Category Archives: case law

Is a link a publication?

Posted on August 7, 2019 by suesspiciousminds

 

In the case of Medway Council v Root 2019, a mother was found to be in contempt of Court orders prohibiting her from publishing certain items about the care proceedings and her children, and having previously been given suspended sentences for earlier breaches, was given a nine month custodial sentence.

 

The eldest child had written to the Court expressing unhappiness as to the information the mother was placing about them and the siblings on the internet.

The point of law arose on one alleged breach – the judgments are published and on Bailii and anonymised.

 

The Reporting Restriction Order said this:-

AND it is permissible to publish the [five judgments of 17/07/2017, 18/07/2017, 30/08/2017, 15/03/2018 and 11/05/2018] save that the judgments are not to be published:

in conjunction with any other material that names the children or identifies them by photograph or any other image; or

on any online page containing any other material that names the children or identifies them by photograph or any other image where the existence of that material is known to the publisher.

 

The mother was said to have published material identifying herself and the children, with a hyperlink to the judgment.

Was that publishing the judgment?  (Mr Elliott was for Medway, Mr Dean was for Ms Root)

 

 

  1. In relation to the issue of the hyperlink both counsel agree there is no binding authority on this issue in this jurisdiction in the context of contempt. Mr Dean’s assiduous researches have produced two cases from other jurisdictions; a decision of the Canadian Supreme Court (Crookes v Newton [2011] 3 S.C.R. 269) and an Australian decision of the Supreme Court in NSW (Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350). They both involved defamation actions. Crookes concerned an action against the person who owned and operated a website which posted an article which contained shallow and deep hyperlinks to other websites which in turn contained information about the applicant, two of which the applicant alleged connected to defamatory material. In Visscher the applicant sued the owner and operator of a website that contained information on the website and a link to an article, both of which the applicant alleged was defamatory.
  2. In Crookes the majority judgment was given by Abella J. Justice Abella considered that hyperlinks bear the same relationship to the content of the impugned publication as references in that
    ‘[30]…both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.’

She concluded that

‘[42] …making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should the content be considered to be ‘published’ by the hyperlinker.’

  1. Whilst McLachlin C.J. and Fish J agreed with the majority ‘substantially’ they considered a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a web site is not enough to find publication. Deschamps J observed that excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet. The blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.
  2. In Visscher there was reference to the judgments in Crookes but Beech-Jones J considered that decision was not consistent with Australian authority and that the approach of McLachlin C.J. and Fish J in Crookes ‘[29]…can be readily adopted to circumstances in which a person is alleged to the publisher of material by inserting a hyperlink directing viewers to its web location. In particular, the question is whether, by the inclusion of the hyperlink, the defendant accepted responsibility for the publication of the hyperlinked material. This could be answered in the affirmative if, amongst other ways, it was concluded that there was an approval, adoption, promotion or some other form of ratification of the content of the hyperlinked material’
  3. Mr Elliott relies on the Visscher case submitting that the court can, if the circumstances of the case permit, find that the hyperlink equates with publication of the judgment. Mr Dean prefers the analysis in Crookes which he submits is more clearly reasoned and was not bound by any domestic authority.
  4. Whilst acknowledging both of these cases have to be viewed in the context of the proceedings they were concerned with, namely defamation, and, in any event, are not binding on this court I prefer the approach taken in Crookes in that making reference to the existence of something by hyperlink, without more, is not publication of that content. As Abella J observed the hyperlink communicates something exists but a further act is required before access is gained to it. In Visscher the factual position was different in that the website contained an article on the website as well as the hyperlink (indicating some adoption or promotion of the content of the hyperlinked material) and there was previous Australian authority that reached an analogous conclusion. That previous Australian authority cited an English Court of Appeal decision (Hird v Wood (1894) 38 Sol J 234) which was said in Visscher to be an example of a person approving, adopting or promoting a defamatory statement of another and thereby accepting responsibility for it. Mr Dean rightly referred the court to this decision but it does not assist in the situation this court is dealing with, as the context was limited to what facts could be left to a jury in a defamation action. I accept it could be said that the publication of the judgment citation together with the hyperlink is sufficient but, in my judgment, that does not equate with publishing the full judgment in connection with any identifying information relating to the children. It comes very close, but in the circumstances where this court is dealing with in proceedings involving contempt the position needs to be unambiguous.
  5. In the future when considering orders such as those made in this case it may be sensible for the court to actively consider whether there should be an express prohibition of publication of hyperlinks.

 

 

Allegation 1 – on 27/6/18 Ms Root published a link to the judgment of Mrs Justice Theis from 15.3.18

  1. This is based on the screenshot of a Facebook page with Ms Root’s name on it, with her photo (which is one of the profile pictures) on a page which contains other material featuring Ms Root (such as a video posted on 6 December 2017).
  2. Even if the court accepts this is Ms Root’s Facebook page the issue in relation to this allegation is does the posting of the hyperlink amount to a breach of the restriction in the injunction order and the RRO to ‘publish’ the judgment in conjunction with material that names X or Y (which the Facebook page does).
  3. Mr Elliott submits this is sufficient, when taken with everything else, for the court to conclude, if the court is satisfied Ms Root put the hyperlink there, she was publishing the judgment in circumstances where there was material identifying the children. That is how it is set out in the committal application why that amounted to a breach; in paragraph 1 (c) he nails his colours to the mast of the second part of paragraph 16 of the RRO. In his written and oral submissions, he sought to submit that Ms Root can’t have it both ways in that if it did not amount to publication, it was caught by the first part of paragraph 16 of the RRO as being ‘any information or details’ in relation to the hearing on 15.3.18.
  4. Mr Dean submits that the requirements of rule 37.3 make it clear there is a mandatory requirement on the applicant in committal applications to set out separately each alleged act of contempt. It is not appropriate or fair for the applicant to put the case in a way that is not set out in the application. Mr Elliott prays in aid the guidance given by Lord Woolf MR in Nicholls that the court should consider what prejudice there is to Ms Root when the position had been made clear in the skeleton argument.
  5. I am satisfied this breach is not proved to the required standard, for the following reasons:
    (1) It is clear the applicant’s case is founded on the hyperlink being a breach of the prohibition to publish, in both the injunction order and RRO. It says in terms under the reasons for this amounting to a breach Ms Root was ‘expressly forbidden from publishing this judgment’ (para 1A) and similar in para 1C. There is no mention or reference in the relevant part of the application to being prohibited from ‘publishing…any information or details’ and Mr Elliott did not apply to amend his grounds.

(2) Whilst there may be an argument that publishing a hyperlink does equate to publishing the judgment that has not been decided before in this jurisdiction. I consider there is some force to the argument (as accepted by the Supreme Court of Canada in Crookes) that a hyperlink is a reference to the existence and/or location of the content, rather than publication of that content. To get to the content, a further step needs to be taken, namely, to click on the link. It is arguable that without clicking on the link there is no publication of it.

(3) I agree with Mr Dean, that if there are competing arguments in an, as yet, undecided area of the law Ms Root should be given the benefit of that uncertainty.

 

As there is doubt, in a committal hearing the benefit of the doubt goes to the person who is alleged to be in contempt, so Ms Root was not in breach of the order prohibiting ‘publication’ of the judgments in connecting to the family.

 

As Theis J says, the orders will need to be drafted with precision if it is intended that someone cannot describe their case and link to a published judgment.

 

The case also sets out the detailed history and sentencing remarks.

https://www.bailii.org/ew/cases/EWHC/Fam/2019/669.html

 

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Hounds of justice

Posted on August 5, 2019 by suesspiciousminds

 

 

 

I was momentarily tempted to headline this piece

 

Qui odoratus Isacus, de qua n eam

But then I remembered that I didn't do Latin at school, so I've no way of checking whether 
Google translate is right when it claims that this is the Latin for "He who smelt it, dealt it". And I knew the comments would be full of corrections to it.


This is a curious little case, involving a flawed ABE interview.  Not that unusual, it is more startling to find a judgment which commends the ABE for good practice than castigates it for bad.

This one though involves both anatomically correct dolls being used by the intermediary (The 1980s faxed and said "hi") and a dog being brought in. 

Yes, a dog. 

A real one. 

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B36.html

Re J and K (Flawed ABE interview) 2019

 I don't think His Honour Judge Hayes QC was too enamoured with this process.
  1. As to the presence of B the dog in the interview room, I have never before seen a dog present during an ABE interview. There was no good reason to have a dog in the room and I find that it was misguided to have the dog present.  What took place during the video (summarised below) amply demonstrates why I say this.
  2. The purpose of the video was to speak to and elicit a free narrative from J.  And yet there were frequent times during the video when the dog took centre stage and attention / comments were directed to the dog rather than J. At one point, the dog took up a position on one of the chairs. The chair was there for child J, not the dog.
  3. On more than one occasion, the dog licked J on the face and on her hand.  J was distracted by this.  The adults were enamoured by it.  I was left asking myself why it was happening at all during an ABE interview of a young child


At one stage, after a vitally important (and pretty leading)question had been asked, the whole interview then forgets itself because of a certain doggy odour
J Because he said, “Don’t ever tell anybody and we’ll do it, er, when mummy isn’t here and when mummy is here we’ll cover them up”
Officer Okay.  Do you smell a little smell in the room?  Do you think B has [done] a little trump?
J Yeah.
Intermediary Has she?
Officer I’m not sure.  I think so.
Intermediary Oh no.
Officer That’s okay.  She’s okay. Can you smell it or it is just me?
Intermediary I can’t smell anything.
J I can.
Intermediary Can you? Oh no, it’s probably going to reach me in a minute.
Officer That’s okay.
Intermediary Sometimes she gets a bit of wind.
Officer That’s okay.  That’s what animals do isn’t it?
J And we do.
Intermediary Yes, and we do. 


So it was that what J said at the start of the above exchange about what her father had said to her (clearly a worrying account) was not developed any further.  The smell made by the dog distracted the attention of the officer, the intermediary and the child. The conversation turned from what J said to a discussion about the dog breaking wind.  It is simply unacceptable that that this happened.

 

[65]  As I have said, the observations that I have made do not, in the circumstances of this case, have any bearing on my findings of fact.  But the errors that were made could – in other circumstances – have had serious evidential consequences. A poorly conducted ABE interview has some parallels with a police officer (or some other person) trampling over a potential crime scene rather than adhering to essential forensic guidelines.

 

[66]  The video interview of J on 22 November 2016 regrettably strayed from its objective of “achieving best evidence” from the child.  It would be helpful for my observations to be fed back to the officer and the intermediary and, subject to considering any representations to the contrary by the parties, I will give permission for them to see this Judgment (or part thereof) for that purpose.  My observations are intended to be constructive criticism .  I hope that they are read in that spirit and that those involved will reflect on what went wrong and avoid making the same mistakes in the future.



Maybe I should have called it Never Work with Children AND animals...

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That, frankly, hit me like a dart

Posted on August 2, 2019 by suesspiciousminds

 

This is an ancillary relief case, in which Holman J was dealing with a disputed application for enforcement of financial orders made by Baker J. The case had run up costs of around £2.2 million.  At the hearing, the wife had given her evidence, and the husband had completed almost all of his evidence in chief.

 

And then, something happened that led Holman J to say the title of this piece.

This morning, the husband was in the course of giving his oral evidence-in-chief. I happened to comment to him how regrettable it was that these parties had not been able to resolve their differences by agreement long ago, before so much costs were incurred, which neither of them can apparently afford to pay. The husband then observed that it was I who had conducted the FDR. That, frankly, hit me like a dart. 

 

Holman J stopped the evidence, to take stock

 

I do not know what the husband might have been planning on going on to say with regard to the course or content of the FDR, for, of course, I immediately stopped him from saying any more. I broke off his evidence altogether whilst I and Mr Chandler, in particular, could take stock of the situation.

 

It was nobody’s fault that this had not been spotted.  The wife was in person, and husband’s counsel had been recently engaged and had huge amounts to deal with. Holman J had not himself spotted it, explaining of course that he had dealt with a huge number of cases in the intervening period.

 

  1. If any of the counsel who had appeared at the FDR were still engaged and appearing at this hearing, I have no doubt that any one or more of them would have flagged up at once that I had conducted the FDR and, accordingly, that I could not conduct this hearing. It also goes without saying that if I, personally, had had the least recollection or appreciation before this case began yesterday morning or, indeed, in its early stages yesterday morning, that I had conducted the FDR, I would have said unhesitatingly and without more ado that I was disqualified from conducting the present hearing and that another judge would have to be identified.
  2. I do not accept any personal responsibility for what has happened. So far as I am aware, there is nothing in any of the highly selective documents that have been prepared for the present hearing which identifies me as having conducted the FDR. As I commented earlier today, in the 18 months or so between the FDR on 15 December 2017 and late July 2019, I have probably conducted hearings in at least 500 cases, some of them long, some of them very short, and not including in that figure the very large number of cases that I consider and adjudicate upon on paper, in particular when sitting in the Administrative Court. So it did not impact upon me for one moment when I embarked upon this hearing that I had conducted the FDR. Frankly, it did not occur to me to enquire whether I had done so, because one is so accustomed to the lawyers for the parties, or the court administration, ensuring, in advance, that cases are not listed before the judge who conducted the FDR.

 

Having taken stock, both the husband and wife were prepared for Holman J, who was nearly half-way through the case to continue and see it through, despite the usual provisions that a Judge who dealt with the FDR plays no part in the later case.

 

(For those who don’t do money cases, an FDR is a Financial Dispute Resolution hearing, and the Judge at that hearing basically gives a steer as to what he or she would do, being able to speak freely because they would not be the Judge at a contested hearing. Sometimes that steer leads to one side or another being willing to compromise and the case settle. Sometimes, as here, it doesn’t and the case still goes on to a fight.   It is a bit like a Settlement Conference. So imagine a Settlement Conference, not working, and then a Care Order is made by another Judge and then later there’s an application for a Recovery Order that accidentally goes before the Judge who does the settlement conference, but it is only mid way through the evidence that this gets discovered )

 

However, Holman J looked carefully at the rules and found that rather than it being the Judge “should” not be involved in any further decisions, the wording was ‘must not’ and that he could not find a basis for allowing it, even with consent, although there was skilful argument that the overriding objective in the Family Procedure Rules might allow such a thing where both sides consented.

 

  1. I have, in the limited time available to me, given very careful and anxious consideration to whether, building upon what Lawrence Collins LJ had said at paragraph 35 and 36 and Goldring LJ had said at paragraph 61, I might hold that the requirement of the rule can be waived by the parties. Whilst in some circumstances at some future date it may be open to the Court of Appeal to develop the jurisprudence in that way, it currently seems to me that it is not open to me to do so. Those observations in those paragraphs are entirely obiter. As I have said, it seems to me that the policy as described by Thorpe LJ in paragraph 26 and his very clear statements in the last two sentences of paragraph 28 simply preclude waiver.
  2. For those reasons, and as it has now emerged (and has been checked and verified) that I did hear the FDR between these two parties on 15 December 2017, I conclude that the mandatory effect of rule 19.7(2) is simply that, as the rule says, I must have no further involvement with this matter at all. Judges have many powers and discretions under rules of court to relax, or even waive altogether, the impact of many rules upon a party or parties. But where a rule says, without discretion, that a judge must not do something, he must not do it. In a sentence, he must obey the law.
  3. For that reason, I propose to bring this hearing now to a complete halt. Anything that I have said during the course of the hearing, including indications that I gave as to the manner in which I intended to deal with some of the applications, are, in my view, complete nullities. This will have to go back to be heard from scratch before another judge on a date just as soon as it can be fixed.

 

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2135.html

 

Shokrollah-Babaee v Shokrollah-Babae [2019] EWHC 2135 (Fam) (25 July 2019)    

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Dingoes ate my decree absolute

Posted on August 1, 2019 by suesspiciousminds

 

Well of course they didn’t.  But in this case, decided by Mostyn J, a man who got divorced in 1997 and wanted to remarry asked the Court for a copy of his decree absolute. The Court had a look and declared that it was being economical with its visibility.

 

His former wife was asked whether she had a copy, and she replied that she might have one, in storage.  Having moved to Australia, the storage unit was 1000 kilometres from her home, so it wasn’t a small favour to ask.

 

As Mostyn J stated, the Court have duties to keep the divorce papers

  1. Specifically:
    1. a. The original file appeared to have been totally destroyed in about 2013 notwithstanding that the agreed HMCTS record and retention policy, agreed by the President of the Family Division, is that the contents of divorce files are stripped and destroyed 18 years after the date of the final order (or resolution of any subsequent complaint) but that several key pieces of paperwork are retained longer, one of which is the Decree Absolute which is kept for an additional 82 years (thus ensuring it is kept for 100 years in total).

b. A search for the original file in the TNT archive storage depot in Branston yielded no trace of it.

c. The Office for National Statistics stated that they had checked their stores and all paper Decree Absolutes from 1997 had unfortunately been destroyed. Nor had they retained a microfiche copy of this Decree Absolute[1].

d. The Decree Absolute team at the Central Family Court was not, despite extensive searches, able to identify the Decree Absolute on the central index maintained pursuant to the Family Procedure Rules, rule 7.36(1) or its predecessor the Family Proceedings Rules 1991, rule 2.51(3). It would appear that the original Decree Absolute was either never sent in early 1997 to Somerset House for entry on the index, or that it was lost in the post.

On any view, this is an extraordinary series of unfortunate mishaps.

 

As luck would have it, HMCS funded the trip to the storage facility, and the ex wife’s copy was there. So the Court gave a declaration certifying it to be a true copy, and the man was able to remarry.

 

  1. It is therefore necessary for a declaration to be made by the High Court to put the position on a footing as close as possible to that which would obtain had the file not been destroyed and the original Decree Absolute lost.
  2. In Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 2 FLR 1181, [2017] 2 FCR 130 Sir James Munby P confirmed that the High Court possessed an “inherent declaratory jurisdiction”, in that case to declare whether or not the father’s conduct in abducting the children to Nigeria amounted to a criminal contempt of court. In Mazhar v The Lord Chancellor [2017] EWHC 2536 (Fam), [2018] 2 WLR 1304 Sir Ernest Ryder SPT was of the view that the power to grant declarations was statutory in origin. In Bank Of New York Mellon, London Branch v Essar Steel India Ltd [2018] EWHC 3177 (Ch) Marcus Smith J likewise identified the source of the power to grant a declaration as being statutory; he identified section 19 of the Senior Courts Act 1981. That provides at section 19(2)(a), as did its predecessors, that “there shall be exercisable by the High Court all such other jurisdiction as was exercisable by it immediately before the commencement of this Act”. Thus, there was vested in the High Court all the powers exercisable by the common law courts and the courts of equity prior to the enactment of the Judicature Acts. Those powers clearly included the power to grant declarations, which had originated in the Court of Chancery. I think this is what Sir James Munby P was referring to when he spoke of the High Court possessing “an inherent declaratory jurisdiction”. Plainly, the fact that for some reason CPR rule 40.20 is not replicated in the Family Procedure Rules does not detract from the clear existence of the declaratory jurisdiction.
  3. The cause here was automatically transferred to the Family Court at Willesden on 22 April 2014 by virtue of article 2 of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956.
  4. I order that the cause is transferred to the High Court for the purposes of exercising the declaratory jurisdiction. Immediately following the making of the declaration the cause will be transferred back to the Family Court at Willesden.
  5. I am fully satisfied on the material before me, and I so declare, that:
  6. a. the document produced by the respondent is an authentic and accurate copy of a certified copy of the original Decree Absolute; and

b. the marriage of the petitioner and the respondent was, as shown by the copy of the certified copy of the decree absolute, dissolved on 29 January 1997.

 

Not a sterling endorsement of the Court’s record-keeping abilities. Nor is there any part of the judgment indicating that the legal costs that the husband incurred because the Court failed in its responsibilities would be paid for by HMCS

Power v Vidal 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2101.html

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How Dorset feel – to treat me like you do?

Posted on June 27, 2019 by suesspiciousminds

Or, Wakefield its a beautiful morning, if you are more Boo Radleys than New Order.

 

Another day, another case about designated authority.   This one answers the question “Does the stop the clock provision apply under a Supervision Order?”

 

Stop the clock, I’ve found the clue!

 

(Stop the clock is the colloquial term family lawyers use for the provision of section 105(6) of the Children Act 1989 which in very broad terms is the care order gets made to the LA where the child is living UNLESS the child is living somewhere because the LA put the child there. It is probably the most litigated provision in the Children Act 1989, leading to case after case where the Judge sighs in exasperation and says in judicialese  “I’m sure Parliament did not intend for Local Authorities to spend quite so much time squabbling about this”  .   For the avoidance of doubt, these squabbles are almost always local authorities wishing that they were not going to be liable for all of the costs of looking after the child and trying to argue that it should be the other local authority – though in this case, the LAs break that mould and are actually reasonable and grown-up with each other. Hooray!)

 

 

section 105(6) of the Children Act 1989:

 

 

      1. “In determining the ‘ordinary residence’ of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place—

(a) which is a school or other institution;

(b) in accordance with the requirements of a supervision order under this Act;

(ba) in accordance with the requirements of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008; or

(c) while he is being provided with accommodation by or on behalf of a local authority.“

https://www.bailii.org/ew/cases/EWCA/Civ/2018/900.html

Re C (Children) [2018] EWCA Civ 900 (07 March 2018

 

Stop the clock DOES actually apply where a Supervision Order is made with a CONDITION that the child reside in a particular area  (and I’ll be honest, I didn’t know that.  It is clear from a close reading of the statutory provision, but it had just never occurred to me that it would ever happen)

  1. It is plain, from a reading of those provisions, that a supervision order may contain a requirement under paragraph 2(1)(a) for the supervised child “to live at a place or places specified in the directions for a period or periods so specified”. There is also the facility for the court to impose an obligation on the responsible person (for example the father in this case to comply with directions. It seems, therefore, apparent that the provisions in paragraphs 2 and 3 of Schedule 3 of the Children Act may include a requirement in an appropriate case for a child to reside at a particular location. That that is so has long been established in case- law and, in particular, the decision of Hollings J in the case of Croydon LBC v A (No.3) [1992] 2 FLR 350.

 

It seems that at final hearing, that provision was dusted off and plonked in front of a Judge, who ruled  (wrongly, but understandably) that Wakefield was the right authority to hold the Care Order, because the children had moved to Dorset AFTER the making of a Supervision Order (before things went wrong) and the stop the clock provisions meant that it stayed as Wakefield.

 

However, just making the Supervision Order in and of itself didn’t stop the clock, there had to be a condition attached to the Supervision Order saying that the children were to live in Dorset with their father to stop the clock.

Wakefield appealed, and Dorset took a very wise view of the appeal.

  1. The appeal that is now brought by Wakefield can be described in short terms, I having now laid the ground. The point simply is the supervision order made in these proceedings was not one that can be said to fall within the definition in section 105(6)(b) because there are no “requirements” made within the supervision order made under the Act. Having looked at the orders as I have described, that plainly is correct. This was a bald supervision order with no additional adornments, directions or requirements added to it. The basis of the order was that the children were to live in Dorset, but I accept, as the local authority submits, the purpose of the supervision order was to support that placement rather than to require it or to dictate that the children should remain living there. Thus it is plain, on my reading of the facts and of the provisions that it is not possible to hold that this case falls within section 105(6)(b). That position is expressly accepted by Dorset County Council in a helpful position statement that they have filed with this court. In terms they say this:
      1. “Having considered Wakefield’s skeleton argument, Dorset County Council are not contesting this appeal. In fact, Dorset consents to the appeal.”

The skeleton argument makes plain that there is now agreement between the administrative authorities of the two local authorities that the groundwork, as it were, in terms of running the supervision of the care orders will be undertaken locally by Wakefield but will be funded and reimbursed by payments from Dorset. As I have indicated, neither of the parents have made any submissions on this point and there has been no communication from those acting for the children. It seems to me that the position now put forward by the two local authorities is entirely correct and that the period during which the children resided permanently with their father under the child arrangements order from December 2016 until the middle of 2017 represented their ordinary residence and that therefore they were ordinarily resident in Dorset at the time that Dorset issued the care proceedings that were eventually determined by the judge. On that basis, if my Lord agrees, I would therefore allow the appeal and direct that the care orders made for these two children should be amended so that the local authority designated is now to be shown as Dorset.

 

 

This spirit of collaboration and working in partnership is referred to in Re Z, yet ANOTHER section 105(6) case published on Bailii on the same day, which is a nice little quirk. It flummoxed me at first, until I looked at the dates.    (Re C’s judgment was 7th March 2018, Re Z 11th June 2019, but both were published on Bailii on the same day )

 

Re Z 2019

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B30.html

 

[You don’t need to read Re Z, the only bit of interest in it is that the mother in a set of care proceedings appeared to be represented by a “Trainee solicitor” but I suspect that is because  the mother had given instructions that she agreed the making of the Care Order and did not have strong views about which LA would take it on.  Quite nice for the trainee to get their name in a published judgment so early, something I’ve never managed as a lawyer, so big up to Bhanya Rawal.  If you are someone who googles your own name, this might be a bit of a surprise as you are tagged into this.  ]

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County Lines and Magical Sparkle Powers

Posted on June 7, 2019 by suesspiciousminds

 

 

County Lines is the name that the police have given to the involvement of young adolescents in Organised Crime Gangs (OCG), usually transporting drugs from an urban centre where supply is readily available to rural areas where there is less supply and hence the price can be more lucrative for the OCG. Often there are competing OCGs in these areas, and hence there’s a degree of physical risk to the young adolescents as well as the criminal behaviour itself as the gangs compete for territory and access to those markets.

Magical sparkle powers is the pejorative nickname I have given to the inherent jurisdiction of the High Court, largely arising from the frequently cited quotation that the inherent jurisdiction of the High Court is theoretically limitless.

 

 

Fetch the bolt cutters Ryan

 

A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) (04 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1384.html

 

6.The background can be shortly stated and is derived in the main from intelligence reports that have been communicated by the police to the local authority. KS lives with his mother in the south of the city. Since 2017 KS has been considered to be at risk of criminal exploitation. The police assessment is that KS is an active member of a named OCG. That OCG is believed to be involved in violent feuds grounded in attempts to take control of drug trafficking activity in identified areas of the city, further exaggerated by racial tensions. Police intelligence indicates that KS is presently in dispute with other members of the criminal community in the south of the city. The police consider that those ‘nominals’ he is in dispute with have the ability to use firearms and display a willingness to conduct retaliatory attacks and to seek violent acts of retribution.

 

 

7.In August 2017, KS was found in the company of an OCG drug dealer and was deemed to be a victim of criminal exploitation. Police exercised their powers of protection pursuant to s 46 of the Children Act 1989. In September 2017 KS was said to have witnessed a gang related stabbing in the south of the city that took place that month when a young male was stabbed in the neck. Also in September 2017 KS was found to be carrying a baseball bat and a brick and was arrested for a racially aggravated assault having allegedly threatened a female with a baseball bat and thrown a brick at her. In October 2017, KS was made the subject of a child protection plan by the City Council.

 

 

8.In May 2018 KS was found in possession of a quantity of heroin and offensive weapons were found in the property in which he was arrested for conspiracy to supply Class A drugs. No charges were brought on that occasion. In July 2018 KS was arrested at a festival in possession of a quantity of cocaine on suspicion of selling drugs. Later in July police received intelligence that KS had been involved in a street altercation in which he wounded a person with a knife. In October 2018 KS was convicted of possessing an offensive weapon and assault occasioning actual bodily harm arising out of the incident in September 2017 and was made the subject of a Youth Rehabilitation Order for 18 months.

 

 

9.In late 2018 KS was attacked in the street by males wielding a machete and a knife. He was stabbed five times. He stated he did not know his attackers and would not make a complaint. A month later a male from a rival OCG suffered severe knife injuries following a window being broken at KS’s home address whilst his younger siblings were present. No complaints were made by any of the parties involved.

 

 

10.In February 2019 police intelligence suggested that KS had been involved in the discharge of a firearm. In March 2019 KS was arrested following a knife attack that Police intelligence indicated was a targeted attack by members of the named OCG. A search of the family home revealed two large knives, one under KS’s bed and one under the sofa. Following a strategy meeting, it was agreed that KS could return home on condition that the mother work openly with the local authority. In April 2019 KS was served with a ‘Gun Crime Nominal Notice’. This is a ‘disruption notice’ designed to alert a person that their activities have generated Police attention and that advice and support is available should they choose. The Police identified KS as a “Gold” gun crime nominal and as being one of “top six gun crime nominals in the police force area”.

 

 

11.Thereafter, KS was identified by Police as a suspect in the shooting of an adult male who had been shot in the leg in broad daylight in the presence of members of the public. KS was arrested on that date on suspicion of attempted murder and bailed. A search of his property recovered an axe. Within this context, the police considered that KS’s life was under threat from reprisals following the shooting. However, KS rejected advice that he leave the area and reside in alternate accommodation, and refused to accept that he was at risk. As the result of a Strategy Meeting, the mother was advised to leave the family home with KS’s two younger siblings and to stay outside the area. She has done so. A secure panel meeting concluded that the risks to KS and to other’s from KS were so high as to warrant an application for an order authorising his secure accommodation.

 

 

12.Within the foregoing context, in her statement dated 15 May 2019, the social worker summarises the risks to KS arising out of the circumstances outlined above as follows:

 

 

 

“The Local Authority feel that it is necessary for a continuation of deprivation of liberty in respect of KS. KS remains at risk of significant harm or harming someone else if he is to remain in the care of [the mother] and remain in [the south of the city] and immediate surrounding areas. It is known from police information that KS is in possession of a firearm and there is information to suggest that he has used this on more than one occasion. The risks to KS’s personal safety have been escalating since the beginning of the year and the police have indicated that there is a significant risk to his own safety and life due to potential reprisals as a consequence of the shooting incident…”

 

(KS disputed that any of those things were true)

 

In this case, the young person KS was 17.  (Too old for a Care Order to be made). His mother objected to him being accommodated in secure accommodation, so he could not be accommodated under section 20 of the Children Act, therefore there was no mechanism under the Children Act 1989 for him to be accommodated at all. And therefore, there was no legal basis for the LA to seek a section 25 Secure Accommodation Order

The Local Authority therefore asked the Court to authorise under the inherent jurisdiction of the High Court for authority to deprive KS of his liberty.

 

(There is talk in the judgment of it being a DOLS application – deprivation of liberty application, but it clearly can’t be, because there’s no medical evidence that KS met the test in the Mental Capacity Act 2005 for not having capacity to make decisions for himself. Many would say that he was making very BAD decisions, but people are allowed to make BAD decisions, as long as they have capacity)

 

 

Cutting to the chase of the decision

 

 

1.Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is ‘no’.

 

The judgment sets it out in more detail, of course, but that’s the nub of it.  So this is a case which adds a limit to those theoretically limitless powers, and the cases that do that are always significant.

 

DISCUSSION

45.Having considered carefully the evidence and submissions in this case, and accepting that the evidence presently before the court justifies the concerns of the professionals in this case who are endeavouring to keep KS safe, I am satisfied that this court is not permitted to use its inherent jurisdiction to authorise KS’s the placement in secure accommodation in the manner requested by the local authority. My reasons for so deciding are as follows.

 

 

46.There is no care order in force in respect of KS and an application for such an order cannot be made by virtue of his age (Children Act 1989 s 31(7)). KS has not been accommodated by the local authority for the purposes of the Children Act 1989 (whilst the order of HHJ Sharpe did result, briefly, in KS’s placement at the non-secure unit, in light of the conclusions set out in this judgment, that order was not capable of causing KS to be “accommodated” by the local authority for the purposes of the Children Act 1989). KS’s mother retains exclusive parental responsibility for him. She did not and does not consent to his accommodation and, accordingly, KS cannot be accommodated by the local authority for the purposes of the 1989 Act (Children Act 1989 s 20(7)). In the circumstances, KS is a child who is neither “in the care of” the local authority or “provided with accommodation” by the local authority. I am satisfied that this position has two key consequences.

 

 

47.First, KS is not a “looked after” child for the purposes of s 25 of the Children Act 1989 and does not therefore fall within the terms of that section. In the circumstances, this is not a case where a declaration under the inherent jurisdiction is sought by the local authority in order to render lawful a non-secure placement for a looked after child that amounts to a deprivation of liberty due to a lack of suitable secure beds preventing an application under s 25 of the Children Act 1989. Rather, in this case, the local authority seeks an order under the inherent jurisdiction because s 25 of the Children Act 1989 cannot apply to KS.

 

 

48.Second, and within this context, in circumstances where KS is not and (in circumstances where his mother objects to his accommodation and where KS cannot be made the subject of a care order by reason of his age) cannot be a looked after child, the order the local authority seeks under the inherent jurisdiction is one which would not only authorise the accommodation of KS in a secure placement, but would, a priori, have the effect of authorising his removal from his mother’s care without her consent for this purpose in circumstances where his mother, who retains exclusive parental responsibility for him, objects to this course of action. In the circumstances, I am satisfied that the effect of the order sought by the local authority under the inherent jurisdiction would be to require KS to be removed from his mother’s care and be accommodated by the local authority. This course of action is prohibited by s 100(2)(b) of the Children Act 1989.

 

 

49.The intention and effect of Section 100(2)(b) is to prevent the court in wardship or under the residual inherent jurisdiction making any order which has the effect of requiring a child to be accommodated by a local authority. That end can only be achieved by satisfying the requirements of the statutory regime for accommodating children provided by (amongst other provisions) s 20 of the Children Act 1989. For the reasons I have given that outcome cannot be achieved in this case under the statutory regime. In such circumstances, it is clearly established that the High Court cannot exercise its inherent jurisdiction to grant authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme (Re E (A Child) [2012] EWCA Civ 1773 at [16] and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 at [39]).

 

 

50.I am, of course, acutely conscious of the nature and extent of the risks to KS identified in the evidence before the court and of the duty of this court to act in a manner that is compatible with KS’s rights under Art 2, which duty includes a positive obligation on the court to protect the right to life. However, the authorities that articulate this positive obligation make clear that it is to be discharged by the relevant public authority through taking “measures within the scope of its power” (see Osman v United Kingdom). For the reasons I have given, the orders sought by the local authority lie outside the scope of the court’s power under the inherent jurisdiction.

 

 

51.Given my conclusions with respect to the determinative effect in this case of s 100(2)(b) of the 1989 Act, I do not consider it necessary to address the arguments advanced by Mr Bagchi regarding the existence of a statutory lacuna in respect of children in KS’s position and Mr Spencer’s competing submission that the use of the inherent jurisdiction to place KS in secure accommodation would be to cut across a statutory regime that excludes children in KS’s situation from the statutory scheme.

 

 

 

CONCLUSION

52.As Mr Spencer points out in his careful and comprehensive Skeleton Argument, any reader of the local authority documentation in this case would be struck by the immense seriousness of this case, involving as it does references to attempted murder, criminal gangs, firearms and ‘County lines’ drug dealing. Whilst this court has made no findings in respect of these matters, on its face it is a situation that embodies the seemingly increasing tragedy of vulnerable young people for whom involvement in Organised Criminal Groups is perceived as a means of protection, of belonging, of mattering to an apparently indifferent world and who, in consequence, grasp for these things on a path that ultimately offers nothing but futility, pain and sometimes even death. As I noted at the conclusion of the hearing, in these circumstances the local authority cannot be criticised for seeking to explore the outer boundaries of the court’s jurisdiction in an effort to protect KS from the risks it has identified.

 

 

53.Within this context, it may also be considered by some to be surprising that the High Court cannot simply invoke its inherent jurisdiction in the manner requested by the local authority to address KS’s situation. However, as Hayden J observed in London Borough of Redbridge v SA [2015] 3 WLR 1617 at [36]:

 

“The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

 

 

Therefore, if the adolescent is over 17, not subject to a Care Order, and the parent objects to section 20, there isn’t a family law solution to the problem. It would have to be a criminal remand to a secure unit. That’s quite an unusual set of circumstances, because with an adolescent under 17, the LA could have sought an Interim Care Order and then secured.

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Just when you thought it was safe to go back in the ordinary residence water….

Posted on May 24, 2019 by suesspiciousminds

 

Oh my flip.

 

Re S (A child) 2017

https://www.bailii.org/ew/cases/EWCA/Civ/2017/2695.html

 

2017, but only published recently.

 

In a nutshell.   Parents live in Leicester City (City) and mum is pregnant.  City propose to issue care proceedings. Parents move to a new town, in Leicestershire (County).  City write to County, and invite them to do something about the forthcoming baby. Discussions don’t resolve things, and so City say “we will issue care proceedings, and ask that you be designated as local authority”.  No response.

Child is born in a maternity hospital which falls in Leicester City (City) and City issue care proceedings. ICO is made, child placed in foster care (which happens to be in the City, but that doesn’t matter because of s105 stop the clock provisions).  Court designate County as the LA.

 

County appeal.

 

This is the fundamental question:-

 

  1. The question, therefore, arises as to whether, as is argued by Mr Kingerley on behalf of the respondent, a new-born child’s residence is derived solely from the mother’s place of residence, notwithstanding that the child has never been present at the place of the mother’s ordinary residence, and that there has been (and is) no intention that the child will ever be in the care of his mother.

 

At the appeal the two arguments are :-

 

City say it is County, because the child’s ordinary residence is with the mother in County.

 

  1. In C (A Child) v Plymouth County Council, whilst an interim care order was made in respect of the child in question immediately following her birth, that baby lived with her mother at various addresses in Liverpool and in Plymouth. The dispute centred around which of the two local authorities should be the designated local authority. It was in this context that, on the facts of that case, Thorpe LJ upheld the judge’s view that a new-born baby was incapable of having an ordinary residence apart from the mother, and that, therefore, the ordinary residence would be dependent upon the residence of the mother.
  2. This theme was picked up more recently by Ryder LJ in Medway v Kent [2016] EWCA Civ 366 at [21]:
      1. “In C (A Child) v Plymouth County Council [2000] 1 FLR 875 Thorpe LJ re-emphasised the basis of the Northampton decision which, he said, was to put an end to litigation of this kind between local authorities (see, for example at 878 and per Swinton Thomas LJ at 880). Thorpe LJ agreed with the first instance court that it was a reasonable inference of fact in the circumstances of that case that a new born baby would be unlikely to have an ordinary residence apart from her primary career and that for a child of such a tender age, the child’s ordinary residence would usually follow that of her carer.”

 

County say it is City, because the child’s physical presence in County is an essential ingredient of ordinary residence. The child never set foot in County, because the child was removed from hospital in City.  Whilst if the child had not been removed and had gone home with mum the child would have been living in County, that doesn’t apply because it never actually happened.  So the child has NO ordinary residence, and then the second limb applies, that the designated authority is the one with the background knowledge and where the circumstances that led to the care proceedings happening took place – in this case City.

 

[The Courts have found that habitual residence does REQUIRE physical presence at least at some point]

 

  1. The matter was thereafter heard by the Supreme Court- A v A and Another (Children: Habitual Residence) [2013] UKSC 60, [2014] AC1. Although there were extensive arguments before the court in relation to the requirement of presence before habitual residence can be established, the Supreme Court in fact decided the case, not on the issue of habitual residence, but upon nationality. The observations of the court in relation to presence were, therefore, strictly speaking, obiter, but, as Mr Roche rightly submits, of powerful influence upon this court. Mr Roche, therefore, relies on certain observations made in particular by Baroness Hale in her majority judgment (Lord Wilson, Lord Reed and Lord Toulson agreeing and Lord Hughes dissenting).
  2. Mr Roche highlights Baroness Hale’s reference to earlier cases where physical presence was assumed to be an integral ingredient of habitual residence and relies on Baroness Hale’s observations at paragraph [55]:
      1. “So which approach accords most closely with the factual situation of the child – an approach which holds that presence is a necessary pre-cursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child’s integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been”
  1. Mr Kingerley, for his part, also properly draws the court’s attention to the dissenting judgment of Lord Hughes in A v A, and, in particular, his observation at paragraph [90]:
      1. “The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and is where he would be but for force majeure.”

And at [92]:

“If current physical presence is not essential, then so also can habitual residence exist without any physical presence yet having occurred, at least if it has only been prevented by some kind of unexpected force majeure.”

  1. Mr Kingerley goes on to submit that to adopt the approach in A v A would undermine the concept of “rapid and not over-sophisticated review”, such as is required in a designation case since the days of the Northamptonshire case. A v A would lead, he says, to the introduction of a more complex and sophisticated test which is both unnecessary and goes against the approach of the Northamptonshire case, as confirmed by the Plymouth case.
  2. I accept Mr Kingerley’s submission to the extent that it would undoubtedly undermine the well-established approach to the determination of which local authority is to be designated for the purposes of a care order, if the court was expected to engage with detailed questions of fact of the type which might have been anticipated by the Supreme Court in order to determine habitual residence. It would, in my view, be both inappropriate and unnecessary to treat an application of this type in the same way, and with the same level of detail and sophistication as is sometimes found in disputes in relation to a child’s habitual residence in international cases.
  3. However, it is not that aspect of the judgment upon which Mr Roche relies. Rather, he relies on the fact that four of the five Supreme Court justices doubted that a child could acquire habitual residence in a country in which he had never been present.
  4. Since the decision in the Supreme Court, the CJEU has considered the issue of physical presence in the context of habitual residence.
  5. In W and V v X (Case C-499/15) the court held, at [61]:
      1. “Thus, the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State.”
  1. A few months later in OL v OP Case C-111/17 PPU, in the opinion of the Advocate General, the question was posed at paragraph [29] as was:
      1. “… is physical presence a necessary and self-evident prerequisite, in all circumstances, for establishing the habitual residence of a person, and in particular a new-born child?”
  2. The Advocate General had the benefit of oral argument presented to him by, amongst others, Mr Edward Devereux QC on behalf of the United Kingdom. The Advocate General’s opinion in relation to this aspect of the matter is found at paragraphs [81-83]:
      1. “81.…it is not inconceivable that there may be wholly exceptional circumstances in which it might be appropriate to disregard the criterion of physical presence. However, the present case, dealt with under the urgent procedure, does not lend itself to an in-depth examination of that question of principle. Given the circumstances of this case, an answer to such a question is not needed in order to provide a helpful answer to the question submitted by the referring court.

82. However, it seems timely to observe that, in such circumstances, and taking into consideration, in particular, that habitual residence is a question of fact, it is necessary that a tangible connection be established with a country other than that where the child is in fact living.

83. Such a connection would have to be based, in the best interests of the child, on concrete and substantial evidence that could thus take precedence over the physical presence of the child. Plainly, there would not be a sufficient connection if there were some prospect that a particular Member State might become, on an indefinite future date, the place where the child would be habitually resident, unless that prospect were reinforced by other tangible links of such a kind that the prerequisite of the child’s physical presence could be set aside.”

  1. When the matter came before the full court, the question previously put before the Advocate General was slightly rephrased to reflect the fact that the child in question had been born by agreement between the parties in a specific country and had thereafter remained in the care of the mother for a period of months. The full court, therefore, dealt with the matter only briefly saying at paragraph [42-43]:
      1. “According to that case law, the habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national courts taking into account all the circumstances of facts specific to each individual case… To that end, in addition to the physical presence of a child in a member state, other factors must also make it clear that presence is in not any way temporary or intermittent and that the child’s residence corresponds to the place which reflects such integration in a social and family environment.”
  1. What is clear from A v A, at both the Court of Appeal and Supreme Court level and in the European jurisprudence, is that, in order to establish habitual residence, there will be an expectation that the child will have been present in the area where it is suggested that he, or she, is habitually resident.

 

 

 

The Court of Appeal therefore had to consider whether those judicial pronouncements on HABITUAL RESIDENCE also applied to ORDINARY RESIDENCE (so the physical presence of the child overrides the principle that a child’s ordinary residence is with the parent)

 

  1. In my judgement, the requirement of physical presence must equally apply to a determination of ordinary residence. The majority of the Court of Appeal in A v A was robust in suggesting that presence may be an absolute requirement. The Supreme Court do not specifically deal with the issue, but favour “presence”. The Advocate General in OL v OP addressed the matter head-on, as already quoted at paragraph [81], although the Advocate General regarded it as “not inconceivable that there may be wholly exceptional circumstances in which physical presence will not be necessary”.

 

So the child, who had never been in the parents home in County, did not live in County.  The child had no ordinary residence, which left City both metaphorically and literally holding the baby.

 

Good news for LA’s who don’t have a maternity hospital in their area, bad news for those who do.  (If in this example, County had done pre-proceedings work, then they would have been the designated authority on the second limb, but as they hadn’t City kept it.  So it is not just ‘where was the baby physically before removal?’  but who is the authority under s31(1) (b) as you can’t rely on parents residence to establish ordinary residence with a child removed from hospital that isn’t in the same area.

 

s31 (1) (b) where the child does not reside in the area of the local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.

[I think it is still arguable that if there were ANY incidents that went to threshold in County, even a continuation of existing concerns, then ANY circumstances could still have caught County. If it isn’t obvious, my sympathies here, on the limited facts that are before me, are with City. Not least because in appealing this decision, County have introduced a brand new headache into what was already far too difficult]

The sooner we implement my Residence/Schmesidence Act the better

https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/

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Tag -you’re it (or not)

Posted on May 24, 2019 by suesspiciousminds

 

 

This is a Court of Appeal decision in which the Court of Appeal were asked to find that the Judge had been wrong to make Interim Care Orders rather than the option of placing an electronic tag on father to keep him away from the children and also to give general guidance on the applicability of electronic tagging in care proceedings.

 

J-S (Children) [2019] EWCA Civ 894 (24 May 2019)    

https://www.bailii.org/ew/cases/EWCA/Civ/2019/894.html

 

  1. On 15 March 2019, Oxfordshire County Council removed five children from their mother under an emergency protection order. Interim care orders were then obtained and the case was listed for a contested hearing before Her Honour Judge Owens on 10 April. The threshold for interim orders was not disputed, but the local authority’s plan to keep the children in foster care was. The judge continued the interim care orders and listed a fact-finding hearing for three days on 29 May. The father of the youngest child challenges that outcome on two grounds. The first concerns the justification for making the orders: the judge refused permission to appeal, and this court’s permission is now sought. The second ground of appeal, for which the judge herself gave permission, concerns the power to order electronic tagging in a case of this kind.
  2. The background is that in 2009 the father (as I shall call the appellant) was found to have caused 17 fractures to a baby son by a previous relationship. In 2012, he was sentenced to 33 months imprisonment for inflicting grievous bodily harm on the child and for neglect. In mid-2017, he began a relationship with the mother of the older four children. The local authority told the mother about the father’s history and a written agreement was made which barred him from attending the family home. In January 2018, a psychiatric report advised that the father posed a serious risk to any child and that he is not treatable. In May 2018, the local authority issued proceedings in relation to the older four children on the basis of neglect and failure on the mother’s part to protect them from unsuitable adults. That summer, the youngest child was born. In October 2018, a social work report on the father referred to his “eruptive anger”. In December 2018, the court made a supervision order for 12 months on the basis that the children would remain with their mother. The parents and the local authority made a written agreement that the father would have no unsupervised contact.
  3. In March 2019, two of the children made statements that the father had been staying at the family home, and this was apparently corroborated by one of his former partners. The children were then removed under the emergency protection order. The parents accepted that the threshold for intervention was met because there were reasonable grounds for believing that the father had been at the home, but they denied that it had in fact happened. That issue, which is central to the current proceedings, will be resolved at the imminent fact-finding hearing.
  4. Ahead of the contested decision, both the mother and the father offered to be tagged so that their physical separation could be monitored, allowing the children to return to their mother. Information from Electronic Monitoring Services, the agency responsible for tagging, was gathered. The matter came before the judge on 5 April, when there was no time for it to be heard. It was appreciated that only a High Court judge could make a tagging order, but Judge Owens directed that at a hearing fixed for 10 April she would conduct the welfare evaluation and refer the making of a tagging order to a High Court judge if she concluded that such an order should be made in principle –a course of action that was in itself not without potential difficulties in my view. She also invited the Ministry of Justice to attend the hearing, or to provide written submissions on the question of who would bear the costs of tagging.
  5. By agreement, the hearing on 10 April was decided on submissions. The parents pressed the issue of tagging, saying that it would sufficiently mitigate the risk of what was accepted to be severe harm. The local authority argued that the risks were not manageable because, even with tagging, the father could lose his temper quickly and before help could be mobilised. A letter was received from HM Prison and Probation Service (part of the MoJ) explaining the parameters and procedures for tagging. The author stated that the MoJ would not be responsible for the costs of tagging and monitoring and expressed the view that the case was for a number of reasons unsuitable for a tagging arrangement.

 

 

Obviously if the MOJ aren’t paying the costs of tagging, you can’t conceive of the Legal Aid Agency agreeing that tagging constitutes an assessment so the legal aid certificates can’t pay for it.  That leaves everyone looking meaningfully at the Local Authority, who at that point slap Kent County Council v G 1996 on the table and say “well, if you think this is an assessment whose primary focus is the child, so it comes within s38(6) good luck with making that argument’

 

Anyway, the Court of Appeal decided that there was no question of the Judge having decided the ICO wrongly

 

Ground 1

  1. The first matter for decision is whether permission to appeal should be granted on ground one. As to that, Mr Devereux submits that the judge’s overall assessment of risk was flawed. She directed herself with reference to authority on the need to consider the gravity of the likely harm, the likelihood of harm occurring, and the availability of protective measures. She was entitled to find the gravity to be serious, but she did not properly consider the likelihood of it occurring. She placed too much weight on the threshold concession, and did not take account of the fact that the parents denied breaking the agreement. Nor did she properly weigh up the protective possibilities of tagging. Had she done so, she would have been bound to refuse the application for interim care orders. Instead, she was unduly influenced by expressions of opinion in the letter from the MoJ.
  2. In response, Mr Geekie and Ms Scriven argue that the judge was right about the risks and the inability to mitigate them.
  3. I am in no doubt that the judge was right to refuse permission to appeal and that we should do likewise. The judge approached the issue correctly in law in a case in which the threshold was crossed. Moving forward, she carefully evaluated the risks and was fully entitled to find that even if tagging could be put in place it would be insufficient to mitigate them. Reading the judgment as a whole, it is plain that she considered that there was a significant likelihood of unsupervised contact taking place in the future. The evidence for that was amply sufficient for a risk assessment at the interim stage. There is no sign that she placed undue weight on opinions expressed in the MoJ letter, as opposed to its basic factual contents. Furthermore, this court will rarely interfere with an interim order, all the more so where in this case the central disputed issue is just about to be resolved. There is no prospect of this court finding the interim care orders were wrongly made. We therefore informed the parties during the course of the hearing that permission to appeal on this ground would be refused.

 

On the issue of an appeal for the Court to give general guidance, i.e an academic appeal, the Court of Appeal say “mmmmm, no”   and tell us about a case called  “Popdog”, which is my new favourite case name – replacing     Wombles v Womble Skip Hire (skips for collecting rubbish branded Womble, injunction refused) [1975] FSR 488

 

https://suesspiciousminds.com/2015/01/23/rihanna-youre-a-womble/

 

Ground 2

  1. Turning then to the appeal on ground two, the local authority and the Guardian submit that the court should not entertain it as it is academic in the light of the judge’s core decision that she would not order tagging in any event. For his part, Mr Devereux advanced this ground of appeal with moderation in the light of the outcome on ground one.
  2. In relation to academic appeals, we have been referred to the statement of principle in Hutcheson v Popdog Ltd. (Practice Note) [2012] 1 WLR 782, where Lord Neuberger MR held that, save in exceptional circumstances, this court may only entertain an academic appeal where three conditions are met: (1) where the appeal raises a point of some general importance; (2) where the respondent agrees to it proceeding, or is at least completely indemnified on costs or is not otherwise inappropriately prejudiced; and (3) where the court is satisfied that both sides of the argument will be fully and properly ventilated.
  3. Here, none of the conditions for hearing an academic appeal is satisfied. In the first place, this court is not aware of any pressing request from judges or practitioners for further guidance at this stage on the availability of tagging in cases of the present kind. In Re X & Y (No. 1) [2015] 2 FLR 1487, Sir James Munby P reviewed the availability of tagging in a case involving feared travel to Syria. At paragraphs 80-85 and 100 he referred to previous authority and to the HMCTS guidance, which notes that orders may only be made in the High Court and that states the question usually arises where there is a real risk of abduction. He noted that cases raising the issue of tagging are infrequent. At this hearing, we were referred to just four reported cases since 2003 and an anecdotal account of one other case. I do not consider that there is a pressing need for guidance on electronic tagging from this court at the present time. Cases where the issue may arise will be unusual and the decision will be case-specific.
  4. As to Lord Neuberger’s second requirement, the local authority and the Guardian do not consent to the appeal going ahead and there is no realistic form of costs protection that could be devised. Mr Geekie argues with good reason that it would be particularly inappropriate for guidance to be formulated without a real-life context that raised the hard practical issues that would have to be confronted.
  5. Thirdly, for the issue to be fully argued out, the court would need to hear submissions from the Ministry of Justice and the Legal Aid Agency and possibly from other organisations as well. The expense and delay of an adjournment for this to happen would be disproportionate.
  6. Returning to the present case, the priority now must be to further the children’s welfare by conventional means, rather than digressing into subsidiary issues such as tagging.
  7. For all these reasons, as we informed the parties at the conclusion of the hearing, we decline to offer further guidance on electronic tagging and we dismiss this appeal.

 

If you are going to proffer electronic tagging as your solution in care proceedings, you’re going to need to show

 

(a) How you will get one and how you will pay for it

(b) How it will work – i.e who is up 24-7 monitoring it and sounding the alarm bells if the two tags begin beating with just one mind

 

 

Good luck.

 

 

[Quick edit- the Court of Appeal also remind the judiciary that whilst it is right and appropriate that the trial Judge is asked for permission to appeal, the Court of Appeal greatly prefer that they say ‘no’ and leave that up to the actual permissions judge at the Court of Appeal.

  1. Lastly, I note that after what was otherwise a very proper decision, the judge was persuaded to grant permission to appeal on the basis that there was a compelling reason for the appeal to be heard. The outcome of the appeal shows that it would have been preferable for the judge to have left the issue of permission to appeal on ground 2 to this court, as she did with ground 1.
  2. CPR r.52.3(2) and its equivalent for appeals within the Family Court, FPR 30.3(3), provide that an application for permission to appeal must be made to the lower court at the hearing at which the decision to be appealed was made or to the appeal court in an appeal notice. It is good practice to make the initial application to the lower court: Re T [2003] 1 FLR 531. Under CPR r.52.6(1) and FPR 30.3(7) permission to appeal can only be given where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason for the appeal to be heard. So there is no doubt that the father was right to apply to the judge and that she had the power to grant permission to appeal. However, permission is rarely granted by the trial judge in a family case and there are good reasons for that. As Thorpe LJ put it in Re O (Family Appeals: Management) [1998] 1 FLR 431:
        1. “Exceptionally, there are family appeals that raise a difficult point of law or principle. There the judge at first instance may well wish to grant leave himself. But if the proposed appeal seeks only to challenge the exercise of his judicial discretion in a family case, it would generally be helpful to this court if the judge at first instance was to leave to this court the decision as to whether or not the appeal should be entertained.”

A similar point was made by Butler-Sloss LJ in Re R (A Minor) [1996] Lexis Citation 2264:

“This was undoubtedly a very difficult case. But in an impeccable judgment, the Judge was in error on one matter only. He should not have granted leave to appeal. … In this sort of case it is particularly important that leave to appeal should not be granted because it only gives to the appellant a false hope in a hopeless appeal.”

  1. Here, the judge gave permission under the “compelling reason” limb. In my view, there is a need for at least as much, and possibly more, caution on the part of a first instance family judge when deciding whether to grant permission to appeal under that limb as under the first limb, particularly where there is a possibility that the appeal may turn out to be academic. Overall, judges should not be deterred from exercising their power to grant permission to appeal in a proper case: where, for example, the decision has turned on a choice of conflicting authorities, or where for some reason it is likely that this court would grant permission to appeal itself, or where an immediate permission decision has clear advantages. But in most cases it would be better for a decision to grant permission be left to this court as, apart from anything else, significant and avoidable costs may be run up by the parties having to prepare for a full appeal.

 

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ADMs apple

Posted on May 9, 2019 by suesspiciousminds

 

What happens when a Judge disagrees with an ADM?

 

Well, if the ADM decides the plan is adoption, the Judge just refuses the placement order, very simple.

 

What happens when the ADM decides the plan is NOT adoption and so there’s no placement order application, but the Judge thinks adoption is the right outcome? What then?

[There will be no apples in this post, I just needed a title.   I don’t believe anyone pronounces ADM as a word rather than three letters. Would love to hear from anyone who has been pronouncing it like “Adam” in Fonejacker style… But imagine the case really being about choice and temptation and consequences, if it makes you feel less tenuous]

The Court of Appeal in Re TS (Children)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/742.html

 

decided an appeal in which (bear with me)

 

The Judge wanted adoption

The Local Authority didn’t

By the time of the appeal hearing, the mother also preferred adoption to long-term fostering

The appeal was granted even though the Court of Appeal dismissed all five of the LA’s grounds

 

 

So, that’s something.

 

On 21st November 2018 at the ‘final’ hearing

 

 

 

 

4.In relation to the middle child, J, there was substantial dispute on the expert and professional evidence concerning his care plan. As is well known, the statutory scheme, to which I will turn shortly, requires a local authority to apply for a Placement for Adoption order if it is satisfied that the child ‘ought to be placed for adoption’ [ACA 2002, s 22(1)(d)]. The local authority cannot be so “satisfied” unless an agency decision-maker [“ADM”] has so determined.

 

 

5.During the course of the hearing the judge heard oral evidence from the ADM who had concluded that J’s welfare would best be served by a long-term fostering placement and had therefore not declared herself satisfied that J ought to be adopted. In reaching her decision the ADM had placed substantial weight upon the evidence of the local authority social worker which evaluated the attachment between J and his older brother B as being of importance.

 

 

6.The local authority, who sought to prioritise his relationship with the elder boy, B, who was his full sibling (in contrast to the younger child, K, who has a different father), favoured long-term fostering for J. In contrast, the evidence of an independent social worker who had been instructed to assess the children’s attachments to their parents and siblings, together with the children’s guardian, advised that J’s welfare required adoption, if possible with his younger half-sibling, K.

 

 

7.The judge, in a lengthy judgment, having reviewed all of the relevant evidence, moved on to conduct his welfare evaluation with respect to J. In doing so the judge applied the welfare checklist in CA 1989, s 1(3) together with the adoption welfare check-list in ACA 2002, s 1(4).

 

 

8.The judge concluded that the assessment of attachment conducted by the social worker was both superficial and “fatally flawed”. The judge stated that he “much preferred” the evidence of the independent social worker and the children’s guardian.

 

 

9.As the focus of this appeal is upon the consequences of the judge’s welfare determination, rather than its internal merits, and as the conclusion of this court is that the issues concerning J’s welfare now need to be re-determined by a different judge, it is neither necessary nor appropriate to descend to any greater detail.

 

 

10.Insofar as the ADM had based her assessment on the local authority social worker’s own assessment, which the judge had found to be flawed, for that reason, and for others identified by the judge, he concluded that the local authority should be invited to reconsider the care plan for J.

 

 

11.At the conclusion of his judgment, and following a full evaluation within the structure of the adoption welfare checklist in ACA 2002, s 1(4), the judge expressed his conclusion with respect to J (at paragraph 146) as follows:

 

 

 

“This has been the most difficult and most contentious part of this hearing. I am satisfied that J cannot be cared for within his birth family. The decision is then whether he should be placed in long-term foster care or given the opportunity of being placed for adoption. The local authority has not satisfied me that the current amended care plan for long-term fostering best meets his welfare needs throughout his life. Standing back, looking at the whole of the evidence and considering the arguments that have been advanced on each side, I reach the conclusion, that his lifelong welfare interest is best met by his being placed for adoption if possible and if that is managed with K, then that is the best outcome of all. It should be noted, that this was mother’s secondary position. I therefore invite the local authority, to reconsider their position in respect of J and to make a placement application. In the meantime, I will continue an interim care order with his remaining in the current foster placement until the case can be returned to me. I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent. If, the local authority do not take up that invitation, then the Guardian has already stated that she will consider the question of judicial review. That process is likely to cause further unwelcome delay for J’s plan for permanency. Therefore, care will need to be taken.”

12.The judge therefore extended the interim care order with respect to J for a short time to enable the local authority to reconsider its care plan for J

 

 

The ADM had been present for the judgment and was also provided with a note of it (the transcript hadn’t been obtained in time). The ADM still considered that adoption was not the right plan for the child and thus did not authorise a placement order application.  (There’s considerable complaint in the judgment that the revised ADM statement did not really grapple with the judicial criticism of the social work assessment and his conclusions about the sibling relationship, so hadn’t been a live reconsideration of the judgment, but just a  ‘we’ve thought about it, no’ response)

 

At the next hearing on 14th December 2018, which ought to have been a dialogue between Judge and parties as to “well, what next?” (i.e making the Care Order with plan of long-term fostering, or making further ICO to allow judicial review challenge, or asking ADM to think further about x y and z) instead the LA sought to appeal that judicial decision, and the Court granted permission, so nothing else really happened.

 

 

The LA submitted five grounds of appeal (which, spoiler, I already told you they lost on all of them but won the appeal)

23.In prosecuting the local authority’s appeal Miss Henke and Mr Rees rely upon five grounds:

 

 

 

i) That the judge erred in concluding that he was in a far better position than the ADM to determine the best outcome for J, rather than considering whether the ADM’s decision could be successfully challenged on public law grounds.

 

ii) That the judge erred in failing to reconsider his decision in the light of the ADM’s December witness statement which took account of the judge’s determination and which cannot be properly challenged on public law grounds.

 

iii) Parliament has given the decision to determine whether a child “ought to be placed for adoption” to the local authority rather than the Court.

 

iv) As the decision to apply for a Placement for Adoption order is one solely within the determination of the local authority, and as the ADM had reconsidered her decision in a manner that is not open to challenge on public law grounds, the judge was in error in continuing to refuse to endorse the care plan and make a final care order.

 

v) Given that the s 31 statutory threshold criteria were satisfied and the court determined that J could not return to the care of his family, the court should have made a final care order on 20 November 2018.

 

 

 

Broadly, the Court of Appeal say that the judicial decision that he wanted the LA to consider changing their care plan to adoption falls into line with the authorities on change of care plan generally or change of order to say, Care Order at home.

 

 

They cited the recent case of Re T 2018

 

46.More recently, in Re T (A Child) (Placement Order) [2018] EWCA Civ 650; [2018] 2 FLR 926, this court (McFarlane, Peter Jackson and Newey LJJ) considered a stand-off between a judge, who favoured placement of an 18 month old child with his grandmother, and a local authority which favoured placement for adoption. At the conclusion of the process in the Family Court, the judge had reluctantly concluded that a placement order should be made in the light of the local authority’s refusal to change its care plan. The grandmother appealed. The appeal was allowed and the case was remitted for re-hearing. After reviewing the authorities, and having noted that the judgment of Ryder LJ in Re W appears in ‘markedly more imperative’ terms than that of Thorpe LJ in Re CH 20 years earlier, Peter Jackson LJ, giving the leading judgment, continued:

 

 

 

“[42]     Although they touch upon the same subject, the decision of the Court of Appeal in Re CH (Care or Interim Care Order) [1998] 1 FLR 402 does not appear to have been cited in Re W. For my part, I would view the two decisions as seeking to make essentially the same point, though the tone in Re W is markedly more imperative. I particularly refer to the observations that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk (para [81]) and that a local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision (para [83]). I would agree with these propositions to the extent that the court’s assessment of risk is sovereign within proceedings and that a local authority cannot refuse to provide a service if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds. However, the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court’s assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court’s assessments. Or where, as in this case, there is an impasse, there may have to be an appeal. But in the end, experience shows that the process of mutual respect spoken of by Thorpe LJ will almost inevitably lead to an acceptable outcome.

 

[43]     It is clear from these decisions that the court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means. I cannot agree with the submission made on the behalf of the guardian – ‘some judges might have pursued the matter further with the agency decision maker, but this judge cannot be said to have been wrong not to do so’. As McFarlane LJ remarked during argument, that amounts to a lottery, depending upon the inclinations of one judge as against another. The obligation upon the court is not merely to make its assessment, but to see it through. That is a matter of principle, and not one of individual judicial inclination.

 

[44]     The present case is somewhat more complicated than Re CH or Re W. Here, as Ms Fottrell notes, the judge’s preferred plan was dependent upon a separate step being taken by the local authority within a different statutory framework. Without the grandmother being approved as a foster carer, it would not be lawful to place Alan with her under a care order. I therefore examine the law as it applies to the approval of connected persons as foster carers.”

 

And decided

 

 

 

 

48.Firstly, the approach of a court to a potential impasse with a local authority on an important element in the care plan for a child has been well established for over 20 years. Insofar as there has been movement, it has been in the direction of emphasising the role of the court during proceedings (see Ryder LJ in Re W), but, in like manner to the approach taken by Peter Jackson LJ in Re T (with whom I agreed in that case), I consider that when, as here, the focus is upon the care plan after the proceedings are concluded, there is a need for mutual respect and engagement between the court and a local authority.

 

 

49.The key authority in the canon of cases on this point is, in my view, Re S and W; subsequent authorities have confirmed the clear statement of the law given in the judgment of the court given by Wall LJ. Of particular relevance to the present appeal is the passage at paragraph 34:

 

 

 

“Had the local authority (as it should have done) accepted his invitation to reconsider after reading his judgment and then restored the case to the judge’s list, it might well then have been the case that the judge was faced with either making the care order sought by the local authority with its unacceptable care plan or making no order. But the judge had not reached that point, and was – in our view wholly properly – striving to avoid it.”

 

And at paragraph 35:

 

“There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child.”

 

 

I have a difficulty with this. On the one hand, yes, a Judge deciding the case must be able to say “I don’t like any of the options that are before me and I want further discussions about whether there may be another way forward”.   On the other, what then is the point of the Agency Decision Maker?

 

We all know in cases that the involvement of an Agency Decision Maker in deciding whether or not a Local Authority can apply for a Placement Order and have adoption as the plan for the child adds 2-3 weeks to the timetable and requires production of a lengthy document in the form of a Child Permanence Report. That’s because the statute and regulations set up a system whereby social workers could not themselves decide that adoption was the plan, it needed to be a plan which was supported by the Agency Decision Maker (earlier after the Adoption Panel heard the case but that requirement was removed around the time 26 weeks came into our thinking).

 

Well once the Agency Decision Maker is not a gate-keeper who decides whether an application is put before a Judge or not, why not just have a social worker make an application for Placement Order, and the Judge decide it?  You either have separation of powers or you don’t.

But the Court of Appeal here basically say that the Judge can properly and legally invite the LA and ADM to reconsider and ask them to put in a Placement Order application.  What happens when and if the ADM says no still (currently) remains unknowable.  Judicial review isn’t an easy solution here. Particularly if the ADM is making a decision with which others might not agree, but is not for judicial review purposes a decision that no reasonable ADM could ever take.

I think in part, that’s why the LA were arguing that unless the ADM decision of long-term fostering was ‘wednesbury unreasonable’ (a decision that no reasonable ADM could come to), then the Court should move on and consider Care Order against Supervision Order and no order, and put adoption out of its minds. The Court of Appeal reject that, and say the Judge was entitled to ask the ADM to think again.

 

 

The Court of Appeal, as I said at the outset, granted the appeal, despite rejecting all five of the LA’s grounds of appeal. And it was, in part, because the Court on 18th December granted permission to appeal rather than continuing the process (which seems (a) harsh on the Judge and (b) a bit have your cake and eat it on the part of the LA, who win the appeal because they wrongly persuaded a Judge to give them permission)

 

 

 

 

56.Although this is not strictly how the Local Authority formulated its grounds of appeal, I am driven to the conclusion that the judge was in error in conducting the December hearing as he did. No objection was taken to the point being put in this way, and I am satisfied that it was fully ventilated at the appeal hearing. In stating that conclusion I do not intend to be critical of the judge, who plainly found himself in an unwelcome situation and who may have been bounced into a speedy decision when the oral application for permission to appeal was made at the beginning of the hearing. There was, however, as I have stated, no basis upon which permission to appeal the November determination could have been granted. Further, it was, in my view, premature for the judge to hold that there was an impasse between the court and the local authority before he had undertaken a further evaluation process in the light of the ADM’s statement. If, as may have been the case, following such an evaluation the court were to conclude that the ADM had failed to engage with the judge’s reasoning, a further adjournment for reconsideration by the local authority may have been justified. In short, difficult though the situation undoubtedly was, the December hearing should have run its course rather than being terminated before it had really commenced by the grant of permission to appeal the November order. In coming to this conclusion I have the words of Wall LJ in Re S and W very much in mind:

 

 

 

“[43]     As will be plainly apparent from what we have already said, the judge in the instant case had not reached the point identified by Balcombe LJ in Re S and D. The local authority’s reliance on this decision is accordingly, in our judgment, misplaced.”

 

But the other basis for granting the appeal was this

 

 

57.Fifthly, and separately from any of the grounds of appeal raised by the local authority, I am concerned by the clear statement that appears in the judge’s November judgment concerning his approach were a placement for adoption application to be made:

 

 

 

“I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent.”

58.I consider that the father has made good his appeal on the basis that the judge was in error in stating a clear predetermined conclusion on the question of whether the parents’ consent should be dispensed with under ACA 2002, s 52 in the event that, in future, the local authority applied for an order authorising placement for adoption. Although it is plain that the option of adoption was very much on the agenda for the November hearing, given the opinions of the independent social worker and the guardian, no formal application had been made and the father had not expressed a view with respect to consent or been called to give evidence on the issue. Further, it is apparent that no submissions were made to the judge that went beyond the concept of adoption and expressly addressed issues of consent or the formal making of a placement order.

 

 

And so the case has gone back for re-hearing, and all of us have now learned that even where the LA don’t make an application for a Placement Order the Court can still ask them to reconsider after giving judgment at final hearing but before making final orders. That may be music to the ears of some Guardians.

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“…such obviously fallacious legal arguments”

Posted on April 17, 2019 by suesspiciousminds

 

 

The ever-continuing saga of the (imho misplaced) decision of the framers of the Children Act to express actual harm in the present tense rather than the past tense continues, and perhaps reaches its nadir in this case before the Court of Appeal, in which

 

pause, deep breath

 

a Judge was persuaded to summarily dismiss the application for a Care Order following a byzantine (and as quoted from the Court of Appeal ‘obviously fallacious’) legal argument that because the child was in a safe place at the time of issue and the LA could not say that at that date of issue the child ‘is suffering’ significant harm, the case should be thrown out

 

 

H-L (Children: Summary Dismissal of Care Proceedings)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/704.html

The threshold criteria expresses that

 

Section 31 (2)

 

A court may only make a care order or supervision order if it is satisfied—

 

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

This whole thing with the present tense was litigated to hell in the early 1990s, and it is astonishing to me that the Courts are still being troubled with it. The threshold is decided with reference to the “Relevant Date” and if one can prove that (looking back in time) at the Relevant Date the child ‘is suffering’ then the threshold is met. The Relevant Date will OFTEN BUT NOT ALWAYS be the issue date. Where the harm is neglect for example, and the child is at home, the LA will say that the child “is suffering” from that neglect at the date of issue. BUT, what happens where the child is no longer in the dangerous home at the time the proceedings start (they are with grandmother, or in foster care, or the risky adult has moved out) – well, in that case the Relevant Date is the date when those protective measures were put in place.

 

Jackson LJ opens the case with a background history that I can’t improve upon

 

1.A two-year-old child is examined by a hospital paediatrician. She is found to have about 20 bruises, including groups of bruises on the face, neck and arms that are in the doctor’s opinion highly likely to have been caused by forceful grabbing by an adult. There are three people who could be responsible: the mother, the father, and a non-family carer. The local authority is immediately informed and it begins child protection inquiries. The police also investigate. All three adults deny causing any injury. Plans need to be made for the child and for her six-year-old half-sister. The mother and the two fathers have different views about where the children should be placed.

 

 

2.A scenario of this kind would be familiar to any social services department and to any family court. Both agencies are given wide and flexible powers, mainly under the Children Act 1989, that they are under a duty to use to protect children and promote their welfare, while at the same time being fair to adults. Both agencies will recognise that a child that has suffered transient injuries may be more seriously injured over time and that other children in the household may face similar risks. They will also recognise that delay and inefficiency will work against the interests of the children and may well be harmful to them. Accordingly, on these facts the local authority will undertake a swift assessment and, on it becoming clear that the source of the risk has not been established, will take steps to ensure that proper plans can be made for the children. This requires an adjudication on responsibility for the injuries, something that can only be done by the court. The local authority will therefore issue proceedings to allow the court to reach a factual conclusion and to make any orders that may then be necessary. The court process should in all normal circumstances (and there is nothing particularly abnormal about these) be completed within the statutory period of 26 weeks, allowing the children and their family to move on with their lives on the basis of sound plans, built on the best possible understanding of what went wrong and how it might be avoided in future. That understanding is not only needed for the sake of these children, but also for the sake of any other children for whom the parents may in future be responsible.

 

 

3.Unfortunately, that is not what happened in the present case. Neither of the key agencies acted correctly. The local authority secured alternative arrangements for the children without having any legal standing for doing so, and it then delayed for three months in issuing proceedings, which it then pursued in what the court rightly described as a shambolic manner. For its part, the court departed from established case management practice and authority before striking out the proceedings in week 15 without conducting any investigation whatever into how the child came by her injuries. In doing so, it accepted and adopted a legal argument born of a profound misunderstanding of the basic statutory regime governing proceedings of this kind. During the lifetime of the proceedings the court did not make any statutory orders to govern the arrangements for the children, even to the extent of making the interim supervision orders requested by the local authority, being the least level of protection that the situation required.

 

 

4.The net result is that almost a year has passed since the child went to hospital without there being the smallest increase in our understanding of how she was injured. In the meantime, the children’s lives have continued on the basis of arrangements brokered (until the proceedings were dismissed) by the local authority without legal authority or (since the proceedings were dismissed) by the parents themselves. The process has been unproductive and substantial amounts of public money have been wasted on legal costs, along with the depletion of scarce professional time. The process has also been hard for the children, who have been separated from their main carer and from each other, and for the parents, who have been bewildered by the actions of the agencies. If there is any silver lining it is that they have to some extent become united in their bewilderment, so that their relationship with each other may be better now than it was before the events arose. It can at least be said that this case may be unprecedented, in that neither this court nor counsel appearing before it are aware of a previous instance, reported or not, of care proceedings being dismissed at an interim procedural stage against the opposition of the local authority and the Children’s Guardian.

 

 

It is easy to understand why the Judge was irritated at the two huge failings of the LA – first to remove the children from mum and place with dad without any proper agreement (and actually at the time dad was one of the possible suspects for the injuries) and second to delay for so long in issuing proceedings. That makes perfect sense to me.

 

The bruising was noticed on 13th May.

 

 

 

16.The local authority held a legal planning meeting on 28 May, when it was advised that the threshold for court proceedings was crossed. On 7 June an Initial Child Protection Conference took place and the children became subject of child protection plans. On 22 June the local authority held a legal gateway meeting at which it was decided to take the matter to court. On 9 July the social worker completed her statement. On 12 July an ‘intent to issue’ meeting was held. Despite that, it took the local authority until 23 August 2018 to issue care proceedings, seeking interim supervision orders in the short term and an expeditious fact-finding process.

 

 

17.A further consequence of the local authority’s delay in issuing was that the parents were not fully legally represented during the period of the delay. Nor did the children have a Guardian to represent them or monitor their situation. Also, the mother in particular was distressed at the children’s removal from her care, but was not given a forum in which she could readily challenge it

 

Things seem to have gone badly awry at a hearing on 1st November

 

 

 

 

24.Also at the hearing on 1 November, discussion started about the ‘relevant date’ for proving the threshold. The local authority had asserted that this was the date of the issue of proceedings, but counsel then vacillated by telling the judge that the relevant date was 14 May before returning to the pleaded case. For their part, counsel acting for Mr H and for the Guardian submitted that if the relevant date was 14 May, it was arguable that the threshold was not met since the children had been placed by the local authority with people with parental responsibility. This issue was taken up by the judge who, no doubt exasperated by the local authority’s approach, said: “I cannot think of any better way of expediting proceedings than the court concludes that threshold is not crossed and the application is dismissed.” There then followed this exchange between the judge and counsel for the Guardian:

 

 

 

 

JUDGE: … If 14 May is not the relevant date and the relevant date is the date on which the proceedings were issued, how does the Local Authority prove that on that date, either of the children were at risk of significant harm?

 

 

COUNSEL: … If the relevant date is the date of the issue of proceedings, then in my submission, the likelihood of significant harm for Lara flows from the risks that are posed by mother being within the pool of perpetrators.

 

 

JUDGE: At the time the proceedings were issued, Lara was in the care of her father… so, how could she be at any risk of significant harm?… I am intrigued, because this is a point that has never really been developed before… But it is a point that might actually be fatal to the local authority’s case.

25.The judge said there was a real question mark in his mind as to whether or not the local authority could possibly succeed, and something to be said for the court determining the issue on “a quasi-summary basis”. He therefore listed this issue and others for legal argument on 23 November and directed skeleton arguments to be filed. This led to the parties filing over 60 pages of legal submissions on this and other issues, something that I consider to be completely inimical to the scheme of the legislation. This whole sequence of events shows that the court had strayed from its mission, which was to seek to discover how a small child had received worrying injuries.

 

 

26.At the hearing on 23 November, Mr L (who, it will be recalled, had conceded in September that the interim threshold was obviously crossed) was represented by leading counsel, Mr Vine QC. It was by now common ground that the relevant date was the date of the issue of proceedings, avoiding any need to consider complex arguments about whether protective measures had been put in place in May that might have complied with the criteria set in Re M (above). I set out the core of Mr Vine’s argument, in fairness to the judge, because it is the argument he went on to accept:

 

 

 

 

“24. While the Local Authority now correctly identifies the ‘relevant date’ in their revised threshold document as being 23 August 2018, the date of issue of the application for care orders, it is not able to establish that the section 31 (2) threshold conditions were satisfied at that time unless it can establish Mr L as a possible perpetrator of Nina’s injuries… This is because, as at the relevant date, (a) Nina was already in his care, (b) the child protection plan was being complied with, in particular, the mother’s contact (certainly in relation to Nina) was being supervised, and (c) there was no need for a care or supervision order.

 

 

  1. If that is correct, there is no statutory basis for these public law proceedings, and if mother seeks to resume care of the children or unsupervised contact in a departure from the child protection plans, her remedy (absent judicial review) is to apply for child arrangements orders under s. 1 (sic). In that event, there would still be a role both for (a) fact-finding in respect of Nina’s injuries, and (b) Local Authority welfare evidence by way of a section 7 welfare report, but that does not mean that these proceedings should proceed on a flawed footing.”

27.At the hearing, there were lengthy exchanges between the judge and counsel then acting for the local authority. They included these:

 

 

 

 

“JUDGE:… I mean, the wording of the relevant provision of Section 31 is in the present tense, so it means that the court looks at 23 August and asks itself the question, is the child at risk of suffering significant harm as at that date, or has the child suffered significant harm as at that date.

 

 

COUNSEL: Well, we know in respect of Nina, that is right. She has suffered –

 

 

JUDGE: Well no, because she had suffered significant harm arguably back in May… and by the time you issued your proceedings, she has… effectively from the point of view of the Local Authority at that time been removed from the source of that danger, has she not.… I have a real conceptual difficulty at the moment with understanding how one can say as at 23 August 2018 the children were at risk of significant harm. I make no bones about it. I have had that difficulty right from when this case first came before me.”

 

And later:

 

 

“JUDGE: … So, does it come down to this then… or am I oversimplifying it, that the risk of harm as at 23 August, in fact stems from the fact that Nina is living with someone you now say was responsible for or may have been responsible for her injuries in May?

 

 

COUNSEL: Yes … Firstly, because of course you’re not just considering this father. Of course, section 31(2)(b) relates to ‘a’ parent… the mother is also in the pool of perpetrators –

 

 

JUDGE: But as at 23 August the child is not living with the mother… So the child cannot be at risk of suffering significant harm from anything attributable to the mother.”

 

Counsel for the local authority unavailingly pressed her case. She stressed that a dismissal of the proceedings would mean that there would be no determination of the issues. The judge, probably inspired by Mr Vine’s submissions, said that the matter could be dealt with in private law proceedings between the parents, to which counsel responded that this would lead to the “farcical” result that the local authority would then be asked to provide a section 37 report and “we are then back where we are now.”

 

Further exchanges included (in telescoped form):

 

 

JUDGE: … What you have done is… you have taken some steps, as the Local Authority thought, to protect children and then 3 months later, [you] issue proceedings and are now trying to argue that that the three-month delay is really immaterial…

 

 

COUNSEL … But it cannot be right surely just because we didn’t issue on 14 May that then we should have not gone on to issue with, as I say, the injuries unexplained to this child… And in looking at the risk of harm, one looks at the risk of harm presented by either of these parents, not both parents… one has to consider the risk looking backwards. That includes the injuries. It also then considers the risks going forwards, beyond those injuries, in as much as how it is that the parents are then preventing that risk of harm for that child going forward.… It’s a live risk that was still present then on 23 August. Whilst the child wasn’t in the mother’s care at that time, there is still the risk of significant harm because she was part of the pool of the unexplained injuries. It cannot be right that the court says, just because therefore the risk isn’t there because the child is not with the mother therefore threshold is not met.”

28.Mr Vine then pursued his written submissions to the effect that the threshold could not be established in Nina’s case, unless there was a real possibility of Mr L being responsible for the bruising. He relied on the case of Re C (above). He submitted:

 

 

 

 

“You can decide the case summarily. You don’t need to wait until the evidence has been tested if the propositions are not capable of being established, and you can exclude an issue.”

29.Counsel for the mother and for Mr H echoed Mr Vine’s submissions. Counsel for the Guardian expressed concern about the children’s position and distinguished the case of Re C, but did not squarely confront the legal issue of the threshold. By contrast, the Guardian’s submissions on the appeal crisply note that the proceedings had been dismissed without the Guardian filing an interim analysis, without the evidence of the paediatrician and without consideration of the risks that might be posed by the mother, regardless of the position of the fathers.

 

 

 

The Judge’s decision

30.In a reserved judgement given on 7 December, the judge dismissed the proceedings, and with them the direction for the paediatric report. He also amended the orders dated 10 October and 16 October “pursuant to the slip rule” by removing recordings that the court had found the s.38 interim threshold had been crossed and substituting recordings that the threshold had remained in dispute.

 

 

31.The judge described the case as “deeply troubling”. He expressed his concern about the local authority’s approach to the proceedings. He confirmed that he had kept the welfare of the girls in the forefront of his mind. They had gone from being with their mother and each other to being separated and living with their respective fathers and seeing their mother only for contact. He continued:

 

 

 

 

“11. … I am acutely aware that whatever decision I make today will not immediately improve their position and that, inevitably, there may be further delay before final decisions are made about their future.”

 

 

Father’s counsel stood by those submissions at the Court of Appeal hearing. It does not appear that the Court of Appeal found this a difficult appeal to resolve.

 

 

46.As will be apparent from what I have said above, and as we informed the parties at the end of the hearing, this appeal comprehensively succeeds. The judge erred in law by failing to recognise that the threshold for intervention was plainly crossed on the basis that at the date of the issue of proceedings both children were likely to suffer significant harm arising from the clear evidence about the very worrying injuries to Nina, for which one or other of her parents might, when the evidence was heard, be shown to have been responsible. He was in no position to prejudge that matter, and wrong to do so. It is a matter of regret that he should have been faced with such obviously fallacious legal arguments, particularly when advanced by leading counsel of Mr Vine’s standing. However, those arguments were clearly exposed as fallacies by counsel then acting for the local authority, and the judge should have given them short shrift. He should have affirmed that the threshold is to be approached from the perspective of the children, not from the perspective of the parents, one of whom may have been responsible for Nina’s injuries. He should have appreciated that delay in bringing proceedings, however lamentable, cannot of itself be determinative of the threshold. He should have realised that the fact that injuries are unexplained does not make them irrelevant, but rather raises an unassessed likelihood of future harm, aptly described in the local authority’s submissions to the judge as “a live risk.” Rather than seeking to cast doubt on the analysis undertaken by this court in Re S-W, by which he was bound and which was and remains authoritative guidance on the summary determination of public law care proceedings, he should have applied it. He should particularly have cautioned himself against terminating the proceedings when that course did not have the support of the Guardian, nor any written analysis from her. He should ultimately have seen the absurd impracticality of this unprecedented outcome, and the inappropriateness of private law proceedings as a surrogate forum for child protection. The injuries to this child cried out for investigation and the law, far from preventing it, positively demanded it.

 

 

47.For all that the judge’s task was made more difficult by the inadequacies of the local authority, courts have to work with the resources available to them. The sterile outcome in this case could easily have been avoided through normal case management procedures and loyal application of well-established law. Instead, the proceedings drifted with no strategic direction and a dissipation of energy on irrelevant issues, all greatly to the disadvantage of these children. They and the adults are entitled to a judicial determination of how Nina’s injuries were caused, and the directions that we now give will ensure that this happens as soon as reasonably possible. The order of 7 December will be set aside, so that the proceedings revive. The case will be allocated to another judge, by arrangement with Keehan J as Family Division Liaison Judge, and will be listed for an early single case management hearing at which it can be decided whether or not a split hearing remains appropriate and whether the direction for a further paediatric report remains necessary. We will also make an interim supervision order, to continue until the conclusion of the proceedings

 

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