Category Archives: case law

Rearrange these three letters – F, W, T

Posted on November 25, 2013 by suesspiciousminds

This is the private law case of Re C (A child) 2013, and frankly, the Court of Appeal missed a trick in not naming it Re (WTF?) 2013    (which also makes me pang for a Court of Appeal authority involving a child named E, where wind plays a major feature, so they can call it RE-E-Wind  – when the crowd say Bo, Selecta)

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1412.html

The case involves a five year old boy, C, who became the subject of residence and contact applications, his parents having separated.

  1. The order complained of was made in the county court on 6 March 2013 in Children Act 1989 proceedings issued by mother in March 2012. The order prohibited father from removing his son from the care of mother or from his primary school and provided for indirect contact between father and son in the form of letters, cards and small gifts. It follows that direct contact was refused. In circumstances which I shall describe the order was the culmination of a series of serious procedural irregularities which caused the decision to be unjust. The order was also wrong given that one of the irregularities gave rise to an assumption of alleged facts against father when the court had not conducted a finding of fact hearing and accordingly the judge’s welfare evaluation was based on what is said to be a false premise. 
  2. It needs to be understood that the allegations made against father are serious. The most serious of the allegations and the assertions of risk were not made by mother but by the Cafcass practitioner who was the family court advisor. The allegations have not been decided and nothing which follows in this judgment should be taken to minimise the risk that might exist if the allegations are true. Equally, if the allegations are not proved or the risk assessment is as a consequence or otherwise wrong, the child who is the subject of these proceedings and his father have been seriously failed.

The case peculiarly seems to have proceeded on the basis that allegations made about father had been proven by the Court, when in fact they had not yet been tested. That failing, which is bad in itself, increases when one realises that the main source of the allegations of risk was not one of the parties, but the CAFCASS officer who had been appointed to be the independent eyes and ears of the Court.

In fact, by the time the case got to a substantive hearing, the CAFCASS officer was refusing to visit the father at home, refusing to meet with him in the officer unless there was another worker present, was unable to complete the section 7 report and had become the complainant in criminal proceedings about father’s behaviour towards her.

The opinions that were being expressed by the Cafcass practitioner were not just in her role as a family court adviser independent of the parties. She was also a complainant in criminal proceedings. This court has come to the very firm conclusion that it was wholly inappropriate for the family court advisor to continue to act as the court’s advisor and the child’s ‘effective access to justice’ at a time when she was the complainant in criminal proceedings against the father. It was submitted to us that it is a regrettable fact that Cafcass practitioners are placed in positions of real conflict by complaints and threats made against them and that their priority must be to try and put that to one side and undertake their duties on behalf of children. We acknowledge that and the extraordinary work that they do in the public interest but there is a dividing line in terms of due process and conflict of interest that was crossed in this case. A criminal complainant cannot advise in a family case where the person accused by that complainant is a party.

 

(I’d suggest that one doesn’t need Basil Rathbone, Robert Downey Junior or Benedict Cumberbatch to help one in reaching that conclusion. How on earth can a CAFCASS officer be independent at that point?  That doesn’t mean that the Court have found that the CAFCASS officer was wrong or right in her complaints, just that by that point, she could no longer be assisting the Court in making recommendations about the child’s future – whatever was happening between her and the father had contaminated the independent nature of the role which is so integral to it)

However, she did continue, and prepared a report which understandably was not very favourable to father and considered that he presented an unmanageable level of risk.

 

 

  1. The report filed on 19 December 2012 was 19 close typed pages in length. It described detailed allegations of fact previously unknown to the court in terms which read as if the allegations were true. The reader is left in no doubt that the family court advisor believed the allegations to be true. At no stage was it highlighted that the facts had not been established by a process of fact finding in a family court. It is entirely unclear what facts father had conceded or might concede, which is not surprising given that he was not involved in the preparation of the report. The author described the risk in the case as being:

     

     

    “father’s lack of understanding of the impact of his offences on his child in relation to his risk taking behaviours, domestic violence, risk of possible child abduction; the father’s mental health and related issues, public disorder and so on.”

  2. A very detailed analysis of risk was conducted by the family court advisor with the benefit of input from professionals contacted by her during the preparation of her report. That included whether father’s mental health issues including suicidal ideation, depression and anger and his own social isolation were relevant (on the assumption they were accurately described). One of those professionals compared father with Raoul Moat (the panel beater, tree surgeon and bouncer with criminal convictions for violence who shot his ex-partner, killed his new partner and seriously injured a policeman in 2010). That was not only a professionally inappropriate comparison, it was presumably quoted in the report for maximum impact. Despite that, the author clearly indicated in her report that father’s “mental health status remains an un-assessed risk factor“. The report recommended the order made by the judge three months later. It did not recommend that a fact finding hearing should take place.

 

Okay, you are probably thinking by now that this case was something of a car crash – there are allegations being reported as though they were facts, the independent CAFCASS officer being the complainant in criminal proceedings about father and lurid comparisons of the father to Raoul Moat being made without much evidence.

Stay with me, it is about to get worse.

The Court of Appeal note that both parents were litigants in person, and though they were doing their best with the thorny process, were not able properly to highlight to the Court exactly how messed up things had become. The Court of Appeal describe the judicial handling of the case as ‘fire-fighting  – it may even have been quality fire-fighting, but it was not Case Management’

  1. On 21 December 2012 the proceedings were adjourned to a contested hearing because father did not accept the Cafcass recommendation. The first available date was on 6 March 2013 before a Recorder. There were no attempts in the intervening period to update any of the information contained in the Cafcass report, in particular about father and the risk that it is said he presented. Although both parents were given permission to file further statements the question of how father could or should respond to the serious allegations in the Cafcass report was not addressed, that is the key issues were not identified to be answered and a direction for a fact finding hearing was not made.

     

     

  2. Appointments of the type I have so far been describing take time, particularly where one or more of the parties are litigants in person as a consequence of the provisions of LASPO 2012. If the dispute is not immediately susceptible of conciliation or out of court mediation it will require a lawyer’s analysis. This is after all a court of law. In the absence of lawyers, the judge has to do that and to do that without assistance and sometimes with quite vocal hindrance. That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client’s interests. Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process. I do not criticise any of the judges involved in this case. Each was handed a case about which he or she knew nothing and given time only to deal with the most pressing issue or two that had arisen. That was fire fighting, it may even have been quality fire fighting but it was not case management.

 

So, we have a car-wreck with the CAFCASS officer, both parents are in person – looking back earlier the only statement from mum dealing with the allegations against dad was not actually evidence (it had no statement of truth) and the Judges who looked at the case were doing their best, but hadn’t really gripped it.

It still gets worse

On the morning of 6 March 2013, that is immediately before the contested hearing began, the family court advisor filed and served a 22 page document entitled ‘Chronology of Significant Events’. The court had not given a direction to permit such a step and so far as can be ascertained there was no advance notice of the same. The document was a detailed schedule of hearsay evidence that might have been appropriate if it had been directed by a court as a lawyer’s forensic summary of the allegations and materials that had already been filed. It was not a summary of the evidence filed unless it could be argued to be a record of the source materials for the section 7 report that was filed three months earlier. It should not have been admitted without argument and it was clearly highly prejudicial and of questionable probative value. It became the primary evidential document in the case, replacing the mother and almost everyone else who might have had something to say on a question of fact. The document was made available to father on the morning of the contested hearing that gives rise to this appeal.

So in the context of all I’ve previously said, the CAFCASS officer then turned up on the day of the hearing, against litigants in person, and ambushed them with a 22 page document, full of stuff that wasn’t actually evidence.

Does it surprise you that I am about to say – it still gets worse

  1. In that context, father made an application to adjourn the contested hearing. His primary purpose was to adduce up to date evidence about his mental health. He asserted that his treatment was susceptible of successful completion and that he would be able to demonstrate that with materials from the professionals involved. In addition and unknown to the family court advisor, the probation officer she quoted in good faith had been replaced sometime in 2012 and as this court now knows, the risk described by father’s senior probation officer who had detailed knowledge of father’s supervision was fundamentally different. In simple terms, his analysis was that father presented a low risk.

     

     

  2. It is not surprising that the judge who was new to the case was unimpressed by an application to adjourn given the lengthy delay there had been in getting the first contested hearing listed. Had she known that a fact finding hearing had never occurred she might have been able to find a constructive way to use the hearing to good effect and still afford father the opportunity to update the evidence about risk and to fairly deal with the family court advisor’s materials.

So father wasn’t given his adjourment, to deal with the ambush that he’d been hit with. And the Court didn’t properly appreciate that the allegations being thrown at him were untested allegations rather than determined facts.

What do you think? Does the next bit make it better or worse? Place your bets ladies and gentlemen.

  1. The hearing then commenced. The mother did not give evidence to substantiate her allegations and was accordingly not questioned by anyone. As a matter of pure technical form, her document of 12 August 2013 was never admitted into evidence. There was therefore no evidence from mother for father to meet and he was accordingly afforded no opportunity to test the direct evidence of domestic violence. The only evidence came from the family court advisor. As I have remarked, she treated the allegations as fact. She gave evidence based upon her report and her substantial chronology, that is hearsay evidence about the facts in issue as well as reported opinion from other professionals and her own opinion. I do not say that this was entirely inappropriate. It is appropriate for a family court advisor to identify the facts or alleged facts she has relied upon and the opinions of others that she accepts or adopts in coming to her own opinions and recommendations. She is after all a qualified social worker whose skill and expertise are those of an expert in that field. That said, had a fact finding hearing been held, third hand hearsay evidence of facts in issue might not have been given great weight in the absence of the evidence of mother or a concession from father.

     

     

  2. I do not ignore the possibility that an alleged victim of domestic violence from an allegedly over controlling or dangerous perpetrator may need considerable support to give her evidence. At the very least it should be established just what evidence she is able to give and an appropriate opportunity should be given to the alleged perpetrator to challenge that evidence. That could have been done by case management or, as I shall describe, by a more inquisitorial process that protected the interests of all involved. What was not acceptable in my judgment was the presentation of facts that were in dispute as if they were decided. The judge who heard the case (and who would have had no knowledge of it before she walked into court on the morning) was entitled to know that contrary to the impression given this was a fact finding hearing where the facts were in dispute. The hearing that was conducted was accordingly not a fact finding hearing, it was a welfare hearing which heard about the severe risk that it was said father presented to mother based upon facts that had never been tested let alone determined by a family court.

Oh God… and just when you think that I must be finished, and things could not possibly have got any worse

To add to the air of unreality the family court advisor gave her oral evidence from behind a screen. Special measures in a family court are not fixed by primary or secondary legislation as they are in the Crown Court. They can however be used in a similar way and for similar reasons. They are a means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence is not damaged by their vulnerability. Children who give evidence often do so with the assistance of special measures such as a video link. It is not inconceivable that a professional witness might need the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity) [2002] EWCA Civ 1626, [2003] 1 FLR 329 at [13]. The mischief in this case is compounded by the fact that the family court advisor gave her evidence as an officer of the state behind a screen rendering her effectively anonymous and unseen and she was afforded that facility without due process. If it was said that such measures were necessary that should have been on application to the court on notice to the father and to the mother and full reasons should have been given. There was no such application and if there was neither this court nor the father were aware of it and there is no record of any determination. There is no order. It should not have happened in the way that it did.

 

Scroll back, read that again  – the CAFCASS officer gave her evidence from behind a screen.

Re WTF 2013

Needless to say, the father won his appeal against the order – he was fortunate that he realised, or got advice, which showed him that (as the Court of Appeal said) he had been denied Natural Justice at almost every stage of the process, and the final decision was fundamentally flawed in almost every regard.

 

The Court of Appeal give some useful guidance  for management of cases involving litigants in person (this can only be aimed at Judges, since there’s no prospect of LIPs being aware of this case, never mind drawing judicial attention to it)

  1. I have intimated that a more inquisitorial process may help those judges who need to deal with very difficult cases involving litigants in person where emotions can run very high. At the hearing at which the section 7 report was first available there was an opportunity for detailed case management. In less fraught cases this is often a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings. That was the latest of the various hearings at which the key issues of fact and opinion could have been identified and if not resolved, described on the face of an order so that the parties and the court would have been clear about the purpose of the contested hearing. Directions could have included providing short answers to the key issues identified and up to date materials which would have avoided father’s last minute adjournment application and his successful application to this court to adduce additional evidence.

     

     

  2. At the hearing and given that it would have been clear whether the key issues included the need to make findings of fact, the judge can control the process to ensure that it is fair. Having been sworn, each party can be asked to set out their proposals and to confirm their version of the disputed key facts. They can then be asked by the judge what questions they would like to ask of the other party. Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own questions and ask each party the questions that the judge thinks are relevant to the key issues in the case. It may be appropriate to give the parties the opportunity to give a short reply. In that way the issues can be proportionately and fairly considered. 

     

  3. At the conclusion of the hearing before us it became clear that separate proceedings under the provisions of the Family Law Act 1996 had been commenced by mother without notice to father. This court has not had the opportunity to scrutinise that process. Yet another judge is involved but directions have been given in those proceedings for the facts in issue to be identified and resolved. Given that this has led to detailed witness statements being filed by the parties, we shall direct that any further directions in those proceedings be listed before the same judge who is allocated to determine the Children Act proceedings. 

     

  4. The problems which have complicated this case are hopefully rare. The solution is to use the processes of the court to better effect. The family court is a court of law not a talking shop. No matter how much its judges will strive to obtain safe agreements between the parties, its rules, practice directions and forensic protections are for a purpose – to do right by all manner of persons, without fear or favour, affection or ill will.

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When parents aren’t parents

Posted on November 23, 2013 by suesspiciousminds

The unusual features of Re BB (A Minor) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2747.html

It is not unusual within care proceedings to be arguing whether a child’s parents are good parents, or whether they could be brought to the point of being good parents. It is not THAT unusual to be arguing about whether one of the parents is, in fact, not a birth parent of the child and that paternity lies elsewhere. It is pretty unusual to be arguing that NEITHER person claiming to be the child’s parent is in fact their parent.

That’s what happened here. The parents claimed that the mother had had a child in Ghana in 2006, and then that the father brought that self-same child into this country in 2010.

The immigration officers, however, had concerns that he appeared to be older than his given age. UK Border Agency records produced for these proceedings show that F asserted in the course of interviews with immigration officers that B was then five years old and he had been in the womb of his mother for twelve months and had always been big for his age ever since

When the child went to primary school, professionals became concerned that he was much older than his documented age, a paediatrician who examined him when he was ostensibly aged 5 instead concluded that he was 10.

Care proceedings began, no doubt with a view to getting to the bottom of all of this.  DNA testing showed that neither parent was the biological parent of the child. There was a suggestion that the child might be related to the father in some other way.

 

All of this was problematic, since the child had been brought into this country by deception, and that deception rendered the decision by the UK Border Agency to allow him in null, thus meaning that he was here illegally and could be removed from the country, through no fault of his own.

    1. Pursuant to a further direction of the court, the parties then obtained an opinion from counsel specialising in immigration law to advise on the immigration status of F, C and B in the light of documents produced by the UK Border Agency under the earlier direction. In her report dated 25th February 2013, Ms Catherine Cronin, counsel, advised that the deception perpetrated to bring about B’s admission to this country tainted any immigration applications made by or on behalf of C and B. The deception rendered B’s entry into this country illegal and as such he was liable to be removed from the country. Furthermore, the deception provided the UK Border Agency with grounds for refusing not only the application for further leave to remain but also curtailing any leave which had already been obtained as a result of the deception. In addition, Ms Cronin pointed out that criminal offences may have been committed. If the evidence shows that F had been complicit in the deception, then it was possible, advised Ms Cronin, that his British citizenship granted on 1st May 2012 might be in jeopardy Recent amendments to the British Nationality Act 1981 allow the Secretary of State to deprive a nationalised British citizen of his acquired citizenship if satisfied that “deprivation is conducive to the public good.”

 

    1. On the other hand, Ms Cronin advised that immigration courts recognise that children should not be punished for the actions of their parents or their carers and that their welfare and best interests, whilst not determinative of an immigration application, are regarded as important and primary considerations. In this respect, Ms Cronin drew attention to a number of authorities and in particular the decision in Nimako-Boateng [2012] UK UT 00216 in which the upper tribunal stated inter alia:

 

“The problem facing immigration judges is that, although they must attach weight to the best interests of the child, in many cases they will often not be able to assess what those best interests are without the assistance of a decision of the family court. The family court has, amongst other things, procedural advantages in investigating what the child’s best interests are independent of the interests of the parent as well as the necessary expertise in evaluating them. An informed decision of the family judge on the merits and, in some case at least, the material underlying that position is likely to be of value to the immigration judge.”

    1. Further to that advice from Ms Cronin, the parties, with the court’s permission, obtained a report from an expert in Ghanaian law, Professor Kofi Koufuor, who advised that the practice of not registering births in Ghana was still very common although registration of deaths was now much more a matter of routine.

 

  1. As this hearing approached, a particular concern was identified by the local authority and the guardian about how B was to be informed of the truth as to his paternity and age. This process was delayed unfortunately by reason of the ill-health of the guardian who was in due course advised to stand down and has been replaced by another guardian. Eventually a meeting was arranged to take place on 17th April at which the social worker and the guardian were due to speak to B. According to F and C, however, they were unaware that this meeting was to take place. Prior to the meeting F warned the social worker that B would not believe her if she told him about the DNA test and would only believe it if he told B himself. When the social worker and the guardian spoke to B and told him that F and C were not his parents, but that it was more likely that F was his brother, B indeed replied, “I don’t believe you,” and maintained that position throughout the interview.

 

Findings were sought on the following issues :-

(1) how old is B; (2) to what extent have F and C been deceptive as to his age and paternity; (3) has B suffered any significant harm as a result of this deception or, more generally, as a result of the care provided by F and C; and (4) what is the likelihood of B suffering significant harm in the future as a result of the deception perpetrated by F and C and/or their general care of him?

 

On age, the Court determined that B was 14 years old, having been born in April 1999  (some seven years older than the parents, at the time of the hearing, claimed)

The parents had lied about his age and paternity and blurred such memories as the child did have, causing him significant emotional harm. The Court were scathing about that, whilst accepting that for B, the best thing would be for him to live with F and C under a Residence Order and for them to be honest with him in the future.

    1. I find that the deception perpetrated by F and C has caused B very significant emotional harm. I accept that their physical care of B has been good. I also accept that they may have acted with good motives if it is the case that B’s mother died and they agreed to take on B’s care but, because of their extreme deceitfulness, I cannot make any finding to that effect. Other more sinister explanations for their behaviour are equally tenable. Once again, however, I avoid speculation. I am, however, very clear that by pretending that B was someone he is not, by pretending that he is much younger than he really is, they have caused B significant emotional and psychological harm. On the balance of probabilities I think it more likely than not that to some extent they have involved B actively in that deceit but I cannot make any detailed findings about the extent of his involvement. More may become clear about that in due course. To deny a child his true identity is likely to cause very considerable emotional and psychological damage, particularly when, as here, it is probable that he has a memory as to his true identity. The extent of the psychological damage is unclear because, as yet, there has been no psychological assessment, but I think it is almost inevitable that B will require at least counselling and possibly psychotherapy to help him deal with the difficulties he now faces.

 

    1. It is important to stress in this context that the harm does not end with this judgment. I accept the unanimous recommendation of the professionals that it is in B’s interests to remain in the care of F and C under a residence order. To uproot him from the home where he has received a generally good standard of physical care and where he is settled and where he is settled at school would not be in his best interests but that course brings with it certain acute and persisting difficulties. Unless and until F and C start telling the truth about his background, the true narrative of his past life, which starts with this judgment, will continue to be distorted by the lies they have told. That will merely add to B’s emotional and psychological harm and may in due course promote a crisis.

 

  1. There is a further factor that complicates this picture. The false account that F and C have given concerning B now jeopardises the immigration status of all three individuals as explained by Ms Cronin in her advice to this court cited above. That jeopardy is likely to influence the course that F and C now take. Their position is, frankly, very difficult and as a result B faces the possibility that he will now be deported. I accept Ms Cronin’s advice that there may be ways in which the situation can be salvaged for B but there is no guarantee that that will happen. For all these reasons there is a strong likelihood, in my view, that B will continue to suffer emotional and psychological harm for the foreseeable future.

 

The Court also made a Supervision Order.  Sadly for my inner law geek  (my inner law geek is just millimetres below my outer exterior, to be honest) the Court did not debate this interesting question.

s31 (2) of the Children Act 1989 sets out the threshold criteria – the test that must be crossed if a Court is to be able to make a Care Order or a Supervision Order

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.

 

The significant harm here is not in doubt, there’s a clear judgment about the emotional harm that lying to a child about his age, background and identity and seeking to conceal that from those around him would cause, and it would not be reasonable to expect a parent to do this.  But this couple were not parents. Is there an implied link in that ‘reasonable to expect a parent to give to him’ which means that the harm or likelihood of harm HAS to flow from a parent.  (Admittedly that can often take the form of the parent exposing the child to, or failing to protect the child from, AN ADULT other than a parent who harms him).  But here, whoever B’s parents were, it wasn’t them who harmed him, but the people who took on a parenting role.

It is very legal nit-picky, but that’s who I am.  In previous cases, I have seen the harm established as a result  the PARENT  exposing the child to or failing to protect from the adult who did harm the child, or in the cases where the injury might have been caused by a child-minder, either exoneration of the parents (if they could not have predicted any risk) or a Lancashire finding (if the parents could not be excluded)

If there IS no implied link between significant harm and it being the parent who caused it, can significant harm (for s31 purposes) be caused by the child being at school and a teacher hitting or molesting the child? My heart says no, that unless there was a failing on the part of the child’s parents, whilst the child has undoubtedly been significantly harmed, the ‘harm being attributable’ limb is not made out.  But a case like this makes me wonder a little.

[I think that the Court could have said, for example, to all extents and purposes, these people behaved as though they were parents, and will be treated as such for the purposes of s31 (2)  – it is their actions in being his primary care-givers that places them in the context of ‘parents’]

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The leave to oppose Tsunami

Posted on November 23, 2013 by suesspiciousminds

 

As anticipated,  since Re B-S showed practitioners that the historically high (perhaps even insurmountable) test for leave to oppose adoption applications had been too high, and too heavily weighted in relation to the factor of potential disruption to the child in placement, the appeals have started to come in. I understand that Ryder LJ has already spoken of a “tsunami” of appeals which are heading towards the Court of Appeal.

Here are two :-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1481.html

Re L (Leave to oppose making of adoption order) 2013

The Placement Order had been made in Feb 2012 and the child placed with adopters in March 2012 (so we are getting on for a year and a half in placement). As the Court of Appeal observe, an unusual feature of the case is that the adopters had separated in the course of that placement – somewhat peculiarly they were jointly pursuing the adoption application though had not decided between themselves who the child was to live with. Early on in the court proceedings the prospective adoptive mother dropped out, leaving Mr X as the prospective adoptive father to carry on with the adoption application as a sole carer.

 

The Court of Appeal considered that the trial judge had not properly weighed the ultimate prospects of M succeeding in her application given the backdrop of uncertainty and change in the prospective adopters situation.

 

    1. When a judge considers a parent’s prospects of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make, having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.

 

    1. The judge deciding the adoption application would need to approach the hearing bearing in mind what McFarlane LJ said in Re G (supra) about the dangers of a linear approach to decision making in child care cases. He would have to make “a global, holistic evaluation of each of the options available for the child’s future upbringing” (Re G §50) before determining what would serve the child’s welfare throughout his life. In the present case, the strengths and the weaknesses of M’s situation would have to be considered in isolation, as would the strengths and weaknesses of Mr X’s situation, and, as McFarlane LJ said in §54 of Re G, each option would have to be “compared, side by side, against the competing option”. This exercise would have to be carried out remembering that adoption is only to be imposed where that is necessary, as the Supreme Court underlined in Re B [2013] UKSC 33.

 

    1. An option that might appear not to be in a child’s interests in one context might, by this process of global, holistic evaluation, carry the day in another context. Here, M’s case that she would be able to care for S, or alternatively that there should at least be a further assessment of her ability to do so, would not fall for consideration, as is usually the case, alongside a settled and stable adoptive placement which had been going on for some time. The competing option would involve an adoptive household which has been subjected to protracted disruption and uncertainty which is yet to be completely resolved. First, there was the separation of the adopters, then the change from a joint adoption to an adoption by Mr X on his own, with Mrs X withdrawing from S’s life completely. Mr X’s new relationship and the anticipated baby changed things again and there still remains the outstanding dispute over where Y will live. Even once that is resolved, it will no doubt take some time for the X family as a whole to learn to live with the consequences of these extensive changes. That there is uncertainty in both options, not just in M’s situation, may turn out to be a very important feature in determining what will serve S’s welfare throughout his life.

 

    1. It seems to me that where the judge went wrong was in failing to consider whether the uncertainty in the adoptive household might improve M’s prospects of success and to make allowance for that. Putting it another way, what I think was missing was a consideration of M’s present position in the context of the disruption and uncertainty in the X household.

 

    1. Although he went as far as contemplating that the adoptive placement with Mr X would not ultimately succeed, the judge dealt with that possibility by making the assumption that, in those circumstances, S would be moved by the local authority to carers whose parenting abilities were at least good enough and probably better than good enough (§56) and that, although there may be delay whilst they were identified, S would be cared for meanwhile “either by approved foster carers or by potential adopters known to have adequate parenting skills” (§59). Even if not entirely apposite to the legal situation arising here, one question that might at least have generated the right sort of consideration is whether, in the event that Mr X’s adoption application were not ultimately to succeed, as the judge contemplated was possible, it may in fact be appropriate to pursue further the possibility of a placement with M rather than S being placed forthwith by the local authority with an alternative adoptive family as the judge assumed would happen.

 

  1. I do not think the judge can be criticised for being cautious about a return to M on the evidence as it stood. He said that it would be “experimental” and did not think it likely to succeed (§57). However, he appears to have been looking for quite a high degree of present certainty in this regard, speaking for instance of M being unable currently to “satisfy” the court of her abilities (§58). The degree to which a court needs to be confident about a parent’s abilities at the section 47(5) stage is likely to vary, in my view, depending on the other circumstances of the case and I say a little more about this in the final paragraph of this judgment. Where the other option under consideration also has significant uncertainties, a lesser degree of confidence may sometimes justify the granting of leave and it seems to me that that was so here. In such circumstances, it may also be that greater allowance might be appropriate for the fact that there has not been an opportunity for the evidence to be tested (both that in favour of M and that which may undermine her case).

 

NOTE that this case didn’t get sent back by the Court of Appeal for re-hearing (i.e the judgment needed work) but the Court of Appeal instead granted the leave, and the contested adoption hearing will therefore take place. (That’s a step farther than Re W – though that case clearly laid the foundations for the Court of Appeal making such a decision). The Court also emphasise that although the impact on the placement isn’t as heavy a consideration for the second stage (the welfare decision) as previously considered, the stability and duration of the placement could be weighed in the balance when determining the solidity of the mother’s application (an otherwise solid application could flounder on that particular dimension)

    1. Nothing that I have said in this judgment should be taken as any indication of a view of the ultimate strengths and weaknesses of Mr X’s application or (apart from the preliminary determination necessary for section 47) of M’s case. The evidence is not yet complete either in relation to Mr X’s circumstances or M’s, and none of it has yet been tested.

 

  1. I would like to add a final few words of more general application than just this case. I am very conscious of the difficulties inherent in applications under section 47(5). The relationships and hopes of not just one family but two are imperilled and the material upon which the decision has to be taken is, of necessity, often far from complete and not infrequently has not been tested in a hearing with oral evidence. I have not intended in this judgment to be prescriptive as to the way in which such applications are handled by the expert family judges who resolve them with skill and sensitivity. Each case depends upon its own facts and the circumstances of individual cases vary infinitely. Where, for instance, a child has been placed with adopters for a protracted period, is well settled, and remembers nothing else, a court may well take the view that there has to be a degree of confidence about the parent’s ability to provide a suitable home for the child before it can even contemplate assessing the parent’s prospects as solid. And the cases show that the overall circumstances of the case may be such that the court may decide not to grant leave even where there is some confidence in the parent. Re B-S was an example of a mother who had achieved “an astonishing change of circumstances” (Re B-S, §3) but did not get leave to oppose adoption because of the situation of the children (ibid, §102). Re C (A Child) [2013] EWCA Civ 431 was a case of a father who could have provided for the child’s physical needs but failed to get leave where the child (who was by then 4 ½ years old) had been settled with the adopters for over 2 years and had no relationship at all with him. At the other end of the spectrum, there will be cases in which the evident deficiencies in the parent’s case are such that, notwithstanding the existence of uncertainty or other issues in relation to the adoptive placement, the parent’s case is not solid enough to justify the grant of leave to oppose.

 

[It is interesting of course that two years of placement was considered this year, by the President no less in Re C, to be quite a clear cut-off point beyond which the Court would not possibly tamper with the placement, and six months later an 18 month old placement seems to count for very little : “ C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?“: )

The next one, the Court of Appeal dismissed the appeal – so one looks for clues and guidance within it

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1480.html

Re D (Leave to oppose making of an adoption order) 2013

The child had not lived with mother since May 2011, and Placement Order was made on 18th May 2012, placement with adopters Sept 2012  (note, six months LATER than in the appeal above that was granted)

The original court was satisfied that there had been a change of circumstances on mother’s part, thus satisfying the first limb of the two stage test, but decided that the circumstances did not justify reopening the case. Fairly naturally, in the light of the jurisprudence in the latter part of this year, the mother appealed.  In fact, she got silked-up (which suggests that public funding MIGHT have been obtained for her, would be interested to know that)

The appeal was effectively on the Re B-S, Re G and Re W grounds, that the Court had not properly weighed the mother’s prospects of success (which don’t have to be for return, they can be in persuading the Court to NOT make the adoption order), that the positive aspects of an alternative to adoption and the negative aspects of adoption had not been properly weighed.

    1. Although Judge Caddick in the present case did not use the word “solidity” in connection with his assessment of M’s prospects of successfully opposing the adoption, that was clearly what he was looking for, finding it lacking as we can see from his statement that it would be “highly improbable” that the court would say the position was sufficiently different to enable M successfully to oppose the adoption application.

 

    1. Was he wrong to assess M’s chances in this way and/or did he fail to demonstrate in his reasoning how he arrived at this conclusion, as Ms Connolly said?

 

    1. In answering this question, it is important to read the judgment as a whole. As the court observed in Re B-S (see §74(ii)), the question of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave are almost invariably intertwined and so they were here. The position that the judge reached, as he said expressly in §18, was that there had been a change in circumstances but that there were also features of the period following the making of the placement order which weighed against the progress that M had made, three in particular being identified in §§18 to 26 of the judgment. The judge’s concern about these was that the offence in June 2012 and the incident in February 2013 in particular indicated remaining immaturity on the part of M; in my judgment he was entitled to take that view, even allowing for the difficult circumstances in June 2012. HHe He rightly put these events into the context of M’s previous immaturity and, although he could perhaps have reasoned this stage in his decision making more fully, we can see, I think, from §38 that, quite independently of the question of how L would be affected by delay and/or the disruption of her placement, he concluded that the overall picture was such that M was unlikely to be able to establish that her position was different enough to persuade a court that it was in L’s interests to be placed with her. He had the particular advantage of having heard M’s oral evidence in which the events since the placement order were explored and it seems to me that he was entitled to arrive at this assessment, which deprived the M’s prospects of the necessary solidity.

 

    1. It was entirely appropriate that the judge should consider L’s circumstances and those of the adopters. Re B-S underlines that what is paramount in adoption decisions is the welfare of the child throughout his or her life and that it is important for judges not to attach undue weight to the short term consequences to the child of giving leave. It does not, however, say that even short term consequences for the child are completely irrelevant and they certainly are not. Similarly, Re B-S recognises that in some cases the adverse impact on the prospective adopters, and thus on the child, is something which may have considerable force (§74(ix)) although equally it is important that undue weight should not be given to the argument for the reasons set out in that paragraph.

 

    1. I do not accept the argument that the judge omitted to consider, or to give proper weight to, the benefits to L of being brought up by her own mother. That vitally important factor is recognised in §37 of the judgment, albeit in quite short form and without express reference to the provisions of section 1 of the Act. It was also stressed in the passage which, in directing himself on the law, the judge cited from Re P, which concludes with a statement that the paramount consideration of the court must be the child’s welfare throughout his or her life. As I see it, the core of the judge’s decision was that he just did not consider that the changes in M (for which he properly recognised she should be commended) were going to be sufficient to enable a court to conclude that she could bring up L at the present time.

 

  1. I have not been persuaded by the arguments so cogently advanced on M’s behalf that the judge erred in his approach to this case or failed to set out his reasoning for his decision sufficiently. I would accordingly dismiss the appeal.

 

As seems to be happening a lot in the latter part of this year, the decision then turns on the precise detail of the judgment, rather than principles which can be extracted. In Re B-S, the Court of Appeal felt that the judgment was robust enough, in Re W, they didn’t. In Re L they felt the judgment was wrong, in Re D, they didn’t.  {Comparing these two cases, in one the change was qualified by later blips  – Re D, the other wasn’t – Re L, and in one the placement was stable and secure – Re D, and in the other it was rather more uncertain Re L – so even without the judgments, one gets some sort of flavour of the task faced by mother}

I am beginning to wonder whether the publication, in anonymised form, of the original judgment ought to be considered with such appeals. Where the appeal turns on the quality and wording of the judgment, and Judges up and down the country need to know what “passes” and what “fails” it might be helpful to see them in full.

 

 

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“I’m Batman”

Posted on November 16, 2013 by suesspiciousminds

 

This will now be the fourth time I’ve written about this particular case,  you may recall that it involves a family whose relationship with their daughter broke down and she came into care voluntarily as a result of being beyond parental control. The parents obtained a judgment in which the Court found that their complaints of being treated badly by the LA and being marginalised and excluded were made out, though the Court went on to make a Care Order believing that the better option of wardship was barred to them.

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

The Court of Appeal then ruled that it wasn’t and wardship was made.

The case I am most pleased about this year

The parents were then asking the Court whether they could speak out in public about the case – providing that they did nothing to give away the identity of themselves and the child.

 

(You may remember, it was my clunky Batman analogy – the parents wanted to say in their interviews that the published judgments were about them, using the alias in the published judgments but not give their real name – i.e they could say “I’m Batman” but not  “I’m Bruce Wayne, and I am also Batman”)

“Rubric’s cube”

 

Okay, so the Court now finally have said that they can indeed say  “I’m Batman”   – their faces would need to be either silouhetted or pixellated but they don’t need voice-changing technology. I think it is important for family justice that in a case where the Court have found that the State got things wrong, that this gets properly aired, and those concerned ought to be able to tell their story, so I think it is a good thing.  (unlike Re J, where there was not yet any published context to ascertain whether the parents huge sense of injustice and aggrievement was justified by bad treatment as opposed to being a natural human reaction)

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B21.html

 

There’s even a fifth judgment, which deals in part with the wrangle that the parents had to obtain the therapy that their daughter so clearly needed.  If you have seen the title of the case and got excited that it is a ‘compelling the LA to fund therapy’ case, it isn’t.  Firstly this is wardship, and secondly the LA had agreed to be bound by the Court’s views – it was about who was to provide that therapy (the organisation supported by the psychologist and parents, or the one supported by the LA), the LA lost that argument too, but to their credit agreed to be bound rather than sheltering behind technical arguments about the court’s powers.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B20.html

 

Having played a microscopic part in all of this, I am very pleased for these parents, who have had a long and gruelling journey to get justice and the help that their daughter so badly needs and have finally done so. I hope that some of the principles they have fought for may help others.

 

And in a final flourish – Bale is amazing, obviously, but against all the odds, wimpy Michael Keaton delivers THE line better than anyone could have expected.

 

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Pure and Simple – the Court of Appeal attack hearsay

Posted on November 14, 2013 by suesspiciousminds

 

 

To clarify, the Court of Appeal did not attack the manufactured flash-in-the-pan pop sensation that was Hear’say, who deserve it merely for the superfluous apostrophe.  

[In their defence, the band produced not only Kym Marsh who has been ace in Corrie, Myleene Klass who was top viewing on I’m a Celebrity, but also their reject pile produced Jessica from Liberty X, a major factor in keeping Kevin Pieterson happy and in good shape to thrash the Aussies at cricket in the upcoming Ashes series]

 

No, this is really about  Re W (Fact Finding : Hearsay) 2013, and hooray for a meaningful title AND a Court of Appeal case that is not about bloody placement orders.

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1374.html

For the real people who read this blog, here’s a quick illustration of what hearsay means

 

  1. Kevin Pieterson goes into the witness box and describes how he watched Ian Bell hit a six right over the head of Mitchell Johnson  (direct evidence, no hearsay)

 

  1. Matt Prior goes in the witness box and describes how Kevin Pieterson TOLD him about seeing that six.  (That’s direct evidence that KP SAID it, but only hearsay evidence that Ian Bell did actually hit the six) 
  2. Graham Swann (swanny!) goes in the witness box and says that Matt Prior told him (swann)  that KP told him (prior)  that he (KP) had seen Ian Bell hit a six   (that’s now getting very removed from someone who can say whether Ian hit that six, and is hopeless at establishing whether it happened or not. Hearsay pure and simple)

 

 

 

In crime, there are complicated and technical rules on when hearsay evidence is admissible and when it is not. That’s why we family lawyers put those thick Law of Evidence tomes into cardboard boxes, scotch-tape them shut and put them in the attic as soon as our exams were over.

 

In family law proceedings, hearsay evidence is generally admissible

 

  1. There is a great deal of authority on the subject of hearsay evidence in cases concerning children. I will list below the authorities that were cited to us as of particular relevance to the issue but we were not asked to revisit them or to venture any general guidance, the appeal being approached with commendable practicality on the basis that the judge erred in the way in which she treated the evidence in this particular case. The authorities were: Official Solicitor v K [1965] AC 201; Re W (Minors)(Wardship: Evidence) [1990] 1 FLR 203; R v B County Council, ex parte P [1991] 1 FLR 470; Re N (Child Abuse: Evidence) [1996] 2 FLR 214; Re D (Sexual Abuse Allegations: Evidence of Adult Victim) [2002] 1 FLR 723; Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773; H v L [2006] EWHC 3099 (Fam); B v Torbay Council [2007] 1 FLR 203; W (a child) [2007] EWCA Civ 1255; JFM v Neath Port Talbot Borough Council [2008] EWCA Civ 3; Enfield LBC v SA (By her Litigation Friend, The Official Solicitor) [2010] EWHC 196 (Admin); Re W (Children)(Abuse: Oral Evidence) [2010] UKSC 12 [2010] 1 FLR 1485; Surrey County Council v M, F and E [2013] EWHC 2400 (Fam).
  1. We were also referred to the Children (Admissibility of Hearsay Evidence) Order 1993, the Civil Evidence Act 1995 and Articles 6 and 8 ECHR.

 

 

In this case, a 28 year old woman T, made allegations that she had been sexually abused as a child. That was important, because she had younger siblings who were still children.  If T’s allegations were false, then there was no risk for those children. If, however, they were true, then there would be a potential risk.

 

A fact finding hearing therefore took place, for the Court to determine which of those two options was correct. The Court made findings that T’s allegations were true. T did not give evidence herself, and that’s why the case was appealed.

 

  1. Much of the local authority’s evidence in relation to the sexual abuse findings was hearsay. The principal source of evidence about what happened to T was obviously T herself. She had spoken to social workers about her experience in late 2012/early 2013 and they reported to the court what she had said. However, Judge Davies (who very properly attended to the case management of this case throughout) was quite rightly intent on ensuring that her evidence should be received by the court in a more direct form and made an order on 20 March 2013 that if the local authority were relying on her evidence, they were to file a statement from her. A date was given for the filing of the statement and when that was not complied with, an extension was given. However, still no statement was forthcoming.
  1. T’s position was discussed at a directions hearing on 6 June 2013. There is a difference of recollection as to the extent to which any reason was given for the absence of a statement from her but it may be that the local authority explained to the judge that T was not co-operating with the process, as Miss Heaton QC explained to us on their behalf during the appeal hearing. No orders were sought from Judge Davies or made by her with a view to resolving such problems as there were.
  1. By the time that the final fact finding hearing commenced on 17 June 2003, nothing had changed. T had not made a statement and she did not attend to give evidence. It seems that the hearing proceeded without any discussion of why this was or what should be done about it.
  1. T is a vulnerable adult who has suffered from depression and she has learning difficulties, although no one suggested that they were such as to prevent her from giving evidence. Social services are involved in relation to her children, of whom there are four, the youngest having been born at the end of April 2013. In her statement of 3 May 2013, Ms McMenemy (one of the social workers who gave evidence to Judge Davies) spoke of reports that T was under a great deal of pressure from her family to write a statement supporting them and said that T was not now willing to provide a statement confirming what she had said about abuse (B62/3). However, it appears that there was no up to date evidence about T’s position offered to the court either at the directions hearing on 6 June 2013 or at the fact finding hearing. The judge should at least have been told, for example, what efforts had been made to obtain a statement from T and/or to secure her attendance at court and why these had foundered, and she should have been fully informed about any continuing personal difficulties on T’s part which it appeared were getting in the way of the process.
  1. It may not be entirely surprising, in the circumstances, that the judgment contained no reference at all to the reasons why direct evidence from T was not available. The judge said only this about T’s absence:

“On behalf of F, I am reminded that he has Article 6 rights to a fair trial. I must bear in mind that he has a right to cross examine witnesses and, if witnesses have not been called to give evidence, I must consider what weight should be given to their evidence.” (§7)

“T has not been called to give evidence, either by the local authority or by the parents; and I must remind myself it is for the local authority to prove the case, it is not for the parents to disprove it.” (§8)

“I have to bear in mind that T has not attended court to be cross examined…” (§22)

 

 

The parents were not arguing that the hearsay evidence in relation to T’s allegations was not admissible (as they might have in a criminal trial) but rather that in the absence of T being available to be challenged, the Judge ought to have given that evidence much less weight.

 

The Court of Appeal took the view, and gave some guidance, that where the allegations that are central to the case are being made by an adult, all endeavours ought to be made to get that adult to give the evidence [particularly where, as here, T had previously retracted the allegations]

 

  1. Where an adult’s evidence is so central to a finding or findings sought, I would normally expect that adult to give evidence, although there can, of course, be situations in which that is not possible. Judge Davies herself made clear by her order of 20 March 2013 that she expected that T would furnish direct evidence. She was never asked to revoke that order, although equally she was not asked to direct that the local authority could not rely on the hearsay material as to what T had said.
  1. Where it is said to be impossible to obtain a statement from a witness or to secure a witness’s attendance at court, the court needs to know the reasons why so that that can be considered when, to use the phraseology of section 4 Civil Evidence Act 1995, “estimating the weight (if any) to be given to hearsay evidence”.
  1. There are ways in which witnesses can be assisted to overcome difficulties in engaging in court proceedings and the various options should always be considered when there are problems in getting evidence from a central witness. They include special measures such as screens in the court room or a video link. Alternatively, a witness summons may be appropriate. None of these options seem to have been considered in this case. We were told that T has recently given a statement to the police by way of an ABE video interview. Had that course been taken before the fact finding hearing, the video interview would at least have covered the ground that would have been covered by a statement. The question of cross examination could then have been addressed as a supplementary issue in the knowledge of what T had said in the ABE interview.
  1. Assuming that none of the available measures secures direct evidence from the witness, the judge has to have regard to the reasons for this in weighing the hearsay evidence on which reliance is placed instead. A judge may be less uncomfortable in giving weight to such evidence where there is a good reason for the witness’s non-engagement (such as the sort of profound psychological difficulties from which C is suffering or a protracted physical illness) than where the reason is hard to divine or the non-engagement appears to be a matter of deliberate choice on the part of the witness.
  1. The estimation of the weight to be given to T’s recent complaints was complicated by the fact that she had retracted what she said. She did so in the form of two letters. She has problems with literacy and they were written by her brother B and signed by her. The first is dated 6 February 2013 (E105). It alleges that social services are trying to “manipulate and intimidate me into making a statement” and says that she is not willing to make a statement about F molesting her as it would be a false statement. The second letter (E253) is undated but I think it was received by social services towards the end of April 2013. It says that social services had blackmailed her by saying they would pay for a deposit for a house move if she made a statement about F but that she would not do so as it would be false.
  1. The judge referred to the two letters in §§20 and 21 of her judgment but went on to make her findings about T’s complaints in §22 without setting out how she had approached them in her evaluation. She had earlier rejected the suggestion that the social workers had put pressure on family members to make untrue allegations (see §10) and found the social workers to be very careful in their evidence and accurate in their note-taking and recollection. This was, of course, material to her approach to the retraction letters in which improper conduct on the part of social services was suggested. She also stated in a different section of the judgment later on (§31) that she found that pressure had been put on T by B and by both parents to withdraw her allegations but this was a bald statement without any supporting analysis or details and without specific reference to the letters.
  1. The retraction of a complaint normally requires careful and specific consideration and this case was no exception. Obviously the fact that a complaint is subsequently retracted does not prevent a judge from accepting that it is in fact true but it gives rise to questions which must be addressed sufficiently fully and directly in the judge’s reasons so that one can be confident that the fact of the retraction has been given proper weight in the judge’s conclusions about the subject matter of the retracted allegation. Where, as here, the only evidence before the court about the complaint is hearsay, it seems to me that this is particularly so and the judgment was insufficiently specific in my view.

The Court of Appeal concluded that the findings made should be set aside and the case sent back for rehearing. In this particular case, they felt that there should be a fresh start before a different judge  (although that was not decided as a principle applicable to all cases)

 

 

[When I find myself in times of trouble, Andy Flower talks to me, we need a batting hero, get KP… Get KP, get KP, get KP, oh get KP, we need a batting hero, get KP]

 

 

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There are compelling reasons of public policy why ‘sham marriages’ are declared non-marriages

Posted on November 13, 2013 by suesspiciousminds

 

This is the Court of Protection decision in A Local Authority v SY 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/3485.html

Much of the case involved SY’s difficulties with capacity and plans for her future, which involved her living in a care home – having not consented, this was being treated as a deprivation of liberty (I add in parenthesis that I am pleased to see the Courts taking a common sense pragmatic approach on someone having to live in a home when they don’t consent as being a Deprivation of Liberty DoLS, as I think that was always the spirit of the Mental Capacity Act 2005, though we seem to have drifted from that in the short years the Act has existed)

An additional issue, however, was that SY had entered into a marriage to a man TK.   I have to say, the man TK, doesn’t come out of this well  (I have reordered the judgment here, simply because it scans better in this particular context)

 

    1. TK was born in Pakistan. He came to the United Kingdom on 7 September 2009 as a student. His application to continue his studies was refused and his appeal was dismissed on the basis of a tribunal finding that he had submitted two forged documents and had attempted to deceive the immigration authorities. His rights of appeal were exhausted in June 2011. It is in this context that he began a relationship with SY in August 2011.

 

    1. On or around 15 June 2012 TK was arrested for immigration offences and detained by the UK Border Agency pending his deportation. He claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman, namely SY.

 

    1. Following an adult case conference on 20 June 2012, SY moved to her current placement on 27 June 2012. The following day an associate of TK attended the placement and attempted to gain entry for the purpose of seeking SY’s signature on a document allegedly prepared to assist TK with his asylum claim. In light of the risks to SY of harm and exploitation, an urgent authorisation was issued and then a standard authorisation to deprive her of her liberty at the placement was granted.

 

  1. On 17 July 2012 TK’s appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that “The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…”. He later observed that “viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place”. He was found not to have given a truthful account in his evidence and not to be a credible witness.

 

    1. On 23 January 2012 her then carers notified the authority that she had returned from TK’s property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner.

 

    1. Social workers attempted to undertake a capacity assessment but SY refused to co-operate. For the same reasons a clinical psychologist, Dr. C, was unable to assess formally her capacity to litigate and/or to make decisions as to residence, contact, marriage and sexual relations but concluded it was unlikely she was able to do so.

 

  1. On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.

 

So, the issue in the case was whether the Court of Protection should make a declaration that this marriage was not recognised, as being one that SY had no capacity to consent to.  The eagle-eyed or attentive reader may recall that there was a blog post recently about a Holman J decision, in which he held that the Court had no jurisdiction to make such a declaration  – the difference HERE is that the unfortunate wife in that case COULD have made her own application for nullity but was vulnerable and unwilling, which was what caused the bar to the declaration. Here, there was no possibility that SY had the capacity to make an application in her own right, so the Court would have power to make the declaration.

(It isn’t QUITE as simple as that, because the marriage never purported to be a ceremony to which the Marriage Act applies, so the Court can’t use the powers under that Act – this was clearly an Islamic ceremony. So, to declare it a non-recognised marriage  involves the use of the inherent jurisdiction, and the Court needed to walk through very carefully the existing authorities,  hence the debate and determination below – underlining mine for emphasis)

Discussion – Declaration of Non-Marriage

    1. There is no provision in the 2005 Act to make a declaration in respect of the ceremony in which SY and TK participated on 10 June 2012.

 

    1. The issue is whether the Official Solicitor should make a freestanding application for a declaration or whether the court, of its own motion, should invoke the inherent jurisdiction of the High Court and make a declaration of non-marriage. The parties invite me to take the latter course.

 

    1. The ceremony was conducted at TK’s home by a Mr MA. He is not a registrar and the ceremony did not take place at an authorised place. A document entitled ‘Marriage Certificate according to Islamic Laws’ appears in the court bundle [A35].

 

    1. It is submitted by counsel for the authority and for the Official Solicitor that the ceremony failed to comply with essential requirements of the Marriage Acts 1947-1986 in that:

 

a. it was not conducted in a registered place; and

b. it was not conducted by a registrar or by a priest according to Anglican rites.

    1. Furthermore it is submitted that the evidence indicates that in all probability the ceremony was not intended to attract the status of a marriage under English law being a ceremony undertaken to create a marriage expressly according to Islamic laws.

 

    1. In A-M v. A-M (Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, Hughes J. (as he then was) considered the status of an Islamic marriage ceremony conducted in England. He said, at paragraph 58,

 

“It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal consequences. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar’s certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts……It is not any question of polygamy which ipso facto takes this ceremony outside s. 11, but the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity”.

    1. The self-same facts and considerations apply in this case in relation to the ceremony conducted on 10 June 2012.

 

    1. In the case of Hudson v. Leigh (Status of Non-Marriage) [2009] 2 FLR 1129, a ceremony was undertaken in South Africa which the parties had deliberately modified to avoid strict compliance with local formalities. They intended a civil ceremony would be conducted some weeks later in England, but it never took place. Bodey J. held, at paragraphs 80-84,

 

“As to Mr Leigh’s amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that “…no marriage between the parties subsisted on the 23rd January 2004 or thereafter”. That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh’s case into S55 (1) (c), as being ‘a declaration that the marriage did not subsist on a date so specified in the application’. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone. There remains Mr Mostyn’s application for a declaration that the Cape Town ceremony did not effect a marriage at all….It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson’s petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties. In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce’s argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction. Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh.”

    1. Bodey J., in a later case, considered the status of an Islamic marriage ceremony conducted in the ‘husband’s’ London flat in the presence of an imam. He held there had been a wholesale failure to comply with the formal requirements of English law and there was nothing that could be susceptible to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973. He made a declaration of non-marriage: El Gamal v. Al Maktoum [2012] 2 FLR 387.

 

    1. On the basis of those authorities I am satisfied that the ceremony which took place between SY and TK on 10 June 2012 did not comply with the formal requirements of the Marriage Acts 1947-1986. I find it was a non-marriage.

 

    1. What is then to be done? The Official Solicitor on behalf of SY could make a freestanding application pursuant to the inherent jurisdiction of the High Court to seek a declaration of non-marriage. Alternatively, the court in these proceedings could, of its own motion, invoke the inherent jurisdiction and make a declaration of non-marriage.

 

    1. In the case of XCC v. AA and Others [2012] EWHC 2183 (COP), Parker J. was invited to make a declaration of non-recognition of a marriage within Court of Protection proceedings by invoking the inherent jurisdiction of the High Court. She said, at paragraphs 54 and 85,

 

“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion.”

    1. I, respectfully, agree.

 

    1. Parker J. held that the provisions of the 2005 Act were not to be imported in to the inherent jurisdiction evaluation, the decision was not dictated only by considerations of best interests but public policy considerations were also relevant [paragraphs 56-57 and 71-76].

 

    1. It is plain on the facts of this case, especially taking account of the immigration judgment handed down on 17 July 2012 in respect of TK’s asylum appeal, that TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective.

 

    1. TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY.

 

    1. I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation.

 

    1. Fortunately, it would appear that TK’s involvement in SY’s life is not now causing her emotional distress or harm. It was, however, yet another abusive and exploitative episode in her life which could have had serious physical, emotional and psychological consequences for her.

 

  1. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.

 

Over and above the facts of this case, and that judicial steer underlined above (which I suspect will be cited in many of these cases to come), the Court made some interesting observations about the capacity assessment.

 

    1. The assessment of capacity (COP 3) was completed by SY’s social worker, NU. It is a full, detailed and helpful assessment of SY’s capacity to make decisions as to her residence, contact with others, her care needs and to enter into a contract of marriage.

 

  1. I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.

 

[I am not entirely sure how I feel about that – I represent and work with social workers and believe that those who work in adult social care do have the necessary expertise and skill to conduct such assessments and that they would strive to make them fair. However, it can be the case that the Local Authority take, and sometimes have to take, a line as to what they consider to be in the best interests of the person. It may be that such a role doesn’t sit entirely comfortably with conducting an assessment to decide whether a person is capable of exercising autonomy or should have decisions about their future made by the State in their ‘best interests’.  (I am not saying that there WOULD be bias or unfairness, but in law, the perception of bias can be as important as the actuality.  R v Sussex Justices being the lead on this – the law must not only be fair, it must be seen to be fair)

 

 

 

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London Borough of Ealing v Connors (committal hearing)

Posted on November 13, 2013 by suesspiciousminds

I wrote recently about a committal hearing arising from a breach of orders made in private law proceedings. This is one that relates to public law proceedings. The committal hearing was held in open court, thus it is possible to report the names of those involved.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3493.html

 

The background which led to orders being made on these children is very worrying. The Court report it in this way

    1. This matter concerns two girls, A born on 12th October 1999, who will be 14 years of age tomorrow, and B, born on 22nd November 2001, who is now 11 years of age, nearly 12. The Respondent is the mother and the father has taken no part in the proceedings. The children have an older brother C who is now 16 years of age. There are seven half siblings as a result of the mother’s previous marriage, or relationship.

 

    1. Both of these young girls were made the subject of emergency protection orders on 23 September 2013 and interim care orders on 1 October 2013. Both of those orders were accompanied by recovery orders as the girls had gone missing and their location was unknown. Immediately prior to the emergency protection order on 23 September 2013 they had been living with their mother. Neither child has been seen since 23 September 2013. On the application of the Local Authority on 8th October 2013 I made a Collection Order to assist the Local Authority in seeking to locate the whereabouts of the children.

 

    1. There is a background to this matter which is carefully set out in the case summary provided by the Local Authority. In summary, there has been involvement between this family and the Local Authority since about October 2012, following A being admitted to hospital with suspected meningitis. Further investigations were undertaken in relation to her medical position. She is currently under treatment for rheumatic fever and requires monthly injections of penicillin. Since May of this year there has been inconsistency in relation to her attendance for these injections. She missed her August injection, was late for her September injection, and, as far as I am aware, has not had her October injection. So the medical position in relation to A is extremely worrying.

 

    1. The Local Authority have sought to engage with the mother around issues concerning lack of school attendance and A’s behaviour. Unfortunately, that has not been very fruitful. There have also been issues in relation to domestic violence within the home with the father. He is reported not to live at the home, but attended there in April when there was an incident and he was asked to leave by C. The father damaged the property and left before the police arrived. C has been arrested in relation to a criminal matter concerning a burglary, and has been bailed back to the home.

 

    1. The matters that precipitated the issue of these proceedings occurred on 19 September when it is alleged that A was assaulted by being kicked repeatedly and punched by C and her father in the family home. At the time of the incident those present were A, C, the father, the mother, and a five year old niece and young six month old nephew. A reported that the brother and father had called her a prostitute and accused her of sleeping with her uncle. It is alleged that during the argument C specifically put on steel toe capped boots to carry out the assault, and it is alleged that the father punched and kicked her, pulled her hair, and threatened to kill her.

 

    1. The mother was noted to be intoxicated by the London Ambulance Service when they attended, and A was observed to be shaking, crying and extremely distressed. There was swelling on her leg, redness to her face and ribs, and she was taken to hospital and kept overnight. It is clear from the examinations that subsequently took place there were a number of injuries on A’s body which are consistent with the account of assault that had been given, including bruising, grazing, and areas of redness in various parts of her body. A was discharged to the home of her cousin K on 20th September.

 

  1. The whereabouts of B are unknown. C has been bailed in relation to the assault back to the home address. The question of police protection was discussed. The Local Authority undertook home visits on 20 and 23 September. The mother was not at home, and it had not been possible to contact the mother. On 23 September the EPO and recovery orders were granted without notice.

 

Over and above the concern then that children whom the Court had determined there was reasonable grounds to believe had suffered significant harm, in the form of both assaults from adults and intoxication of their main carer, there were considerable health reasons why A needed to be found so that her treatment for meningitis could be resumed. It is no great surprise that the Court made what is called a Collection Order (this being one of the powers of the High Court, to authorise an officer of the Court known as the Tipstaff, to conduct investigations as to the whereabouts of a child and to recover them if possible. I like to think, personally, that the Tipstaff looks like the motorcycle cop robot from Terminator 2.   I note from a quick search for information on Tipstaffs/Tipstaves that they are the only people permitted to arrest a person within the precincts of the Royal Courts of Justice – which given that there are only two of them and it is a massive, massive building, is slightly unnerving)

In terms of that investigatory/recovery process, the Court said this

    1. This matter came back before me the following day, 9 October, because the Tipstaff had arrested the mother on the Tuesday evening for alleged breach of the Collection Order. The actual order required her to deliver the children into the charge of the Tipstaff, or inform the Tipstaff of the whereabouts of the children, or in any event inform the Tipstaff of all matters within her knowledge or understanding which might reasonably assist the Tipstaff in locating the children.

 

    1. The record in relation to the visit when the mother was arrested states that the police officers attended the address and spoke with the mother. She informed the police that the children were with Paddy and Mary in Manchester and she had no contact details for them. Further, she said that the children may now be with a different unknown family. The suggestion by the mother that she did not understand the terms of the order, and that she may be arrested, is not supported by that account because she must have clearly understood the terms of the order requiring her to give information otherwise she would not have given the information that she did. So as of Tuesday evening that was the information that the mother had given.

 

    1. When she attended court on 9 October and was asked by her legal team about the whereabouts of the children she said that they were with her sister-in-law, BC at an address in Edgware. She gave oral evidence on that day when she said she had not seen the girls since 23 September but had “heard” from others that they had been in Manchester with her cousins, Paddy and Mary. She said she had been told by one of her older daughters, called M, that the children had returned to London on Monday of this week and were staying with BC. Her daughter M told her she had seen them there; she had seen them playing outside BC’s home.

 

    1. When the police attended on the Tuesday evening the mother agreed she knew what the order required her to do, but she did not disclose this important information as to the whereabouts of the children to the police. I remanded the mother in custody on Wednesday until the following day so that the police could make enquiries at BC’s address to see if the children were there. They attended at BC’s property on three occasions; once at about 9 o’clock on the Wednesday evening, when BC was there but denied that she had the children; again in the early hours of the morning of 10 October, when there was no response to their knocks on the door; and, finally, yesterday afternoon when BC was arrested. BC was going to be brought before me this morning, but I have been told this morning that she had been taken ill overnight and is currently in hospital waiting to be seen by a consultant.

 

    1. Once it became apparent yesterday afternoon that the children were not at BC’s home I heard further oral evidence from the mother. She was adamant that the children were with BC. I remanded the mother in custody again to this morning as it was expected BC would be brought to court.

 

    1. In her oral evidence given on Wednesday and Thursday the mother accepted that there have been many opportunities when she could have produced the children, but did not do so as she did not want them to come into care. She accepted that at any time she could have got the children back. She maintained she had no address or phone number for Paddy or Mary, who allegedly had the children in Manchester. She further maintained that she did not have A’s mobile telephone number, although she did accept that A had a mobile phone. She revealed that when the police sought to execute the recovery order at BC’s home on about 23 or 24 September, after the EPO was granted, the children had in fact been there but they were hiding; and that is why they were sent to Manchester. The mother said in her oral evidence that she would now co-operate with the Local Authority and that she was concerned about A not receiving her injections.

 

    1. When the matter was listed before me this morning counsel for the mother, Mr. Nosworthy, who has been present at all the hearings made an application that I should adjourn this matter until the court could hear from BC. I rejected that application, for the reasons that I have given earlier. Importantly, on his instructions, he said that if the mother is given the opportunity to speak to K (who is the daughter of BC) and gives the instruction for the children to be brought to Social Services they will comply with her instructions. She believes K will be at BC’s accommodation looking after BC’s children. Mr. Nosworthy stated as follows:

 

“Once the mother relays her permission that the children are to be brought to Social Services whoever has them will do so.”

  1. That demonstrates to me that this mother has always known where these children are, she has always known that they would be able to be brought back at her command, but for reasons which are known only to her she has chosen not to do that.

 

The issue then was whether this conduct on the part of the mother amounted to a breach of the Collection Order punishable by committal for contempt.

    1. I remind myself, of course, that the test in this matter is that I have to be satisfied to the criminal standard, namely, that it is beyond reasonable doubt. I have to be satisfied so that I am sure. Having seen the mother it is quite clear there are strong emotions felt by her about the orders made by the court regarding the children and she opposes them. Her lack of co-operation with the court process to date in locating the children supports that view. I have made clear to the mother that any orders I make today are not final decisions about the children, those are for another court on another day. It is extremely regrettable that due to the circumstances of this application, and the mother’s behaviour, a hearing set in Willesden County Court for today to consider a contested interim care application cannot take place. The mother has failed to act in the children’s interests by denying them the opportunity to attend that hearing.

 

    1. I am satisfied so that I am sure that this mother knows perfectly well where these children are, or at least where they can be contacted or located and she knew that when she was arrested on Tuesday. She acknowledged as much in answer to questions from Ms Hall in her oral evidence yesterday, when she accepted that she could have got the children back any time prior to her arrest by the Tipstaff if she wanted to. Despite saying that she has refused to give any details about the whereabouts of the children other than them being at BC’s house when clearly they were not. She told the police on 8 October, just prior to her arrest, that they were in Manchester, which on her own account to the court the following day was a lie.

 

    1. I have reached the conclusion that it is inconceivable that as their mother who had their full time care prior to 23 September she has taken no active steps to find them or speak to them. Her evidence is inherently unreliable due to the inconsistencies in her accounts, coupled with her acknowledgment that she does not wish the children to be placed in care. In that context, her expressed intentions of future co-operation with the Local Authority rings very hollow. That is reinforced by the submission made by her counsel, on her express instructions this morning, that once she relays her permission to the family that the children should be produced at Social Services they will do so. That, in my judgment, makes it very clear it is within her control to ensure that these children are produced to the Local Authority and she has failed to do so.

 

  1. Therefore, I am satisfied so that I am sure she is clearly in breach of paragraphs 2 and 3 of the Collection Order that I made on 8th October, and she has failed in the continuing duty to provide information in relation to the whereabouts of the children.

 

There then followed a plea in mitigation (i.e mother’s lawyer setting out the reasons why this breach should not result in imprisonment, or if it did, that the sentence should be lenient.

    1. Mr. Nosworthy has very thoughtfully and eloquently made submissions on behalf of the mother in relation to the sentence that this court should impose in relation to the contempts that I have found. He has very properly referred me to the case of Hale v Tanner, reported at [2000] 2 FLR 879, and the guidance that is given in that case, in particular at paragraphs 26 and 29, and the summary in the head note in relation to the matters that the court should take into account, and I do take those matters into account.

 

    1. In mitigation he says that the mother has a clear sense of remorse, which of course I accept at face value, but I have to take into account that that remorse has not been coupled with any kind of direct action by her to assist in recovering the whereabouts of these children. He also says that the evidence is clear, she has failed to co-operate in the past but now wishes to co-operate. Again, I understand why that submission is made, but there has not been co-operation in relation to locating the whereabouts of these children.

 

    1. In relation to the cultural background, whilst of course that is an important consideration that the court has to bear in mind, in particular the concern by this mother that she may be ostracised by her community if she worked together with the Local Authority. Whilst it is a factor it does not give her an entitlement to be able to disobey orders of the court.

 

    1. I accept the difficult background this mother has had, as is clear from the papers that I have read, which have included unhappy relationships with her partners, and also difficulties with a number of her children. I also take into account that she has, I think, two other children living with her, C who is 16 years of age, and M, who is 24 years of age. But I look at that in the context of what has been clear in this case, there is a wider family that step in and support where necessary.

 

  1. I take into account the mother has spent three days in custody, and also that there may be difficulties in relation to her rental payments and practical matters as regards her living accommodation. However, I am very clear that the message needs to go out loud and clear in relation to court orders relating to the whereabouts of children. It is an extremely serious matter when the court is unable to trace the whereabouts of children, and it is particularly serious when the court is unable to do that because the person who can assist in that will not provide the help to locate the children.

 

The Court imposed a custodial sentence of 28 days, taking into account the 3 days that the mother had already spent in prison, but reminded her that if she remained in breach of the order (by not providing the details of where the children were) that a further application for committal could be made and that the maximum sentence would be 2 years. The Judge urged the mother to consider her situation, and that she could purge her contempt at any point (comply with the order, apologise, and be released/have her sentence reduced)

 

It is worth noting that however much you disagree with orders made by the Court, and however much you want to fight those orders, there are significant consequences and risks for taking that challenge or fight out of the Court room and taking things into your own hands.

 

I suspect the Tipstaff can't turn his arms into metal knives. he wouldn't get through the security checks at the RCJ entrance

I suspect the Tipstaff can’t turn his arms into metal knives. he wouldn’t get through the security checks at the RCJ entrance

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Don’t get too hung up on the lies

Posted on November 8, 2013 by suesspiciousminds

 

 

The Court of Appeal decision in Re Y (A child) 2013 

http://www.familylawweek.co.uk/site.aspx?i=ed120637

This was actually, I think the first appeal about Placement Orders post Re B-S, it has just been beaten to the published judgment case by all of the others. Anyway, in this one, the Court of Appeal determined that the judgment was deficient in the sort of rigorous analysis that is now required (notwithstanding that not all of the authorities that established the need for such analysis having existed at the time the judgment was made).

 

The Court of Appeal were very critical of the Local Authority final evidence.

“In upholding the criticism made of the judgment as to inadequate identification of risk and consequent evaluation of likelihood of that risk in subsequent analysis of measures which mitigate that risk, that is articulation of the proportionality of the order sought and subsequently made, the judge was not assisted by the dearth of relevant evidence which should have supplied, in particular by the local authority.  Relevant evidence in this respect is not and should not be restricted to that supportive of the Local Authority’s preferred outcome.”

(re-emphasising, if such emphasis were needed, that a B-S compliant final statement analysising the pros and cons of each potential final option is essential)

 

But this bit is a development from the multitude of other Placement Orders sent back for re-hearing.

 

(4) I consider the case appears to have been hijacked by the issue of the mother’s dishonesty. Much of the local authority’s evidence is devoted to it.  The Children’s Guardian adopts much the same perspective.  It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case.  No analysis appears to have been made by any of the professionals as to why the mother’s particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance.

(5) This is not a case which is remitted for re-hearing merely to correct a procedural defect. The existing evidence plainly is inadequate for the purpose of the task of the judge who will re-hear the case at first instance in the light of recent authorities.

[This is of course mildly ironic, since the case that launched a thousand appeals in relation to plans for adoption, Re B, is almost entirely about the dishonesty of the parents and the disconnection between that level of dishonesty and firm cogent reasons as to why and how that dishonesty would harm the child.  It is also worth bearing in mind that the Supreme Court were 4-1 in favour of the Placement Order, notwithstanding that it was one of the flimsiest thresholds I’ve ever encountered]

 

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Life, liberty and the pursuit of happiness

Posted on November 8, 2013 by suesspiciousminds

 

 

The compelling case of Re M (Best Interests : Deprivation of Liberty) 2013

 

http://www.bailii.org/ew/cases/EWHC/COP/2013/3456.html

 

This is a Court of Protection case,  decided by Justice Peter Jackson – who has delivered a number of very cogent judgments in the short time I have been running this blog. I think this one is a model of its kind.

 

The issue was whether the Court would approve a Deprivation of Liberty for a woman, meaning that she would have to live in a care home, or reject it meaning that she could return to her own home. The care home option would be safe but make her unhappy, being in her own home carried considerable risks but would make her happy.   [Hence the title of the piece]

 

There was no doubt in this case that the woman in question, M, lacked capacity to make decisions on her own behalf, and that the professional agencies concerned could have done nothing other than make the recommendation they did

 

my decision implies no criticism whatever of any of the witnesses from the local authority or by the CCG. I understand the position taken and the reasons for it; indeed it would be difficult for them to have taken a different view on the facts of the case. There are risks either way and it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties.

 

 

Another interesting point for wider application is this :-

 

I have already noted the visit made by the District Judge to M in the care home about a month before this hearing. A careful written record was made and placed with the papers. The visit has therefore had the dual purpose of informing the court of M’s views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind.

 

 

The fundamental issue in the case was the management of M’s diabetes, the assessment being that she needed 24 hour supervision to manage this so that it would not be life-threatening. The authorities therefore wanted M to live in a care home, where this supervision could take place. M (despite lacking capacity to make a decision) was clearly expressing her huge antipathy to this and her desire to live at home.

 

 

 

 

The risk from the management of her diabetes was real and vivid

 

In relation to the management of M’s diabetes, Miss L, a senior specialist nurse, clearly explained the processes involved, the nature of the medication regime, and the range of consequences arising from non-compliance of different kinds. Her evidence establishes that if there is a default in the insulin supply that M receives there will undoubtedly be a deterioration in her physical health. The probability is that this would be picked up, but the length of time that would be available to take action would be limited with the likeliest scenario being a situation that had to be resolved within a certain number of hours or a few days; however the possibility of a more urgent and possibly fatal event cannot be discounted.

 

Counsel for the Care Commissioning Group (the agency responsible for M’s care) put it very crisply to the Court

 

at the care home there is almost complete certainty of physical safety at the cost of the happiness of M

 

 

 

You may already be anticipating that we are about to move into very interesting territory in Deprivation of Liberty law   – if someone needs to be detained to preserve their physical safety, but the effect of that is to lose their happiness and quality of life, where does that balance fall?

 

 

  1. In relation to the views of others, I have taken account of the views of all those referred to above. I am in no doubt that everyone concerned has thought hard about what is in M’s best interests. It is not surprising that witnesses called by the CCG are by vocation highly motivated by their responsibility to keep her safe. I also place substantial weight upon the judgement of A, who knows M and her situation extremely well.
  1. Ultimately the court must balance these factors:
  • M’s wishes, feelings and values which point towards a return home.
  • The best possible control of her diabetes, which points towards her remaining in the care home.
  • The risks to her health that exist in the care home, both by way of a possible deterioration in her physical and mental state consequent upon her being made to stay there, and by way of her threats of self-harm.
  • The risks to her health that would exist following a return home, as described by Miss L.
  • The possibility that cannot be ignored that M will cause herself serious physical harm if she is told that she is not going home.
  • The real possibility that her enjoyment of life might to some degree be recovered following a return home even if it does not fully meet her expectations.
  1. Having weighed these matters up I have reached the clear conclusion that the case for a continued deprivation of M’s liberty has not been made out. I accept that there are many uncertainties in a return home, indeed more uncertainties both of a good and a bad kind than in maintenance of the status quo. Negatively these include a possible deterioration in her physical and mental state as a result of non-cooperation. The deterioration may be gradual, but might also be sudden, occurring in a matter of a few hours, and may even, though perhaps less likely, be instantly life-threatening. Any decision that M returns home must accept the real possibility that the attempt will fail and the possibility in the worst case that she may die as a result of a sudden deterioration in her condition. Like Dr Leonard, I do not however accept the view that failure is inevitable.
  1. The above disadvantages are, in my view, outweighed by the following considerations.
  1. In the end, if M remains confined in a home she is entitled to ask “What for?” The only answer that could be provided at the moment is “To keep you alive as long as possible.” In my view that is not a sufficient answer. The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable

 

 

The Judge therefore ruling that in this case, M’s best interests would be better served by being at home and being at happy (albeit with an element of risk) rather than being safe but unhappy in the care home.

 

Obviously, there was some emphasis on trying to make the option at home safer, and the Judge had this message for M

 

My message to M is this: I hope that you will be happy when you return home. If you accept the support you will be getting from district nurses and carers it may be possible for you to stay there. If you do not accept that support you will probably have to return to a care home

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From Russia, with love

Posted on November 5, 2013 by suesspiciousminds

 

The committal decision in Re Davies 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3294.html

 

This one is likely to rekindle the debate, both amongst professionals and the wider public, on the powers of the Court to deal with breaches of court orders and contempt of court.

 

There are some, John Hemming MP springs to mind, who consider that imprisoning people for family Court matters which fall far short of being criminal offences is not acceptable in a modern society and illustrative of the family Courts having too much sway and not enough accountability. The secrecy/confidentiality of the family Courts just exacerbates these concerns. They might well say that punishment and resolving family disputes don’t go together.

 

There are others,  I suspect many in the Father’s Rights movements, who would say that the family Courts are largely toothless when it comes to dealing with people who have no respect for orders and decisions and just take matters into their own hands to thwart contact. If you have spent two years of litigation and jumping through hoops and possibly thousands on legal costs to get your contact order and then it doesn’t happen because the parent with residence of the child just ignores the order, then you can see that you would WANT there to be consequences for breaking court orders and you would WANT those consequences to be dished out.

 

On the one hand here, we have grandparents who spent five days in prison because they did not want to tell the Court where their daughter had taken their granddaughter Alice too.

 

On the other, we have a mother who defies a Court order for contact, takes the child away to another country and leaves the father not knowing where his child is or how to find her, who then gets her family to lie in the witness box and breach Court orders that are designed to locate this mother and get her to bring the child back to the UK so that the arguments can properly be heard. 

 

 

This particular case made some of the national press, who took the understandable emotive line of how awful it is to lock up grandparents for not telling the Court where the child was.

 

One also has to look at it from the side of the father, and of the child who has been denied the lawful contact she should have been having with her father because the mother took the law into her own hands.  [i.e one could have written the story as a very emotive one about how the child had been whisked away from dad and he had no idea even which country she was in or whether she was safe]

 

Firstly, it is worth noting that although the grandparents and the aunt were locked up on 25th October, the Court adjourned sentencing until 30th October (the judgment on that is not yet reported) to allow them the chance to get some legal advice and do what is called “purging their contempt”   (in essence, apologising to the Court for breaching the orders and complying with the order now by giving what information they have about the child’s whereabouts).  

 

Secondly, it is worth noting that although the father was present in Court and represented, he was asking for the family members NOT to be imprisoned.

 

Of course, with the media being the way it is, what we want is a simple good guy and a simple bad guy, and where the stories are more complex than that, the press coverage struggles to set out the nuances. So much easier to just side with either the grandparents or the father, and paint the other side as being wicked.  I don’t even know that you could paint the mother as the bad guy here – she was certainly foolish, but until she gets back and has her say, we don’t know what lies behind her decisions.

 

[The grandparents were released on 30th October. As I understand matters, the Aunt is due to appear in Court on Tuesday 5th November]

 

 

Anyway, by way of background

 

  1. In this matter I am concerned with one young child, Alice Gabrielle Davies, who was born on 18th September 2008 and is five years of age. Her mother is Jacqueline Davies. Her father is Julian Brown. Her maternal grandparents are Patricia Anne Davies and Brian Davies. Her maternal aunt is Melanie Williams. The parents’ relationship broke down and they had recourse to court proceedings. The father was unable to have contact with Alice. Those court proceedings resulted in an order being made on 29th June 2011 for the father to have contact with his daughter on a regular basis. In fact, subsequent to that order, he has not seen her since 18th December 2011.
  1. On 1st March 2012, the mother submitted an application for the cessation of contact because she was planning to leave the jurisdiction. In the reasons that she gave for applying for that order she said:

“Unfortunately, because of the constant need to take time off to prepare for and attend court, my job became untenable and my employment terminated. So due to the financial circumstances of not working and the implications of the continuing costs of solicitors’ fees etc, which has left me in debt and without the security of a job, and trying to sort out the finances of the here and now, I have had to make an uncomfortable decision. Therefore, because of the need to support my child and myself and the economic climate in the United Kingdom, after months of looking for work, I have had to take drastic action and have been forced to seek a position further afield, leaving my roots and family support.”

  1. Sometime after that application – the date is not at all clear – the mother did indeed leave this jurisdiction with Alice. From the enquiries made by the Tipstaff, it appears that she flew to Russia. There is no record of her returning from Russia to this jurisdiction, and it is unknown whether she remains living in Russia with Alice or in a country somewhere else.

 

So, the father had to go to Court to get an order for contact with his daughter, the contact wasn’t provided and mum intended to apply to discharge the existing contact order because she wanted to move abroad.  What she then did, in leaving the country with the child without the Court having granted permission, was unlawful.

 

In those circumstances, it is entirely understandable that the Court made orders that Alice should be returned to the UK, and that she should be in the UK whilst the Court considered the respective applications of the mother (to end dad’s contact order and move abroad) and the father (to continue his contact and presumably resist any move abroad unless his contact was going to be adhered to)

 

It is important to note that the Court had not made any decisions about who was right in the long-term on those applications, just that it was premature to move Alice abroad before both sides had their say and the Court reach a view.

 

Because of the difficulties in tracking down the mother and Alice, the Court used their powers to make orders that members of mother’s family provide any information they had about where mother and Alice were.

 

  1. Mrs. Davies, accompanied by her husband, Brian Davies, attended before me yesterday, and I made an order requiring her, on one last chance, to divulge the details of the whereabouts of Alice and the mother. During the course of that hearing the maternal grandmother, Mrs. Davies, gave evidence on oath before me. She told me repeatedly and in no uncertain terms that she had no means by which she could make contact with her daughter and that she was solely reliant upon her daughter making contact with her, which she did from time to time. She also told me repeatedly that she had no idea where her daughter or Alice were in the world. Mr. and Mrs. Davies then left court and travelled by car back to Cardiff.
  1. During the course of that hearing, at the request of the Tipstaff, I required Mrs. Davies to give him the name and address of her other daughter, Melanie Williams. The police attended upon Mrs. Williams last night and served her with the location order and explained that order to her, and the duty that she was therefore under to cooperate with this court and to give information that was available to her about the whereabouts of Alice and her sister Jacqueline.

 

The police, in serving those orders, asked some questions of the family, and it was their answers to these questions which got them into difficulty and eventually into cells  [underlining mine, for emphasis]

 

  1. I have statements from the two police officers who attended upon Mrs. Williams – a Police Constable and a Police Sergeant. The statements record the self-same evidence, namely that when they asked Mrs. Williams when she had last been in contact with her sister, Jacqueline, she replied, to start with that it was “about three years ago“. She insisted that since they were 18 and had left home they had gone their separate ways and they had not spoken for some time. She said that she had sent some emails to her sister. Those had not been returned undelivered, but she claimed that she had not received any reply. She continued to deny having any knowledge about where her sister lived. The police officer records as follows: “Whilst looking for the mobile number for Patricia Davies, I noticed a contact ‘Jacq’. I asked Melanie if this was her sister. She did not reply. I therefore noted down the mobile number”. Again, the police officers asked Mrs. Williams about when was the last time she had contact with her sister. The police officer says: “Melanie eventually stated that she had had a Skype text conversation in August 2013 but insisted she did not know where her sister had been when they had that conversation.”
  1. Because one of Mrs. Williams’ daughters was present at the home when the police were there, they advised her that they were minded to arrest her for breach of the order. They therefore contacted the maternal grandparents, who were still en route from this court, to look after their granddaughter. The police were still present when Mr. and Mrs. Davies arrived. The Police Sergeant explained to all three of them the reason they were there and urged them to provide any information in order to prevent the arrest of Mrs. Williams. The Police Sergeant then sets out in his statement the following: “Patricia Davies then said loudly, ‘I can’t, I can’t, I won’t. They’ll take the baby away’.” The Police Sergeant again urged the grandmother, Mrs. Davies, to provide any details she had of her daughter Jacqueline. She then told the police officer that she had a mobile number. She went out to her car and came back and gave the telephone number to the police officer. The Police Sergeant asked her to telephone that number. He records Mrs. Davis replying: “Jacqueline wouldn’t answer because it was the middle of the night where she was”. She was asked how she knew it was the middle of the night. She said: “I don’t know”. She was again asked: “How do you know it is the middle of the night?”, and she replied: “Because it’s thousands of miles away”. She was asked how she knew that, and she said that Jacqueline had told her. She finally said: “You’ll just have to arrest me. I don’t care what they do to me”.

 

 

The family were brought back to Court on 25th October and gave evidence to the Court about these matters. On the face of it, they had a contact telephone number for the mother, knew where she was and were refusing to provide the information “You’ll just have to arrest me. I don’t care what they do to me”.  The prospect of them being imprisoned for contempt was very high as a result of this.

 

  1. Over the course of this afternoon, Mrs. Davies, Mr. Davies and Mrs. Williams have given evidence on oath. Mrs. Davies gave evidence first and then her husband and then her daughter, Melanie. Having considered their evidence, I am in no doubt whatsoever that all three of them are lying to me. I find that Patricia Davies has lied and has admitted lying on oath when she told me yesterday that she had no mobile number for her daughter and had no means of contacting her. It is wholly remarkable then that on her journey back from this court she is sending texts to her daughter. Of note, she was asked by the police officers prior to them arresting her whether she had been in contact with Jacqueline today – that is yesterday. She replied: “Yes, but by text but I’ve deleted the texts now”. Mrs. Davis claimed that those texts were deleted because that is her normal practice. I regret to find I do not believe her. I find that she deleted those texts so that nobody would be able to see what she had sent to her daughter or what her daughter had sent to her. I am satisfied, so that I am sure, that Mrs. Davis did say to the police officers: “I can’t, I can’t, I won’t tell you”. That is entirely in keeping with her final comment to the police of: “You’ll just have to arrest me. I don’t care what they do to me”. She said in evidence to me that she knew it was the middle of the night where Jacqueline was because she said Jacqueline had told her. I find once again, so that I am sure, that Mrs. Davies is lying to me. She knew it was the middle of the night because she knows precisely where her daughter is, but she refuses to tell this court.
  1. In relation to Mr. Brian Davies, in my presence in court yesterday I heard him, and I am quite satisfied and sure I heard him, instruct the maternal grandmother when she was giving evidence “not to tell them”. He denied that in the witness box. Mr. Cheesley, the Tipstaff, told me at the start of this hearing that after I had risen from court yesterday Mr. Brian Davies had said: “I’m the head of the family. I told her to leave the country”. Initially, he appeared to accept that that is what he had said, but then he changed it and said that, no, he had not told his daughter Jacqueline to leave the country, he had told her to leave his house. However, he then claimed not to remember whether his daughter had left the house immediately after he had said that or how long a period it was after he had apparently told her to leave the house that she in fact did so with Alice. I note that it is significant that in her application of March 2012, giving her reasons for leaving this jurisdiction, the mother (a) does not assert that she had been thrown out of the home where she was living by her father and (b) quite the contrary, she states that she had a difficult decision to make which will result in her losing the support of her family.
  1. I regret to find so that I am sure that Mr. Brian Davies is lying when he denies saying in court yesterday that he told his daughter to leave the country. I regret to find that I am satisfied, so that I am sure, that he is lying when he claims he threw his daughter out of the house. He claims to have had no contact whatsoever with his daughter for about four years or thereabouts. I regret he gave me no satisfactory explanation whatsoever as to why he should take that course with his daughter or why he does not like her anymore and does not want to have any relationship with her. The best he could come up with was that it was because she had had sex before marriage with her then partner, which resulted in the conception of Alice. I am satisfied that Brian Davies is lying to the court, that he has information he could give but he refuses to give it.
  1. In relation to Melanie Williams, I regret to find that she has lied to this court. First, I note that she told the police that it was some three years since she had last communicated with her sister, Jacqueline. She then changed that in evidence to me, that it had been about two and a half years since she last spoke or had communication of any kind with her sister. When she was reminded of what she had told the police yesterday, that in fact it was August 2013 when she had last had a Skype text conversation, she was unable to be clear in her recollection that that took place, although she admitted that she had said that to the police. When I asked her about what conversation she had with her sister, she could not remember any details at all, and then told me that it was not a conversation at all, and she had not said to the police it was a conversation. She had sent a text to her sister, she said, but received no reply. She then accepted that she had said to the police it was a conversation that she had had with her sister in August 2013, but maintained that that conversation consisted of merely sending a text to her sister and receiving no reply. I regret to find, so that I am sure, that in giving those accounts to the police and to me, Mrs. Williams is lying.
  1. I am satisfied, when I consider the reasons why Mrs. Davies, Mr. Davies and Mrs. Williams are lying to this court, that it is for one reason and one reason only (because, although I have pondered the matter, I can think of no other reason for them lying) and it is this: they know full well where Jacqueline and Alice are but they refuse to tell this court or the Tipstaff where that is because they do not want to assist in any respect in the attempt to try and secure the return of Alice to the jurisdiction of this court. I am satisfied, so that I am sure, that they also have the means of communicating and contacting Jacqueline but they have sought, particularly Mrs. Davies, to obfuscate that position and they have not told me the truth about the communications that they have had with her not only over the last few years but in the last few months and in the last few days. Again, they are lying about those matters because they do not wish to assist this court in seeking to recover Alice back to this jurisdiction.
  1. On those findings, I am in no doubt that all three of them are in contempt of this court

 

 

 

Of course, on a completely human level, one can empathise with the family, they had been asked by their daughter / sister to keep her secrets and not tell the Court or the father where she was, and they ended up in an intolerable position of having to obey the Court order or keep their promise.  Without being in that intolerable position, it is really hard to know how you would react.

 

It is always important though, to have an eye on the other side of the case, which is that the father and child were kept apart and denied contact as a result of the mother acting unlawfully and asking her family to act unlawfully to help her, include them lying to the Court;  and the Court has to treat matters like this very seriously.

 

If there’s no consequence to breaking court orders or lying to the Court, then what’s the point of the Court at all?

 

I think that if I had been hearing the case, I  probably would not have imprisoned them pending the sentencing hearing, and allowed them to have a short opportunity (say two or three days)  to reconsider their actions knowing that a prison sentence was on the cards. But the Judge had been faced with lies in the witness box on two separate occasions,  even after they had been blatantly caught out, and of course the risk that wherever mother currently was, the family might have tipped her off to run away. It would not have been an easy decision to make.

 

Should the remedy or sanction be imprisonment? Should anyone really be imprisoned for something that isn’t a criminal offence?  There are those who think that imprisonment ought to be reserved for criminal matters, and that one ought not to be faced with it as a result of breaching orders in the family courts.

 

I suspect that there are also parents who have gone to Court and argued successfully for contact with their child, who see orders flouted or ignored or thwarted by the other parent, who are pulling out their hair at how toothless the law seems to be on dealing with a parent who has no intention of obeying Court orders, who would be devastated at the one sanction that the Court has being removed.

 

It depends entirely on which side of the fence you happen to be on, or which group of people are telling you the story. If you were sitting down talking with the grandparents in this case, you’d form a very different view of it than if you were sitting down with the father.

 

I think those are legitimate questions and I’m sure the debate will continue, but in the meantime whilst the law provides for imprisonment for contempt of court and failure to comply with court orders, those who are served with court orders need to bear in mind that this is a risk they take, even if they are pensioners trying to do what they think is right for their own daughter.  

 

 

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