Category Archives: case law

Who’s surrey now ?

Posted on May 16, 2014 by suesspiciousminds

Apologies Surrey, you just happen to be one of the few Councils in the country that have a name that lends itself to song titles.

Surrey County Council v S 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/601.html

I’ll zip in and out of this one, because it is an appeal that raises only minor points (though they might BECOME more significant). This from Ryder LJ

As the judge records, the care proceedings were pursued at the final hearing on the basis of proposed care plans which included placement for adoption. There were no placement order proceedings before the court relating to the two children with whom this court is concerned and to date none have been issued. That is because the local authority’s ‘agency decision maker’ has not made the decision that is necessary to allow such proceedings to be issued. As I described in LB v LB Merton and LB (A Child) [2013] EWCA Civ 476, there is a statutory duty upon a local authority to make an application for a placement order in the circumstances set out in section 22 of the 2002 Act. By section 22(1) (c) and (d) those conditions were met in this case i.e. the local authority considered that the threshold conditions in section 31 of the 1989 Act were met and the local authority was satisfied that the children ought to be placed for adoption.

There was no reason why the local authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed ‘permanence report’ which describes the realistic placement options for the child including extended family and friends. The report describes the local authority’s assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an ‘annex A’ report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.

In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children’s guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker’s decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.

Local authorities should be astute to timetable the decision of the agency decision maker so that all matters can be put before the court together without delay. There is no reason why concurrent applications would have caused delay and indeed they must not. It would be wrong to delay a necessary decision about a child’s future. In this case, the local authority should have abided by the directions that the court gave which would have facilitated concurrent hearings. If as the local authority submit the mother was not co-operating in permitting medicals to be undertaken that are necessary for the agency decision maker’s decision, they should have obtained a court order requiring the same. If the placement order evidence had been available to the judge, the local authority’s case about adoption and the comparative exercise expected of the judge would have been much clearer. Although not relied upon by Judge Cushing, the absence of the agency decision maker’s decision in this case and the evidence that would have supported the same is an additional reason why it would have been disproportionate to approve a care plan with a view to adoption.

I am very aware that in making the additional observations that I have about placement order evidence, the statutory framework and regulations concerning adoptive placements are likely to change this summer. When section 22C(9A) of the 1989 Act comes into force there will be associated with it an amended regulatory regime which will require a different decision to be made by the director of children’s services of the local authority to permit the placement of a child with a local authority foster parent who is also a prospective adopter. Nothing I have said in this judgment touches upon how that decision is to be made or how and when evidence of that decision is to be presented to a court.

This raises two points

1. That the Court of Appeal have remembered the concept of inchoate care plans, finally ! And that the solution that was being mooted in various cases that in order to “hit 26 weeks” the Court hould make a Care Order and come back at a later point for a standalone SGO application (if the relative who came forward or the work to be done with parents panned out) or a standalone Placement Order application (if it doesn’t) is not procedurally fair (as I have been saying for over a year now)

2. That the CoA seem to want Local Authorities to lodge the Child Permanence Report alongside their other papers in the placement order application. Well, have fun reading them, Judges. If there’s a duller document outside leases, I’ve yet to read one (and bear in mind that I once worked in contract law and did liability shield clauses). It also isn’t going to do much for the much vaunted aim of slimming down the bundles.

Why might the first BECOME more important? Well, now that the Court of Appeal have frowned on finding of fact hearings for both physical injuries (fracture disputed by parents) and sexual allegations (sexual assault on 14 year old, disputed by parents), it looks like for those of us who are not Jo Delahunty QC, we are going to instead resolve all of the factual disputes at final hearing. Which means, care plans that are framed as several possible alternatives, which means applications to adjourn to give time to reflect on the judgment, time for risk assessments, time for treatment, time for separation to be effected and tested. So when that happens, and Judges start suggesting that all of that work should be done under a Care Order (finish the proceedings, come back if it all goes wrong), those passages might turn out to be extremely helpful. You’re welcome.

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Posted in adoption, case law and tagged care order and placement order should be done at same time, Court of Appeal, inchoate care plan, not fair to parent to have stand alone placement order proceedings, surrey county council v s 2014. Bookmark the permalink.

Extinction bursts

Posted on May 16, 2014 by suesspiciousminds

Northamptonshire NHS Trust v Another 2014
http://www.bailii.org/ew/cases/EWCOP/2014/2.html

This is a sad Court of Protection case, involving a young man named ML. ML had a variety of different needs :- severe learning disability, developmental disorder, autism, epilepsy and diabetes. He has very limited conventional skills of communication or social interaction.

As a result of this, his family reached the point where they needed some help. Three times per week he attends an Autistic Day Centre from 10.00am to 3.00pm, but otherwise lives with his family full-time.

The Trust made an application to the Court of Protection seeking a declaration that it would be in ML’s best interests to reside at Bestwood Hospital and get treatment there until he is in a position to return home.

All parties were agreed that this would be a deprivation of liberty (particularly following the Supreme Court’s decision in Cheshire) , and thus something that would need to be specifically authorised.
5. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met. If I accept the evidence of Susan Freeman, Nurse Consultant, ML is one of the most dangerous patients she has encountered still living within the community. She had, she told me, “only experienced one other person with more aggressive behaviour impact on others to the severity that ML’s does” and this was in the context of 30 Years of nursing people “whose behaviour challenges services” as she puts it. In her statement of the 31st January 2014 Ms. Freeman observed “I am a very experienced learning disability nurse. In all the years that I have been practicing ML is one of the most complex and challenging patients that I have been involved with, the range of his needs is quite vast”. Ms Freeman described ML as showing high levels of aggression “impacting on every area of his life and inhibiting appropriate health care intervention”. She believed his abilities were diminishing in an isolated routine. She said “If ML is not transferred out of his current environment and routines his world is going to continue to decrease”. ML’s diet said Ms Freeman was entirely unsatisfactory. By way of example she said ML ate only jam sandwiches and that little attempt was made to vary the diet. Certainly jam sandwiches, as Mr Weston, later confirmed were all ML ever ate at the Day Centre. I have heard in evidence that this resistance to new experiences, taste or routines is a feature of his autism, not uncommon at this severe end of the spectrum. Ms Freeman was uncompromising in her professional criticism of the National Autistic Society Day Centre. Their approach to ML’s care was she said “fundamentally flawed” it was “managing him at a distance” it involved withdrawing from him to avoid outbursts, it left him isolated and under stimulated and it served to reinforce his reliance on aggression.
6. In respect of the parents Ms Freeman said that they believe ML is simply unable to make progress or develop new skills. They are, she considered, over reliant on medication and believe its restorative powers will ultimately manage ML’s aggressive behaviours.
7. There was, however, a radically different picture of ML presented by other witnesses namely the parents, Ian Weston (the support worker at the NAS Day Centre) and Ms Heather Eyers.
8. It was not possible for the mother (EL) to come to London, it would have required an intolerable and unsustainable interruption to ML’s routine. I took her evidence by telephone link so all could hear it. She told me that she had made progress with ML’s diet, that he was now eating a broader range of foods: ‘pasties’, ‘crisps’, ‘sausages’ she said, by way of example, not particularly nutritious but an important improvement . She and her husband had attributed the peak in ML’s violent behaviour at the end of 2012 and early 2013 as being a consequence of his distress during his term as an inpatient in the Vale Hospital, where they considered he had been too readily ‘secluded’ (locked in a partially padded room) and for extended periods of time (4 ½ hours on one occasion). He had since calmed down and become more manageable. They had experienced no difficulty in managing him at home for months. Both parents said he was happy at home, well known and protected in their local community. He enjoyed seeing his brother and enjoyed the Day Centre. They have a padded room at home and both BL and EL told me that ML goes willingly to it when required. They simply do not see the extent of aggression that is attributed to ML and believe that the documented case gives only a partial picture. “We do not keep records at home”, they say. Moreover, they assert, the case papers inevitably concentrate on problem episodes rather than the many times when ML is relaxed and content. In their carefully presented closing submissions they undertook an analysis of the advantages of their proposals. It purported to be a comparative analysis but in truth, it was, understandably, largely one sided. They wish the present arrangements to continue and submit
Home / NAS Day Centre
i) We accept that there are no community living placements currently suitable for ML but there is no immediate need for ML to be moved from his family home. We are very happy for him to remain living here with us. We have managed to look after ML for 25 years and see no reason why we cannot continue to do so for the future.
ii) We are able to provide physical and medical care for ML. He is not disadvantaged in any way by living at home. We believe that we have the best understanding of ML’s medical needs having had to deal with them over his life.
iii) We believe that ML has gained enormously from moving back into his family home. He is happy and enjoys his life. He has daily contact with the outside world. His life is full and he is happy and secure in his routines.
iv) We believe that the work we have been doing at home with ML and the plans given in the recent NAS (National Autistic Society) witness statement give a solid base for work to develop ML’s functional skills using methods that take his autistic limitations into account. We believe this is likely to result in slow but steady progress for ML.
v) ML is an integral part of a loving family. We have always accepted his challenging behaviour and dealt with it. We have come through the difficult times with him and never gave up on him. We strongly believe that ML enjoys his family life and would want it to continue if he were able to choose.

Mr Weston comes out of this case with a considerable amount of credit, and the Judge had asked specifically to hear from him.

9. Having heard in evidence that ML had a particularly good relationship with his care assistant Ian Weston, I asked if Mr Weston could attend court because I hoped to be able to reconcile these differing accounts of ML’s general behaviour. Mr Weston could not have been more positive: he told me that ML enjoys walks but had, for example, easily been distracted from his usual routine when routes were impassable due to recent flooding. That was a good indicator of some of the progress being made he thought. He saw his role as “giving him the enjoyment that he needs”. I am impressed by the extent to which Mr Weston knew how ML was able to enjoy himself: ‘his Ipad’; ‘YouTube’, especially ‘Winnie the Pooh’ videos which he regularly enjoyed. He particularly likes swimming and likes Mr Weston repeatedly jumping into the pool. He enjoys the sound of the splash.
10. Mr Weston described how he had developed a habit for deflecting repeat requests for him to jump in and to which ML had responded. ML had learnt to dry himself which had always been a problem in the past he said. He was very clear that ML was much happier. Mr Weston was a tall well built man, both his stature and his contagious enthusiasm undoubtedly gave him an advantage over some of his colleagues. This was recognised and he was more regularly selected by the Day Centre to assist ML. It was made clear to me that one or two of the more diminutive assistants were less comfortable.
11. ML, it was agreed, likes “strong confident men”. I formed the view that whilst that strength and confidence was important it was not necessarily physical strength that he responded to (though that undoubtedly helps). He appears to respond to those he trusts well. I have seen photographs of him with his mother which reveal a capacity to display affection that the reports and evidence did not fully reveal to me.
12. All this said I note that on one very unfortunate visit to the swimming pool ML lashed out against Mr Weston, causing him to fall to the ground and crack two ribs. Mr Weston had to take some time off work. It did not deter him though and his relationship with ML has continued to flourish. Mr Weston knew that ML’s parents want to keep him at home and attending the Day Care Centre. I am clear that he intended to support them in his evidence. However, his commitment to ML and I thought real affection for him also communicated a sense of his own evaluation of ML’s potential. He seemed to me to be enthusiastic, to go beyond ‘keeping him happy’ and to bring him on. Mr Weston had, in my judgement, a strong sense that ML had greater potential than was being realised. Both ML and the NAS Day Centre are very fortunate to have Mr Weston. It was very clear to me why ML would respond to such enthusiasm and energy.

As part of the analysis of what ML might need in the future, the Judge wanted and needed to know more about the current assistance he is receiving. That seemingly innocuous enquiry led to an exploration of a short period ML had had in hospital, the Vale Hospital.

Ms Eyers, from the National Autistic Society had prepared a report about what the Day Centre were doing with ML, and the Court quoted extensively from it

16. In her report to the Court dated 11th February 2014, Ms Eyers evaluates the rationale and the success of the program. I propose to set her analysis out in full in order properly to do justice to it and so that it can address the criticisms made of it:
“The rationale of our current approach to behaviour support is to ask staff to leave at set intervals, so that ML’s need for time alone is respected before he has to present with physical aggression, which automatically causes the staff to withdraw. This approach aims to weaken the relationship between the presentation of the behaviour of concern and the reinforcer. This is achieved because the reinforcer is delivered independently of the presentation of the behaviour of concern. At the same time staff are modelling a more socially acceptable way for ML to communicate that he would like to spend time alone (waving of the hand). The full rationale is outlined in exhibit HE3.
Since the introduction of the behaviour support programme the day service has seen a drop in the amount of incidents to a maximum of 5 in one month, from up to 12 previously; with no incidents that have caused harm to others in a 3 month period. Analysis of the incident reports also indicates that the length of time of incidents has decreased from a maximum of 5 hours per day to a maximum 3 minutes. The intensity of incidents has also seen a decrease, with 55% of incidents post intervention requiring minimal response from his support team and not interrupting his activity, compared with 21% prior to the intervention – Exhibit HE4.
I feel that the current approach to supporting ML is successful, although it is slow paced, and we have seen a decrease in both the frequency and intensity of behaviours of concern and an increase in the amount of time that staff are spending in the space that has been dedicated to ML. It must be acknowledged that ML only currently spends 15 hours per week at the day service. The aims of the Behaviour Support Programme are now to increase the amount of time that staff are actively engaged in meaningful activity with ML – Exhibit HE5
In terms of the NAS continuing to support ML it is my opinion that whilst his levels of anxiety and physical aggression remain at current frequency and intensity then ML is not posing a high risk to those supporting him, himself or others who use the service. I would be cautious about using any other approach at the day service than the current Behaviour Support Programme, which relies on Non-contingent reinforcement, in which staff give ML structured periods of time when they are not in his company, as well as teaching functionally equivalent skills for him to tell us that he wants us to leave (rather than use of physical aggression), as this is having the affect of decreasing the number of incidents that ML is having, however it is a slow process and would need ML to continue to have his own safe space at the centre and to be more tolerant of staff before we can begin to look at preference assessment to find other activities that interest him.
The use of ‘extinction theory’ would not be appropriate at the day service due to the high risk of an ‘extinction burst’ challenging behaviour, the result of which would be of too high risk in this setting.
The NAS are committed to providing a good support service to ML and I do feel that once we have worked on his ability to tolerate others we can introduce a range of techniques to develop his functional skills and this will include :
i) Implementation of the Picture Exchange System to support his communication skills;
ii) Intensive interaction sessions to support development of his social interaction skills;
iii) Completing Sensory assessment and developing sensory based activities that meet his processing needs, especially in relation to tactile stimulation, olfactory stimulation and proprioceptive stimulation.
iv) Preference assessment to discover activities that interest and motive ML.

17. The Strategy referred to as ‘extinction theory’ has been the subject of much controversy in this case
Extinction theory and extinction bursts are a new concept to me, so I am grateful that the Judge explained it. There was a considerable schism between professionals in the case as to whether extinction theory would eventually bear fruit for ML and it was worth persevering through a difficult period, or whether it was harmful and wrong for ML.

24. An Extinction Burst is defined as follows:
“Extinction…. involves eliminating the reinforcement contingency maintaining a response which can result in … a temporary increase in the frequency, intensity or duration of the target response, also called ‘Extinction Bursts’ ” (Cooper, Heron and Heward, 1987 in Leman and Iawatu 1955).
I hesitate to attempt to reduce this concept into lay terms because, as has been emphasised, to do so runs the risk of oversimplifying what can be a subtle and complex process. Nonetheless, with that caveat in mind, it implies that if ML is confronted with something he does not like (stimuli of any kind) his fight instinct is aroused. The essence of the technique is to not respond in spite of the aggression and to continue the stimulus. It seems inevitable that until ML realises that his aggression is not causing the removal of the stimulus his aggression will accelerate. Breaking through this cycle, as I understand it, is termed the “extinction burst”. As ML recognised, he and EL are simply not able to manage this strategy. The reality (as opposed to the theory) is very painful and distressing both emotionally and likely physically too. BL told me he was profoundly afraid for his son, frightened about the technique and about the consequences if as he puts it “it all goes wrong”.
Part of the reason that ML’s family were worried that it would all go wrong, and opposed to ML being placed in hospital was the awful experience of his previous hospitalisation at the Vale.

25. ML was admitted between March and August 2012 as his parents were struggling to manage him. He returned having been discharged under the Mental Health Act 1983, pursuant to the discretionary powers of the Mental Health Review Tribunal in August 2012. It seems clear that the approach of the The Vale had been challenging and, had broadly, pursued the ‘extinction burst’ strategy that I have referred to above. It was a very difficult period for ML and his family. It was his parents who ultimately applied for his discharge under the Mental Health Act, which was opposed by the Trust.
26. In his 1st report, dated 24th October 2012, Dr Carpenter reviewed this period of admission. He saw no evidence that during the 5 months in hospital ML had learnt new self care skills sufficient to change his care needs. He observes
“In hospital he appears to have been restrained at length and this often disturbed him later, it certainly seems to have encouraged him to use his teeth to get away from being held…
He was then moved to another room to be secluded. My assessment is that as he had by then been in a struggling restraint for a period of time he enters the seclusion room very aroused and angry and then kicks and headbangs in a way that he was not prone to do – to the point of knocking himself unconscious and giving himself black eyes”.
27. In Dr Carpenter’s assessment, based on his review of the notes, the lengths of seclusion needed for ML to calm down were 10 times longer than they had been at home. Dr Carpenter also added:
“It is a challenge to find things that he enjoys. I feel we need to brainstorm the sensory likes he has and activities suitable for his development level“.
28. I endorse his last observation and I would emphasise it because, in different ways, every witness indentified the importance of this. Had there been a more collaborative approach amongst the professionals I suspect that much of this work would already have been done.
29. Annexed to Dr Carpenter’s report is a schedule headed ‘Hospital Seclusion record extracts’. I have found that to be a very disturbing document indeed. BL was unrepresented at this hearing and so I, on his behalf put this document under considerable forensic scrutiny. It is intrinsic to BL’s case that ML’s past treatment at the Vale Hospital has a direct bearing on future treatment and the declarations sought to enable such treatment to be implemented. Analysing carefully the periods of ‘seclusion’ whilst at the Vale Hospital is therefore crucial to this forensic process. BL is not a lawyer, he is a father. Though very effective in other aspects of the presentation of the case, the material relating to seclusion was something he found difficult to organise and evaluate. In my judgment that period was so full of pain for him as a father he could barely face revisiting it. His distress was visible despite his determination to remain controlled.
30. The way in which and the extent to which vulnerable adults are ‘secluded’ or deprived of their liberty is one of the indexes by which we measure our maturity as a democratic society. The necessity and proportionality of restriction of an individual’s personal autonomy requires constant vigilance and effective independent review. Both the framework of the Mental Health Act 1983 and the Mental Capacity Act 2005 are rigorous in affording a regime of both protection and review. Public funding for family members in both systems is rarely available and so they regularly appear unrepresented. This inevitably imposes an even greater burden on the offices of the Official Solicitor to ensure that those who they represent are fully protected. The enquiry into the extent and safety of ML’s detention in the Vale Hospital here was Judge led. It ought not to have been necessary for it to be so. The facts ought to have triggered, at very least, forensic curiosity. The Official Solicitor has provided, valuable assistance on the legal issues the case raises but the welfare investigation was, in my judgement, not sufficiently searching.
31. On the 10th April 2012 ML was kept in seclusion for 5 hours. That was unusual, but the records show that he was regularly secluded between 1 hr and 1hr 30 minutes.
That, if you missed it, was the Judge opening up a six pack of Whup-Ass. He was very unhappy about what the Vale had done, very unhappy that these awful facts came to light as a result of judicial investigation rather than had been presented directly to him, and was very unhappy that the Official Solicitor hadn’t found this stuff out.
The thrust was that “extinction theory” had been used on ML, with a view to when he was exposed to something he didn’t like and became aggressive rather than stopping the exposure, professionals would continue it and ignore the aggression, under the expectation that EVENTUALLY ML would learn that aggressive behaviour does not end up getting his needs met and he would move away from it as a strategy or technique. In practice, what happened was that ML got so aggressive that he had to be secluded, on one occasion for 5 hours but very often for about an hour.

This is what the Judge had to say about seclusion
32. ‘Seclusion’ is defined in the Mental Health Act Code of Practice
“15.43 Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.
15.44 Alternative terminology such as “therapeutic isolation”, “single-person wards” and “enforced segregation” should not be used to deprive patients of the safeguards established for the use of seclusion. All episodes which meet the definition in the previous paragraph must be treated as seclusion, regardless of the terminology used.”
33. Further features of the codes need to be highlighted:
“15.45 Seclusion should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed.
15.46 Seclusion of an informal patient should be taken as an indication of the need to consider formal detention.
15.47 Hospital policies should include clear written guidelines on the use of seclusion. Guidelines should:
• ensure the safety and wellbeing of the patient;
• ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place;
• distinguish between seclusion and psychological behaviour therapy interventions (such as “time out”);
• specify a suitable environment that takes account of the patient’s dignity and physical wellbeing;
• set out the roles and responsibilities of staff; and
• set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action.
So, having already established that seclusion is a last resort, should only be used for the shortest possible time and should not be used as part of a treatment programme or to manage self-harming behaviour, it was already pretty plain that it ought not to have been used on ML in this way.

It gets worse

35. Susan Freeman drew the hospital’s attention to what she considered to be inadequate padding to the door of the seclusion room. She is very experienced, she is, as is already evident from this judgment, forthright in her manner of expression. I should have thought that anyone hearing her views on this particular issue would have responded immediately and with some alarm. Astonishingly, and I do not use that word lightly, what followed was an email exchange that challenged the necessity of the additional padding largely on the grounds of expense. On one occasion ML knocked himself unconscious and on another may have sustained two black eyes. I say ‘may’ here because there is a possibility that the black and swollen eyes were the consequence of rubbing eyes affected by hay fever. ML is very resistant to physical examination and the Doctor who saw him was unable to come to a conclusion. Ms Freeman preferred the more benign explanation but with respect to her the proper course was to have remained open minded.
36. The fact of injury coupled with the frequency and the duration of some of the periods of seclusion is profoundly disturbing. The tardiness in responding to Ms Freeman’s concerns, (the padding was eventually rectified) and the reasoning behind the delay is to, my mind, unjustifiable. ML’s safety and his dignity were avoidably compromised. At the end of the case I heard from Mr Richard Mc Kendrick , the Chief Operating Officer of the Northamptonshire Healthcare NHS Foundation Trust. He had, I think, been present throughout most if not all of the evidence in this case.
37. He told me from the witness box:
“Hearing the evidence I share the concern expressed. I am very disappointed at the quality of care ML received at the Vale Hospital. I find it unacceptable. On behalf of the Trust I apologise to the L family for making mistakes and getting it wrong. In my experience, listening to and reading the evidence we should have been more proactive from the first point of ML’s head banging to ensure the seclusion room was safe and properly padded…. The whole circumstances of ML’s admission falls far short of the standards our staff and services aim to provide. I can only say the staff acted with good intentions but made mistakes. I apologise unreservedly on behalf of the Trust.”
38. Mr McKendrick went on in his evidence to state “I will take on board the lessons of this hearing to see that this does not happen again.”
39. That fulsome apology was well judged and nothing less would have been appropriate. When I heard it I asked BL for a response. He told me that he was ‘astonished’. He accepted it with dignity, though he commented that it was too late to afford him any reassurance.

In case you missed that, the Vale hospital who were secluding this young man because their use of extinction theory wasn’t working, in breach of the code of practice, didn’t have a properly padded room, and despite warnings that this was dangerous AND the young person injuring himself, did not resolve it because of cost issues.
[The Court weren’t dealing with any compensation claim on behalf of ML, though it appears to me that a lot of the essential ingredients are provided here. That decision not to resolve the padding on cost issues might turn out to be a very false economy]

Looking then, at the family’s objections to ML going into hospital, the Judge said this

40. BL feels that if ML goes into care at Bestwood for the lengthy period (18 – 24 months) contemplated, it will, because of his Autism, weaken his relationship with his family, who he does not respond to well out of the context of the home environment. It is distinctly possible he will not want to see them in hospital. If his behaviour were to deteriorate, as it did following the Vale admission, he would potentially be entirely unmanageable in the community (as Ms Freeman already feels he is) and there would in effect be no way back. ML would have lost the delicate security of the present status quo and be consigned to permanent institutional care. For BL that heartbreaking prospect is simply too great a risk.
41. I hope I have done proper justice to BL’s primary arguments. It is not difficult to see how in the light of the painful experience that Mr McKendrick has now acknowledged BL should be so deeply resistant to the care course planned. No parent or compassionate individual could fail to have anything other than profound sympathy for him and his wife.
To be quite honest, I would have stopped there, invited the Trust to devise a care plan that would support this young man at home and in his Day Centre, and made no deprivation of liberty declarations. I really wish that the Court had.

42. My responsibility is to identify what is in ML’s best interest, mindful that the course proposed by the Applicants undoubtedly, as all agree, amounts to a deprivation of liberty. As the Supreme Court has recently restated P (by his litigation friend the Official Solicitor v Cheshire West and Chester Council and another; PQ (by their litigation friend, the Official Solicitor v Surrey County Council [2014] UKSC19, “human rights have a universal character”. In determining best interests, I must be careful here to focus on what is right for ML by independently and dispassionately evaluating his personal situation. BL’s perception of best interests is relevant only in so far as he is a crucial component of any plan and as such any plan which has his whole hearted support is more likely to succeed. But BL’s views have no further weight than that. (See subsection 4 (7) (b) of the Mental Capacity Act 2005 which imposes an obligation to take into account, if it practicable and appropriate to consult them, the views of anyone engaged in caring for the person or interested in his welfare).
43. The forensic process in this court has not permitted any witness to seek refuge in any particular professional ideology. It has kept an intense focus on ML and what is right for him. In the end the picture that emerged is an amalgamation of the views, contributions and experiences of all the professionals, from the varying disciplines and, of course most importantly from the parents. As BL recognised there was ultimately a professional consensus, though not one to which he could subscribe.
44. The key milestones to my conclusions are as follows:
i) ML at 25 will at some point need to be afforded the opportunity of independent living, which will always require a support structure to underpin it. His parents will not be able to care for him for ever;
ii) It is important that any move is planned and not the result of crisis, either in ML’s behaviour or in his parents’ health or general situation;
iii) There is, when analysed, a consensus that ML has greater potential than his present situation is enabling him to realise;
iv) The objectives of any regime of care ought to aspire to the goal of achieving independent living.
v) That goal (iv) may not always mean that ML’s personal happiness is given priority; integral to improvement is challenge which by definition is not easy;
vi) ML has a strong relationship with his parents, sibling and other key figures in his life. This relationship with his loving and committed parents has given ML a template from which to forge other relationships, as has been seen at the NAS Day Centre. All agree that this capacity is a very encouraging prognostic indicator of ML’s capacity to develop strategies that will equip him better for independent living;
vii) It follows from (vi) above that in addressing the balance of risk in terms of likely outcome at the Bestwood Centre the preponderance of evidence is optimistic. This is of crucial importance when determining whether to retain the status quo or not;
viii) Bestwood is a quite extraordinary resource. It is regarded by all the experts as a centre of excellence. It is finely tailored to the needs of those in ML’s circumstances. BL makes a very telling acknowledgement that if it were convenient to their home, so that they could call in frequently, he would now be supportive of it;
ix) Bestwood is highly sought after by many patients, it is an expensive resource that rarely becomes available. It follows that if ML were moved in crisis it is highly unlikely to be available. Indeed this may be ML’s only chance to gain access to such provision;
x) Whilst the Vale Hospital was not best equipped to manage the ‘extinction burst’ approach, predicated on exposure to stimuli, Bestwood is streamlined to put it in place and fully equipped to do so. I am persuaded that such approach is the correct one for ML.

45. I am satisfied that it is in ML’s best interest to have this opportunity. There is no guarantee of success of course and I fully understand the parents anxiety. I have been struck by how similar their concerns are to the fears of every parent whose child leaves home on the first steps to independent living. I don’t intend in any way to trivialise the issues here by that observation nor to underestimate the impact of their bad experiences at the Vale Hospital. I say it because the sheer normality of their reaction signals to me that ML like any other young man is entitled to the opportunity to fulfil his potential, it is the opportunity and not the outcome that is his right. I would be failing to respect his personal integrity and autonomy if I did not afford him this chance. I hope BL and EL will embrace it.

[I don’t think that the Judge got this wrong, in an analytical sense, but I wish from a human perspective, he had reached a different conclusion]
There followed a very technical argument about the precise legal framework (basically, the Mental Health Act trumps the other regimes if it is accessible, so that was the regime that happened here). The Judge was obviously mindful that under the Mental Health Act, ML’s family could oppose detention under the nearest relative requirement and that an application MIGHT be made to displace them as nearest relatives.
83. For this reason I propose to take an unusual course. As I have foreshadowed above, any application to displace the nearest relative is to be reserved to me (upon the relevant authorisation to sit as a County Court Judge). I also propose to release this judgment to the President of the First Tier Tribunal with an invitation to him to allocate a judge of the First Tier to hear any applications in this case, to ensure judicial continuity. I will provide that a copy of this judgment follows this case.

Finally, there were some general case management observations
84. By way of a postscript I would add that I am delivering this judgment in early May having heard evidence and submissions in late February and early March. To accommodate the hearing of this case it was necessary to sit long hours and to overrun into the following case. No time was allocated to read the extensive papers in advance. Two volumes of authorities were presented in closing submission, and no time at all had been allocated to reflect on the submissions to write the judgment or to reflect on the submissions.
85. The consequence is that this judgment has been delayed to a degree that I consider to be quite unacceptable for ML. Those who practice within the Court of Protection must understand that it is part of the responsibility of the lawyers to ensure that there are realistic time estimates given to the court. The instinct to underestimate the timescale of a case in order that it might be heard more expeditiously is misconceived as this case certainly has proved. I make these observations because this case is far from an isolated example. That said I have received invaluable assistance from all Counsel to whom I am extremely grateful.

Lucy Series over at The Small Places has written about another case where the vulnerable person has been very badly let down by professionals

Another local authority behaving badly

and I agree with everything that she writes there. I am do not feel that in either case, quite enough attention went on what could be put in place to care and support these people living in their own homes rather than in institutions.

A Re B type judgment is overdue in Mental Capacity cases, that would put the emphasis squarely on making things work at home if at all possible.

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Posted in case law, court of protection and tagged court of protection, deprivation of liberty, extinction bursts, extinction theory, mental capacity act, mental health act, ml, northamptonshire nhs trust v another 2014. Bookmark the permalink.

popping your towel on a sunlounger to bask in English justice

Posted on May 15, 2014 by suesspiciousminds

Every once in a while, looking up from a life of flea-bites, crack cocaine and bureacracy, it is nice to see how the other half live. This post is sponsored by Dentists of England, as there may be some grinding of teeth amongst the readers.

Chai v Peng 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1519.html

These are divorce proceedings going on in the High Court. So far, the husband has spent about £1.1 million on lawyers, and the wife nearly £1.3 million. Thus far, they haven’t even resolved whether the divorce and financial proceedings will be heard in Malaysia or England. That’s right, they’ve spent nearly £2.5 million just arguing about where the argument will take place.

That includes a round-table meeting in Paris (although all of the lawyers are from London), which cost in total £88,000 and you have to inspect the judgment very very carefully to glean any constructive benefit out of that meeting

As an example, Mr Bishop instances the costs of the trip to Paris this very week. I have been told that the total amount to be billed by the husband’s solicitors, Payne Hicks Beach, will be £19,250 plus a small amount for hotel expenditure. Baroness Shackleton of Belgravia charged herself out at £620 an hour for ten hours, making £6,200. Her assistant, Mr Parry-Smith, was charged out at £245 for ten hours, making £2,450. Mr Bishop himself charged a fee of £10,000. There were some travelling costs totalling £650, making the total of £19,250. By contrast, on the wife’s side, the accountant employed by Vardags was charged out at £11,500; Mr Todd charged £25,200; Mr Yates charged £12,600, and the two solicitors from Vardags charged in aggregate £16,220. Those figures total £65,520. It is right to say that they are inclusive of VAT whereas no VAT was charged to the husband. Additionally, there were certain travel and hotel disbursements on the wife’s side making the total £68,000. So Mr Bishop says that if you compare the approximate £20,000 that the husband incurred on this day meeting in Paris with the £68,000 that the wife incurred, it really just goes to show how excessive and profligate her lawyers’ expenditure has been.

If you aren’t a family lawyer and are thinking how outrageous it is that your lawyer earns that sort of money, they don’t – your lawyer is as open-mouthed about those sums as you are. And is probably wishing that they hadn’t decided that ancillary relief sounded dull when they forged their career path.

[That did sidetrack me, on realising that the husband’s solicitor is a Baroness, to wondering whether in terms of etiquette the QC and perhaps even the Judge have to bow to the solicitor if she stands up… probably not in Court itself, but I wonder about how it all works elsewhere]

A lot of this particular hearing was taken up with an exceedingly technical matter – the wife had issued her petition here and there had been a huge dispute about the basis on which she claimed jurisdiction. Her lawyers, hoping to cut through some of that, had a redrafted petition, and wanted to ditch petition 1 and proceed with petition 2. It seems that there is not scope to withdraw a petition (fairly uniquely amongst litigation, almost any other application can be withdrawn) so effectively the Court would have to dismiss petition 1. The husband, though wanting the entireity of the divorce petitions in the UK to go away, didn’t want the wife to be able to ditch petition 1 (because presumably his argument on jurisdiction was stronger on petition 1)

This might be my favourite line of the week

By their written submissions and during the course of Mr Bishop’s oral submissions today, we have heard the familiar metaphors of floodgates, and coaches and horses, with some other metaphors, including trying to enter the proceedings by a different back door, and trying to reset the clock. The most colourful metaphor, in paragraph 47 of their written document, is as follows:

“To file prematurely is the equivalent of laying one’s towel at dawn upon the sun lounger of the English court and returning at high noon to bask in the warmth of the law of England and Wales on divorce and financial remedies.”

To be fair, whilst that line is brilliantly evocative, it probably cost the husband a few thousand pounds to draft and refine.

The thrust of the husband’s argument was that to allow mother to strike the first blow with a dodgy petition, and then having started proceedings in England on a flawed basis got to have another crack at it would be opening the door to “forum shoppers” (litigants who want to come to the UK for their divorce because there will be a more beneficial settlement)

But behind all these metaphors, the essential argument is that what the wife has done, and now seeks to do, is an abuse of the process, and that if I countenance it and give effect to it I would be opening the door or, indeed, floodgates, to a torrent of forum shopping divorce petitions or applications here. Mr Bishop said, indeed, that if I accede to this application I would become “the friend of the forum shopper”. I very much doubt whether there is currently any judge of the Family Division who is less of a friend of forum shoppers than myself. I have, I think, made very plain, even in my first judgment in this case, how much I deplore the legal manoeuvrings that are forum shopping at enormous expense, clogging up the courts, and deflecting from focus on the real issue of fair financial negotiation.

The Judge carefully looks at the arguments (which are technical even beyond the scope of this blog) and reaches this conclusion

I wish to make crystal clear that my decision in this case is utterly fact-specific to the facts and circumstances of this case and no other. I am not a friend of the forum shopper. I have not the slightest desire or intention of opening floodgates or driving perilously on a coach and horses. If I thought for one moment that the wife and/or her advisers had at any stage acted in bad faith, then, of course, I would take a very different view. Mr Bishop makes plain that he makes no allegation of bad faith against Vardags, nor of course against the wife’s team of barristers. But he does say that she has acted in bad faith and that she was deliberately placing her towel on the sun lounger long before she was entitled to do so, as she well knew. I repeat, there is not a word of evidence in this case by or on behalf of the husband. I do not have the least reason to conclude that when the petition was presented in February 2013 either the wife personally or her advisers were acting in bad faith, or intending to act abusively. No doubt they foresaw the possibility of a jurisdiction race and felt that there were advantages in rapidly petitioning here. But it was, and remains, her case that the jurisdictional bases were made out and it has not in any way been established that they were not.

In my view, on the facts and in the circumstances of the present case, no real question of principle arises despite the attractive and valiant arguments of Mr Bishop, Mrs. Bailey-Harris and Miss Cook. Rather, I do feel that in exercise of my own duties under the overriding objective and rule 1 of the Family Procedure Rules, I should enable the wife to do what she now seeks to do, which I hope at any rate may eliminate or narrow some of the areas in dispute. So, for those reasons, I do intend unconditionally to dismiss the present petition that was filed on 14^th February 2013 and the order must, of course, make express on its face that I do so without any adjudication whatsoever on any of the merits of any aspect of that petition, whether as to jurisdiction or the unreasonable behaviour alleged, or any other matters within it. I do not then need to say anything permissive at all for the wife to present a fresh petition, for she is simply enabled to go forthwith to the registry, pay the fee and do so.

The next issue was maintenance pending suit – in effect the wife taking money out of her share communal pot that would come to her eventually but were in husband’s control at present – this was to pay her legal costs. Her legal team asked for £100,000 per month, and an additional £115,000 to clear her outstanding balance.

Maybe this is my favourite line, it is hard to choose between this and sun-loungers

The original bid on behalf of the wife, in Mr Todd’s and Mr Yates’ skeleton argument, at paragraph 81, was for a little short of £100,000 per calendar month, or half a million pounds between now and the further hearing in October. That seems to me to be excessive and going beyond the bounds of what I can properly order having regard to the new legislation and earlier authority. In the light of an indication from me that I was unlikely to make an order in that sum, and indeed that if that was what Vardags and the present legal team required then the wife would have to consider instructing cheaper lawyers, Mr Todd revised his proposed figure this afternoon to £60,000 a month inclusive of VAT

It does occur to me that these plucky British lawyers are essentially liberating millions from the Malaysian economy (in the form of the husband’s assets) and ploughing them into the British economy – that’s an extra £30k tax per month for the British economy, not to mention that the £30k that is left will be spent by the lawyers on shopping, providing a valuable boost. They need to stop going to Paris though, that’s not helping.

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Posted in case law and tagged ancillary relief, chai v peng, forum shopping. Bookmark the permalink.

The Local Authority do have to participate in an appeal against orders they applied for

Posted on May 14, 2014 by suesspiciousminds

I’ll start with this caveat – this judgment involves a neighbouring Local Authority, and also involves members of the bar who I know, and members of the judiciary that I appear before. Writing about it then makes it difficult, without risking injured shins, hurt glances or lost readership.

So with that in mind, I will dispense with my usual snarky attitude and just give the facts and the principles (this case does have a few important things in it, which prevents me from just skipping over it, as was my first instinct)

Re S (Children W &T) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/638.html

This involved a finding of fact hearing about some very grave allegations of sexual abuse made by a fourteen year old, which had in turn implications for whether two much younger children might be at risk. Those allegations were firmly disputed. The Judge made the findings, and the mother and her partner (who was the subject of the findings) appealed.

The Court of Appeal begin (and end) with their views about the decision of the Local Authority not to participate in the appeal and to rather send in a document expressing that they were ‘neutral’. The Court of Appeal did not like that.

Before moving on, I would note that the judge’s order was made in care proceedings brought by the West Sussex County Council, based upon allegations of serious sexual abuse of a 14 year old girl. In a “Position Statement” dated 24 February 2014, the Council stated that they had been kept regularly updated by the solicitors for the mother on the progress of the appeal. In paragraph 2 of that statement, the following is to be found:

“West Sussex County Council has regularly confirmed in correspondence with the parties that it maintains a neutral stance in relation to the appeal by the mother and father. West Sussex County Council provides this position statement to formally confirm [sic] to the court this neutral stance.”

At the end of the statement, it is said that the Local Authority will be happy to reconsider the question of representation at the appeal hearing “if the court expresses a wish for West Sussex County Council to be represented at the hearing”.

To my mind, this statement fundamentally fails to grasp what were the proper roles of the local authority and of the court respectively in these appeal proceedings.

Having taken the decision to present these allegations to the judge and having secured findings of fact broadly along the lines that it was seeking below, the least the Local Authority could have done would have been to attend before the court to ensure that the findings were not disturbed to the potential prejudice of the children in this case, who the authority had been contending were at risk from what they said had happened to another young girl at the hands of these parents. Non-participation was not an option. It was never the function of the court to advise the parties, still less to advise upon the obvious, namely that the presence of the local authority was required. That was why Ryder LJ’s order (with which no doubt the local authority had been served) had directed an “inter partes” hearing.

After the grant of permission to appeal, at a hearing without notice to the potential respondents, the Lord/Lady Justices of the court do not see the papers in the case until a constitution to hear the appeal is identified and the papers are delivered, a matter of days before the hearing, to the assigned judges. For my part, at that late stage on the court’s designated reading day, I was merely puzzled as to why there was no sign of participation from the local authority. For the future, for my part, I would hope that this type of insouciance on the part of local authorities will be avoided.

and at the end, from the President

My final concern relates to what, I am bound to say, was the quite astonishing attitude to the appeal evinced by the local authority. It was neither present nor represented before us. Even more surprisingly it filed a remarkably perfunctory position statement which, without condescending to particulars, simply announced that “it maintains a neutral stance in relation to the appeal” and “in light of its neutral stance … has chosen not to file/serve a Respondents Notice.” I do not understand what the local authority thinks “neutrality” means. A guardian may on occasions, as indeed in the present case, appropriately maintain a stance of neutrality in relation to a fact-finding hearing. The guardian, after all, is not setting out to make a case and prove facts. The local authority, in contrast, had commenced the proceedings, had decided to make a number of allegations – as it happens very serious allegations – and had succeeded in persuading the judge that most of them were proved. How in the circumstances could the local authority be neutral? Had it suddenly become indifferent to the outcome? Surely not. The consequence is that the court was deprived of any assistance by way of response. Even if, in order to conserve taxpayers’ money (as the position statement said), it was appropriate not to send an advocate to attend the hearing, written submissions resisting the appeal and setting out, even if fairly briefly, why it was being said that the appeal should be rejected would surely have been of assistance. I add these observations by way of supplement to what McCombe LJ has already said on the point, comments with which I entirely agree.

Thus, principle number 1 of the case – Local Authorities need to play a part in the appeal as a respondent, whether they desire to or not.

Principle number 2 – we have a repeat of the clear message that fact-finding hearings are politely discouraged

My first concern relates to the decision that there should be a separate fact-finding hearing. I make no criticism of those involved, who were conforming with what was then understood to be appropriate practice. But for the future judges and practitioners considering the use of a separate fact-finding hearing in a care case must bear in mind the current approach, which is to discourage their use except in a relatively limited group of cases. In Re S, Cambridgeshire County Council v PS and others [2014] EWCA Civ 25, Ryder LJ made clear, para 29, that a split hearing in a care case will usually be appropriate only in either “the most simple cases where there [is] only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made” or “the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child.” He went on, “For almost all other cases, the procedure is inappropriate.” I agree. This is not the kind of case in which, in future, a split hearing should be ordered.

[I’m sorry, I have tried to do whatever the typing equivalent of biting your tongue is, but I am struggling]

Principle number 3 – a reminder of the importance of complying with Court orders – in this case, the order made that the Local Authority should produce and lodge for judicial approval a schedule of the findings that were made did not happen. That left the Court of Appeal looking at a schedule of findings that were the draft findings sought, and not a schedule of what the Court had actually found.

The simple fact is that, even now, the court’s order has not been complied with. Yet worse, there is, even now, no authentic, definitive, record of precisely what findings the judge made. This is simply shocking. It is, I regret to say, yet another manifestation of a deeply rooted culture in the family courts which I had occasion to condemn in Re W (A Child), Re H (Children) 2013] EWCA Civ 1177, paras 50-51: “the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts.” Despite our inquiries, I was left wholly unclear as to how this deplorable state of affairs had been allowed to persist for so long. It must be remedied without delay: the parties as soon as possible must put before the judge for her approval an agreed schedule of the findings she made. For the future, there must be no repetition.

Principle number 4 – the appeal turned in large part on the appellant’s claim (which was rejected) that the Judge in her interventions had ‘descended into the arena’

The lead case on this, as we know, is Jones v National Coal Board, way back to Lord Denning’s time.

“And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg. v Clewer. The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that : “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”

………

…..[I]t cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return.”

The shorthand for this is usually, has the Judge descended into the arena and started to participate in the litigation, rather than asking such questions as are needed for clarification.

The Court of Appeal in this case were clear that this Judge had not stepped over that line, but do add that where the witness being asked questions is vulnerable, it may be that a Judge has more leeway with the nature and type of interventions than with other witnesses.

The Court also suggest that as part of the new culture, Judges might well be more active in the proceedings than would have been at the time of Jones. But that if a Judge does overstep the mark, the Court of Appeal would intervene.

The first concerns reliance on Jones v NCB. That was a very extreme case on the facts. Moreover, since 1957 when that case was decided there has been a culture change in the conduct of litigation. More attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case. This is true both of civil litigation (see CPR Part 1.1) and family proceedings (see FPR Part 1.1). One of the corollaries of this new culture is that a judge is expected to take a more active part in the proceedings than would have been the case half a century ago: see Jemaldeen v A-Z Law Solicitors [2012] EWCA Civ 1431; [2013] CP Rep 8. That said, if a judge does overstep the mark, even in a family case, this court will intervene. Thus in Re J (A child) [2012] EWCA Civ 1231; [2013] 1 FLR 716 counsel was prevented from pursuing a line of relevant cross-examination. She rightly objected to the judge that she was being denied the opportunity to put her client’s case, but the judge did not accede to her objections. This court ordered a new trial.

This development is likely to crop up again, as one can see from reading paragraph 28 of the new Practice Direction 12J (dealing with fact-finding hearings in private law proceedings) to reflect the reality that in a post LASPO world, we are likely to have unrepresented parties cross-examining one another

Click to access PD12J.pdf

The relevant portions being:-

“Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances , in order to ensure both parties are able to give their best evidence”

That guidance does not refer to the principles in Jones v NCB, but they would probably be worth referring to before such an exercise occurred. It seems that this is likely to be a particularly difficult balancing act. As we know, in any finding of fact hearing, at least one party walks away unhappy, and if they are unhappy about the way the Judge conducted that questioning (either too harsh, or too soft, too long or too short) an appeal might well arise.

Principle 5 – there were a number of matters about the conduct of the hearing that the appellants sought to rely on, and each of those was quashed by the Court of Appeal, largely on the basis that applications were not made AT THE TIME about whether this particular course should or should not be followed. You do run the risk, if you bite your tongue and press on regardless, of not being able to rely on those case management decisions made by a Court in a later appeal.

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Posted in case law, fact finding and tagged Court of Appeal, discouraging finding of fact hearings, finding of fact hearings, jones v ncb, judges to conduct cross-examination in private law fact finding, judicial intervention, judicial questioning, local authority are not neutral in an appeal, local authority have to attend an appeal, re s (children w and t) 2014, re s children, re s children w & t 2014. Bookmark the permalink.

Role of the appellate Court

Posted on May 12, 2014 by suesspiciousminds

This case was decided in December but only just reported. It relates (of course) to an appeal arising from a failure of the Court at first instance to properly balance the issues and pros and cons in a Placement Order case.

Re B (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/565.html

This one is interesting because it involves an appeal initially from what was the Family Proceedings Court (and is now Tier One of the Family Court, or Tier Three of the Family Court, nobody seems absolutely sure whether a higher number is good, or bad, we just know that District Judges are in the middle and are Tier Two). It was one of my Burning Questions post Re B-S months ago, as to whether the expectations of Re B-S bore down on the Justices as they did on the Circuit Judge (which seems to be common sense, but there’s existing authority that you can’t expect the same degree of analysis and rigour from three lay Justices as from one Judge).

The first time this issue came up in appeal, it wasn’t decided because the Court of Appeal wisely and sagely decided that the Justices reasons were marvellous rather than flawed (one of those moments when you know you’ve lost your appeal in the first ten seconds), and the case wasn’t a reported one.

However, second time lucky

It is common ground that the FPC’s Reasons did not involve a sufficient analysis of the evidence that they had heard and read and in particular, did not set out with any sufficient particularity a welfare analysis which identified the benefits and detriments of the realistic welfare options. There was an insufficient proportionality evaluation that is, an evaluation of the interference with the article 8 ECHR [Convention] right to respect for family and private life that the local authority’s care plan and the court’s orders would involve. As I shall describe, in fairness to the magistrates, the evidence before the court did not contain the material that would have been necessary to conduct that analysis and evaluation. Furthermore, as the magistrates’ Reasons betrayed, the FPC adopted a ‘linear approach’ to decision making thereby excluding the parents as carers without any comparison of them with the other realistic options for B’s long term future care.

It is common ground in this appeal that Judge Clarke held and was entitled to hold that, among other errors, the FPC were wrong in law in the following respects:

i) they adopted a linear approach to their decision making;

ii) they failed to carry out a welfare analysis of the realistic options for B’s long term care; and

iii) they failed to conduct a proportionality evaluation of the proposed interference in the family life of B and his parents.

In this case and having regard to the first court’s Reasons, which this court has had the opportunity to consider, I can take these conclusions as read. Furthermore, it is not suggested that the magistrates’ failings led to their analysis and evaluation being other than wrong within the meaning of Lord Neuberger’s formulation at [93 (v) to (vii)] and [94] of In the Matter of B (A Child) [2013] UKSC 13 [Re B]. On that basis alone, it was open to Judge Clarke to have considered allowing the appeal and if she had set aside the orders, to have directed the applications be re-heard. She did not do that, but instead undertook her own welfare analysis and proportionality evaluation. Although that analysis is itself criticised for a lack of reasoning and detail in the necessary comparative exercise, the judge felt able to come to the same conclusion as the FPC and dismissed the appeal.

That’s pretty damn clear authority for the fact that Justices Facts and Reasons in an adoption case had better damn well cover all the requirements of Re B and Re B-S, otherwise they have done it wrong. [It has taken SIX MONTHS for any of my Burning Questions https://suesspiciousminds.com/2013/11/01/burning-questions/ to be answered, and now I’ve had two in a week]

Anyway, the Court of Appeal was far less interested in satisfying my innate curiousity and more interested in the actual appeal in question, which was – having found that the Justices had got their decision wrong on a number of levels, should the Circuit Judge who heard the appeal have sent the case for re-hearing, or just made the decision herself and done it right? What happened in this case was that the Judge did deliver a judgment, containing all of the necessary ingredients, had done the job properly and made orders, that the father, though Mr Weston QC appealed.

Mr Weston, for the father was arguing broadly that having not heard the evidence, the County Court ought to have stopped at the point where they resolved to grant the appeal and that the Justices reasons were so flawed as to make their decision wrong, and not go on to “fill in the gaps” themselves. And further that even if the Judge was right to attempt it as a general principle, to do so in this case ignored the gaps in the evidence that would make such a process unfair.

In this case, Judge Clarke held that the magistrates reasoning was insufficient and thereby wrong and the question arises whether a judge was permitted to ‘fill the gaps’, provide her own reasoning or substitute her reasons for those of the first court.

Mr Weston for the appellant makes a strong and clear case about what he submits was the irregularity of what happened. He submits that the judge rightly decided that the FPC had to consider the substance not just the letter of the statutory provisions. They had to undertake an analysis rather than pay lip service to the words. He submits that the FPC could not do that because the evidential materials were missing. Not only were they missing in the FPC, but at the hearing where the judge conducted her own analysis and evaluation, the evidence was still missing. Any new evidence relating to new issues of fact and changes of circumstance (and there was at least one new and potentially significant allegation that may have been relevant) or the implications of the same for the welfare analysis and proportionality evaluation, was also missing. Furthermore, the benefit of listening to and appraising the witnesses including the parents was lost in a procedure which was not a true re-hearing. Mr Weston accordingly submits that the procedure adopted was wrong and that its consequence was a welfare analysis and a proportionality evaluation that were inevitably flawed.

Mr Weston also submits that a judge conducting a review has a decision to make as respects any evidence that needs to be heard or re-heard when a determination is wrong as a matter of substantive or procedural law. He or she may conduct a limited re-hearing on a discrete point if the material exists to enable that to be done. That may involve considering an application to adduce additional evidence but in any event will involve a careful appraisal of whether the evidence exists to decide the issue in question and how that exercise is to be conducted to ensure procedural regularity.

Mr Weston’s final point is that the evidence in these proceedings was so defective on the point that it was not available to the judge to fill the gaps that existed. Accordingly, even if she had allowed the appeal and moved to re-hear the case, she could not have done so immediately without the benefit of case management to ensure that the court had the evidence that it needed to conduct its own analysis and evaluation.

Mr MacDonald like Mr Weston carefully identified the difference between a review and a re-hearing but was astute to identify cases in which a review and a re-hearing may be a continuum. He submitted, correctly, that the duty of the judge conducting a first appeal is to decide whether the proportionality evaluation of the first court was wrong. A proportionality evaluation is not a discretionary decision: it is either right or wrong and whether a decision based upon it should be set aside on appeal depends upon an analysis of the kind formulated by Lord Neuberger in Re B at [93] and [94]. Mr MacDonald submitted that the judge on appeal having identified the deficiencies in the first court’s decision making was obliged to consider whether the proportionality evaluation was thereby or in any event wrong. In an attractive submission he demonstrated that in every case where the first court has made an error in the welfare analysis (even where that analysis is based on a sufficient evidential base) the proportionality evaluation will be affected such that it may have to be re-made. He rhetorically asks the question whether in every such case the appeal court is required to remit the proceedings for a re-hearing when everything else in the case is intact and procedurally regular.

The continuum described by Mr MacDonald is very real in two senses: a) the welfare analysis and proportionality evaluation are intimately connected because an error in the analysis will inevitably have an effect on the evaluation with the consequence that an appeal court has to consider them together and b) the appellate court’s review of welfare and proportionality will involve having to consider whether there would be any difference in the ultimate conclusion, that is the order made, if the welfare analysis and proportionality evaluation were to be re-made. Aside from other considerations, that is because an appeal lies against an order and not the reasons for it (see Lake v Lake [1955] P 336). That at least involves, where practicable, a hypothetical exercise in seeing what the evaluation would be if it were to be re-made on a correct welfare basis.

Mr MacDonald acknowledged that the decision by an appeal court whether to re-make a welfare analysis and proportionality evaluation or remit for a re-hearing is itself a discretionary exercise. He identified the question which the appeal court needed to ask in relation to that discretionary exercise as being: “is the error rectifiable by the appeal court or is it too big?” That tends to suggest that there is an identity of approach by the appellant and the respondent to the question this court is asked to answer.

This is a big issue – if during the process of an appeal, the appellate Court is satisfied that the original decision was made wrongly, what are they supposed to do about it? Granting the appeal is easy, but that’s only half the story. Do you send it back for re-hearing, or give your own subsituted judgment addressing all of the issues? Which is the right thing to do? If either are possible in certain circumstances, what are those circumstances?

Conclusion in principle:

I have come to the following conclusion about the question asked of us. On an appellate review the judge’s first task is to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere. In public law family proceedings there is always a value judgment to be performed which is the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represents and accordingly there is a review to be undertaken about whether that judgment is right or wrong. Armed with the error identified, the judge then has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing. The judge has the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed. In the exercise of its discretion the court must keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which follows is procedurally regular, that is fair.

[Suesspicious Minds interruption – this is saying that the appellate Court have the power to do either – to remit for rehearing OR make their own decision, but they have to be sure that the course that they take is FAIR]

If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gives permission to be adduced and the reasons of the first court, the appeal court decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may be able to rectify the error by a procedurally fair process leading to the same determination as the first court. In such a circumstance, the order remains the same, the reasoning leading to the order has been added to or re-formulated but based on the evidence that exists and the appeal would be properly dismissed.

If the appeal court is faced with a lack of reasoning it is unlikely that the process I have described will be appropriate, although it has to be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning may be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in issue, then it is likely that the proceedings will need to be remitted to be re-heard. If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing. In any event, the re-hearing may require further case management.

The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.

Thus, if the error that led to the appeal is sufficiently narrow or discrete that the appellate Court can fairly make their own decision, then they can do so, but if it is wife and arises from missing evidence or the failure to answer a key question, or the credibility of witnesses is at issue, then a re-hearing would be the right outcome.

Application of the conclusion in this case:

Mr MacDonald’s primary submission is that at least initially Judge Clarke correctly identified what was required of her in this passage of her judgment at [50] that I have cited at [10] above. Later in judgment and perhaps as a consequence of a discussion on the transcript to which this court has been taken, Judge Clarke appeared to conflate the issues she had so carefully identified by regarding McFarlane LJ’s analysis in Re G at [69] as being a mandatory requirement to re-make a proportionality evaluation where errors are identified which vitiate a first court’s analysis. I do not read that part of McFarlane LJ’s judgment in that way. He was identifying the logical consequence that errors in the decision making process would necessarily have an effect on the proportionality evaluation rather than that in every case the appeal court should substitute its own proportionality evaluation for that of the first court. The latter formulation would be contrary to the dicta of the majority of the Supreme Court in Re B. Had Judge Clarke not been deflected from her task, she would have reached the point where the discretionary decision identified should have been made. Mr MacDonald submits that had she done so, she had all the material she needed to re-make the decision. He submits that the error of the FPC was not critical to the determination because the evidence existed in support of a welfare analysis and a proportionality evaluation that were and are coincident with the orders made by the FPC. To that extent, he says, the judge was able to fill-in the gaps and avoid a full re-hearing that would have involved inevitable delay. He has taken this court through the judge’s decision making process in an attempt to support the exercise she undertook.

The final evidence of the social worker does not include any welfare analysis or balance. It also fails to deal with why the adoption of B was necessary or required. The local authority’s permanence report which was exhibited to their Annex B report in support of the application for a placement order ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated. I need say no more than that both reports are poor and demonstrate a defective exercise in identifying the benefits and detriments for the child of the realistic long term options for the care of B. That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made. The revised care plans and statements of evidence filed after the local authority changed its mind contained statements relating to their concerns about whether the parents had the capability to work openly and honestly with them. Beyond that they are devoid of any welfare analysis of the alleged change of circumstances or of the options for the long term care of B. There is no evidence relating to the proportionality of the plan proposed.

Although the children’s guardian’s analysis makes reference to both exercises and supports the local authority’s plan for adoption, it likewise does not descend to an analysis of the welfare of B throughout his life except for just one opinion in one of 36 paragraphs where she says: “My own view until very recently was that this is a finely balanced case; although I had significant concerns about the parents’ ability to work in partnership with professionals. I balanced against that the potential loss to [B] of the opportunity to live in the care of his birth family if such an outcome could be achieved. I was particularly mindful of his right to family life and the loss to him of a relationship with his siblings.” So far as it goes, that is a relevant opinion, but in my judgment not a sufficient analysis for the purposes of the ACA 2002 or the authorities. There is no evidence directed specifically to why it is necessary to dispense with the consent of the parents to adoption.

With the benefit of access to the original evidence that this court has had, it is clear that that evidence could not in itself have supported the conclusions reached by the FPC had it been adopted as the reasoning for the same. In particular, there is no comparison of the benefits and detriments of the realistic welfare options for B upon which the FPC could have relied. In the absence of a sufficient welfare analysis by the FPC, there was simply no analysis at all. Accordingly, there was nothing of substance to be evaluated to decide whether or not it was proportionate. Judge Clarke did not hear any additional evidence with the consequence that the evidential basis for the orders remained as defective in the County Court as it had been in the FPC. No amount of elegant language could disguise that fact. It is of course open to a specialist judge to construct an analysis required by statute from the evidence of fact, expert opinion and evaluative judgment that she has heard and that is a distinct exercise from a professional assessment that is required because it is outwith the skill and expertise of the court: Re N-B (Children) (residence: expert evidence) [2002] EWCA Civ 1052, [2002] 3 FCR 259. In this case there was no evidential basis for that exercise.

Where the appeal court cannot comfortably fill the gaps in the analysis and evaluation of the first court and where as a matter of substantive or procedural law the decision has been demonstrated to be wrong, the appeal court should allow the appeal and remit the applications to be re-heard. There is a continuum between the functions of the appeal court to review the proceedings of the first court and to conduct discrete decision making functions that fill identified gaps in analysis or evaluation that represents an appropriate exercise provided it not be used so as to create a situation of procedural irregularity. It is not helpful for this court to be prescriptive. Each appeal will have its own matrix of fact and value judgments. In this appeal, the evidential shortcomings could not be corrected by what were no doubt the good intentions of the appeal judge.

At the conclusion of the appeal we allowed the appeal with reasons to follow. We set aside the care and placement orders and remitted the proceedings for a re-hearing of the welfare decision relating to B by a different judge in the County Court who had already been allocated to consider the local authority’s applications relating to the parents’ new baby.

That all seems perfectly proper to me, and it is nice to have it clarified. My suspicion is that we will see more re-hearings than substitutions of judgment. That does raise its own question, as to what happens with very time-sensitive decisions (like an ICO removal) where hearing-appeal-rehearing seems to build in quite a delay – and if the first court granted the removal, is the child to be returned after the successful appeal pending the rehearing? It will probably be case specific.

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Posted in adoption, case law and tagged appeal, appellate court, Court of Appeal, justices have to comply with re b-s, justices reasons, re b (a child) 2014, rehearing or fresh decision. Bookmark the permalink.

Thirteen year old has the capacity to terminate pregnancy

Posted on May 12, 2014 by suesspiciousminds

You may have encountered this one in the mainstream Press – even the Telegraph coverage was fairly low-key and restrained and came close to appreciating that we sometimes ask High Court Judges to make decisions that none of us would want to have to take. (Hopefully the Telegraph’s supply of raw steaks will arrive later in the week and normal service will be resumed)

The case is Re A (a child) 2014 (seriously truly, could not even a sentence in the Encylopedia Munbytanica of guidance we’ve had to swallow have covered “Judges, please give your cases names that drop a hint as to what they are about”? )

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1445.html

This was the High Court being asked to provide guidance on whether this SPECIFIC 13 year old had the capacity to consent to the termination of a pregnancy that she was asking to have. It doesn’t mean that all 13 year olds, or even an average 13 year old can agree to an abortion, it was dealing with a SPECIFIC child. Although of course in the process of answering that specific question, guidance for later cases does emerge.

The child A, was 21 weeks pregnant, and learned of the pregnancy 4 days earlier when her grandmother took her to the doctors. Now, where in a Court of Protection case, the Court would determine whether A has capacity, and if not, make a best interests decision, the High Court are in a different situation – they simply had to decide whether A had the capacity to make that decision for herself.

The Trust involved had tried to ascertain with A, what her understanding of the issues were

The previous meetings between A and the specialists revealed her to be uncommunicative and in the result a view was formed or, at the very least, a doubt was raised as to whether she had the necessary competence. At this point, I should explain what the legal test is for the necessary competence. It is set out in the well-known case of Gillick v West Norfolk and Wisbech Area Health Authority & Anr, [1986] 1 FLR 224 at page 239 in the speech of Lord Fraser Tullybelton where he stated:

“I conclude that there is no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve.”

The Trust has been represented before me by Mr Mylonas, QC and he agrees that if I am to determine that A does have sufficient understanding and intelligence to know what a termination would involve, then that is the end of the matter. The actual decision in Gillick concerned the provision of contraception. In that case, the attempt by Mrs Gillick to have declared unlawful a policy which would have permitted her children under the age of 16 to be given contraception was unsuccessful.

It is implicit in that decision that provided the child, under the age of 16, has sufficient understanding and intelligence, she can then be lawfully prescribed with contraception even if the result of that would lead her to take steps which are wholly contrary to her best interests. So, the question of best interests does not really inform the primary decision I have to make which is whether she has the necessary capacity.

The Judge took the unusual step of rather than attempting to summarise the evidence of the consultant psychiatrist, Dr Ganguly, he would instead annexe it to the judgment. It would therefore be wrong of me to try to summarise it, and as it is relatively short, I will set it out here

DR SAROJIT GANGULY (AFFIRMED) (Via Video link)

MR JUSTICE MOSTYN: Thank you very much. Dr Ganguly, I am the judge sitting in this court today. I just want to read out one very short passage from the famous decision of Gillick v West Norfolk & Wisbech Area Health Authority [1985], all right.

A. Yes.

MR JUSTICE MOSTYN: It is very short. It says this:

“There is no law which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve.”

A. That’s correct.

MR JUSTICE MOSTYN: That is the test.

A. Yes.

MR JUSTICE MOSTYN: Now you will be asked some questions by Mr Mylonas.

MR MYLONAS: Can I first of all ask you questions about your expertise, how long you have been a psychiatrist for and what your experience is of carrying out capacity assessments.

A. Sure. My name is Dr Sarojit Ganguly. I am a Member of the Royal College of Psychiatrists and I am on the specialist register for child adolescent psychiatry, so I am a child and adolescent psychiatrist. I have been in psychiatry for the last ten years or so and I have been a consultant in child and adolescent psychiatry for the last four months. I am employed by the Bradford District Care Trust.

Q. You have been involved with paediatric psychiatry. How often do you carry out assessments of capacity in children?

A. I have to say that this very formal setting, and I am being asked questions in a very formal court setting, I have not had occasion to give evidence in terms of capacity for a young person. But having said that, any kind of decision that we take, any kind of treatment that is undertaken for young people day in and day out, involves a capacity assessment as part of routine.

Q. When did you assess A — we will refer to her as A because we are sitting in open court and members of the press may attend?

A. I assessed her this morning.

Q. Where did that assessment take place?

A. This was at the Bradford Royal Infirmary at N4 Ward. That is one of the maternity wards in Bradford Royal Infirmary.

Q. How long did you speak to her?

A. We stayed for approximately 45 minutes.

Q. Had you had the opportunity to speak to any of the other family members?

A. That’s right. I had occasion to speak to A’s mum and her grand mum, and I also previously spoke to the social worker to ascertain the background of the situation and the case and to ascertain some of the history regarding A.

Q. When you spoke to A, did you form the view … what view did you form about her understanding of the pregnancy?

A. From what I observed today, she certainly had a good understanding of the fact that she was pregnant and what it involved. We had fairly extensive discussions … can you hear me?

MR JUSTICE MOSTYN: Yes; very clearly.

A. So we had fairly extensive discussions with regards to both the pregnancy and some of the options and she seemed to be really following the conversation quite clearly.

Q. Can I just ask some specific questions then?

A. Yes.

Q. And I want some understanding of the different options open to her. If she continues with the pregnancy, did you form a view that she understood what that would mean, both during the course of the pregnancy and after she had had the child?

A. Well, what she did tell me was that she wanted a termination of pregnancy and she said that the reason why she was saying that was that, in her view, she would not be able to cope with carrying on with the pregnancy and that she would be feeling stressed if she carried on with the pregnancy.

Q. That is a very helpful one sentence summary of her position. How much discussion was there between you about her desire to end the pregnancy?

A. Sure. Well, in the first instance she was asked about what her views were and she was clear and persistent throughout the interview in saying that she wanted a termination of pregnancy, that she did not want the baby, is the way that she put it I think. We communicated to her or we asked her … sorry, I will rephrase that. We went with her about the various options, including having a termination, continuing with the pregnancy, having the baby, having the baby taken away or perhaps rearing the child and she was able to, in my opinion, understand it because she was able to recount, she was able to tell us again, she was able to retain the information and tell us what these options were. So it would appear that she had a fair amount of understanding of what we were talking about.

Q. Can I move on then to deal with her understanding of what was involved in a termination.

A. Sure.

Q. Because what is involved in a pregnancy and the birth, the fact she would have a small child to look after is perhaps more obvious to a 13 year old girl than what is involved in a termination.

A. Yes.

Q. What did you explain to her about what was involved in a termination?

A. Sure. During this interview, the obstetrician, Dr Kukreja was also present and that was very helpful because she was able to go through in great detail about both the procedure and the risks and benefits of the procedure in question. Whilst these options were being discussed, she had sufficient option to check out anything that she did not understand and we tried to make the discussion child-friendly so that she would be able to understand the gist of what we were saying. So I think there was a fairly extensive discussion about what the termination of pregnancy involved in terms of both the process as well as the risks.

Q. Can I just compare that very important view with the information that is before the court arising from discussions with the paediatricians and obstetrician previously when it was suggested that A was not very communicative and that the provisional view was reached that there was some doubt about her ability to understand. It sounds as though she was much more communicative this morning?

A. I have not seen her prior to today morning but from what I have been told and having chatted with my colleagues, other clinical colleagues, yes, it would appear that … I can only suppose that this has been a particularly stressful week for her and from what I have been told by the other doctors, that she was definitely more communicative today than she was previously, bearing in mind that it was not … she still comes across as a very soft-spoken girl and one has to bear in mind that, you know, her age is such and the situation was such that she didn’t say a lot. But I think in my opinion she said enough to be able to communicate and to tell us clearly about what she wanted.

Q. Can I just go back then, when you talk about the discussions and the obstetrician having gone through the procedure in great detail, and any checking of it. Did you form a view about whether she understood what was being explained to her and understood the consequences of a termination?

A. It is difficult to exactly say whether she understood every nuance of the conversation, but it appeared as if she definitely got the gist and the main points of what was being discussed in that what the procedure would involve, for example, taking tablets, et cetera, in, for example, what would happen if it did not carry on according to plan, that some of the options that the doctors might have to go through. So these things I think in broad and general terms I think she understood. Whether she understood everything in great detail is questionable, because she is after all, 13 years old. So I would say that she understood the gist of it to the extent that it would be necessary for her to reach a decision.

Q. And fundamentally that, if she reached a decision to terminate the pregnancy, that she would no longer have the baby and there would be no prospect of her continuing with it?

A. Exactly that. Exactly that.

MR JUSTICE MOSTYN: Could you ask if she understood the risks of this surgery, what could go wrong?

MR MYLONAS: Doctor, you spoke about the obstetrician discussing the details with A, as part of that conversation, were the risks discussed as well, the risks of termination?

A. Yes, they were. There were a couple of things to direct here. I think what was being communicated very clearly was that under the circumstances, any course of action would carry a certain amount of risk and I am just putting, I am just basing my statement here from what I have heard from my other medical colleagues here, but my understanding from those conversations was that any course of any action, as in carrying on with the pregnancy or the termination of pregnancy, carried with them sufficient amount … sorry, it carried with them risks, and it would be difficult to actually say which one would be a more risk process actually. I think in the conversation with A, there was very clear communication about risks involved with the termination of pregnancy procedure.

Q. Thank you. His Lordship’s question was whether you thought she understood the risks that were being explained to her?

A. I think in general terms yes. I mean, for example, some of the things that the doctor was telling her was that, you know, if the medicines were not sufficiently successful, then she may have to stay in hospital, she might have to go through invasive procedures, there might be risks of infection, it might affect, for example, the prospects of having children subsequently. So actually, without going into too much detail, I think we had a fairly extensive discussion about the various risk elements, both immediate and subsequent. And in the room, of course, her mum and grandmother also at hand and they felt that the discussion was something that I think A was … she understood adequately.

Q. Can I just deal with two more issues? You have referred to mum and grandma being in the room with her and I know that she has been staying at home with her mum and possibly her grandma overnight. Did you form the view that her decision about the termination was her own wish or that she had been, perhaps, coerced or pressed into that decision by —

MR JUSTICE MOSTYN: Or influenced.

MR MYLONAS: — or influenced by her family?

A. We went into that specifically. We addressed that question specifically during our interview this morning and both A herself … I mean, A was clear in telling us that this decision was her own, that she had made up her mind. Independently, the mum and grandma said that they did not in any way coerce her into this decision. I would also like to point out that in the interview itself, I did not detect any obvious sign of distress from A’s part. She seemed calm, she seemed appropriate. Her responses, her eye contact and her speech seemed appropriate and I did not feel in my opinion, I did not detect any sign of distress or any suggestion that she might be either distressed or suffering from any acute mental illness for that matter.

MR JUSTICE MOSTYN: Right.

MR MYLONAS: There was only one other issue I just wanted to see if you could help us with, Doctor. You may want to address this because it was a primarily an assessment of capacity. One of the issues is about the impact of either a termination or continued pregnancy on A. Have you formed a view as to whether or not it would be in her best interests from her mental health perspective to continue or to end the pregnancy?

A. That is a very difficult thing to comment on you will appreciate. Having said that, one of the things that A specifically said when they asked her about why she wants not to have the baby, she said that having… continuing with the pregnancy or having the baby would, I quote, she said that “I will not be able to cope.” When I asked her what she meant by that, she said that she would feel too stressed. So I would assume from this response that in her mind, continuing with the pregnancy would be something that she would find distressing as to what effect directly it might have in terms of either the termination or the continuing of pregnancy. At this point in time it is difficult to assess because, as I said, in the interview as such, she presented as appropriate and there was no sign of distress. I have heard that she is generally a bubbly, happy child from what her parents tell me. So once again, it is difficult to say with certainty what the effect might be but from her own point of view, she communicated that it would be stressful to carry on with the pregnancy

Having heard that evidence, these were the Judge’s conclusions

he (Dr Ganguly) was clear that A had a very clear understanding of her position and of the options that were available to her. Those options, namely continuance of the pregnancy or its termination, were discussed.

Dr Ganguly was clear to me that she fully understood the implications of the options; the risks that were involved in relation to each option were explained to her and, in his opinion, she fully understood that. Although she was softly spoken, she was able to explain to him that her wish was to terminate the pregnancy as she felt that she could not cope with its continuance and it would stress her to a considerable degree. She was very clear in her understanding that whichever option she chose it would carry a certain amount of risk

Dr Ganguly was also clear that the decision that was reached by A was hers alone and was not the product of influence by adults in her family. Dr Ganguly did not detect in her any sign of distress when she set out her position to her.

On the basis of that evidence which, as I say, I have attempted to summarise, probably inadequately, I am completely satisfied that A has sufficient understanding and intelligence within Lord Fraser’s definition and I accordingly make a declaration to that effect. It will now be for A to decide what she wishes to do. Her present intention is to have a termination and, of course, if she goes down that route she must have it soon because the legal 24-week limit is fast approaching. If she decides to continue with the pregnancy, then I am expecting that her family and, indeed, Social Services will need to give her considerable support and assistance. It also goes without saying that should she go through with a termination her family will need to be at her side and to assist her and support her after what is inevitably going to be an unpleasant and traumatic experience.

All those latter comments of mine are irrelevant to the primary decision I have to make which is that I am satisfied that A has the necessary capacity to make her own decision. The consequence of that declaration is that if a termination is performed, there is no question of any liability, either civil or criminal, being imposed on the Trust or any of the clinicians who are involved in the procedure.

The Judge sat in open Court to give the judgment I am giving this judgment in open court. It is important that I begin with that statement so that anyone who later reads the transcript of this judgment understands that proceedings of this nature are not done in secret by some mysterious court determined to prevent the public from knowing what is being done in its name.

He did go on to make a Reporting Restriction Order preventing the child from being identified, for obvious reasons.

It appears that A had a very supportive family, who were going to be there for her and were not challenging her decision or her capacity to make that decision. That probably would not have materially affected the outcome, since as we know from Gillick, if the child has capacity to make her own decision, resistance from those who hold parental responsibility for her does not allow them to veto her decision. But as the Judge observed, this girl will need all of the love and support of her family in what is bound to be an emotional and painful time.

The Judge shied away from setting a specific set of capacity questions on consent to an abortion, focussing instead on whether she understood what was being explained to her and was weighing it up against what she felt was best for her (this seems to be in the spirit of the new approach – there was a Court of Appeal decision from the Court of Protection last week RB v Brighton and Hove City Council 2014 [Suesspicious Minds was not involved in the case in any way] http://www.bailii.org/ew/cases/EWCA/Civ/2014/561.html where the Court of Appeal were deprecating the concept of professionals on the ground having to ascertain capacity with reference to volumes of caselaw rather than the principles of the Act itself)

As I said at the outset, we have to be mindful that we as a Society end up giving responsibility to High Court Judges to make decisions where there is no easy answer and there was going to be a sad outcome in either course of action. I think this Judge was careful, courteous, thoughtful and kind.

I hope that this never comes up, but I imagine that a Trust would have a very difficult time, ethically speaking if a 13 year old who lacked capacity but was clearly saying “No” to a termination was having consent exercised on her behalf by parents saying “yes”. I hope that I never have to read a judgment like that, because it would be an awful situation for everyone. As a matter of law, the parents would have the right to consent, but the doctors are not necessarily obliged to provide the operation. I don’t think that a Court could compel them.

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Posted in case law, court of protection and tagged abortion, competent 13 year old consenting to abortion, consent to abortion, gillick, re a (a child) 2014, termination. Bookmark the permalink.

Special Guardianship versus adoption

Posted on May 10, 2014 by suesspiciousminds

Ever since Re B-S, there has been a potential issue for the Courts to resolve – given that Re B-S talks about the test in leave to oppose being not about whether a parent might get the child back necessarily but about whether the Court might make an order OTHER THAN Adoption, with the test for making an adoption order still being ‘nothing else will do’ – what happens if a parent invites the Court to leave the child in the placement, but make a Special Guardianship Order rather than an adoption order?

Why does it matter? Well, if you are a prospective adopter about to commit to taking on a child, you might need to know that you might not get to adopt the child after all, if you are someone who already has a child placed with them that you were intending to adopt, it might be that you will end up with an SGO instead, and if you are a birth parent who wants to stop the adoption happening you would want to know whether the Courts are going to entertain (even in cases where you can’t persuade them to return your child) making a less drastic order than adoption. Also important for Judges dealing with those cases, social workers planning for the future for children, lawyers advising clients and politicians making policy about adoption. As even the President of the Family Division has recently acknowledged, there’s a tension between the direction of travel of Government (social workers should stop thinking of adoption as a last resort) and the Courts (adoption is still a last resort, even way after the Court have already decided it is in the child’s best interests to approve a plan of adoption)

So this is the first case that rolls up its sleeves and gets under the bonnet of the issue, the High Court have just dealt with exactly such a scenario. I wrote about the hearing that decided that the father should be given LEAVE to oppose the adoption order here

Re B-S can itself be the change of circumstances

And this is now the judgment from the contested adoption case itself.
Re N (A child) Adoption Order 2014
http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html

The Judge in this case concluded that an adoption order was preferable for this child than SGO, weighing the pros and cons of each type of order, and bearing in mind that adoption could not be sanctioned unless “nothing else will do”

46. I accept that adoption does have the disadvantage of severing the legal tie between N and her paternal family. In every other respect it is the preferable order to make in this exceptional case. Some of these reasons for adoption are so important that they lead me inexorably to the conclusion that it is the only order that can be made. In any event, the combination of all these factors is overwhelming such that it is abundantly clear that nothing else will do. Notwithstanding the draconian nature of the order, adoption is necessary and proportionate given the huge advantages that it provides to N for the rest of her life.
47. I have formed the view that an adoption order is overwhelmingly necessary. N has only ever known one home. She has significant special needs. She is a vulnerable child. She will become a vulnerable adult. She has received a very high quality of care from the Applicants. She has thrived with them. She now needs the security, trust and confidence of being made a permanent legal member of their family such that the Applicants will be fully and solely responsible for her needs throughout her life.

He sets out clearly that the Court WOULD have jurisdiction to make an SGO rather than adoption order (and to do so even where the prospective adopters didn’t WANT an SGO)
32. the key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be which order will better serve the welfare of this particular child. It seems clear to me, however, that this must be subject to the law as set out in Re B that an adoption order is to be made only where nothing else will do. In this regard, it is a material feature of the special guardianship regime that it involves a less fundamental interference with existing legal relationships. I further accept that I have power to impose a special guardianship order on an unwilling party to the proceedings if I am satisfied that, applying the welfare checklist in the 1989 Act, a special guardianship order will best serve the welfare interests of the child concerned
I think the most important part of this judgment will be this line from para 48

I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate

(If you listen carefully when you read that sentence you can hear the sound of future litigation – and a lot of it)
The Judge goes on to set out what those exceptional circumstances are, and one can readily see that most of them would not arise in a traditional SGO v adoption case

(a) N’s serious disabilities require a lifelong order rather than a special guardianship order that expires on her 18th birthday. I am satisfied that, regardless of the excellent progress that she has made, she will still be dependent on the Applicants, probably indefinitely and certainly well into her adult life. Many of her disabilities (such as her autism and development delay) have not altered and will not alter notwithstanding her progress in other areas. I am not going to consider in detail the jurisdiction of the Court of Protection after her 18th birthday. The simple fact of the matter is that she needs to have as her legal parents at that point the people who will by then have cared for her exclusively for over 17 years of her life. This is what makes this case so exceptional. Special guardianship simply does not fit the bill in this regard at all. Adoption does. It is necessary and required.
(b) The only home that she has ever known has been with the Applicants. She is embedded emotionally into their family but she needs to be embedded legally there as well. This is as important for her as it is for the Applicants and their son. I accept that she does not and probably never will understand the legal concept of adoption but she does understand the concept of being a full member of a family. It is overwhelmingly in her interests that she is a full member of this family as a matter of law. In short, she must have permanence and total security there. Adoption is the only order that will give her that permanence and security.
(c) Whilst I look at this entirely from the perspective of N, the position of the Applicants is a very relevant consideration. They have invested an enormous commitment into N. They need to know that her presence with them is complete and not susceptible to challenge. If that were not the case, I consider there is a real possibility that it might have an adverse impact on the welfare of N. This would not be because the Applicants would not remain fully committed to her but the uncertainty and potential concerns as to what might be around the corner and what problems they may encounter when she attains her majority have a real potential to cause difficulties for N herself.
(d) I am very concerned about the litigation that has taken place in this case. Litigation is a real concern for carers at the best of times. This litigation has been going on for over five years at an intense level. I have not heard oral evidence from the Father and Paternal Grandmother but I do have a real concern that a special guardianship order would not be the end of the battle. The Father’s statement talks about unsupervised contact, staying contact and even contact in Nigeria. In one sense it is understandable why he makes such comments. I am, however, concerned that he has not fully come to terms with being ruled out as a carer. Mr Macdonald’s submissions reinforce that concern in so far as they repeatedly refer to there being no threshold findings having been made against him. The risk of ongoing continuing litigation with no understanding of the effect of that on N’s carers is something that this court must consider in deciding on the appropriate order.
(e) N has never lived with her Father or her Paternal Grandmother. There is no family member available to care for her. The Father and Paternal Grandmother have been ruled out and their appeal in that regard was dismissed. N has only ever had supervised contact to them. This is not to downplay their importance. It is merely a fact. It is accepted by the Applicants that the Father and the Paternal Grandmother are a vital part of N’s heritage. They are committed to contact. I accept the evidence that this is a genuine commitment that will not be reconsidered once they have adopted N. They have shown their attitude clearly by setting up contact with N’s mother’s other children. It follows that adoption in this particular case will not stop contact from continuing with the parental birth family. This is important.

Breaking them down, the 5 exceptional factors here were

1. The child has serious physical disabilities that will require lifelong care, not just until her 18th birthday
2. The only home she has ever really known is with the prospective adopters
3. The enormous effort and commitment that the prospective adopters have put into the care of this child
4. That this child has been the subject of intense litigation for 5 years and making an SGO would probably see that continue in the future
5. That the father has never cared for the child and that the evidence is plain that he would never be able to

But even in this case, the Court was plain that ongoing contact (four times per year) would be necessary, though the Court declined to make a contact order on the basis that the adopters were in agreement with that plan for contact.

It seems, therefore, that in a contested adoption hearing where the parents have as either their primary position or a fallback position – there should be an SGO rather than an adoption order, there is a live issue to be tried. (and if that’s the case, if a parent actually puts forward that argument rather than straight ‘give me the child back’, their application for leave to oppose must surely have some solidity and the prospect of being granted?)

Most parents, of course, will want to oppose the adoption order on the basis of the child coming back to their care – obviously that’s what they want. But those who take up the fallback position of “Even if not, an SGO is better than adoption, because adoption is the last resort” have a case that would be tricky to throw out at leave stage.

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Posted in adoption, case law and tagged adoption, contested adoption, imposing an SGO on adopters, re b-S, re n 2014, re n a child adoption order 2014, special guardianship order. Bookmark the permalink.

“The pages of the most extravagant French novel…”

Posted on May 9, 2014 by suesspiciousminds

Rapisarda v Colladon 2014 – new areas of transparency, journalism and Monarchs trying to protect public morals – it has it all.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1406.html

This is a very quirky case, decided by the President. It arises from divorce and ancillary relief proceedings. In particular, it arises from an application by the Queen’s Proctor, to dismiss a large number of divorce petitions, and to set aside a number of decree absolutes and decree nisis.

(Who the heck is the Queen’s Proctor, you may be asking – well, he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973)

This case is described by the President in his opening paragraph as being

what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale

Vexingly, for me, the judgment doesn’t give chapter and verse on what on earth was going on here.

The issue that the judgment is principally concerned with, is whether the Press could report what the Court was uncovering. At the moment, they are prevented from reporting details from divorce cases (not, as you might imagine to protect the confidentiality of the individuals but to protect public decency)

That allows the President to do two of his favourite things – (a) to test where the boundaries of transparency are and whether they could be expanded; and (b) to give a history lesson as to how the current framework came to be.

For a law geek like me, (b) is really rather absorbing, and I have to say that few people have ever been as skilled as the President in doing that sort of exercise.

So, what prevents the Press reporting about what happens in divorce or ancillary relief proceedings? * (As to whether any of this applies to ancillary relief proceedings, having analysed it very carefully, the best we can do is “It might”)

It is the Judicial Proceedings (Regulation of Reports) Act 1926 (from now on in this piece “The 1926 Act”

3. Section 1 of the 1926 Act is headed “Restriction on publication of reports of judicial proceedings”. As amended, it provides as follows:
“(1) It shall not be lawful to print or publish, or cause or procure to be printed or published –
(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding level 5 on the standard scale, or to both such imprisonment and fine:
Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.
(3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.
(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
So, in normal language –

1. the Press can’t report anything arising from Court proceedings which might injure public morals (I’m not convinced that is routinely adhered to, thinking of the many sexual abuse celebrity crime reporting, or the level of detail that was published arising from evidence in murder trials – the murder of Lee Rigby springs to mind, and the Press have hardly been sparing in the Oscar Pistorius details)

2. The Press can’t report anything arising from the evidence given in divorce proceedings or PROBABLY ancillary relief proceedings (they can report things in broad summary, but not chapter and verse). And if they do, they can be prosecuted.

3. That does not stop the reporting of bona fide LAW REPORTS
The President explains how the 1926 Act developed. In effect, at around the same time as the law banned Obscene Publications the Press started publishing fairly routinely the juicy and salacious details from divorce cases to titillate and/or shock their audience.

8. Kate Summerscale, in her recent retelling in Mrs Robinson’s Disgrace: The Private Diary of a Victorian Lady (Bloomsbury, 2012) of the remarkable case of Robinson v Robinson and Lane (1859) 1 Sw & Tr 362, notes (at page 187) what one can only think of as the delicious irony that in the summer session of 1857 “Lord Palmerston’s government had pushed through the Matrimonial Causes Act, which established the Divorce Court, and the Obscene Publications Act, which made the sale of obscene material a statutory offence.” Both, she opines, had identified sexual behaviour as a cause of social disorder. But, she continues:
“A year on … they seemed to have come into conflict: police officers were seizing and destroying dirty stories under the Obscenity Act, while barristers and reporters were disseminating them under the Divorce Act. ‘The great law which regulates supply and demand seems to prevail in matters of public decency as well as in other things of commerce,’ noted the Saturday Review in 1859.” – The author, she suggests, was James Fitzjames Stephen, later Stephen J – “‘Block up one channel, and the stream will force another outlet; and so it is that the current dammed up in Holywell Street flings itself out in the Divorce Court.'”
9. Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (Viking, 2013), comments (at page 45), that:
“Born at the same moment, the Divorce Court and the mass-circulation press were made for each other. The Divorce Court got the publicity to humiliate moral reprobates. The newspapers got the fodder they needed to power a gigantic leap into the mass market.”
This state of affairs even led Queen Victoria to become involved, and she caused this letter to be written

“to ask the Lord Chancellor whether no steps can be taken to prevent the present publicity of the proceedings before the new Divorce Court. These cases, which must necessarily increase when the new law becomes more and more known, fill almost daily a large portion of the newspapers, and are of so scandalous a character that it makes it almost impossible for a paper to be trusted in the hands of a young lady or boy. None of the worst French novels from which careful parents would try to protect their children can be as bad as what is daily brought and laid upon the breakfast-table of every educated family in England, and its effect must be most pernicious to the public morals of the country.”

Obviously the comparison between lurid French novels and the details of divorce reports in the English newspapers was a popular one, because the metaphor was still going in 1922, when King George V caused this correspondence to be written

12. Despite all this, as Cretney records, every attempt to remedy matters by legislation failed until the notorious Russell divorce case (see Russell v Russell [1924] P 1, [1924] AC 687, and, for the eventual denouement, The Ampthill Peerage [1977] AC 547) was opened before Sir Henry Duke P and a jury on 8 July 1922. On the fourth day of the hearing, the King’s Private Secretary, Lord Stamfordham, wrote to the Lord Chancellor, Lord Birkenhead:
“… the King is disgusted at the publication of the gross, scandalous details of the Russell divorce case. His Majesty doubts whether there is any similar instance of so repulsive an exposure of those intimate relations between man and woman which hitherto through the recognition of the unwritten code of decency indeed of civilisation have been regarded as sacred and out of range of public eye or ear. The pages of the most extravagant French novel would hesitate to describe what has now been placed at the disposal of every boy or girl reader of the daily newspapers.”
So for all of our modern obsession that Prince Charles has been exercising influence behind the scenes and pulling strings, it is nothing new.
The King wasn’t done there, and had another try later on

14. The final catalyst seems to have been the newspaper reporting in March 1925 of Dennistoun v Dennistoun (1925) 69 Sol Jo 476. King George V returned to the point, Lord Stamfordham writing to the Lord Chancellor, now Lord Cave, in striking terms:
“The King feels sure that you will share his feelings of disgust and shame at the daily published discreditable and nauseating evidence in the Dennistoun case. His Majesty asks you whether it would not have been possible to prevent the case coming into Court, either by a refusal of the Judge to try it, or by the joint insistence of the respective Counsels to come to an arrangement, especially when, apparently, the question at issue was one of minor importance.
The King deplores the disastrous and far reaching effects throughout all classes and on all ranks of the Army of the wholesale press advertisement of this disgraceful story.”
And so the 1926 Act came about, to protect those delicate flowers that were serving in the British Army, and the vulnerable working classes from having to read such filth (the upper class could of course, afford to buy the most extravagant French novels, and get their filth that way)

[I began pondering just how juicy Dennistoun v Dennistoun was, the case that changed the law and remains law ninety years on, and which got a King so disgusted and ashamed that he wrote letters complaining about it. So I had a look – the salacious details from the trial are all here

http://alminacarnarvon.wordpress.com/2012/04/01/lady-almina-scandal-the-dustbin-case-dennistoun-v-dennistoun/

after two pages, the strongest I found was that the wife had been having an affair, her paramour nicknamed Tiger, and he called her “Brown Mouse” – it rather pales in comparison to what we know Prince Charles said to Camilla when they were both married to other people]
The major decision about the 1926 Act, prior to this case was Moynihan v Moynihan 1997, which coincidentally, also dealt with an application by the Queen’s Proctor to set aside a decree of divorce obtained by fraud. Sir Stephen Brown P heard the case and considered that section 1 was mandatory and did not give the Court a discretion to waive it in certain cases.

24. To return to Moynihan v Moynihan, Sir Stephen continued as follows:
“The point is made by counsel for the Attorney-General that this is a statute which is mandatory in effect; it does contain a criminal sanction and therefore must be construed restrictively. No point arises, as I have already said, as to the merits of any reporting of details likely to be made public in the course of the evidence. It is merely a question as to how that will be achieved.
The matter is of importance because the representatives of the press and the media are entitled to be clear as to what their duties are and what restrictions apply to them, and I have a great deal of sympathy with their position. For that reason the question has been raised at the outset of these proceedings. However, it seems to me that the court simply cannot construe the statute in a way which is contrary to the language of the statute itself. I have to rule that the Judicial Proceedings (Regulation of Reports) Act 1926 does apply to these proceedings. The Attorney-General has through counsel indicated that he would not be very anxious to institute criminal proceedings if by some oversight there was a breach of the strict letter of the law. That is not a matter which is before me, but it seems to me that until or unless Parliament were to intervene the Act does apply in this instance.”
25. Sir Stephen concluded with these words, which I read out in the present case to the journalists present in court:
“However, having said that, it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.”

26. Sir Stephen seems to have been unenthusiastic about the application of the 1926 Act to the proceedings before him but concluded that section 1(1)(b) did apply. With equal lack of enthusiasm I am driven to agree. The logic of the analysis propounded in turn by the Law Commission Report, by the LCD Review and, finally, by Sir Stephen is, in my judgment, irrefutable.
That would seem to be problematic in authorising the reporting of a case where transparency would be in the wider public interest, such as here. If there has been fraud on an industrial scale about obtaining divorces, then the Press ought to be allowed to tell us about it. But there’s no judicial discretion to relax s1(1) (b) of the 1926 Act.

But our President wouldn’t be the President if he didn’t have a sharp mind, and if there’s someone who is going to find a way on transparency, it is going to be him.

Firstly, he suggests that Parliament need to look long and hard about the 1926 Act – in our modern era, we are hardly short of titillation and scandal and we really don’t need to be mollycoddled and protected from things that might shock us from divorce proceedings. And particularly when the hearing itself is in Open Court, it seems a nonsense to prohibit the Press reporting the case. The days when one needed to go to either the tabloids or Soho if you wanted a fix of smut are long gone.
27. Though driven to this conclusion by the words Parliament chose to use in 1926, and reiterated in 1973, I find it almost impossible to believe that this is an outcome intended by Parliament. No doubt it is some imperfection on my part, but I do not begin to understand how the protection of public morality and public decency, or indeed any other public interest, is facilitated by subjecting the reporting of proceedings in open court of the kind that Sir Stephen Brown P was hearing in Moynihan v Moynihan and that I am hearing in the present case to the restraint imposed by section 1(1)(b) of the 1926 Act. On the contrary, this restraint would seem to fly in the face of the “fundamental, constitutional rule” (Scarman LJ’s phrase in In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, 93) previously articulated in Scott v Scott [1913] AC 417.
28. This is not, I venture to suggest, the only reason why Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book is justified

But even in the absence of that, a way has been found. We can publish, we will publish, we must publish…

36. Pending any review of the 1926 Act by Parliament are there any legitimate means of avoiding the impact of section 1(1)(b)? The answer is clear: only as allowed by one or other of the express provisions of section 1(4).
37. For convenience I set out section 1(4) again, but inserting additional lettering and creating subparagraphs for ease of reference:
“Nothing in this section shall apply
(A) to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or
(B) to the printing or publishing of any notice or report in pursuance of the directions of the court; or
(C) to the printing or publishing of any matter
(i) in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or
(ii) in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
In the context of the present proceedings it is quite clear that neither (A) nor (C) can avail the media generally. But what of (B)?
38. This is not something which Sir Stephen Brown P considered in Moynihan v Moynihan. As I have already noted, he made no reference at all to section 1(4). Indeed, so far as I am aware, there has never been any consideration of the point.
39. The language of (B) is quite general. It excludes from the ambit of the 1926 Act the printing or publishing of “any notice or report in pursuance of the directions of the court”. Although I agree with Sir Stephen that section 1(1) is mandatory and confers no discretion, section 1(1)(b)(iv) plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience. As the Law Commission Report put it (para 17):
“The prohibition on publishing the evidence in divorce and similar cases, though it protects the public from being titillated by morning and evening accounts of the salacious details brought out in evidence, does not prevent it from learning those details in due course if the judge thinks it necessary or desirable to review the evidence in full in his judgment or summing up.”

40. So too, limb (B) of section 1(4) confers a similarly unfettered discretion enabling the judge to give “directions” in relation to any “notice or report”. The word “directions” is quite general; it is neither defined nor circumscribed. In my judgment it embraces any direction of the court, whether a direction that something is to be published or a direction that something may be published. Likewise, the other words are quite general; they are neither defined nor circumscribed. Although the word “report” will no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorises, I see nothing in the 1926 Act to limit it to such documents. In my judgment, the word “report” is apt to include a report of the proceedings.
It follows, that limb (B) of section 1(4) recognises a discretion in the judge to make a direction authorising the publication by the media of a report of the whole of the proceedings, as opposed to the concise statement, allowed by section 1(1)(b)(ii), of the charges, defences and countercharges in support of which evidence has been given
So, having devised a judicial discretion, with some creative thought, to allow a Judge to authorise the publication by the media of a report of the whole of the proceedings, is the President going to exercise this discretion in this case? (If you think that the answer is “No”, then I would like to talk to you about a bridge you might be interested in buying)

42. Should I exercise that discretion? In the circumstances of the present case there can, as it seems to me, be only one answer. Publication by the media of a report of the proceedings before me does not, given the nature of the proceedings, engage the mischief at which the 1926 Act is directed. On the contrary there is, in my judgment, every reason why the media should be free to report the proceedings – proceedings which, to repeat, were conducted in open court and related to what, as I have said, was a conspiracy to pervert the course of justice on an almost industrial scale.
43. I shall, therefore, make a direction that there be liberty to the media and others to publish whatever report of the proceedings which took place before me on 9 and 10 April 2014 they may think fit. I make clear that this direction is, and is to be treated as, a direction within the meaning of limb (B) of section 1(4) of the 1926 Act.

44. On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4).
We should, therefore, get chapter and verse on this whole story from the Press soon. I am a bit miffed that they get to know, in breach of a ninety year old act, whereas I, as a member of the legal profession who could legitimately get to know all the details by way of a published law report am in the dark, but such is life.

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Posted in case law, transparency and tagged press reports and ancillary relief, press reports and divorce, publication of information from divorces, queen's procter, rapisarda v colladon 2014, the 1926 Act, transparency. Bookmark the permalink.

Successful appeal against placement order

Posted on May 8, 2014 by suesspiciousminds

The Court of Appeal’s decision in Re R (A child) 2014 and why an appeal is now even worse news for a Local Authority

http://www.bailii.org/ew/cases/EWCA/Civ/2014/597.html

It has been a little while since we had one of these “non B-S compliant” appeals, but just to let you all know that they haven’t gone away.

This was an appeal about four children, who were all made subject to Care Orders in August 2013, and the youngest two were made subject to Placement Orders.

The mother appealed, and when the case got to the Court of Appeal, the Court of Appeal were very troubled that from the original judgment, it simply wasn’t possible to tell whether the Court had really looked at the other options available, the positive benefits of those other options and whether adoption really had been the last resort.

The fundamental concern in the case had been the risk posed by the father. The Court of Appeal quoted what Lewinson LJ had said when granting the permission to appeal

“The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother’s grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made.”

And the final conclusions that the Court of Appeal reached were not markedly different to that.

On risk

21 The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M’s response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.

22 Two points immediately stand out in relation to the sexual risk posed by Mr J.

23 First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M’s case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children’s in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.

24 Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M’s attitude to the risk he poses would have to take into account LA’s own attitude to that risk in May 2012. The risk flows principally from Mr J’s 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M’s attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M’s failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M’s attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.

25 This is a deficiency in the judgment which undermines the judge’s welfare decision fatally in my view.

26 Without a sufficient evaluation of the risk flowing from Mr J’s sexual activities, all that was left as a foundation for the judge’s view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

On a failure to properly explore the other options

27 Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.

28 Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M’s case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.

29 Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).

30 The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children’s placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.

31 As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.

32 For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

The Court of Appeal therefore discharged the final orders and sent the case back for re-hearing.

They also raise a practice point, one which will make the average Local Authority lawyer’s hair stand on end like quills upon the fretful porpentine. They point out that as the appeal was brought by a litigant in person, the procedural formalities (making sure everyone was served, setting out clearly the issues, having all of the relevant documents in the bundle) weren’t complied with. They then say “there’s no resources for the Court to do all of this”

And of course they then say “So, Local Authorities, with their bottomless resources and pockets, will have to sort it out” (bear in mind that the LA are opposing these appeals, not bringing them)

6 This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7 The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

8 It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.

9 I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult

In effect, if an appeal is brought by a litigant in person, the Local Authority should undertake all of their requirements as a Respondent, but also now do everything that the Court would normally expect an Applicant to do.

(And of course, remembering that whilst there’s no chance of the LA recovering THEIR costs if the appeal is hopeless or lost by a country mile, there’s authority to say that if the appeal succeeds costs orders can be made against the LA. )

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Posted in adoption, case law and tagged adoption, appeal, placement order, re b-s analysis, re r a child 2014, successful appeal against placement order. Bookmark the permalink.

the article 8 right is to family life, not a happy family life

Posted on May 5, 2014 by suesspiciousminds

Another case involving unregulated artificial conception of a child, and the difficulty in resolving the fall out afterwards

L v C 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1280.html

L and C were a same sex female couple. L was English, C Irish. They decided to have a baby together, and a male donor was found. C conceived and had a baby, G. G was born in October 2013.

Between August and December 2013, L and C lived together in England, and from Oct-Dec 2013 they shared in the care of G. They then split up, rather acrimoniously. C took G back to Ireland to live, and L has not seen her since. L made an application in the English Courts – believing that she would have no rights to make any applications in Ireland.

For permission to apply for a residence order and a contact order under the Children Act 1989.

For declarations that at the point of G’s departure from England, L v C was acting as her ‘psychological parent’ and that they shared family life within the meaning of Article 8 of the European Convention on Human Rights

Before the Court could hear the application on residence and contact, they had to consider jurisdiction. At the time the application was issued, G was back in Ireland with C, her biological mother.

Jurisdiction in respect of the Children Act application falls under the Family Law Act 1986 and the Council Regulation (EC) No. 2201/2003 (‘Brussels II Revised’ or ‘BIIR’) which, as its title states, concerns among other things ‘matters of parental responsibility’.

The effect of this regime is that this court will only have jurisdiction to entertain the application if G was habitually resident here on 25 February: Family Law Act 1986 ss. 2 and 3 and Arts. 8 and 16 BIIR.

If the court concludes that it does not have jurisdiction, and that the Irish court does, it must declare that it has no jurisdiction: Art. 17 BIIR.

If G’s place of habitual residence cannot be established, the Irish court will have jurisdiction on the basis that she is present there: Art. 13 BIIR.

The meaning of habitual residence has been considered by the European Court of Justice, by the Supreme Court and by the Court of Appeal.

In Re A (Jurisdiction: Return of Child) [2013] UKSC 60, the Supreme Court reviewed the European decisions in the cases of Re A (Area of Freedom, Security and Justice) (Case C-523/07) CJEU and Mercredi v Chaffe (Case C-497/10) CJEU. Baroness Hale, summarising at [54], emphasised that habitual residence is a question of fact and not a legal concept. The test is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends on numerous factors. The environment of an infant or young child is shared with those upon whom she is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

In Mercredi v Chaffe the European Court referred to the factors that must be taken into consideration as including, first, the duration, regularity, conditions and reasons for the child’s stay in the State in question and for the mother’s move there and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections that the mother and child have with that State.

The facts of the Supreme Court case of Re A are not at all similar to the present case. However, the facts of Mercredi v Chaffe are. A French mother and a British father cohabited until five days after the birth of the child. The father did not have parental responsibility. When the child was two months old, the mother unilaterally took him overseas. The father began proceedings in England and the mother began proceedings in France. Following the reference to the European Court, the Court of Appeal (at [2011] EWCA 272) held that the removal of the child had been lawful, that the English court’s jurisdiction was at best doubtful and in any event should not have been exercised in competition with that of the French court.

Applying the guidance to be found in these decisions, I find that when L v C’s proceedings were issued G was not habitually resident in England and Wales:

G had by then been living in Ireland for over seven weeks, a significant period for a baby then aged four months.

She was dependent on her mother, who was then habitually resident in Ireland, to which she had returned with the intention of remaining permanently and where she has deep, longstanding family and social connections.

G’s removal to Ireland by Ms C was lawful, a fact conceded by L v C.

I reach this conclusion despite accepting that:

Ms C was quite possibly habitually resident in England between August 2013 and G’s removal. (For what it is worth, the facts do not appear to sustain her argument that this four-month period of residence in England was the result of duress. Duress requires a complete overbearing of the will: see Re T [2010] EWHC 3177 (Fam) at [31]. That is not alleged here.)

G had not been outside England for the first 11 weeks of her life and was very likely habitually resident here during that period.

L v C has been habitually resident in England throughout.

L v C had had full parental involvement in G’s life up to the point of her removal.

In accordance with Art. 17 BIIR, I must therefore declare that this court has no jurisdiction in relation to matters of parental responsibility concerning G

Because G was not habitually resident in England at the time of the application and had not been unlawfully removed, the Court had no jurisdiction on residence or contact. (I think that where the judgment says “L v C” it means “L” and this has been some sort of find-and-replace snafu in anonymising the document)

That left the issue of whether L had acquired family life (and thus article 8 rights) with G in the period between October-December 2013.

There was firstly the argument about jurisdiction to consider – C was arguing that as all matters regarding G ought to be dealt with in the Irish Courts, the English court should stay out of this.

Ms Guha argues that the court does not have carte blanche to consider L v C application. She raises two objections. The first (which I shall call the ‘territorial’ objection) is a submission that the court cannot interfere in matters that are properly within the province of the Irish courts. The second (the ‘procedural’ objection) is that the court cannot make a free-standing declaration of human rights in the absence of substantive proceedings concerning the child. Ms Guha further argues that even if jurisdiction exists it should not be exercised in the circumstances of the case, and that if the court was considering doing so it would need to hear oral evidence.

On the ‘territorial’ argument, the Judge found against C

What is at issue here is the competence of this court to rule upon a specific situation that existed in England in respect of a child who had never lived anywhere else, involving the nationals of two contracting states, one of them English and all of them resident in England at the material time. As to the existence of an alternative forum, I entirely accept that this court should not trespass upon matters that would fall within the territorial jurisdiction of the Irish court. For example it would, as I have already held, be improper for this court to make orders about future arrangements for the child. But I do not accept that the declaration that is being sought would encroach upon the Irish court’s territorial jurisdiction. In fact there is as yet no indication that there will be proceedings in Ireland, that jurisdiction not having been invoked by either party at this point. And even if proceedings were taken in Ireland, their central focus would be on the child’s actual situation and not upon declarations as to past events. Nor do I accept that the issue of Art. 8 rights can only be determined by a court considering substantive remedies relating to the child. As discussed below, I would hold the question of whether such rights existed to be independently justiciable.

In the circumstances, while I understand the logic of Ms Guha’s objection, I would hold that there is no territorial obstacle to L v C’s application for a declaration being considered by this court.

That left the ‘procedural’ argument, that the Court could not consider article 8 rights purely in isolation with no substantive application. The Court was more sympathetic on that, but found against C

I turn then to Ms Guha’s ‘procedural’ argument. This is that the court cannot make a free-standing declaration of human rights in the absence of substantive proceedings. The argument is based upon s.7(1) of the Human Rights Act, which provides that a person who claims that a public authority has acted (or proposes to act) unlawfully may bring proceedings against the authority under the Act in the appropriate court or tribunal, or rely on the Convention right in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. It is argued that L v C’s application falls outside the ambit of s.7 because she is not claiming unlawfulness by a public authority, nor relying on her Convention rights in any substantive proceedings.

The relief L v C actually seeks is a free-standing declaration as to her Art. 8 rights. This is not a claim falling within s.7 of the Act, even though her claim has on a number of occasions been described as being brought ‘under the Human Rights Act’. Likewise, Ms Markham has suggested that the court could invoke its inherent jurisdiction to enable it to hear the application. In my view, recourse to the inherent jurisdiction would not add anything of substance. Lastly, the suggestion that the application for a declaration might gain a sound jurisdictional foundation as a result of being made alongside the ill-founded Children Act application cannot be right.

I therefore have some sympathy for Ms Guha in having had to respond to these distractions from the main point: that is whether a free-standing declaration as to human rights is possible or whether s.7 prevents this.

It is true that the Human Rights Act is normally deployed to challenge allegedly unlawful acts by public authorities (s.6) by making the claim within judicial proceedings (s.7) for a specific remedy (s.8). This provides a route for the enforcement of Convention rights, but it does not provide a statutory route by which their existence can simply be asserted in an appropriate case.

The whole tenor of the Human Rights Act is the protection of Convention rights domestically. There being nothing explicit within the Act to state that declarations cannot be granted in the absence of proceedings brought under s.7, there is no good reason to infer such a restriction. (I would add that I do not find that s.11, entitled ‘Safeguard for existing human rights’, assists on this issue. Its purpose is not procedural in relation to Convention rights but protective of rights arising outside the Convention.)

My overall conclusion is that the terms of the Act do not exclude the court’s power to make free-standing declarations as to Convention rights in appropriate cases and that such an application can be approached in the same manner as any other application for a declaration.

Rule 40 of the Civil Procedure Rules 1998 provides that the court may make a binding declaration whether or not any other remedy is claimed, or can be claimed. As stated in Financial Services Authority v Rourke [2002] C.P. Rep. 14 (Neuberger J), the power to make declarations is discretionary. The court can grant a declaration as to their rights, or as to the existence of facts or as to a principle of law. When considering whether to grant a declaration, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why the court should or should not grant the declaration.

Standing back, a conclusion that this court is impotent to make human rights declarations arising from past events occurring within its territorial jurisdiction would to my mind be capable of leading to a denial of justice. This casts doubt upon the correctness of such a conclusion.

For the above reasons, I would therefore hold that this court has procedural jurisdiction to entertain L v C’s application for a free-standing declaration.

All that this means is that the Court could legitimately consider L’s application for a declaration that she and G had family life, not that it had agreed that she had. That comes next

The first matter of relevance to the question of justice to the parties and to G is the degree of cogency of L v C’s argument in favour of her family rights. As to that, it is to be noted that there is no precise definition of ‘family life’ in Convention case law. It is a question of fact and one of substance, not form. There need to be close personal ties but these need not yet be fully developed provided there is potential for them to develop. There is no pre-determined model and family life must be interpreted in the light of modern trends. (See Clayton and Tomlinson ‘The Law of Human Rights’ 2nd ed. 13.04 -13.06). With less conventional family structures, the courts have taken a broad purposive approach. So it was held that a family relationship did exist in X, Y and Z v UK 1997 24 EHRR 143 between a woman, her female-to-male transsexual partner and the child she had conceived by artificial insemination. The court emphasised that the notion of family life is not confined to families based on marriage and can depend on a number of factors including whether the couple lived together and whether they demonstrated their commitment to each other by having children or by any other means (see Clayton and Tomlinson at 13.134 and 13.145 and Lester, Pannick and Herberg ‘Human Rights Law and Practice’, 3^rd Ed. at 4.8.49).

Applying these principles to the present case, L v C’s claim that family life existed is a compelling one. A balancing of these rights against the Art. 8 rights of Ms C and G is not a precondition to determining the rights of L v C. The fact that all such rights are qualified and would have to be balanced against each other in any welfare determination should not be confused with the question of whether they exist in the first place.

I next consider the question of fairness to Ms C and to G. Ms C undoubtedly dislikes any recognition of L v C’s role, saying hyperbolically that ‘she destroyed my and my baby’s family life’, but this does not translate into any unfairness towards her arising from the court evaluating the circumstances objectively. G’s own position is of great importance and in my view fairness to her calls for the circumstances of her conception and neonatal period to be reflected as accurately as possible amidst the adult discord.

This is also relevant to the question of whether a declaration would serve a useful purpose. There are two ways in which it might: first, as an objective contribution to G’s future wellbeing, and secondly as a record that may be useful to any other court considering her situation. Ms Guha argues that such a declaration would be meaningless in isolation from substantive proceedings in respect of the child. I accept that this might be the case, but it equally might not and I cannot see any detriment arising from the existence of an accurate declaration, any more than it would arise from an accurate judgment.

In the course of her argument, Ms Markham submitted that one reason why a declaration should be granted is that there would otherwise be a lacuna in English law in failing to protect L v C’s rights, and that there is positive obligation on the State to remedy this. I am not influenced by this argument. There is in my view no such gap in the law. Had the matter come before the court at a time when G remained in England, there are a number of legal remedies that might have been available to L v C, whether or not she had the support of Ms C. Nor can it persuasively be said that the law is failing in its treatment of the non-biological partner (male or female) of a biological parent who conceives as a result of informal arrangements. There would be many difficulties in seeking to equalise the legal consequences of licensed and unlicensed arrangements, fuller consideration of this issue being far beyond the scope of this judgment.

The international element is undoubtedly a special feature of the case, but I do not find that it provides a reason for declining to make a declaration. As stated above, the matter arises from events in England. It has been capably argued before this court, and there are no existing proceedings in Ireland. The limited nature of the declaration in question would not trespass on any potential Irish proceedings, and might even assist if there were any. It is said on Ms C’s behalf that an alternative legal remedy is available to L v C in the Irish courts, but this rests on the doubtful assumption that she has the emotional and financial resources to pursue that course in practice.

I do not consider that oral evidence is required to enable a decision to be reached in this matter. There is a mass of written material from which the picture is clear in all material respects. Both women speak of unhappy features of their relationship and ascribe responsibility for them to the other. But given the extent of the agreed facts, this difference in perception cannot colour the question of whether family life existed. What is in issue is the existence of family life, not the existence of happy family life, nor the reasons for unhappiness.

Drawing all these matters together, I shall refuse L v C’s applications except to the extent that I declare that at the date of G’s removal from England on 3 January 2014 family life within the meaning of Article 8 of the European Convention on Human Rights existed between G and L v C.

It is another important example that if you are in a situation where a child is being concieved by non-traditional means, you should think long and hard about how everyone involved feels about it, what they want, whether they should play a role in the care of the child, whether they should have parental responsibility, how legally you would acquire that, and what might happen if your non-nuclear family breaks up at some point in the future.

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Posted in case law, private law and tagged article 8, artificial conception, family life doesn't have to be happy to be article 8, l v c 2014, right to family life. Bookmark the permalink.

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