Category Archives: case law

journalist’s right to private and family life with her source

Posted on May 2, 2014 by suesspiciousminds

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive. The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

If you want to skip to the chorus, it is HEARING THREE heading

Hearing one

The first judgment, 26th February 2014 was decided by Russell J. http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C. (These allegations are all disputed by G)

This is the judge’s summary

In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

G had a degree of dementia. She was assessed by an Independent Social Worker (underlining mine)

Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

There was also an expert, Dr Lowenstein, who reported. Again, underlining mine for emphasis

The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

[The Court of course, did not HAVE to consider Dr Lowenstein’s evidence at all, since it had been obtained without leave of the Court, but they did so]

Russell J’s conclusions on G’s capacity were these

In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

[Everything that the Judge decided is very hotly contested by those lobbying on C’s behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

Hearing two

This was before Cobb J on 26th March 2014 http://www.bailii.org/ew/cases/EWCOP/2014/959.html

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported. G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

This approach was supported by the Official Solicitor in all respects.

Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2^nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

“She said reporters are always at her home or phoning her“.

That said, she added:

“She said she wants people to know what is happening to her and that it has gone all around the world already.“

And

“I asked her if she remembered the name of anyone she had spoken to. She said she did not.“

I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2^nd May.

I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

“were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G’s home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

Again, this is all hotly contested, but the judgment has not been appealed

Hearing Three

This one was before the President, on 1st May 2014 http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the Mail on Sunday, in any trouble? And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair. All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend. [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander – the Judge has said it, nobody has appealed it, so the issue is settled]

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn’t want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn’t have an article 8 right to access to G. It is more complex than that, I’ve reduced it to a manageable form because there are real people reading this blog]

The big stuff then – should ANL be made a party? Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

[That’s very considered and dense stuff – basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn’t that here. ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don’t have a legitimate interest in the argument between G, C and the Local Authority. They might be interested IN IT, but that’s not the same thing]

ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it. IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest. Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said. That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective. They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity. It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

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Posted in adult social care, case law, court of protection, transparency and tagged article 10, article 8, associated news limited, booker, court of protection, daily mail, president, re G (adult) 2014, sue reid, transparency. Bookmark the permalink.

Blood transfusion and Jehovah’s Witnesses part 2

Posted on May 1, 2014 by suesspiciousminds

Nottinghamshire Healthcare NHS trust and RC 2014

http://www.bailii.org/ew/cases/EWCOP/2014/1317.html

This one came before the Court of Protection earlier this year, and I wrote about it here

https://suesspiciousminds.com/2014/04/14/ethical-dilemmas-and-blood-transfusions/

Where Holman J was sympathetic to the hospitals decision not to impose blood transfusions on someone who did not want them, even though there was an argument that they COULD impose them under s63 of the Mental Health Act, but decided he needed the patient to be represented through the Official Solicitor and to hear full argument before deciding the case.

It is important to remember throughout that the Trust were minded to follow RC’s wishes and not administer blood transfusions (even life-saving ones) against his will, but because of the risk that this could contribute to his death, they wanted to seek a declaration from the Court of Protection / High Court that it was acceptable to do this.

[Peculiarly, this judgment never once mentions that earlier judgment, but it would be astronomically surprising if Nottinghamshire had two different Jehovah’s Witnesses who were self-harming and refusing blood transfusions and the doctors sought a declaration that they wanted to respect his wishes even though it might result in his death, so I think it is the same case]

Mostyn J gives a very thoughtful judgment, and draws on some important jurisprudence and philosophy

8. In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself. This is an expression of the principle of the purpose of power found in the Declaration of the Rights of Man and of the Citizen (1793) and in John Stuart Mill’s essay On Liberty (1859) where he stated at pp14 – 15:

“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign”^[1]

9. Thus Judge LJ in St George’s Healthcare NHS Trust v S [1969] Fam 28, 43 stated:

“Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it.”

10. This right applies equally to detained citizens. In Home Secretary v Robb [1995] 1 FLR 412 Thorpe J stated:

“…every person’s body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner”

However, there are three sets of circumstances in which a person’s autonomy over their own body can come into question and where the State might override their decisions

13. There are three circumstances where adult citizens may have treatment or other measures imposed on them without their consent.

i) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the MCA.

ii) Similarly, adults who have capacity but who can be categorised as “vulnerable” and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority [2012] 3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage) [2006] 1 FLR 867).

iii) Under the Mental Health Act 1983 (“MHA”) a detained patient may have treatment imposed on him or her pursuant to section 63 which provides, so far as is relevant to this case:

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, … if the treatment is given by or under the direction of the approved clinician in charge of the treatment”

At first blush section 63 strikes one as an illiberal provision, given that it applies to all detained mentally ill patients who may well not lack capacity (as here). However, it can be well justified when one reflects that the treatment in question may be needed not merely for the protection of the patient but also for the prevention of harm to others, given the violent eruptions to which mental illness can give rise

On the first of those, the Judge very carefully considered the capacity issue and determined that RC had capacity to decide to refuse blood transfusions and the fact that his decision was centred on religious beliefs did not diminish his capacity

33 A fundamental principle under section 1(2) MCA is that capacity is to be assumed unless it is established, on the balance of probabilities, to be lacking. The effect of section 2 and section 3 MCA is that a person will lack the capacity to make a decision if, by reason of mental disorder, they are unable to understand, or retain, or use or weigh up the information relevant to that decision, or to communicate their decision. In this case Mr Francis QC correctly argues that the only the possible question relates to whether RC is able to weigh information in the balance. In his report Dr Latham says:

“His ability to weigh the risks of refusing blood against his religious beliefs is difficult to describe because his religious beliefs effectively create, in his mind (and others) an absolute prohibition on blood products and so there is relatively little “weighing” when it comes to this decision.”

34 This aspect of the test of capacity must be applied very cautiously and carefully when religious beliefs are in play. In his essay John Stuart Mill speaks of the prohibition in Islam on the eating of pork. He describes how Muslims regard the practice with “unaffected disgust”; it is “an instinctive antipathy”. There can be no circumstances where a Muslim could “weigh” the merit of eating pork. It is simply beyond the pale. So too, it would appear, when it comes to Jehovah’s Witnesses and blood transfusions. But it would be an extreme example of the application of the law of unintended consequences were an iron tenet of an accepted religion to give rise to questions of capacity under the MCA.

35 I therefore place little emphasis on the fact that a tenet of RC’s religious faith prevents him from weighing the advantages of a blood transfusion should his medical circumstances indicate that one is necessary.

36 I am completely satisfied on the evidence and so declare that RC has full capacity to refuse the administration of blood products.

That rules out the possibility that the Court could declare under the MCA that the treatment was in RC’s best interests, because RC has capacity to say no.

Mostyn J agreed that the Trust were right to have sought the guidance of the Court before finalising a decision about whether to impose blood transfusion treatment under s63 of the Mental Health Act

21 In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a “full merits review” of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.

Was this, as a matter of fact and law, a s63 case in any event? Mostyn J eventually concludes that it is, and that the Trust COULD theoretically administer the blood transfusions against RC’s wishes

27 Both the treating clinician, Dr S, and the independent forensic psychiatrist Dr Latham made written reports, attended a meeting (by telephone) and gave oral evidence to me. They were almost unanimous. They agreed that:

i) RC suffers from a mental illness namely antisocial and emotionally unstable personality disorders. This is a disturbance of the functioning of the mind, which is one of the classic definitions of mental disorder.

ii) However, he has full capacity to refuse blood products. His refusal derives almost exclusively from his religious faith. Further, he had full capacity to enter into the advance decision on 4 April 2014. Further still, his decision to adopt the religion of the Jehovah’s Witnesses was made with full capacity.

iii) So far as RC’s capacity to harm himself is concerned on occasions he does so with full capacity. However, on other occasions, particularly at times of severe emotional distress, it is likely that he does so without the capacity to choose to self-harm.

iv) RC harms himself with the intention of distracting himself from distressing thoughts and feelings. He does so without really thinking about the consequences and dangers. However his view is that it is his body and therefore his choice to damage it.

28 Where they disagreed was whether the administration of a blood transfusion amounted to treatment which prevented the worsening of a symptom or manifestation of RC’s mental disorder. Dr S was of the opinion that it plainly was. Dr Latham disagreed. He wrote in his report

“In my opinion, it is crucial that any “treatment” for mental disorder provided under the direction of an approved clinician is recognised as a treatment for mental disorder in psychiatric terms and is given [as] a direct consequence of the symptom or manifestation of the mental disorder. In this regard, the treatment of force-feeding for eating disorders could be recognised as a “treatment” but I think it is highly unlikely that a blood transfusion could be. This in my view, might provide a way to “draw a line” so as to ensure proper protection of people’s right to refuse treatment where they have capacity to do so.

In conclusion, any treatment with a blood transfusion is not, in my opinion a treatment for mental disorder, nor is it treatment for a symptom of that mental disorder. It is a treatment for a physical consequence of a symptom of the mental disorder; hypovolaemic shock or life-threatening anaemia. This consequence is not wholly as a result of the self harm but contributed to by his treatment with warfarin. The treatment with warfarin is unrelated to his mental disorder.”

29 Miss Watson, who represents RC, adopts this reasoning and states that it is in fact consistent with the authorities. Miss Dolan, who represents the NHS trust, and Mr Francis QC who acts as advocate to the court, disagree and suggest that a proper interpretation of the authorities must lead to a conclusion that Dr S is right and that a blood transfusion would plainly amount to treatment of a symptom or manifestation of the underlying mental disorder.

30 If I were confined to the literal words of sections 63 and 145(4) I think I would agree with Dr Latham and Miss Watson. However, the authorities have supplied a definition which is some distance from the meaning of the literal words. In St George’s Healthcare NHS Trust v S at 747F Judge LJ stated that “section 63 of the Act may apply to the treatment of any condition which is integral to the mental disorder”.

On reflection I am in agreement with Mr Francis QC’s analysis. It cannot be disputed that the act of self harming, the slashing open of the brachial artery, is a symptom or manifestation of the underlying personality disorder. Therefore to treat the wound in any way is to treat the manifestation or symptom of the underlying disorder. So, indisputably, to suture the wound would be squarely within section 63. As would be the administration of a course of antibiotics to prevent infection. A consequence of bleeding from the wound is that haemoglobin levels are lowered. While it is strictly true, as Dr Latham says, that “low haemoglobin is not wholly a manifestation or symptom of personality disorder”, it is my view that to treat the low haemoglobin by a blood transfusion is just as much a treatment of a symptom or manifestation of the disorder as is to stitch up the wound or to administer antibiotics

In this case, where the hospital did not intend to go against the patient’s wishes, that decision may not have too much importance, but it has wider implications for other patients. If a mentally ill person is self-harming and bleeding, then s63 of the MHA can be used, the Court have ruled, to administer a blood transfusion. [Although see the next portion of the article to see that this is very substantially qualified]

The next question was, having established that the Trust COULD do this under s63, SHOULD they?

41 Finally I turn to the declaration which is sought pursuant to the inherent jurisdiction of the High Court concerning the decision of Dr S not to invoke the powers under section 63 MHA. In her first witness statement at paragraph 8 she stated

“I have some ethical difficulty in using the MHA to override a capacitious patient’s wishes based on religious wishes and I would not choose to use my MHA powers to override his advanced (sic) decision”

42 In my judgment, conducting, as I must, a full merits review, I conclude that the decision made by Dr S is completely correct. In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom. I therefore declare that the decision of Dr S is lawful and that it is lawful for those responsible for the medical care of RC to withhold all and any treatment which is transfusion into him of blood or primary blood components (red cells, white cells, plasma or platelets) notwithstanding the existence of powers under section 63 MHA.

That would seem then to be that s63 MHA could be used to administer a blood transfusion to a patient who was refusing it, but where that patient has capacity to refuse it and gives reasons, it would be wrong to impose it on them, and acceptable for the hospital to withhold that treatment.

The distinction, I suppose, being a patient who says “I don’t want any treatment” and one who expresses a decision to refuse blood transfusions. It is a little bit tricky to square this decision (which I think is right) with the Brady decision to impose force-feeding under s63 on Ian Brady (which I personally think was wrong).

Both involve the use or not of s63 for treatment which comes lawfully within the section, but this case involves more consideration of whether, having established that s63 COULD be used, it SHOULD be used

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Posted in case law, court of protection and tagged blood transfusion, jehovah's witness, nottinghamshire healthcare nhs trust and j 2014, nottinghamshire nhs trust and rc 2014, right to refuse blood transfusion, section 63 mental health act. Bookmark the permalink.

Misuse of police protection – human rights claim

Posted on May 1, 2014 by suesspiciousminds

The High Court have ruled on a case involving the misuse of police protection in Re A-W & C (children) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B41.html

Section 46 of the Children Act allows for a police officer to remove a child from a parent (i.e without an order) for a period of up to 72 hours. [Most professionals call this removal under police protection a PPO , in echoes of an EPO, but it is not actually an Order]. The decision is made by a senior police officer, not the Court.

In this case, the removal under police protection happened DESPITE solicitors representing the mother alerting the Local Authority that they were seeking a declaration from the High Court that the use of those police protection powers would be unlawful.

When the High Court dealt with the interim care order hearing, the child having been removed shortly after birth by the police, they ordered that a mother and baby foster placement be found, to reunite the mother and baby.

It is alarming how something like this could occur, the Courts having made it extremely plain in both Langley v Liverpool 2005 and A v East Sussex 2010 that in almost every case where removal is sought, this should be by way of a Court’s decision, not the use of police protection. The words used in those cases were not vague, they are crystal clear

“It is also right to say, I think, that the separation of mother and child under an ICO in care proceedings is, for good reason, usually a judicial as opposed to an administrative decision. The court is the parent’s safeguard against arbitrary or inappropriate action by a local authority. Thus in the overwhelming majority of the cases, it will be for the judge or magistrates to make the decision. I can thus readily understand Her Honour Judge Finnerty’s view that both she and the Family Proceedings Court were, inappropriately, being presented with a fait accompli.
67.

“For the local authority to succeed in this appeal, therefore, the facts have to be regarded as wholly exceptional.”

The President goes on at paragraph 68, having dealt with some of the facts of that case:

“In anything other than wholly exceptional circumstances, the rule must be that it is for the court to make the relevant decision unfettered by events which effectively curtail its powers. The question, therefore, is whether or not the current case can be said to be ‘wholly exceptional’.”

And even if nobody reads law, then the police ought to have regard to the Home Office circular which gives advice on the use of those powers

Home Office Circular 17/2008, to which I have already made reference, helpfully provided to me by Mr Firbank. That Circular issues guidance to the police in the use of their powers under section 46. There had been earlier guidance both in 1991 and 2003 and I suspect that the 2008 guidance was issued after the Liverpool case to which I have made reference to reflect the law as it emerged from that case. Paragraph 3 of the guidance reads as follows:

“The provisions of the Act aim to strike the proper balance between the provision of speedy and effective help to children at risk and unwarranted interference in family life. The underlying principle of the Act is that the welfare of the child is paramount.”

The guidance goes on to say at paragraph 15:

“Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court.”

It goes on to say at paragraph 16:

“All local authorities should have in place local arrangements (through their local Chief Executive and Clerks to the Justices) whereby out of hours applications for EPOs may be made speedily and without an excess of bureaucracy. Police protection powers should only be used when this is not possible.”

In this particular case, the Local Authority had concerns about the safety of the child at home (such concerns would have entitled them to commence Court proceedings and perhaps even to seek a plan of separation). The mother had got legal advice, was talking to the Local Authority, was not threatening to leave the hospital or go home – she did not agree section 20 voluntary accommodation in foster care, she wanted the opportunity to fight the Local Authority’s case in court.

Because the social worker and a police officer turned up at the hospital, mother’s representatives very quickly worked out that the child was going to be removed under police protection (i.e by administrative decision not a judicial one) and wrote to the Local Authority indicating that this would be unlawful and that they would be seeking a declaration from the High Court to this effect.

That didn’t dissuade the LA from their unlawful course of action, and the police duly removed the child.

By the time of the Human Rights claim, the LA had put their hands up to the breach of the mother’s human rights.

However

They would not concede any declaration that the local authority should have sought an emergency protection order pursuant to section 44 of the Children Act 1989 when they erroneously believed that a contested ICO could not take place. The police have made no concessions at all as to the process adopted by their officers on that day.

And therefore the Court had to deal with the matter and give judgment

This was the written evidence of the police officer about the decision to remove

I turn back to DC K’s document. This document is a Lancashire Constabulary pro forma document prepared, presumably, in compliance with the Home Office guidance that I have read. It sets out the identity of the officer taking the child into protection, that is DC K. It sets out the details of the child. It sets out her location when taken into police protection, namely neonatal ward RLI. The paragraph under the heading “Reasons for Taking Child into Protection” reads as follows:

“Baby is currently subject of a child protection plan (neglect). Parents under investigation on suspicion of physical assault towards older sibling.”

Those are the reasons as they are set out in their entirety on that form. The form goes on to record that the child was taken into police protection at 12.40 on Monday, 18^th February and records the address to which she was taken. It seems to me from the evidence that the point at which the advice was taken, during the morning before attendance at hospital, was likely to be when that document was prepared.

You might be thinking that this is rather sketchy on the critical issue – why it was necessary to do the removal without going to Court. The Court agree with you.

I pause to say that the grounds set out in that document appear to me to be thin and poorly reasoned. The use of police protection was seen by DC K as necessary by reason of the mother’s lack of co-operation and failure to agree to section 20. That was referred to by both the social worker and DC K in evidence repeatedly as a mother refusing to work with or engage with the local authority. References were made in the written evidence of both witnesses to the mother’s solicitor’s demands as if those demands were in some way obstructive. That did not seem to me to be a proper approach to a young and vulnerable parent who was merely following her own legal advice properly given. In any event the social worker and two policewomen – I think there was also a student social worker there as well – met up at the hospital that morning. The social worker had invited the police to come and they had gone ready to use section 46 if necessary. There can have been absolutely no other purpose to the police officers attending on that day and this is confirmed by DC K’s statement (from G203 in the Court bundle):

“On Monday, 18^th February 2013 Michelle Lee contacted me and said that the baby was ready for discharge but the parents are not agreeing to voluntary accommodation. I agreed I would attend the hospital to try and encourage the parents to engage with social services. I updated Inspector BL about the situation. Myself and DC L attended the neonatal to see the mother and father.”

It emerged during the evidence of the social worker that DC K was quite set upon asserting a need for separation to the social worker. I, frankly, do not understand why the efforts of the local authority were not directed at getting an urgent hearing to scrutinise the separation rather than at that stage enlisting the police to secure one as a backstop. I note again that the mother was not threatening to remove A from the hospital. Equally the hospital was reporting her care of A over the weekend as having been good. ML did have conversations with the local authority solicitor during the morning. She told me that she did not think a hearing on a contested ICO would be achievable until Wednesday or Thursday of that week and she did not consider it safe for mother to care for A until then. I think she was particularly concerned about overnight care. Privilege as to advice about why an EPO should not be used was not waived and I, therefore, do not know why that alternative, which would have afforded mother and father some voice in decision-making, if not the children’s guardian as well, was not considered. In fact, had that alternative been investigated it would have become clear that a contested ICO before me was possible that afternoon. The real significance for me, therefore, is not whether or not the local authority legal advice as to EPO would be preferable but as to whether any effort was made to investigate or re-investigate whether an application for an EPO or an ICO could take place.

One of the problems in this case was that those at the hospital, the social worker and the police officer, did not keep themselves informed about when the earliest court hearing could take place. They were not asking their superiors to press for such a hearing. I consider that both finding out and pressing for an earlier hearing were reasonable expectations in respect of both the social worker and the police officer in executing their duties under their statutory responsibility. Quite apart from this, even if a contested ICO hearing were not possible until the Tuesday or Wednesday or Thursday there is an onerous burden upon a local authority to find alternative arrangements during the delay which would hold the balance of protection and which do not require separation.

The Court went on to remind the Local Authority about Re CA, and that s20 consent must be freely given, not “compulsion in disguise” and that having a police officer present during the discussions would have led to a legitimate complaint that the principles of s20 had been breached, even if mother had agreed.

This is bolstered by the existing caselaw

The second is Surrey County Council –v- M, F & E [2012] EWHC [2400] a decision of Mrs. Justice Theis and at paragraph 60 she said this:-

“To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order.”

It isn’t a genuine discussion about s20 consent if there is an explicit or implicit threat that the police will remove the child.

The police officer gave evidence (bear in mind that the police position was that the use of powers was lawful and not a breach of mother’s human rights, so the idea of giving evidence is to persuade the Judge of that)

I heard oral evidence from DC K. I have already referred to her statement, but I have not yet read into this judgment the sentiments contained in that statement at the end, which I consider to be somewhat alarming. She says this:

“I can categorically state that I was in no doubt that a police protection order was absolutely essential in order to keep A safe. I came to that informed decision having paid great attention to the background of this family, in addition to my recent involvement with them. Basically if this child had been allowed to return home with the parents then I would have been neglecting my role as a police officer. I am a child protection officer and that is what I did on that day. My actions were not at the instigation of the local authority.”

She did not draw back from that stance during her oral evidence. She is obviously a very experienced officer. She demonstrated pride in the role she holds in child protection. Her demeanour is pleasant and sensitive and I can well imagine that she has an excellent manner with both the parents and the children she encounters in the course of her duties. However, I consider her approach on 18^th February in taking A into police protection at the point in time that she did to have been fundamentally flawed. It was plain that she went to the hospital with the intention, were mother not to agree to accommodation, of taking the child into police protection.

Euphemistic language was used during her evidence about encouraging parents to co-operate or engage with the local authority. However, it is plain that in DC K’s mind the co-operation could only take one form, namely agreement to section 20. When the mother, acting on her solicitor’s advice, refused to consent DC K encapsulated her was “We can’t just go up there and be blocked”. Later I repeated this in asking her questions myself and she seemed to think that the word “blocked” was one that I had used and not her. I am quite clear in my note that those were her words. She failed to weigh into the balance the fact that the parents were co-operating with the local authority in every regard except with regard to a separation pursuant to section 20. They were not threatening to remove A; they were responding to their own legal advice; they had cared for A well on the ward. Not only did DC K have a low threshold for the need for intervention, which to my mind did not arise at all unless or until the hospital was to insist upon discharge and at that point the parents sought to go home with A, but she also seemed to pay little or no heed that the S46 route into to the care of the local authority is the one to be least preferred, affording, as it does, no right of argument or judicial scrutiny.

I refer again to the document that she wrote, as I said probably in advance of attending the hospital, countersigned by her Inspector. It seems to me that it would be strongly arguable, that, even had the decision to go by section 46 occurred out of hours, the justification set out in that document is insufficient. I know that DC K in evidence advanced a lot of other reasons in addition to those set out in the document, but it is very important that the documents to be kept as records of when an authority is to take an action of such consequence as this one contain full reasons even if in summary and note form. She and Inspector BL both took as read that there could be no court hearing until later in the week and that an EPO was not an available route. I consider that both DC K and Inspector BL as the designated officer had a separate duty from the local authority to ensure, not only that separation and protection were absolutely necessary, but also that this route to it was absolutely necessary and that there was no prospect that a separation could be scrutinised or, if necessary, endorsed by a court. She should have been asking herself, “Why do I have to make this decision now?”. So, however impressive DC K was in terms of her commitment and her demeanour, her failure in exercising such a draconian power to establish that this route to protection was absolutely necessary was unimpressive

The Court made its decision about whether the police action had been unfair and a breach of human rights

The separation of a parent and child by any authority is a most serious act and it must be necessary and proportionate. The gravity and importance of that principle is all the more acute where that child is a newborn and magnified when the mother of that child is herself a child. Protection of the child, of course, is a foremost priority but protection does not require in every case an enforced separation. There are a whole range of remedies before enforced separation, which is the absolute last resort. Decisions as to whether that protection is necessary should be made by a court, and decisions as to what course is the least interventionist necessary should be made by a court. There was a duty, it seems to me, not just on the social worker but on the police themselves to look at the route into protection. DC K did acknowledge in her evidence that separation is always the last resort. It did not seem to me there was any real acknowledgement that section 46 as the route of that separation is also the route of last resort. As I have said, the local authority has made concessions. The police are completely unapologetic. DC K was absolutely convinced of the need for intervention but she is ill equipped to look at the form of protection needed. Her assumption was that the local authority plan for separation was the only route and she made no or no sufficient effort to find out whether a court was available to weigh up the alternatives. She was far too ready to assume responsibility and take the decision without acknowledging that it was for a court to determine what was necessary and proportionate. That type of decision making is quite understandable late at night, at weekends, at Bank Holidays, in the context of parents determined to not work with the local authority, demonstrating violence or threatening to snatch a child from where that child is considered to be safe. None of those things applied here.

The mother had not sought any financial compensation, wanting just the principle to be decided

The relevant parts of those declarations read as follows:-

Lancashire County Council has acted incompatibly with the rights of CMC, as guaranteed by Article 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms 1950 in that it:

• Failed to complete its pre-birth assessment and that consequent pre-proceedings steps were not taken (article 6 and 8).

• Failed to issue its application for a care order and an interim care order at the time of A’s birth to enable there to be consideration by the court of whether to exercise its powers prior to her discharge from hospital. (article 6 and 8).

I note what was said by Mr Rothery in his submissions that it is the experience of the children’s guardian in this case that this is not an isolated incident of an over willingness to use section 46 in this area. If that is the case it is very much to be hoped that better practice will emerge from this hearing, hence I have taken some time and trouble to deliver that part of the judgment.

[I continue to hear about misuse of s46 powers from a variety of parts of the country, and I believe that the Guardian was right here]

The principles in this case really ought to go without saying, but it seems that the lessons from Liverpool and East Sussex still haven’t been learned.

If the police are exercising their power under s46, the fundamental question is not “Is this child at risk of harm” but “What are the reasons why a police officer should do this NOW, rather than a Court decide it?”

There are circumstances in which the use of s46 powers will be warranted (the shorthand that used to be used when I started was “life and limb” – i.e the harm or risk of harm was so great that waiting even an hour would be unthinkable), but the use of s46 is clearly still prevalent in the country as a speedy and efficacious way of removal before going to Court, and that is fundamentally wrong.

I would be amazed if the next mother this happened to was as sanguine as this one was about compensation.

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Posted in case law and tagged a v east sussex 2010, langley v liverpool 2005, liverpool v x 2005, police protection, police removing children, ppo, re a-w and c 2014, section 46 children act, wrong to have a police officer present during s20 discussion. Bookmark the permalink.

Let’s find you a nice young man

Posted on April 30, 2014 by suesspiciousminds

The law on capacity and sexuality is developing swiftly at the moment, and throwing up some really difficult decisions.

In A Local Authority v TZ (no 2) 2014, the Court of Protection went on from its first judgment that the man, TZ, had the capacity to consent to sexual intercourse. TZ was homosexual, so one of the three principles (does the person understand the mechanics, the risk of STDs and the risk of pregnancy) doesn’t apply.

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

The issue that then arose was whether TZ had capacity to make safe choices about people he might chose to have sex with.

Accordingly, the questions arising here are:

(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not,

(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.

[I personally bear in mind that almost every parent ever would have wanted at some point and even for a brief flickering moment, the right to veto their child’s choice of boyfriend or girlfriend, but we have to let them make their own mistakes in life. There are certain people who like “bad boys”, sometimes they grow out of it, sometimes they don’t. Most teenagers would prefer someone that their parents disapproved of – John Bender in the Breakfast Club would be no parents choice for their child, but the parents choice of Brian isn’t going to fly. But this is a tricky situation – TZ clearly had some vulnerabilities. The Judge carefully reminded himself of the tension between being protective and giving people freedom to make what others might see as poor choices]

John Bender (bad boy alert)

Parent’s choice, lovely Brian

In addressing the issues of capacity in this case, I bear in mind a number of other points of law.

Importantly, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether, at the date on which the court is considering capacity, the person lacks the capacity in issue.

Next, as Macur J (as she then was) observed in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” The question is whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made” (ibid, paragraph 58).

Furthermore, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other professionals who have experience of treating and working with P, the subject of the proceedings, and sometimes from friends and family and indeed from P himself.. As Charles J observed (in the analogous context of care proceedings) in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. Thus, when assessing the ability of a person to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert.

Finally, I reiterate the further point, to which I have alluded in earlier decisions, including PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam) and CC v KK [2012] EWHC 2136 (COP). In a case involving a vulnerable adult, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.

and later

In this context, as so often, the way forward is illuminated by observations of Munby J, as he then was, on this occasion in Re MM (An Adult) [2007] EWHC 2003 (Fam). In that case (decided under the inherent jurisdiction), the Court was concerned with the approach to be adopted in a case of a person who had capacity to consent to sexual relations but lacked the capacity to make decisions about contact with a long-term partner. In such circumstances, Munby J held that “the court … is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk” (paragraph 119).

The following much-quoted paragraph is particularly relevant:

“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

I won’t get heavily into the particular facts in the case, they are all set out in the judgment should you want to read them – there was quite a body of professional opinion that TZ lacked the skills to weigh up whether someone was a safe person to approach or have sex with.

The Court’s decision on capacity is set out below

I find on a balance of probabilities that TZ does not have the capacity to decide whether a person with whom he may wish to have sexual relations is safe. I base that finding on the detailed assessments of TZ carried out by JS and Dr X, both of whom have had an opportunity to assess him over a period of time. These assessments include extensive conversations with TZ in which he has himself acknowledged that he lacks this capacity. In particular, while he has the ability to understand and retain information, he lacks the ability to use or weigh up the information, including the ability to assess risk and, in the language of s. 3(4), to understand the reasonably foreseeable consequences of the decision. This is, in my judgment, a good example of the distinction identified in paragraph 4.30 of the Code of Practice between, on the one hand, unwise decisions, which a person has the right to make, and, on the other hand, decisions based on a lack of understanding of risks and the inability to weigh up the information concerning a decision.

I have also borne in mind s. 1(2) – that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Having regard to Dr X’s advice, however, I consider that there is no immediate prospect of extending TZ’s capacity via a programme of education. Such a programme must, of course, be an integral part of the best interests care plan which would be put in place as a result of a declaration of incapacity.

The evidence therefore establishes that he lacks the capacity to decide whether or not any individual with whom he may wish to have a sexual relationship is safe. As to the second capacity in issue, JS concluded in her report that he did have the capacity to make decisions regarding his care and support. In oral evidence, however, JS qualified this opinion, saying that TZ can understand why he needs support “if he is in the right frame of mind”, and that his capacity in this respect is variable. She said that sometimes he is more open about taking things on board than at other times. Dr X concluded that TZ lacked this capacity. He thought that TZ’s current compliance with support did not mean that he understands the need for that support and thought it quite likely that at some stage he would ask a support worker to leave.

Notwithstanding the view set out in JS’s written assessment, I conclude after close analysis that TZ does not have the capacity to decide what support he requires when having contact with an individual with whom he may wish to have sexual relations.

In reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.

But having established that TZ lacks that capacity, the Court then have to approach any declarations with a view to what is in TZ’s best interests

Mr. McKendrick reminds me of the dicta of Munby J in ITW v Z [2009] EWHC 2525 (Fam) at paragraph 35:

“First, P’s wishes and feelings will always be a significant factor to which the court must pay close regard …. Secondly, the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific …. Thirdly, in considering the weight and importance to be attached to P’s wishes and feelings, the court must … have regard to all the relevant circumstances … [which] will include … (a) the degrees of P’s incapacity … (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that [his] wishes and feelings are not being given effect to … (d) the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and, pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in [his] best interests.”

Mr. McKendrick further submits, rightly, that in applying the principle in s.1(6) and generally, the Court must have regard to TZ’s human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, “private life” includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that “these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”: Botta v Italy (1998) 26 EHRR 241 paragraph 33.

These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.

In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to “take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”.

In addition, the state is under an obligation to take steps to protect TZ from harm.

How to apply those principles to TZ’s case

In the light of these principles and dicta, what steps should this court now take in TZ’s best interests?

On behalf of the Official Solicitor, Mr. McKendrick asserts that the challenge for the parties and the court is to develop a best interests framework which permits TZ sufficient autonomy of decision-making and respects his right to a private life whilst balancing the need to protect him from harm. He identifies three options: (1) take no best interests decision at this stage but react should TZ find himself in a situation when he is the subject of harm or at risk of harm; (2) require the applicant local authority to draft a care plan and submit it to the court for approval; (3) appoint a welfare deputy to make decisions on TZ’s behalf. Neither party is advocating for the first option. Both parties agree that the court should direct the local authority to file a care plan. The issues are, first, as to the contents of that plan and, secondly, whether a welfare deputy should be appointed.

The local authority has filed a draft care support plan. The Official Solicitor has made a number of observations about that plan. There is considerable common ground between the two parties, but some differences remain.

What follows are some proposals by the court for the sort of measures that should be included in the plan. Decision-making for incapacitated adults should, as far as possible, be a collaborative exercise. The observations as to the contents of the plan should be seen as part of that process.

I propose that the plan should contain the following elements: (a) basic principles; (b) education and empowerment; (c) support; (d) intervention; (e) decision-making. Under this last heading, I shall consider the local authority’s application for the appointment of a deputy.

(a) Basic principles

The basis for the plan is uncontroversial and can be summarised as follows.

(1) TZ lives at H Home. In due course, he may move to a step-down facility and, in the long run, into supported living.

(2) He will have available to him a number of hours of 1 : 1 support every week. Currently that is fixed at 32 hours.

(3) He has capacity to consent to and enter into sexual relations. He has the right to establish relationships with other human beings and wishes to meet other men with whom he may have sexual relations.

(4) He lacks the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual.

(5) The local authority and the Court are under a positive obligation to ensure that he is supported in having a sexual relationship should he wish to do so, but also to ensure, as far as possible, that he is kept safe from harm.

(6) The purpose of the plan is therefore to identify the support to be provided to assist him in developing a sexual relationship without exposing him to a risk of harm.

You can see, hopefully, that the overall goal of the plan is to keep TZ safe whilst teaching him the skills he will need to keep himself safe – he is not prevented from forming relationships with other men, nor indeed from having sex with them; it is more that he is to be assisted in making those decisions.

Getting down to brass tacks though, what are professionals supposed to do if TZ meets someone he is attracted to?

Mr McKendrick submits, and I agree, that TZ must have some “space” to make decisions for himself, even if this involves making mistakes, to assist him to learn (as far as he can) from the consequences of those decisions. Mr Dooley indicated that the local authority agreed that learning through experience is critical for TZ.

Mr McKendrick further submits, and I accept, that, should TZ meet a stranger, he is entitled to have private time with that person and support staff should intervene only if there is an identified risk of that person being abusive towards TZ. I agree with the Official Solicitor that the local authority and its support staff cannot interview or ‘vet’ anyone with whom TZ wishes to communicate and cannot assume that everyone he speaks to is likely to present a risk of abuse. Mr Dooley stated that the local authority’s position is that, if there is a problem in these circumstances, there will need to be a risk assessment to determine whether intervention is required. Having identified that intervention is required, the next step would be to consider the least restrictive intervention necessary to ensure that TZ is safe.

In the event that TZ decides he wishes to spend the night with someone, the care plan must provide that a private space can be made available. H Home has now indicated that he will be permitted to have a visitor to stay subject to the proviso that any visitor would have to be subject to safeguarding checks to protect other residents. A similar provision would be made in the event that TZ moved to a step-down facility.

If TZ meets someone and develops a relationship, or if he says he wishes to leave H Home and cohabit with another person, a specific capacity assessment will be required to determine whether he has the capacity to make a decision about contact with that person. If the outcome is that he has capacity, the sexual relationship should be facilitated, unless it is concluded that there is a significant risk of harm. If the assessment concludes that he lacks that capacity, or that there is a likelihood that he will suffer significant harm as a result of a relationship, a further application will have to be made to the court. If the court accepts that he lacks capacity, a best interests decision will then be made. If the court concludes that he has capacity, but that he is at risk of harm, it may be that the court would resort to protective powers under its inherent jurisdiction as to vulnerable adults. At all stages, of course, TZ must be assisted to participate in the decision-making process.

It is not the role of the Local Authority to ‘vet’ TZ’s partners or potential partners, nor do they have a role of veto

the plan must clearly delineate the circumstances in which care workers may intervene to protect TZ and the steps they are entitled to take when intervening.

On behalf of the Official Solicitor, Mr McKendrick submits, and I accept, that it is not the role of the local authority staff to vet TZ’s sexual partners. They must not deny him private time with a proposed sexual partner simply because they consider that partner is unsuitable, unless there is a clearly identified risk that the proposed partner poses a real risk of abuse to TZ during their contact. As the Official Solicitor submits, the assessment of abuse must be rigorous and evidence-based, or, adopting the phrase used by Munby J in Re MM, (supra) “pragmatic, common sense and robust”. As the Official Solicitor points out, capacitous adults also run the risk of abuse and harm. The adults protecting TZ must be given the tools to assist him, because of his vulnerabilities, but they cannot act in his best interests by attempting to eliminate all risks of harm. (“What good is making someone safe if it merely makes them miserable?”)

As JS has set out in her draft support plan, if TZ says he wants to go off with someone he has just met, the care workers would try to dissuade him, reminding him of the staged approach to new relationships previously discussed and agreed. In the event that he refused to listen to support workers in those circumstances, and where there were concerns regarding the risk of harm, the care worker involved should immediately alert management, who would in turn ensure that legal representatives were informed. A decision would then be taken as to whether the police should be informed, and/or whether an application should be made to the Court of Protection.

There was a mental health case in the last year, where a Judge set down a seventeen point plan of things that ought to be considered by a hospital before deciding that a patient was so dangerous that he needed to be transferred to a safer hospital, and the Court of Appeal ended up observing that if you get a Judge to draw up a model, he or she invariably draws up a very judicial/lawyery one which attempts to dot every i, and cross every t, but reality doesn’t always allow for that. I think that this is a damn good attempt to put a framework in place that tries to give TZ freedom and keep him safe and they are laudable aims – I am certain that I could not have done any better. But it does bring up the mental picture of a man smiling at TZ in Starbucks and staff members thumbing through the judgment to initiate “Phase Four of the plan”

Do you suspect that the staff will be likely to be on low alert for a Brian, but be contemplating intervention for the bad-boy type?

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Posted in case law, court of protection and tagged a local authority v tz (no 2), capacity, capacity to consent to homosexual sex, capacity to consent to sex, capacity to consent to sex with a specific person, court of protection, mental capacity act, protection of vulnerable adults. Bookmark the permalink.

Surrogacy arrangements made overseas

Posted on April 29, 2014 by suesspiciousminds

Re WT (A child) 2014

In a situation where a childless couple want a child, sometimes the search is cast very far and wide. At the early stage of the internet, there was outcry in Britain about the Kilshaws, a couple who purchased a baby on the internet from America. That led to the creation of legislation about overseas adoption and in turn surrogacy arrangements.

In this country, there are clear restrictions about surrogacy, and the amount that can be paid to a woman to have a baby on your behalf (it has to be expenses only) and as the High Court recently pointed out in JP v LP and Others 2014, there are criminal offences associated with any actions that are dealing with surrogacy on a commercial basis (even as an intermediary, or in that particular case as a solicitor charging for drawing up documents to make the arrangements as watertight as possible)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/595.html

section 2 of the Surrogacy Arrangements Act 1985 which says :

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

On a strict interpretation of that section, even doing the research about surrogacy and giving it to your client by way of advice can fall foul of that, if you then charge them for it s 2 (1) (c) – it actually looks like not only is the solicitor committing an offence for charging, but the client also for asking them to do it and offering to pay for the advice…

[That might cause a problem with some of the guidance given by the High Court in this case that people contemplating overseas surrogacy should seek specialist advice first]

There are slightly more complicated provisions when the surrogacy is commissioned from a woman living in another country, and that is what Re WT is all about.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1303.html

In that case, two people sought through an agency – the Kiran infertility centre (which immediately rang a not entirely positive-sounding bell with me… more later) to commission a woman in India to have a baby on their behalf.

The baby was conceived by using the male’s gametes artificially inseminating the woman in India (the use of gametes or an egg or embryo is from one of the commissioning couple what makes it surrogacy rather than an adoption that is paid for) . That woman is named SA in the judgment.

The couple paid the sum of $28.000 dollars to the Kiran infertility centre. The biological mother, SA, received 350,000 rupees (the judgment never actually does the currency calculation, so I will. The woman received roughly $5,800 dollars, leaving the clinic with $22,200. )

The couple then made an application for a parental order in the UK, this being what would make them both legally the parents of this child.

As the Court carefully point out, such an application HAS to be made within 6 months of the child’s birth – the Court has no power to extend that time-limit. If it isn’t made in time, the Court can’t consider the application.

In order for the Court to make the parental order, one of the issues that they need to consider is the consent of the mother – that has to be given at a period after the first six weeks of the child’s life (as an insurance that the decision is not being made at an emotionally vulnerable time, when hormones are having a significant sway on emotions and decision-making)

The clinic were less than helpful in getting the evidence about the mother’s consent

The parental order application is dated 14 March 2013. I have dealt with the four directions hearings prior to the final hearing on 4 March 2014. The main concerns I had on the information that was available when the matter first came before me can be summarised as follows:

(1) all the documents signed by SA were in English, including importantly the consent Form A101A. There was no information available as to whether she spoke English, was literate or had had the documents read through and interpreted for her;

(2) the applicants had not met SA and were unable to provide any information about her first language or her level of literacy;

(3) the enquiries they made with the clinic to seek clarity about the circumstances in which SA signed these documents were not responded to by the Clinic in a helpful or constructive way;

(4) the attempts to locate SA at the address on the documents were unsuccessful as the address given by the clinic for her covered a very large area;

Because of these issues, the couple sustained considerable additional costs in obtaining better evidence about the mother’s consent, and the judgment is critical of the clinic

The Clinic in this case has not always been helpful in the way it has responded to reasonable requests made on behalf of the applicants, often such requests were following specific directions made by this Court. They were given the opportunity to make representations to this Court but have not done so. Delay was caused as the Clinic insisted on being sent hard copies of the letters requesting information and consent from the applicants to do so. The Clinic makes the fair point that it is not in their interests not to help their clients obtain parental orders. Some of the documents signed by SA appeared to be in a standard form and contained provisions that were not accurate, or were not completed. For example, the ‘Agreement for Surrogacy’ signed on 29 December 2011 contained a provision which stated ‘I have worked out the financial terms and conditions of the surrogacy with the couple in writing and an appropriately authenticated copy of the agreement has been filed with the clinic, which the clinic will keep confidential’. The applicants said they had had no contact with SA in writing and were not aware of any agreement being filed with the Clinic prior to the Agreement for Surrogacy.

Eventually, the couple were able to provide the evidence that satisfied the Court that mother had given free and informed consent. The Court was also satisfied that the couple were able to offer the child a good and loving home and that making the parental order was the right thing to do.

The Court then looked at the payments – the Court has to retrospectively authorise those payments under s54(8) when making the parental order.

As the judgment shows, the public policy reasons for this are strong – if the payment is too low, there is a risk that the mother is being exploited, if too high there is a risk that her decision has been swayed by financial considerations. It is also clear that the Court has jurisdiction to look at payments made to the foreign agency (remember, if you were running a UK surrogacy agency, it would be illegal to charge money for ANY of your services)

Turning finally to the question of payments under s 54(8). Whilst the focus of the court’s consideration is on payments made directly or indirectly to the surrogate mother, it is clear from cases such as Re C [2013] EWHC 2408 (Fam), the payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions require authorisation by the court, insofar as such payment cannot be considered to have been for expenses reasonably incurred.

The applicants have produced a part breakdown of the payments they made totalling almost $28,000. The breakdown given appears incomplete: $11,675 was paid when they registered with the clinic in May 2011 followed by 6 payments of $2,500 between March to October 2012. There are then some one off items listed as post birth administrative fees ($245), notary fee ($260), SA’s travel expenses ($350) and courier charges ($45). No other breakdown of how the sums paid to the Clinic is given, despite requests being made to the Clinic to do so. The Clinic’s unhelpful response to such a request is as follows ‘payments made to clinic for the entire surrogacy process are available with your clients’. If that was the case the request to the Clinic would not have been made.

The applicants had no direct dealing with SA. The only information they have regarding payments made to her are the documents signed by her that confirm she received 3,50,000 R’s. In a subsequent email from the clinic dated 3.1.14 they confirmed that SA was not required to pay the caretaker or Dr Sekhar out of the monies she received and SA in her meeting with the Ms Baria confirmed she received 3,50,000 Rs. This level of payment to the surrogate is the same as authorised in D & L [2012] EWHC 2631 (Fam) [2013] 1 WLR 3135 which concerned the same clinic.

When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) [2009] 2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) [2011] 2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam)).

(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;

(2) the principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006, at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.

I am entirely satisfied the applicants have acted at all times with good faith and without moral taint. They took great care to select the clinic they used, undertook extensive research and enquiries and also formed their own judgment when they visited the clinic. They have displayed independent judgment by not always following the advice of the Clinic, for example which FRRO to secure the exit permit from. There is no evidence to suggest they have been otherwise than honest and candid in all their dealings with the Indian and UK authorities and have complied with the directions of this court. The amounts paid to the Clinic were set by the Clinic in a jurisdiction where commercial surrogacy is not unlawful. The amount paid to SA was not negotiated by them, appears to have been fixed by the Clinic, is the same as a previously authorised payment approved by this Court and is not dissimilar from payments made in similar surrogacy arrangements in Indian clinics. There is no evidence to suggest SA did other than freely consent to the surrogacy arrangement.

In those circumstances the payments made other than for expenses reasonably incurred are authorised by the court

The Court are of course in a bit of a bind here, and that’s hinted at here. Where the Court think that the couple have behaved properly, but that the fees were too high, their only sanction is to refuse to retrospectively approve the payments. But the money has already been spent, so what good does that do? Ultimately, the Court have the power to not make the parental order if they feel that the couple have improperly “bought” the child, but in a case like this where one might feel that they have been ripped off, there’s nothing the Court is likely to be able to do for them.

[There’s also, for me, a grey area as to whether when considering whether the payments are so grossly disproportionate that they shouldn’t be allowed, as to whether the Court is looking solely at what the couple pay or what the biological mother receives, and compare that to the value of the money in both countries. It is possible, I don’t know, that $5,800 is not a grossly disproportionate amount here, but in another country that sum of money might compare extremely favourable to annual income]

And you will see from the reference to D and L (Minors Surrogacy) 2012 that I was right to recall Kiran Infertility Clinic

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2631.html

In that one, the clinic didn’t get an address for the biological mother, causing huge problems in evidencing their consent. If you read my piece on that at the time,

https://suesspiciousminds.com/2012/10/01/be-my-be-my-baby/

you might remember this particularly telling feature

At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16^th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture

As I’m not charging anyone who reads this blog any money, I can give my advice about surrogacy without breaking the criminal law. My advice is, read these judgments and shop around before you decide which agency to use.

The Court go on to give some general advice to couples contemplating surrogacy with an overseas woman

As can be seen from what I have detailed above this application has not had an easy journey to the final hearing. Adopting the words of Hedley J in the first reported foreign surrogacy case heard over 5 years ago Re X&Y (ibid) paragraph 2 ‘..the path to parenthood has been less a journey along a primrose path, more a trek through a thorn forest. The court shares their [the applicants] hope that their experiences may alert others to the difficulties inherent in this journey.’

Having dealt with a number of these cases, many of which involve unrepresented applicants, it may be helpful to highlight the areas that cause most difficulty in these cases:

(1) Those who embark on surrogacy arrangements abroad need to be alive to the pitfalls there can be with such an arrangement and it may be wise for commissioning parents to consider taking specialist advice at the earliest opportunity, both here and in the jurisdiction where the arrangement is entered into. To proceed in the absence of such advice can lead to significant emotional and financial hardship and further delay.

[As I commented at the outset, charging for such specialist advice is not as straightforward as one might hope]

(2) It is critical that an accurate documentary account of the various steps is kept by the commissioning parents so it can be available, if required, in support of a parental order application to assist in satisfying the relevant criteria under section 54. This is particularly relevant when considering any payments made and what, if any, are caught by the provisions of s 54(8). What is most helpful for the court is a schedule setting out the payments made and what they were for.

(3) A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period. The recent decision of Mrs Justice Eleanor King in JP v LP and Others [2014] EWHC 595 (Fam), although in the context of a domestic surrogacy, is a timely reminder of the legal complexities if such an application is not made in time. Parental orders change parental status permanently, extinguishing the parental status of the surrogate mother entirely (and her husband, if applicable). Such orders confer legal parenthood and parental responsibility on both applicants for such an order.

(4) The requirement for the surrogate mother (and her husband if she is married) to give consent freely, unconditionally and with full understanding of what is involved is a fundamental part of the s 54 criteria. Depending on the circumstances the commissioning parents may need to consider meeting the legal fees for the surrogate mother, limited to taking advice on the consequences of a parental order being made. The cost of such advice is likely to be considered an expense reasonably incurred. In addition, it is clearly essential there is evidence to demonstrate (if required in the circumstances of the case) that any document signed by the surrogate mother is understood by her and, if necessary, translated into her first language before she signs it. Again, any costs incurred for this are likely to be considered an expense reasonably incurred.

(5) In this case the applicants were not able to meet the surrogate mother which in the Court’s experience is relatively unusual. If they had met her they may have been able to provide helpful information to the Court. In the event commissioning parents are not able to meet the surrogate mother they should seek to establish clear lines of communication with the surrogate mother, and ensure she is made aware during the pregnancy that she will need to give consent at least six week after the birth.

I wish this couple the very best of luck with their child, and it is a shame that so much additional cost and stress was caused to them in this process. They chose their UK lawyers very wisely in this case, in my humble opinion, and were in the best possible hands.

Comments Off on Surrogacy arrangements made overseas

Posted in case law and tagged consent to parental order, fees for surrogacy, importance of applying for parental order in six months, international surrogacy, kiran infertility clinic, overseas surrogacy, parental order, re WT 2014, surrogacy. Bookmark the permalink.

Pah-pah-pah-poker face

Posted on April 28, 2014 by suesspiciousminds

Hakki v Secretary of State for Work and Pensions 2014

This case has some impact on family law, because it arises from the decision of the First Tier Tribunal that Mr Hakki (who was earning about £500 per day from being a ‘professional poker player’) ought to pay Child Support to his children. This was appealed by Mr Hakki on the basis that as a professional gambler, he was neither employed nor self-employed, and thus not within the Child Support Agency remit. [and on the unspoken basis that he was not a man who had a highly developed sense of shame]

I like this case, because it gets into a very old piece of caselaw which also has a great name Graham v Green 1925 (not to be confused with Bill v Oddie 1951 – the famous case which turned on whether the pop singer had invited him to “put your hands all over my body” or Tim Brooke v Taylor 2004)

http://www.bailii.org/ew/cases/EWCA/Civ/2014/530.html

The point is that in order for a person’s income to be relevant for Child Support purposes, it has to be either income received in employment, or taxable income from self-employment.

As you may know, the Courts have historically said that you can’t legally enforce gambling debts

[There is a very fine A J P Herbert legal essay explaining that as marriage in those days when cohabitation simply wasn’t done, was in effect a gamble using skill and judgment that you had picked someone who you might be compatible with, that all ancillary relief claims are in effect lost gambles, and thus gambling debts that should not be enforced by the Courts]

Graham v Green 1925 decided that it was impossible for a man who made his living from gambling to be considered to be self-employed or for his winnings to be considered as taxable income.

A mere gambler was not taxable; that was what had been decided in Graham v Green and no subsequent authority had departed from that decision of 1925. It might be fair to say that Rowlatt J’s dictum was only part of a general introduction to the law about Case 2 of Schedule D, but it was clear that he did not think a gambler could ever have such a degree of organisation as would enable his winnings to be profits or gains arising from any trade, profession or employment.

Mr Graham was a person who from his own home in Amersham betted on horses at starting prices; that was his only means of livelihood apart from some interest from a bank deposit. The General Commissioners for the Burnham Division of Buckinghamshire decided that he was assessable to tax on his winnings. Mr Barrington-Ward KC submitted on his behalf that no business or system could be constructed out of betting at starting prices; there was no capital and no evidence of continuity but merely individual bets. A bookmaker was different because he bet on a system by adjusting the odds. He was therefore liable to income tax on profits made from betting. The Inland Revenue instructed the Solicitor-General (Sir Thomas Inskip) to defend the Commissioners’ decision. He submitted that betting was (as found) Mr Graham’s livelihood; it was not done casually for amusement; it was a vocation resulting in profits or gains, the vocation of a backer of horses.

The Judge in Graham v Green went on to suggest that a professional gambler, even one who did very well for himself, was not “susceptible to organisation” in a way that could properly categorise him as being self-employed. [underlining mine]

Rowlatt J then distinguished the case of the bookmaker who is (page 42)

“organising an effort in the same way that a person organises an effort if he sets out to buy himself things with a view to securing a profit by the difference in their capital value in individual cases.”

He then turned to the man who bets with the bookmaker and said:-

“These are mere bets. Each time he puts on his money at whatever may be the starting price. I do not think he could be said to organize his effort in the way as a bookmaker organizes his, for I do not think the subject matter from his point of view is susceptible of it. In effect all he is doing is just what a man does who is a skilful player at cards, who plays every day. He plays to-day, and he plays to-morrow, and he plays the next day, and he is skilful on each of the three days, more skilful on the whole than the people with whom he plays, and he wins. But it does not seem that one can find, in that case, any conception arising in which his individual operations are merged in the conception of a trade. I think all you can say of that man, in the fair use of the English language, is that he is addicted to betting. It is extremely difficult to express, but it seems to me that people would say he is addicted to betting, and could not say that his vocation is betting. The subject is involved in great difficulty of language, which I think represents great difficulty of thought. There is no tax on a habit. I do not think “habitual” or even “systematic” fully describes what is essential in the phrase “trade, adventure, employment, or vocation”. All I can say is that in my judgment the income which this gentleman succeeded in making is not profits or gains, and that the appeal must be allowed, with costs.”

Although this final paragraph concludes with a reference to Mr Graham himself, it is couched in terms of complete generality. It is clear that Rowlatt J thought that the effort of a gambler is not “susceptible to organisation” in the same way that a bookmaker organises his effort. If that is right an individual gambler, as such, cannot be taxable on his winnings. The fact that many gamblers may have (or think they have) a system which results in their winning more often than losing cannot constitute a sufficient degree of organisation to constitute a trade, profession or vocation.

This authority has now stood for many years and I would certainly not in 2014 wish to question it, even though it can be said that the Court of Appeal in Cooper v Stubbs [1925] 2 K.B. 723 left the matter open.

But of course, the world of the professional gambler in 1925 is slightly different to what it is today. If the way in which Mr Hakki ran his enterprise had that element of organisation , could his winnings be taxable and thus relevant for Child Support? And if not, might there be areas of Mr Hakki’s income that COULD in fact be categorised as being taxable, or self-employed?

For example, Mr Hakki has appeared on television programmes about poker, appeared in poker magazines and gives advice on his website about being a professional gambler. If he were to be earning from THIS, in addition to winning on the tables, the former might be taxable income, whilst the latter would not be.

Rowlatt J did not have to consider, however, a case of a gambler who could legitimately be said to be running a business. A poker player who appeared regularly on television advising people how to play poker and received a fee for so doing would no doubt be taxable in respect of his fees because he would be engaging in a trade or profession. If in the course of that business he also made winnings from other people participating in that programme, that might well be part of that business. Mr Bartlet-Jones suggested numerous hypothetical cases in which it might be said difficult to say precisely which side of an undoubtedly existing line each such hypothetical case might fall. I am therefore persuaded that it is possible to conceive a case in which a gambler’s winnings might be taxable.

Subsequent authorities show that such a case is indeed conceivable. In Down v Compston [1937] 2 All E.R. 475 a professional golfer was taxed on his professional earnings in the ordinary way. He also received winnings from bets on separate private games. These winnings were not taxable since his vocation as a professional golfer did not give rise to his winnings nor did he have an organisation constituting the business of betting on his private games of golf. In Burdge v Pyne [1969] 1 W.L.R. 364, by way of contrast, the taxpayer was the owner of a club which provided fruit machines, a card room and roulette. Mr Burdge was usually present and successfully played Three-Card Brag with members of the club. He (or a member of his family) always acted as dealer and he always won. These winnings were held to be part of his trading receipts and were taxable. The case was thus different from that of Mr Graham because there was a trade whereas Mr Graham “was not carrying on any trade at all”, see page 368A per Pennycuick J.

The question is therefore whether Mr Hakki had sufficient organisation in relation to his poker playing to constitute a trade in the sense that the word is used in the tax cases.

In this particular case, please bear in mind that both Mr Hakki and the Secretary of State were arguing that the income of Mr Hakki was not taxable, and thus not relevant for child support. That meant that Mr Hakki, although not impoverished, had no duty to support his children with his gambling income, and the Child Support Agency couldn’t touch him for it. You can understand why the Court of Appeal wanted to look at this with some rigour, as it doesn’t sit very comfortably when you look at it from the viewpoint of his children and the mother of those children.

But even with that in mind, the Court of Appeal were unable to conclude that Mr Hakki had the organisation in his enterprise to make it a taxable trade

On the facts found I do not consider that it can be said that Mr Hakki had a sufficient organisation in his poker playing to make it amount to a trade (or a business) let alone a profession or a vocation. Mr Bartlet-Jones relied on the findings (1) that Mr Hakki appeared on television for a few weeks, made the final programme and got a prize (2) that he had his own website and communicated his strategies for online poker (3) that his poker results over 7 or 8 years were published on two other poker websites, (4) that he chose his location (5) that he set a target sum to win after which he stopped and (6) that he selected the table which was most likely to pay him. Even in combination these findings do not to my mind amount to such organisation as to constitute a trade, profession or vocation. The last 3 factors must be common to many successful gamblers. Isolated appearances on television and having one’s own website are hardly, these days, evidence of organisation amounting to a trade or profession. There is just no element of what Rowlatt J called

“a subject matter which does bear fruit in the shape of profits or gains.”

There is no “element of fecundity”, merely frequent and successful playing at cards.

In these circumstances I am satisfied that, if the First Tier Tribunal had correctly directed themselves in law, they could not have found that Mr Hakki’s winnings at gambling were earnings from gainful employment within the MASC Regulations. There would have to be evidence of much more by way of organisation than found by the Tribunal before Mr Hakki could be said to be making earnings from any gainful employment. There was no such evidence in the present case and it is, indeed, the converse of Edwards v Bairstow [1956] A.C. 14 where the General Commissioners had decided that buying and profitably selling a spinning plant did not constitute an adventure in the nature of trade under Schedule D of the Income Tax 1918, when the only possible conclusion on the facts found was that it was such as adventure. In these circumstances the House of Lords held that the Commissioners’ inference that there was an adventure in the nature of trade had to be set aside. So here the only possible conclusion is that Mr Hakki was not gainfully employed as a self-employed earner.

Unless you are a poker-playing man with children he doesn’t want to support, I suspect you may be saying “Boo” here.

Me too.

The Court of Appeal do offer mother one final card to play (I will in turn suggest another )

One quite understands Judge Mesher’s anxiety to hold that Mr Hakki should make the appropriate contribution to his children’s upbringing when he is apparently quite able to make that contribution. Mr Buley pointed out that there may be a way to compel him to make such contribution by making a “departure direction” pursuant to sections 28A-28I of the Child Support Act 1991 as further elaborated by the Child Support (Departure Direction and Consequential Amendments) Regulations 1996. One ground for making a departure direction is:-

“where the Secretary of State is satisfied that the current assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall lifestyle of that non-applicant” (see Regulation 25).

Once the Secretary of State gives effect to our decision setting aside the First Tier Tribunal’s assessment of Mr Hakki’s contribution to the support of Ms Blair’s children, it may be open to Ms Blair to apply for a departure direction on this or other grounds. This court cannot say whether such an application will succeed, only that the opportunity of making such an application appears to exist.

The other card that mother could possibly play is an application under Schedule One of the Children Act 1989, which is not asking for maintenance*, but for the children to share in the capital of a parent. If Mr Hakki has salted away some of his winnings, then this would be capital, and potentially capital that could be claimed against.

[*It is possible to apply for periodical payments under Schedule One, I might want to avoid that, in case the “income” arguments here arise again]

I believe, though would recommend getting specialist legal advice, that there have been Schedule One claims made against capital that arose from windfalls, such as lottery wins or inheritances, rather than capital that built up from an accumulation of taxable income. I can’t see anything within the Act that would fetter the Court’s ability to consider any capital that the father has based on how he happened to come by it.

I have made such applications in the past where a father’s level of wealth was such that the Child Support Agency cap was reached without being a meaningful contribution to the lifestyle that the children would have had if the father and unmarried mother had continued their relationship.

(The mother’s legal costs can be claimed in such an application following NMT v MOT 2006 [2007 2 FLR 925] )

Presumably, though it is hard to see the circumstances in which this would ever be litigated, if a man’s earnings arise predominantly from crime (such as making and selling crystal meth) then that would not be a taxable form of self-employment – it might be that the Court would find that there was a level of organisation (although if the organisation is so bad that the mother of the drug lords children blows the whistle on him because he is too tight to pay any child maintenance, it isn’t much of an organisation)

Being the sort of loophole guy that I am by nature, I am pondering now whether one could do plastering for free, with the proviso that after the work is done, you then play poker with the person you did the plastering for. That person coincidentally being very bad at playing poker.

You don’t get paid for the plastering (which would be taxable income), you just WIN the same sort of amount that you would theoretically have charged by being lucky/skilful at poker (which would not be taxable income)

Or indeed, rather than charging people for legal advice, you give them the legal advice for free, and then play some poker with your new found friend for money.

I STRENOUSLY ADVISE against attempting this. Seriously, don’t try it. I really don’t think that it would actually work in the real world. Unless you are Jimmy Carr, or a minor member of the Royal Family. Not even then, probably. DON’T DO IT.

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Posted in case law and tagged case about poker player, child maintenance, child support agency, gambling income not taxable, hakki, hakki 2014, law and poker, poker, poker player not self-employed, schedule one children act. Bookmark the permalink.

The President’s decision in Re S (26 weeks and extensions) Part 2

Posted on April 17, 2014 by suesspiciousminds

The judgment is on the previous blog (I’m sure it will be on Bailii shortly)

This case really turns on the provisions of the Children and Family Act 2014 that come into force on Tuesday 22nd April. What we have here, somewhat unusually, is a leading Judge giving authority as to the interpretation of an Act which has not yet come into force. Sentence first, verdict later, as it were.

At least it avoids any other Judge giving a judgment on Tuesday or afterwards which doesn’t accord with the President’s view of the test, so we all know where we stand. [In fairness, because the decision that was being sought was to adjourn the case well beyond 22nd April, the future provisions would have kicked in by the time that the case fell to be determined, so it might have been hard to simply ignore them]

On the facts of the particular case, this was about a mother with a history of substance misuse problems, on child number four, with the previous three having been removed. There had been drug tests within the proceedings showing “at worst very low levels of drugs in the mother’s hair”

The proceedings began in October, and we are now April. The mother’s application was for a residential assessment, that would last for a period of six to twelve weeks and if successful that would be followed by an assessment in the community. That would obviously take the case beyond the 26 week target of the PLO (and of course, given that the Children and Families Act provisions about timescales come into force next week, by the time of any final hearing, that would go beyond the new statutory requirement of 26 weeks). There were, however, three expert reports suggesting that the mother was making progress and that such an assessment might bear fruit.

The President was therefore considering whether to grant the adjournment and application for residential assessment, and doing so against the backdrop of the 26 week statutory position and the new provisions of the Children and Families Act as to exceptional circumstances that justify an adjournment of 8 weeks beyond that.

What was also in his mind was the new statutory provisions about expert evidence (which in effect incorporates into section 38 of the Children Act the current Rule 25 Family Procedure Rules tests and guidance)

21. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3.

This is what the President says about the statutory provision that care proceedings should be concluded within 26 weeks

24. Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first ‘View from the President’s Chambers: The process of reform’, [2013] Fam Law 548:

“My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.”

The issue then was the statutory provision in s32(5)

A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

and what factors the Court should consider when determining whether to grant such an adjournment.

One might think that those factors are already set out in the Act

s32 (6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

The President cites various authorities (Re B-S and Re NL notably, as authorities for the principle that there will be cases where an extension of time IS necessary to resolve the proceedings justly)

31. In what circumstances may the qualification in section 32(5) apply?

32. This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate

Let’s look at those preliminary and tentative observations

34. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming), para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent’s disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

34. I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.

So, to skip to the chorus – three categories of case where an extension might be warranted (forgive my short-hand mnemonic prompts, which Malcolm Tucker has helped me devise)

1. The case was always going to be super-complicated from the outset (heavy duty fact-finding, FDAC cases, heavy duty international element, parents with disabilities such that specialised assessments are necessary)

“This case was fucked from the beginning”

2. Something massive emerges during the proceedings – (fresh allegations that need to be resolved, death or imprisonment of a key player, a realistic family member comes forward late in the day – “Auntie Beryl alert! Finally an answer – adjournment is going to be permissable for an Auntie Beryl situation!”)

“This case got fucked in the middle”

3. Litigation failure on the part of one of the parties means that it would not be fair to conclude the proceedings

“Some fucker has fucked up”

The Judge then goes on to praise FDAC but delivers this guidance (which probably has wider applicability)

38. Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child’s timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’.

Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale

I think those principles have wider applicability, because the President goes on to use them in this case, which although the background is drugs and alcohol, is NOT a FDAC case.

For this particular case, this is what the President says (bear in mind that this is NOT a final hearing, but an application to adjourn the final hearing and seek a residential assessment. As far as I can tell from the judgment, no live evidence was heard. The remarks don’t leave much room for manoeuvre at final hearing…)

44. there is no adequate justification, let alone the necessity which section 32(5) of the 1989 Act will shortly require, for an extension of the case so significantly beyond 26 weeks. Again, there are two aspects to this. Looking to the mother, there is, sadly, at present no solid, evidence based, reason to believe that she will be able to make the necessary changes within S’s timescale. Even assuming that there is some solid, evidence based, reason to believe that she is committed to making the necessary changes, there is, sadly, not enough reason to believe that she will be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she will seems to me to be founded more on hope than solid expectation, just as does any assertion that she will be able to make the necessary changes within S’s timescale. Secondly, I have to have regard to the detrimental effects on S of further delay. Far from this being a case where the child’s welfare demands an extension of the 26 weeks time limit, S’s needs point if anything in the other direction. I accept the guardian’s analysis.

If you were thinking that this was all very peculiar, I haven’t even got to the best bit

I have been sitting at Bournemouth in the Bournemouth and Poole County Court hearing a care case. It is a very typical County Court case

[There is nothing in the history of the litigation set out in the judgment that ever shows that the case was transferred from the County Court to the High Court. So is this binding authority about provisions of an Act which weren’t in force at the time the judgment was given, actually a County Court judgment? ]

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Posted in case law, children and families act 2014, timescales and tagged 26 weeks, 8 week extension, applying to extend the timetable in care proceedngs, bournemouth county court, children and families act 2014, factors that justify an extension to 26 weeks, president of the family division, re S, Re S (A child) 2014, s32(5) children act. Bookmark the permalink.

President’s judgment Re S (26 week and time extensions) Part One

Posted on April 17, 2014 by suesspiciousminds

This has come my way but is not yet on Bailii – so blog on it to follow, but first things first, the judgment, which the President himself has circulated to interested persons (I’ve put it on here in full, as it is going to impact on all cases from our next working day)

Case No: DO13C00782

IN THE BOURNEMOUTH AND POOLE COUNTY COURT

(In Private)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16 April 2014

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

– – – – – – – – – – – – – – – – – – – – –

In the matter of S (A Child)

– – – – – – – – – – – – – – – – – – – – –

Mr Anthony Hand (instructed byTanya Hall, Bournemouth Borough Council legal services) for the local authority

Mr Andy Pitt (of Aldridge Brownlee Solicitors LLP) for the mother

Ms Nicola Preston (of Dutton Gregory) for the father

Mr Steven Howard (instructed by Pengillys) for the children’s guardian

Hearing date: 25 March 2014

– – – – – – – – – – – – – – – – – – – – –

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

………………………..

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Sir James Munby, President of the Family Division :

I have been sitting at Bournemouth in the Bournemouth and Poole County Court hearing a care case. It is a very typical County Court case but, as it happens, it raises a point on which it is desirable that I should give a judgment directed to a wider audience.

The background facts

S, the child with whom I am concerned, was born in October 2013. She is the youngest of her mother’s four children. The three older children have all been taken into care. The mother, as is common ground, has a history of street prostitution and drug taking. Her third child was born with drug withdrawal symptoms.
The proceedings in relation to S began in October 2013. An emergency protection order was granted on 21 October 2013, followed by an interim care order on 28 October 2013. The case was transferred to the County Court. It came before His Honour Judge Bond on 14 January 2014 for a further case management hearing. There was a formal application by the local authority for permission to instruct an expert, a psychiatrist, and an informal application by the mother for an assessment in accordance with section 38(6) of the Children Act 1989. Amongst the papers before Judge Bond was a parenting assessment by the local authority dated 20 December 2013, a further report from the local authority dated 6 January 2014, and reports dated 3, 4 and 30 December 2013 from Dr Menzies Schrader, a specialist psychiatrist with the local Mental Health Team who had been treating the mother. Judge Bond directed the filing by 14 February 2014 of a report by a consultant forensic psychiatrist, Dr Jane Ewbank. He adjourned the mother’s application pending receipt of Dr Ewbank’s report.
The mother’s adjourned application came before me on 25 March 2014. By then Dr Ewbank had reported. Her report is dated 18 February 2014. Mr Andy Pitt on behalf of the mother renewed her application for an assessment under section 38(6). As refined before me, the proposal was that I should direct a residential assessment of S and her mother at Orchard House, a Family Assessment and Intervention Centre in Taunton, initially for a weekend and, if that proved successful, for a period of between six and twelve weeks. This residential assessment might then (see below) be followed by a further period of assessment in the community. The application was opposed both by Mr Anthony Hand on behalf of the local authority and by Mr Steven Howard appearing for S’s guardian, as well as by Ms Nicola Preston representing S’s father. There were reports from Orchard House dated 15 December 2013 and 20 March 2014 setting out what they could offer. There was also a report dated 20 March 2014 from the Dorset Working Women’s Project, a sexual health project working with women who sell sex, particularly those who misuse drugs and/or alcohol.
I also had the results of various hair-strand drug tests which the mother had recently undergone. These results were not easy to interpret, though they showed at worst very low levels of drugs in the mother’s hair. Mr Pitt did not invite me to hear evidence from the mother, so on this point I cannot come to any conclusion. Nor do I express any views. There is in the event no need for me to do so. I am content for present purposes to proceed on the assumption, though without deciding, that the mother was ‘clean’ during the periods covered by the tests.
Having reflected on the matter overnight, I informed the parties the following day that I had decided, for reasons which would be given in due course in a written judgment, to refuse the application. It was accordingly dismissed.

The mother’s problems

There are various strands to the mother’s problems. For present purposes they can be summarised as follows. The mother is a vulnerable woman who struggles to care for herself. She has mental health problems, an anxiety disorder (exemplified by fears of travelling on public transport and at times elective mutism) with intermittent depressive episodes and borderline low IQ. She has a long history of polysubstance drug misuse and street prostitution.
In relation to this, Mr Howard took me to the notes of the mother’s supervised contact sessions with S. Two themes emerge. The first relates to the mother’s personal appearance and presentation. There is frequent reference to the mother arriving for contact unkempt, with dirty clothes and smelling of tobacco smoke and unpleasant body odour. She is recorded as being shaky, swaying and shuffling (though apparently not smelling of alcohol). The relevance of this, I assume, is that the mother’s inability to look after herself throws light on her ability to look after S. More important are the recordings of the interaction between S and her mother. There is quite frequent reference to the fact that S rarely makes eye contact with her mother but does with the workers, that the mother “has her vacant expression throughout contact” – what on one occasion is described as her “dreamy frozen stare” – and that there is very little interaction between S and her mother. The note of contact on 3 March 2014 comments that S “does not get much stimulation during her contacts.” The note of contact the following day records that when her foster carer arrived to collect her, S was “very happy and smiled at the foster carer.” The comment is added that “S is a very different child when she is with the foster carer S is a happy laughing child.”

The expert evidence

The local authority’s parenting assessment dated 20 December 2013 contains an analysis of which the following are the most significant passages:

“[A report] evidenced some positives in the basic case of S provided by [the mother] during the parenting assessment sessions. [She] has also evidenced a high level of motivation during the assessment, and has engaged to a high level

[She] has remained stable on her methadone prescription as proven by her hair strand test. This is a positive step forward and indicates a desire and ability to remain clean even at times of stress such as current proceedings

…

The child protection risks are of concern and there are still considerable risks potentially posed to S.

However [the mother] has showed some positive insight into parenting and has showed potential for further growth and change.

[Her] mental health difficulties are complex and difficult to understand and I feel we require in depth support from her mental health professionals, to ascertain if there is further support that could be provided with regards to her mental health that may improve [her] position as good parent.

There is a possibility that a short term mother and baby placement tailored to [her] additional needs may be appropriate dependent on other professionals reports and professional opinions. This would be to further determine if she can parent in the whole when responsible for her child, or whether or not, she can merely manage basic parenting in a controlled environment such as FRC for 1½ hours.

It should be noted that since completion of the report, I have had access to case recordings from recent contacts from the start of December and there has been deterioration in [her] parenting skills and presentation.

There have been concerns raised by the contact worker regarding her physical support of S, her hygiene and nappy changing. It is unclear why this change in [her] skills has changed.

[She] has also expressed to contact workers she is experiencing panic attacks and cannot cope with the short journey by taxi to FRC. This contradicts the information she provided to me, and is concerning she is mentioning this now the assessment is complete.

The fundamental concern this raises is that since completion of the parenting assessment, [she] has been unable to sustain the level of parenting she previously was providing S. This could be due to instability in her mental health or an inability to maintain good level of parenting.

S requires a safe, nurturing and consistent upbringing to ensure she has the best possible opportunity for a health and happy life.

If [the mother] is unable to provide this in the confines of the FRC, it is questionable whether or not she could long term.”

The further report dated 6 January 2014, which records a visit to the mother’s home on 4 December 2013, contains this comment:

“It was very evident during my visit that [the mother] is fully dependent on her sister … to fulfil her day to day needs which concerns me in respect of [her] ability to parent S independently.”

The mother’s key worker at the Dorset Working Women’s Project describes working with the mother from 2001 until 2008, when “she appeared to have settled down and was stable.” She next saw the mother in December 2012, describing her then as being “clearly mentally unwell and extremely vulnerable.” She continues:

“[She] appeared to be making progress until she was befriended by a known perpetrator who has a history of violence and abuse towards vulnerable women … Unfortunately once the relationship began [he] had complete control over [her] … and she appeared to be working more.”

That man is S’s father. He has been in prison again since July 2013. Of the mother’s subsequent re-engagement with the Project and more recent presentation the key worker says that the mother’s presentation has “improved greatly” and that she “continues to make good progress”.

Dr Schrader was supportive of a residential assessment to assess the mother’s parenting abilities. In his report dated 30 December 2013 he said that “Her presentation currently is vastly improved from how she presented in 2012 and in January of this year and I believe is primarily as she is having input and been abstinent from substances. This is the first time she has engaged to this extent”. On the other hand, he noted that she “continues to have difficulties with anxiety” and described her as “a complex lady who desperately would like to raise her daughter, but who has numerous issues which could impede this process.” He added, “Improvement in these areas of difficulty is going to take time.”
Dr Ewbank accepted that the mother “appears to be demonstrating an increased capacity to engage in treatment with both the drug services and the CMHT”. Commenting that “Historically she has been a very poor engager, missing multiple mental health appointments and repeatedly disengaging from drugs services either by not attending or by using illicit drugs on top of her Methadone prescription,” Dr Ewbank continued, “There does appear to be evidence over recent months of sustained engagement with both services and she has clearly benefited from the support of … the Dorset Working Women’s Project.” Asked to indicate the prognosis for change, Dr Ewbank said:

“Given [her] long standing drug problems, dating back almost 20 years, it is likely that achieving and sustaining first stability and subsequently abstinence from illicit drugs may take some time and is likely to require on-going treatment and support for many years.”

She added, “there is still a very real risk that she may resort to buying other medication to help her sleep … and thus exacerbate her problems again.”

Orchard House

Having reviewed the papers in the case, Dr Freda Gardner, a consultant clinical psychologist and the clinical director of Orchard House, expressed the view in her report dated 15 December 2013 that a residential assessment was appropriate and indicated. She described the regime:

“The high level of monitoring, 24-hours a day, afforded by a residential assessment would allow a thorough assessment of parenting to be undertaken whilst concurrently ensuring the safeguarding of S. This would include [the mother’s] parenting ability, and capacity for further change, and a consistent period of assessment regarding her current drug use.”

She continued:

“During assessment at Orchard House [she] would be provided with a tailored package of support and intervention to develop her capacity / potential capacity to meet the full range of S’s needs, including ‘Keep Safe’ work around prostitution, appropriate adults, and ongoing drug use.

The Social Work led Assessment Team and the Family Support Workers at Orchard House are highly experienced in working with a wide range of parents, and benefit from full integration of Clinical Psychologists experienced in a wide range of clinical presentations including personality disorder presentations and selective mutism. The staff support parents in developing skills and provide immediate verbal feedback, as well as written / pictorial feedback to improve parenting skills, which are based on research evidence. All staff at Orchard House aim to ensure that each family receives appropriate and consistent information The staff use a variety of techniques and specialist materials designed to help parents learn new skills, which may include formal instruction, modeling, breaking tasks down into small chunks, and giving lots of opportunities for rehearsal and repetition.

…

I am aware that any assessment will need to be within S’s timescales, and would therefore recommend that the residential assessment be kept as brief as possible, with regular reviews held to ensure the progression of the assessment. Typically, residential assessments are 6-12 weeks in length, though this depends on the specific needs of the family and the key issues of the assessment. Following a successful period of residential assessment, it may be appropriate for the assessment to move to the community or to the Orchard House community base. Orchard House are able and willing to provide carefully considered plans for transition.”

In her further report dated 20 March 2014 Dr Gardner confirmed her opinion that Dr Ewbank’s report did not change her view.

Section 38(6) – the legal framework

Section 38(6) of the Children Act 1989 provides so far as material that:

“Where the court makes an interim care order … , it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …”

The meaning of this provision is authoritatively explained by the House of Lords in two cases: In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, [1997] 1 FLR 1, and In re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576, [2006] 1 FLR 601. It suffices for present purposes to cite two brief passages from the speech of Baroness Hale of Richmond in In re G. In the first (para 69) she said:

“In short, what is directed under section 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the Act with the minimum of delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves.”

Referring to the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719, the precursor to the revised Public Law Outline (PLO), due to come into force in its final form later this month, she added (para 71):

“if the aims of the protocol are to be realised, it will always be necessary to think early and clearly about what assessments are indeed necessary to decide the case. In many cases, the local authority should be able to make its own core assessment and the child’s guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring.”

I draw attention to Lady Hale’s use of the word “necessary”.

Two other authorities cited to me require brief mention. In Re J (Residential Assessment: Rights of Audience) [2009] EWCA Civ 1210, [2010] 1 FLR 1290, para 10, Wall LJ, as he then was, said:

“I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother’s right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question?”

Referring to this in Re T (Residential Parenting Assessment) [2011] EWCA Civ 812, [2012] 2 FLR 308, para 93, Black LJ rejected the proposition that “a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority.” She continued:

“Still less is there a principle such as that for which [counsel] contends, namely that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made’.”

Sir Nicholas Wall P, para 53, identified the “critical questions” as being:

“(1) does this child’s welfare warrant an assessment under section 38(6) of the Act? And (2) in looking at the timetable for the child, is there evidence that this mother will be able to care adequately for the child within the child’s timetable?”

Later this month, the amendments to section 38 of the 1989 Act effected by the Children and Families Act 2014 will be brought into force. Sections 38(7A) and (7B), inserted by section 13(11) of the 2014 Act, provide as follows:

“(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to –

(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b) the issues with which the examination or other assessment would assist the court,

(d) the evidence otherwise available,

(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f) the cost of the examination or other assessment, and

(g) any matters prescribed by Family Procedure Rules.”

The language of section 38(7A) replicates, in all material respects verbatim, the more general provision in section 13(6) of the 2014 Act which applies to the calling of expert evidence (and which in turn replicates, with the addition of the word “justly”, the language of FPR 25.1). Likewise, the language of section 38(7B) is very similar to that of section 13(7) of the 2014 Act.
For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3.

The wider context

By the time the case came before me on 25 March 2014, the proceedings had already been on foot for a little over five months. What was being proposed by Orchard House envisaged a process that might extend the proceedings well beyond six months, indeed possibly for as long as eight months or even longer. This requires consideration of the principle set out in the interim PLO – which applies to this case – and shortly to be reinforced by section 14 of the 2014 Act.
Section 14 of the 2014 Act amends section 32 of the Children Act 1989 so that from later this month section 32 will in material part read as follows:

“(1) A court hearing an application for an order under this Part shall …

(a) draw up a timetable with a view to disposing of the application –

(i) without delay, and

(ii) in any event within twenty-six weeks beginning with the day on which the application was issued; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.

…

(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

…

(10) Rules of court may provide that a court –

(a) when deciding whether to exercise the power under subsection (5), or

(b) when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules.”

No rules have been made pursuant to section 32(10) and none are proposed to be made for the time being.

Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first ‘View from the President’s Chambers: The process of reform’, [2013] Fam Law 548:

What then of the qualification in section 32(5)?
In In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, paras 32-46, the Court of Appeal spelt out the essentials which the law and good practice demand in all cases when the court is being asked to approve a care plan for adoption or being asked to make a non-consensual placement order or adoption order. Giving the judgment of the court, I said this (para 49):

“We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption.”

I continued:

“If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.”

That approach, which is entirely compatible with the requirements of section 32, applies not just in the particular context under consideration in In re B-S but more generally.
In my seventh ‘View’, [2013] Fam Law 1394, I described the remarkable work being done by the Family Drug and Alcohol Court (FDAC) under the inspirational leadership of District Judge (Magistrates’ Court) Nicholas Crichton. I touched on the question of how the FDAC model was to meet the challenge of the 26 week time limit and fit with the PLO. I said:

“ … we must see how best the PLO can accommodate the FDAC model (I put it this way, rather than the other way round). We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy.”

More recently, in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), para 40, Pauffley J has expressed the point in words which I cannot improve upon and which I wholeheartedly endorse:

“Justice must never be sacrificed upon the altar of speed.”

So despite the imperative demand of section 32(1)(a)(ii), there can be exceptions. But before going further it is vital to recall the equally imperative language of sections 32(5) and 32(7). An extension beyond 26 weeks is to be permitted only if it is “necessary to enable the court to resolve the proceedings justly”. This is precisely the same language as appears in section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act, so it must mean the same. Specifically, the learning in Re TG and in In re H-L must, in my judgment, apply as much to section 32(5) of the 1989 Act as it does to section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act. Moreover, extensions are “not to be granted routinely” and require “specific justification.”
In what circumstances may the qualification in section 32(5) apply?
This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate.
There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.
I referred above to FDAC type cases. I have in mind cases of the type that might benefit from what I will call the FDAC approach. The approach (see the description in my seventh View, [2013] Fam Law 1394) is based on problem solving by a specialist, multi-disciplinary team supporting the parents in overcoming their problems where children have been put at risk, for example by parental substance misuse. The aim is to help to keep the family together, where possible. The team formulates an intervention plan to test whether the parents can overcome their problems and meet their child’s needs within the child’s timescale. Expectations are clear. The progress made by the parents is monitored regularly. If the parents cannot maintain the necessary progress the process is brought to an end.
Originally, the FDAC approach was pioneered in the FDAC court created by DJ(MC) Crichton at Wells Street in London. Another FDAC is now running at Gloucester and others are planned elsewhere. But the FDAC approach does not necessarily require a FDAC. Similar principles are being applied, for example, in Plymouth, pre-proceedings in a community based model pioneered by Bath and North East Somerset Council, in Liverpool by the use of a pre-proceedings protocol and in a small number of specialist domestic abuse survivors’ projects. No doubt other models will emerge. Typically, a multi-disciplinary team approach is agreed with the designated family judge or judge in charge of the specialist court, so that the support network and assessment team are available and funded in accordance with an agreed model. Decisions in principle about the capability of the parents to care for their child are usually made within 26 weeks, leaving such longer implementation as may be within the child’s timescale to be achieved within an extended timetable for the proceedings.
The FDAC approach is crucially important. The simple reality is that FDAC works. DJ(MC) Crichton has shown what can be achieved for children and their parents even in the most unpromising circumstances. FDAC is, it must be, a vital component in the new Family Court.
Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child’s timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale?

Discussion

On behalf of the mother, Mr Pitt submits that she has complied with everything asked of her, is no longer taking drugs, has made progress in relation to her mental health – she is now talking freely – and continues to engage with the agencies and professionals who are in place to support and assist her.
Mr Hand on behalf of the local authority accepts that, to her credit, the mother has been making improvements. But, he submits, she has a long way to go. There is, he says, no realistic way in which she could care, or be supported long term to care, for S. Given the range of expert material already before the court, further assessment will not, he submits, assist the court in discharging its responsibilities. The combined effect of all the material is, he says, that the mother will not be able to care for S long term. Moreover, given the poor quality of the mother’s contact with S he questions whether it is compatible with S’s welfare to expose her to a residential assessment with the mother in the absence of it having a good chance of success. On top of all that, he questions whether the inevitable delay can be justified unless there is a good chance of success.
Mr Howard, for S, makes much the same points as Mr Hand. While the mother has made improvements they are insufficient and too late to indicate that she would be able to care for S within the child’s timescale. The assessment is not necessary. The guardian, moreover, is particularly concerned about the impact on S of the proposed assessment. The mother’s parenting of S during the assessment could undermine the secure attachment S currently has. Given the extensive assessments already undertaken, the mother’s poor prospects of success do not justify the “experiment” she is proposing, nor is it within the child’s timescale.
After careful reflection I concluded that Mr Hand and Mr Howard were right, and essentially for the reasons they gave. I can summarise my conclusions quite shortly.
In the first place I agree with them that the proposed assessment is not necessary, either in the sense described by Lady Hale in In re G or in the sense (the same sense) in which the word is used in FPR 25.1 and in section 38(7A) of the 1989 Act. There are two aspects to this. Further assessment is not going to add significantly to what the court already knows. Moreover, the kind of assessment proposed by Orchard House, although it may tell us something about the mother’s ability to parent S in a practical sense (though nothing important we do not already know) is not going to be able to tell us very much about the mother’s ability to address her many other difficulties, let alone her ability to sustain in the long term in the community whatever improvements may be noted in the short term in the supportive and controlled environment of Orchard House.
Secondly, there is no adequate justification, let alone the necessity which section 32(5) of the 1989 Act will shortly require, for an extension of the case so significantly beyond 26 weeks. Again, there are two aspects to this. Looking to the mother, there is, sadly, at present no solid, evidence based, reason to believe that she will be able to make the necessary changes within S’s timescale. Even assuming that there is some solid, evidence based, reason to believe that she is committed to making the necessary changes, there is, sadly, not enough reason to believe that she will be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she will seems to me to be founded more on hope than solid expectation, just as does any assertion that she will be able to make the necessary changes within S’s timescale. Secondly, I have to have regard to the detrimental effects on S of further delay. Far from this being a case where the child’s welfare demands an extension of the 26 weeks time limit, S’s needs point if anything in the other direction. I accept the guardian’s analysis.

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Italian C-section case – the final chapter

Posted on April 15, 2014 by suesspiciousminds

I don’t know that this one needs a lot of introduction – it was national, if not international, news in December (although the facts were rather different to the media reports).

This is the judgment from the adoption hearing, which was the last stage left. It was allocated to the President of the Family Division, a judge who has not been afraid to grant leave to oppose (indeed his lead judgment in Re B-S on that very point was the decision that led to such changes)

Re P (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1146.html

You may remember from all of the press reports at the time that mother now had solicitors and was going to fight for her child back. That has not materialised. As the President says :-

As of 1 April 2014 the position remained as it had been on 17 December 2013. Despite what had been said in the correspondence from Brendan Fleming and Dawson Cornwell in December 2013, no application of any kind had been made on behalf of either the mother or the Italian authorities, whether to the Court of Protection, the Chelmsford County Court or the Family Division, nor had any application been made to the Court of Appeal. In particular, it is to be noted, neither the mother, nor for that matter the father, had made any application in accordance with section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of an adoption order.

To be fair to them, getting public funding for a leave to oppose adoption application isn’t easy (though I have seen determined solicitors get it on a much less contentious case than this one, and of course if one is deeply committed to the cause there is always pro bono option – for example, the mother in the Re B-S case didn’t have legal aid and her lawyers did the work for free)

The Judge sets out quite a lot of the email and correspondence between the Local Authority and the mother about this hearing and the chance to express her views

The email notifying the mother of the hearing was sent to her on 7 March 2014. A follow up email was sent on 12 March 2014. The mother responded by email later the same day:

“Dear Lynne thank you for your email I don’t have an advocate and unfortunately I will not able to attend Court, I received all the paperwork that you mailed to the adresse. Thank you very much”

Essex County Council replied by email on 13 March 2014:

“Many thanks Allesandra.

Would you wish to express your view via an email which we can present to the Court on your behalf?

Lynne”

There was no response, so Essex County Council emailed again on 27 March 2014:

“Alessandra – I just wish to remind you that the hearing in respect of [P] will be on Tuesday 1^st April.

I know that you are unable to attend the hearing, but as previously stated, if there is anything that you wish the Court to know about your views on the proposed adoption then please email me by Monday 3 p.m. so I can ensure your views are available to the Court.””

The final email from the mother arrived on 28 March 2014:

“Dear Lynne

I wish for my daughter the best. Me personally I am trying to forget this bad experience I had in England. I love my daughter with all my heart and I pray to see her one day again.”

With that in mind, it is not a surprise that the President went on to make the adoption order, as there was no challenge to it. Obviously this is a sad case, as all adoptions are. Perhaps the mother had given up hope, perhaps she thought that she would have no chance of success, perhaps she just wasn’t in a place where a fight was something she could manage. I feel for her. Less for some of the journalists who high-jacked her tragedy to make cheap and inaccurate points.

I suspect that this judgment won’t get the publicity that the shrill allegations got back in December.

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Posted in adoption, case law and tagged accurate reporting, adoption, adoption case law, italian c-section case, president of the family division, re p a child 2014. Bookmark the permalink.

Surrey seems to be the hardest word

Posted on April 14, 2014 by suesspiciousminds

The High Court decision in Surrey County Council v AB and Others 2014
http://www.bailii.org/ew/cases/EWHC/Fam/2014/1115.html

This is a judgment which might be pertinent for an elephant in the room issue since the Family Justice Review started moving us away from independent experts. Once you take that expertise out of court rooms and decisions about families, what is filling that gap? Is it sufficient to treat all social workers as experts without considering the huge differences between an experienced and analytical social worker and a relative newcomer?

The writer is aware of a pending article for Family Law Week prepared by Miss Battie of counsel, which touches on this very issue.

http://www.familylawweek.co.uk/site.aspx?i=ed128671

In this case, the Local Authority ended up apologising, in writing, to the parents and grandparents because the social worker they had been allocated was “at the bottom of her learning curve”

[Just like any profession, newcomers start out new and have to gain experience by doing it. Every social worker has to have a first case, a first contested case, a first adoption case. The significance of course is that adoption(or separation of a child from birth parents permanently) is, as the Supreme Court reminded us last year, the most dramatic order that can be made in family Courts and it requires a robustness and rigour in the analysis and decision-making if it is to be done fairly. I don’t mean to suggest that all experienced social workers get everything right, nor that all new social workers get everything wrong, rather that when you are looking at a social worker having the entireity of the assessment process on their shoulders rather than having experts to consult with, the individual ability of that social worker comes into play far more than it did two years ago.]

“That document repeats the apology given to the parents and paternal grandmother for them being at the bottom of the “learning curve” for the allocated social worker.”

[Any underlining is mine, for emphasis]

The child in this case was 2 ½ years old. He had significant needs

X has complex health needs. He was born with hypertonia, suffers from a visual impairment Peters Anomaly Type 1/Anterior Dysgenesis Anomoly, has significant motor delay, scoliosis of the spine and suffers from digestive difficulties. As a result of these health difficulties he requires a standard of care that enables his particular health needs to be met. Such care includes 24 hour postural support, careful monitoring of his diet and significant care when feeding and essential auditory and tactile stimulation to ensure his emotional needs are met and to compensate for his loss of other senses. He has been placed with foster carers since May 2012 under a section 20 agreement.
The parents also had significant needs

10. His parents have their own health difficulties. His mother has cerebral palsy involving weakness in one arm and both legs and a possible mild learning disability. The father was diagnosed as a child with ADHD and is said to have Asperger-like symptoms, although there is no formal diagnosis.

The quality of the assessment and interventions that the parents received were a critical part of the case (and given that the Local Authority apologised in writing, you can make an informed guess that there was some judicial criticism of them)

11. One of the central issues in this case has been the adequacy of the assessments of the parents as to their capacity to care for X. Put simply the parent’s case was that the local authority comprehensively failed in their duties to support X’s continued placement with his parents. It is submitted there has been an unfair process resulting in a catalogue of missed opportunities and inadequate assessments, which have resulted in the parents now being at a significant disadvantage in putting themselves forward to care for X.
12. The local authority acknowledges some of their procedures and assessments have been inadequate, but submit the basic factual background has not changed. This is a young boy who needs exceptional care due to his particular needs and the combination of the parent’s volatile relationship and the father’s inability to provide emotional care for this young boy mean his parents were unable to provide the care he needed.

The Judge follows through the chain of mistakes and missed opportunities
Core assessment
17. A core assessment was started on 23 March 2012 and completed on 25 April 2012. Curiously the core assessment under “Agencies contributing to core assessment” records “No Key Agencies identified”. Under the section asking whether there were any disability or communication issues for the child or parents are to be recorded the box is left blank. This is despite it then being known about some of X’s health difficulties and the body of the assessment refers to his ‘global delay’, the mother having cerebral palsy and learning difficulties and the father Aspergers. The assessment also records in relation to the mother that she was ‘unable to use public transport due her physical disability’. The assessment goes on to record under parents’ views ‘[the parents] do not believe that their difficulties will impede on their capacity to care for or meet their son’s needs and their wish for him to be returned to their care in the very near future’. The parents are recorded as not agreeing with the local authority’s recommendation that X be made the subject of a child protection plan, however it goes on to record that both parents ‘are keen to work with all agencies so that they will be able to care for their son’. In the decision section the ‘No further action’ box was ticked.
18. This was not a promising start. On the face of the document it seems incomprehensible that the core assessment failed to identify the disabilities and communication difficulties that were obvious on the face of the assessment. Of the ‘tick box’ decision options there was included ‘specialist assessment’ and ‘referral to other agency’ yet despite identifying difficulties which required further assessment and the parents expressing their willingness to work with agencies no further action was taken. It is suggested that this was one of the first lost opportunities to support the parents in their wish to care for X. I agree.
Core group meeting
19. There was a core group meeting on 27 April 2012 attended by the parents, maternal grandparents, allocated social worker Ms Perrin, the ATM Mr Taljaard, Ms Livingstone the health visitor and Ms Murdoch (described as other social care staff). The minutes dated 8 June 2012 (some six weeks later) record ‘a residential unit for AB and X was discussed with AB stating that she is not keen for this to happen as this would put further stress on [the parents] as a couple’.
20. At this time X remained in the care of the mother in the maternal grandparents’ home. After the parents reported the mother’s brother’s use of pornographic sites X was placed with foster carers pursuant to section 20. There is no evidence of what, if any, other options within the wider family were explored to enable X to remain being cared for by his mother.
Allocation of new social worker

21. Ms Kim Horrox became the allocated social worker on 29 June 2012. She took over from Claire Stevens. Garth Taljaard was the ATM and remained so until Ms Grindon took over in January 2013, she remains the ATM to date. Ms Horrox qualified in 2011 although she had some previous social work related experience. This was her first case that resulted in care proceedings. By this stage X had been with the foster carers for six weeks.
22. Ms Horrox was clear in oral evidence that at the handover meeting in June 2012 she was informed that a residential assessment had been refused by the mother and was not being further explored. However, this is not consistent with other documents at the same time which seemed to indicate this issue was being actively pursued. There is a record of a discussion with the mother on 15 May 2012 in which she says she would rather go to a mother and baby foster home or residential unit than go back to her parents’ home for further assessment. A letter from the paediatric dietician to the consultant paediatrician on 24 May records that the mother was ‘awaiting a mother and baby placement in foster care for her and X’, it was mentioned as being the preferred plan in a meeting with the safeguarding nurse Mel Baxendale on 29 May 2012 and on 22 June 2012 there is an email from Mr Taljaard ATM after the review CP conference stating that the team manager and area manager have agreed a care plan that allows mother and baby to be placed in an appropriate residential unit for further assessment. This is said to be a further lost opportunity, I agree.
Assessment by the new social worker

24. Ms Horrox stated that on taking the case over she wished to conduct her own assessment of the parents and make her own judgment. She met with the parents on 3 July and on 17 July a youth support worker informed Ms Horrox that the mother was declining support from adult services. Ms Horrox accepted in oral evidence that she should have been more creative in helping the mother access appropriate support.
Assessment of the parents

29. In February/March 2013 there was a referral by Ms Horrox to the adult services team for an assessment to be conducted as the parents were said now to be consenting to such an assessment. It is accepted by Ms Horrox that this referral was not accepted by the relevant team until 23 September 2013 some 7 months later. Ms Horrox said in evidence that having made the referral she chased it three times and on the third time was told it needed to be sent to the ‘transition team’, that required a different referral form which she completed and sent. That was apparently deleted by mistake, once that was discovered a further referral was sent and then, finally, it was ‘actioned’. I agree this was another lost opportunity.

Delay in issuing / drift in section 20
30. The care proceedings were issued on 25 March 2013, 10 months after X had been placed with foster carers and over 4 ½ months after the local authority issued letters of intent to the parents informing them of their intention to issue proceedings. Ms Horrox frankly accepted in evidence this delay was unacceptable, she acknowledged it was her first case where care proceedings had been issued and had been a ‘steep learning curve for her’. She agreed with Ms Jenkins on behalf of the father that it was not fair the parents were at the bottom of this learning curve she said ‘I apologise for it being at the expense of this family’.
Lack of supervision of the social worker
31. Despite the volume of material in this case and the length of the social work statements there is little, if any, evidence of effective supervision of Ms Horrox between June 2012 and September 2013. If there had been it would have been expected such unacceptable delays would have been picked up and effectively managed.

Failure to consider of all of the options
32. The local authority care plan at the time the proceedings were started was, in reality, adoption, although Ms Horrox said she kept an open mind. The discussions she had had with the mother at the PLO meeting in November was in the context of long term placement with Mr and Mrs SG, either under a care order, adoption or SGO. In her evidence Ms Horrox kept talking about ‘parallel planning’ but there was no evidence of any effective parallel assessment of the parents’ ability to care for X at the same time as investigating alternatives in the care of the local authority. That is what parallel planning means. It is right the mother is recorded at the meeting in November as effectively supporting the long term placement of X with Mr and Mrs SG but that was without legal advice and in circumstances where there was no evidence of any alternative involving X being cared for by his family being actively discussed at that time.

The social work assessment in proceedings being flawed

33. Following transfer of the proceedings to the County Court the first effective hearing was not until 13 August. HHJ Cushing case managed the four significant hearings between then and 17 October 2013 when the deficits in the assessments undertaken by the local authority became clear. In essence a parenting assessment had been undertaken by Ms Horrox without the benefit of any assessment from adult services, and the subsequent assessment by adult services was accepted by the local authority to be inadequate. The care plan filed by the local authority on 6 September sought care orders and placement orders with contact with the birth family 4 times a year and made no mention of any outstanding assessments
The failure of the professionals meeting to answer the agreed questions
34. The Professionals Meeting convened on 2 October 2013 was, unfortunately, not a good example of how such a meeting should be structured. The minutes record at the beginning the 8 questions that were described as the purpose of the meeting, which included such matters as what are the identified needs of the Mother and Father, now and in the foreseeable future? What services are required to meet those needs? How can those serves be provided? What services are therefore required to allow the parents to meet X’s needs? This is followed by 9 pages of typed notes of the discussion with a record at the end as follows:
Meeting confirmed that
1) X’s needs are such that he needs consistent care
2) CWD will not offer a service
3) SSD to arrange another TAC meeting (team around the child)
35. In her evidence Ms Horrox agreed with Ms Wiley, on behalf of the mother, that this meeting did not answer the questions at the beginning, although it is clear from the record of the meeting that both the CWD team and the AWD team informed the meeting that they could only do assessments of the parents if X returned home, which seemed an unnecessarily unhelpful and rigid position to take. This was another lost opportunity.

The failure of the community based assessment

37. The matter came before Mostyn J on 22 October 2013. He transferred the case to the High Court and the order provides for further comprehensive community assessments to be conducted with a recital recording that ‘the court indicating that there should be an independent element to the assessment and that if a different person from both the Children with Disability Team and the Adult Team undertake the assessment, this would constitute that independent element’.
38. A 6 week community based assessment plan was devised at the end of October which included the children with CWD and AWD teams. The assessments were completed in early December 2013 and involved nearly 100 hours of observed assessment by the various teams. The matter came before me on 18 December. I made directions leading to the final hearing on 12 March 2014. It transpired that Ms Gomesz carried out one of the assessments. She had been part of the earlier assessments, this was not made clear by the local authority in the evidence they filed. When the Children’s Guardian made enquiries she was informed there was no one else available and, in any event, it was too late to do anything about it. Whilst there is no criticism of the work undertaken by Ms Gomesz it was not what was intended by the order made by Mostyn J.
By the end of all of this (and a further independent social work assessment) consensus had been reached between the parties that the current foster carers who wanted to permanently care for X were the best people to do this.
This must be one of the most damning paragraphs I have ever read in a family court judgment. It is heart-breaking. We should NEVER be in this position.
48. I am satisfied the agreement reached in this case does meet X’s welfare needs. Whilst it will never be known if the correct assessments of the parents had been undertaken earlier, as they should have been, whether the parents would have been in a position to care for X the reality is now the comprehensive assessments undertaken since are united in their conclusions that the parents would not be able to care full time for X, even with extensive support being provided. Those assessments have been subject to the critical eyes of two independent people.

If all of that were not enough, the Court went on to make four particular findings about the failings of the Local Authority
(1) Delay generally and, in particular, in issuing proceedings
72. Some of the delays in this case have been wholly unacceptable. There are three specific examples that illustrate the point:
1) X was placed with foster carers in May 2012, care proceedings were not issued until March 2013 some 10 months later. The fact of that delay put the parents in an increasingly difficult position to seek to restore X to their care, as there was no structure to the period of time prior to the issue of proceedings and they did not have effective access to legal advice. To rely, as Ms Horrox did in her evidence, on the fact that they did not take up the offer of legal advice at the PLO meetings misses the point;
2) The decision to take care proceedings appears to have been made prior to November 2012 yet the proceedings were not issued until some 5 months later. Again leaving the parents in limbo with the local authority, in effect, recommending permanent removal of X from his parents care by way of adoption but the parents not being within the structure of legal proceedings to challenge that was unfair. I appreciate the mother at the November PLO meeting appeared to be endorsing the plan of the local authority, but that was without the benefit of independent legal advice and was perhaps illustrative of the internal struggle she has had about where X’s best interests lay.
3) The delay in the referral to adult services from February/March to September 2013 was unacceptable. It was caused by a catalogue of errors, a lack of effective co-ordination and structure between teams that should be effectively working together. There appeared to be no system in place to chase up referrals.
(2) Ineffective supervision, planning or co-ordination
73. This concern applies in almost every aspect of this case up until late October 2013. There appears to have been a chronic lack of effective supervision of the allocated social worker who was inexperienced and dealing with a complex case. I agree with the observations made by Ms Dove about the lack of effective multi agency planning which should have been in place immediately after the initial core assessment in April 2012. Again three examples well illustrate this area of concern:
1) The initial core assessment dated 25 April 2012 is on the face of it flawed. It details the disabilities both X and the parents have, yet fails to record that in the relevant box which specifically addresses that issue. It records the parents willingness to work with all agencies so that they will be able to care for their son and then in the decision section ignores the options that would flag up further assessment or referral to other agencies and just ticks the ‘no further action box’. There is no evidence these inconsistencies were picked up in any subsequent discussions with the ATM or in any of the meetings.
2) When Ms Horrox took over the case she was clear in her evidence that at the handover a residential assessment was no longer being pursued as the mother did not agree. However other contemporaneous documents, one just a few days before she took over from the ATM is reported to state ‘the team manager and area manager have agreed a care plan that allows the mother and baby to be placed in an appropriate residential unit for further assessment’ and a letter in May refers to the mother waiting to hear about a residential assessment. It is deeply concerning that there appeared to be such a deep level of miscommunication on such a fundamental issue by two of the key social work professionals managing the case.
3) The failure to pick up in supervision (i) there had been no referral to adult services or when there was the delay of six months; (ii) to consider getting advice about how to more effectively communicate with the father; (iii) what further steps could be taken to engage the parents with support services; (iv) filing a care plan seeking adoption when a key referral to the adult disability team was still outstanding (which is not referred to in the Care Plan dated 6 September 2013 or the parenting assessment dated 17 July 2013)

(3) Not keeping an open mind about placement
74. There is a thread of evidence which points towards the local authority making up their mind at a very early stage that X could not be restored to his parent’s care and that, in reality, the options were either adoption or an SGO with his current carers. Whilst Ms Horrox said she retained an open mind, from the parent’s perspective that may not have been readily apparent to them. There is no evidence of a structure as to how that position was reached and an analysis of the options, with the advantages and disadvantages being properly weighed up and considering what support could be available for the parents. From the parent’s perspective it may have seemed an unfair process.
(4) Content of the statements filed on behalf of the local authority
75. The social work statements were far too long and, in part, unfocussed and there was a lack of balance regarding their content. For example, it was extremely difficult to find the core relevant material that underpinned the threshold criteria. There were pages of generalisations which lacked any real evidential value. The lack of balance in the way some of the information in the statement was presented is illustrated by the reference in Ms Horrox’s statement referring to the police being called by the neighbours in early December as the parents were reported to be arguing. The statement records the mother being ‘dishevelled’ is not in the referral from the police, which is the only source of the information. Also, what the statement does not record, which is in the referral document sent by the police to the local authority, is the particular neighbours who alerted the police had been previously arrested for wasting police time for making such calls. That could have been an important context that should have been set out and addressed, not just left out.
76. Another matter that arose in the oral evidence was comments made by the mother in July 2013 regarding her concerns about the paternal grandmother. Whilst those comments were referred to in general terms in the written material the detail only came out under cross examination by Ms Stone on behalf of the Children’s Guardian. Ms Horrox’s instincts were correct that information should have been recorded and disclosed. She was understandably concerned about the management of when it was disclosed, but appeared to be awaiting authorisation from some unspecified person to disclose it. It is right to record that the Court has made no findings about the concerns raised by the mother and no party has suggested that those concerns affect the paternal grandmother’s ability to care for X in the future during periods of contact.
To be fair to the social worker, the Judge outlined that these were not faults that lay entirely with her, but systemic failings
81. The court is acutely aware hard choices have to be made about limited resources but the structural failures in this case, particularly at the early stages, to properly assess the parent’s ability to be able to care for X has caused enormous delay in decisions being made about X’s future care.
82. I should make it clear whilst Ms Horrox has been the person giving evidence and been at the front line, I am satisfied on the information I have seen that the faults appear to be primarily systemic faults within the structure of the local authority. It was Ms Horrox first case where proceedings had been issued. She accepted there were delays in the disability assessments, delays in completing the relevant documentation for care proceedings. Those and other delays should have been picked up by those with responsibility for supervising her much earlier.

The Local Authority did take on board those failings and presented the Judge, after the judgment was delivered, with a blueprint for how they proposed to remedy those failings in the future. That doesn’t help this family, who were badly let down.

Having reached a broad consensus that X should live with his foster carers and under Special Guardianship Orders, there was also agreement that the Court should review the case in six months time.

62. What is being sought by the parties is for the court to retain a welfare oversight for a short period of time to assist the parties, if required, to deal with issues concerning the welfare of X. In particular to provide a legal framework which kept all parties on equal terms and did not undermine the morale of the parents and made both the parents and the local authority accountable to the court for the maintenance of a proper working relationship.

That posed a problem – how to legally structure that review?
One can easily understand that simply adjourning the care proceedings was not a palatable one, with the LA being in the driving seat, given the raft of criticisms made of them.
The eventual solution settled upon was to give the Local Authority leave to withdraw their application for care proceedings, and for the Court to use its inherent jurisdiction (if one of the parties asked them to)

64. Having considered the position I have reached the clear conclusion that in the very unusual circumstances of this case, and particularly because of the history, the court should accede to the request by the local authority to withdraw the care proceedings and invite one of the parties to issue proceedings under the inherent jurisdiction with the other parties to the care proceedings being joined as parties.
65. I have reached this conclusion for the following reasons:
1) The agreement reached by the parties was on the basis that the local authority does not pursue its findings regarding the threshold criteria and seeks leave to withdraw the care proceedings. It would be inconsistent with the letter and the spirit of that agreement, if the court went on to make findings, albeit on the lower level necessary to found an interim supervision order. The risk with that course is that it may hinder the future good working relationship between the parties which is not in X’s best interests. Particularly as there is going to be a change of team.
2) I am satisfied that the withdrawal of the care proceedings is consistent with X’s welfare. In the light of the agreement reached between the parties it would be wrong to require a trial on the threshold issues in this case. The parents accept X will be cared long term by Mr and Mrs SG under an SGO and they accept the revised care plan put forward by the LA regarding their contact. There would be no demonstrable welfare purpose in such a contested hearing. On the contrary I consider such a trial would seriously risk the positive steps made by the parties in reaching agreement. Having said that I am certainly not prepared to say on a summary basis that threshold could not have been made out in this case. As I indicated in argument, Ms Wiley’s submission at the start of this hearing that the proceedings were unlawful was ambitious and was wisely not pursued. I did not hear all the evidence and whilst it looked like the issues concerning missed medical appointments and failure to provide breakfast on one occasion during the assessment did not stand up to forensic scrutiny there were other issues, such as the parents’ relationship and the emotional care of X that would, if necessary, have required detailed consideration by the court as to whether the threshold criteria was met.
3) X’s welfare requires the parties in this case to look forward. I consider that has the best chance of succeeding if the care proceedings are withdrawn at this stage, rather than lingering on in the way suggested which may hamper the parties on the ground being able to move forward with a proper working relationship, which is what X’s welfare demands.
4) I have been informed by the parties that there are no procedural or funding obstacles in the way of the same parties being re-constituted within different proceedings. This step will not cause delay.
I am not sure that I share the same degree of confidence about funding obstacles, but no doubt some assurances had been obtained from the Legal Aid Agency. Care proceedings receive no questions asked free legal advice for parents (or at least “non means, no merits” funding within tight fiscal limits) whereas representation within the inherent jurisdiction sounds to me like it will be entirely discretionary for the Legal Aid Agency.

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Posted in case law and tagged assessment of adults with difficulties, criticism of social worker, delay, expert, high court, inexperienced social worker, new social worker, surrey county council v ab and others 2014. Bookmark the permalink.

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