connection with a particular story and setting out clearly, within that letter or e-mail, the reasons in support of such a request. That, alternatively, could be done by sending a letter or an e-mail to what is now the Press Complaints Commission, which will be replaced by the Independent Press Standards Organisation, who may then be requested to transmit the letter or e-mail more widely to the press and broadcast media. In my judgment, that is a course which local authorities should first consider and should first make before launching applications for reporting restriction orders.

 

 

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Interim care order appeal (unsuccessful)

Posted on June 11, 2014 by suesspiciousminds

 

This is our dear old friend section 37 again, and also a regular topic on these blogs – the bringing of allegations that aren’t proven and the consquences for the person bringing the allegation.

 

Re W (A child)  2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/772.html

 

In this case, private law proceedings were taking place between the two parents about where the child (an 8 year old girl) should live and how much time she should spend with each parent. As part of those proceedings, very serious allegations of sexual abuse were made against the father

[I note, and think it is probably more important than the Court of Appeal treated it, that the Court had previously made findings that the paternal grandfather had sexually abused the child – that sort of thing would probably make any parent hyper-sensitive and vigilant, and also possibly means that the child might act out in a sexualised way as a result of the established sexual abuse which might lead a mother to mistakenly but genuinely think the father had done something. I don’t say that this explains and excuses everything, but it is quite an important bit of context]

 

At the finding of fact hearing, the Judge found that none of the mother’s allegations were true, and went on to make an Interim Care Order removing the child from mother’s care – although no public law application by Social Services had been made, the Judge using the power under section 37 of the Children Act 1989 to make an Interim Care Order in the absence of an application (albeit for a maximum of 8 weeks, rather than for whatever duration the Court sees fit as with the new public law regime)

 

 

  • On that day the judge concluded at [246] to [260] of his judgment that all of the allegations that the mother had made against the father were false including, in particular, that he had ever behaved in a sexually inappropriate way towards his daughter. The judge set out his conclusions in considerable detail. The conclusions that were reasoned in the previous 245 paragraphs. He held that the mother:

 

 

 (i) had wrongly suggested that the child did not want to see her father, and was frightened by him;

(ii) had knowingly sought to prevent the child from having a relationship with her father by putting pressure on her about seeing him, and by putting obstacles in the way of contact;

 (iii) had deliberately and wrongly sought to exclude father from school events and being involved in the child’s life;

 (iv) believed that the father was involved in the child’s abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and had informed others of her belief;

 (v) misled the court by saying that it was the child rather than herself who struggled with the grandfather’s abuse;

 (vi) deliberately put the worst interpretation on events to place obstacles in the way of the father’s contact;

 (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);

 (viii) had told the child about alleged domestic violence on the parties’ separation to influence the child against her father and to cause her to make similar allegations;

 (ix) is out of control, believing her own propaganda and convincing the child of it: creating a situation that is deeply concerning – the child was and is subject to influences which she should not be;

 (x) is worryingly obsessed by the abuse of the child by her paternal grandfather to the extent that she had unfairly taken an adverse view of the father and worked against his contact at every opportunity, save when she could police it herself. Her reluctance to let him develop a natural relationship with his daughter was plain for all to see; and

 (xi) had encouraged the child to have an unhealthy attitude towards her father, to make untrue allegations, to know more about sexual matters and about the case than was good for her with the consequence that her emotional and psychological progress had been damaged.

 

  • The judge concluded that the child could not remain living with her mother before the case was finalised because of the mother’s behaviour, in particular her involvement of the child, and her unjustified convictions, in particular that the father was dangerous and presented a risk of sexual abuse. The judge concluded that the child had suffered significant emotional harm in her mother’s care within the meaning of section 38 CA 1989 and that her psychological safety required her immediate removal from that care.

 

The mother appealed this.

 

The Court of Appeal rejected it. They considered firstly that the Judge had applied the correct test in law

 

 

  • Turning then to the implications of the findings of fact that the judge made. It should be noted that it is no part of this appeal that the judge applied an inappropriate test to the question of removal. That test was set out in Re LA (Care: Chronic Neglect) [2010 ] 1 FLR 80 at [7] by Thorpe LJ:

 

 

13. “separation is only to be ordered if the child’s safety demands immediate separation […] at an interim stage the removal of children from their parents is not to be sanctioned unless the child’s safety requires interim protection”

 

  • Safety is given a broad construction and includes the child’s emotional and psychological welfare (see, for example, Re B (Care Proceedings: Interim Care Order) [2010] 1 FLR 1211 at [56]).

That test is usually seen in connection with an application by a Local Authority to remove a child under an Interim Care Order, but exactly the same principle and legal test extends to a Judge making an Interim Care Order and his own care plan of removal   [The more difficult issue of how a Judge doing this is becoming both the applicant and the tribunal is something that doesn’t get raised – to me, it is a significant problem, but the Court of Appeal when dealing with other section 37 appeals haven’t ever felt it was problematic]

 

The next issue was whether the Judge had properly applied the facts of the case to that test, when deciding that the test was met  – and specifically whether the Judge had failed to look at whether removal was proportionate and what other options were available that would have been less interventionist.

 

  • The question is whether the test was wrongly applied to the facts. The judge rejected the mother’s allegations that the father had been involved in or was aware of the sexual abuse of the grandfather or had himself acted in a sexually inappropriate manner. The judge made extensive findings about the inappropriate conduct of the mother which I have summarised by using the analysis that the judge himself constructed at the end of his judgment. The mother’s conduct, even if explicable as a consequence of a psychological or behavioural condition, was inexcusable and highly damaging to the child. The judge’s finding that the mother was “bent on manipulation and encouraging false allegations” was a finding of huge adverse significance in relation to her capability to care for her child. The child had been encouraged by the mother to make allegations against her father despite the child’s own delight in seeing her father in the process of which she had obtained an unhealthy knowledge of sexual issues. On any basis, the risk of further significant harm to the child had to be addressed by the court. Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.

 

 

 

  • Given that context, the judge was required to consider his child protection duties and powers. The only question that realistically arises on this appeal is whether he exercised them proportionately. There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order. The test for removal was clearly satisfied on the facts as found and that only leaves the question of whether there was a less draconian, i.e. more proportionate order that the judge could and should have considered.

 

 

 

  • I ask the question rhetorically: given the court’s findings, how could the judge leave the child with the mother? No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother. Each of the alternative orders described to this court would have left the child in that care without any better ability to protect the child than there had been hitherto. The situation might have been different if there could have been effective policing of that care in the interim and before other assessments were conducted but that was not an option addressed to the judge or to this court. I bear in mind that the family court sometimes hears cogent evidence of particular harm that may be caused on the removal of a child from the care of a parent which the court must consider and balance in the welfare analysis and proportionality evaluation, but that was not this case.

 

 

 

  • The distress that had been engendered in the child, as advised by the children’s guardian, sadly made an immediate move to the father impossible. No other relative was immediately available without assessment of the position that relative would take in the highly antagonistic and dysfunctional family relationships that existed (for example, to consider the effect on the maternal family of the mother’s discussions with them that the father was a paedophile). That included the mother’s sister who is now being assessed by the local authority. The only realistic option that remained in this case was the neutral position of short term foster care.

 

 

 

  • The judge described his decision as proportionate at [264] and in accordance with the child’s welfare having regard to the ‘welfare checklist’ in section 1(3) CA 1989. He specifically envisaged a short period of respite care while the local authority explored the possibility of placing the child with her father and/or the obtaining of therapeutic assistance for the mother. Given the need for an assessment of the child’s aunt (who has not challenged the interim conclusion of the judge), there was no immediately available realistic option for the court other than removal.

 

 

 

 

 

 

  • Leading counsel for the father has taken the court through the judgment, identifying the specific points at which the judge came to value judgments about the welfare factors in section 1(3) CA 1989 based on the facts that he found. None of those conclusions is seriously challenged in this appeal and it is not necessary for this court to set them out seriatim. The judge analysed his conclusions by reference to more than 40 written submissions made by the mother. The judge did not specifically address the child’s wishes and feelings in his analysis but he had set out in detail what it was that the child had been influenced to say. It is hardly surprising that there was little more that he could add given the context in which he had to make his decision. It may well have been harmful to ask the child anything else at that stage. Likewise, the judge made ample reference to the situation the child was in and focussed on the unacceptability of its continuation. To that extent the effect of the proposed change of circumstance for the child was regarded as positive and no party other than the mother disputed that.

 

 

 

  • Given that a decision by a court to remove a child into public care, whether in public or private law children proceedings engages article 8 of the ECHR, a welfare analysis and proportionality evaluation are necessary. In any case where there is more than one realistic option it will be necessary for the judge to summarise his conclusions in what is now a conventional balance sheet approach i.e. where there is a choice to be made between two or more realistic options, an analysis of each option by reference to the welfare checklist is required so as to afford paramount consideration to the child’s welfare. The court is then required to evaluate the proportionality of its proposed intervention (and / or that of the local authority) by conducting a balancing exercise in which each of the available options is evaluated by considering the positives and negatives, or the benefits and detriments, of each option side by side. An adequately reasoned judgment must deal with the reasonably available options and give them proper and focussed attention.

 

 

 

  • That was not this case. There were no other realistic options i.e. options that were reasonably available to the court and no more proportionate interference than that contemplated by the judge. Given the stark facts, no further analysis was necessary.

 

 

[Okay, this may be more widely important, because this is the Court of Appeal accepting the point that some High Court Judges, notably Pauffly J have made about Re B-S, that the Court isn’t required to rigorously scrutinise EVERY option, only the realistic ones. The Court of Appeal accept that what is required of a Judge is to analyse each of the REALISTIC OPTIONS.  They say in this case that there were no other realistic options, so the level of scrutiny and weighing up was much lower.  That, to me, is interesting, since I read last week of a Court of Appeal judgment that overturned a Placement Order where BOTH OF THE PARENTS WERE IN PRISON at the time of the final hearing and were going to be there for some years to come, and the Court of Appeal overturned it for lack of proper analysis of the options. Consistent much?    *  I have that on Lawtel as Re T (a child) 2014 but without a bailli report yet, and Lawtel is paywall-y so I can’t link]

I would be using Re W (a child) 2014 as Court of Appeal authority for the principle that only the REALISTIC options need to be scrutinised and weighed.  (That raises the question of how you sift the options into realistic and unrealistic without scrutinising them, but y’know, there are degrees of scrutiny  – like for example, mum is not a realistic option to care for her child because she is doing FIVE YEARS IN PRISON)

 

The Court of Appeal here are saying that removal on the facts of the case was such a blindingly obvious outcome that it doesn’t matter if the Judge didn’t spend much time in the judgment setting out the pros and cons, the facts speak for themselves.  [They might regret that, this seems to be something that lawyers could argue about till the end of time – was THIS case bleedin’ obvious, or was it finely balanced? We call an expert witness, whose specialist subject is the Bleedin’ Obvious, Mrs Sybil Fawlty]

 

So, the mother’s appeal on those first two points failed – the next point was whether this was procedurally fair and whether she had been properly placed on notice that she might face an Interim Care Order and removal of her daughter.

 

  • It is convenient to take the last two propositions first because the whole context of the decision making process needs to be analysed if one is to understand what happened on the day the order was made. At the time the fact finding hearing was being case managed by Judge Cardinal on 21 June 2013 the judge indicated to the parties in the presence of the mother that if it were subsequently to be established that the mother was leading the child to make false allegations against her father, the court would consider making a residence order in favour of the father. At that stage, the judge had identified as a key issue the nature and extent of the harm that was being or would be caused to the child if the mother’s allegations were false and had rightly, in my judgment, identified one of the potentially serious consequences, namely removal of the child and a change of residence away from the child’s primary carer.

 

 

 

  • On 16 July 2013 at a hearing when mother was again present and assisted by an experienced McKenzie friend, Ms Haines, Judge Cardinal repeated his concerns to both parents: the consequences for each parent of the allegations being determined to be true or false were patent. On 18 October 2013 in the presence of Ms Haines, the judge explained to the mother that if he rejected her allegations he would have to very carefully consider the child’s future.

 

 

 

  • On the morning of 28 October 2013 before the fact finding hearing in question began, Judge Cardinal addressed all the advocates and Ms Haines. Entirely properly and to enable the parties to think about their positions, the judge indicated that if the mother’s allegations against the father were subsequently proved, he would have to consider exercising his powers to make a section 37 direction and an interim supervision order because the threshold for intervention would be met and the child would need protective assistance. He also dealt with the converse position. He explained that if the allegations were found to be false (a necessary and logical position on the facts of this case if they were not proved) he would have to consider exercising his powers to make an interim care order on the basis he would approve the removal of the child from the mother’s care. These observations were repeated by the judge more than once during the fact finding hearing.

 

 

 

  • The fact finding hearing was adjourned on 31 October 2013 at the conclusion of the oral evidence. The judge directed the parties to file written closing submissions by 10.00 am on 6 November 2013 in preparation for the resumed hearing on 11 November 2013. The judge directed the local authority as the recipient of his section 37 direction to attend court on 11 November 2013. In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions. The questions related to what orders he should make specifically including the options of interim care or supervision orders and residence and contact orders. The mother understood the judge’s intentions at least to the extent that she faithfully replicated his questions in her written submissions.

 

 

 

  • The mother did not answer the questions posed by the judge in her written submissions but as respects the notice she had of the judge’s powers and his realistic options, it is quite clear that she had days not hours or minutes to consider her position. Indeed, as to the key question about the removal of her daughter, she had more than 4 months notice and repeated reminders of the stark position that faced everyone if her allegations were found to be false.

 

 

 

  • As the judge records at [56] of his judgment, the mother’s closing submissions were received and considered after the deadline he set. There were in fact four sets of closing submissions from her, the last of which was received on 11 November 2013 which was the resumed final hearing day. By that time the mother would have been aware of the written submissions of the other parties specifically dealing with removal and inviting the court to take that step. The father asked the court to remove his daughter from the mother’s care and the children’s guardian recommended and reasoned the precise order made by the judge. The guardian also dealt with the difficult position that would arise if the judge decided that the mother’s allegations were false and that she had involved the child in her allegations to the extent that on removal the child would not immediately be able to go to live with her father.

 

 

 

  • At [30] and [31] of his judgment the judge records the following:

 

 

12. “[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child’s] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.

12. [31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home.”

 

  • Once the judgment had been handed down the judge gave the parties the opportunity to reflect on his conclusions and have discussions including with the local authority who were present in accordance with his earlier direction. Counsel recollect that there was a period from about 12.30 pm to 2.15 pm during which the mother asked the local authority to consider placement of her daughter with the mother’s sister. The local authority would not accept that proposal without an assessment for reasons that are understandable having regard to the content of the judgment. That decision was not at that stage a matter for them but rather for the court and it is of note that from about 2.15 pm to about 3.00 pm the mother was given and used an opportunity to make further oral submissions to the judge about her proposals and the orders that the court could make.

 

 

 

  • Given the judge’s record and that of all counsel in the case and for the reasons set out above, I cannot accept that the mother would have been in any doubt about what the judge was able to do and indeed what he proposed to do if the facts were found against the mother and absent any submissions as to other alternatives. The mother had every opportunity which she used to make proposals about placement including her sister and other members of the family. During oral submissions to this court and for the first time both without written warning or earlier complaint, the mother instructed her counsel to the effect that she had not had notice of the other parties written submissions because she had had computer difficulties and had not been able to open their documents. The process that I have described and the manner in which this complaint is disclosed to this court make it inherently unlikely but even if it is correct, there is ample other material to remain of the firm view that there was no procedural irregularity. This element of the ground of appeal is without merit and is not the case that was put to the single judge when he granted permission. There was no procedural irregularity or unfairness

 

 

There does seem to be quite a few warning shots there, that weren’t picked up on.

 

An argument that was not raised by the mother’s McKenzie Friend which might have been (I think the appeal was doomed, but I would have liked to see how the Court of Appeal tackled this) was the article 6 point. A parent in private law proceedings can be unrepresented – and in this case it seems that the mother was – making use of a McKenzie Friend, because she would not qualify for free legal representation.

In order to assist the mother, who did not have a legal representative, the judge identified specific questions for the mother to answer in her written submissions.

In a case where a Local Authority applies to remove your child, you automatically qualify for free legal representation. Once the Judge was contemplating the possibility of making an Interim Care Order and removing the child,  should the mother not have been entitled to free legal representation in exactly the same way that she would have been in care proceeedings?  From the point of view of a parent’s rights, does it matter whether the Interim Care Order is made by a Judge after a Local Authority apply, rather than by a Judge of his own motion?  The issue is the removal of the child from her care and into foster care, surely?

 

If a Judge is contemplating removal of a child into foster care under section 37,  should a parent not be entitled to free legal advice and representation about that, and be able to challenge it with the benefit of such representation?  Is it a denial of the principles of Airey v Ireland for her to NOT be able to be represented?  Given the warning that the Judge gave to the mother about the risks of the finding of fact hearing, might it have been beneficial for her to have had legal advice?

 

 

 

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Court rules on termination within care proceedings

Posted on June 10, 2014 by suesspiciousminds

 

Any case involving a termination is sad – setting aside any pro-choice v pro-life debates which are beyond my scope any decision about a termination has an enormous emotional impact on everyone involved and one simply can’t say how extensive those ripples will be.

 

In this case, the expectant mother was a 13 year old child, who was herself the subject of care proceedings. The father of the unborn baby was just 14.  This case was heard by the President of the Family Division – Re X (A child) 2014.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1871.html

The assessments of the expectant mother’s capacity showed that she was not Gillick competent  – that is, she wasn’t someone who could make the informed decision for herself whether to go ahead with surgery or not. If she had capacity, it is highly unlikely, as the President comments, that treating doctors would either try to undertake an abortion against her wishes (in fact, they would be sued to forever and back if they did) or refused to perform the operation.  As she did not have capacity to make that decision, it was something that the Family Court could give guidance on.

 

The President points out in the judgment something that often gets overlooked – there isn’t actually a ‘right to choose’ abortion in English law (technically and legally, even if in practice it almost always comes down to a choice), abortion is only a lawful surgical procedure in the narrow constraints of the legislation

 

 

 

 

  • section 1(1) of the Abortion Act 1967  provides as follows:

“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith –

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman … ; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; …

The Family Court has no power to compel doctors to perform the surgery, or to determine whether those criteria are satisfied – the decision on both of those matters rests entirely with the doctors.

  • In a case such as this there are ultimately two questions. The first, which is for the doctors, not this court, is whether the conditions in section 1 of the 1967 Act are satisfied. If they are not, then that is that: the court cannot authorise, let alone direct, what, on this hypothesis, is unlawful. If, on the other hand, the conditions in section 1 of the 1967 Act are satisfied, then the role of the court is to supply, on behalf of the mother, the consent which, as in the case of any other medical or surgical procedure, is a pre-requisite to the lawful performance of the procedure. In relation to this issue the ultimate determinant, as in all cases where the court is concerned with a child or an incapacitated adult, is the mother’s best interests.

 

  • An important practical consequence flows from this. In determining the mother’s best interests this court is not concerned to examine those issues which, in accordance with section 1 of the 1967 Act, are a matter for doctors. But the point goes somewhat further. Since there can be no lawful termination unless the conditions in section 1 are satisfied, and since it is a matter for the doctors to determine whether those conditions are satisfied, it follows that in addressing the question of the mother’s best interests this court is entitled to proceed on the assumption that if there is to be a termination the statutory conditions are indeed satisfied. Two things flow from this. In the first place this court can proceed on the basis (sections 1(1)(a) and (c)) that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, to the life of the pregnant woman or of injury to her physical or mental health or (section 1(1)(b)) that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, if any of these conditions is satisfied the court is already at a position where, on the face of it, the interests of the mother may well be best served by the court authorising the termination.

 

  • There is another vitally important factor that in many cases such as this may well end up being determinative and which in this particular case is, in my judgment, determinative: the wishes and feelings of the mother.

 

Of course, given that the mother does not have capacity (and if she did, the family Court would not be getting involved at all) she CANNOT CONSENT to the surgery, but the President draws an important distinction between consenting to a course of action and accepting that course of action

 

 

  • This court in exercise of its inherent jurisdiction in relation to children undoubtedly has power to authorise the use of restraint and physical force to compel a child to submit to a surgical procedure: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180 and Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. I say nothing about how this power should appropriately be exercised in the case of other forms of medical or surgical intervention. In the case of the proposed termination of a pregnancy, however, the point surely is this. Only the most compelling arguments could possibly justify compelling a mother who wished to carry her child to term to submit to an unwanted termination. It would be unwise to be too prescriptive, for every case must be judged on its own unique facts, but I find it hard to conceive of any case where such a drastic form of order – such an immensely invasive procedure – could be appropriate in the case of a mother who does not want a termination, unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long-term health at very grave risk. Conversely, it would be a very strong thing indeed, if the mother wants a termination, to require her to continue with an unwanted pregnancy even though the conditions in section 1 of the 1967 Act are satisfied.

 

 

 

  • A child or incapacitated adult may, in strict law, lack autonomy. But the court must surely attach very considerable weight indeed to the albeit qualified autonomy of a mother who in relation to a matter as personal, intimate and sensitive as pregnancy is expressing clear wishes and feelings, whichever way, as to whether or not she wants a termination.

 

 

 

  • There appears to be no clear authority on the point in this particular context (the cases in point all concerned other forms of surgical intervention) but counsel for X’s mother helpfully reminded me of something Lord Donaldson MR said in In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 79, which is in line with the approach I adopt:

 

 

“Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of parents and despite the refusal of consent by 16- and 17-year-olds. Whilst this may be possible as a matter of law, I do not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child. This is not to say that it could not happen.”

 

  • In his oral evidence (see below) the Consultant in Obstetrics and Gynaecology captured the point, as it seemed to me, very compellingly. He said, and I agree, that it would not be right to subject X to a termination unless she was both “compliant” and “accepting”. Both, in my judgment, are important. Only the most clear and present risk to the mother’s life or long-term health – neither even hinted at in the present case – could justify the use of restraint or physical force to compel compliance. So the mother in a case such as this must be compliant. But mere acquiescence – helpless submission in the face of asserted State authority – is not enough. “Consent”, of course, is not the appropriate word, for by definition a child of X’s age who, like X, lacks Gillick capacity, cannot in law give a valid consent. But something of the nature of consent or agreement, using those words in the colloquial sense, is required. The Consultant’s word “accepting” in my judgment captures the nuance very well.

 

When the case had first been set up for hearing, the expectant mother X had been opposed to  a termination, and all advocates had prepared on that basis, but by the time the case got to Court her position had changed to wanting a termination.

 

This next aspect is novel – I don’t think a Judge has ever had to undertake this exercise before.  Part of what X had in her mind was whether, if she gave birth to the baby, whether there would be care proceedings and what the likely outcome of those proceedings would be.  That’s a fair question on her part and it clearly would have a significant impact on her feelings. As a matter of law, the Court can’t consider an application in care proceedings until the baby is born, and even a decision at interim stage (whether the baby could be with mother immediately after birth) would only be an interim decision and the final outcome would not be known until the baby if born was about six months old. So a definitive answer was not possible – all that could be attempted was an indication of what seemed likely. Many Judges might have hidden behind the legal difficulties of expressing a view on this, but the President attempted to answer the very real and very human question.

 

One factor which it did seem important to take into account was the likelihood or otherwise of X being able to keep her baby if there was no termination. This required me, necessarily on the basis of incomplete information, to predict the outcome, not merely of the care proceedings already on foot in relation to X but also of the care proceedings in relation to her child which almost inevitably would be commenced after the birth. The need for a judicial view on a point which might be seen to be pre-judging the care proceedings was, in my judgment, inescapable. My view, which I expressed at the hearing and which was embodied in my order (see below) was that there was “very little chance” that X would be able to keep her baby if it was born. Having done so, however, it seemed to me that I should not be further involved in the care proceedings, so I recused myself.

 

[For non-lawyers, ‘recused myself’ means that the President had ruled that he would not be involved in any of the care proceedings involved in X’s baby IF she did go on to have the baby. It wouldn’t be fair for him to hear the case having indicated that X had very little chance of being able to keep her baby.  We don’t know from this judgment any of the background or why the Judge would have given that indication – there are things that the Judge saw and read and heard that we have not]

 

The President made a raft of orders, that in effect meant that his indication should be explained to X, and that IF she was in agreement with a termination the doctors would be able to proceed if they wished to (but that if she did not agree, it would not take place).

 

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A Court may look at a King

Posted on June 9, 2014 by suesspiciousminds

 
Harb v HRH Prince Abdul Aziz 2014 is probably the case with the narrowest applicability I have ever seen, but I liked it anyway.

http://www.bailii.org/ew/cases/EWHC/Ch/2014/1807.html
In effect, in this case, Ms Harb was claiming that she had been secretly married to the Prince’s father in 1968, who then became King of Saudi Arabia. She brought divorce proceedings against King Fahd in January 2004, which were thrown out on the basis that King Fahd had “state immunity” more of which later.

She appealed that in 2005, but the King died before the appeal could take place, resulting in the dismissal of the appeal http://www.bailii.org/ew/cases/EWCA/Civ/2005/1324.html

[I particularly enjoy in that appeal that the Court of Appeal were much exercised by the case of Dipple v Dipple, which is a splendid name for an authority.]

Ms Harb also claimed that Prince Aziz negotiated a ‘go away’ settlement (this is not a precise or technical term) to the sum of twelve million pounds and some London properties, this being at a meeting in 2003. The money and property never showed up, and Ms Harb was now suing for breach of that agreement.

The Court did not deal at all with the issues of

1. Had Ms Harb ever been married to King Fahd?
2. Had there ever been a financial agreement between Ms Harb and Prince Aziz?
3. Had that agreement been breached?
4. Should it be enforced?

Because there was a preliminary issue, and quite a tricky one of whether any jurisdiction other than Saudi Arabia could dealt with the case at all, because of ‘state immunity’

That’s in essence the legal principle that Heads of Sovereign states are exempt from the legal jurisdiction of any other country. That exemption extends to members of their immediate household.

That principle is set out here

section 20(1) of the State Immunity Act 1978 (‘the SIA 1978’). That provides:

“20. Heads of State.
(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.”

The SIA 1978 therefore directs us to the Diplomatic Privileges Act 1964 (‘the DPA 1964’) which by section 2 gives effect in United Kingdom law to certain articles of the Vienna Convention on Diplomatic Relations 1961 (‘the Vienna Convention’) as set out in a Schedule to the Act. Those articles include article 39 which provides:

“Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.”
The case proceeded on some agreed assumptions, which made things a bit easier

By the time the hearing of the application came before me the issues had been substantially narrowed by the agreement of the parties that the application should proceed on the basis of some important assumptions. These assumptions, both sides stressed, apply solely for the purpose of determining this application and will have no bearing on the proceedings if they go forward. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the Prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the Prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father’s estate is entitled to now. I should make clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the Prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.

The second assumption is that if Mrs Harb’s claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the Prince would have been able to claim sovereign immunity in the English courts to defeat her claim.
If King Fahd were still alive and still King of Saudi Arabia, then the state immunity would be almost certainly apply to him in relation to these claims. [It hasn’t been fully determined, since King Fahd died prior to the appeal on this very point, but it is pretty much a racing certainty]

The state immunity WHILST you are the Head of State does not just apply to ‘things you do in an official capacity’ but to all things (i.e including in your personal life or capacity too) – that is called in Latin “immunity ratione personae” (and why on earth wouldn’t we use Latin when deciding a case in London about someone from Saudi Arabia?)
During the period when the head of state holds office, there is no doubt that his immunity from suit extends to all matters whether official or private. This is illustrated by Mighell v Sultan of Johore [1893] 1 QB 149. In that case it was alleged that the Sultan, a sovereign prince, had come to England, adopted the name Albert Baker, promised to marry the plaintiff and then broken that promise. The Court of Appeal held that he was immune from suit. Lord Esher MR, having examined the relevant case law, quoted from his own earlier judgment in The Parlement Belge 5 P.D. 197 where he had said:

“The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction.”
and went on to say that rule was ‘laid down absolutely and without any qualification’.
The next principle is that when a head of state STOPS being the head of state within their lifetime, the state immunity is just for things you did in that OFFICIAL CAPACITY(the obvious situation being that they are an elected head of state like the President of the United States, or that they abdicate) . That becomes “immunity ratione materiae”
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So, for example, a former President of the United States could not be sued in any other country for things that he did in his official capacity as President, even after leaving the Whitehouse, but after he stops being President, he COULD be sued for say, punching someone in the nose in a bar fight, even if he had been President when it happened.

That was the major issue in the General Pinochet case, referred to a lot in this judgment. General Pinochet obviously appeared before the English Courts in the extradition case, when he had ceased to be the head of state of Chile and there was an application that he be extradited to Chile to face judgment for his crimes.

The scope of immunity from suit conferred on heads of state was considered by Lord Browne-Wilkinson. He set out the relevant principles as follows:

i) The immunity enjoyed by a head of state in power is a complete immunity attaching to the person of the head of state and rendering him immune from all actions or prosecutions whether civil or criminal and whether or not they relate to matters done for the benefit of the state. This immunity is said to be granted ratione personae.

ii) At common law, a former head of state enjoys more limited immunity once he ceases to be head of state. He loses immunity ratione personae and enjoys instead an immunity ratione materiae, that is immunity in relation to his official acts during his tenure in post. He can be sued on his private obligations: see page 202F-H and the authorities cited there.

iii) Senator Pinochet was entitled to immunity from the charges of murder and conspiracy since these were official acts committed whilst he was in office. But to grant immunity in respect of the international law crime of torture would frustrate the application of the Torture Convention 1984, to which Chile was a signatory state. Senator Pinochet therefore did not have immunity in respect of charges of torture or conspiracy to torture after the coming into force in the United Kingdom of the Criminal Justice Act 1988 which implemented that Convention.
It was accepted in principle in this case that IF Prince Aziz HAD negotiated a settlement with Ms Harb in relation to his father’s marriage, that this would have been a personal matter (so would not be covered by the immunity ratione materiae – immunity for matters of official business)

The issue therefore was whether for non-elected, non-abdicating Heads of State, if they die whilst a Head of State, whether the state immunity applies to their estate for BOTH official matters AND personal matters or ONLY for personal matters.

The Prince was obviously arguing that it applied to both, and Ms Harb arguing that the immunity only applied to official matters (this not being one)

The sole question for decision in this application is therefore whether when the King ceased to be head of state of Saudi Arabia on his death, his immunity from suit (and hence the Prince’s) continued to extend to everything he did when he was head of state, whether of an official or private nature. Counsel for both parties told me that they have been unable to find any legal authority directly on this issue and that there is no commentary in text books and no learned articles considering the question.[1] Their researches have not uncovered any reference to a claim previously having been brought against the estate of a head of state who died in office. Given the calibre of the legal representation in this case, I can be confident that means that there is none to be found.
That’s the sort of thing that makes a law-geek like me behave very much like a Pointer dog. Two top Silks haven’t been able to find the definitive answer, so the case is all about the two of them battling it out and a High Court Judge working out the answer for the first (and quite possibly the last) time.

There! New law!

There! New law!

Note 1 The closest they have come is that Mr Fitzgerald QC drew my attention to a sentence from Satow’s Diplomatic Practice (6th edn by Sir Ivor Roberts) which contains under the heading ‘Immunity of a Former Head of State’ the sentence ‘His personal immunity ceases when a head of state is no longer, for whatever reason, in office’

[If Sir Ivor Roberts had provided a source for this bald assertion, the case could have been resolved much quicker]
Lord Pannick QC, representing the Prince distinguished this case from Pinochet with a single sharp point

Lord Pannick QC for the Prince argues that their Lordships in Pinochet (No. 3) did not have in mind the situation where the head of state had died in office, given that Senator Pinochet was very much alive during those protracted proceedings. The fact that King Fahd ceased to hold office because of his death rather than for any other reason distinguishes this case, Lord Pannick submits, from Pinochet (No. 3).
And so, there could be a two tier system – Heads of State who leave the role via death get the ‘full package’ of immunity ratione personae (for official AND personal matters) and those who leave the role by losing an election or abdication get the lesser package of immunity ratione materiae (official matters only)

I note at this point that Lord Pannick accepted that it made no difference on his arguments whether sovereign title in the particular state passed by hereditary succession, by democratic election, by effluxion of time or other means. Thus on the Prince’s case the estates of Abraham Lincoln and Franklin D Roosevelt would enjoy immunity ratione personae whereas the estates of Ronald Reagan and Harry S Truman would enjoy only immunity ratione materiae. Similarly and closer to home, the estate of King George VI would have complete immunity from suit whereas the estate of Edward VIII would enjoy only the more limited immunity. For legal purposes, it is accepted, those who leave office during their lifetimes become ordinary citizens and on their deaths their estates can claim no better treatment than they enjoyed the day before they died.

Part of the Prince’s argument was the underpinning philosophy behind state immunity – that it was to avoid affront to the personage of the state – and if we don’t want to affront them in life, nor should we do so in death. It’s not so bad when they are an ex-President or ex-King as opposed to a deceased one, who requires more respect.

Lord Pannick argues that it is as much an affront to the state to allow suits against the head of state after their death as it is to allow them before their death.
The High Court were against this (and let us imagine for a moment what it feels like to be a High Court Judge saying “no” to a Prince and a Lord, both at the same time)

In my judgment this submission is based on a misinterpretation of what it means to affront the dignity or sovereignty of a state as personified by the head of state and hence what it means to say that the doctrine’s function is to avoid such affronts. This emerges most clearly from the judgments of the Court of Appeal in Aziz. Lawrence Collins LJ distinguished there between the right that a head of state has to be protected from attacks on his dignity on the one hand and the uniform practice of host states of extending courtesy or comity to a foreign head of state ‘as a matter of diplomatic courtesy rather than as a recognition of a legal responsibility’ on the other. Sir Franklin Berman QC appearing for the Sultan in that case had put forward a very broad definition of ‘an attack on the dignity of a head of state’. He argued that this encompassed any deliberate act intended to lower the estimation of the head of state or to injure his honour or that of his office. Collins LJ held that a proposition of that breadth ‘would be a wholly impermissible invasion of the principle of free speech’: see paragraph 94. Sedley LJ agreed with Collins LJ in contrasting a legal entitlement to protection vested in the sovereign as an individual with the courts’ ‘salutary practice’ of protecting any third party from the distress caused by damaging or embarrassing allegations being made about them in open court.

Inherent in both the judgments in Aziz and in their Lordships’ speeches in Pinochet (No. 3) is the principle that a state is to be regarded as intolerably affronted by a foreign court asserting jurisdiction over the private affairs of its head of state on one day and then not so affronted if that court asserts jurisdiction the next day, the head of state having stood down or been deposed in the interim. This is not because the high esteem and affection in which that head of state is held by his subjects instantly evaporates the moment he steps down from office but rather because their esteem and affection is nothing to the point. Similarly, the fact that a nation may revere the memory of a much loved head of state after his death does not of itself justify a continuation for the benefit of his estate of the complete immunity that the sovereign enjoyed during his lifetime. The immunity recognised by international law is accorded without distinction both to the much loved and to those regarded by some or all of their subjects as an arch-devil: Lord Browne-Wilkinson was at pains to emphasise this in Pinochet (No. 3) at page 190F.

What is more to the point is the fact that, as Lord Millett said, the serving head of state is ‘regarded as the personal embodiment of the state itself’ whilst in office. It is that fact, rather than the merit of the individual concerned, which justifies the immunity and which generates the intolerable affront if the immunity is infringed. The notion of the head of state being the embodiment of the state as the underlying justification for state immunity (both for heads of state and for ambassadors) goes back to the earliest authorities. In Aziz Lawrence Collins LJ cited Vattel’s The Law of Nations published in 1758 where it was said of a head of state: (emphasis added)

“S’il est venu en voyageur, sa dignité seule, et ce qui est dû à la nation qu’il représente et qu’il gouverne, le met à couvert de toute insulte, lui assure des respects et toute sorte d’égards, et l’exempte de toute juridiction.””
I, of course, was about to say exactly the same thing. As soon as I started reading this case, I thought to myself, “Surely, s’il est venu en voyageur”   [if you want to imagine me saying that in a Del Boy accent, feel free]

(The High Court don’t translate this phrase, but I’m sure that my readers have grasped the meaning entirely. Or in my mangled interpretation – something about a voyage or journey, something dignity something, something about a nation representing the government, something about an insult, something about assuring the respect of something, something about being exempt from the  jurisdiction. And one need say no more, surely)

[Save that my dreadful translation reminds me of the classic D R & Quinch story by Alan Moore, where two reprobates get their hands on a movie script by an acclaimed screenwriter who then dies. Off the back of the script, they are greenlit to make the movie, and only on set do they realise that the only vaguely legible words are the final line “something something oranges something”    If you haven’t read it, you should, it is great]

The High Court goes on

I do not accept that a sovereign who dies in office remains the embodiment of the state once deceased. On the contrary, a new head of state springs up, either instantly in the case of an hereditary monarchy or after due process in the case of an elected head of state (although most states will designate an interim head pending such an election). Again, this is nothing to do with whether the recently deceased head of state continues to hold a place in the hearts of the nation or is still regarded by his or her former subjects as an exemplar of all that is best about that nation’s character. We are not talking about embodying the state in that sense but in a more technical sense. There is no room in this doctrine for two embodiments of the state to exist at the same time, one dead and one living.
That, I can understand. If the state immunity applies because King Fahd IS the personification of Saudi Arabia, then you can’t have two separate people, say King Fahd I (dead) and King Fadh II (alive) BOTH being the personification of Saudi Arabia at the same time.

Counsel for Ms Harb suggested that the answer could be extrapolated from the provisions of article 39 of the Vienna Convention (as set out in the early part of this piece) – specifically the provisions which make allowance for a reasonable period of time for members of the household to leave the country and take items with them under state immunity after the Head of State has died. After all, if the state immunity continued and extended to the estate after the Head of State died, what would be the point of those provisions?
Mr Fitzgerald relies on Article 39(3) and (4) as supporting his argument to precisely the opposite effect. Those provisions are included to make clear that although generally speaking immunity ratione personae lasts only whilst the ambassador holds office, it is extended for a short period to allow the ambassador and his family to leave and to take their belongings with them, largely free of export charges and controls.

On this point I consider that the scope of Article 39 supports Mrs Harb’s case on the scope of immunity rather than Prince Abdul Aziz’s. One cannot infer from the fact that Article 39(3) refers only to the members of the ambassador’s family and not to the ambassador himself that the Vienna Convention assumes that the ambassador’s estate continues to enjoy all privileges and immunities indefinitely. It is equally consistent with a position whereby his immunities and privileges cease on death and are therefore extended briefly to those of his family for what Mr Fitzgerald referred to as a ‘penumbra or residual packing-up period’. As regards Article 39(4), it is difficult to see why this provision would be necessary if the Prince’s case were right. If the ambassador’s estate continues to enjoy full immunity ratione personae, there could be no question of levying estate, succession or inheritance duties on his estate. Moreover, there are two important exceptions in Article 39(4). First, the receiving state is entitled to prevent the removal of property that was acquired in the receiving state and which cannot lawfully be exported from that state and secondly it appears that estate, succession and inheritance duties may be levied on moveable property which is present in the receiving state for reasons other than because the deceased was the ambassador. Transposing article 39(4) to apply it to a head of state may give rise to one of the baffling legal problems to which Lord Browne-Wilkinson referred in Pinochet (No. 3). For present purposes it is enough to say that the detailed provision for the application of the receiving state’s law to the property of the estate of the deceased ambassador supports Mrs Harb’s contention that there is no continuing immunity ratione persoane enjoyed by that estate.
{I admire and applaud the Judge’s reference here to the possibility of a ‘baffling legal problem’ being raised in the future, as though the resolution of this current case was as easy as falling off some logs. Having got on a roll with how easy this was all becoming, the Judge decides to tackle the issue of whether a quick-thinking litigant could sue a Head of State for a personal matter if a coup in their own country deposes them, and considers that it is possible, although serving them before they leg it would present some obstacles}

In my judgment therefore there are no grounds for distinguishing the principles set out in Pinochet (No. 3) on the basis that King Fahd ceased to be head of state of Saudi Arabia on his death rather than during his lifetime. The principle that a former head of state enjoys only immunity ratione materiae applies to the late King as it applies to any head of state who stands down from office during his lifetime. Further, there is no justification for treating the estate of a head of state who dies in office in a more favourable way than the living former head of state or the estate of such a former head of state who dies some time after leaving office. I regard myself as bound by the House of Lords’ decision in Pinochet (No. 3) to dismiss the Prince’s application.
We can therefore look forward to more litigation between Ms Harb and the Prince in due course. I, for one, cannot wait. I shall be disappointed if some hieroglyphics don’t find their way into the judgment somehow.

 

[As a sidebar to this, I read an A P Herbert story recently about a tradition that if the Queen appears in the vicinity of the Old Bailey, the trials are paused until she has moved to somewhere more distant, because the notion is that the Queen is the head of law in this country, hence the head of justice and that her Judges only carry out that function to assist her and would not have the temerity to hear evidence or make decisions if the Queen were sufficiently proximate to undertake this role herself. Anyone who knows whether (a) this is true and (b) whether it has ever actually happened is most welcome to tell me about it]

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Q v Q – an impasse

Posted on June 9, 2014 by suesspiciousminds

 

You may not be aware (it depends if you spend too much time online), that on the internet QQ in effect means stop whining, or crying about something (the Q’s looking like a pair of eyes with tears coming out of them)   – if you say that someone is QQ-ing, it means that they are whining like a child about something.    [ it comes up a lot]

 

In Q v Q 2014, the President tackles what’s been a long-standing problem in family law proceedings, particularly family law. And brings tears to the eyes of the Legal Aid Agency, Her Majesty’s Court Service and our beloved minister Chris Grayling. QQ indeed.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html

 

For many years now, the Legal Aid Agency, under its various guises, has had a policy that they will withdraw public funding from someone who has legal aid (free legal representation) if there is an independent report which is heavily against them. Back when I was doing private law, this quite often used to be the CAFCASS report, and you’d end up in a position where your client’s legal aid would be pulled two days before a final hearing because the CAFCASS report was very damning.

 

Of course, the report is at that point untested evidence – for the Legal Aid Agency to presume that just because on paper the CAFCASS officer is against your client, there would be no prospect of getting them to change their mind or getting the Court to disagree with their conclusions is presumptuous in the extreme. If all the Court did was agree with what the CAFCASS report said on paper, then we wouldn’t need Judges at all, and CAFCASS could be the investigators and arbiters of final outcomes.   [Indeed, on a few such cases I recommended my client for free, and got a favourable decision for them]

 

That’s not a new thing, but in this case, the father was publicly funded and an expert was instructed (it was his expert) and the expert was heavily against him. His funding was pulled.

 

The father was therefore appearing in person, and requiring an interpreter. He wanted to be represented and he wanted to challenge the expert report. The mother, who was represented, invited the Court to dismiss his application and make a section 91(14) order prohibiting him from making further applications without leave of the Court.

 

The Court were unhappy about the impact of proceeding without representation for the father on his article 6 and article 8 rights, and mooted a series of possible solutions, before adjourning the case and inviting the Legal Aid Agency and Ministry to intervene to discuss those possible solutions.

 

 

In the circumstances, what I propose to do is this: I propose to adjourn this matter for, I emphasise, a short time, inviting the Ministry of Justice – or it may be the Secretary of State for Justice or it might be the Minister for the Courts and Legal Aid – to intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.

 

 

I appreciate that this is a case in which, as Miss Spooner points out, there have already been too many adjournments of supposedly final hearings. I appreciate it is a case which has been going on for the best part of four years, which is depressing to say the least. And I am very conscious of the fact that the mere existence of the proceedings, and they must seem to the mother and her son to drag on interminably, is having a significant impact both on the mother and also on the parties’ son. Factoring that in as I do, it does seem to me that some further, but limited, delay is inescapable if I am to do justice not merely to the father but, as I have emphasised, also to the parents’ son.

 

 

I shall accordingly, in terms which I will draft, adjourn this matter so that the relevant ministry can intervene if it wishes to and on the basis that if it does not I will have to decide the issues I have canvassed without that assistance. I will reserve the matter to myself. I will direct that the hearing takes place as soon as it possibly can after the forthcoming short vacation. I would hope that the hearing can take place in front of me in June.

 

 

This is about nine years too late for the general principle, and a year late for the LASPO position which left almost all parents in private law cases unrepresented (I suspect that the father’s rights movements would also say that as a result of relative incomes, there were a huge number of cases in which fathers had to represent themselves because they had slightly too much money for legal aid representation but not nearly enough to pay privately, and I have some sympathy with that position)

 

It is welcome anyway, even if it is late.

 

The President helpfully gives people a valuable little crib-sheet in case they WERE asking the Legal Aid Agency to grant legal aid in the s10 LASPO exceptional circumstances

 

Putting it in the language of FPR 2010 1.1, the court is required to deal with this matter “justly” and by ensuring “so far as is practicable” that the case is dealt with “fairly” and also “that the parties are on an equal footing.” That is the obligation of the court under domestic law. It is also the obligation of the court under Articles 6 and 8 of the European Convention. Despite what Miss Spooner says, I am left with the strong feeling that I cannot deal with the matter today justly and fairly by acceding to her submission.

 

As I have said, the domestic obligation on the court is to act justly and fairly and, to the extent that it is practicable, ensure that the parties are on an equal footing. In the well-known case of Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, the European Court of Human Rights held as long ago as 1979 that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied her Article 6 right to be able to present her case properly and satisfactorily. In that particular case, the court held that Ireland was in breach of Mrs. Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge affords to parties acting in person.

 

 

Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, a judgment given by the court in March 1997, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which was “likely to have a preponderant influence on the assessment of the facts by [the] court.”

 

 

I mention those cases merely as illustrative of the kind of issues which arise in this kind of situation. I emphasise I do so without expressing any view at all as to whether, in the circumstances I am faced with, unless there is some resolution of the present financial impasse, there would be a breach of either Article 6 or Article 8.

 

 

 

You may have noticed that I haven’t come on to the facts of the case yet, which is not my usual approach. You may be wondering what the facts of this case are that led to the President being so troubled about the father’s human rights (especially given that there was no such intervention on the D v K case where a father was accused of rape by the mother in private law proceedings and not given legal aid, leaving him in the position of facing those very serious allegations without a lawyer and the mother in the position of being cross-examined by the father directly, something which would be illegal if it happened in a criminal trial http://www.bailii.org/ew/cases/EWHC/Fam/2014/700.html   So it must be something worse than that?)

 

 

Well, this, I’m afraid is one that the Daily Mail would exhaust the entireity of the “Outrage” section of Roget’s Thesaurus

 

The father is a convicted sex offender, having convictions for sexual offences with young male children, the second of which was committed during the currency of these proceedings.

 

 

That’s right – the man who the President has gone to the wall for, to defend his human rights, to single out and say “This is the case where I must defend the father’s rights” is a convicted paedophile seeking to have contact with his seven year old son.

 

[That, sadly, is the point of human rights, that they are universal and apply to the most deserving and those who the general public might regard as undeserving and beyond the pale. It isn’t great PR for those who support human rights – including myself, when it is cases like this that stir our courts into upholding rights. It does seem from time to time that the more unsavoury you appear to be, the more thought the Court give to your rights. I hope it only seems that way.

 

If you were to hold a national referendum on whether this man, a convicted paedophile, should get to see his seven year old son, I don’t imagine that it would be a finely balanced result. I don’t think bookmakers would be giving very good odds on “No” ]

 

 

 

 

Back to the legal debate, the President felt that just because the report was against the father that would not determine the matter

 

Tempting though it is to think that the father’s case is totally lacking in merit, it does seem to me, despite everything Miss Spooner has said, and recognising the constraints which may be imposed on cross-examination by the fact that, in part, challenge on behalf of the father would be to his own expert, I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

 

 

For example, a perfectly proper line of cross-examination of JD might be along these lines, “In part at least, your analysis of the risks that the father poses to his son, as opposed to other children, is based upon the account you have had from the mother of what went on in the family home.” It would seem, bearing in mind the language of JD’s report, that the answer could only be, “Yes.” The next question then might be, “Suppose for the sake of argument that the true picture at home was not what the mother says but a very different picture presented by the father. Just suppose that. Would that affect your opinion?” I use that only by way of illustration of a wider point that could be made in relation to these reports. That seems to me to be a proper and appropriate line of cross-examination.

 

 

My problem and ultimately Miss Spooner’s problem is that it is completely a matter of speculation as to what JD’s answer would be to the last question I formulated. The answer might be, “It does not make the slightest difference at all because of X, Y, Z”, in which case the father’s case might evaporate. It might be, “Well, yes, that might make a difference.” The point is we simply do not know

 

 

 

[If you are thinking at this point – well all of that seems like it could apply to ANY witness who was against you, and thus ANY case –mmmmm, yes, I agree. This could be a very critical case for the Government and LASPO. If they don’t take it seriously, it could put a serious hole in their policy about legal aid]

 

 

What were the Court’s possible options to resolve this unthinkable impasse?

 

Assuming that public funding in the form of legal aid is not going to be available to the father, because his public funding has been withdrawn and an appeal against that withdrawal has been dismissed, and on the footing that, although the father has recently gained employment, his income is not such as to enable him to fund the litigation, there is a pressing need to explore whether there is any other way in which the two problems I have identified can be overcome, the first problem being the funding of the attendance of the experts, the second being the funding of the father’s representation

 

 

There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public fundsThere may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds.

It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.

 

 

May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated in justice not merely to the father but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here. I emphasise the interests of the son because, under our procedure in private law case like this where the child is not independently represented, fairness to the child can only be achieved if there is fairness to those who are litigating. There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child

 

 

 

 

If you have ever watched a submarine movie (and if you haven’t, you have wasted your life to date), you will be familiar with the sequence where disaster strikes, water breaches the hull and red lights go on and a siren blasts “Arooogah Aroogah” for the next twenty minutes of the film, where men in crewneck jumpers and/or bellbottoms use wrenches on pipes and doors burst open and water pours in.

 

That submarine disaster sequence is  pretty much what the scene at Her Majesty’s Court Service would be like when they read this line from the President

 

 

. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters

 

 

What the President is saying there is, if a situation arises in which a party’s human rights would be breached by having to conduct litigation without a lawyer and the Legal Aid Agency won’t pay, it might have to come out of the Court’s budget, otherwise the Court would be breaching the party’s human rights.

 

Aroogah! Aroogah!

 

 

In private law, if someone is going to have to pay for legal representation to prevent a breach of article 6 and article 8, the options are basically limited to the Legal Aid Agency or the Court (either way, it is coming out of Mr Grayling’s budget)

 

Aroogah! Aroogah!

 

Luckily, we know from Mr Grayling’s comments about the completely opaque terrorism trial of AB and CD that “We must trust the Judges” and on that basis, I’m sure that Mr Grayling will stand by that, and not bring a Silk along to talk the President out of it, or appeal any decision that the President might make.

 

And also note that the President drags the poor old Local Authority into this, despite being a private law case that they aren’t involved in.

 

In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay

 

 

It is wrong, and probably a contempt of Court for me to refer to the President of the Family Division as Dude – so let’s for a moment imagine that I am talking about someone entirely different  (which I am, I am addressing a friend of mine who has just made this very suggestion, in coincidentally the same words that the President used), but

 

Dude !

 

Are you saying that if a child has a fractured skull, and the suspects are mother and mother’s boyfriend, and mother’s boyfriend can’t get legal aid, the Local Authority should pay for the boyfriend’s lawyers to fight the case against them? That it would be fine for those lawyers to be paid by the applicant in the proceedings, who is running a case directly in opposition to their client?

 

Dude!

 

 

[I think in the light of Re T, we’d see what the Supreme Court thought about that. The answer it seems to me, is that we need our Courts to unlock s10 LASPO exceptions by saying that these cases would be an article 6 breach in accordance with the spirit of Airey v Ireland, and it would be Wednesbury unreasonable for the Legal Aid Agency to decide otherwise once a judge has ruled that there would be an article 6 breach. IF that is the path that the President goes down, it seems to me to have the potential to punch a big hole in the hull of HMS LASPO – it is lucky that Mr Grayling trusts the Judges]

 

 

 

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Succeeding in an opposed adoption

Posted on June 6, 2014 by suesspiciousminds

 

 
There are cases – you can see them in law reports, read about them in the newspapers and sometimes see them for yourself, when a Local Authority seeks a Placement Order with a plan to adopt a child and the Court says no. {Just looking at the Bailii reports of county court cases since 22nd April, I can find three of those}

You can also see cases where the first Court says yes, and the Court of Appeal say no, and the Placement Order and the plan of adoption is stymied. So parents can and do, successfully fight PLANS for adoption.

 

What about when the plan is approved and the Court makes the Placement Order that allows the child to be placed with prospective adopters?

Once the Placement Order is made, a parent can apply for leave to revoke the Placement Order – to get the child back if the application to revoke is successful.

Since the Adoption and Children Act 2002, I have not personally experienced a successful application for revocation of a placement order by a parent, nor have I ever read about one in a newspaper. Nor have I been able to find one in the law reports. I have found some cases where LEAVE was given, but not any that ultimately ended up with the child coming home.

If the child is placed with prospective adopters, and they make an application for adoption, the parent may apply for leave to oppose the adoption application. Up until Re B-S was decided last year, the only reported case where that leave had been given to a parent had been immediately appealed.

That’s because pre Re B-S, the test was that the Court should follow a “stringent approach” and that it would be only in “exceptionally rare circumstances that these applications would be granted”

[That, in practice seemed to be “exceptionally rare” in the sense that a unicorn is exceptionally rare, rather than in the sense that a Cabinet minister is sacked sense of exceptionally rare]

In Re B-S though, the Court of Appeal decided that that was not on – Parliament had set out in the Adoption and Children Act 2002 that there was a remedy allowing a parent to oppose an adoption order under s47(5) of the Act, and if that was to be a real remedy rather than a merely illusory one, there had to be cases where leave would be given. The Court of Appeal decided that the mere fact that a child was placed with adopters and would be potentially unsettled was not enough to defeat a leave to oppose application, and if the parent demonstrated some ‘solidity’ to their case, it would be right to grant them leave and let them oppose the adoption.

Since then, a higher proportion of leave to oppose applications have been successful (or successful appeals after original refusals). But have any of them actually resulted in the parent getting their child back?

Since the 2002 Act, I have not found a single law report that shows a parent successfully opposing the adoption order and getting the child back. I have seen cases that could be counted on the fingers of one hand of opposition to adoption orders that resulted in the child remaining with the prospective adopters under a different form of order.

The closest anyone had come in a reported case (up until now) was in Re W (Adoption Order :Set aside and leave to oppose) 2010 [2011] 1 FLR 2153

In which a mother had not been served with the adoption application, despite telling the social workers that she wanted to fight it, and she persuaded the Court of Appeal that it was right to set aside the adoption order But the Court of Appeal then went on to decide that she failed in her application for leave to oppose, and that there would thus be an unopposed application for adoption, which of course would succeed. That’s about as pyrrhic a victory as one can imagine.
In fact, if you want to find the answer to the question “What happens to the child if a Court refuse the adoption application?” the case that answers it is from 1960 (which is two sets of Adoption legislation ago – the answer NOW is that the Care Order comes back into force, so unless the Court discharge the care order or make the new equivalent of a Residence Order, the adoption won’t go ahead but that doesn’t automatically mean the child will come home)
This raises two big questions for me

1. Where does that leave the Court of Appeal’s statement in Re B-S that parliament intended there to be a real remedy in s47 for a parent to fight an adoption application, rather than a merely illusory one?

AND

2. How can a parent’s opposition to an adoption order be said to have solidity, if nobody has ever succeeded in opposing one?

 

If in twelve years, no parent has successfully fought an adoption application and got their child back, is the whole concept of contested adoption really just an illusion, and moreover, an illusion that causes further pain and suffering to a parent, anxiety to the prospective adopters and takes up Court time that we can ill afford?
Those questions are thrown into sharp focus by this High Court decision that I am finally getting around to.

Borough of Poole v W and Another 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1777.html

This judgment was delivered by Sir Mark Hedley, in the High Court in April 2014. I will say, before we begin, that if I happened to be representing a parent in the High Court, the Judge I would be praying for would have been Hedley – you cannot have a more kindly and sympathetic tribunal. It would be a dream start.

In this case, the Judge had given leave to oppose the adoption application for a child SR, and thus this is one of the rare reported contested adoption judgments.

SR was 2 ½ years old. She had been removed shortly after birth, there having been care proceedings and adoptions of her older siblings. A Care Order with a plan of adoption and Placement Order was made – the parents appealed that decision and were unsuccessful. SR was placed with prospective adopters in November 2012 and her direct contact with her parents ceased.

The adoption application was made and the parents were granted leave to oppose.

[I note in passing that the Judge refers extensively in his judgment to 2011 caselaw, but does not touch upon Re B or Re B-S – no doubt these formed a major part of his judgment to grant leave to oppose]

“Although the final legal burden on the prospective adopters remains unchanged, the parents, according to Re W have a significant evidential burden of laying solid grounds of opposition to what has already been planned and approved by the court. I mentioned at the end of the hearing that I thought, this being, I think, the first case at full trial after the bout of cases in the Court of Appeal, that it would be proper normally to provide a written judgment so that others could see how the process works out”

[There has of course been the judgment in the opposed adoption case of Re N (A Child : Adoption Order) 2014 – but in that case, the father was not seeking the return of the child but to persuade the Court to make a Special Guardianship Order instead of an adoption order https://suesspiciousminds.com/2014/05/10/special-guardianship-versus-adoption/ ]
Coming back then to the essence of this case, all parties agreed that there were probably three factual questions that the court had to ask and answer. First, would SR survive the rehabilitation process? If yes, secondly, would the parents survive the rehabilitation process? If yes, thirdly, would they produce parenting consistent with the needs of SR over the balance of her childhood? It seems to me, in a case such as this, it is always best to start by looking at things as they will appear to the child herself. All the adult analysis and debate and arcane recital of authority is wholly incomprehensible to her. The world, so far as she is concerned, looks very different. She was removed from her parents after two weeks at hospital. However, unlike the other children, she had had no adverse parental experience this being, as it were, a likelihood of harm case, rather than a harm case. From the 4th August 2011 to about the 19th November 2012 she was placed with a foster carer called Karen, to whom she clearly became securely attached over that period of time. Moreover during that time, she had what I am content to accept, was positive experience of parental contact. Her life changed dramatically on the 19th November 2012 because she had to break that secure attachment and re-form it with people who were, in effect, strangers to her. There is no doubt that she had some difficulties with that. There is no doubt they were only the kind of difficulties that anyone would have expected and there is no doubt that they were substantially overcome. As far as she is concerned, the last parental contact she had was a lifetime away and since then she has settled down and made her home and family with the prospective adopters. Her parents will perforce now be strangers to her. She has only one home and only one world and that includes, as everybody recognises it would include whatever happens to her, the extended family of those who care for her.
Looking at the change in the parents since the Placement Order had been made, these were considerable – in fact, this bit is quite remarkable – in effect their former social worker was their McKenzie Friend. That’s not something I’ve ever come across before and may never see again.
They have been assisted throughout by Mr Levers, who is a retired social worker, indeed was once social worker to this family, but that had ceased before any legal proceedings here started. He has manifestly, with his wife, been a tower of strength to the parents throughout these proceedings. He has afforded not just litigation but personal support and I am entirely satisfied that such support would continue unabated into the future, whether it is in supporting the parents in renewing their care of the child or supporting them in their grief in being deprived of the opportunity of doing that.
The changes they had made are delineated

If we come up to today’s date, everybody accepts that the parents are in a very different position indeed to the one that they were in, in July 2011 or indeed October 2012. They enrolled themselves in university courses at the Greenwich Business School at its Greenford Campus in West London. They have set up their own home in Hayes in West London, having moved up from Dorset and they have established for themselves all the appearances of a stable lifestyle in which studies are accommodated and part-time work ensures both that they have control of money and also their ability to live independently. Moreover, the mother has completed and benefitted from therapies which were designed to address the emotional dysfunction which she recognised she had. The father has clearly benefited from involvement in a domestic violence course and the very fact that he saw it through is good grounds for optimism and it has been not without its benefits to him. Both the parents are able to give an articulate and compelling account of the progress that they have made. Both parents acknowledge the need for further work if so advised, both in respect of couple counselling and in the respect of the mother for some more individual work
What then are the concerns that were raised in particular in the expert evidence about the parents? The expert evidence consisted of the clinical psychologist and an independent social worker, both of whom have provided extensive written reports and gave oral evidence at this hearing before me. Both of them acknowledge the parents have made very substantial progress since they, the experts, first dealt with them when they, the experts, were recommending the permanent removal of the older children. Both experts, in their written evidence at least, concluded that if the parents have another child, whilst an assessment may be needed, the child should not be removed from them while such an assessment took place, though it is only right to record that in this, as in pretty well every other matter of which she spoke, the psychologist became increasingly cautious as she gave oral evidence. However, said the experts, the real progress that has been made is not enough to justify attempting a rehabilitation of this child at this time. They contend that much work remains to be done. The psychologist in oral evidence, though I am not sure she had said it in her report, said that some of that work, quite a lot of it, would have to take place before a rehabilitation started. They both said that it was really impossible to assess the real risks involved in rehabilitation without there being some significant contact which could be observed and evaluated. Of course, everybody in the case accepts that contact is simply impracticable unless and until an order has been made refusing the adoption. Those of course are all matters that I must take into account. I was left with the impression, and I do not assert this because it was only an impression, that the psychologist became increasingly cautious once she realised that serious consideration was actually being given to the case that the parents were seeking to advance.

Now, there are two other matters which have been universally advanced as grounds for concern about the parents. The first of those is a failure by the parents to accept their responsibilities for what has happened in the past. Now, I am ready to accept that there is something in this concern because it is clear to me that they do not accept the full implications of Judge Bond’s judgment of the 1st July 2011. However, they have, by what they have done, shown a real awareness of deficiencies in their own parenting and personalities. They have demonstrated a serious commitment to the cause of endeavouring to improve themselves and I think I am not as troubled as others by their failure, as it were, to make unmitigated confession in respect of everything that has occurred. I am not saying there is not something in it, but the something that is in it that may be truly significant, is a failure to appreciate just how far they would have had to travel to get from the 1st July 2011 to the place where rehabilitation could begin. Secondly, it is said that they have failed to work honestly and openly with professionals. I fully accept, as I think do they, that there have been some examples of that but that needs to be qualified I think by two other observations. The first is that they have certainly not been amiss at making admissions contrary to their own interests from time to time during the course of these proceedings. How otherwise could they have, as it were, done what they have done to demonstrate a commitment to improvement? Secondly, I think they and the social worker were placed in a next to impossible position by a family placement and adoption officer being left with the responsibility for dealing with a case which was, in fact, all about a removal and rehabilitation. Adoption and placement officers have a very distinctive role to perform, which is based on the assumption that a decision has already been made that adoption is in the best interests of the child and their role is to procure that end. The social worker was being asked to do something that was completely counterintuitive and I am not surprised that she and the parents found relationships in those circumstances difficult. Nothing turns on this, in my judgment, but it was canvassed in the evidence so I think I ought to express the view that I attach no significance whatever to anything that was or was not said in the last interview between the social worker and the parents. If the purpose of an interview is to establish evidence it has to be properly noted at the time. I thought we had all learnt that by 1984 at the latest and, of course, if that is not the purpose and there are other purposes well of course nobody has to sit there poring over notebooks, but it was being used as though that were the purpose of the interview and it was wholly inadequate to achieve that end.

I recognise that there would be some risk of the parents being less than fully candid with a professional. However, it seems to me that the whole history of the case viewed in the round encourages one to the view that they would be in relation to things that really mattered and that such a risk, if all other things were equal, would be a risk worth accepting

 

That left the Court in a very difficult position

Everybody agrees that there are only two possible outcomes in this case. Either an adoption order is made with resultant devastation to the parents and their families or a rehabilitation order is made with subsequent devastation to innocent prospective adopters who took this child under a placement order without a hint, so far as they were concerned, that the thing could ever blow up on them.
Therefore, those seem to be the choices that confront the court and I must evaluate those with care, bearing in mind both the lifelong perspective required by Section 1(2), and also that this is not a choice in any real sense. This is a case in which an adoption order will only be made if only an adoption order will meet the welfare needs of this child and that the welfare needs of this child requires an adoption order be made. I evaluate it bearing in mind what Thorpe LJ said about the last hurdle being the highest, but I also bear in mind that at the end of the day, the legal burden to establish adoption lies not on the parents but on the prospective adopters.
I think, because it was clear how difficult a dilemma this was for the Judge, it would be fair to set out his conclusions in full rather than to condense them. I will simply say that if THESE parents were unable to succeed in opposing an adoption, before THIS Judge, I am not sure when (or indeed if) I will ever see a successfully opposed adoption. [I think it is something of a shame that Lady Hale’s “nothing else will do” formulation does not come into this exercise, because framed in that way, it is possible that a different conclusion might have been reached – it is almost impossible to say]

Therefore, let me start with my consideration of the merits and demerits of the rehabilitative process. I am satisfied that the parents have been committed to the concept of self-improvement. I can see the basis on which they say that they have achieved all that has been asked of them, but of course I have to remind myself that it is where you start that determines how far you have to go and doing all that you reasonably can may not in fact be to do enough. I need to remember, in the context of rehabilitation, where SR is at now, where the parents are at now and the full implications of what is involved in working out rehabilitation. Thus, if it were successful the child would grow up with the natural parents in settings in which the vast majority of children grow up and I recognise that it was always going to be the case that whichever choice the court made in this case, SR was going to grow up separate and apart from B, M and H. On the other hand, if the rehabilitation were unsuccessful, everybody agrees that would be a disaster for SR. Of course, no one can actually predict what would happen if the rehabilitation were unsuccessful but all the realistic possible outcomes merit the description ‘disaster’, so far as SR is concerned. Hence, the three questions that emerged. Would SR survive rehabilitation? Would the parents survive rehabilitation? Can the parents provide the necessary ongoing care for the next 15 and 16 years? Let us come to those questions in the context of considering rehabilitation. Would SR survive rehabilitation? Well, the short answer is nobody can give a confident answer to that because there can be no contact and because nobody would have any choice but simply to see what happened when you tried it. Secondly, it will of course be a second breaking of secure attachments and an attempt to make a third set of attachments. It would involve the burning of all boats, because the prospective adopters would not be available to her, in the light of a breakdown in rehabilitation and she would have to start all over again. It would mean a move to two people, i.e. the parents, who I think are emotionally more fragile that the prospective adopters and it would involve assessing that risk in the context of consequence. A modest risk that involves a serious consequence, should it come about, will invite much greater caution than the wider risk for which the consequences are predictable and manageable. This very firmly comes in the first of those categories. I confess to having very real fears for SR, should this process happen because, although the risk of failure is by no means certain, it is clearly real and the consequences are so serious.

The second question, would the parents survive the rehabilitative process? I have more confidence in that. Even if they underestimate the possible difficulties involved, they do appreciate that seriously troubled waters would lie ahead and they are willing to relocate and they are committed to the process, so that were SR to survive the process, then it seems to me it would be fair to conclude that the parents probably would. However, that then leaves the third question: would the parents provide ongoing care throughout this child’s childhood? The parents are confident that they could and I fully accept that that expression of confidence is genuine, in that it reflects what they feel and believe. I have to confess, however, that I do not fully share that confidence, partly because of their emotional fragility and partly because of their unknown capacity to react to what may be wholly unpredictable and quite irrational demands and responses of an upset child. This is a radically different state of affairs from dealing with a new baby, as we are dealing with a child that is attempting to make, and putting at risk, the third set of attachments in the first five years of her life. My confidence is inevitably dented by the gravity of the consequences of it all going wrong.

Now, what are the merits and demerits of adoption? Well, the demerits are clear enough. She will be deprived of being brought up, as the vast majority of children are brought up, by their own parents. That can lead, I fully recognise, to issues both in adolescent and adulthood because a child who will know what the background is will know that they are not being brought up in the way in which children are usually brought up. On the other hand, one has to recognise that a placement of a child of this age who has good attachments to the prospective adopters will, in the overwhelming number of cases, lead to at least a satisfactory outcome of family life. Now, of course, you can have both at the same time. You can have a satisfactory outcome with all the issues that adoption can raise in adolescence and adulthood and the fact that they have been brought up differently. The two are by no means exclusive and one has to consider them all together.

Having as it were, looked at the respective merits of the approaches, let me stand back and review all this through the prism of Section 1 of the Adoption and Children Act 2002. I remind myself that subsection (2) requires that the paramount consideration of the court must be the child’s welfare, throughout her life. I am anxious when I reread subsection (3) which says, ‘The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the children’s welfare.’ Well, it was once pointed out in the past that SR had been involved in litigation for the whole of her life after the first fortnight and that remains as true today as it was then. Mercifully, for one reason or another, she will not be conscious of the litigation that goes on at some distance from her own awareness, though she will be deeply conscious, if not able to articulate, the fact that she has had two moves, three homes during the course of her life, if you include the first fortnight as one of them, which I do.

So far as Section 1(4) is concerned it seems to me that the key aspects of it in this case are the child’s particular needs, in terms of security and stability, having regard to her life experiences to date and the child’s age, which has the effect of making it impossible for her to understand the adult world in which her future is caught up or to explain to that adult world the effect that that is having on her. I used the expression earlier that we are likely to see unpredictable and apparently irrational demands being made by a child who has no other capacity to communicate when distressed or confused by what is going on around her. There are two other aspects. First, one must consider the harm that she is at risk of suffering; that is entirely, in my judgment in this case, associated with the risk from a breakdown in rehabilitation and the emotional harm that will be occasioned by that. It would not however be right to part with the matter without, secondly, considering the requirements of subsection 1(4)(f) which provides as follows:

‘The relationship which the child has with relatives and with any other person in relation to whom the court considers the relationship to be relevant, including the likelihood of any such relationship continuing and the value to the child of its doing so, the ability and willingness of any of the child’s relatives or any such person to provide the child with a secure environment, in which the child can develop or otherwise meet the child’s needs and the wishes and feelings of any of the child’s relatives or any such person regarding the child.’
Now, that is drawn in very wide terms simply because adoption can arise out of a whole concatenation of circumstances which bear little or no relationship to one another, as between one case and another. However, it seems to me in the context of this case that the court, as part of the welfare and the judgment is to take account of the fact that we have parents who are willing to provide the child with a secure environment in which the child can develop or otherwise meet the child’s needs and what is in question is not their willingness but their ability to do so and that seems to me a matter on which the court should reflect. Secondly, the wishes and feelings of any of the child’s relatives regarding the child. I have only cursory evidence as to the input of the extended family but it is enough to suggest to me that the parents when they speak, speak with the support of their families and that therefore the wishes and feelings of the extended families and the parents are properly to be taken into account. The parents have demonstrated a commitment to the child which entitles them to have their wishes and feelings considered. Therefore, in my review of all this through the prism of Section 1, I have reminded myself of the need for a lifelong perspective. I have reminded myself I am dealing with a child with particular needs, in terms of stability and security. I have reminded myself that I am dealing with a child too young to understand the adult affairs that surround her and in which she is inevitably caught up. I remind myself that a breakdown in rehabilitation would, on anyone’s account, give rise to a risk of suffering harm and I have taken close account, I hope, of the ability and willingness of parents to provide for her and their wishes and feelings about that happening.

I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other’s predicaments. However, above all what is at stake for SR? There can be no blame attached to any of the four adults for why we have all ended up where we have. Nevertheless, a decision of profound significance has to be made. In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption. My real concerns about SR’s ability to survive the process of rehabilitation and the parents’ ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again. All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents’ consent. In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it. That said, those are the orders that I propose to make.

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Three months imprisonment for seeing your grand-daughter

Posted on June 5, 2014 by suesspiciousminds

 

Apologies for the Tabloid-esque heading, but it is a fairly succinct way of expressing the outcome of Derbyshire County Council v Kathleen Danby 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/B22.html

 

I know that for many of my regular contributors, the issue of commitals to prison for breaches of Court order are an emotive topic, and one can’t help but compare this sort of sentence with the sheets of criminal antecedents I regularly see where repeat offenders have convictions for burglary, theft, assaults, breaches of the peace, etc stretching to seven pages without spending any time at HerMajesty’s Pleasure.  On the other hand, if a Court makes an order to safeguard a vulnerable person and that order is breached, something has to happen to the person who breached the order, otherwise why bother making it.

I don’t have a solution here, but I have to wonder whether the sentences that are given for breaches of Court orders are somewhat out of kilter with sentences given for criminal  offences against children  (the grandmother in this case received a 3 month sentence for breaching a court order not to contact her granddaughter, and if she had instead been convicted of neglecting her the sentence would have been similar, when the latter would appear to most people to be the more serious issue)

 

I am mindful also that this is a sentence for an illicit contact in breach of a Court order, and the sentence is 3 months, in comparison to the six months that Mr Quasim Shah got for what seems to me to have been a much more serious (and possibly abusive) situation.  https://suesspiciousminds.com/2014/03/14/contempt-adult-breaching-a-recovery-order/    I would think that the general public, thinking about these two cases would have expected Mr Shah to have got a sentence much greater than twice what Ms Danby got for their relative transgressions.

 

Anyway, on with the case

 

The young person B, is 18 and has a learning disability. She had been the subject of care proceedings and is now the subject of Court of Protection proceedings. Within the latter set of proceedings, an order was made setting out things that her grandmother, Ms Danby, is prohibited from doing

 

“The Second Respondent Kathleen Danby is forbidden to do any of the following, either by herself or by instructing or encouraging another person to do so.

“(a) From approaching or attempting to approach B personally or through instructing and/or encouraging any other person so to do.

“(b) from communicating with B in any way whatsoever, whether in writing or by post, telephone, fax, text messaging, e-mail or any other form of telecommunication or information technology, including internet, video calling (i.e. Skype), whether directly or indirectly through another, save that she may receive a single telecommunication call from B on a loudspeaker and supervised by the local authority their servants and/or agents to take place on the first Wednesday of each calendar month between the hours seven o’clock p.m. and eight o’clock p.m. only in strict compliance with the declarations on the face and the schedule of the order of Her Honour Judge …” (it says “Taylor”) that should be “… Thomas of even date (annexed hereto).

“(c) For attending at, entering or attempting to enter or go within J town (the town in which B’s placement is situated) either personally or through instructing and/or encouraging any other person to do so.

“(d) From attending at, entering or attempting to enter or go within 100 metres of XCollege, either personally or through instructing and/or encouraging any other person to do so.

“(e) From loitering within a radius of 100 metres of Y placementeither personally or through instructing and/or encouraging any other person to do so.

“(f) From loitering within a radius of 100 metres X College, either personally or through instructing and/or encouraging any other person to do so.”

Ms Danby did not attend the committal hearing. She would have been entitled to do so, and entitled to free legal representation. I do not know why she did not attend and it would be wrong to speculate.

The Court heard evidence about three alleged breaches of that order

 

 

“In breach of paragraph 1(b) of the injunction order on or before 28th February 2014 Kathleen Danby through herself and/or instructed or encouraged another person contacted and/or communicated with B to arrange to meet her 28th February 2014 at or about 17.27 hours outside the Z public house, next door to Y Placement (the placement). 

“2. In breach of paragraph 1(a) of the injunction order on or about 28th February 2014 at or about 17.27 hours Kathleen Danby met with B at or about 17.27 hours outside the Z public house, which is adjacent to the driveway of B’s placement, and passed to B a package, who immediately concealed it about her person.

“3. In breach of paragraph 1(e) on or about 28th February 2014 at or about 17.23 hours loitered within 100 metres of Y placement with the intention of meeting of B.”

 

The Court heard, in relation to those matters, evidence that B had effectively given her carers the slip on 28th February and that CCTV footage showed her meeting with and talking to an elderly lady, identified by people who know her as being Kathleen Danby.  B returned to her carers very animated and talking about having seen her grandmother, and her behaviour was later adversely affected, including attempts to self-harm.

 

 

  • on 28th of February. On that day I am persuaded, not on a balance of probabilities but because I am certain, that B had a meeting with her grandmother. P.C. Hamilton has seized CCTV footage from the X public house which shows the road from the pub which is next to the driveway to Y Placement where B lives and he sets out what can be seen very clearly in his written evidence. He says this:

 

 

“I viewed the footage in a private office inside the pub. The footage shows a lady, who I can describe as being white, approximately sixty-five-years, approximately five foot four inches in height and had prominent white hair that is collar length. She enters the pub by the front door at 17.21 and camera 13. The footage then shows the lady walked to the rear of the pub and going to the toilets. The lady is then seen leave the pub by the front entrance at 17.23 and stand towards the edge of the camera footage close to the pub car park. At 17.27 B is then seen running towards the lady with arms open wide and immediately hugs the lady who is seen reciprocating. They then stand in the same position for a few minutes during which a car parks, pulling up, parking across the road. The lady and B then walk back up towards the pub entrance and some items are passed between the two.” [In fact I think it is one item that I saw]. “The lady is lastly seen handing something to B. The pair split up with B walking over to the car and the lady walked past the entrance to the pub, past the entrance to Y placement.”

 

  • He himself says he never had seen the original picture of Mrs. Danby, so he cannot personally identify her, but for reasons I shall come to it is clear that it is she.

 

 

 

  • What is also clear from that CCTV footage alone is that the lady concerned was loitering, as is complained of by the local authority, in the area nearby to the Y placement, so that of itself is of course partly a breach of the injunction.

 

 

 

  • I have said that this lady is the grandmother of B is absolutely clear. It is clear not just from the intimate way in which the two greeted each other and the passing of items, but because it is clear that B went on to describe the meeting to Mr A as being with her grandmother. For that night she was due to go out to another care home. She had been having difficulties with her co-resident and Mr. A was taking her to a different home for the evening to have time to cool down. He was waiting for a taxi to take them and at 5.30, approximately, he saw B speaking to an elderly woman. When the taxi came he called to her, but she did not initially come. He got in the taxi, it moved slightly along the road, then he shouted for her to come over and eventually she did and she came over to the taxi and got in.

 

 

 

  • He noted that for the rest of the evening that B was “hyper”, to use his word, but she said this to him: “I bet you’d like to know who that is.” And he said he didn’t. “No, that was my grandmother.” “Which grandmother?” “The one from Scotland.” “She’s come all that way?” “She came to see me.” It was thereafter for the rest of the night that B kept discussing both her grandmother and her father in considerable detail. Indeed, she had with her that night a DVD that her grandmother had previously supplied to her of her life going to school when she was a young girl.

 

 

 

  • So it would seem that B knew whom she was going to meet and knew precisely what was going to happen and so it is clear, in my judgment, that there had been a pre-arranged meeting. It is beyond mere coincidence that B should be in the street at the very same time as her grandmother from Scotland was in the area waiting too as if there was an appointment to meet. It must have been pre-arranged; it could not be a mere accident.

 

 

 

  • There is further corroboration for it being the grandmother in the evidence of Mr H for he says this on discussing matters with B on 4th of March.

 

 

“I then asked B about her meeting on 28th of February with her grandmother. B said her grandmother had come to see if she was okay and safe as F had told her grandmother she had previously absconded and been missing. I asked her if her grandmother had given her anything. She said she had not. I said the police had CCTV footage of the meeting and the police have stated that Mrs. Danby handed B an envelope/package which B then concealed in her top/jacket. She said the police were lying about this. She then became agitated and appears to be low in mood. She stated she did not want to talk further.”

 

  • P.C. Hamilton spoke to B on 1st of March. She denied seeing her grandmother then, though it is plain from what she said both the evening before and to Mr. H that she did. He noted that B’s behaviour has been deteriorating, even though, as the local beat bobby, he has noticed that she has become more settled generally whilst at Y Placement– in other words, it was the events of late February of this year that have made her more volatile and unpredictable.

 

 

 

  • Ms C tells me of further events on 2nd of March. B absconded again on that date and on 6th of March she absconded from a holiday in Rhyl in North Wales. She describes the recent behaviour of B as deteriorating and out of character. Evidence that is corroborated further by Mr. H and by Ms B.

 

 

 

  • So it is that in my view I can be satisfied beyond doubt, I am satisfied to the criminal standard of proof, that the breaches of injunction complained of by the local authority are all made out.

 

 

 

The Court satisfied itself to the criminal standard of proof that there had been a breach of the Court order, and went on to consider sentence

 

 

  • The evidence, as I observed at the final hearing of her future residence and care plans, pointed unequivocally for the need for her to have a period of peace from intervention in her life from her grandmother and her father, hence the final orders that I made.

 

 

 

  • I am sure, too, that the deterioration in her behaviour results from these meetings with her grandmother. Her behaviour has deteriorated; she has self-harmed; she has assaulted staff; she has threatened her co-resident and she has run away. Not in a sense that she disappears by being an hour late, which she does from time to time as is perhaps typical late teenage behaviour, but because she literally runs away and has to be found with the help of the police.

 

 

 

  • Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has.

 

 

 

  • I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment.

 

 

 

  • Miss Cavanagh has reminded me of the options available to me – although of course the local authority has not had the temerity to tell me what to do. I could impose a custodial sentence and then order the case to be listed before me for review. So, I could issue a warrant and then if this lady is arrested or on the review date, as the case maybe, the sentence can be reviewed and it can be reviewed downwards if I have a wrong impression of this lady’s attitude and approach.

 

 

 

  • In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months’ imprisonment concurrently.

 

Ms Danby would have the opportunity to come before the Court to ‘purge her contempt’  that is, to give an apology for her behaviour and an explanation for it, in the hope of the Court ending her sentence or reducing it. That may be more likely in this case because she did not attend.

 

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Private law appeal (unsuccessful)

Posted on June 5, 2014 by suesspiciousminds

The Court of Appeal have given judgment in Re H (Children) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/733.html

 

This relates to an appeal from the decision of Parker J to make an order transferring residence of three children from their mother’s care to their father’s care AT AN INTERIM STAGE – the case is not over and further steps are being taken prior to the final hearing of the private law applications.

 

The interim change of residence followed a finding of fact hearing in which the mother made very serious allegations about the father – including that he had raped her and hit the boys with a belt. The boys had made that allegation during police ABE (Achieving Best Evidence) interviews.

 

The Court of Appeal are quite right, to make sense of the appeal, one needs to look at the context of the litigation, which they set out in summary form

 

  • In order to make sense of what follows, it is necessary to set out the bare bones of the chronological history which catalogues the development of evidence with respect to each of these two core themes.

 

 

 

  • On 4th April 2013 the mother applied for an injunction against the father under the Family Law Act 1986 and made applications for residence and supervised contact orders with respect to the children. In her witness statement supporting those applications the mother did not complain that she was the victim of any physical or sexual violence from the father save for one occasion nearly twenty years earlier prior to their marriage. She did, however, allege that the father was highly controlling and threatening in his manner towards her and that he would regularly assault the children and, in particular, would take a belt to them if he considered that they had misbehaved. The father issued a counter application for contact and specific issue orders regarding the children’s schools.

 

 

 

  • The first court hearing took place on 15th April 2013 before DJ Hodges. At that hearing the mother’s position had changed from one of supporting supervised contact between the children and the father. Her case was that the elder boy, A, opposed the two younger children having direct contact with the father and the mother herself therefore opposed direct contact for any of the children. At the hearing the District Judge explicitly stated that the court would start with the presumption that children should grow up knowing both parents. Some 2 hours after the conclusion of that hearing the mother and A attended the local police station and made allegations about the father’s behaviour. The police record shows that, in addition to the allegations of violence towards the children, the mother alleged that the father had also been violent towards her, but that his abuse of her was “mostly emotional and sexual”.

 

 

 

  • On the following day, 16th April, police visited the mother and the children at the refuge. Notes of that visit indicate that C and A made allegations of physical assault by their father, but that these were not substantiated by B’s account. The mother’s complaint was of emotional and mental abuse. She made an historical allegation that he had raped her and she stated that he had physically abused her, but that this had not happened for some years. In subsequent police interviews (in April and in September) the mother came to make allegations of repeated rape and controlling behaviour.

 

 

 

  • On 23rd April A undertook a formal Achieving Best Evidence [“ABE”] interview with the police in which he made various allegations of physical assault by the father, including the use of a belt.

 

 

 

  • Matters then took a striking turn when, on 30th April, the father filed a statement exhibiting a number of notes and other documents written by the mother which described how she had herself been violent to the children, that she was unable to cope and was unable to control her consumption of alcohol.

 

 

 

  • At his subsequent police interview the father denied the allegations of rape, violence and controlling behaviour. He accepted that during one of A’s violent outbursts he had physically intervened.

 

 

 

  • The first hearing before Parker J took place on 7th May 2013 in which the judge heard oral evidence from the mother, father and paternal grandmother. The judge’s judgment on that occasion indicates that the background material produced by the father, originating as it did from the mother’s own hand, suggested that the father’s case that the mother was emotionally very troubled, was borne out. The judge said that the material that had been produced “worries me in the extreme, particularly the mother’s reference to drinking, Alcoholics Anonymous and being physically out of control with regard to the children”. The case was thus one in which allegations flowed in both directions.

 

 

 

  • Having heard the mother’s oral evidence with regard to the father’s behaviour and, in particular, his use of a belt on the children, the judge was plainly unimpressed with her credibility and stated “I thought that the mother’s evidence with regard to the belting was all over the shop to put it bluntly as to what actually she said had happened and what precisely she knew”. The judge was, however, plainly impressed with the “quite excellent” paternal grandmother who the judge described as being “true as steel, stout as oak”.

 

 

 

  • As a result of this, her first encounter with this case, the judge developed a very clear strategy as to the way forward. Whilst expressing concerns that the mother’s presentation, and the children’s allegations, might indicate that the children had become “recruited children”, in the sense that they had fallen in with their mother’s view of matters, the judge was prepared to accept, for the moment, that these matters were as a result of her troubled emotions and were not deliberate acts. The judge therefore ordered that the two younger children should be made available for contact with their father each Saturday during the day, but that all such contact should be supervised by the paternal grandmother and a paternal aunt. A was free to attend contact with his father and brothers should he desire. The judge fixed a further hearing for the end of June.

 

 

 

  • Three days later, on 10th May, the mother made a without notice application to stay the contact order. Fortunately it was possible for the father and his legal team to attend court on that hearing before Parker J, who, having heard the matter, dismissed the mother’s application. It is apparent that, again, the judge heard oral evidence from the mother on that occasion. The judge records the mother as saying that she was not relying on her serious allegations of domestic violence against herself and the children in opposing contact, but upon the need for the family to “heal” from the difficult marriage and marital circumstances and for the children to repair their relationship as siblings before contact could take place. The judge expressed great concern about what she perceived as the mother’s shifting stance in the proceedings, which did not demonstrate a solidly-founded mindset upon which the court could place any confidence. The mother’s application for a stay was founded upon A refusing point blank to attend any contact with the father and the younger children being said to be visibly upset and awake all night after being told of the proposal for contact. The judge on this second hearing expressed herself as having far more cause for concern as to the extent to which the children had been drawn into adult concerns and adult perceptions. The judge considered that the mother’s “havering and wavering about what her case actually is” supported her view that a firm grip was needed to be taken on contact before there was further opportunity for matters to deteriorate. The judge therefore repeated that she expected contact to take place in accordance with the order.

 

 

 

  • On 28th June all three children were interviewed by police and made allegations of violence against their father.

 

 

 

  • The judge had directed the local authority to provide a report pursuant to Children Act 1989, s 37. In that report, which is dated 26th July, the local authority recommended that no contact with the children’s father should take place “for the time being”.

 

 

 

  • At the end of September, and again in a revised document one week later, the mother filed a detailed schedule of allegations. That second (revised) document raised, for the first time during the court process, allegations of rape “on numerous occasions” from l992 onwards.

 

 

 

  • At this stage the father filed additional material including video, audio and photographic evidence which included a film apparently taken by A of a violent assault by C on B. It was apparent that the father was not present in the house and the children were in the care of the mother, who, apparently, can be seen ineffectually attempting to stop the assault and then leaving the room. This material was viewed by Parker J during a hearing on 29th October. That hearing, which had been intended to be a substantial fact finding process, was thwarted in two respects. Firstly, sadly, the mother’s father had died some five days earlier and she was not available to attend for all of the three or four day trial. Secondly, as a result of a failure by the police to respond to orders for disclosure, the court did not have access to key police records. The case was therefore adjourned part heard. However, at this hearing the court again heard evidence from the mother, father and paternal grandmother. In a short judgment given on 30th October the judge concluded that the risk of the children being put under pressure by the mother was very high in the light of the mother’s inability (apparently demonstrated in the witness box) to restrain herself in airing what she says about the father, including allegations of rape, in the children’s presence. The judge concluded that professionally supervised contact was not in the children’s interests, as there was a high risk that the children would understand that they should behave badly at contact so that this behaviour would be seen by the contact supervisors.

 

 

 

  • Although the judge was plain that the fact finding process was not concluded, and that she kept an open mind, she was struck by the fact that the two younger children had not made assertions of being belted by their father until after the judge herself had made her adverse comments relating to the mother’s oral evidence at the May hearing. The judge seriously entertained the view that the younger children may well have sought to provide corroboration for the allegations that were being made by picking up from the mother’s conversation, either directly with them or by overhearing what she said to A, what the issues in the case were. The judge therefore considered that contact should be reinstated to the father as soon as possible for the younger two children. The judge was clear that, because of A’s alliance with his mother, he should not attend those contact visits, but could, if he wished, have supervised contact with the father. The matter was set down to conclude the fact finding process at a two day hearing on 19th December.

 

 

 

  • Between the October and December hearings contact took place, but not without incident. It is not necessary to spell out the details, but in consequence of the difficulties on 4th December the father applied to enforce the contact order and applied for a residence order with respect to the two younger boys.

 

 

 

  • The fact finding hearing concluded on 19th and 20th December with judgment being given on Monday 23rd December. On the first day of the hearing the court ordered that B and C should stay overnight that night with the father. During their stay the two boys received a text message on their mobile phone from their elder brother A encouraging them to disrupt their time with the father. Part of the message read “fight, break stuff and argue to get out of this situation…you know what to do to get out of this situation…if you don’t act [F] will have custody of you after tomorrow. Good luck. Break, destroy and burn.”

 

 

 

  • At the conclusion of the hearing on 23rd December the judge made an immediate order transferring residence of the two younger boys to the father and making a residence order for A to the paternal grandmother. It is against those orders that the mother now seeks permission to appeal.

 

 

The appeal was centred around 3 issues

 

1. That the judge had come to conclusions prematurely about the allegations, making up her mind before hearing all of the evidence. In part because the earlier history of the litigation had set her mind against the mother’s allegations before the evidence was properly tested at a finding of fact hearing.

2. That in meeting the boys whilst the finding of fact hearing was going on, the exercise crossed from the appropriate one of familiarising the children with the Court and the process into an inappropriate one of gathering evidence  (I note, in passing that Parker J was of course the Judge who was recently criticised by the Court of Appeal for just this issue, having asked a child some 87 questions during an hour long interview http://www.familylore.co.uk/2014/05/re-kp-childs-meeting-with-judge-is-not.html )

 

3. That the Judge had decided that the case warranted an expert of particularly high calibre to assist, but then went on to decide that as the expert she had in mind was not available, no expert would be instructed.

 

[For my mind, looking at this purely from the outside, the third point is the best one, but relatively little was made of it]

 

Point 1 – the appellant claimed that the Judge had prematurely reached conclusions and as a result had curtailed mother’s ability to call witnesses and to put matters to those witnesses who had been called (regular readers will know that this is the Jones v NCB point – has the Judge ‘descended into the arena and become a participant in proceedings’ ?

 

This in part is complicated by the fact that the Judge had previously conducted a hearing in the case, and evidence had been heard during that hearing. Was the Judge entitled to rely on the impressions she formed of the evidence in the earlier hearings, thus allowing her to fairly restrict evidence and the extent of the evidence this time around? The Court of Appeal said yes, she was.

 

  • The range of detailed points about the judge’s conduct of the proceedings all, to a greater or lesser extent, come back to the central submission that the judge formed a premature conclusion on the factual material which was adverse to the mother’s case. That the judge had formed a preliminary view by, at the latest, the end of the October hearing, seems clear. In the light of that view, and conscious of the very tight timetable within which the December hearing had to be completed (given that the judgment was in fact handed down on the first day of the vacation), the judge may have been justified in excluding certain matters entirely from consideration in oral evidence, limiting the witnesses and the time available for cross-examination. On this point Mrs Crowley’s core submission is that the judge was wrong to use the early adverse view she had formed of the mother’s evidence to determine the allegations that had been made by each of the three children and to do so without a proper evaluation of the primary material that only became available to the court at the December hearing. That primary material comprised of the disclosure that was received from the police, including, importantly, the records of the various interviews undertaken by the children and the parents together with a DVD recording of A’s ABE interview. In particular, a point is made concerning the judge’s assumption that the younger boys only made allegations of physical assault by their father after Parker J had made adverse observations about the mother’s credibility at the May hearing. That assumption was shown to be erroneous with respect to C on disclosure by the police on the eve of the December hearing of a note of the interview with him undertaken by the police on 16th April. Mrs Crowley submits that the judge simply failed to engage with this new material and did not refer to it in the judgment.

 

 

 

  • In this respect Mrs Crowley is correct. At paragraph 63 of her December judgment the judge deals with the issue in this manner:

 

 

“I have thought very hard, notwithstanding the evidence that I have heard about good contact, whether there could have been incidents when the father had taken a belt to the children, whose behaviour was, as I have said, seriously out of control at this time. But as a result of the combination of the timing; the older boy’s assertions; the fact that the children were taken to the police station, as they must have been, in order to make this disclosure; the fact that I had made comments in my judgment only weeks previously about the lack of any assertion by the boys; I have come to the conclusion that I cannot place any reliance on these allegations. Also, the mother’s case about what she knew at the time has been markedly unreliable and inconsistent. She cannot possibly have not known about beatings at the time had they happened.”

 

  • It can be seen that the judge’s understanding of the timing of the boy’s allegations, coming after her adverse comments in the May judgment, is but one of the factors relied upon by the judge. It must also be borne in mind that the interview with the boys at the police station on 16th April, whilst happening prior to Parker J’s observations, took place within 24 hours of DJ Hodges indicating that the presumption would be for direct contact to take place.

 

 

 

  • In her skeleton argument in response to this application, Miss Pamela Scriven QC for the father submits that the premium now placed upon ensuring judicial continuity in these cases is partly justified by the fact that it is beneficial for a judge, over the course of successive hearings, to form a developing view of the evidence as it unfolds. I entirely agree with that submission, and Mrs Crowley does not seriously dispute it. It is, in my view, wholly artificial to regard one part of the series of hearings conducted in front of Parker J to be, in some manner, a free-standing, fact finding hearing in which the judge must ignore any previous views she had developed as a result of evidence heard on prior occasions. In a case such as this, where, fortunately, judicial continuity had been largely maintained, the proceedings before the judge, at successive hearings, should be regarded as one single process. Before the start of the December hearings this judge had heard the mother give oral evidence on three previous occasions. At the December hearing she received the material that had been disclosed by the police and watched A’s ABE interview.

 

 

 

  • In her judgment the judge rejected the allegations that were made by the mother having expressly referred, once again, to the “marked inconsistencies” in the mother’s accounts. With respect to A’s ABE interview the judge observed that his demeanour was “quite remarkably flat” with no sense at all of any emotional engagement. The judge observed that “there was every sense of giving an account which had been repeated, perhaps in his own mind, on many occasions, rather than being any form of spontaneous recall”. That description is not challenged within this appeal and we have not been invited to view the ABE interview ourselves. The judge concluded that the father may very well have been over-rough with A on one particular occasion, but she observed the difficulties in dealing with a child whose behaviour is physically very challenging.

 

 

 

  • The judge reviewed the evidence relating to allegations made by the boys more generally, and, in particular, about being hit by the father with a belt. I have already set out the judge’s conclusion on this point which is at paragraph 63 of her judgment. The reasons given by the judge, save for her misunderstanding as to the timing of the first allegations made by the younger boys, is supported by the evidence to which she refers and the conclusion to which she came was plainly open to her on that evidence.

 

 

 

  • Once it is established, as I consider it is, that the judge was entitled to form a preliminary view of the veracity of the mother’s core case following hearing her oral evidence at the two hearings in May, I consider that the criticisms of the robust case management that the judge undoubtedly deployed in December must fall away.

 

 

The nub of this is really the timing of the allegation that the father had hit the boys with a belt, which came right on the heels of  DJ Hodge telling the mother that direct contact would be in the interests of the children (no allegations of physical abuse were being made by mother at that hearing, but they emerged immediately after). At the fact finding all of the mother’s allegations were rejected, and Parker J reached a decision that the mother’s behaviour had gone beyond a misguided belief that the children were at risk or over-protectiveness and into darker areas.

 

The change of residence is interesting – the boys were expressing the view that they did not want to live with their father. The social worker did not support a move, nor did the Guardian. (note the criticisms below of the Guardian)

 

  • Neither the social worker nor the Children’s Guardian supported an immediate change of residence. In justifying her conclusion in favour of an immediate change of residence, the judge explained her reasons for disagreeing with these two professionals as follows:

 

 

“72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.

 

73. The Children’s Guardian also urged me to do nothing and not to intervene because of what the boys say they are not willing to see their father. She has done remarkably little as a Guardian. She has not read most of the papers, she hardly knows the boys. When it was put to her that if this was a case of parental manipulation and recruitment, then this could be or would be emotionally abusive to the boys, she took that on board seemingly, or at least superficially, but then said, “But the boys say they don’t want to go.” She was reminded that they were fine when they went on contact. “Oh,” she said, “but the boys don’t want to go.”

 

  • At paragraphs 74 to 76 the judge then set out her conclusions:

 

 

“74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.

75. I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation and the dangers presented to the younger children from the inappropriate power given to the eldest boy. I am in no doubt that the mother’s track record is such that she cannot safely have unsupervised contact to her two younger boys at the moment. Much though I would like to give these boys a Christmas as they want it, or as they believe they want it, it is unsafe for them to spend Christmas Day with their mother and her family. Quite apart from anything else, the mother accepts that the two younger children should spend Christmas with the father and his family. They should be told that that is now the parental agreed plan.

76. I am in no doubt that the boys must remain living with their father until this case can be looked at again. I see no chance of any significant change to divert me from that view. I am not inclined to bring this matter back before the circuit judge in January, when I am away, unless there is some emergency which needs to be dealt with. There does need to be some form of further investigation. I am not at the moment persuaded, particularly because an expert of proper calibre has not been identified, that there needs to be any form of psychological assessment. That simply detracts from the judicial role and, after all, it is not experts who make findings and decisions; it is the Court. I would like to see how things settle down.”

 

 

Point 2 – the Judge meeting with the boys

 

 

  • On the morning of the second day of the December hearing the judge conducted two judicial meetings with the children, firstly with the younger two and secondly with A. Depending on the circumstances of any given case, a judge may see a child for a variety of purposes. Such purposes are, however, likely to fall under one or both of two heads, namely providing an opportunity for the young person to say anything that they wish to say to the judge and, secondly, providing an opportunity for the judge to explain the process being undertaken by the court and to otherwise enhance the young person’s understanding of, and feeling of engagement with, the court proceedings. Judges are encouraged to adhere to the guidelines issued under the authority of the President of the Family Division by the Family Justice Council (Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010) [2010] 2 FLR 1872). The guidelines make it plain that a judicial meeting is not for the purposes of gathering evidence:

 

 

“It cannot be stressed too often that the child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the CAFCASS officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her”

 

  • It is clear that the meeting with the judge occurred in consequence of the judge’s conclusion that such a meeting was likely to be beneficial, rather than arising out of any request from any of the children. The judge indicated both at the October hearing and on the first day of the December hearing that she considered a meeting with the children was likely to be useful. Mrs Crowley submits, and the transcript supports her, that the meeting arose from a desire on the part of the judge to inform the children of the process and of the orders that might be made, rather than to ascertain their wishes and feelings, which were well recorded. On 19th December the judge told the parties that she perceived a need to be open with the children and to “put her cards on the table” at that stage of the process.

 

 

 

  • The judicial interviews were conducted entirely in accordance with the guidelines. The judge saw the boys in the court room, albeit no doubt in an informal configuration, so that the encounters were recorded and have been transcribed. She was accompanied by her usher, her clerk and the Children’s Guardian. First of all the judge saw the two younger boys together. In addition to hearing the boys give a short account of their wishes and feelings, and their reaction to spending the previous night in the father’s home, the judge used the encounter to describe the possibility that the court might order a change of residence and her expectation that the young people, as would be the case with the adult parties, would co-operate with her decision and abide by it. The boys were plain in stating that they did not want to go to live with their father. During the second interview with A the judge adopted an approach which was commensurate with his age and sought to explain to him that he was not “the man of the family” and that it was the grown ups who had to take responsibility for the arrangement of the affairs of the children.

 

Point 3 – the instruction of an expert

 

 

  • Given the extreme behaviour displayed on occasions by A and given the striking content of the mother’s own handwritten notes reflecting on her own behaviour and emotional stability, the question of whether or not the assistance of a child and adolescent psychiatrist or psychologist inevitably arose for consideration. On the first day of the hearing in December the judge indicated that an expert of a particularly high calibre was required. She indicated that she had a particular expert in mind, but, on the second day of the hearing the judge reported that she had made enquiries which had ascertained that that particular expert was not available to take this case on. The judge therefore concluded that no other expert should be considered and the case would proceed without additional expert involvement.

 

 

 

  • That sequence of events had initially been one of the grounds of appeal   [The Judge went on to grant an application in February 2014 for the instruction of a different expert, so that bit of the appeal falls away]  Although any appeal on the question of whether or not an expert should be instructed therefore falls away, Mrs Crowley criticises the judge’s approach to this matter, on the one hand considering that only an expert of high calibre should be instructed but, on the other, taking it upon herself to assess the situation. She submits that as indicating that the judge went outside the boundary of her judicial role in developing an analysis of the family dynamics which, wrongly it is submitted, supported the decision to make an immediate change of residence.

Even though that point did not have to be determined, since it had fallen away by that stage, the Court of Appeal still say that Parker J was entitled to make that decision and did not need to have expert evidence in order to make her decision that in the interim, the children should move from mother’s care to father’s care.

Although I understand the argument as is so clearly put by Mrs Crowley, I do not consider that the judge’s approach to this matter is open to that criticism. The residence arrangements that are currently in place are plainly interim arrangements pending the further assessment by Dr Asen and the further consideration of the court. Given that the judge was required to make findings of fact in December, and given that those findings were so adverse to the mother, the question naturally arose as to whether the children could be emotionally “safe” if they continued in their mother’s care after those adverse findings had been made. The judge having concluded that the allegations made by the boys were not grounded in reality, it was necessary to consider other explanations to explain the fact that the boys had nevertheless said what they had said to the police. Of the limited range of alternative explanations available, the judge’s conclusion, at that stage of this ongoing process, that the allegations in some manner arose out of a dysfunctional relationship with the mother is not, in my view, seriously open to challenge.

 

Any hearing where the allegations are as strong and vivid as this carries risk for both parents – if the Court finds mother’s allegations proven, then father will have difficulty in establishing any relationship with his children. If the Court finds that mother, as they did here, has made them up and drawn the children into a web of deceit, then a change of residence is a distinct possibility – by that time, the children having taken sides so manifestly are going to find a change of residence very difficult. And of course, worst-case scenario is that a Court eventually concludes that the children are so damaged and the parents so culpable that the children can live with neither parent.  Great care has to be taken over making allegations for tactical reasons, rather than raising  a genuine concern. If the concern is genuine, then it is vital to raise it early on in evidence, rather than filing statements that make no mention of something so serious.

 

 

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An answer to an important question you didn’t know you had

Posted on June 4, 2014 by suesspiciousminds

 

 

 

The High Court in Re A Father v SBC 2014 have answered a very important question, albeit one that probably hadn’t fluttered across most people’s consciousness

If a child is at home under a Care Order, and the Local Authority want to use their powers to remove, can the parents obtain a s8 Human Rights Act injunction to stop them?

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/6.html

 

[All underlining, as ever, as mine for emphasis]
As the High Court points out, the remedy ordinarily for a parent if the LA want to remove a child once a Care Order has been made is either an application to Discharge the Care Order or a judicial review, neither of which are that easy to get off the ground. And an application to discharge the care order won’t stop the LA removing in the interim.

The parents in this case made their application to discharge the care order, but knowing that the Local Authority proposed to remove the child before the case would be heard also made an application for an injunction under s8 of the Human Rights Act that would have prevented the removal.

They referred to the decision of the Court of Appeal in Re H (Children) 2011, in which a Judge granted an interim care order but ruled that removal of the child under that order would be a breach of the child’s article 8 right to private and family life. The Court of Appeal upheld that and said further that if the Judge had gone on to make the section 8 HRA injunction prohibiting removal there would have been jurisdiction for her to do so. This was, a very short judgment and the s8 HRA issue is dealt with very briefly, and in of course the context in that case that the Judge had already decided that it would be a breach of the child’s human rights to remove the child.

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1009.html
The Court in this case at first instance refused to make the injunction and did not consider that it had jurisdiction to do so, given that the LA were exercising a lawful power.
In his judgment, DJ Goddard recorded that the local authority had confirmed that the situation was not an emergency, although the problems were escalating. The judge continued:

“Father applied to discharge the order of 7th November 2012 and he is entitled to make an application and be heard on it. I do not feel that it is improper of me to give my view on the likelihood of success of this application as it plays on my decision. In my view, it is extremely unlikely that he will succeed to discharge the order.”
The judge then recorded that he had suggested that an injunction was the appropriate remedy and referred to the case or Re H. He then continued

“I am being asked to glean the arguments from Re H and apply them to this situation, to import injunctive relief rights into this case to prevent D being removed tomorrow. I have tremendous sympathy for the parents. D has lived with them since birth, they both have difficulties, and they have received lots of support. They were both properly represented and both have consented to the order of 7th November 2012. They never appealed this order. What I am being asked to do by the father’s solicitor, who argued very strongly for the parents, is to, in effect, go behind that order.
In the absence of the local authority agreeing to give some breathing space and time, I cannot go behind that order. In some ways I wish I had the power to do so. I wish I could persuade the local authority to grant further breathing space as there is no emergency event which has precipitated the local authority wanting to take D tomorrow. They say that the progress they hoped for 15 months ago has just not happened. In the absence of me being able to persuade the local authority to agree to such a window, I cannot grant injunctive relief. There will still be a hearing to deal with the application to discharge. My present view is the father’s application will not be successful.

With a lot of reluctance, I have to dismiss the application for an injunction. I cannot see that I can do anything else. In practice, in accordance with the order of 7th November 2012, and in line with the care plan, D will be removed tomorrow.”

He therefore refused the application for an injunction and also refused an application for permission to appeal. He granted the application for a recovery order under s.50.

On appeal, the High Court, in the form of Baker J, took a different view on the Court’s jurisdiction to make a s8 injunction in these circumstances, and went back to remarks that the House of Lords had made in the notorious ‘starred care plan’ case

It follows therefore, as confirmed by Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan).[2002] UKHL 10 [2002] 1 FLR 815 paragraph 49, that

“if a local authority conducts itself in a manner which infringes the article 8 rights of a parent or child, the court may grant appropriate relief on the application of a victim of the unlawful act.”
It is true that Lord Nicholls added, at paragraph 62:

“one would not expect proceedings to be launched under s.7 of the HRA 1998 until any other appropriate remedial routes have first been explored.”

 

Baker J made it plain that jurisdiction to make a s8 HRA injunction existed and could have been used in this case (pointing out that the other remedial routes theoretically available weren’t appropriate)

 

 

 

In this case I have sympathy for the district judge. It was he, not any of the parties, who first suggested that injunctive relief might be the appropriate remedy. He was then referred to only one case – Re H, supra – which is a brief report of an appeal against a circuit judge’s decision that she did not have jurisdiction to grant an injunction under s.8 HRA to restrain the local authority from removing a child under an interim care order. Before the Court of Appeal, the local authority conceded that the judge had misdirected herself. As a result of that concession, the court did not consider the jurisdiction in any detail. I do not think that the district judge in this case would have derived much assistance from that authority. He was then told that the parties had agreed that there was jurisdiction in the case before him to grant an injunction. Immediately afterwards, however, counsel for the local authority asserted that no injunction should be granted because removing the child would not be unlawful as human rights had been considered at the time the care order was made and upon the making of that order the responsibility for the child was removed from court and placed with the local authority. With respect to counsel then instructed for the local authority, that is not an accurate summary of the law. In fairness, I should record that she too was at a disadvantage having had no notice of an application for an injunction prior to the hearing.

In the circumstances, it was perhaps not surprising that the district judge concluded that he did not have the power to stop the local authority removing D. But in reaching that conclusion, he was in my judgment plainly wrong. He did have the power to grant an injunction, as has been clear since the House of Lords decision in Re S: Re W, supra.

It is extremely unfortunate that he was led into this error because it seems clear that, had he realised that he had the power to grant an injunction, he would have done so. Up to that point, D had always lived with his parents. The local authority had conceded that the circumstances did not amount to an emergency, and the judge said that he wished that he had the power to order the local authority to “give some breathing space and time”.

Baker J also drew together some observations of other Courts on the onerous decision-making process for a Local Authority in this type of situation (see particularly his reference to Re G below)

At paragraph 45 of Re G, Munby J spelt out the local authority’s obligations in clear terms:

“In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.”

 

 

and also brought Re B-S et al to bear on the process – which is something that none of the previous authorities about LA exercising powers under a Care Order had been able to consider, as it hadn’t existed at the time.

 

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.
In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

 

A lot of very important stuff there (as you can probably tell, because I’ve underlined nearly all of it)

1. The same threshold that applies to removing a child under an Interim Care Order (that the child’s safety requires immediate separation) applies to removal from home under a Care Order (unless you go through the process below)
2. The LA have to conduct the full-blown Re B-S analysis of the pros and cons of each option
3. The child should stay at home whilst that exercise is carried out – unless his safety requires immediate removal
4. The parents must be fully involved in the assessment and analysis process and their views taken into account – it almost reaches the point, pace Re G, of the LA holding something akin to a Meeting Before Action (how the funding would be triggered to get the parents legal representatives able to attend is a bit tricky)
5. A Court can make a s8 HRA injunction to prevent the removal if the parents challenge the removal and want the status quo to remain pending litigation of a discharge of care order application.

6. We don’t get to this bit just yet, but it is vital – unless the removal is because the child’s safety requires immediate separation, if an injunction is what it will take to make the LA desist from their plan of removal, an injunction SHOULD be made

 

As was pointed out to Baker J, care orders with children at home had been a fairly rare and unusual circumstance, but with these two factors :-

(a) The 26 week deadline meaning that cases are finished at an earlier stage and with residual doubts; and
(b) The Court of Appeal’s decision in Neath Port Talbot

The number of such cases has gone up and is likely to continue to go up. As the number of children at home under Care Orders go up, the number of children whom the Local Authority seek to remove under a Care Order goes up too. So this issue affects more and more children as time passes.

With that in mind then, the High Court gave guidance on how Courts should address such care plans in future (this stuff is HUGE)
To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

 

(Read the last bit again – the presumption is that the injunction should be granted UNLESS the LA are able to show that circumstances that would justify an immediate removal are made out)

I think that there is an argument that current Care Orders at home ought to be read as though that 14 day notice period save for emergencies is implicit in the care plan, given this authority. In all future cases, it needs to be explicit, and this is an issue that all professionals need to be alive to.
Funding is an issue for parents (compounded in this case because the father had been represented through the Official Solicitor in care proceedings, and thus making a HRA application on his own was clearly something that was beyond him, and he had been fortunate in having lawyers who were prepared to assist him pro-bono whilst waiting for the O/S to pick the case up.

this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

This problem is compounded in this case because of the learning difficulties of the parties and in particular the father. I have made observations in other cases about the obligation on all professionals in the family justice system to address the particular difficulties experienced by parents suffering from learning difficulties – see Kent CC v A Mother and others [2011] EWHC 402 (Fam) and Wiltshire Council v N [2013] EWHC 3502 (Fam). A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child.

On the basis of evidence at present available, it seems plain that the father lacks capacity to conduct litigation and therefore needs to be represented by a litigation friend. Such are the demands on the Official Solicitor’s time and resources that there is inevitably a delay in his deciding whether or not to accept instructions, and the fact that the father is not entitled to public funding adds to the complications. In this case, I hope that the Official Solicitor will give urgent consideration to accepting the invitation to act as litigation friend. The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.

I have drawn these concerns to the attention of the President of the Family Division. It may be that he considers that they are of sufficient importance to bring to the attention of the Family Justice Board and others responsible for the family justice system.

 

(As we know, the exceptional circumstances in which funding might be given under LASPO involve cases where failure to provide funding would result in a person’s human rights being breached – the High Court here have set up a situation in which the child’s article 8 rights would be breached, and given illustrations of how vital it is that parents are represented to fight those – as we know from Airey v Ireland, it is not sufficient for the State simply to say that the State has given a person rights, if the person can’t actually access them or exercise them. This is setting up a judicial review for the future, I suspect)

 

A key question here is, where does this leave Neath Port Talbot? If the major feature of a Care Order over a Supervision Order is the power for the LA to remove the child (or that implicit threat) and the power/threat is neutered, what on earth is the value of having a Care Order at home (other than duration – a Care Order can last until the child is 18, whereas a Supervision Order is limited to one year at a time, up to a maximum of three years)

For any Local Authority, they might as well have a Supervision Order and issue fresh care proceedings if they want to remove, as opposed to having a neutered Care Order.

 

An important case – I expect it to feature in the next view from the President.

 

 

 

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Getting an expert report in private law proceedings

Posted on May 28, 2014 by suesspiciousminds

 

The Court of Appeal (almost a year after the High Court ruled otherwise) have decided in JG v the Lord Chancellor and Others 2014, that a Court can lawfully decide that the costs of an expert report be bourne by one party (the one who is receiving public funding) rather than split between everyone.

 

I wrote about the original decision here https://suesspiciousminds.com/2013/04/11/not-with-a-bang-but-a-whimper/  with quite a bit of disappointment in my heart, so I am pleased that the Court of Appeal have taken a different view.

 

Quick bit of context first – up until LASPO  (Legal Aid, Sentencing and Prosecution of Offenders Act) came into force, most private law proceedings (i.e mum and dad arguing about where a child should live, or how much time the child should spend with each parent) had at least one of the parents, sometimes both, receiving legal aid (free legal advice). That legal aid could be used to pay for expert reports  – for example, if there was a dispute over paternity, a DNA test, if one person alleged the other had an alcohol or drug problem, testing, if the child was displaying unusual behaviour an expert to help understand that.

After LASPO, people now only get legal aid in exceptional circumstances  – it doesn’t matter if they are on benefits, or have learning difficulties, they won’t get legal aid unless they fit some very narrow prescribed criteria.

Next bit of context – in particularly tricky cases, the Court appoint a Guardian (which we call a Rule 16.4 Guardian, after the bit in the Family Procedure Rules that governs it) to assist the Court in reaching decisions. The Rule 16.4 Guardian GETS legal aid.

That led to a situation in which if an expert report was needed and the parents could not afford it, the Court would order that the costs be met entirely by the Rule 16.4 Guardian (and hence legal aid).  The Legal Aid Agency cottoned on to that, and started refusing to pay (even after the expert had done the report and the Guardian’s lawyers had written the expert the cheque, leaving the lawyers out of pocket and thus reluctant to take on such cases in the future).   One such refusal was judicially reviewed, and Ryder J (as he then was, he is now Ryder LJ) refused the judicial review and said that the Legal Aid Agency was entitled to take a position that any expert costs should be divided equally between all of the parties and that the costs should not all be loaded on to the Guardian’s public funding.   [It is a little like three people going out to dinner, and putting the bill on the person who has an Expense Account, if that makes sense, and then the firm paying the Expense Account saying  “Hey, we don’t mind paying for YOUR dinner, but not for the other two”]

Ryder J did say that in an exceptional case where the parent could not possibly pay anything towards the cost of the report, and the Court considered it was vital, things might have to be looked at differently.

So, the Court of Appeal disagreed with Ryder J’s decision – but not in a way that gives carte blanche for all reports to be loaded on to the Guardian’s public funding certificate (actually the Child’s) and the parents to pay nothing. It is a bit more nuanced than that.

http://www.familylaw.co.uk/articles/jg-v-the-lord-chancellor-and-others-2014-ewca-civ-656

 

There were basically two sides to this (because it had now become an issue about principle, rather than the parents own case) – the Law Society, arguing that the Court should have the power to decide how costs should be apportioned and particularly where failure to have the report would breach article 6 (right to fair trial) or article 8 (right to family life),  and the Lord Chancellor – arguing that this should only be in a situation where the Legal Aid Agency deemed itself that it was appropriate. It’s a fundamental question of who is in charge, the Court or the Legal Aid Agency.

 

Law Society to throw first

a) The appellant’s and the Law Society’s case on the general question
67. The appellant adopted the Law Society’s submissions on the general question. The Law Society submitted that where expert evidence was necessary in the circumstances set out in the question, the court should direct the child, through her guardian, to obtain the evidence and give the child permission to adduce it, although in instructing the expert, the guardian should normally seek to agree with the other parties, if possible, which expert is to be instructed and the instructions to be given to him. The court’s direction should be subject to any prior authorisation or increase in costs limitation that may be required for the purpose. The Law Society submitted that those responsible for administering legal aid could not refuse to give such approval as refusal would be incompatible with articles 6 and 8 of the ECHR and would deprive the court of the assistance it needs to enable it to determine what the welfare of the child requires, thus being “incompatible with the object and purpose of the legislation for the protection of children involved in private law family proceedings”. There is no point, submitted the Law Society, in funding the representation necessary to protect a child’s interests in the private law proceedings yet denying the funding required to enable the evidence to be provided that is necessary to establish what the child’s welfare requires.
68. It was submitted that a requirement, such as that favoured by Ryder J (see §§75 et seq of the judgment), for a “robust scrutiny of … means” with reference to a party’s financial eligibility for legal aid prior to the instruction of the expert would present the courts with a task for which, unlike the Legal Aid Agency, they are not equipped and which would import harmful delay whilst investigations were carried out. The Law Society’s proposal was therefore said to be a better alternative because the expert could be instructed without delay on the basis that the cost of the report could be met as a disbursement on the child’s certificate, leaving the parties’ respective liability for the fees to be dealt with by means of a costs order, if appropriate.

 

Lord Chancellor, you require forty  (sorry, to go next)

b) The Lord Chancellor’s case
69. The Lord Chancellor accepted that “if there were a case in which a report was genuinely sought by the publicly funded party alone, for reasons affecting that party, and the other parties did not agree with or seek to make use of the report, then the court might direct that the cost[s] were borne by that party alone and it would be legitimate for the legally aided party to bear the full costs of that report” (§61 of the Lord Chancellor’s skeleton argument). In those circumstances, he said, the legally aided party would have to formulate the instructions without the involvement of the other parties. That set of circumstances was not what he was addressing in his main submissions.
70. In cases where expert evidence was necessary but the report was not genuinely sought by the publicly funded party alone, the Lord Chancellor submitted that the judge’s solution, which had of course largely been put forward by him, was correct. Only in “very exceptional cases” could the court depart from the norm of a single joint expert whose fees would be apportioned equally between the parties, it was submitted. Two conditions had to be satisfied:
i) “a party’s means, assessed following a robust process, are such that he or she cannot afford to pay for his or her share of the report”
and
ii) “an order for equal apportionment would involve a breach of a party’s Convention rights in the family proceedings because it would prevent an expert report which the court considered necessary to the proper resolution of the case from being adduced”.
If the two conditions were satisfied, the Lord Chancellor’s case was that the court should still order a single joint expert but could visit a greater share of the costs on the legally aided party than normal, although whether the legally aided party would have to pay all the costs would depend on the circumstances.

 

The Court of Appeal then distil the arguments down to common ground and areas of difference

c) Points in common and points of difference
71. It can be seen that all parties agreed that there may be situations in which an order can be made which does not apportion the cost of an expert equally between the parties in a case. It was common ground that where this was a departure from the apportionment that would normally have been ordered, the justification for this would be that otherwise there would be a breach of a party’s Convention rights. It was also common ground that in these circumstances, section 22(4) would not present an obstacle to the order being made. The absolutist position which I think was adopted by the LSC in front of Ryder J, namely that there were no circumstances in which the LSC could be ordered to pay experts’ fees “beyond a proportion that represents the proportion of legally aided parties” (see §79 of Ryder J’s judgment), was not advanced before us.
72. Underlying matters of detail were not agreed. There was debate as to whether it was necessary to impose a requirement of exceptionality, as to when and how a party’s inability to pay should be established and, an allied question, as to whether the proper way in which to regulate the parties’ share of the fees was by regulating their contractual liability to the expert or by means of conventional costs orders. Another major difference between the parties was that the Lord Chancellor was wedded to the idea of a single joint expert (and utilised that as a significant part of the foundation for his arguments) whereas the other parties contemplated that the expert could be instructed by the child/guardian alone, albeit with input from the other parties to the instructions.

 

 

A major part of the argument was whether the report being commissioned was really one being commissioned solely on behalf of the Child, or whether it was really one for the benefit of all parties and just pretending to be a sole instruction to get the free funding   (To go back to the dinner analogy – was this really a business meeting that the Expense account could pay for legitimately, or were two people getting a free lunch?)

The Court of Appeal consider some hypothetical situations but eventually come down to this

 

84. Doing the best I can to forecast the sort of situations that may arise, it seems to me that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child, as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert’s instruction. Section 22(4) will then present no obstacle to the cost of the expert being met by the child’s public funding.

 

But going on to say that even if it is really a joint report, and the parents can’t pay, the Court still have to consider what is right and fair

 

When the expert is not solely the child’s expert
85. If the expert is not in fact the child’s expert but is a single joint expert, and the other parties are unable to contribute to the cost of the expert, it is necessary to consider in what circumstances public funds can be required to meet the whole cost. Once again, I will confine myself in this discussion to the current provisions of the 2010 Rules.

 

The Court then looked, in a lot of detail, about whether there was a presumption in law that any report would have the costs split equally –  there is a provision in the Family Procedure Rules that says that this is what will happen in the absence of the Court saying otherwise.  Does that mean that the Court have to have reasons for deviating from an equal split, or does it just mean that if the Court is silent, that’s what happens?

92. This provision received quite a lot of attention in argument in front of us. It is perhaps rather an odd provision to find in procedural rules, appearing to concern itself with the contractual relationship between the parties and the expert. It needs to be read with Rule 25.12(4)(a) which provides that the court may give directions about the expert’s fees and expenses. It is quite clear from that, and from its own terms, that Rule 25.12(6) is not intended to be prescriptive and merely establishes a default position as to liability to the expert in the event that the court does not direct otherwise. I do not see it as setting up a “normal rule” that the cost is to be apportioned equally, any more than the Calderdale case did.
93. None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to “the principles on which the discretion of [the] court is normally exercised” in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor’s submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of section 22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.

 

That’s quite dense, but basically, what the Court of Appeal say there is that there may be circumstances (even if there is no issue over the parties ABILITY to pay) where the costs of the report might be met by one party exclusively or where one party may make a larger share, and the Court has the legitimate power to do that.

[That, to make it explicit, is the Lord Chancellor losing an argument]

 

Next – what about a situation where the Court thinks that it is FAIR to split the costs equally, but one or more parties has resource issues (impecuniosity – or in layman’s terms, they are skint)

95. In the light of what I have said in the preceding section, I would reformulate the Lord Chancellor’s submission so that, rather than focussing upon whether the court can depart from equal apportionment of the expert’s fees, it focusses upon whether the court can depart from the order that it would have made but for the resources problem (to which I will refer in shorthand as “the normal order”). The Lord Chancellor sought to impose what, for the purposes of the discussion that follows, I will treat as three conditions for such a departure from the normal order although I accept that he may well not have intended the third one to be a condition as such. The three “conditions” are that it must be established that the other party could not pay his share of the cost; the normal order would involve a breach of a party’s Convention rights; and the case must be a “very exceptional” one.

 

Condition 1  (remember these are the conditions proposed by the Lord Chancellor) – an equal split would involve a breach of the party’s convention rights  – there’s a lot of this, so I have skipped to the conclusion

108. The Lord Chancellor’s argument seems to me to risk prejudicing the child in order to prevent a parent who is not otherwise entitled to legal aid deriving a benefit from a report which has been paid for by public funding. I have already emphasised that FPR 2010 acknowledge that a party may benefit from a report produced by another party’s expert without that expert becoming a joint expert. Anyone who has ever conducted or watched a successful cross-examination of an expert knows this perfectly well. The fact that a party who is not publicly funded will or may benefit from the expert’s input is likely to be a material factor in the court’s discretion as to the cost of the expert but it is not a reason to conclude, as I think is the conclusion to which the Lord Chancellor’s submissions would logically lead, that even though the child’s Convention rights would be violated by the inability to obtain the expert advice that the court had concluded was necessary to assist it, the expert could not be paid for on the child’s public funding certificate because that would benefit one or both of the parents as well.
109. It is as well to remember that cases in which the child is joined as a party are far from commonplace, as can be seen from the various provisions which I outlined earlier in this judgment starting at §39. They will be cases in which there are particular challenges in determining what is in the best interests of the child or in actually achieving the right solution in practice. The role of the child’s guardian is directed very firmly at achieving a resolution that is in the best interests of the child. His or her duties are defined and circumscribed as I have described earlier. His or her decisions must be made for the benefit of the child and he or she must make such investigations as are necessary to carry out his or her duties including obtaining such professional assistance as he or she thinks appropriate. By the time the guardian has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.

 

It will be necessary for the parties to persuade the Court that an equal split (if that means the report can’t be obtained) would result in an article 6 or article 8 breach, but that’s not as much of an uphill struggle as the Lord Chancellor would have hoped – the parties start partway up that hill.

I reckon the Lord Chancellor   (apologies for not continually putting that title in quotation marks, since he isn’t a Lord Chancellor in the way that any lawyer or historian would recognise the role) lost that one as well

 

b) A very exceptional case
110. It is understandable that the Lord Chancellor should seek to confine the cases in which the cost of the expert would be apportioned unequally to avoid a breach of Convention rights by stressing that this could apply only in “very exceptional cases”. This approach ties in with the language of section 10 of LASPO 2012. However, whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.

 

That’s an indisputable loss for the Lord Chancellor.

 

c) Impecuniosity
111. It was common ground that the court would not be considering departing from the normal order unless the parties who would normally have to share the cost of the expert were unable to do so. There was debate, however, as to when and how impecuniosity would be determined.

 

There’s a risk of course, that the Court spends so long gathering information about whether or not someone is genuinely impecunious (as opposed to not keen on paying £2000 for a share of a report, which would apply to pretty much everyone) that the child’s welfare is prejudiced by delay.  There’s a difficult balance to be struck here.

112. Ryder J held, accepting the Lord Chancellor’s submissions, that “a robust scrutiny” was required of the party’s means, and said that what was a robust scrutiny would depend on the circumstances of the case but “an important consideration …. should be the party’s eligibility for legal aid where that still exists” (§76). He considered that if the party would not qualify for legal aid on the basis of their means, that was a factor that should point very strongly in favour of that party having to pay their full share of the cost of an expert’s report whereas, in contrast, if the party would qualify for legal aid, it may suggest that they should pay less than a full share, although paying nothing at all should be exceptional, bearing in mind that legally aided parties often have to pay a contribution (§77).
113. A particular concern of the Law Society was that the assessment of impecuniosity should not delay the proceedings. They were right to be concerned about that. Section 1(2) CA 1989 (see above) requires the court to have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the child’s welfare. Furthermore, delay in resolving matters is capable, itself, of giving rise to breaches of Convention rights. What has happened in this case amply demonstrates that wrangles over the extent to which an expert’s costs should be met from public funds can introduce huge delay. The proceedings relating to this child were commenced in 2006, the guardian first sought a report in 2008 and the question of the payment of the expert remained unresolved in 2012 when we can see that the debate was impeding a final hearing of the case. It is quite possible that there were other problems as well as the expert’s fees but this is quite an indictment of the system. It leads me to the view that whatever system is operated must be one which is practical and not over technical and which avoids delay wherever possible.
114. The Law Society’s proposal that the child should be directed to obtain the expert evidence in the first instance with the ultimate liability for the expert’s fees being distributed between the parties by means of a costs order later in the proceedings therefore has considerable appeal.
115. The Lord Chancellor challenged it on a number of bases. Some of the arguments raised against the proposal amalgamated the issues of a breach of Convention rights and impecuniosity whereas I have dealt with these separately. Some covered the ground which I have examined when considering whether or not an expert is properly the child’s sole expert. I only reach the question of impecuniosity on the basis that the Lord Chancellor’s condition that the normal order would involve a breach of a party’s Convention rights is satisfied and, as I have explained, in my view there is no third condition of “exceptionality”
116. I sensed that an understandable concern of the Lord Chancellor was that joining the child as a party and using the child’s public funding to pay for an expert would become a widely used device – a back door to public funding for parents who would not otherwise have it – and I think he saw the Law Society’s proposed scheme as a way in which to have all the benefits of a single joint expert without the non-legally aided parties having to bear the cost. He did not, however, go so far as to suggest that only those who would in fact satisfy the financial criteria for legal aid should be treated as impecunious for the present purposes but submitted that eligibility might be a useful starting point and yardstick.
117. Ryder J also saw financial eligibility for legal aid as a relevant factor and I do not disagree. In my view, the Lord Chancellor was right not to argue that satisfying the financial eligibility criteria is a necessary qualification, not least because it may well place the family courts in considerable difficulty if they had to carry out the sort of detailed and technical assessment that the LSC would use to determine financial eligibility. The challenges facing the courts in private law cases in the new post-legal aid regime are evident and they are also working hard to process care cases with expedition. It is difficult to envisage them having the resources to assess a party’s eligibility for legal aid as the LSC would do, without seriously holding up the individual case or prejudicing the rest of their work or both. But in so far as financial eligibility can be ascertained, it must be relevant. If the party in question would not qualify for legal aid, that may count heavily against an argument that they could not pay their full share of the cost of the report whereas, conversely, if they would qualify, then that may suggest that they cannot pay a full share. As Ryder J rightly pointed out, it is not all or nothing. It may be that a party could not pay a full share but could pay something towards the expert’s costs, just as they could be required to pay a contribution towards their legal aid.
118. It is difficult to forecast what financial information will be available to the court and at what stage in the proceedings. There may be cases in which a party has already been assessed for financial eligibility for legal aid and no doubt it would be appropriate to have regard to the outcome of such an assessment in those cases. In some cases, as in the present case, financial information is available because there are or have been ancillary relief proceedings. In other cases, directions will have to be given to secure the necessary information from the parties.
119. The stage at which the court can reach a final determination as to whether a departure from the normal order is required for Convention reasons is likely therefore to vary, depending on the facts. There may be cases in which the decision can be taken before the expert is even instructed, with the parties’ shares of the cost being settled from the outset. There may be others in which that would or may import harmful delay into the proceedings and in which there is no option but to adopt the Law Society’s solution of requiring the guardian to instruct the expert in the first instance, but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. The court would, not, of course, embark on that route without some cogent evidence that the other parties would not be able to pay their way in the instruction.

 

I wouldn’t call that an outright victory for either side – it seems that before a Court decides that a party is impecunious (and thus couldn’t pay an equal share, and thus the report wouldn’t be obtained) it has to decide what information about finances is reasonable to inspect – if they can be obtained swiftly then it would be considered before the expert report is comissioned, if not, then the Court may make an order that the report be paid out of the Child’s public funding, and then remedy that with a later order once the financial information is available.

 

In the individual case, the Court of Appeal decided that it was right that the costs should have been met through the Child’s public funding /legal aid, and that they differed from Ryder J’s decision.

 

For broader cases, the Court of Appeal say this

 

132. I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out.

 

[All of this boils down to a Britney Spears type exhortation –  You want an expert? You want a 16.4 guardian? You want the costs of the expert to be paid by the child’s legal aid? You want the court to say you’re impecunious?   You better work bitch]

 

 

 

 

 

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