Category Archives: case law

Secure accommodation and seventeen year olds

Posted on April 12, 2014 by suesspiciousminds

 

This is a decision of His Honour Judge Wildblood QC, sitting as a High Court judge

A County Council v B 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4654.html

 

It involved a seventeen year old whose behaviour was such that the Local Authority wanted her to be placed in secure accommodation.  However, given that she was 17, that causes some problems with the statutory provisions.

This is undoubtedly an extraordinary case. It is also one where, on paper, there is every reason to have grave concern for C. The psychiatric evidence that has been prepared by Dr Yates and Dr Leonards ultimately concludes that C is of capable of detention under the Mental Health Act 1983. There are various suggestions about her state of health, including a suggestion that C may have a conduct disorder, which Dr Yates thought has increased in severity. I make no adjudication, of course, in relation to that. The anxiety about C’s vulnerability and potential for harm is entirely genuine and requires analysis of fact at a subsequent hearing. The extraordinary circumstances of this case include, however, the following: (1) C’s age; (2) the fact that she has herself had a child; (3) the fact that, at the time these proceedings started, she was not in local authority accommodation or subject to any other statutory scheme relating to her; (4) the reported degree of vulnerability that she bore.

 

In this particular case, the Local Authority were NOT accommodating C, and would have been in some difficulties in doing so  (they could not obtain a Care Order or Interim Care Order on her, because she was over 17, voluntary accommodation becomes tricky because the grandmother who had a residence order and hence PR was objecting to C being placed in secure accommodation)

The issue therefore was whether the Court had the power, using the inherent jurisdiction, to detain C in secure accommodation.

 

  • The orders that were made in the X District Registry are undoubtedly orders that require the provisions of section 100 of the Children Act 1989 to be considered. By subsection (1) and (2) of that section, it is provided as follows:

 

 

“(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”

Where a child is made a ward of court, custody of the child vests in the court. Therefore, an order making C a ward of court, but granting custody of her to the local authority, is, I think, inherently contradictory. Further, the provisions of paragraph 1 of the orders made in the X District Registry, by which care, custody and control were granted to the local authority, must, in the manner of their drafting, be exactly that which is intended should not be ordered by reason of section 100 of the Children Act 1989. The much more difficult points that have arisen and which have occupied my mind for much of the weekend are these: (1) whether it could be said that C was a looked after child within the terminology of the Children Act 1989 at the time of the initiation of these proceedings; (2) whether, absent an order granting care, custody and control of C to the local authority, it would be permissible for the inherent jurisdiction to be used for C to be made a ward of court, and for the court then to direct her detention in secure accommodation.

 

Obviously the Court CAN’T ward C in order to compel the LA to provide her with accommodation, since this is barred in the Act. In this case, the LA were willing to provide that accommodation, so the Court was not compelling them to do this.

 

But, COULD the Court use their inherent jurisdiction in this way?

 

 

  • The case therefore has been argued on the basis that, under the inherent jurisdiction of the court, the court can direct the detention of a minor in secure accommodation. That is a point upon which Miss Campbell has done some considerable research, and has finally persuaded me, and indeed the other advocates, that her submission on this point is correct. It is a demonstration of what skill and hard work can produce.

 

 

 

  • There is case law that of course needs to be considered. I have looked at the decision of Wall J in Re C [1997] 2 FLR 180. That case related to the detention of a minor in a clinic. The facts of the case were, therefore, essentially different. The learned judge however had to consider whether the clinic concerned was secure accommodation, and concluded that it was not. The headnote to the case reads as follows:

 

 

 

“In exercising the court’s inherent jurisdiction over minors, the test to be applied by virtue of section 1 of the Children Act 1989 was whether or not the order sought was in the minor’s best interest.  There was no doubt in the present case that the treatment offered by the clinic was appropriate to C’s needs and that detention was an essential part of the treatment and therefore that the order fulfilled that test. C’s objection to the order, though a matter to be considered, could be overridden for the same reason, particularly in view of the psychiatrist’s opinion that she was unable to weigh treatment information and accordingly lacked the capacity to give valid consent or refusal to the treatment proposed. 

 

The court’s powers under the inherent jurisdiction were not ousted by the statutory scheme laid down by Parliament in section 25 of the Children Act 1989 and regulation 7 of the Children (Secure accommodation) Regulations 1991, because all the evidence as to its regime demonstrated that the primary purpose of the clinic was to achieve treatment, and that the restriction of liberty was only incidental to that end and therefore that the clinic was not “secure accommodation” within the meaning of the Act and the regulations.

 

Accordingly, this was a proper case for the exercise of the inherent jurisdiction. In making an order under that jurisdiction the court would have regard to the scheme laid down by Parliament in the Act so as to ensure that the rights and safeguards provided for the child by section 25 were available and would extend the period of the order made at the previous hearing to a date not later than a specified date.”

 

Therefore, that case is one of some value on this point, but is not determinative of it. Specifically in relation to secure accommodation, Wall J said this:

“C is not a child who is, or who ever has been looked after by a local authority. She has never been in care, nor has she been provided by the local authority with accommodation within section 22(1) of the Children Act. The local authority is not funding the current placement at the clinic. That, however, is not the end of the matter. By regulation 7 of the Children (Secure Accommodation) Regulations 1991, section 25 applies to children who are accommodated by health authorities.”

He went on to consider that. He went on to say:

“The use of the words ‘application to the court under section 25… shall… be made only by…’ clearly limits the persons or bodies who may make applications for secure accommodation orders, and thus restricts the powers of the court to make such orders. It follows that if (1) the clinic is secure accommodation and (2) falls within the category of persons set out in either limb of regulation 2 of the Children (Secure Accommodation) (No 2) Regulations the inherent jurisdiction of the court is ousted and for C to be detained in a clinic, an application under section 25 of the Act will need to be made pursuant to the regulations. I have to say that I find the regulations difficult to construe. Mr Munby conducted a detailed analysis of the regulations in the skeleton argument. I do not propose to repeat that exercise in this judgment, helpful as it was. The critical question seems to me to be, is the clinic secure accommodation? If it is, then the question of the construction of the regulations and their application to the instant case must be addressed. But, if it is not, detention in the clinic is outside the statutory scheme and the major inhibition on the use of the inherent jurisdiction disappears.”

 

  • In the course of argument, Miss Campbell considered that point, and then went on to refer me to the case of Re PS (An Adult) [2007] EWHC 623 (Fam), in which Munby J (as he then was) considered the extent of the wardship jurisdiction and said this:

 

 

“Is there power to detain?

16. It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court’s powers extend to authorising that person’s detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there… 

17. So the jurisdiction is clear. How should it be exercised?”

Munby J (as he then was) went on to say:

“18. Detention in the sense in which it is here being used will inevitably involve a “deprivation of liberty” as that expression is used in Article 5. Since the court is a public authority for this purpose…any exercise of its inherent jurisdiction must…be compatible with the various requirements of Article 5.”

 

  • The interplay between Article 5 of the European Convention and the secure accommodation provisions has been considered by the Court of Appeal in the case of Re K (Secure Accommodation order: Right to Liberty) [2001] 1 FLR 526. Article 5 provides, insofar as relevant, as follows:

 

 

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.”

The term “educational supervision” has been given a broad definition within the case of Re K (to which I have already referred), and secure accommodation of the sort that arises in this case would not offend the provisions of Article 5, as long as it is demonstrated that it is for the purposes of educational supervision as defined in that case. The consideration of the Convention does not end at Article 5 however. Article 6, of course, provides the right to a fair trial. C is represented at this hearing very ably by Mr Farquharson, and there has been an open and full debate about the merits of the case and the legal jurisdiction for the application. There is no suggestion of unfairness in the trial process. Article 8 of the European Convention is also engaged. It provides that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary…for the protection of health or morals, or for the protection of the rights and freedoms of others.”

I have omitted certain parts of the Convention Article where they do not bear relevance to this case.

 

  • The right to respect for one’s private and family life must bear with it a right not to be detained in secure accommodation. Secure accommodation can only be justified on a number of legal bases, that amongst them includes the provisions of Article 8(2). For Article 8(2) to be satisfied, the action of the public authority, here the court, must be demonstrated to be in accordance with the law; secondly, necessary for the protection of the rights and freedoms of C; and, thirdly, proportionate. I remind myself, of course, that secure accommodation involves the deprivation of liberty, and thus the liberty of the subject is engaged, and it is also one of the most draconian orders that can be made in relation to the placement of a child within the available armoury of the court. Therefore, very serious issues indeed arise under this provision, and there has to be strong and legal justification for intervention under the secure provisions.

 

 

 

  • The position that has ultimately been achieved at this hearing through the diligence of counsel is that the inherent jurisdiction of the High Court is theoretically limitless. In circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child, with the exception of the requirement that the child is looked after by the local authority, it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation. I accept Miss Campbell’s submission, on reflection, that the guidance and the authorities suggest that where the wardship court does exercise that jurisdiction, it must do so in a way that is compatible with the limitations imposed by statute. But the existence of the jurisdiction to make orders detaining children under the inherent jurisdiction is now established in argument before me, and therefore I conclude, as a matter of law, that it is permissible to order that a ward of court be detained in secure accommodation. The individual facts of individual cases have to be considered, and I am not, by this decision, indicating any conclusions about whether C should be further detained in secure accommodation. That will be for another day.

 

This is, therefore, authority for the proposition that the inherent jurisdiction can be used to authorise the detention of a 17 year old in secure accommodation if it is not possible to achieve the same outcome using section 25 of the Children Act 1989.

 

I have to share my disquiet about this – not that I think that the Judge is wrong in law – the authorities cited do indeed lay those foundations, but about where this takes us.

I really am increasingly uneasy about the expansion of the inherent jurisdiction – and phrases like “the inherent jurisdiction of the High Court is theoretically limitless” don’t reduce that feeling in the slightest.  The problem is that inherent jurisdiction gets used in cases as the “get out of jail free card”  (or the reverse in this case), coming to the rescue where there is a desired result but one that can’t be achieved within the Statute.  That decision then gets cited in the future as authority for ‘theoretically limitless powers” and we keep building up these powers to do things that cause me a considerable amount of anxiety.

 

Don’t get me wrong – if someone in this country has to have ‘theoretically limitless power’,  I’d rather it was High Court Judges than anyone else, but I just don’t think anyone should have limitless power. Nobody.  Limits to power are what help us sleep soundly in our beds.

If the inherent jurisdiction can be used to achieve secure accommodation on someone (who let us not forget is old enough to join the army) then do we end up sidestepping the statutory requirements in s25 – the LA need to meet a rightly high hurdle to seek secure accommodation, but there is no statutory test for the use of inherent jurisdiction in this way.  Parliament set the framework for s25, and could easily, if they had wished, said that the Local Authority could seek such orders up until the young person’s 18th birthday, with any detention after that being through either the Mental Health Act or the Mental Capacity Act.

 

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Proportionality and harm

Posted on April 12, 2014 by suesspiciousminds

 

Holman J has given judgment in an appeal, London Borough of Ealing v JM and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1084.html

 

The appeal is not concluded (the Judge has asked for some more information about the placement proposals and family finding) and I hesitated a bit about writing at it whilst it is still ongoing, but the judgment was published, and it does raise one interesting aspect, which I don’t think we have seen the last of.

Now that the European jurisprudence about proportionality has been echoed by our Supreme Court and Court of Appeal, the underlying context to that is that when deciding whether adoption is proportionate one has to be looking to what would happen or be likely to happen to the children at home.

In this particular case, the mother tried unsuccessfully to run a “Kenneth Williams defence”   (Infamy, infamy, they’ve all got it in for me)

 

  • The sad and worrying part about this case is that, between her decision and judgment in mid July 2013 and the outcome hearing which began in late November 2013, the district judge had deliberately afforded a significant period of time within which there could, amongst other matters, be an assessment of the mother by an expert in order to try to find out why she had injured her two children in the ways described. Unfortunately, the mother did not cooperate with, or properly participate in, that assessment and therefore it is not possible to know whether she injured the children as a result of manageable stress or some other force of circumstances which could be recognised and managed in the future, or whether she did so out of, frankly, callousness or brutality. Unfortunately, the reaction of the mother to these proceedings and to the fact finding decision of the district judge in July has effectively been one of almost total denial. Instead of acknowledging and facing up to what she had done and seeking help about it, the mother adopted what the district judge was later to describe as a “conspiracy theory”. She has said and continued to say that the allegations had been fabricated; hospital documents, including photographs of the injuries, faked or forged; and she has said even that the examining doctor at the hospital is a non-existent person.

 

The part of the appeal that I am going to focus on relates to the findings of harm, and the case run by the parents that even if those findings were correct, this was not the sort of harm that justified adoption. (In effect that there are two separate thresholds – “significant harm” in the context of s31 of the Children Act,  but then the sort of significant harm which would make adoption a proportionate response).  Almost certainly what was in their mind was the finding of the original judge that the injuries to the children had been ‘relatively minor’

 

 

  • As I understand it from the judgment of the 7th January 2014, these children were living together with both their parents who were, and still are, themselves living together. In October 2012 the daughter, then aged three-and-a-quarter, said certain things at the children’s nursery which led to the children being examined first at the nursery and later at a nearby hospital. The hospital observed and recorded a number of scratches and other minor injuries on them, and the daughter gave what was described as “a vivid account” of how they had happened and blamed her mother. In the upshot, after the five-day hearing during June and July 2013, the judge concluded that the perpetrator of all the injuries was the mother. She concluded that the daughter had sustained nine minor injuries to her body, and the son had sustained five minor injuries to his body, all of which were caused non-accidentally. In other words, no less than 14 minor injuries, essentially scratches, had been deliberately caused to these two children by their mother. Additionally, and seemingly of even greater concern, the mother had caused two non-accidental -that is, deliberate – boot mark injuries to the shoulders of her daughter.

 

 

 

 

  • The district judge herself very clearly acknowledged and recognised, as had the children’s guardian, that the injuries themselves were not of a serious kind nor requiring any medical treatment. She said, at paragraph 122 of her outcome judgment of the 7th January 2014:

 

 

 

 

“The injuries … were not very serious. They were relatively minor.”

 

 

And this is how the parents developed that argument

 

As proposed ground 6 of the proposed appeal (namely at paragraph 41 of their skeleton argument for today) Mr and Mrs Haines have argued that:

 

 

“This placement order is made as a result of injuries to [the girl] which were very much on the lower end of the scale, to the extent that they did not even require any medical treatment, and it is submitted that a placement order is a disproportionate response to such injuries.” 

 

That is a point which Mrs Julie Haines further developed and submitted this afternoon. It does not, in my view, afford the slightest ground of appeal. First, as I have observed, the district judge herself was well aware that the injuries in question were not very serious and were relatively minor. Second, it is not actually correct to limit the injuries only to those to the daughter, for, as I have said, it clearly emerges from paragraph 9(1) of the outcome judgment that there were also five minor injuries to the son. So the picture here is of deliberate infliction of injury, albeit minor, to both children. Third, although overall the injuries may be described as “minor” they do include non-accidental, that is, deliberate, boot mark injuries to a girl who was at the material time aged about three. All this is evidence of a deliberately abusive attitude by a mother to both her young and vulnerable children.

 

And as you can see, Holman J, simply wasn’t convinced by that as a ground of appeal at all.   IF Re B ever gets to the European Court of Human Rights, this issue might be revisited. For the time being, crossing the threshold is sufficient, without needing a two tier significant harm test (one for orders that involve the child not being permanently separated, and one for orders that do)

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Care proceedings involving disabilities and /or deafness

Posted on April 10, 2014 by suesspiciousminds

The Court of Appeal examined a case involving a father who was deaf, and overturned the Care Order and Placement Order, sending it back for rehearing    (it is something which you become painfully conscious of, when writing about a case involving a deaf person, how often the word ‘hearing’ is thrown around)

 

Re C (A Child) 2014

 

http://www.familylawweek.co.uk/site.aspx?i=ed128597

 

I became aware of this one a little while ago, but having been waiting for the judgment to be published.

If you ever have proceedings where one of the parents is deaf, the judgment is an absolute must-read – for social workers and for lawyers, but it also has some wider applicability, due largely to three issues.

 

I’ll deal with the wider applications first, and then the parts that relate specifically to parents with hearing disabilities.

 

Firstly, the Court of Appeal backing what Baker J said in Wiltshire v N and Others 2013   (sometimes Re A) http://www.familylawweek.co.uk/site.aspx?i=ed123147

In which Baker J gave the following guidance when dealing with parents who suffer from a learning disability:

(a) There is duty on those acting for the parent(s) to identify their client’s need for assistance in responding to questions and giving instructions, which must be considered by representatives at the outset of their instruction.  Any need for support must be addressed at the earliest opportunity. 
(b) When this is known prior to the outset of proceedings, on issuing, local authorities should draw the issue of competence and capacity to the court’s attention. In turn, on the day following issue, the court will give directions for the appointment of a litigation friend.  The new PLO envisages that in those circumstances the court should give directions for special measures at the case management hearing to take place by day 12 of the proceedings. 
(c) When the issue of capacity and competence is not identified at the outset, it should be addressed fully at the case management hearing.  At that hearing, those representing the parents should apply for special measures, where the case for such measures can be made out without any expert advice. Alternatively, where expert advice is necessary to identify the existence or extent of the learning difficulties, they should make an application in accordance with Part 25 of the FPR for an expert to carry out an immediate assessment of the capacity and competence of the party. 
(d) The legal representatives should normally by the date of the case management hearing identify an agency to assist their client to give evidence through an intermediary or otherwise if the court concludes that such measures are required.  If the court is satisfied that an expert report is necessary to determine whether the party lacks capacity or competence and/or as to the extent of any special measures required, it may direct a further case management hearing to take place once the expert has reported so that detailed directions can then be given for the instruction of an intermediary and/or such other assistance as may be necessary.
(e) So far as funding is concerned, there is a distinction between the cost of obtaining a report from an expert as to capacity and competence, and the cost of providing services from an intermediary.  The former will, subject to the approval of the legal aid agency, whereas the latter, as a type of interpretation service, will be borne by the Court Service.  Those representing the relevant party should address these funding issues at the earliest opportunity.  They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty’s Courts and Tribunal Service that the services of an intermediary are likely to be required.

 

 

Baker J went on to give a very critical paragraph, and one which I think ought to be regularly cited in cases where parents have any form of learning or other disability

81. So far as the wider issues are concerned, I repeat my observation at paragraph 132 of the judgment in the Kent case:

“The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice.  This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society.  One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully.  Another consequence has been the realisation that learning disability often goes undetected, with the result that persons with such disabilities are not afforded the help that they need to meet the challenges that modern life poses, particularly in certain areas of life, notably education, the workplace and the family.”

 

{The Court of Appeal in Re C, here, endorsed the applicability of what Baker J had said in Wiltshire and that from para 72 of that judgment until the end, it was applicable in this case. Thus, an endorsement of that paragraph}

 

 

And the second issue is on the vexed and emotive issue of timescales. Whilst Baker J in Wiltshire had said that the twenty six weeks ought to still be possible but might not be capable of being met if the disability was identified late in proceedings, the Court of Appeal go a bit further

 

34. Finally in terms of the list of particular matters in this case, there was an unrealistic timescale afforded to the assessment process.  It will be all too easy for courts now to be driven by the 26 week deadline by which care cases should be concluded, but if there are particular aspects of the case that indicate that the timescale for assessment simply cannot provide an effective and meaningful process because of the disabilities of one or more of the individuals involved, that would seem to me to be a reason for extending the timetable for the case by a modest degree, rather than squeezing the assessment in and taking whatever assessment is available within that timescale.  The result of that option being chosen by the court in the final directions hearing has been that the appeal now, all these months later, is being allowed by consent.

And the final issue of general applicability, is the Court of Appeal’s profound disappointment in the timescales for resolving the appeal, particular in the context of a desire now backed by Parliament for 26 weeks to be the norm

 

12. The appeal mounted by the father was issued some six weeks after the judge’s decision, yet here we are, some seven months after the judge gave his judgment, hearing the appeal which in the event has been resolved by consent.  This period of some 30 weeks to determine an appeal at a time when cases at first instance now must, unless there are exceptional reasons, be undertaken from start to finish within 26 weeks, is untenable.  It is not necessary or helpful for me to descend into detail in describing quite how it is that we are where we are in the timetable.  Part of the reason for the delay was delay in extending public funding for the father to mount his appeal. 

 

Onto the particular issues and guidance in relation to deafness, it was notable here that the father had been educated to degree level and had no difficulty in understanding concepts, it was a question of ensuring that communication was properly dealt with.

 

There had been no sign language interpreter when the social worker asked the parents to give section 20 consent for the child to be accommodated, and the social worker had asked the mother (who had some learning difficulties herself) to sign for father and explain the legal concepts to him, and thereafter communicate his views.

 

One does not have to be a rocket scientist to guess that McFarlane LJ didn’t really think that was good enough

 

there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the Children Act.  To rely upon the mother who, even if she did not have the unfortunate cognitive disability she has, to interpret complicated matters such as section 20 of the Children Act and the authority being given to the local authority to the father was to put an undue burden on her.  Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that crucial meeting

 

The Court of Appeal also helpfully outline the difference between interpreting from a foreign language and interpreting sign language (which they highlight might be fresh information to many professionals)

18. It is crucial for professionals and those involved in the court system, in particular judges, to understand one profound difference between the ordinary need in cases where parties to the proceedings may speak a different language for there to be “translation”, and the need for a different character of professional intervention in these cases.  This need is not solely or even largely one of “translation” as would be the case in the straightforward translation of one verbal language to another; the exercise is one of “interpretation” rather than translation.  Communication between a profoundly deaf individual and professionals for the purpose of assessment and court proceedings involves a sophisticated, and to a degree bespoke, understanding of both the process of such communication and the level and character of the deaf person’s comprehension of the issues which those in the hearing population simply take as commonplace.  For a profoundly deaf person, the “commonplace” may not be readily understood or accessible simply because of their inability to be exposed to ordinary communication in the course of their everyday life.  What is required is expert and insightful analysis and support from a suitably qualified professional, and the advice this court has in the reports we have, a suitably qualified professional who is themselves deaf, at the very earliest stage.
19. Descending to some detail, it is no doubt the general understanding of those in the general population that sign language is simply sign language.  But it has been made clear to us in the papers before this court that there are differences between British Sign Language, which is, as I understand it, an ordinary form of communication, and English Supported Sign Language, which is a different and far more structured, in grammatical terms, process.  Different people from the population who have a hearing disability will use one or both or neither; they may have their own individual way of communication.

And there was another difference, the use of what is called Deaf Relay interpretation – in effect that there are almost two interpreters – one interpreting for the interpreter…   (the best way to understand it is the parallel that the Court of Appeal draw with an advocate for someone with learning disabilities)   – underlining here mine for emphasis

20. A second matter which has become plain to me, which was not something that I had understood previously, is the opportunity to use what is called Deaf Relay Interpretation.  That is not to describe the ordinary course of events where the onerous task of interpreting these matters in court proceedings is taken on by a team of two or three professionals who take it in turns to pass the baton, as it were, of interpretation in 20 minute periods one from the other.  Deaf Relay Interpretation is an entirely different process.  A relay interpreter is a deaf person who acts as an “intermediary” between the qualified sign language interpreter and the deaf person.  The purpose is for the Deaf Relay Interpreter to provide a specialist service and approach the communication with the deaf person from a deaf perspective, breaking down issues and providing, what one report we have read refers to as, “cultural brokerage”. 
21. The family courts are now more familiar in recent times with the concept of “an intermediary” being involved in cases where an individual may have learning disabilities.  What is described here by Deaf Relay Interpretation seems to me very much the same form of intervention.  In her report, Dr O’Rourke stresses the value of this process and I propose to quote briefly from three passages in her report.  She says this:

“In my view, any work undertaken with [the father] is unlikely to succeed unless Deaf professionals are involved.  To clarify this; the provision of interpreters alone is not sufficient.”

Then later:

“The use of a Deaf Relay Interpreter for formal court proceedings is recommended.  This is an individual who works with the interpreter but can adapt the communication more flexibly to meet the needs of the Deaf person.”

22. Later, in her second shorter report, Dr O’Rourke adds this:

“Interpretation is not merely a matter of word for sign equivalence; cultural brokerage is required which is far more effective if the hearing professional has some knowledge and experience of the Deaf community.”

23. Having explained those particular matters, which, it seems to me if there is a case involving an individual who has these unfortunate disabilities must be considered in every case

 

You will probably already be picking up on the fact that to do this

 

  1. For Court hearings
  2. For solicitors meetings with the client to take instructions
  3. For meetings with social workers

 

Is going to cost considerably more than the usual “sign-language as interpreter” model

 

The Court of Appeal deal with that, as best they can (but good luck to anyone trying to convince the Legal Aid Agency that they need to stump up for two people to do the interpreting rather than just one)

 

27. The issue of funding needs to be grappled with at the earliest stage before the case management hearing and during the case management hearing.  The difficulties in funding the sort of intervention that I have described to assist a deaf person, which are even more complicated than those facing someone who has a language imbalance with the language of the court or who has learning disabilities.  The provision of assistance for a deaf person will come from three publicly funded sources: first of all the Legal Aid Agency will be responsible for funding interpretation to assist the taking of instructions and other legally based occasions that require interpretation.  But, they do not cover the provision of interpreters in the court; that is the role of the Court Service, HMCTS.  Thirdly, the local authority are likely to be responsible for providing the appropriate interpreter during meetings between social workers and a parent and in the course of any assessment work that is undertaken.  All three of those bodies need to be appraised of the particular needs of the particular party at the earliest opportunity, partly as a matter of good practice but also partly because the cost of the sort of intervention that I have described is likely to be higher than simply providing someone to translate the language of one party to another, and so approval for funding at the higher level is likely to be required, certainly by the Legal Aid Agency and the Court Service.  The sooner the application is made and more generally, the more readily those agencies understand that these cases are different from simply providing a translator and they may need a higher level of funding to be approved, the better.  Going back to Baker J’s guidance, he stresses that the importance of addressing the funding issues at the earliest opportunity cannot be underestimated.

 

 

 

The Court of Appeal stress that it is incumbent on both the LA AND the parents representatives to bring the issue of hearing impairment to the Court’s attention at the very outset.

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The Tithe is high, and I’m rolling on

Posted on April 7, 2014 by suesspiciousminds

The Court of Protection’s decision in relation to a man allegedly suffering from a delusion that he was the Messiah * and his desire to give 10% of his income to the Church by way of tithe.

 * (I say allegedly, because part of the case involved the man trying to prove to the Court that he was not delusional but right. No spoilers, but I think that you probably would have read in the papers by now “Judge rules that man is New Jesus” if that’s the way this had ended up)

 Re P (Capacity to Tithe Inheritance) 2014    

 http://www.bailii.org/ew/cases/EWHC/COP/2014/B14.html

 

 The man, MS, had received an inheritance, just under £70,000 and wished to give 10% of it to the Church of Latter Day Saints   (you may, or may not, know that the centrepiece of their faith is that the Bible is not just an Old Testament and New Testament, but a third volume, the Book of Mormon, and that Jesus came to America after the crucifixion and resurrection)

 

His family were, given his expressed belief that he was the Messiah, unsure that it was a properly informed decision to give away nearly £7,000 to the Church.

 

The Local Authority, given MS’s mental health, were acting as his deputy in relation to financial affairs, and they made an application to the Court of Protection for a declaration as to what they should do.

 

MS in turn sought a declaration that he had capacity to determine his own financial affairs.

 

11. Mr S has been involved with mental health services for many years. His past diagnoses include bipolar affective disorder, schizophrenia and schizoaffective disorder. The prescribed medication has included Olanzapine, Lithium and Clozaril. He receives support from his local community mental health team (CMHT) and is the subject of a community treatment order under section 17A of the Mental Health Act 1983.

12In late January or early February 2005, he gave a tithe of his surplus property and capital to his church, amounting to some £1600-1700. He says that he was ‘well’ at the time. It ‘was only on around 9 June that year that he stopped taking his prescribed medication, following which he was ‘locked up’ some 13 days later’.

13In around June 2005, MS was admitted to hospital after discontinuing prescribed medication and then detained under the 1983 Act. His reasons for stopping medication seemed to be ‘associated with religious texts’ (Special Visitor Dr T’s Report, para. 19 — referred to from now on as the ‘SV Report’). He was preoccupied with religious beliefs. He believed that he had special gifts which made him ‘as gifted as God’ (SV Report, para. 21).

14Mr S again stopped taking medication in October 2012. It is reported that he had an altercation with a fellow resident whom he thought was ‘the devil and needed to be vanquished from his house’ (SV Report, para. 25). On admission to hospital, he was expressing delusional beliefs about being a Messiah … He spoke at length that he considered that the only people more powerful than him were God, Jesus Christ and the Holy Ghost’ (SV Report, para. 26).

 

 

 

15According to the original medical certificate prepared by a psychiatrist Dr DS in April 2006, Ms S had suffered from a schizoaffective disorder since around 1991, as a result of which he lacked the capacity to manage his own property and affairs:

‘Mr S has always lived with his mother who has been his main carer. His beliefs include that he is one position below the Holy Trinity and so has special powers to change the world. Although he has never acted upon this belief, he has given considerable amounts of money to his church disregarding his own needs. He has periods when he feels he must starve himself’.

16 Despite treatment, there had been little change in his overall condition during the previous ten years. His ‘financial affairs need to be protected as he may use them in a manner which is not in his best interest’.

 

 

 

As a result of the inheritance, MS no longer received state benefits, his care needs and other expenses would be met from his capital until that runs out, when he would go back on benefits. If he were to give the tithe donation, the capital would run out 56 weeks earlier than if he were not to.

 

 

MS presented a document to the Court, this being an extract

 

42  ‘A word now on my very far from pauline performances when my case was heard (to allude to the Apostle Paul, and his performance each time his case was heard. Key to Paul’s success when his case was heard (though, if I’m not mistaken, he perished after his case was heard, a second time, before Nero) was his enjoying the gift of the Holy Ghost, which my church will not confer on me because of a doctrinal difference – more precisely, a disagreement over the interpretation of two passages of important doctrine. Enjoying the gift of the Holy Ghost was a central reason for the brilliance of Paul’s defense when his case was heard: in the Book of Mormon it states that those who have received the gift of the Holy Ghost (and who keep, or obey, the commandments) can speak with the tongue of angels. Now, as is stated in the reports, I claim to be a prophet, and the first outside the Godhead … in other words, I claim that only the Father, Son and Holy Ghost are greater beings than I am. Parenthetically, I have never claimed to wield as much as, or almost as much power as, they — this is manifestly not so. I do however believe, by revelation and inference, that if I prove faithful, I will after Judgement Day wield as much, or almost as much power as they presently do … In making this claim, I have a Mount Everest of a credibility problem. Where, then, are all your Nobel Prizes? You might ask ….

To defend, once more, my claim to be the first outside the Godhead, Joan of Arc had no evidence that she was, as she claimed, sent by Heaven to save France, and drive the English into the sea — she was a sixteen year old girl! She had no evidence that she had seen the archangel Michael, and St Catherine and St Margaret. All she had was her word. As it was with Joan, so it is with me.’

 

 

 

Capacity

 

 

The consultant considered that MS’s views about the tithe and his desire to give the tithe flowed from his religious delusions and mania.

 

MS argued otherwise

 

46 This, says MS, shows a lack of insight into his faith. What his consultant describes as holding beliefs with a delusional intensity is simply ‘part of the zeal that is enjoined upon all Christians … And how does my wish to offer this tithe “stem directly” from my delusions?’

‘Giving a ten percent tithe is an Old and New Testament principle that is practised in my church … We are commanded to do it! Yes, I am not a member of my church — in this world — nevertheless, I believe it is busybodyism of a gross and outrageous sort … to deny me the sacred privilege of giving to my church as I see fit, and in accordance with my church’s understanding of tithing ….’

 

 

Although the practice of titheing is relatively unusual, even amongst Christians, it is certainly something that is done by people of faith (even those who don’t claim that only God, Jesus and the Holy Ghost are more holy than them)

 

The capacity test for the giving of a gift is set out in a case called Beaney

 

 

70. The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject-matter and value of a gift are trivial in relation to the donor’s other assets a low degree of understanding will suffice. But, at the other, if its effect is to dispose of the donor’s only asset of value and thus for practical purposes to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of.

Martin Nourse QC sitting as a Deputy Judge of the High Court

Re Beaney [1978] 2 All ER 595 at 600

 

71 (Consistent with many common law cases, it can be seen that the court in Re Beaney used the word ‘understand’ to include, not merely the ability to comprehend relevant information, but also the ability to use and weigh it, i.e. in the common, everyday, sense that a person either does or does not understand what they are doing, the significance of their act.)

 

 

 

There ended up being a division between the medical professionals involved in the case, on an issue which went to the nub of it.

 

Was MS’s desire to tithe one that flowed directly out of his religious delusion that he was the Messiah, or were they part of his general religious beliefs and uninfluenced by the delusional aspects?

 

If the latter, then he was showing that he understood titheing, understood that he was disposing of some of his capital, understood that once it was gone it was gone, that it would lead him to run out of money sooner. In short, he had capacity.

 

If the former, and he was titheing because of a delusional belief   * then he did not have capacity

 

(* I hesitate here, because there will be a mixture of religious people and atheists reading this. I know exactly what the atheists are thinking at this point, but the Court does have to respect a person’s right to a religious viewpoint and to express their faith)

 

 

84According to medical opinion, MS has suffered from a schizo-affective disorder since approximately 1991, as a result of which he lacks capacity in some areas of his life, including capacity to tithe.

85 It is common-ground that he has strong and sincere religious beliefs and values and that what he sees as religious zeal others interpret as beliefs held with delusional intensity.

86 The beliefs and actions interpreted by others as evidence of mental illness include his belief that a fellow resident was the devil and his belief that the only people more powerful than him were God, Jesus Christ and the Holy Ghost.

87 I accept that sometimes it can be difficult to distinguish between a religious delusion and a particular religious belief or practice. There is a risk of pathologizing religious beliefs when listening to content alone. It is important to look at the degree of conviction, the pervasiveness of beliefs, the context of the individual’s spiritual history and deviations from conventional religious beliefs and practices when determining whether a religious belief is authentic or delusional.

88 As a judge I must decide the case on evidence. As MS pointed out himself, he has a problem establishing on evidence that he is a prophet and the first outside the Godhead. The way he put it was that he has a ‘Mount Everest of a credibility problem’.

89 The balance of the evidence before me is that he has an ‘impairment of, or a disturbance in the functioning of, the mind or brain’ and that therefore is my finding.

 

 

[Spoiler over. The Judge does actually make a finding that on the balance of probabilities, MS is not the Messiah, it is just by inference rather than explicit]

 

Although on the evidence I have accepted that his belief that he is a prophet is a delusional belief that does not mean that all of his religious beliefs are delusional or compromised by the presence of mental illness.

 

[That’s pretty explicit though]

 

So, there is an impairment of the functioning of the mind or brain, meeting the first part of the test for someone lacking capacity. The second test is whether because of that, the person cannot understand or weigh the relevant information.   [Let’s not forget that the starting point under the Mental Capacity Act 2005 is that a person DOES have capacity to make decisions]

 

91 Rebutting the presumption that he has capacity to tithe requires demonstrating on the balance of probabilities that because of this impairment or disturbance he cannot understand or weigh the information relevant to his decision to tithe.

92 What is the flaw in the decision-making process attributable to this impairment or disturbance of the mind or brain? What is the relevant information that he cannot understand or weigh because of this impairment or disturbance of the mind or brain?

93 On the one hand, Dr T says that Mr S understands the process of tithing and the implications for his own finances if he gives away the £6,900. His desire to make this gift to his church ‘is part of his religious beliefs but not in my opinion part of his delusional belief system … I could find no evidence that his wish to do this was part of any “revelation”, command or direct instruction from God.’

94On the other hand, Dr M’s opinion is that MS’s ‘beliefs about the tithe are an extension of his delusions and stem directly from them.’

95 I prefer Dr T’s view on this issue.

 

 

Looking at this in more detail

 

 

107 Many of Mr S’s religious beliefs are conventional religious beliefs, for example his belief that Jesus was the Son of God and that the Bible is a holy book. Other beliefs have a long tradition and are supported by scripture.

108 In what way therefore does his belief that it is necessary or appropriate to give a tithe stem directly from his delusion that he is a prophet or constitute an extension of it?

109 Belief A (I am a prophet) does not cause Belief B (it is a religious duty to give a tithe), nor is the second belief an extension of the first. Belief B is, however, a logical consequence of Belief C, that what is written in the Bible, including the injunction to tithe, represents God’s word.

110 Furthermore, the belief that the Bible is the word of God is shared by millions of people and does not stem from a belief in prophethood.

111 The fact that relatively few people now tithe is neither here nor there. Nor does it matter whether a person’s belief in tithing is a core belief required of members of a particular religion or a deviation and a matter of individual conscience.

112 It is not sufficient that other people think his proposed tithe is unwise, a misinterpretation of a religious text or is misguided by reference to their own secular beliefs and values.

113 It is relevant that his belief is a matter of faith.

114 In my opinion, on the balance of the evidence Dr T is correct when he says it cannot be demonstrated that Mr S’s desire to give this money to the Mormon Church is part of his delusional belief system.

 

 

122. The issue is finely balanced. In my view the presumption of capacity has not been displaced and the ‘invisible weight of the presumption’ tilts the scales in his favour

 

 

Interestingly, the Judge goes on to say that even if he had found that MS lacked capacity, he would still have said that allowing him to tithe would have been in his best interests.

 

Those portions of the judgment, although they are not part of the decision itself, touch on very important issues of autonomy and respect.

 

123  I should add that even if I had found that Mr S fell just the other side of the capacity line I would have authorised the tithe on his behalf.

124 Mr S tells me that he prizes his independence and autonomy and wishes to enjoy it more fully. This is important.

125 The law has always sought to show due respect for liberty of conscience and religious belief and the European Convention on Human Rights reinforces this. Even if a person lacks capacity in law to make a religious gift, there remains the need to show respect for genuinely held beliefs and values. Good reasons are required to interfere in matters of conscience and spiritual belief. A person’s religion is no less real to them because some of their beliefs may be coloured by illness and their conscience is no less offended when they are not permitted to practise their religion. In MS’s case, both his conventional and unconventional religious beliefs are well-established and unlikely to change in time. This is not a situation where ambiguous beliefs are being reinforced or acted on precipitously, or it is likely that he will regret his tithe in the foreseeable future. His religion is now part of his life and is embedded in his existence. What he wishes is now his will. Even if his choice is founded on a belief that facts exist which do not, it is now his authentic voice and a true expression of his mind and the world within which he moves; and, like everyone, he needs to find peace.

126 The insights of writers such as Sims (the former President of the Royal College of Psychiatrists), Clark, Kroll and Agosin are also very relevant. The content of a delusion often has meaning for the individual and may be an adaptive response, combating purposelessness and hopelessness. Clark has noted that for patients with psychotic disorders, and with schizophrenia in particular, religious beliefs can be a source of meaning, hope, strength, and recovery (See SM Clark and DA Harrison, How to care for patients who have delusions with religious content, Current Psychiatry, Vol. 11, No. 1, 47 at 48, and the authorities cited therein). Many people who experience mental illness identify themselves as religious and use religious activities or beliefs to cope, so that one must take great care before deciding that it is in their best interests to interfere with this expression of where they are in their lives.

127 The size of the gift is significant but one must keep it in proportion, and the proportion is that he retains 90%.

128 The fact that MS wishes to make his tithe to the Church of the Latter Day Saints rather than, say, the Church of England is irrelevant. It is not my function to interfere with people’s religious or political preferences and choices but where possible to give expression to their wishes and beliefs.

 

 

The Court ruled that MS had litigation capacity to conduct his own case in THESE proceedings. They did not, however, rule that he should resume control of all of his financial affairs (although the suggestion was that he should get some legal advice about this aspect and preparing a Lasting Power of Attorney)

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Intervening lodger

Posted on April 7, 2014 by suesspiciousminds

 

 

Intervening lodger

 

 

 

The Court of Appeal decision in Re H (a Child) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/232.html

 

This case was effectively an appeal of findings of fact made against A, a young man living in the grandmother’s home.  [He might not be a lodger, but the judgment doesn’t say that he is a relative or partner, and I have used a process of deduction]

 

Care Orders and Placement Orders were made in the case, and the only realistic options in the case were those orders or a plan of mother and the children living in grandmother’s home, where A would continue to live.

 

The issue about that was that there were allegations of A having sexually abused children, and the professional opinion was that the mother and children could live with grandmother IF those allegations proved to be false, but not if they were proved to be true.

 

The Court of Appeal say “There was no question that A could or should move out of that household”     – I’m not quite sure why not, but there it is.

 

The preliminary question was A’s ability to appeal the decision – the Court of Appeal don’t actually consider appeals against findings of fact, but rather ORDERS arising from those findings of fact   (that, as Shakespeare put it, is a custom more honoured in the breach than the observance, but every once in a while the Court of Appeal remembers that)

 

There’s no simple answer to whether A could appeal against those conclusions, since he would not have standing to appeal the ORDER, but in the event this thorny problem was sidestepped as the grandmother was given public funding to run the appeal, and SHE of course could appeal the ORDER.

 

The order of course flows from those adverse findings.  

 

My reading of the case is that the lead Judge had some sympathy with the way that Leading Counsel representing the grandmother (and A) looked at the ABE interviews.

 

11.That theme which necessarily dominates this application was that the one option before the judge was for adoption of B with the maternal grandmother. There was no question that A could or should move out of that household. In attractive submissions, Mr Feehan took the Court through the transcripts of the DVD records of the ABE interviews of each of the three cousins and highlighted the flaws in those records which he submitted are sufficient to render the content unreliable. If he is right, then the judge was wrong to place reliance on any part of the same and the findings of fact would then be unsafe.

12To understand the context of that submission, one has to be conversant with the 2007 guidance “Achieving Best Evidence in Criminal Proceedings”, which is the multi agency best practice guidance that makes strong recommendations to those presenting the evidence of children to courts, both family and criminal alike.

13There is then a series of decisions of this court that highlight how a failure to follow that guidance can lead to fatal contamination of the children’s evidence. Mr Feehan took this court in particular to TW v A City Council [2011] 1 FLR 1597 where the agreed failings in the interview process in that case so contaminated the children’s materials that no reliance could be placed on the same. Mr Feehan highlighted the significant similarities between this appeal and Re: TW and invited this court to come to the same conclusion.

14In addition, he highlighted a line of authority on the demeanour of witnesses which caution the Court in deciding credibility issues in its reliance on demeanour alone. The point is obvious. What is the circumstantial material and does it tend to suggest credibility and reliability, or not, as the case may be?

 

 

In passing, I will raise my concern about the quality of ABE interviews, and particularly something which troubles me greatly, the development recently of “Q and A” sessions as a prelude to doing an ABE interview, almost as a sifting process to see if the child is going to make allegations in ABE. That seems to me to entirely miss the point of an ABE interview, which is to ensure that one sees exactly what the child is asked and is able to see whether the allegations emerge naturally from the child or whether they might have emerged by way of careless or inadvertent suggestion by the questioner. I am not sure that the ABE guidance is followed properly throughout the country, and it can cause significant problems either way (either a child’s allegations being contaminated and over-stated leading to a person wrongly being determined to be an abuser, or a genuine account having been contaminated leading to a finding that it is not safe to rely on what the child says)

 

 

15In deconstructing each of the interviews of the three cousins, Mr Feehan has identified varying significant failures. I can summarise them in headline form, but it is important to understand that he took the Court to the detail in the interviews themselves to substantiate his submissions.

a) The boys had been questioned by their own mother and by an aunt in a period of a week during which no-one knows what happened.

b) There was no planning for the ABE interviews and, therefore, no knowledge on the part of the interviewer about the boys’ family circumstances, including the house in which it was said the abuse occurred.

c) The interviews themselves were seriously flawed containing as they did graphic examples of the following:

(i) no understanding of the difference between truth and lies and/or the effect of telling lies on the part of each of the cousins.

(ii) no rapport or ordinary conversation so as to allow the boys to settle and gain appropriate professional trust in the interviewers.

(iii)no free recall or an opportunity for spontaneous recall of what it is that the boys reflected upon.

(iv) seriously leading questions, both open leading questions and closed leading questions, in both cases tending to suggest either that an answer must be known to them or indeed, what the answer should be.

(v) a confusion between asking the boys to recall what has happened and what they had previously told their mother had happened.

(vi) inaccurate rehearsal or summarising of what the boys had said in interview.

16Mr. Feehan was also able to point to the fact that these boys had never repeated the allegations in any other environment or since interview, despite one of them being engaged in some significant therapeutic work. Finally in the context of the proceedings, A was described favourably by the judge, despite some of his evidence being found to be unreliable

 

 

That does appear to be a significantly flawed ABE interview – the issue for the Court is whether, taking careful account of the flaws the Judge was able to still have confidence in the core truth of the allegations, or whether the ABE was so flawed that no reliance could safely be placed on anything that was said within it.

 

17The failings in the ABE interview process are very troubling, but no doubt with the same clarity with which Mr Feehan has addressed this Court they were put to Peter Jackson J who analysed those failings with some care. The judge likewise considered the position of the pre-interview discussions with the relatives. It should be remembered in that regard that the judge heard all of the adults who were also made available for cross-examination.

18Given the failings which were apparent, the judge entered into the task of highlighting the most worrying elements of the allegations made by the boys in their interviews. He did so at paragraph 49 of his judgment. The passages relied on include the graphic use of language by one particular boy who was the youngest about his experience of what happened. The judge found that material to be cogent despite the serious failings of the interview process. In essence, the judge was able to be satisfied that there was a core of truth in what had been described in the interviews.

19 That is a position to which a judge is entitled to come unless the whole of the interview process is so flawed that there is nothing reliable that emerges at the end of the same. Having regard to the way the judge set out at paragraph 49 what he relied upon, his impression of that boy’s evidence is something that it would be very difficult, if not impossible, for this court to undermine. Furthermore, there was nothing in the conduct of the adult relatives which led the judge to conclude that the boys had been coached or contaminated in their discussions with them

 

The remark at para 17 that shows that the trial judge had been very alive to the failings of the ABE interviews and had analysed it carefully was what sank this appeal. The Court of Appeal did not feel that the trial judge had got this wrong.

 

20 At paragraph 63 of the judgment, the judge carefully discusses the evidence from the family about their circumstances, the effect of the flawed interviews and that part of the interview process that led him to identify the cogent material upon which he relied. Finally, he considers the position of the boys and the adults and reminds himself that it was not for A to prove anything in the proceedings before him.

  1. Insofar as there is a submission that a judge hearing evidence from a witness is entitled to disagree with the content of the same and might thereby come to a conclusion which is not otherwise proved by the local authority, I do not consider that to be a reversal of a burden of proof, as submitted by Mr Feehan. It is a part of binary fact finding in a quasi inquisitorial process where the judge has considered what findings he can or cannot come to. At paragraph 63, the judge puts his finding into context and describes and explains why it is he found the younger cousins to be reliable enough. At paragraph 64 of his judgment, he sets out the findings that he makes. In my judgment, the judge was not wrong in the exercise that he undertook.

 

 

The Court of Appeal were unhappy about one finding

 

  1. If I take issue with anything at all, it is in respect of one part of one sentence at paragraph 64 of his judgment where the judge summarises what has gone before and says:

“He attempted to perform anal sex upon K, though it is not clear whether there was any significant penetration.”

  1. The clause: “it is not clear whether there was any significant penetration” must, as a matter of law, read “I make no finding on the evidence that there was penetration” and accordingly there was no finding on that issue at all. That phrase should not have found its way into the schedule of findings that presently appears in the order, and to that extent the order should be corrected.

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Guardians are not a ‘neutral party’ and don’t get brownie points

Posted on April 4, 2014 by suesspiciousminds

MW v Hertfordshire County Council 2014 raises a number of important points for family law practitioners

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/405.html

 

The fundamental dispute was whether the children would be placed with long term foster carers, or with relatives (a maternal aunt and uncle, who lived in Poland) – the care proceedings arose as a result of the father having killed the mother. The Court at first instance made an SGO to the aunt and uncle, this was then appealed by the LA and father and the Guardian supported those appeals.

 

The key points are

 

 

  1. The protection laid down by the Supreme Court in Re T, that costs orders should only be made against Local Authorities in cases where there has been reprehensible behaviour or an unreasonable stance DOES NOT apply to appeals

The local authority and any other appellant has a responsibility to evaluate the merits of the appeal objectively, not merely at the times of drafting grounds when disappointment is rife, but subsequently and up to the date of hearing applying a critical analysis in the cold light of day. The grant of permission does not obviate that responsibility or otherwise necessarily provide a shield against an application for costs against a victorious respondent or appellant.

 

[Given that it is only the LA that have any money in care proceedings, this is a cost risk that only they are exposed to. As we saw recently, that was developed into not only appeals that the LA brought, but one where they were supporting the original judgment. In this case, both the father and the LA appealed, on the same basis, and the appeal was also supported by the Guardian – the LA were hardly a lone voice crying in the darkness, but they were the only ones who had to open their chequebook]

 

2. Guidance on cases involving litigants in person –

 

(a)   it is the duty of advocates not to seek to gain unfair advantage on behalf of their clients as a result of someone else being unrepresented – where a mistake in law or fact is articulated, it is the duty of the advocates to draw that to the Court’s attention EVEN if silence would benefit their client

(b)   the Judge has to be the arbiter of the case and cannot descend into the arena (I always love the visual image that this conjures up for me of the Judge being like Spartacus and tackling a lion with a spear and trident.  “I’m Mr Justice Spartacus”  “No, I’m Spartacus J”   )

 

(c)   It isn’t for the Guardian to act as an amicus, or make representations or put questions on behalf of the litigants in person – the Guardian is ‘not a neutral party’

 

The children’s guardian is not a “neutral” party or participant. When appointed under the Family Procedure Rules (“FPR”) 16.3, as here, the children’s guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child. Practice Direction (“PD”) 16A 6.2 requires the children’s guardian to appoint a solicitor and instruct the solicitor on “all matters relevant to the interests of the child arising in the course of the proceedings” unless the child, being of sufficient understanding instructs a solicitor on their own behalf. FPR 16.29 specifically provides that a solicitor appointed by the children’s guardian must act in accordance with their instructions unless in conflict with the child’s instructions, if that child has sufficient understanding to give instructions on their own behalf, or in the absence of either in furtherance of the best interests of the child. Whilst FPR16.20 (2) requires the children’s guardian “must also provide the court with such other assistance as it may require”, quite clearly a court should never request assistance which renders the children’s guardian or their legal representative effectively engaging in advocacy on behalf of a party or witness whose position creates an actual or perceived conflict of interest with that of the child.

 

 

 

3. Guardians don’t get bonus points as a result of their role and don’t have special treatment as witnesses

 

 

[This will be something that causes most social workers I have ever met to say “Really?” ]

 

Again, arguments advanced in this appeal have revealed the continuing misconception that the evidence and opinion of a children’s guardian, however demonstrably poorly rooted or reasoned, carries additional weight by virtue of their “special” status. It must be firmly squashed. The children’s guardian is required to proffer advice to the court but in doing so becomes a witness subject to the same judicial scrutiny as any other. A children’s guardian starts with no special advantage.

 

 

I know that from Re NL, the justices reasons have been looked at with a critical eye by the High Court, but that case didn’t tackle my own bugbear which is that on so many of the standard facts and reasons pro-formas, there is a specific section dealing with the views of the Guardian and if the Court departs from those, to give reasons.   (That does, to me, imply that the Guardian starts with some special advantage – I have always felt that the Court ought to give reasons for diverting from ANYONE’s case – parents, grandmother, Guardian, Local Authority – all of them are entitled to a proper fair consideration and to have reasons as to why their views have been rejected)

 

I’m going to quote the Court of Appeal on that again, because I’ve been waiting for someone to say this since 1994

 

 

Again, arguments advanced in this appeal have revealed the continuing misconception that the evidence and opinion of a children’s guardian, however demonstrably poorly rooted or reasoned, carries additional weight by virtue of their “special” status. It must be firmly squashed. The children’s guardian is required to proffer advice to the court but in doing so becomes a witness subject to the same judicial scrutiny as any other. A children’s guardian starts with no special advantage.

 

 

5. The principles in Re B and Re B-S are NOT limited only to cases involving adoption – they set out some basic and fundamental principles that are broadly applicable to all cases of State intervention into family life.

 

There are clear principles to be drawn concerning the necessity to police the proportionate response of intended involuntary state intervention into family life by rigorous judicial scrutiny

 

6. The Court of Appeal get near to, but don’t quite commit to what the test is for extended family members.

 

The Judge at first instance said this

 

“the core question is not whether the J’s or the [foster carers] can provide better care but whether the J’s can provide good enough care. It is only if they cannot provide care of at least that standard that the removal of the girls from their family can be justified”;

and,

“The starting point must be that the children are best placed with close family members than strangers and should be placed with close family members unless the family is proved to be unfit, …severance from the family should only take place in very exceptional circumstances. Everything must be done to preserve families. Even if the girls might be placed in a more beneficial environment with [the foster carers] – which incidentally I do not accept – if the J’s can offer good enough care the children should be placed with them”.

 

 

Part of the appeal was that these passages showed that the Judge had wrongly approached the case on the basis that a family relationship trumped all else.

 

This is an interesting and important point – it has been well established and settled law for a long time that for a parent, the Court is not looking for perfection, but whether they are able to provide ‘good enough’ care, but it is less clear whether the same test applies to a family member under consideration.   [I think the Judge is right, personally – it shouldn’t be a matter of whether the child might have a better or happier life in the care of the State, but whether the aunt and uncle could provide good enough care]

 

 

The Court of Appeal did not grant the appeal on that basis (but nor did they say that the Judge’s analysis of the core question “whether they can provide good enough care” was right)

 

Case law does not create a rule that “family trumps all” but family ties must be considered as part of the child’s “background and.. characteristics” (see Children’s Act 1989 section 1(3) (d)). In this case the judge considered them to have particular resonance and particularly so in the light of his entirely favourable impression of Mr and Mrs J. The judgment read as a whole illustrates that he has balanced biological family life against other considerations of the children’s ascertainable wishes, the disruption of what had become an entirely successful long term placement, education and social life, their bereavement and consequent physical, emotional and educational needs. He decided that the balance came down in favour of long term benefits of a family placement.

 

 

The Court of Appeal did change the order from SGO to interim care orders (recognising that an SGO when the children were going to live in Poland probably wasn’t much use, and that urgent exploration needed to take place of what legal framework ought to be in place in Poland)

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Terminating parental responsibility – the appeal

Posted on March 28, 2014 by suesspiciousminds

Re D (A Child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/315.html

 

In this case, the Court of Appeal were hearing father’s appeal against Baker J’s decision to use the power in s4(2A) of the Children Act 1989 that a father’s parental responsibility can be removed from him by order of the Court.

 

John Bolch over at Family Lore has done a good piece on this.

http://www.familylore.co.uk/2014/03/d-child-fathers-appeal-against-order.html

 

The legal power is

4(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.

 

The father in this case was not the most edifying man. He is serving a prison sentence for sexual offences against women. The mother, having ended that relationship wanted nothing to do with him, but from prison the father was making applications for contact with their child.

There are two big arguments in this case  (a) If that s4(2A) power exists, then there must be circumstances in which the Court can use that power, and why not in a case like this?   OR (b) the power in the Act is draconian AND discriminatory, since it presently allows for a mother to ask the Court to discharge father’s PR for bad behaviour, but a father can never do the same against the mother.

[It is for the latter reason that I find myself on father’s side as a matter of law, although my sympathies in this case all lie with the mother]

 

The problem for dad’s team was that the nub of that argument, that s4(2A) is discriminatory to men has already been shot down by the European Court of Human Rights

 

The question of the differential treatment of married and unmarried fathers by the statutory scheme is not before this court for consideration. Neither mothers nor married fathers can have their parental responsibility removed. That was the issue in Smallwood v UK (29779/96) (1999) 27 EHRR CD 155, an admissibility decision of the Commission in which it was held that the difference in treatment between mothers, married and unmarried fathers in the context of the jurisdiction of the court to make an order which removes an unmarried father’s parental responsibility is not a violation of article 8 ECHR [the Convention] taken in conjunction with article 14. On that basis the father in this case was refused permission to appeal on the question of whether the differential treatment was proportionate and whether section 4(2A) CA 1989 was incompatible with the rights set out in articles 8 and 14 of the Convention.

 

Damn. So dad’s team had to take a different tack

 

 

  • The grounds of appeal upon which permission was granted are that:

 

 

 

i) the judge failed to distinguish Re P to have regard to the principles set out in the Human Rights Act 1998 [HRA 1998], the ACA 2002 and the changing social norms over the 18 years since Re P; 

ii) the judge failed to consider whether the mother had discharged the burden of proof so as to establish the allegation that the father was “a sexual recidivist”; and

iii) the judge failed to make a proportionate order or take into account the asserted policy consideration that applications of this kind should not be allowed to become “a weapon in the hands of a dissatisfied mother”.

 

[i.e that “there might be some cases in which it is proportionate and necessary to terminate father’s PR but (a) they should be very very rare and (b) this isn’t it”]

 

Having had to fight, as a result of Smallwood v UK, with one hand tied behind their back, it is not surprising that dad’s team did not succeed.

On the final point, the ‘this could open the floodgates’ one, the Court of Appeal archly point out that two such orders in 25 years doesn’t suggest that the family Courts are about to be besieged by s4(2A) applications.

 

The burden of proof thing is an unusual and intricate argument – in effect it is that the burden of proof falls on the person making the allegation (they have to prove it, the subject of the allegations doesn’t have to disprove it  – a concept that seems entirely lost in LASPO…).

These are the facts that Baker J found, having heard all of the evidence (the important thing here is that some of these findings were his own conclusion rather than mum making allegations and the Court finding them proven)

 

  • The second ground of appeal relates to the judge’s findings of fact and the value judgments he came to upon which he based his ultimate conclusion. So far as the former is concerned this court would have to be satisfied that the judge was plainly wrong in the factual determinations to which he came, that is that there is no objective basis for the same on the evidence that he heard and read, otherwise they will be immune from review. The judge had the benefit “of reading and hearing all of the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days …” (Re B above at [205]). This court will be very hesitant indeed to interfere in that process.

 

 

 

  • It is plain from the transcript that Baker J carefully considered the factual and opinion evidence in coming to his conclusions. It cannot be said that he was wrong to reject the expert evidence that he heard from the jointly instructed psychologist having found that his evidence was naive, complacent, unreliable and at times misleading. He made the following findings about the father:

 

 

 

i) the nature and extent of the facts associated with the father’s criminal convictions included penetrative sexual abuse, inciting a child to engage in penetrative sexual activity, engaging in sexual acts with a child, causing or inciting a child to engage in sexual activity and three sexual assaults; 

ii) he had vacillated over the years between accepting the truth of those facts and asserting his innocence and was presently again asserting that he had been wrongly convicted;

iii) his account of what he called a false confession was wholly unconvincing with the consequence that he had not satisfied the burden under section 11(2) of the Civil Evidence Act 1968 of proving that he had not committed the offences for which he was convicted;

iv) his persistent denials of the validity of the convictions meant that he had repeatedly lied to professionals and to the court (and by implication to his family including his son as that was the factual basis upon which he presented himself to the court);

v) he had lied when he denied giving a previous account to the respondent when he told her that he had been abused in the past by his brother;

vi) having regard to the Lucas direction which the judge gave himself, the father’s lies called into question his reliability as a witness (see R v Lucas [1981] QB 720).

 

  • On the facts that he found, the judge was entitled to conclude (at [51]) that:

 

 

“as he continues to deny his culpability for the devastating acts of abuse he perpetrated on the family, I think it highly unlikely that he appreciates the damage he has caused to every member of the family, or the danger of further damage should he have any further involvement with the family”

 

In this case, it was Baker J who made the finding that father was a sexual recidivist, and the argument was thus that mum (who benefited from the finding) hadn’t had the burden of proof in establishing it.  It would be fair to say that the Court of Appeal didn’t care for that submission.

 

  • It is superficial to say that in this case D’s father has not inflicted harm directly on his child and that therein lies a distinction with Re P which ought to have led to a different conclusion. D’s father inflicted devastating emotional harm on the whole family including D which he continues to deny. It is difficult to see how in that circumstance and in the absence of any other positive factors, the father can be said to be capable of exercising ‘with responsibility’ his parental rights, duties, powers, responsibilities and authority.

 

  • It is likewise wrong to say that the mother has failed to satisfy the burden of proof of facts relating to father’s alleged sexual recidivism. That is a submission that is becoming ever more prevalent in this court with the advent of parties who are not represented at first instance and who can be excused for not understanding the significance of either the burden or standard of proof. So the submission goes, if a party who has the benefit of a finding from the court has not been put to the obligation of proving it, what the court has done is to subtly reverse the burden of proof. I make it clear this is a distinct submission from one which calls into question whether someone has not had the benefit of procedural protections to which they are entitled.

 

  • Provided that procedural protections are identified and used by the court, the process of fact finding in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to make decisions about facts and/or value judgments that are not asked for by either party. A judge cannot shrink from doing so. That is his function. He must identify such questions and where necessary decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial process to which I have referred was considered and approved in its use by the family courts in public law children proceedings and must as a matter of good practice be available to the same inquiry in private law children proceedings: In the Matter of W (A Child) [2013] EWCA Civ 1227 at [36]:

 

“Although it is conventional to speak of facts having to be proved on the balance of probabilities by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial (quasi-inquisitorial in the classic sense that the court does not issue the process of its own motion). The judge has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether or not the local authority or any other party agree. Furthermore, the basis upon which the threshold is satisfied is a matter for the judge, not the parties. To that end, if the judge directs that an issue be settled for determination, then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council [2012] 2 All ER:

[21] … The nature of the court’s enquiry under the 1989 Act was inquisitorial. To speak in terms of a burden of establishing precedent or jurisdictional fact was inappropriate.

[22] … I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties … The court in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability.”

 

Interesting – the suggestion there is that if mum had alleged that father was a sexual recidivist, the burden of proof would be on her, but where as here, the Judge makes the finding of his own motion arising from the evidence heard, there is no burden of proof – it is just the STANDARD of proof that we are concerned with. Was it more likely than not to be the case, and the Court of Appeal saw no reason to deviate from this.  [It is such a narrow technical point that I don’t see it coming up very often, but the Court of Appeal have slammed that door shut]

 

Of course, the sort of circumstances (Father injured a child, father is a sexual offender) found here in the two cases where PR was removed don’t come up all that often in private law, but they are rather more common in care proceedings – where of course the mother is represented, will have the powers of s4(2A) explained to her and might be under pressure from professionals to distance herself from father. Might we see that more often in care proceedings?

 

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Go to Court on an egg

Posted on March 27, 2014 by suesspiciousminds

 

 

[with apologies to Tony Hancock and Fay Weldon for twisting their slogan]
Even by HFEA case standards, this one takes some following. Although as we know from the High Court we are all expected to be experts in the HFEA now.

It is Re G (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/336.html

Helpfully, even from the outset, we learn that although the case is called Re G, the children are referred to as “D” and “the twins” – nobody ever gets called “G” at any point.

We have a single-sex couple, A and R. They wanted to have some children. A donated her eggs, which were fertilised by an anonymous donor, and implanted into R, who gave birth in the usual way. Those children were the twins.

There were some fertilised embryos left over from the process, and A later used one of those to have her own pregnancy – that produced child D. [Quite a few years later]

Now, biologically, D and the twins have the same biological mother A, the same (anonymous) biological father and are full siblings.

However, legally, the mother of D is A. The legal mother of the twins is R.

Even though A and R were raising the children together, until they separated, the children (who were full biological siblings) had different legal mothers – A was the legal mother of D and had no legal status in relation to the twins, and R was the legal mother of the twins and had no legal status in relation to D. And although the twins and D were biological siblings, in law they were only half-siblings.

[This is reminding me of the beginning of SOAP, where the voiceover says “Confused? You will be” ]

All of this probably worked out okay, until A and R separated (they don’t even agree when they separated – R says they separated in 2008 but lived together as friends until 2012, A says they were in a relationship until 2012 and then separated)

It is to their credit, as the Court of Appeal observed, that when they came before Her Honour Judge Black, they had managed to resolve where the children would live, contact arrangements and were left with one single issue.

Should there be a joint residence order in relation to the twins, this being the only way that A, their biological mother, would have parental responsibility in relation to them.

Her Honour Judge Black considered that carefully, and it is fair to say that the case law provided very little in the way of guidance to resolve a difficult issue. She eventually refused the order, hence A appealing to the Court of Appeal.

[I have to say, I would have pragmatically have made the order, but made it plain that the twins primary home was with R, and it was an order made to achieve the legal status that A warranted as their biological mother]

18. She began her judgment by explaining that she thought it appropriate that the order made by the court should recognise that only one of the parties was the twins’ mother and therefore she should have sole parental responsibility for them. In contrast, she remarked that the appellant is not a parent of the children and that her status should not be elevated in that way (§4). She considered that the contact arrangement, coupled with the agreement to provide information about education and medical issues and for a limited delegation of parental responsibility was sufficient to recognise the importance of the appellant’s involvement in the children’s lives (§9).
19. The judge thought it of significance that in relation to D, the parties had not taken advantage of the provisions of the Human Fertilisation and Embryology Act 2008 which would have enabled them both to be parents of D. From this, she inferred that there had not been an intention to bring D up as joint parents and, I think, drew the further inference that the same was true of their intentions in relation to the twins. This led to her saying that “there is no question at any point of [the respondent] sharing parental responsibility of [the appellant’s] child with her and, therefore, it would seem on that basis alone, to be wrong that she should expect to share responsibility for [the respondent’s] children” (§8).
20. A theme of the argument on behalf of the appellant was that without a shared residence order, she would be marginalised by the respondent. The judge said that she did not see from reading the parties’ statements that there had been inappropriate marginalisation of the appellant and she considered that the respondent had shown that she recognised the importance that the appellant has in relation to the children by her agreement in relation to contact and the provision of information.
21. In contrast, the judge said that she was concerned about how the appellant “may operate her parental responsibility if she were given it” (§5) and in fixing on a sole residence order as appropriate, she referred to “the risks which may be involved in [the appellant] sharing parental responsibility” (§9).The source of her concern appears to have been particularly the threat to take matters to the press, although I think I interpret her correctly (§5 of the judgment) as saying that it had not been suggested in submissions that this continued to be a problem. It seems she may also have been taking into account what she described as “a sad history to how things have developed over certainly the course of this year and last year”.

 

The Court of Appeal were aided in their decision-making by some recent authorities, and some lovely cut-and-thrust from the two counsel representing A and R (A is the applicant, R the Respondent)

23. Ms Campbell, who appeared on behalf of the appellant, argued that the judge had failed to give weight to some important features of the case, including that the appellant was the biological mother of the twins, that she had cared for them for four and a half years, and that she would be taking a parenting role in respect of them for the rest of their lives.
24. Ms Foulkes for the respondent argued that these matters were known to the judge but she was entitled to give weight to the fact that the respondent is, as she put it, drawing on the speech of Baroness Hale in In re G (Children)(Residence: Same-sex Partner) [2006] UKHL 43 [2006] 1 WLR 2305, “their gestational parent, their legal parent and their social and psychological parent”.
25. Ms Campbell argued that the judge had set too much store by the fact that, by virtue of the Human Fertilisation and Embryology Act 1990, the respondent was “the mother” and therefore overlooked the fact that the appellant was a “parent”. She submitted that the twins have regarded the appellant as their parent all their lives and, during the extensive contact that there will be in future, she would continue to take that role. She submitted that they would naturally expect her to be as involved in matters such as schooling as the respondent and, without parental responsibility, she would not be able to be.
26. Ms Foulkes responded that the law deliberately distinguishes between the genetic mother and the gestational mother. It is of note, she said, that it is the gestational mother who has automatic parental responsibility. The mere fact of genetic parentage is not sufficient, she said, to justify a shared residence order, and even if the judge did find that the appellant had played a parental role, that did not require her to make a shared residence order, see Re R (Parental Responsibility) [2011] EWHC 1535 (Fam) [2011] 2 FLR 1132 where Jackson J did not grant a free-standing parental responsibility order to a step-father who had been and continued to be a psychological parent to the child.
27. Ms Campbell complained that the judge had not identified the risks that she felt may be involved in sharing parental responsibility, submitting that there are no grounds to believe that the appellant would interfere with the respondent’s exercise of her parental responsibility. Ms Foulkes said that the judge’s reference to the threat of the press was enough and the judge could have cited many examples from the appellant’s statement of her referring to her own biological role, failing to recognise the importance of the respondent in the children’s lives, and criticising the respondent’s care of them.
28. Ms Campbell submitted that the judge was wrong to have been influenced by the fact that the respondent was to have no parental role in relation to D; that was irrelevant when considering what was in the interests of the twins. Ms Foulkes’ answer was that this was a relevant factor because it undermined the appellant’s case that the intention had been that she and the respondent would be joint parents of the twins and were intending, with the birth of D, to add to their family. On the contrary, it was said, the evidence showed that the intention had always been for the respondent to be the sole legal parent for the twins and the appellant the sole legal parent for D. It was also relevant, Ms Foulkes said, that the three children would be in different legal situations if a shared residence order was made and the twins would struggle to make sense of why they had two parents with parental responsibility and D did not.

(even though I would have made the shared residence order, I think Ms Foulkes points at para 26 which go in the opposite direction are compelling. It is harder to resolve this than you might think)
28. Discussion
29. It was common ground between the parties that a shared residence order could be made in order to confer parental responsibility. The question is whether the judge was wrong to take the view that it was not in the twins’ best interests to make such an order here.
30. Families are formed in different ways these days and the law must attempt to keep up and to respond to developments. To some extent, the judge was right to say that no decided authorities assisted her greatly. Certainly there is nothing which is precisely in point. It might, however, have been helpful if the parties had invited her to consider the legal framework, including some of the authorities dealing with the nature of parental responsibility and showing how the concept had been approached in new situations which were not centre stage when it first made its appearance. Because, for reasons I will give in due course, I would dispose of this appeal by overturning Judge Black’s order and remitting the matter for rehearing, I thought it might be of assistance to gather together some of the learning that is available even though, in order to do so, I have departed from the parties’ submissions and relied on my own research.
[The research here is excellently set out – it would make this piece rather too long to rehearse it all, but check it out in the judgment if you are interested]

I return to consider the issues arising in this appeal. It seems to me that the judge was put in a difficult position, albeit that this happened for the best of reasons. As the authorities show, a decision such as that which she was asked to take is heavily dependent on the particular facts of the case. Many of the facts here were hotly disputed and there was neither an agreed factual framework nor any factual findings made by a court. No judge wishes to put parties through more litigation, particularly not where, as here, they have at last managed to reach a sensible agreement on much that was in issue between them. Sometimes a judge has no choice but to do the best he or she can to ascertain the facts on the basis of the written material and submissions only; proceedings under the 1980 Hague Convention quite frequently have to proceed in this way. Sometimes the appropriate factual findings are sufficiently obvious for oral evidence not to be required. However, sometimes it is not at all clear on the papers where the balance of probability lies in relation to disputed facts which are central to the judge’s thinking. In those cases, notwithstanding an invitation from the parties to act on submissions only, it may not be realistically possible for a judge to make a determination without hearing some evidence. It seems to me that this case was such a case.
It may not be very surprising that the grounds of appeal did not include a complaint that the judge had made findings without hearing any evidence, as the parties had asked her to rule on the issue on submissions only. Looking back at the process however, I think that it resulted in the judge’s decision being built on foundations which were rather wobbly. This was compounded by her not having articulated, beyond the threat of the press which the appellant had abandoned, what led her to believe that the appellant would interfere with the care of the children if she had parental responsibility, why she thought that would continue to be a risk notwithstanding the appellant’s abandonment of her residence application, and the form she thought the interference would take.
The Court of Appeal felt that Her Honour Judge Black, though clearly faced with a very difficult decision, had given too little emphasis to the biological relationship between A and the twins, and that the decision had to be set aside. The Court of Appeal did not, however, think that they could simply substitute a joint residence order because the disputed facts went to the heart of that decision. Therefore, they decided that the case needed to be reheard, with either an agreed factual matrix or a Judge making findings on the essential disputed matters.

59. I would end with some words to the parties. I urge them to reach agreement about the issues that remain between them. One can well see that, subject to issues about interference and undermining, a judge might be inclined to recognise the distinctive features of this case by making a shared residence order to confer parental responsibility on the appellant, given her past and continuing involvement in the twins’ lives, her role as their genetic parent, and the fact that she is the mother of their sibling. Whether that turns out to be appropriate will depend very much upon what transpires in the new hearing and I express no concluded view about it. What I am, however, quite confident about is that a further hearing should be avoided if at all possible. I repeat what I said in T v T [2010] EWCA Civ 1366 at §49:
“Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in this way is likely to remain with the children into their own adult lives.”
I think the parties realised this when they reached the agreement that they did in front of Judge Black. I am sorry that the arrangements fixed that day cannot stand in their totality. But further agreement is still an option.

 

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What’s app Doc Crippen?

Posted on March 25, 2014 by suesspiciousminds

 

This is going to be a bit of a meander, I’m afraid.

What’s App, if you don’t know, is a communication device – it basically allows a subscriber to send many many messages to other users for a small annual fee (much much cheaper than text messaging). It has become very popular very fast, and as is traditional, Facebook has now swooped in to buy it for an obscene amount of money (even though the money they are willing to pay to own it would not be recouped on the current business model until the year 2525).  

The case of London Borough of Tower Hamlets v Alli and Others  

 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/845.html&query=whatsapp&method=boolean

turns on the evidence having been obtained through Whatsapp.

That in turn, reminded me of the role that Dr Crippen played in the development of wireless telegraphy, hence the meander.

Marconi was the driving force behind the popularity of wireless telegraphy, although many said that his role in inventing it was rather less than his publicity would have you believe, that he had stolen significant elements from other inventors. That was what led Marconi to be the first example of hacking, well before Anonymous and Lulz-Sec and even well before Matthew Broderick in Wargames.

Marconi was holding a lecture at the Royal Institution in London, a centrepiece of which would be his receipt of a wireless telegraphy message from the Marconi station in Cornwall. Things didn’t go quite to plan, as the message that actually came through was a rude couplet about Marconi

There was a young fellow from Italy

Who diddled the public quite prettily

 

Sent by a magician named Maskelyne, who had been hired by the cable telegraphy companies (who obviously had a vested interest in embarassing or discrediting Marconi’s rival model) and he had set up a radio mast nearby and found the wave length that Marconi would be using.

What really popularised wireless telegraphy was the famous murder case, where Dr Crippen murdered his wife and before the body was found had fled on a transatlantic boat to Canada, with his mistress Ethel Le Neve ( a name which manages to be simultaneously glamourous and dowdy, but was at the time probably just purely glamorous). The Captain of the ship suspected that two of his passengers (Ethel dressed as a boy) were the suspects in the murder case and managed to send wireless telegraphs to that effect.

 

Because of the slow journey time in crossing the Atlantic, the public were able, on both sides of the Atlantic, to follow the story in the press, and knew that on disembarkation the lovers would be arrested, due to the wonders of wireless telegraphy.

 

Okay, back to the case

 

This was a committal application (we seem to be getting a lot of them) arising from the mother in care proceedings disappearing with two children, who were the subjects of Interim Supervision Orders and living at home with her. There was to be a five day final hearing in the case, and the parents were both legally represented.

 

 

  • A final hearing of the local authority’s application for orders in relation to the children has been listed for a date in May 2014 with a time estimate of five court days. I wish to emphasise that at that hearing both parents will have, or have had, the fullest opportunity to contest the local authority’s application and call evidence of their own. They are entitled to public funding so as to ensure that they are represented by family lawyers. Indeed, I note from the court bundle before me that they are so represented. I should also indicate that at the parents’ request within those proceedings a number of family members have been assessed as potential future carers for the children in the event that the court concludes that the parents cannot continue to care safely for the children.

 

 

 

 

  • I do not propose to rehearse the background history of the public law case. It is sufficient for me to record in this judgment that the local authority has significant concerns about the safety and wellbeing of these two children in the care of these parents or either of them individually. The mother is said to be, or have been, a heroin addict; the father has also been dependent on non-prescribed drugs. That said, the social workers have been attempting to work with the parents in order to maximise the prospects of the children being raised within their own family.

 

The Court made orders under the inherent jurisdiction for the location of the children. Part of that order was that anyone who knew of their whereabouts was to provide the information.

By the terms of that order any person served with the order – and I pause here to observe that the mother and the father were both named specifically in the order – must (a) inform the tipstaff of the whereabouts of the children if such are known to him or her, and (b) also in any event inform the tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the children. Later on the 11th March the father telephoned Social Services to say that he had received a telephone call from, he believed, the mother, and had heard one of the children in the background.

 

On the 12th March, in the morning, two Police officers acting on the instructions, and as agents, of the High Court tipstaff, attended at the parents’ address. After a short delay the father answered the door, indeed on their account only opening the door when they announced that they were Police officers. The officers asked where the mother was. The father claimed not to know. He told the Police officers that the children were “with their mother“. He told the officers that he had last seen the children and the mother on Sunday, the 9th March, and that his wife had taken them to school on the morning of the 10th March, though he had not in fact seen them leave. There is a discrepancy between the Police officers as to whether the father had actually said that he had seen his wife and the children on Monday, the 10th. I do not find it necessary to make a determination on that discrepancy. When challenged by the officers with the fact that the children were missing he said, “They are not missing, they are with their mother“. He told the officers that he had been separated from the mother for two weeks. He said that although he had known that they were missing for, by now, 48 hours, he had not reported them missing to the Police. He said that he had telephoned family members to inquire specifically naming two brothers, but could not provide the relevant phone numbers of those brothers. I interpolate here to say that the father’s brother told me this morning on sworn oral evidence that he had not in fact spoken with the father on the telephone in this period. There was evidence of the children being in the flat, coats on coat hooks in the hallway, children’s toothbrushes in the bathroom. The father handed the Police officers his mobile phone. It is reported by the officers that the father generally appeared evasive. The officers contend that they had reasonable cause to believe that the father was in fact withholding information about the mother’s and children’s whereabouts. After a telephone call to the High Court tipstaff they arrested the father. The property was searched but the children’s passports were nowhere to be seen. The father said that he did not know where they were (this was of course different from the information he had given the social worker). When the father was arrested he is reported to have asked how long he would be in custody, “because I am supposed to be going on holiday“.

 

Now the What’s App stuff

 

 

  • he father was brought to court on the 13th March, the following day, and at that hearing Russell J remanded the father in custody to today’s hearing. She made further orders requiring the attendance at court today of other family members. Pursuant to her order, the notice of committal was issued later that day and served on the father, as I have said, on the following day. This notice contains the following alleged breach of the location order:

 

 

 

“That the Respondent father has knowledge or information pertaining to the whereabouts of the children. He has given differing accounts to the local authority and tipstaff.”

 

 

  • At the outset of the hearing today I was advised that the father’s mobile telephone, seized by the Police on the 12th March, as indicated above, contained a number of ‘whatsapp’ or text messages in Bangladeshi or Sylheti and in English, and a recently sent photograph of Samira. The dates of the text messages appear to span a number of weeks. I put the case back so that an interpreter could be located to translate the text messages for the court.

 

 

 

 

  • In the meantime I heard brief sworn oral evidence from the father’s brother. He told me that he had a “feeling” that the mother and children were in Bangladesh but advised me that this was not because he had been told this but simply that the mother had travelled there in the past.

 

 

 

 

  • The evidence laid before the court by the local authority now reveals the following, that mobile telephone text messages or ‘whatsapps’ had passed between the father and his nephew, a man called Shahed, in Bangladesh in a period which spans about six weeks. It now transpires that the father believes that the mother is having a relationship with Shahed. In that period it appears that on one occasion the father had sought to send Shahed some information or documents by email or text but had not been able to do so. On the 18th February a number of pictures with typed text on them, possibly court orders, were exchanged by text. On the 8th March, that is Saturday of last weekend, the father received a ‘whatsapp’ message from Shahed which reads:

 

 

 

 

“On the way Dacca … need more 6 hour.” 

 

There is then a selection of photographs one of which is of Shahed in a car. On the following day, the 9th March, the father sent a message to his nephew, Shahed, which includes this phrase, “Anyway, tell my sister-in-law [the word in Sylhet was Babi, and the father told me that he could not say that it was not a reference to his wife] to enjoy the sex I could not give“.

 

 

  • The father on the 11th March at 0736 received three photographs from the mobile telephone of Shahed in Bangladesh. Two of those photographs are photographs of Samira. The local authority asserts, with considerable justification, that these text messages very strongly indicate that by the morning of Tuesday, the 11th March, not only was Samira in Bangladesh but the father must have known that.

 

 

 

 

  • The father gave evidence before me this afternoon. He told me that he could not now recall when he had last seen the children. Possibly it was Saturday 8th, or possibly Sunday 9th March. He ascribed his loss of memory either to a 2008 head operation or alternatively the after-effects of a tooth operation which had been conducted some time on the 4th March. He was now confused, he told me, whether the mother had taken the children to school on the Monday morning. If she had done so it would, on his case, have been during a time when he and the mother were in fact separated and she was living away from the home (though he did not know where). He believed that his wife and Shahed, his nephew living in Sylhet, Bangladesh, are engaged in a relationship. He had in the past seen messages from Shahed to his wife and had confronted Shahed and his wife about this in the past. She, Mrs. Khatun, had denied it, but the father went on to tell me that the mother had been to Bangladesh twice on her own to stay with Shahed, once in April 2012 and again in September 2012. Significantly, he told me that he first suspected that the mother and children had in fact fled abroad to Bangladesh sometime on Tuesday, the 11th. He told me because he was calling her and when he called her mobile phone he heard a different ring tone. He told me that when she did not pick up the phone he sent her texts. These texts have been read to the court. In the early hours of the 11th March he sent a text to the mother which includes these terms:

 

 

 

 

“I’m so stupid and naïve that everything was happening in front of my eyes but did not see. Anyway, I hope you are getting enough now because you have a lot of load to offload if you get my drift. Anyway, enjoy the passionate making out and don’t worry you get pregnant because I’ve taken the long-term precaution … Love you still.“ 

 

He goes on:

 

 

“Good luck with your new good looking husband and please don’t bullshit me that it was just a phase because I know that you got married to this guy.“ 

 

In the early hours of the following morning, the 12th March, about eight or nine hours or so before the Police went to the father’s property, the father texted the mother again.

 

 

“I can’t believe you forgot. I went out begging for money because we didn’t have any after doing all this for you. You still deceive me. I hope it was worth it …“ 

 

And then two minutes later:

 

 

“Sorry for all the trouble I’ve caused you so forgive me, my love.” 

 

 

  • As is apparent from my earlier account of the history, the father did not tell the Police on the 12th March that he knew or suspected that the mother was with Shahed in Bangladesh. He told me that he did not tell anyone, he does not know why he did tell anyone, but he thought he may be able to sort it out. In relation to the text from his nephew, “On the way to Dacca“, the father unconvincingly told me that, “I thought he was on a trip or something“. The father told me that he did not see the 11th March message from his nephew with the photographs of Samira even though these had been received by his phone for 24 hours or more before the Police went to his property and I know, as the father has accepted, that he used his phone and the ‘whatsapp’ facility on it to communicate with his wife at least twice since the arrival of those photographs.

 

 

With all that in mind, the evidence against father was damning. The Judge made his decision

 

 

  • Having regard to the totality of the evidence, I am satisfied beyond reasonable doubt that when served with the location order on the 12th March the father had knowledge which might reasonably assist the tipstaff in locating the children. I so find for the following reasons:

 

 

 

 

(a) first, that the father has himself admitted to believing that the children and the mother were abroad in Bangladesh as early as Tuesday, the 11th March. His text messages to the mother are clear evidence of this. 

(b) In fact I find that the father, beyond reasonable doubt, suspected that they were in Bangladesh before that time.

(c) I further find that the father had received and seen the photograph of Samira (taken in Bangladesh) on the 11th March shortly after it had arrived, certainly well before the Police attended at his home.

(d) I find that the father deliberately misled the Police in declining to assist in disclosing what was a high probability in his own mind that the children and the mother were in Bangladesh at the time that they questioned him about it.

 

The only issue that remained was what sentence would be passed

 

  • Mr. Ali, will you stand, please. Mr. Ali, it appears almost certain that your wife has left this country with your two children who are the subject of court proceedings. I suspect, but do not find, that if she has done so it has been to frustrate the due process of the law and specifically to avoid participation in the court hearing at which the Family Court would be considering the local authority’s concerns about the wellbeing of the children. You have said yourself you believe that the mother is a heroin addict yet you have failed, as I have found, to assist the court in attempting to locate these children, allowing the children to remain in the care of their heroin addict mother without supervision by authority.

 

 

 

 

  • On the 11th March, Mr. Ali, I made orders designed to trace and locate these children, and once located to restrict their movement while decisions were made about their immediate futures. As you will have just heard, I did not make orders at that time permitting their immediate removal into foster care. However, you, Mr. Ali, have deliberately withheld and, in my judgment, continue to withhold information which could lead to the whereabouts of the children. You have obstructed the Police, you have obstructed Social Services, and you have obstructed this court in our joint endeavour to trace your missing children. It is your obstruction of the court order which provokes this application for committal.

 

 

 

 

  • Mr. Ali, untold damage is done to children who are spirited away from one home to another, let alone from one continent to another, without warning or preparation. Disruption to their routines, the predictability of their lives, their family relationships and social relationships and to their schooling is inevitable. Parents who remove children from their home environments in this way cannot, and should not, go unpunished. Parents who seek to protect those who remove children in these circumstances, who deliberately obstruct the due administration of justice, and knowingly breach court orders should also expect to be punished appropriately by the court.

 

 

 

 

  • I accept, Mr. Ali, that there is no evidence of your involvement in any preplanning of this trip to Bangladesh, but you have, in my finding, deliberately obstructed the due administration of justice and, by your lies to the court today, continue to do so.

 

 

 

 

  • I have taken into account your home circumstances, that you presently assist in caring for your elderly mother, but the sentence which I impose has to be a custodial sentence to reflect the gravity of your breach.

 

 

 

 

  • The sentence I impose is one of four months imprisonment. You will serve one-half of that sentence.

 

 

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There is some corner of a foreign field that is forever not part of the Hague Convention

Posted on March 22, 2014 by suesspiciousminds

 

The quirky case of Leicester City Council v Chhatbar 2014 – which features without a doubt the best application for permission to appeal I’ve ever read

http://www.bailii.org/ew/cases/EWHC/Fam/2014/830.html

The parents names are reported in the case because they are freely available to view on the Interpol website  (the Daily Mail attended the hearing and sought that permission to name the parent, which was granted)

    1. On 12th October 2013 at a time when Mr. Chhatbar and Miss Rahman frankly concede they knew that Abdul Rahman was the subject of protective measures, they left England and Wales and travelled to the Turkish Republic of Northern Cyprus. As is well known, the Turkish Republic of Northern Cyprus is recognised as an independent state only by Turkey. The rest of the world, and specifically the European Union, regard the Turkish Republic of Northern Cyprus as being a military occupation by Turkey of part of the Cypriot Republic. The Turkish Republic of Northern Cyprus is not a signatory to the 1980 Hague Convention on the Civil Effects of Child Abduction, nor does it subscribe to or apply the child abduction provisions of the Brussels II regulation.

 

    1. The court can easily conclude that a motive for these parents taking this child to the Turkish Republic of Northern Cyprus is that, uniquely within Europe, it represents a safe haven from the provisions of the 1980 Hague Convention.

 

  1. The reason I am being asked to determine that on 17th October 2013 when Abdul Rahman was made a ward of court he was habitually resident in England and Wales is not in order to demonstrate that on 12th October 2014 he was unlawfully removed from England and Wales within the terms of Art.3 of the Hague Convention. The reason I am being asked to determine this issue is in order that the local authority would be equipped to argue, should Abdul Rahman ever be taken to a Hague Convention country, that from 17th October 2013 he was being unlawfully retained by the parents in Northern Cyprus. In order for an unlawful retention for the purposes of Art.3 to be proved, it has to be shown that on the relevant date Abdul Rahman was habitually resident here and that at that time rights of custody had been vested in this court. Plainly the latter criterion was satisfied because this court had made him a ward of court on that day. The question is whether on that day he was habitually resident here.

 

If you are going to do a runner then, the Turkish Republic of Northern Cyprus is a good destination.  (though read the whole thing before booking your flight)

As it isn’t a signatory to the Hague Convention, there is no straightforward method in international law for compelling the return of the child (there MIGHT be in the law of the Turkish Republic of Northern Cyprus, but frankly who knows?).

The City Council asked the High Court to declare that the child had been unlawfully removed from England under article 3 of the Hague Convention, not so they could get the child back from Northern Cyprus, but rather so that if the family set foot in any other bit of Europe, the child COULD be recovered.

Mr. Downs frankly concedes that this exercise only becomes relevant if Abdul Rahman is taken by his parents to a Hague Convention country of which, of course, Turkey is one, the Republic of Cyprus is another, and Greece is yet another. He argues, as does the Council which he represents, that this is a reasonably foreseeable prospect. First, they say that the parents were, in fact, in Turkey as recently as December 2013. They say they went there in 2013 for a holiday. Secondly, they say that in order to be able lawfully to stay in the Turkish Republic of Northern Cyprus they need to leave the country every 90 days in order to re-enter and receive a new 90 day tourist visa.

The Judge heard from the parents by videolink, considered all of the relevant law and facts and reached this conclusion

    1. In my judgment, on 17th October 2013 both the parents and the child had their habitual residence in England and Wales. They had not severed their integration in this country. Their social and family environment was in England and Wales. Of that I have no doubt. I do not need to speculate further on the motives that drove them to leave to go to Northern Cyprus although pretty easy conclusions can be drawn.

 

  1. I say nothing about the merits of the local authority’s case other than to observe that at the relevant time the father was under an order of probation awarded by a criminal court in relation to an offence of domestic violence. He was obliged under our law to be in this country in order to undergo the period of probation that had been awarded. Beyond that I say nothing about the merits of the steps taken by the local authority. Nor do I want to give anybody any indication of the likelihood of success, should these parents go to a Hague Convention country, of an application under the Hague Convention to such a country for the return of Abdul Rahman to this country. Of that I say nothing at all. I confine myself strictly to saying only that on 17th October 2013 the child, Abdul Rahman Chhatbar was habitually resident in England and Wales.

 

What follows then, is the father’s application to appeal, which I’ll print in full

MR. CHHATBAR: Excuse me.

MR. JUSTICE MOSTYN: Yes.

MR. CHHATBAR: Can we appeal your decision?

MR. JUSTICE MOSTYN: I have given my decision. I have declared that Abdul Rahman was habitually resident in England and Wales on 17th –

MR. CHHATBAR: Yes, I heard all that. We heard all that. We are asking you can we appeal your decision.

MR. JUSTICE MOSTYN: OK. So you need to ask me for permission to appeal.

MR. CHHATBAR: Yes, that is what we are asking.

MR. JUSTICE MOSTYN: I can only give permission if I am satisfied that you have got a real prospect of success or there is some other good reason why an appeal should be heard. Is there anything else you want to say about that?

MR. CHHATBAR: Yes, it is a joke, isn’t it? It is a fraud. It is a fraud mate. It is all a fucking fraud.

MR. JUSTICE MOSTYN: OK.

MR. CHHATBAR: Good luck in trying to find us. Good luck.

MR. JUSTICE MOSTYN: Thank you very much.

MR. CHHATBAR: The court has got no jurisdiction. We are never coming back to England. Good luck. See how powerful you are, yes. You are powerful sitting there in your chair. It is a fucking fraud.

MR. JUSTICE MOSTYN: Thank you very much, Mr. Chhatbar. It is a shame –

MR. CHHATBAR: See if you are a good parent sitting in that chair when your son takes cocaine. You are a joker, my friend, you are a joker.

 

The transcript doesn’t indicate whether there was any pause, and if not, hats off to Mostyn J for his response

MR. JUSTICE MOSTYN: All right. Mr. Chhatbar applies for permission to appeal. Under the Civil Procedure Rules Part 52 the permission can only be given if I am satisfied that there is a real prospect of success or there is some other compelling reason why the appeal should be heard. In as much as I can understand Mr. Chhatbar, he says that my decision is wrong because I have no jurisdiction and because it is fraudulent.

I consider that I have applied the law scrupulously to the facts of this case. I am completely satisfied that there is no prospect of success of an appeal, let alone a real one, and that there is no other compelling reason why the appeal should be heard. I therefore refuse permission. Mr. Chhatbar, of course, is entitled to renew his application for permission with the Court of Appeal. Thank you very much.

 

The Judge then goes on to address the Press in relation to accuracy of reporting (lets see if this makes any difference when they report the case)

On 3 March 2014 a report appeared in the Daily Mail authored by a journalist who had been in court[2]. In the report it was stated “Financial adviser Mr Chhatbar and travel agent Miss Reheman, 19, fled after a relative made an allegation to Leicester city council social services that Mr Chhatbar had a violent past. It is a claim the couple vigorously deny, but social workers warned them to split up so Momo could live with Miss Reheman in safety or else they would seize the baby.” The report failed to mention what I had said in the first two sentences of para 17 concerning the father’s conviction for an offence of domestic violence. Further, to the best of my recollection, what was written was not mentioned in court. The President, Sir James Munby, has recently emphasised in Re P (A Child) [2013] EWHC 4048 (Fam) at paras 26 and 27[3] that while the court will not exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish there is nonetheless, for obvious reasons, a premium on accurate press reporting of proceedings such as these.

 

[For the avoidance of doubt, this judgment, at which representatives of the Mail were present, WAS BEFORE that article was published, and the author of the article was in Court]

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