Category Archives: case law

An air of indifference

Posted on March 20, 2014 by suesspiciousminds

 

The High Court kicking ass and taking names in Re A (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/604.html

 

This involved a set of care proceedings in which the father was Latvian. For one reason or another, he did not get served with notice of the proceedings or get told that his child was in care or that he was entitled to be represented for FIVE months.  That despite a series of orders being made that he was to be located and served.

 

The High Court understandably took a dim view of this

 

As far as I can establish orders made were not complied with. When the matter first came before me in September, I am afraid to say that there was an air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders.

 

 

The High Court gave some guidance on cases where one parent lives abroad, this being a more common feature in care proceedings

 

  1. In cases such as this, where one or both of the parents lives abroad, the following action should be taken:

(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to B2R information as to the parent’s whereabouts can be obtained through an Article 55 request via the Central Authority. My experience is they respond effectively and efficiently to focused requests made;

(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. It took less than five hours at the hearing in September to contact the father and secure representation. Most solicitors who do this sort of work have a wealth of experience in undertaking work where one of the parties resides abroad. It is now a much more regular feature of this type of case;

(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court’s jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party’s legal representatives.

(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.

 

 

Ignore those at your peril. I imagine if you happen to be before this particular judge and haven’t followed these guidelines if the issue arises, that it might turn out to be a difficult day in Court.  The retired manager of Manchester United was often described, when shouting at his players, to have given them ‘the hairdryer treatment’   – I suspect that would be putting it mildly. *

 

(* I note Charles J’s comments to the House of Lords committee looking at the Mental Capacity Act 2005 that writing a judgment on a deprivation of liberty case left him feeling like he had been in a washing machine on spin cycle)

 

At any rate, I don’t think that the judicial approach would be indifference.

 

Returning to the case itself, once the father was served, his application was that the case should be dealt with in Latvia.

 

His starting point was that the child was not habitually resident in England, but in Latvia when the proceedings started, so the English Court has no jurisdiction. His fallback position was that even if the English Court had jurisdiction, Latvia should be preferred under Brussels II

 

 

The father’s case was that the mother had taken the child out of Latvia and come to England without his consent, and that having not consented to that removal, it was an unlawful one

 

It is agreed in those circumstances that the removal of A was wrongful pursuant to Articles 3 and 5 of the Hague Convention, because he was habitually resident in Latvia prior to the removal. The father had rights of custody in respect of him under Latvian law under Articles 177 and 178, the father did not consent to his removal and the removal was in breach of his rights of custody which he was exercising or would have done but for the removal.

 

 

The mother claimed that the father had acquiesced in the removal

 

In determining acquiescence the House of Lords decision Re H (Abduction: Acquiescence) [1997] 1 FLR 872 is the leading authority setting out the factors that the court should take into account. They are summarised as follows: firstly, the question of whether the wronged parent has acquiesced in the removal or retention of a child depends on his actual state of mind; secondly, the subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent; thirdly, the trial judge in reaching his decision on that question of fact will, no doubt, be inclined to attach more weight to the contemporaneous words or actions of the wronged parent than to his bare assertions in evidence of his intentions; fourthly, the court should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted children and; fifthly, where the words or actions of the wronged parent had clearly and unequivocally shown or had led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and is inconsistent with such a return, justice requires that the wronged parent be held to have acquiesced.

 

 

The Court was satisfied that the father had been making efforts to locate the mother and the child, and had made applications to Courts in Latvia, this being compelling reasons to discount a suggestion that he had acquiesced to the removal.

 

The Court then looked at whether mother had demonstrated a defence to the abduction that would make it justifiable, and concluded that she had not, or whether there was now ‘settlement in England; and that there was not. (If you are fascinated about the law on abduction, there’s a lot of meaty information in this judgment, but it probably lies outside of the scope of non-specialists)

 

 

Thus, the child was wrongly removed from Latvia, that removal did not change residence, and the English Court had to order return of the child to Latvia, and any future proceedings would be in Latvia rather than England.  The child had legally been habitually resident in Latvia (although was physically in England) at the time the proceedings began

 

  1. For the reasons that I have already set out, I do not consider the father has acquiesced to the retention by the mother of A here and in the same way I do not consider he has acquiesced to A’s habitual residence here and in those circumstances Article 10 B2R applies and A’s habitual residence remains in Latvia.
  1. So for those very brief reasons I am clear that at the time the proceedings were commenced in this jurisdiction A’s habitual residence was in Latvia and so this court, other than for the limited purposes under Article 20 B2R, does not have jurisdiction to determine the care proceedings.
  1. In those circumstances A should be returned to Latvia and I will hear submissions from the parties as to the practical arrangements that need to be made.

 

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A gilded cage is still a cage (Lady Hale finally wins one!)

Posted on March 19, 2014 by suesspiciousminds

If you do Court of Protection work, you have probably been waiting for the Supreme Court’s decision in Cheshire West and Chester, which is here

http://www.bailii.org/uk/cases/UKSC/2014/19.html

 

 The Supreme Court decided unanimously that P’s liberty was being deprived, and on a 4-3 split that MIG and MEG’s liberty was being deprived. [Yes, a 4-3 split in which Lady Hale finished on the winning side. A 4-3 split does, however indicate that the issues are difficult and that it wasn’t an easy decision or foregone conclusion – they also overturned the Court of Appeal on these two linked cases]

 At the same time, they dismantled the Court of Appeal’s notion that a factual determination of whether someone’s liberty was being deprived was a subjective comparison with what would be reasonable to do for someone of similar characteristics. This is also, as far as I know,  the first finalised deprivation of liberty decision applying to a person living in a foster placement rather than a care home or hospital.

 If you do only care or children work, you’ve probably never heard of Cheshire West, or MIG and MEG, or possibly even DoLs; but just in case you think you can cheerfully ignore all of them, give me one paragraph of your time, to convince you that you ought to learn a bit about this case.

 

The President has issued guidance saying that Deprivation of Liberty applications don’t apply to children under 17 (he is right), and that if there is in a child’s case a deprivation of liberty issue then the mechanism is either detention under the Mental Health Act or an application for a Secure Accommodation Order. The Supreme Court here decided, on a 4-3 split, that what was happening to two young women (formerly children) in a foster care / residential home setting WAS a deprivation of liberty. And therefore, if this was happening to children in other cases, those other cases ought to be the subject of a Secure Accommodation application, or Mental Health Act intervention.

 

Children have historically been the subject of Secure Accommodation applications if they are absconding, or taking deliberate actions, but this case raises that if their liberty is being deprived as a result of their vulnerabilities or medical situation or functioning, that can still equate to a deprivation of liberty which needs to be sanctioned by the Court.

 

That is only the case if it is the State, or a limb of the State that is restricting the child’s liberty.

 

54. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

 

I come back to this at the very end of the piece, so if you really don’t care about Court of Protection work, you can skip to the bottom.

 

What sort of restrictions were being applied to those young women, and why?  (I’ll call them MIG and MEG, as they were initially dubbed. This is interchanged in the judgment with P and Q, but because the Supreme Court were dealing with two cases interlinked  “P” and “MIG and MEG” / “P and Q”  I think it is confusing to have two separate “P” cases in the same discussion)

 

11. MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sister’s and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour.

 

  1. At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her “mummy”). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication.
  1. MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister.

 

 

The original Court of Protection hearing decided that what was happening was NOT a deprivation of liberty, and that any restrictions were for the best interests of MIG and MEG and were justified.

 

The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the “relative normality” of the sisters’ lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the “greater fulfilment in an environment more free than they had previously had” (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that “what may be a deprivation of liberty for one person may not be for another” (para 40).

 

 

That sentence lays at the heart of the two appeals to the Supreme Court.  In the other case, involving an adult named P, the Supreme Court were unanimous that his liberty had been deprived.

 

  1. P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Down’s syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority.
  1. Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to P’s family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one “waking” member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication.
  1. By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” (para 59). Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam).

 

 

That decision was reversed by the Court of Appeal

 

The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of “relative normality” adopted in P and Q, and considered it appropriate to compare P’s life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P” (para 120).

 

 

This concept of ‘relative normality’ or ‘what might be a deprivation of liberty for one person might not be for another’ really lays at the heart of these appeals to the Supreme Court.  In essence, is whether someone is deprived of liberty an OBJECTIVE test, or a SUBJECTIVE test?

 

There is an excellent history of how the “deprivation of liberty” legislation came about in Lady Hale’s judgment, well worth a read.

 

There were a category of people who weren’t detained under the Mental Health Act, or under criminal legislation, but who were being effectively detained because they lacked the capacity to say “I want to leave” or that if they tried to leave weren’t allowed to do so.

 

This came to a head with a man named L, who took his case up to the House of Lords. R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458.  He had been living with foster carers, became agitated one day at a day care centre and was taken off to hospital, and the carers were not able to get him out. If he HAD been detained under any legislation, then the carers would have had access to legal routes to challenge the decision, but were left in a grey area where they and L seemed to have no rights at all.

 

The majority decision  of the House of Lords was that he had not been detained, and if he had been, it had been under the doctrine of necessity.

 

Lord Steyn disagreed, forcefully and  said

 

  1.  “Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale.”

 

When the case went to the European Court of Human Rights, Lord Steyn was shown to be right, and went about his day without egg on his face.

 

  1. The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL.
  1. Key passages from the judgment are these:

“89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.

90. . . . . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . . . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.

91. . . . the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. . . .

Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court’s view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale’.”

 

 

As a result, it became necessary for the UK to introduce a statutory mechanism to deal with people like L, and that mechanism was the deprivation of liberty powers within the Mental Capacity Act 2005

 

Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the person’s condition while a case is pending before the court.

 

Lady Hale goes on to say that the safeguards have the appearance of bewildering complexity   (only the appearance?)  and a few High Court Judges, notably Peter Jackson J have remarked in judgments that the law on deprivation of liberty has become so complex that nobody can understand it, least of all the relatives or carers of the vulnerable people who need to be safeguarded by it.

 

 

Let’s get on with the central argument

 

  1. The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in P’s case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the

“question whether the limitations and restrictions on P’s life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. P’s life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker J’s phrase…, dictated by his disabilities and difficulties” (para 110).

This view has been confirmed by the rejection in Austin v United Kingdom (2012) 55 EHRR 14, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania (2013) 56 EHRR 11).

  1. The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.

 

 

To be honest, you can just assume that I am saying “hear hear” at most paragraph breaks from here on in. But hell yeah.

 

  1. Allied to the “inevitable corollary” argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.
  1. The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present-day conditions and continued:

“It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008).”

 

 

So, there isn’t a different test about whether someone’s liberty is being deprived because of the circumstances of that individual   (that might go to the later question of whether the deprivation is justified or justifiable, but it is a straight factual decision – EVERYONE has the right not to be deprived of their liberty, and you don’t lose that right just because you are autistic or vulnerable in other ways. We certainly don’t compare sedating a vulnerable person and preventing them from leaving with putting a seatbelt on a wriggling child in the back of a car.    (Or at least, we don’t any more, that comparison was made in one of these Deprivation of Liberty – DoLS cases)

 

Second question then, if deprivation of liberty is a factual question, what are the characteristics that decides whether someone is, or is not being deprived of their liberty?

 

The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.

 

…

 

  1. In none of the more recent cases was the purpose of the confinement – which may well have been for the benefit of the person confined – considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46:

“I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?”

 

 

ie, something doesn’t cease to be a deprivation of liberty just because there are good reasons for it  – what you have there is a deprivation of liberty which is justified, and the Court can sanction it.

 

 

  1. In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
  1. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
  1. For that reason, I would reject the “relative normality” approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading

 

 

 

  1. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus?
  1. The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.
  1. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach

 

 

 

You are looking for  – is a person under continuous supervision and control, are they free to leave.

 

It is NOT relevant that the person is complying or not objecting.

 

It is NOT relevant that a person in similar circumstances to this person would have the same sort of placement or restrictions

 

It is NOT relevant that the reason for the restrictions is to protect the person or that it is for their own good   (that comes into the second stage – is the deprivation justifiable)

 

 

54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.

 

And on P

 

  1. In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that “a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person’s care and movements” (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person’s life, which in my view are not relevant factors. But when he considered the circumstances of P’s life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P’s life was as normal as possible, but continued (para 59):

“On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.”

In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that “looked at overall, P is being deprived of his liberty” (para 60) should be restored.

 

 

And in conclusion Lady Hale says

 

Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.

 

 

 

As I said at the outset, the Supreme Court was unanimous that P’s liberty had been deprived, but were 4-3 split on MIG and MEG, the majority agreeing with Lady Hale that their liberty had been deprived.

 

 

The dissenting views were in very broad terms based on agreement with this proposition by Parker J in the original decision on MIG and MEG

 

  1. 107.                        “225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made.

226. In my view it is necessary to analyse what specific measures or restraints are in fact required. …”

 

And that

 

nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIG’s liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG.

 

 

 

I am aware, in conclusion, that I have devoted far more time to the majority judgment and lead judgment of Lady Hale than to the dissent; an analysis of the nuances between them is probably beyond the scope of this blog and I’ll leave it to specialists like Lucy Series over at The Small Places blog. 

 

 

[Lucy hasn’t written on it yet, but can I refer you to this brilliant, stirring and beautiful piece on the House of Lords dissection of the MCA  http://thesmallplaces.wordpress.com/2014/03/14/democracy-in-action/

 

I wish that I could write with an ounce of Lucy’s passion – she’s the sort of writer that makes me want to man the barricades. If, as the House of Lords hint, there should be some sort of monitoring/oversight/scrutiny/guidance body other than the Courts overseeing the MCA, Lucy should be on it ]

 

Plus, as I have not even attempted to disguise during this piece, I wholly agree with Lady Hale’s determination.

 

It may well be that there are far more people than the current 11,800 DoLs applications as a result of this decision. Well, so be it. For me, that is more people whose liberty is being deprived having the opportunity to challenge and test that before the Courts, rather than workers on the ground deciding that they aren’t being deprived of their liberty because the restrictions are right for ‘that sort of person’ and ‘for their own good’

 

Maybe the number of applications will break the system. Well, then the system needs to be broken and rebuilt.  Because of the extreme vulnerability of people like P and MIG and MEG, we should err on the side of extreme caution when protecting their rights.

 

 

As to the children and secure accommodation orders approach, it might be worth noting Lord Kerr’s observations (this one of the majority judgments)

 

  1. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
  1. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.
  1. Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age.  There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting.  A comparator for a young child is not a fully matured adult, or even a partly mature adolescent.  While they were very young, therefore, MIG and MEG’s liberty was not restricted.  It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.

 

So in order to ascertain whether a deprivation of liberty is occurring you are looking at whether the restrictions being put on THIS child are comparable to that of another child of similar age  – of course carers and parents put different restrictions on an 8 year old than a 15 year old, and it is nonsense to say that the 8 year old’s liberty is being deprived as a result of not having the same freedoms as a 15 year old.  But if a particular 15 year old is having restrictions that are over and above what an average 15 year old might be allowed, then the question might arise.  It is important to note that whilst Lord Kerr is tolerating a degree of subjectivity, he is not saying that the test is completely subjective – the comparator is an average child of this age, not a child who has the same sort of problems, or behaviours, or vulnerabilities of this child.

 

 

For example

 

Most 14 year olds wouldn’t be allowed to leave their home at 2.00am, so a foster carer doing the same won’t be depriving the child of their liberty.

 

Most 14 year olds have had the experience of being ‘grounded’ for bad behaviour and having a period of time in which they aren’t able to go out with their friends, or use the computer or similar, so a foster carer doing the same isn’t depriving a child of their liberty

 

However, most 14 year olds aren’t told that they can never leave the home except under adult supervision, or have their door locked at night, so that would be a deprivation of liberty if it happened to a child in foster care.

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X and Y (Children : Disclosure of judgment) 2014

Posted on March 17, 2014 by suesspiciousminds

 

This is a case arising from care proceedings where the parents gave evidence about physical injuries to a child, and a judgment was given that the father had caused the injuries and told lies about it. The police sought disclosure (wanted to see) the judgments in the care proceedings. The father resisted.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/278.html

As this case was decided by Baker J, you get the excellent distillation of the law in this area to date  (if I were still of an age where I had to write law essays, Baker J would be my first port of call for finding the answers)

As you probably know if you’ve read this blog before, I have a view on the issue of whether the police ought to be able to USE what is said by a parent in care proceedings in the criminal proceedings. I think firmly that they should not, that the whole ethos of care proceedings is to encourage and promote honesty and that the provisions of s98 of the Children Act 1989 removes a parents right to silence and as a trade-off promises them that what they say can’t be used against them in criminal proceedings for anything other than perjury.

If the police aren’t hoping to make use of the material, that rather begs the question of why they want to see it at all.  Of course it informs and shapes their investigation and the way they put their case and even the questions asked, even if the documents themselves never appear before a jury.

Baker J touches on the critical problem (a problem that keeps getting ducked by the family Courts) here

Furthermore, it is suggested by Mr Storey QC on behalf of the father in this case that, whilst section 98(2) prevents an admission made in family proceedings being introduced in evidence in a criminal trial, it may still be possible for that admission to be put to a defendant in the course of his oral evidence as a “previously inconsistent statement” pursuant to section 119 of the Criminal Justice Act 2003. No reported case was cited in support of this submission.

There are several reported cases in the family Courts where this has been raised, and they have never ruled on whether s98(2) trumps s119 or vice versa. Whilst this is undecided (and one of the cases where it was raised ends with the father who had been silent in care proceedings on advice from his criminal lawyers being committed to prison for contempt), lawyers are going to remain very apprehensive about whether their client’s interests and rights are being properly observed.

The law, at present, is very much in favour of disclosure  (that the police can SEE the documents) – there’s less reported law on whether they can USE the material.

This case only decides that the police can SEE it, and if, having seen it they wish to USE it (ie produce it in the criminal trial, or put it to the parents in police interview) they need to make another application and the Court make it clear that letting them SEE it doesn’t automatically mean that they would succeed in the next application to use it.

A very nice point was taken by the father’s team

    1. On occasions, a judge gives a warning or direction to a witness in care proceedings as to the ambit of section 98. This procedure was adopted at first instance by the judge in Re ECand was subsequently described and considered by Swinton-Thomas LJ in the Court of Appeal at page 732.

 

“Prior to the hearing of the care proceedings, there were five members of SC’s family who fell under suspicion of having caused her injuries. Each of them gave evidence. Before they gave evidence, the judge gave them this warning:

‘Before you give evidence I have to tell you, as I will tell the others who give evidence, that anything you say from the witness-box cannot be used in any criminal trial against you which relates to the death of SC.

Where relevant the judge added the words ‘or your wife’ and ‘or your husband’. That statement by the judge was somewhat wider than the words of s98 envisage.

The Judge did not tell any witness that the evidence given by that witness would remain confidential. The proceedings themselves are confidential but subject to the power of the judge, in appropriate circumstances, to order disclosure. Nothing in s98 detracts from that power. Section 98(2) gives protection only against statements being admissible in evidence in criminal proceedings except for an offence of perjury. Accordingly, the judge could not give any guarantee for all time as to confidentiality, even had he wished to do so because the law makes no provision which would enable him to do so. It may well be that in fairness to persons giving evidence in these circumstances judges may wish to point this out to a witness to whom the warning is given and, almost certainly, a legal adviser should do so. “

  1. In this case, I gave no such warning to the parents at the conclusion of my first judgment when encouraging them to be more frank with the court as to the circumstances in which Y had sustained the injuries. The absence of any such warning in that judgment is a crucial component of the arguments advanced by Mr Storey against disclosure of the judgment of the police in this case

…

    1. On behalf of the father, Mr Storey QC and Mrs Storey-Rea craft their submissions as follows.

 

(1) The father has an absolute right to a fair trial. The Court having failed to give the parents any warning as to the consequences of making a confession, it would be an infringement of the father’s article 6 rights were the court now to allow disclosure of the transcripts in which his confession can be described and analysed.

(2) Alternatively, exercising its discretion by applying the criteria identified in Re EC, the court should conclude that the balance comes down against disclosure. In particular, Mr Storey submits that two factors identified in Re EC should carry decisive weight, namely (a) the welfare of the children and (b) the perceived unfairness in disclosing a confession in respect of which no warning had been given.

 

      1. Mr Storey submits that, by failing to add a warning at the end of my first judgment to its encouragement to the parents to be frank about the causes of Y’s injuries, the court was infringing the father’s article 6 rights. In the course of argument, Mr Storey clarified his submission by indicating that the failure to give the father such a warning amounted to an infringement of his rights to a fair trial in these proceedings (i.e. the care proceedings), not any future criminal proceedings. His submitted that the warning should have been along the following lines.

 

“But you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make.”

Mr Storey and Mrs Storey-Rea submit, that if the potentially far-reaching consequences of the current rules are not explained to a party at the time when a judge makes a plea for transparency, later dissemination of any admission is unfair. They contend that there can be no greater inducement than that of a person of high authority such as a judge who has the power to bring about or inhibit family reunification.

 

The Judge didn’t go for it.

        1. I accept that the father’s confession was induced by the encouragement voiced at the end of my first judgment. I do not, however, accept the submission that the court’s failure to give a warning in the terms proposed by Mr Storey amounted to a breach of the father’s right to a fair trial in these proceedings. By urging both parties to tell the truth, the court was seeking to ensure a fair trial in these proceedings for all parties, in particular the parents and the children. The inducement held out was that, if the perpetrator of Y’s injuries gave a full and frank account, the children could be rehabilitated within the family. The father duly confessed, the mother has been exonerated and as a result the children have been returned to her care. The father does not resile from his confession, and the outcome of these proceedings is manifestly fair to all parties.

 

      1. I accept that the fact that no warning was given is relevant to my decision as to disclosure of information relating to the proceedings, but only as one factor to be considered when undertaking the necessary balancing exercise.

 

It is a very careful and considered judgment, and much as I dislike the outcome, I think that on the existing law, the Judge got it right. The problem is that I think that the law, as it has developed, has not properly taken account of the potential erosion of the s98 protection against self-incrimination as a result of the inconsistent statements can be put as evidence s119 Criminal Justice Act 2003.  The law which favours disclosure to the police and puts the burden on the parent resisting disclosure emerged prior to s119, and has been relied on to bolster decisions made subsequently. Without properly determining whether, notwithstanding the ability to put inconsistent statements as evidence, s98 prevents the Crown doing so where that statement was made in care proceedings, we are left at sea.

The problem for this particular case is (a) I think the judgment is right, on current law and (b) we already know that the Court of Appeal aren’t interested in the s119 argument, so an appeal isn’t much use; unless one is going to go all the way to the Supreme Court, who would be able to say either s119 trumps s98 and the prosecution of offenders is more important than honesty and openness in care proceedings, or vice versa.

 

(This becomes even more of an issue once all judgments are published, since even if the Court doesn’t give permission, the police who know the Local Authority area, judge who decides the case, date of the hearing and the factual background, will very readily be able to spot that Re H, L and K 2015 relates to real life people, and be able to read all about it online. As will any inquisitive juror…)

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Obtaining a fresh assessment late in proceedings

Posted on March 17, 2014 by suesspiciousminds

Re Z (A Child : Independent Social Work Assessment) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/729.html

My compliments to the Judge for giving this a meaningful case name that allows people to find it in the future.

This one was a judgment given in March 2014, for care proceedings arising out of injuries to a child that occurred in September and October 2012. The proceedings were into week 72.  The father applied for a fresh independent social work assessment, and also sought a fresh assessment of the paternal grandmother, challenging the negative viability.

If you are at the moment, thinking, meh, I know how this one ends up – I’ll give you a spoiler.  He gets the assessments.

Ah, now you want to know more…

    1. In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.

 

    1. Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular order:

 

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.

(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

  1. I am satisfied that the local authority’s assessment of this father falls short of the standard required.

 

Fair, robust and thorough seems like a good test in appraising the evidence – I expect to see others make use of this test   (whether this authority is binding or not is tricky – but it is a High Court case, so it is at least persuasive)

 

One major part of father’s case was this :-

 

108. As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.

 

If father was able to establish that, which one would hope would be confirmed or refuted by the LAC review minutes, that is fatal to the LA’s opposition to an independent assessment. This is not announcing the outcome when all that is left is to finish dotting the i’s and crossing the t’s in the written report , this was a final view of the outcome of the assessment given whilst it still had six weeks to run.

 

Unhelpfully

    1. The minutes of the LAC review held on 12th December note that,

 

‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’

    1. Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.

 

    1. The minutes of the LAC review have little to say about contact: ‘Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 [‘the Regulations’]. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider

 

‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’

  1. The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.

The Judge’s comments on LAC reviews, that arise from those failings, are also ones that I expect to see crop up in other cases

    1. LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that,

 

“The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”

  1. It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

 

Assessment of paternal grandmother next

    1. That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.

 

    1. Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that,

 

‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child’s] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’

  1. Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

 

And the Judge wasn’t finished – given that the Local Authority care plan was for the current foster carers to adopt, he felt that their Re B-S analysis was badly flawed – it had not properly taken into account that such a placement could be under a Care Order (fostering) or a Special Guardianship Order and why those options should be discounted in favour of adoption. He made it plain that even if the independent assessments of father and grandmother weren’t positive, this case was a considerable distance from being “then adoption is the right plan”

136 My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

 

I can’t quite find from the judgment what the timescales for the further assessment are, and obviously those assessments will need to be considered, final evidence filed from all parties and a final hearing take place. It probably amounts to a final hearing taking place at around week 90, or week 100.

 

But that is palpably and manifestly the right thing to do, to get the RIGHT answer.

I do worry that now that the Children and Families Act 2014 will lock Judges into 26 weeks, or an extension of 8 weeks, whether cases like this will get their proper determination.

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Contempt – adult breaching a recovery order

Posted on March 14, 2014 by suesspiciousminds

This is the London Borough of Newham v CA 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4597.html

I note, wryly, the explanation at the start of the transcript as to why it took so long to produce  (an explanation which contains three misspellings and confuses ‘of a’ for the word ‘over’)

Note: this is a judgement from an oral judgement and sentence for contempt given in open court on 20th December 2013. The transcription was over very poor quality as a result it took some time to collate notes from those present and to produce this judgement

Anyway, in this case, there was an adolescent girl absconding from care and it was believed that she was being the victim of sexual exploitation. A recovery order was applied for by the Local Authority and obtained.

The child was located and was with an adult, Mr Quasim Shah, who was the subject then of this committal application. I pass little comment as to the circumstances in which this girl was with Mr Shah other than

1. Note the concern over what risk this girl was at

2. She was found attempting to leave his property at 5 Hartington Road on 27th November 2013. At the time he was found naked, or almost naked, and trying to stop police from gaining entry and by those actions he is in contempt of court, specifically the terms of the collection order.

3. The case has been referred to the CPS

Mr Shah had been served with the recovery order and denied knowing where this girl was – he is not  a relative or carer of hers (fill in the blanks yourself)

 

These are the breaches he admitted

(i) That he had text contact with the child throughout the 17th October 2013 from 00.21 up until 16.32 compromising of 152 text messages to the child from him and 117 text messages to him from the child which grew in frequency nearing one text per minute during the period 15.13 to 16.22. The child absconded from her placement at 17.20. The telephone contact completely stopped until 25th October 2013.

(ii) He it is accepted that he made plans with the child to abscond. It is not accepted that he physically collected her from her placement and thus aided her absconding, although he does not deny being involved in her absconding on that occasion.

(ii) He accepts that he had contact, every day, with the child from 17th October to 22nd October and on 25th October the calls and that the calls and texts stopped when the child stopped using her mobile.

(iii) He accepts that he provided his mobile telephone number ending 8840 to the child, which she used to call her mother on 1st November 2013; the child informed her mother that she was with a male in his 30 who was taking care of her.

(iv) He accepts that he telephoned the Mis-per Police Unit on 1st November 2013 and stated that he did not know the child except for the party on 17th October and that he did not associated with her.

(v) He accepts that he told the police that he had not seen the child since the party on 17th October when the police Mis-per telephoned him on the 2nd November 2013 trying to locate the child.

(vi) He accepts that he denied the child used his telephone on 1st November, that he had not seen her for a few weeks when police officers attended his home and spoke to him on 2nd November to try to locate the child.

(vii) He accepts that on 14th November 2013 police officers attended his home and spoke to him and he did not disclose his knowledge of the child or her whereabouts.

(viii) He also accepts that when the police officers attended his home he made some threats towards them. The exact nature of those threats as contained in the papers filed with the court is not accepted.

(ix) It is accepted that the child was found in his company at his property on 27th November.

(x) He accepts that he attempted to bar entry tried to impede entry to his property on 27th November 2013 by sitting on the floor naked, or almost naked, against the door and that he did not move from that position when asked by police officers three times.

(xi) Finally, he accepts that when service was attempted by the process server who came with the documents at his property dated 20th November, including the witness summons of the High Court he refused to open the door.

 

It is not a huge surprise that he received a prison sentence

In respect of the contempt in the face of this court I pass a sentence of six months.

In respect of the breaches of the collection order I pass a sentence of three months, to be served consecutively.

 

Many readers of the blog might be mentally comparing this sentence, for what happened here, with the sentences for grandparents who did not reveal where their daughter and grandchild had fled to, or the man who facing criminal charges declined to give a potentially incriminating statement in care proceedings on legal advice.

If you are ever served with  a Recovery Order, it is worth noting that if you breach it, and that is proved, Courts really do send people to prison for this.

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Legal Aid Agency wasteful and inefficient (also important news about the Pope’s religion of choice)

Posted on March 12, 2014 by suesspiciousminds

Re R (Children : Temporary Leave to Remain) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

This was a private law case that really hinged on the fact that parents who were involved in difficult litigation could not agree about the mother taking the children to India on a holiday. The father was concerned that there was a risk that mother would not return from India with the children, and that India not being a Hague Convention country, that would mean a very costly and time consuming process to start litigation in India.

The Court, whilst feeling that mother’s RISK of doing that was relatively low, considered that nontheless there was a risk and the consequences could be very devastating. Within the proceedings therefore, an expert report was ordered by the High Court, determining that it was necessary to resolve the dispute justly and inform the Court. Part of that report was to examine the Indian law to see whether anything could be put in place.  The costs were to be divided equally between the mother and the Guardian’s public funding certificate.

The LAA refused to pay for this, and six months of bureacratic conversation and form-filling took place.

In an attempt to cut through all of this, King J set out in detail in an order why the report was necessary and why the costs were split in that way (rather than 3 ways – mum, dad, Guardian)

    1. I declined to proceed with the hearing as a contested hearing. I listed the application for directions before Mrs Justice Eleanor King as Family Division Liaison Judge for the Midland Circuit. The application came on before Eleanor King J for directions on 28th November. The preamble to her order contains the following:

 

‘And Upon the Court observing that:

a. the expert’s report directed at paragraph 1 of this order is absolutely necessary for the proper determination of this case; this is both the view of the learned Judge and represents settled authority from the Court of Appeal; the case cannot be fairly decided without the expert;

b. the report is appropriately the instruction of the mother and the Children’s guardian; it is not properly the instruction of the father who has already filed evidence in relation to the disputed international legal issue; the proposed report does not, accordingly, ‘support’ the father’s case; rather it is obtained by the mother to meet the case brought by the father, and is necessary for the Children’s Guardian, in order that she can advise the court from a position of informed neutrality.

c. the assertions at (b) above are determinative of the question of whether instruction is shared by the father and would be so whether or not he were publicly funded; as such s.22(4) of the Access to Justice Act 1999 is not activated;

d. any further delay in obtaining the expert report is likely to jeopardise the current hearing dates, engender further costs (including publicly funded costs) and prejudice the interests of the children.’

    1. Eleanor King J went on to order that the mother and the guardian have permission to instruct Professor Martin Lau to provide an expert opinion in relation to the relevant law obtaining in India. She approved his hourly rate (£175 per hour) and capped his fees at £2,100 plus VAT. She directed that the final hearing should take place before me.

 

  1. The Legal Aid Agency again refused to grant authority for the instruction of an expert. There has been no alternative but to determine this application without having the benefit of expert evidence. That is an issue to which I return at the end of this judgment.

 

That didn’t do the trick – as indicated, the Court actually had to determine the case without the expert report that they had already ruled was “necessary” to properly resolve the case.

This is an issue that the Court of Appeal had looked at in another case called Re R

    1. In Re R (A Child) [2013] EWCA Civ 1115 Patten LJ, giving the judgment of the court, repeated a point made in previous cases:

 

’23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.’

 

That’s pretty compelling authority for the use of experts in that scenario – one can’t expect a UK lawyer, or a UK Judge to understand the intricacies of family law in each and every non-Hague Convention country, and it is vital to know what those safeguards might be.

The final paragraph of the Court of Appeal decision in Re R anticipates the problems of funding such expert evidence

’28. Before leaving this case we wish to draw attention to a real difficulty that seems likely to be a feature of future cases where application is made to remove a child temporarily to a non-Hague Convention state. We have already restated the importance of the court having access to clear and reliable expert evidence before being in a position to determine the application. Both parties in the present case are legally aided but counsel have confirmed that, following recent changes to the provision of Legal Aid, public funding will no longer be available to parents in these applications (save where there has been domestic violence). The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person). The questions of how and to whom particular cases are allocated to individual judges are a matter for the President of the Family Division. Our present purpose is not to trespass upon the President’s responsibility but simply to flag up this new potential complication for cases which are already at the most difficult end of the spectrum. In doing so we would simply wish to repeat Thorpe LJ’s exhortation for these cases ordinarily to be dealt with by the judges of the Division.’

 

As can be seen from this case, the Court of Appeal were prescient.

Bellamy J concludes his judgment with a coruscating evaluation of the Legal Aid Agency’s failings in this case, which meant that they in effect defied the orders of High Court Judges. There’s loads of it, and if you’ve ever had to wrestle with the LAA, it warms the cockles of your heart to see them take a kicking.

The Judge opens with this

I return finally to my concerns about the negative, costly and unhelpful impact the Legal Aid Agency (‘LAA’) has had in this case. If this case is at all illustrative of the way the LAA normally discharges its responsibilities then that is deeply troubling. My concern that it might be illustrative of a wider malaise arises not only from anecdotal evidence given to me by solicitors in my role as a Designated Family Judge but also from the observations recently made by Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam).

and then goes on to consider the labyrinthine process

    1. As a result of my order of 18th July giving leave to instruct an expert in Indian law and limiting his fees to £2,500 plus VAT, the mother’s solicitor sent the LAA an application for prior authority in LAA Form APP8. Form APP8, be it noted, is a lengthy (11 page) complex form which needs to be completed with care. Failure to complete it properly is almost certain to lead to the application being refused. Completion of this form is, of itself, a time consuming task.

 

    1. On 13th August the LAA wrote to the mother’s solicitor refusing to grant prior authority. The letter is clearly a standard letter. It sets out five reasons for refusal. In summary, these are, (i) the estimate of the expert’s fees is excessive, (ii) no alternative quotes have been obtained, (iii) there is insufficient breakdown of the costs to be incurred, (iv) the expert’s costs should be borne by or shared with the other party, (v) the application does not appear to fall within the regulations. The letter ends by saying, ‘since the introduction of the 2010 Standard Civil contract and the 2012 Family Contract there is no right of appeal’.

 

    1. On 2nd September I was asked to reconsider my decision that the cost of the expert should be borne solely by the mother. I declined. The mother’s solicitor made a second application to the LAA, again in Form APP8. That application was again refused. There followed an exchange of e-mails between the solicitor and the LAA which were discouraging.

 

    1. I have seen the APP8s that were submitted. They appear to me to have been properly and adequately completed and to have been supported by relevant documentation.

 

  1. As I noted earlier, on 28th November there was a hearing before Mrs Justice Eleanor King in which she gave new directions for the instruction of an expert. She ordered that the expert’s costs should be borne by the mother and the children’s guardian, and explained why s.22(4) Access to Justice Act 1999 did not apply. She also had a telephone conversation and an e-mail exchange with Michael Rimer, Head of Litigation Team and Senior Legal Adviser with the LAA. Mr Rimer is the agreed point of contact between the judiciary and the LAA in cases where there are funding difficulties. If that dialogue led to quiet confidence that progress could be made, that confidence was misplaced.

 

(I particularly like that last line)

and finally wraps up with this  (having recounted some spectacular missing the point emails from various workers at the LAA

    1. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.

 

    1. There is a further point which follows on from that last point. On 28th November Mrs Justice Eleanor King gave clear, detailed case management directions in respect of expert evidence and even went so far as to set out her reasons for not ordering the father to pay a proportionate share of the expert’s fees. Her case management directions on this issue have effectively been overridden by the LAA. That is simply unacceptable.

 

  1. In light of my criticisms of the LAA I direct that the solicitor for the Children’s Guardian shall forthwith forward a copy of this judgment to the Chief Executive of the LAA and order that he shall respond to it in writing within 28 days.

 

 

I expressed some doubt via Twitter that the response in writing would (a) ever be received and (b) ever be published, but I am reassured on both points. Once it is published in anonymised form, I will gladly report on it.

There are some “costs against third party” decisions from Courts, and it is clear that expenditure did get incurred both for the parties and the Court – it seems to me that it is legally possible to make an order for costs against the LAA.  It does raise the obvious issue with the parties that if they are being paid by legal aid, then the LAA are ALREADY paying their costs, so a costs order there does nothing at all. But it might be possible to calculate the time wasted by the High Court judges (who are not a free, or inexpensive resource) and decide that the LAA should recompense HMCS for that waste of time. If the father was paying privately for the litigation (and I simply don’t know the answer to that) then I would imagine that the wasted costs bill for that would make the £2,100 the LAA were quibbling about pale in comparison.

 

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relatives and 26 weeks – a reported Auntie Beryl case

Posted on March 12, 2014 by suesspiciousminds

 

It has been a vexed issue ever since the 26 week guillotine came in, heightened by the Supreme Court and Court of Appeal’s emphasis on adoption as ‘last resort’ where nothing else will do  – what is a Court actually going to do when a relative comes forward at week 20, week 22, week 24, and assessment of them would derail that all-important timetable?  This is something I dubbed the “Auntie Beryl” question, and it is one that crops up in these cases around the country.

We won’t really know until a Judge somewhere tells Auntie Beryl that she is too late, that she should have come forward sooner, that she can’t be assessed, and makes an adoption order. Then that will be appealed and the Court of Appeal will try to square that circle of “26 weeks” with “nothing else will do”

In this case, which is the first to touch on this point since it became a genuinely difficult issue  (since pre 26 weeks, the assessment would ordinarily be done), the High Court attempted to deal with it.

Re K (A minor) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4580.html

The grandparents in the case put themselves forward as alernative carers really early on, just after the child was born. A “guardedly positive” viability assessment was prepared.  At a hearing in March 2013, the grandparents decided with a heavy heart that they weren’t able to offer a permanent home and withdrew.

However, by 6th March when the case came on at this court, grandmother and grandfather had come to the conclusion, I am sure with an extremely heavy heart and sadness and feelings of regret, that it was not right to pursue the application. The grandmother wrote on behalf of herself and her husband to the Circuit Judge. She wrote that that it was the hardest letter she had ever had to write, that they loved K and have a bond with him, but they want what is best for him. She said that although it broke their hearts, they had to put their feelings to one side and focus on K. She said that health issues which had not initially seemed significant enough to affect them caring for K, had come to the fore during the assessment process. She was having tests for Multiple Sclerosis, and the results so far were pointing towards an MS diagnosis. The grandfather, who had had a heart attack two and a half years previously, had started having chest pains. They had done a lot of soul searching, and after a lot of deliberation and tears, decided that it was unfair to K for them to put themselves forward as carers. They could not give him 100 per cent, which they believed he deserved. They wanted him to have the very best in life, and if they truly believed they could give him this, they would still be seeking special guardianship. But they had to be realistic, so that he could have a happy, loving, secure and stable upbringing. If their health deteriorated any more, it would be hard to meet all his needs. They would always have him in their hearts, and drew strength from knowing that he would have a happy loving childhood with a family that loves him. It would be unfair for him to live with them if he would then have to live with someone else because they were unable to care for him. They hoped that K would understand when he is older that they had done this for him, to give him the best possible life.

 

In due course, having completed assessments of the parents, the Local Authority’s plan was for adoption.

Today is 8th May 2013. Last Friday, the grandparents, through their solicitors, issued their application, returnable today. The grandmother wrote another letter to the court. She wrote that they had not expressed themselves correctly in her previous letter. They were 100 per cent committed. They had wanted to tell the judge the real reason that they were pulling out but could not, because they were scared that at a later date when K was older, he would read the letter and it would upset him. She said that they did have some health problems, but that the real reason for withdrawing was that they were terrified that if they were awarded special guardianship there was nothing to stop K’s mother or father seeking and obtaining custody of K. Then he would have been subjected to their lifestyle and would have been at risk. They have since learned that this could not happen because the parents’ legal aid funding had ceased and they would never be able to make an application. They had always thought and believed that K deserved to stay with and have the benefit of his loving, large, warm and close natural family, and this would be best for him emotionally.

 

The May hearing was pushing very close to the 26 week deadline. It certainly would not have been possible to undertake the Special Guardianship assessment within that period – in fact, the assessment would have required another 12 weeks, pushing the case from a six month case into a nine or ten month case.

The Court had a hearing to decide whether to grant the grandparents leave to apply for a Special Guardianship Order (i.e to delay the final hearing to obtain that assessment) and heard some limited evidence from the grandmother.  The Court referred to the case law in relation to applications for leave (although personally, I think the caselaw cited is somewhat out of date, and there is substantially more recent authority making it plain that it is a more nuanced procedure balancing all of the factors rather than Re M 1995’s rather ‘soundbite’ approach – the Court of Appeal in Re B (A child) 2012 [2012] EWCA Civ 737  – in fact, the Court of Appeal say that rather than s10(9) containing a ‘test’ or anything like a ‘test’ to be crossed it simply tells the Court to have ‘particular regard’ to certain factors, whilst other factors can by implication be weighed in the balance too)

The Judge concluded

    1. I am sure that this application is entirely well meant and good-hearted. But it is emotional, unconsidered, unrealistic, and not thought through, I suspect that the prospect of losing contact with K has been a very powerful factor here.

 

    1. No doubt in March the grandparents reached their considered but painful decision to agree to a firm plan for this little boy for adoption with difficulty, but focussing on the child. I am afraid that whatever the love that the grandparents have for K, that their approach at the moment is not child-focussed in the objective way required. The grandparents know very well that they cannot properly commit themselves to this task. This came through in the grandmother’s evidence, when she had to face up to reality. They know that their health problems are important. They are aware of the potential disruption which could be created for K, particularly by his father, but perhaps by the mother too when she is in a less sanguine state of mind, for the rest of K’s minority. Although Mr. Taylor quite rightly stresses the benefits of this warm and close family, that was available in March when they made their decision.

 

  1. I am satisfied that there is a very significant risk that the proposed application will disrupt K’s life to such an extent that he would be harmed by it. I am quite satisfied having had the opportunity to assess in sharp and painful focus what the problems are likely to be, that this application has no real prospect of success. So I do not simply bring the guillotine down on the basis of 26 weeks. This is a summary decision but it is welfare based nonetheless, and based on an evaluation of the facts. It is for me to factor in all these considerations in K’s interests. Therefore I refuse the application.

 

Not quite an Auntie Beryl case in that the Court felt that there was enough information to say in effect that the grandparents application was not going to be successful even if the proceedings were delayed – rather than there being a paucity of information about the family member due to late presentation.

Parker J then gave some general guidance

    1. Cases where relataives or friends come forward at the last minute are likely to present the greatest challenges to the court in complying with the 26 week limit. The Court has a duty to consider whether there are alternatives to a care order. But in my view the court is entitled to dismiss such an application without detailed assessment and must take into account delay.

 

    1. Some measures may assist the court to manage such applications :-

 

a. Orders must record that parents have been advised that failure to identify family members at an early stage is likely to preclude their assessment and that the case will not be adjourned.

b. Where a relative has come forward and then withdraws a court should record that that person understands that this is their final decision and is unlikely be revisited without the strongest justification.

c. Any application for further assessment or joinder by a relative or other person must be resolved very swiftly. Such applications will usually be able to be dealt with on paper. Oral evidence, to be adduced only if necessary and proportionate, should be short and focussed.

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The new radicals

Posted on March 12, 2014 by suesspiciousminds

The philosophical issues thrown up by Re M, and Not the Nine O’clock news.

There are some things that my dad had views about that had no influence on my own belief systems. I don’t for example, believe that Freddie Mercury was “straight as a die”, that Roy Orbison was only pretending to be blind, that the moon landings were faked (and that REM know about it and their song “Man on the Moon” is not about Andy Kaufman but is really about exposing the fake moon landings).  I don’t feel the need to stand during the Queen’s Speech, or even to watch it.

But there are some things where I know that my dad’s views and philosophies stayed with me to this day – that you should always tip cabbies and hairdressers well, that West Ham are dear to my heart, that it is better to pretend to play the drums when listening to music than play air guitar, and his sense of antipathy towards Unions and Union bosses.

I’ve never had a Union treat me badly or double-cross me, or let me down, but I do have a hostility towards them, an innate, programmed hostility that comes not from my own experience but the beliefs my dad instilled in me about what a bad lot they were.  Why, even this week, when I heard that Bob Crow had died, my initial gut reaction was the one my dad would have had, and not one bourne out of any personal antipathy towards a man who had no adverse impact on my life at all.

Listening to politicians suddenly speak out about what a great man Bob Crow was reminded me of this classic Not the Nine O’Clock news sketch

 

Anyway, the point of this long rambling intro is that in Re M, the High Court were preparing themselves to tackle the issue of the influence that a father could have on his children, for good or for ill.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/667.html

The father in this case is a Libyan man, with seven children. He came to England and married an English woman and started that family. The marriage ended when the mother began to drift back to her earlier Christian beliefs, the father being Muslim. There were problems about the children being returned from an arranged holiday in Libya and a dispute between the parents as to whether this was an attempt by the father to move the family lock stock and barrel to Libya. There were allegations made by the mother about the way that the father treated her and the children – those allegations are not proven or tested and were to be the subject of a fact finding hearing in private law.

The Local Authority had been asked to undertake an investigation and they reported that the children were fine and happy with mother and they had no concerns.

 

At paragraph 10, under a heading “Recommendations”, the social worker wrote,

 

“The children are happy and content in the care of their mother, having gone through a period of instability since last year. They are attending school and many other activities. The behaviour of [the eldest two sons] has calmed significantly and [the second son] has become very close to his mother. [The mother] is providing a physically and emotionally safe environment for the children.”

The report commented also upon the relationship between the children and their father that had been observed during occasions of contact. It said at paragraph 6.6,

“[The father] was observed during contact with the children. He was very warm and affectionate towards the children. His interaction with the children was age-appropriate during the contact and the children found it a positive experience. However, all children apart from [the eldest son] requested for future contact to be supervised.”

It was therefore something of a surprise to Holman J, when the day before the fact-finding was to begin, he received a communication from the Local Authority that they intended to commence care proceedings.

On further enquiry, it emerged that fresh allegations had been made to the Local Authority, who were greatly concerned about them. The substance of those allegations were that the father was “radicalising the children” and promoting radical fundamentalist thoughts associated with terrorism, that he was not simply promoting and advocating Islam as a faith but insisting to the children that anyone who was not following the Islamic faith was an ‘infidel’

This was something that had not been raised as a specific allegation or that the Court had been asked to deal with at the fact-finding hearing, although there was this reference to it in mother’s statement

“Immediately following my return, both children were extremely hostile and rude to me and used concerning language which includes calling me a ‘fucking bitch’, a ‘Christian witch’, and [the second son] told me that I am evil and going to hell. When I asked the children where they had got these ideas from, they said that their father had told them …

On 22 May 2013 I spoke to [the eldest son] about his behaviour and he told me that he cannot love me because I am going to ‘hell fire’. He was crying and said that I was going to hell because I am not a Muslim. I comforted him and his behaviour gradually improved from this time on. [The second son] however, continued to be extremely angry and volatile. [The eldest two sons] are showing signs of radicalised behaviour and have said that they want to be a jihadist when they grow up since a young age, and that they hate England and Christians …”

The Judge made it plain that no findings had been made against the father and these allegations were both untested and strenuously denied

    1. I stress very strongly and clearly indeed that at the moment all of this material is no more than statements made by, or attributed to, the mother, and no more than allegations insofar as it relates to the father or any members of his family in Libya.

 

  1. The father himself very strongly denies nearly all of the allegations that have been made against him and which were intended to be the subject of the fact finding hearing this week. I understand from his counsel today that he also very strongly denies that he has said, or done, anything to any of the children which might lead any of them to say the things or behave in the ways described by their mother in the passage that I have just read.

 

The Judge felt that it would be unfair to start the finding of fact hearing when father had had no notice or warning of these allegations and that the detail of what was alleged was not available to him, nor had he had the opportunity to respond. The case was therefore adjourned to gather that evidence, let father have the proper chance to respond and for the allegations to be tested. It is, of course, the mother (or the Local Authority) who have to prove these allegations – it isn’t for father to disprove them.

It will be an interesting judgment to read when the finding of fact hearing is concluded – I don’t want to comment particularly on this individual family as the allegations are yet to be tested and no real detail is available for anyone to form any view as to their truth or not – the whole thing might be a  misunderstanding, an exagerration or even outright falsehood.

I do think though that the case raises interesting debates about whether there is a bright line between sharing your beliefs and values – even if those might not be the cultural norms of the UK – and emotional harm to children.  Is this a Hedley J  Re L case, where society ought to tolerate a broad spectrum of behaviour and views and values, or a Supreme Court Re B case where the behaviour of the adults was held to cross the line into significant harm?

The Judge captures this very elegantly

“Radicalising” is a vague and non-specific word which different people may use to mean different things. There is quite a lot of material in this case to the effect that the elder of these children are committed Muslims who like to attend, and do attend, at a mosque and wish to display religious observance. This nation and our culture are tolerant of religious diversity, and there can be no objection whatsoever to any child being exposed, often quite intensively, to the religious practices and observance of the child’s parent or parents. If and insofar as what is meant in this case by “radicalising” means no more than that a set of Muslim beliefs and practices is being strongly instilled in these children, that cannot be regarded as in any way objectionable or inappropriate. On the other hand, if by “radicalising” is meant, as appears in paragraph 12 of the draft addendum report that I have already quoted, “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism” then clearly that is a very different matter altogether. If any child is being indoctrinated or infected with thoughts involving the possibility of “terrorism” or, indeed, hatred for their native country, which is England, or another religion, such as Christianity which is the religion of their grandparents and now, again, their mother, then that is potentially very abusive indeed and of the utmost gravity.

 

 

It is very difficult, when you start thinking of concrete situations, to see where that bright line would be.

For example – a man says to his fourteen year old son

1.  Islam is a faith with many followers throughout the world, it is something that I firmly believe in. I also believe that there are substantial elements of Western society that are decadent and not in keeping with my faith and tradition and the world would be a better place if more people followed Islamic traditions.

seems fine to me

Let’s add

2. There are those in the Western world that are threatened by Islam, and are frightened that their time of dominance based on greed and capitalism will come to an end. As a result, they oppress Islam, they stir up fear and hatred of Muslims, they scapegoat us for the ills of the world and start wars against Islamic countries using lies and deceit.

Now let’s add

3. There are Muslims who fight back, who resist this oppression. They risk their lives for what they believe in. They stand up for what is right, and they are honourable men to do so. We cannot fight against the West with tanks and planes because we do not have their resources and might – instead we rely on brave men who sacrifice their life to do what they must to bring the West to realise that what they do to Muslims is wrong. Being a martyr for something you believe in is better than tolerating oppression.

 

[For the avoidance of any doubt, I do not suggest at all that these views are in any way representative of mainstream Islamic thought or belief – it is just laying out a trail of how one might move away from mainstream Islamic thought and justifiable feelings of wanting to share your faith with your children towards the very tiny proportion of radical fundamentalist viewpoints]

Even that third one still seems to me to be an expression of faith and values – it might be edging towards stuff that might make people uncomfortable, but if you live in a free society you don’t just defend the right of people to say things that you agree with – sometimes people need to be free to say unpalatable things, unpopular things.

Almost certainly before you get anywhere near the point where the child is going to start hating the West or wanting to take action, you’ve got many many more steps than that – but how many? How far down that route do you go before what is happening is not an expression of views but emotionally abuse and indoctrination or radicalisation?  But putting your finger on where that point is that crosses the line between expressing your faith and views and saying what you believe and becomes harmful is not easy.

Even if the Judge has a verbatim account of what was said to a child, fixing that the bright line has been crossed might prove to be a difficult task.
 

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Another C-section case

Posted on March 10, 2014 by suesspiciousminds

I know that these Court of Protection decisions, authorising a hospital to undertake interventions / treatment without a patient’s consent are of interest to my readers, following on from the case with the Italian mother that attracted considerable notoriety in December 2013.

This one, Re P 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/4581.html

once again involved a mother said to have mental health problems (rather than say a learning difficulty) . The media were present, and save for being able to identify the mother or the Trust, the Judge was amenable to the details of the case being made public.

If you aren’t aware, there is broadly a two stage test – firstly does the patient have capacity to take the decision for themselves (and if they do, they are entitled to make a decision which flies in the face of medical advice or even common sense) – and secondly, if not, the Judge has to apply a best interests decision – taking into account all of the circumstances and what is known about their wishes, what is in the patient’s best interests.

As a matter of particular interest in this case, the Judge raised an issue which I have debated with people before. As you may be aware, the ‘best interests’ decision relates to the patient themselves, not in the health of the child. Unlike Children Act cases where the child’s welfare is paramount, the unborn child has no legal rights to take into account. The decided C-section cases have always been that the operation avoids a risk to the mother’s health as a result of her medical situation, and the fact that a C-section might be the safest way for the child to be born has not, thus far come into the decision-making process.

The debate therefore is whether, when taking into account the mother’s best interests, one can take into account that it would be in her best interests and in accordance with her wishes if the baby were to be delivered safely and well – this being something that any mother would want for her baby.

The Judge decided that it absolutely could be taken into account.

Next, there is no doubt at all that it would be in the best interests of Mrs. P for her baby to be safely delivered. The court cannot be concerned with the interests of the unborn child, but can, and does, have regard to the extremely adverse effect on Mrs. P if unnecessarily her child was not born safely or was born with some avoidable disability as a result of a lack of obstetric care which might have been given. Furthermore, the proposal that the Trust makes offers the best chance of a secure labour and delivery for Mrs. P if it is approached in a planned way rather than awaiting the chance moment.

 

Therefore, although this decision was taken primarily on health grounds for the mother, the door is possibly opened in another case for the decision to be primarily about safely delivering the child.

The other aspects of this case were 1) that the mother was not merely not consenting to the operation (although she did not have capacity to consent), but actively hostile to it. And that was a factor that had to be taken into account when deciding the best interests element and 2) that at the time of the application the mother was described as being calm and lucid, so the declaration sought was to ensure that if things deteriorated during labour, the hospital could take action.

  The current situation is that Mrs. P is in hospital awaiting the arrival of her baby. She is relatively calm and accepting of the idea of being induced as described. However, that may change if she was to become agitated during her labour, as she has been in the recent past. There is a good chance that she will be able to give birth by normal means. That is the outcome which everybody hopes for. However, if that does not happen it is said, and I so find, to be in her interests for emergency measures to be taken for the benefit of her physical and mental health by means, as a last resort, of a Caesarean section.

It might be helpful, given that the reported cases on C-section are somewhat slight on guidance over and above the standard Mental Capacity Act tests, and the St Georges case (suggesting that the patient also ought to be helped by the Hospital to develop understanding to make an informed decision) predates the Mental Capacity Act for one of these cases to be appealed in the future. There’s perhaps not enough weight at present in these judgments as to the nature of the act being authorised and its invasiveness and any sort of  guidance as to how serious the health risks ought to be before one performs the operation on a person who is not in a position to agree to it as a result of mental illness.

(Of course, the reality of these applications are that they are done swiftly, often as an emergency, and that after the C-section is performed, it can’t exactly be undone, so a later appeal is more academic than practical)

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Warren v CARE 2014

Posted on March 6, 2014 by suesspiciousminds

In this case, the High Court decided that the right to private and family life, including the right to start a family in the future, for Ms Warren overrode the strict legal requirements of the Regulations governing freezing of gametes.

Click to access warren-judgment.pdf

It was a very sad case – Ms Warren’s partner, Mr Brewer became unwell in 2005 and a treatment of radiotherapy was decided upon. Because of the risks that this treatment could affect fertility, discussions took place and Mr Brewer and Ms Warren made the informed decision that they would both want Ms Warren to have the opportunity in the future, even if Mr Brewer were to die, to have the ability to have his child, and thus gamete samples were taken and frozen.

 

Ms Warren had a series of awful life events, culminating in Mr Brewer’s death in 2012. She had, very understandably, not elected to become pregnant whilst all of these awful events were occurring.

As a result of a chain of paperwork and consents, the situation arises where in accordance with the Regulations governing the freezing of gametes, the gametes would need to be destroyed by April 2015. Ms Warren wanted to keep them for longer, to have the time to grieve properly before starting a family.

This is why the law is problematic

s14 HFEA 1990 states that gametes shall not be kept in storage for longer than the statutory storage period and if stored at the end of that period shall be allowed to perish – the statuory storage period s14(3) is ten years OR a shorter period OR if specified by Regulations a longer period.

The Human Fertilisation and Embryology (Statutory Storage Period for  Embryos and Gametes) Regulations 2009 give the circumstances in which that period can be longer, and one of the requirements is that the donor has consented in writing to the storage period being longer than ten years  (the maximum is fifty five years).

Although Mr Brewer had signed oodles of paperwork consenting to the storage of his gametes what he had NOT been asked to sign was anything indicating that he was consenting to them being kept for longer than ten years. There is very little doubt, and the Judge was comfortably satisfied that if he HAD been asked to sign such a consent he would have done so – it was an omission, but not his fault. It just wasn’t an option he was asked or invited to consider in the Clinic’s paperwork.

So, what was left was either strict adherence to the law and the Regulations – or, as Ms Warren urged, the Court to determine that in this situation the Regulations were not compatible with her right to private and family life and in interpreting the law to do so in a way that WAS compatible with those rights.

It was plain that allowing the sample to be kept had no adverse effect on anyone, but strict adherence to the Regulations would rob Ms Warren of the chance to have the child that she and Mr Brewer had wanted.  The Judge was also satisfied that the Clinic had taken steps to ensure that their paperwork for any future cases had remedied the deficiency and that this was not a floodgate case but either a unique or very rare situation and that declaring that the Clinic could and should keep the samples for a total of 55 years was the right thing to do.

A tip of the hat also to Miss Jenni Richards QC and Catherine Dobson, junior counsel, who both represented Ms Warren and supported her through this difficult process, doing so entirely free of charge.

 

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