Category Archives: case law

I’ll see your B-S and raise you JB

Posted on October 19, 2013 by suesspiciousminds

Sadly, Re JB (Children) 2013 isn’t up on Baiili yet, but it will be very important for anyone who is doing a case involving adoption.  It is Court of Appeal, and post-dates RE B-S – in one of those quirks, I think that when it was being orally argued, Re B-S was not out, but it was out and taken into account in the judgment.

You may remember some of these key points from Re B-S

1. Vital to have in mind the striking language used by the Supreme Court (for which read Baroness Hale) about proportionality in Re B

2. Linear approach (as in my last post) is out, and the Court have to look at all the options holistically

3. Judgment has to consider all of the advantages and disadvantages of each placement option for the child, with rigour

4. Can’t rule out the parents simply because that option requires more support than the LA wish to provide.

 

And we know that seven cases (so far) have had Placement Orders overturned and sent back for re-hearing for not following those principles, even though many of them weren’t in existance at the time the Court who made the order decided the case.

 

Well, in Re JB, the Court of Appeal identify that all of those features are lacking in the judgment. They also add in that there is a relative, rejected by the LA, effectively because the support that would be required would be too high.

What you would assume, therefore, is that the Placement Order would be overturned, and the case sent back for re-hearing, perhaps with some additional judicial guidance about prospective kinship carers and support and what Courts have to do when faced with a kinship carer who still seeks to care even when faced with a negative report from the LA.

No, the Placement Order stood.

In the interests of fairness, it will only be when the judgment goes up and I can draw out and quote how that decision was reached that we can hope to put it into context, but in a nutshell, the Court of Appeal seemed to feel that if the Court HAD done those things they would have reached a decision of Placement Order and there was enough in the judgment to make the Court of Appeal consider that the Judge was not wrong.

How that helps anyone call an appeal’s prospects of success now is very hard; and how a Court at first instance is supposed to look at these two authorities (not so much on the analysis of options but the ‘support’ and ‘nothing else will do’ options) is beyond me.

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“Dual-planning in final care plans– does it exist post Re B-S?”

Posted on October 14, 2013 by suesspiciousminds

Cases in the County Court don’t often make it onto Baiili law reports (though at some impending future time they all will), but this one is interesting and potentially important, not least because it identifies a conflict between two existing Court of Appeal authorities.

 Re D-R (Children) 2013

 http://www.bailii.org/ew/cases/EWCC/Fam/2013/5.html

 His Honour Judge Bellamy dealt with the case (he being a Judge who occasionally sits in the High Court, and a very competent crafter of an analytical judgment)

 The case involved six children, Ian aged almost 8, David aged 5½, James aged 4, Sarah aged 3, Rachel aged 22 months and Peter aged 6 months (not the children’s real names). The local authority also applied for placement orders in respect of each of the five younger children.

 The parents accepted that they were not able to care for the children and that the threshold was crossed. No other family members were being put forward. The case, two months ago, would have been pretty simple. Placement Orders for the younger five children, Care Order and long-term fostering for Ian.  Most of the debate would have related to contact, and particularly sibling contact between Ian and his younger siblings.

 However, in our new landscape, two interesting questions emerged.

 

  1. As, in order to make a Placement Order, the Court must be satisfied that “nothing else will do”, what happens if the judicial analysis of the advantages and disadvantages of adoption v long-term fostering come down on the side of adoption being a better placement outcome for the child, but NOT to the point where long-term fostering could be dismissed as a potential option that on analysis “will not do” ?

 

  1. Does the fairly common care plan of “search for adoption placement for six months under a Placement Order, and if not successful search for long-term fostering”    (dual-planning, as endorsed by Wall LJ in Re P) stand up to Re B-S ?   If one is saying that ‘long-term fostering’ would do in six months, then how can at the same time one say that it is an option that will not do?

 

And tied into all that is what the hell “nothing else will do” means when the Court is considering all of the other options.  In order to say that “nothing else than adoption will do”  isn’t the Court in effect saying in relation to each of the other options that they “won’t do”   ? (rather than that adoption, taken in the round,  has advantages that outweigh the advantages of the other options for the permanent care of this child?)

 

If that is right, and it is certainly one reading of Re B-S, that in effect the Court of Appeal have determined that adoption is not an option available to the Court unless all of the other options are excluded on a careful comparison – adoption is off the table unless all other options are discounted

 

 then the fact that a Court might decide that it is by far and away the BEST option of the range available for this particular child counts for little or nothing. And where does that leave s1 of the Children Act 1989?  It seems as though a Judge might have to make an order that doesn’t feel like the one which is in accordance with the child’s best interests.

 

[My own take on that would be that it feels deeply uncomfortable for a Judge to decide that adoption is better for the child than long-term fostering and then have to go for long-term fostering IF you are looking at it in terms of the Judge choosing the ‘best option’,  but IF you flip that around and look at it in terms of the Judge choosing the ‘least worst’ option, it probably works  – perhaps I’ve just been re-reading too much Daniel Kahnemann this week]

 

Whilst it was easy to frame Re B-S as being a conflict between adoption and parents as the options, it may be that the harder tussles are between adoption and long-term fostering.  There are many arguments that can be deployed about why adoption for a particular child is better for that child than long-term fostering (and vice versa) but limited arguments that would allow long-term fostering to be discounted as an option that “will not do”

 

In this case, Re B-S had arrived in fairly close proximity to the hearing, and the Local Authority final evidence had not as a result contained the analysis of the options now required. The Judge considered an adjournment but instead decided that the analysis could be drawn out of oral evidence, cross-examination and submissions.

 On the first issue, of what happens where adoption looks preferable to long-term fostering, but it cannot be said that long-term fostering “will not do”

 I have underlined the critical passages

 99.      Before approving the local authority’s plan the court must consider the arguments for and against each option. I am indebted to Mr Tyler for his very thorough written submissions and not least for his attempt to evaluate the arguments for and against adoption by means of a balance-sheet approach.
{I have snipped the balance sheet exercise for pacing, but it is worth a look}

 
104. Mr Tyler submits that the balance ‘comes down clearly and by a wide margin in favour of seeking to attain for David the “gold standard” of a secure, adoptive placement’. I don’t accept that to be the case. Whilst I do not disagree with the factors Mr Tyler proposes should be weighed in the adoption balance, in my judgment the balance is at best even. The local authority’s acknowledgement of the importance to David of contact with his siblings (a factor which, in accordance with s.1(4)(f)(i) the court is bound to consider in evaluating David’s welfare interests), its acknowledgement that the need for sibling contact may well impede the search for an adoptive placement and the impact of David’s emotional difficulties all weigh heavily against the plus factors identified in support of adoption.


105. Although Mr Tyler identifies only two factors in support of fostering compared with six factors against, in my judgment the weight of the competing factors means that the balance is closer than appears. I am nonetheless prepared to accept that the weight of the factors which point against long-term foster care marginally outweigh the factors which point in favour.


106. In the light of that balancing exercise it is difficult to see how it could properly be said that nothing else but adoption will do, that no other course is possible in David’s interests, that there are overriding requirements pertaining to David’s welfare which make it clear that nothing but adoption will do. When one adds to that the real and significant doubts about the deliverability of the plan for adoption for David and when one also takes account of the provisions of s.1(6) of the 2002 Act, the outcome in my judgment is clear. The plan to engage in a time-limited search for an adoptive placement is not appropriate.


107. On the facts of this case I am not persuaded that adoption is the appropriate outcome for David. It is not the least interventionist option consistent with his needs. I shall, therefore, dismiss the application for a placement order and approve the local authority’s alternative care plan of long-term foster care.

 

On the dual-planning issue

 

88.      Given the ‘striking’ language used by the Supreme Court in Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children) what, if any, are the consequences for the type of care plans this local authority advances in respect of David and James which propose a time-limited search for an adoptive placement with long-term foster care the fallback position if an adoptive placement cannot be found? For the local authority, Mr Tyler submits that this issue has already been determined by the decision of the Court of Appeal in Re P (A Child) [2008] EWCA Civ 535 and that that decision is unaffected by Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children).

 

Re P is undoubtedly a very strong authority for sanctioning a dual-planning care plan of the type “Look for adoption placement for six months, and then long-term foster if not successful”  – it is a Court of Appeal authority, the former President gave the judgment – it gives the practice ringing endorsement and deals with the topic in detail, and it absolutely isn’t up to a County Court Judge to decline to follow that precedent when the issue is absolutely on point.

 

The obvious issue, as the Judge went on to raise, is that if in order to make a Placement Order the Judge has to say that long-term fostering won’t do, then approving a plan in which long-term fostering is the back-up seems to conflict with that.

 

I.e there is a tension between Re P and Re B-S. Both Court of Appeal authorities.  Added to the complication is that the Court of Appeal in Re B-S specifically looked at Re P and quoted it approvingly (though not on this particular dimension) so they clearly did not determine that it was no longer good law  (if indeed they could)

 

112. So far as James is concerned, although Mr Tyler’s analysis relies upon similar factors to be weighed on either side of the balance, those factors do not necessarily carry the same weight. The fact that James is 18 months younger than David together with the fact that he does not appear to have suffered the same level of emotional harm persuade me that so far as the adoption balance is concerned it comes down in favour of adoption. As with David, I am satisfied that the foster care balance comes down, narrowly, against foster care. In those circumstances, the evaluation of adoption as against long-term foster care suggests that the balance comes down in favour of adoption.


113. That, though, is not the end of the matter. There may be a more fundamental reason for rejecting adoption as the long-term outcome for David. As the Court of Appeal acknowledged in Re B-S (Children), the language used by the Supreme Court in In Re B (A Child)(Care Proceedings: Threshold Criteria) is striking. Adoption is ‘a very extreme thing, a last resort’ only to be made where ‘nothing else will do’, where ‘no other course is possible in [the child’s] interests’. Care plans proposing a time-limited search for an adoptive placement for a child with long-term foster care as the alternative are not uncommon. With respect to such a care plan, how can it be said that ‘no other course is possible in the child’s interests’ or that ‘nothing else will do’ in circumstances where the local authority itself proposes long-term foster care if a brief (in this case six months) search for an adoptive placement is unsuccessful?


114. I referred earlier to the decision of the Court of Appeal in Re P (A Child). Mr Tyler submits that Re P (A Child) emerges from Re B-S (Children)

‘not only unscathed but positively reinforced. The President approvingly refers to the judgment noting that it enshrines “a stringent and demanding test”’

 

I don’t wholly accept that point. When one looks at the context in which the President used those words one finds that he was talking about the approach taken in Re P (A Child) to the interpretation of the word ‘requires’ as it appears in s.52(1)(b) and not to the court’s comments on the policy of the local authority/adoption agency to engage in dual planning.


115. If the consequence of the language used in Re B (A Child)(Care Proceedings: Threshold Criteria) is that dual planning is no longer permissible then the impact on local authority care planning will be profound. In the absence of a clear indication from the appellate courts that on this issue the guidance given in Re P (A Child) is no longer to be followed, I consider myself bound by it. Notwithstanding the unease I have expressed, having conducted the required balancing exercise I am satisfied that the local authority’s final care plan for James is proportionate and (in the context of both s.1(1) Children Act 1989 and s.1(2) Adoption and Children Act 2002) in his best welfare interests.

 

 

 

I have a suspicion here that the higher Courts, maybe even the Supreme Court, are going to have to look at the tension between Re P’s endorsement of dual-planning and the logical consequences of Re B-S that if long-term fostering is a viable option for a child, you can’t make a Placement Order just because adoption is a preferable option.  And that perhaps by publishing this judgment, the Judge had in mind that this issue needed to be brought into the light to be scrutinised.

 

(In the meantime, I don’t think I’m minded to run any dual-planning final care plans)

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We’re going to need a bigger bundle”

Posted on October 13, 2013 by suesspiciousminds

 

The Court of Appeal decision in Re W (A child) v Neath Port Talbot Council 2013

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1227.html

 

You may recall all of the President’s guidance recently about how bundles in care proceedings were going to become lean, mean fighting machines, stripped of all excess information like a formula one racing car; well that took a bit of a hit with Re B-S, which required that Local Authorities and Guardians unpackage all of the concepts that were traditionally contained in shorthand phrases and lay them out for inspection, not only in general but in application to the particular child in the case, and now Neath Port Talbot expands final evidence even further.

 

The Court of Appeal lead judgment is given by Ryder LJ, but the chilling /delightful bit  (depending on which side of the fence you sit on) is from the very small judgment from the President

I agree with the judgment given by Ryder LJ. There is nothing I can usefully add except to emphasise the importance of the principles he has set out so clearly. His judgment explains and elucidates the respective functions of the court and the local authority in care cases. It complements the recent judgment in Re B-S, which explains and elucidates what the court requires from the local authority (as well as from others) in those care cases where the plan is for adoption. The principles in these two judgments will for the future inform practice in all care cases

 

So, this isn’t going to be case-specific stuff, it is general principles.

 

The appeal itself covered three areas, and I’m largely going to concentrate on the middle one.

 

1.    A Judge who wanted to embark on a finding of fact exercise that the Local Authority and the mother didn’t seek (largely because a psychologist expert in the case urged the Judge to do so)

2.    The extent to which Local Authority final evidence should set out not only the detail of their own care plan, but the detail of how they would manage the case and what resources would be provided under the various other placement options for the child.

3.    What the Court is to do where the care plan they have in mind is not the same as the Local Authority’s care plan.

 

On point 1, which frankly bogs down in a lot of detail the other more important principles of the case; this would normally be a fascinating subject to write about, I just wish that it had arisen in a case that was confined to that issue.  It was a peculiar one, and the Judge ended up making a Care Order with a care plan that the child would be at home with mother and receiving significant support.  Neither the LA nor the mother wanted a care order, and the Judge effectively made a Care Order and endorsed a care plan that wasn’t actually placed before her.

 

The Court of Appeal felt that it WAS open to a Judge to decide what facts needed to be determined, notwithstanding that that view wasn’t shared

 

  The making of findings of fact and value judgments is not confined to those matters which a local authority seeks to pursue once proceedings have begun. That much is clear, the court can decline to permit the local authority to withdraw proceedings and can impose upon them an order that they did not or no longer seek.

 

On point 3, the Court of Appeal spent some considerable time analysing what is to be done where the Court having heard all of the evidence and argument wants to make a Care Order with a care plan that the Local Authority do not put forward.

 

“In relativity, Matter tells Space how to curve, and Space tells Matter how to move. The Heart of Gold told Space to get knotted and parked itself neatly within the inner steel perimeter of the Chamber of Law”  – Douglas Adams

 

 

In the Children Act 1989,  the Courts tell a Local Authority what order they can have, and the Local Authority tell the Court what they will do with that order. The Court of  Appeal just effectively told Local Authorities to get knotted.  I’m paraphrasing, of course.

 

We’ve historically had authorities that show that the Court can invite the LA to change their care plan, and that LA’s should listen carefully, but nothing that settles what happens when immovable object meets irresistible force.

 

This is what the Court of Appeal say

 

  It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued. That applies equally to the High Court whether in the Family Division of the High Court in the exercise of its inherent prerogative or Convention jurisdictions or in the Queen’s Bench Division of the High Court in the exercise of its public law jurisdiction in the Administrative Court.

  Within proceedings, however, the local authority in common with all other parties, are bound by the case management decisions of the court. It is the court which decides what the key issues are, that is the matters of disputed fact and opinion that it is necessary to determine in order to make the ultimate decision asked of the court. It is the court which decides the timetable for the child having regard to the welfare of that child and then the implications of that welfare timetable upon each of the interim procedural questions that it is asked to decide. It is the court which decides the timetable for proceedings. The court decides whether there are sufficient facts which if found would satisfy the threshold and provide the jurisdiction to make orders and it is the court which decides what evidence is necessary to answer the key issues and the ultimate decision, whether by directing the local authority or the other parties to provide the same or, if it is necessary, authorising the instruction of an expert on the question.

 

 

Yes, but what is the Court to ACTUALLY do? Here is Ryder LJ’s final solution, in addition to a hint on judicial review (although that begs the question of who the hell would issue a JR to make the LA’s order for a child at home a CARE order rather than a Supervision Order. I’m damn sure the parents won’t. Ryder hints that the child’s representatives might well be the ones to do so…I am not so sure about that)

 

 

The court considered the invitation to give an indication to the local authority and allow them to reconsider their position but came to the conclusion that even in a case where the child is to remain with a parent the proper administration of family justice and the detrimental effects of continuing litigation required immediate and timely action. Partnership working sometimes needs sanctions for compliance. In the unlikely event that a local authority declines to abide by a judge’s orders and directions in the future, the judge should inform the local authority’s monitoring officer appointed under section 5 of the Local Government and Housing Act 1989 to make a report to the authority with the intention that the authority is brought back into compliance.

 

Leaving aside issues of what the heck the Monitoring Officer could actually do to make the LA change their mind,  the “I’m telling on you” playground vibe to it, the  issues of conflict that this throws up (a substantial proportion of Monitoring Officers being the Head of the LA legal department) and that none of this is going to be done quickly, this seems very much to me like the Court of Appeal giving the green light to Judges who seek to impose a Care Order with a plan of the child being at home on a Local Authority who’s position is that if a Care Order is made the care plan should be that of separation.  How is this not the Court writing their own care plan, and the separation of roles being torn up?

(I happen to think that there might be very good policy reasons for changing the Act so that Courts have that power, but that’s not the way the Act is constructed. This is a power grab, of the kind that the House of Lords kicked into touch with  starred care plans.

I do wonder if Neath Port Talbot will appeal that aspect. For my mind, if a Local Authority plan is for placement with mother, then the Court can (though should do so reluctantly) impose a Care Order on them when they asked for a Supervision Order.  If the PLAN is separation, then the Court’s power is limited to inviting the LA to change their plan, making an ICO if the case warrants that, or making a Supervision Order.  It now seems to be that the Court will simply have the ability to keep the LA in after school until they agree to change their plan.

Of course, being cynical, I have suspected for a while that a consequence of the revised PLO will be more rehabilitation cases which haven’t been properly tested over time, and to avoid rafts of Supervision Orders coming back when they don’t work, the Courts would eventually shift to making Care Orders at home, something most LA’s are very apprehensive about. This paves the way for that. 

And I can see some merit in it – if the Court concludes, having done the Re B-S analysis that the risks are manageable at home, but not under a Supervision Order (say that it is obvious that the need for support won’t dissipate after a year, or even 3 years, or there is a need for the LA to share PR) then there will be circumstances in which a Care Order is the better order  – notwithstanding that the LA won’t want it, and the parents certainly won’t want it (the Care Order giving the right for the LA to remove the child without going back to Court, that’s no something you want hanging over you).  The circumstances in which a Local Authority would not take up the Court’s invitation to change a care plan are fairly limited, it is never something done lightly and is never a decision made by the social worker or manager alone – it goes very high up the chain of command. 

Anyway, on to the big bit, which fortunately can be summarised in fairly short order. Underlining is mine, for emphasis

 

101. The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations. None of this strays into the impermissible territory of seeking to bind the local authority’s care planning and review processes once a full order is made. If a local authority make it clear that they will not implement a care plan option about which evidence has been given and which the judge prefers on welfare and proportionality grounds, then in a rare case they can be subjected to challenge in the High Court within the proceedings. If and in so far as the local authority are of the opinion that they need to change a care plan option approved by the court once the proceedings are complete, they are entitled to do so and must do so in accordance with the processes laid out in the regulations. If they do so without good reason they will risk an appropriate challenge including on behalf of the child after a referral from an IRO to Cafcass or a Welsh family proceedings officer.

 

 

Thus, as well as now having to encapsulate in their final evidence an analysis of the advantages and disadvantages of each possible placement outcome available for the child, the LA have to in effect submit a care plan for each of those options

 

AND

If the Court give a judgment and ask the LA to file an updated care plan based on those evaluations, the LA must do so.

Those are the two bits that the President endorsed in his brief paragraph, and thus become applicable law to ALL cases, not restricted to this one.

Thus, having rewritten final evidence for cases to include Re B-S compliance, those statements are now going to have to be written again to make them Neath Port Talbot compliant.  And if the evidence is already lodged and the parents have responded, how Article 6 compliant is it for the LA to file such vital addendum evidence and the Court move to final hearing without the parents having had opportunity to respond?  (I suspect the 26 week target statistics are going to take a nose-dive in the interregnum period)

 

 

 

 

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A head-scratcher

Posted on October 9, 2013 by suesspiciousminds

 

The decision in Re AW (A Child : Leave to revoke Placement Order : Leave to oppose adoption) 2013 and why it made me blink incessantly whilst trying to figure it out.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2967.html

 

It is a curious thing with English law, that we can end up with judgments and reported cases that are available to us AFTER big game-changers, but predate the actual game-changing case.  So although we have Re AW now, and we have already seen Re BS, the parties and the Court in Re AW were unaware of Re BS.

 

(Having said that, the Judge actually did an admirable job of balancing the competing factors, and it might actually comply with Re BS, despite having been decided in blissful unawareness of it)

Here’s the bit that made me blink

The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order,

 

Are you also blinking? Read it again

 

The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order,

 

It appears that what happened was that a care order and placement order had been made – the parents had not attended the final hearing because the mother was pregnant with another child and was trying to conceal that from the Local Authority.

They then appealed the decision, and applied to revoke the Placement order three times, unsuccessfully.

 

The child was placed with adopters and there seem to have been some threats of judicial review.  The parents had indicated their intention to apply again to discharge the care order / revoke the placement order, and the placement occurred against that backdrop. A letter of claim had been sent which clearly intimated a judicial review was in the offing.  That would have been much more slow to resolve than in the family courts (yes, some things are slower than family court justice)

The Local Authority had thought pragmatically about a solution, and come up with the idea that making an application themselves to revoke the Placement Order to get it before the Court, whilst simultaneously making it plain that they did not want the Court to grant their application was a device which might work.

 

Those representing the adopters were, understandably pretty aghast at that approach and considered it to be misconceived, and in effect allowing the parents to run a case for revocation without meeting the two-stage test for leave to apply to revoke set out in the case law.

Has there been a change of circs, does that change justify relooking at the care plan approved by the Court?  (The LA don’t have to meet that test, so the parents could effectively be inviting the Court to grant the LA’s application, and the issue of leave wouldn’t arise)

 

Blinking now?

Thankfully, the mess was resolved by the prospective adopters getting their adoption application in, which meant that the Court could actually litigate the matter by way of the parents applying for leave to oppose the adoption

Last week, on 7th August 2013, Solicitors representing Mr and Mrs A issued an application for adoption. That fact enabled Ms Fottrell to go on to submit that the parents might achieve their central aim of securing a substantive hearing by making an application for leave to oppose the making of an adoption order. No party disagreed. Ms Fottrell suggested it was the only remedy in the current factual circumstances which does not offend the letter and spirit of the statute. And whilst that contention is almost certainly correct, it has to be said that until proceedings for adoption were begun there was no other available legal vehicle so as to enable the court to be seized of the issues.

 

The remainder of the judgment deals with the evidence heard over a three day hearing (!) on those issues and the balancing exercise that the Judge conducted to reach the decision to refuse the applications.

 

I suspect that the balancing exercise survives Re BS unscathed, it is much more thorough and comprehensive than one sometimes sees, and the Judge very much had in mind that adoption was a last resort and why.

 

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You say “Investing”, I say “embezzling”, let’s call the whole thing off

Posted on October 9, 2013 by suesspiciousminds

 

Am beginning to be very fond of Judge Lush, who decided the JM and MJ case I recently blogged about.  This is another Court of Protection case.  The Court of Protection gets a hard time from people (including me), but I am massively in favour of the way this particular Judge is getting stuck into those people who end up being responsible for managing the affairs of someone lacking capacity and end up enriching themselves.

 

The Public Guardian v C 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2965.html

 

Miss Buckley entered into an Lasting Power of Attorney (LPA) in which she appointed her niece, C, to be her sole attorney. Miss Buckley lives in a nursing home, for which the fees are just under £1000 per week.  The nursing home became concerned about what Miss Buckley was saying about the way C was managing her affairs and an investigation took place.

 

  1. The application was accompanied by a witness statement made on 22 October 2012 by Yun Ding, an investigation officer with the OPG, which can be summarised as follows:

(1) Miss Buckley’s house had been sold for £279,000 on 28 April 2011.

(2) Between 17 January 2011 and June 2012 the attorney had withdrawn £72,000 from Miss Buckley’s funds to set up a reptile breeding business. The attorney claimed that this was a short-term investment which would generate a 20% return over a two year period.

(3) The attorney admitted that she had used at least £7,650 of Miss Buckley’s capital for her own personal benefit.

(4) The attorney said she visited Miss Buckley once a week, but this was contradicted by the nursing home, who said that she had not visited her at all until 16 October 2012, when she appears to have obtained Miss Buckley’s signature on some unknown documentation.

(5) At one stage there had been daily cash withdrawals of £300 (the maximum amount) from Miss Buckley’s Nationwide Building Society account.

(6) The Special Investigation Department at the Nationwide had alerted Social Services in April 2012 and the matter was also referred to the police, who interviewed the attorney in July 2012.

(7) Miss Buckley’s estate may have incurred a total loss of approximately £150,000.

 

(The withdrawal of the maximum daily amount from the Nationwide is a bit of a telling indicator here)

 

It seems that a lot of this money was being ‘invested’ in a company which specialises in breeding reptiles  (“so… many…jokes. must resist jokes”)

14.On 13 December 2012 Yun Ding made a second witness statement, the primary purpose of which was to exhibit Dr Barker’s report and to update the court on the OPG’s investigation as required by the directions order of 23 October. She concluded the statement as follows:

“From the evidence gathered so far, I estimate that Miss Buckley has contributed at least £87,682.53 towards the reptile investment venture described by C. In the absence of any contrary evidence, the Public Guardian maintains that Miss Buckley’s finances may have been used to heavily subsidize what appears to be a reptile breeding business, without any formal guarantee or security or her share of the alleged investment returns. C also appears to have misappropriated £43,317.47 of her aunt’s estate without obtaining consent, contrary to what she had told the police. I have therefore re-referred this matter back to the police to conduct further enquiries

It certainly seems a distinct possibility that this ‘reptile’ company was C’s own business, or one in which she had a direct financial involvement in. The “investment” led the Judge to give some general principles on investing when doing so under an LPA.

The investment of funds by an attorney

20.There are two common misconceptions when it comes to investments. The first is that attorneys acting under an LPA can do whatever they like with the donors’ funds. And the second is that attorneys can do whatever the donors could – or would – have done personally, if they had the capacity to manage their property and financial affairs.

21.Managing your own money is one thing. Managing someone else’s money is an entirely different matter.

22.People who have the capacity to manage their own financial affairs are generally not accountable to anyone and don’t need to keep accounts or records of their income and expenditure. They can do whatever they like with their money, and this includes doing nothing at all. They can stash their cash under the mattress, if they wish and, of course, they are entitled to make unwise decisions.

23.None of these options are open to an attorney acting for an incapacitated donor, partly because of their fiduciary obligations and partly because an attorney is required to act in the donor’s best interests. The Mental Capacity Act 2005, section 1(5), states that, “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

24.Mr Justice Lewison (as he then was) commented on this point in Re P (Statutory Will) [2009] EWHC 163 (Ch), [2009] COPLR Con Vol 906. At paragraph 42 he said:

“I would add that although the fact that P makes an unwise decision does not on its own give rise to any inference of incapacity (section 1 (4)), once the decision making power shifts to a third party (whether carer, deputy or the court) I cannot see that it would be a proper exercise for a third party decision maker consciously to make an unwise decision merely because P would have done so. A consciously unwise decision will rarely if ever be made in P’s best interests.”

25.Attorneys hold a fiduciary position, which imposes a number of duties on them. Like trustees and other fiduciaries, they must exercise such care and skill as is reasonable in the circumstances when investing the donor’s assets and this duty of care is even greater where attorneys hold themselves out as having specialist knowledge or experience.

 

 

31.Two of the most important factors when considering the suitability of investments are the donor’s age and life expectancy. Most donors are older people. Their average age is 80 years and 11 months and, in this respect Miss Buckley, who is 81½, is a typical LPA donor.

32.Short-term investment codes are generally more appropriate where an individual has an anticipated life expectancy of five years or less, and the guidance to court staff suggested that, “without clear medical evidence it would be prudent to consider a life expectancy of less than five years for new patients aged 80 or over.

 

 

And

  The second point is that, subject to a sensible de minimis exception, where the potential infringement is so minor that it would be disproportionate to make a formal application to the court, an application must be made to the court for an order under section 23 of the Mental Capacity Act 2005 in any of the following cases:

(a) gifts that exceed the limited scope of the authority conferred on attorneys by section 12 of the Mental Capacity Act;

(b) loans to the attorney or to members of the attorney’s family;

(c) any investment in the attorney’s own business;

(d) sales or purchases at an undervalue; and

(e) any other transactions in which there is a conflict between the interests of the donor and the interests of the attorney.

 

  The final point is one that has been made in the past, but needs to be repeated. Attorneys should be aware of the law regarding their role and responsibilities. Ignorance is no excuse. I am not suggesting that attorneys should be able to pass an examination on the provisions of the Mental Capacity Act 2005, but they should at least be familiar with the “information you must read” on the LPA itself and the provisions of the Mental Capacity Act 2005 Code of Practice. Section 42(4)(a) of the Act expressly stipulates that it is the duty of an attorney acting under an LPA to have regard to the code.

  Commenting on the conduct of an attorney in Re W (Enduring Power of Attorney) [2000] Ch 343, at page 350 Mr Jules Sher QC said:

“… she ought to have known the law if she was to take on the responsibility of such an important fiduciary position, particularly as one of the few things expressly stated in part of the power itself is the following sentence: “I also understand my limited power to use the donor’s property to benefit persons other than the donor.””

 

 

A person taking on that responsibility to manage the affairs of a vulnerable person has to make themselves familiar with the limits on those powers, and ignorance of the law is no excuse.

 

It is not, therefore a massive surprise that the Judge didn’t consider that C had been properly conducting affairs on behalf of Miss Buckley  (incidentally, I think it slightly unfair that the innocent Miss Buckley is named, whereas C gets a cloak of anonymity here). There’s some lovely judicial understatement here  “One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice”

 

  I am satisfied that C has contravened her authority and has acted in a way that is not in Miss Buckley’s best interests.

  Even if one were to be generous and believe C and accept at face value her description of the way in which she has applied Miss Buckley’s funds as an ‘investment’, it was a highly unsuitable investment to make and she broke almost every rule in the book in making it.

  She did not obtain and consider proper advice from someone who is qualified to give investment advice. One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice by his ability in and practical experience of financial and other matters relating to investment.

  The investment was very high risk. When investing funds on behalf of older people, the perceived wisdom is that the investments should be safe and that very little risk is acceptable as can be seen from the short-term investment tables set out above. Even when investing funds long-term on behalf of a younger person, a hazardous and speculative investment of this kind would have been inappropriate for anyone in a fiduciary position to make.

  The attorney invested in her own business, which was in breach of her fiduciary duty. Paragraph 7.60 of the Mental Capacity Act Code of Practice states that:

“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They also must not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor, and not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”

  The investment was also made in the attorney’s name. This was in breach of the guidance to attorneys given in paragraph 7.68 of the Code of Practice to keep the donor’s money and property separate. The attorneys’ admission in paragraph 16 of her witness statement – “I would like to state that I was not aware that the investment had to be made in her name and was concerned about signing on her behalf – is no excuse.

  C’s use of £43,317.47 (according to Yun Ding’s second statement) of Miss Buckley’s capital for her own personal benefit was way beyond the very limited authority to make gifts conferred on attorneys by section 12 of the Mental Capacity Act 2005. The attorney’s comments paragraphs 17 and 18 of her witness statement are no defence:

“I agree that my aunt lacks capacity to manage her own financial affairs and in my view she has become increasingly confused and is unable to understand the information relevant to deciding how to handle her finances or retain that information. … I admit that some of the money was used for my own benefit but only with my aunt’s permission.”

  As regards Miss Buckley’s capacity, I am satisfied that she is incapable of revoking the LPA herself. I accept the opinion of the Court of Protection Special Visitor, Dr Andrew Barker, who stated:

“She was unable to understand the nature and effects of an LPA to a sufficient degree or to choose an attorney, was not aware of her financial dealings and could not recall detail sufficiently well or concentrate long enough to weigh information in the balance to come to decisions about an attorney or to direct or instruct an attorney.”

 

 

This is what Miss Buckley’s friend Shirley said

“I am so worried that (Miss Buckley’s) money will get stolen and that she won’t be able to stay in the nursing home. I have been asked not to get in touch with C both by social services and by the police. I find this very difficult. I must have given two years of my full attention – selling her house for her – setting up the Nationwide to pay the (nursing home) monthly. Finding a decent retirement residence (from which she had to move for health reasons) then I found her the nursing home but it’s nearly £1000 per week. She cannot afford for her money to be taken. She needs every penny.”

 

Very very true. A shame that C could not see things in that light at all.  I hope that she and the reptiles are very happy together.

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Being a deputy is not a licence to loot

Posted on October 8, 2013 by suesspiciousminds

A Court of Protection case has recently tackled the issue of a person with considerable financial means but no capacity to manage her affairs, and the deputies appointed by the Court having made extensive ‘gifts’ from her financial estate and seeking retrospective approval for them.

MJ and JM v The Public Guardian 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2966.html

This was the background to the appointment of MJ and JM as deputies

 

9.       GM has vascular dementia, which was first formally diagnosed in 2007.

10.   On 25 August 2010 the court made an order appointing MJ and JM jointly and severally to be her deputies for property and affairs.

11.   The order required the deputies to obtain and maintain security in the sum of £275,000. The premium for the security bond, which is payable from GM’s estate, is £550 a year, and the purpose of the bond is to restore to GM’s estate any loss that may have arisen as a result of the wrongful acts or omissions of her deputies.

12.   Paragraph 2(c) of the order gave the deputies the following authority to make gifts:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

The case sets out very clearly the parameters in which deputies can operate, particularly with regard to ‘gifts’  and ‘deputyship expenses’

  1. The scope of a deputy’s authority to make gifts
  1. Section 16(2)(b) of the Mental Capacity Act 2005 provides that the court may appoint a deputy to make decisions on behalf of ‘P’, which is the shorthand term used in the Act for the person who lacks capacity or to whom the proceedings relate.
  1. Section 16(3) states that the powers of the court under section 16 are subject to the provisions of the Mental Capacity Act 2005 and, in particular, sections 1 (the principles) and 4 (best interests).
  1. Section 16(4) provides that the court may “confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).”
  1. Section 18(1)(b) provides that the powers of the court under section 16 extend to making a gift or other disposition of P’s property.
  1. Paragraph 2(c) of the order of 25 August 2010 appointing JM and MJ as GM’s deputies defined the scope of their authority to make gifts in the following terms:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

  1. Similar wording appears in almost every order appointing a deputy for property and affairs, and the intention of the court is that deputies should have the same powers to make gifts as attorneys acting under an Enduring Power of Attorney (‘EPA’) or a Lasting Power of Attorney (‘LPA’).
  1. It is important that deputies and attorneys should:

(a) realise that they have only a very limited authority to make gifts;

(b) understand why their authority is limited; and

(c) be aware that, in an appropriate case, they may apply to the Court of Protection for more extensive gift-making powers

  1. Deputyship expenses
  1. Section 19(7) of the Mental Capacity Act 2005 provides that:

“The deputy is entitled –

(a) to be reimbursed out of P’s property and affairs for his reasonable expenses in discharging his functions, and

(b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.”

  1. The Act distinguishes between two kinds of entitlement: the reimbursement of expenses, on the one hand, and remuneration, on the other. A deputy is entitled, as of right, to be reimbursed for the expenditure he incurs in carrying out his functions, though a ‘reasonableness test’ arises as to the amount he can actually recover.
  1. The Office of the Public Guardian publishes a booklet called A guide for Deputies appointed by the Court of Protection (OPG510), which is available in both hard copy and on the OPG website. Page 22 of this guide states as follows:

“Will I be reimbursed for my expenses?

The Act allows you to be reimbursed for reasonable expenses incurred when acting as a Deputy. Examples of expenses include telephone calls, travel and postage.

Expenses are not payment for your time spent while acting as a Deputy – this is called remuneration and can only be claimed if the Court order specifically states it. If you wish to receive remuneration you should ask the Court to consider this in your initial application.

 

The expenses you are entitled to claim and what is considered reasonable will vary according to the circumstances of each case. It depends on what you are required to do and also the value of the estate of the person who lacks capacity.

The OPG expects that you will only claim reasonable and legitimate expenses. If you claim more than £500 in expenses per year the OPG may require you to explain your expenses in detail and frequently.

If your expenses are considered unreasonable you may be asked to repay them, and in extreme cases the OPG may apply to the Court to cancel your appointment.”

So, in this case, what sort of “expenses” had been claimed?

£46,552.24 for ‘cars and computers’

Flick back – acceptable expenses £500 a year, and they went for nearly £50,000, out by several orders of magnitude.

It is no surprise that the Court considered that these were not ‘expenses’ at all, but the deputies making unauthorised gifts to themselves, and thus decided that they were obliged to refund GM’s estate with the money.

Let’s look at the gifts now

MJ personally had received ‘gifts’ from GM’s funds totalling £55,856  – including an £18,000 Rolex watch, a £16,000 ring, perfume, an Alexander McQueen handbag and £20,000 in cash.

JM personally had received ‘gifts’ from GM’s funds totalling £48,396.50, including a £17,000 Omega watch, two rings costing over £11,000, 2 Mulberry handbags and £20,000 in cash.

These were, of course, people who had been appointed by the Court to safely manage the estate of a very vulnerable woman and who had sworn an oath to do so properly.  I don’t think that I can actually find the words to describe how loathsome I consider their conduct to be, and I am amazed that the Judge was able to be as circumspect as she was.

They also made gifts of £62,500 to other friends and family members, all of whom seem to receive a Vivienne Westwood handbag, apart from one man who received a DerbyCounty season ticket.

GM had not been consulted about any of these ‘gifts’, nor had her wishes been explored by MJ and JM in any way.

  1. The Public Guardian’s position is that the deputies have made unauthorised gifts totalling £171,407.50 from GM’s estate to themselves and their immediate family.

The Public Guardian believes that this level of gifting by the deputies is excessive, not in the best interests of GM and is inconsistent with the deputies’ fiduciary duty of care. In addition, the deputies have exceeded the authority given to them to act on GM’s behalf in respect of her property and affairs and have exposed themselves to allegations of self-dealing.

In addition, the Public Guardian also questions if the deputies had the authority to spend a total of £46,553.14 in purchasing a car and computer each and then claim them as ‘deputyship expenses’. It is the Public Guardian’s opinion that the cars and computers are further unauthorised gifts which the deputies had no authority to make to themselves.

The Public Guardian has calculated that almost 44% of GM’s total assets have been disposed of by way of gifts made by the deputies to themselves and their family where they had no authority to do so. Therefore, the Public Guardian cannot recommend to the court that the gifts shown below can be approved retrospectively.

Detail

Amount

 

 
Gifted to immediate family

£67,155.00
Gifted to MJ

£55,856.00
Gifted to JM

£48,396.50
Deputy ‘expenses’

£46,553.14
Total

£217,960.64

Damn. Right

GM has £177,230.96 left in her estate

I don’t usually make comments about the individuals who appear in cases, over and above the judgments, but this particular case is making that rule of mine very hard to stick to. My opinion of these people, and it is merely a personal opinion based on the reading of the judgment, could not be much lower.

  1.  I do not accept that the gifts they made were in GM’s best interests. They are completely out of character with any gifts she made before the onset of dementia. There was no consultation with her before they were made and there was no attempt to permit and encourage her to participate in the decision-making process, or to ascertain her present wishes and feelings.
  1. Nor do I accept the applicants’ argument that they believed that the order appointing them allowed them to make gifts on such an extensive scale. They should have been aware of the law regarding their role and responsibilities. Ignorance is no excuse.
  1. The fact that GM’s remaining assets were in the names of one or other of the applicants, rather than in GM’s name, is a further example of what is, at best, ignorance, and, at worst, stealth.
  1. I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.
  1. If they had made a proper application for the prospective approval of gifts, I would possibly have allowed them to make gifts to themselves and their families to mitigate the incidence of IHT on GM’s death, but only if they had been the residuary beneficiaries under her will.

The applicants were seeking approval of gifts and expenses totalling £277,811.74. The approval of only £73,352 has left them personally liable to GM’s estate in the sum of £204,459.74, which they must pay back.

 

The Judge was then alive to the fact that GM did not have a will and that an application might be made for a statutory will, and that in doing so, JM and MJ might become the beneficiaries, allowing them to avoid repayment AND gain the remaining funds into the bargain.

  1. I shall not attempt to prejudge the outcome of any statutory will application, but, if an order is made for the execution of a will on GM’s behalf, there is a possibility that MJ and JM could become her residuary beneficiaries, in which case their liability to her estate may become less relevant.
  1. On the other hand, the judge who considers the statutory will application may take the view that, if she had testamentary capacity and was fully aware of what has been going on, GM would be outraged by the applicants’ conduct and would make no provision for them at all.
  1. Alternatively, the judge may find that GM’s intestate heirs have had closer contact with her than the applicants suggest, or that certain charities, such as the Christadelphian Church, the Scottish National Trust or the National Deaf Children’s Society, have a more meritorious claim on her bounty and should receive the lion’s share of her estate.

Applauding

And just for good measure, discharging them as deputies

  1. For the purposes of section 16(8) of the Mental Capacity Act, I am satisfied that the deputies have behaved in a way that contravened the authority conferred on them by the court and was not in GM’s best interests.
  1. I am not persuaded by any of Miss Bretherton’s submissions on their behalf, and I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.

One of those cases where just reading it makes you want to take a long shower and despair about the ability of human beings to be craven and opportunistic.   Sadly there is nothing in the judgment about PC Plod being at the back of the Court with some handcuffs – I suppose one could make a case on obtaining by deception (since they would never have had the lawful access to GMs funds as a result of being appointed deputies if the Court had had any inkling that rather than looking after GM, they were simply going to enrich themselves at her expense)

 

Some days, I am afraid that I hope that the medieval world view of what happens after one dies is actually true.

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Capacity to consent to sexual intercourse

Posted on October 7, 2013 by suesspiciousminds

Another useful case on this issue from Baker J sitting in the Court of Protection.

A Local Authority v TZ  2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2322.html

There are a few unusual features of this case – firstly that the Local Authority and the Official Solicitor representing TZ were in agreement that TZ DID have capacity to consent to sexual intercourse and it was the expert who was not, thus leading to the need for a Judge to make the determination.

Secondly, as illustrated very neatly by Baker J, there is the potential line of conflict between authorities decided in the Court of Protection and authorities decided in the Supreme Court, as to whether capacity to consent to sexual intercourse was merely ‘act specific’  (as the Court of Protection have said) or whether it is ‘act and person specific’  (as Baroness Hale said in R v Cooper 2009 which was a criminal prosecution)

  1. How is a court to determine capacity to consent to sexual relations? It is well established that capacity to marry is to be assessed in general and as a matter of principle and not by reference to any particular proposed marriage: see the decision of Munby J (as he then was) in Sheffield City Council v E [2005] Fam 326, approved by the Court of Appeal in the PC case (supra) at paragraph 23 of McFarlane LJ’s judgment. It is act specific and status specific rather than person specific or spouse specific. In a further case, Local Authority X v MM [2007] EWHC 2003 (Fam), hereafter referred to as ‘MM‘, Munby J adopted the same approach to capacity to consent to sexual relations, holding that it, too, is act specific rather than person specific. At paragraph 86 Munby J said:

“The question [capacity to consent to sexual relations] is issue specific, both in the general sense and…in a sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.”

 

  1. This approach was, however, disapproved by Baroness Hale of Richmond in R v Cooper [2009] UKHL 42 [2009] 1 WLR 1786 in the context of a criminal prosecution for an offence of sexual activity with a person with a mental disorder impeding choice, contrary to the Sexual Offences Act 2003. In paragraph 27 of her speech in that case, Baroness Hale observed:

“My Lords, it is difficult to think of an activity which is more person-and situation-specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so. This is entirely consistent with the respect for autonomy in matters of private life which is guaranteed by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The object of the Sexual Offences Act 2003 was to get away from the previous ‘status’ – based approach which assumed that all ‘defectives’ lacked capacity, and thus denied them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.”

Mostyn J grappled with this tension in D Borough Council v AB 2011

  1. In D Borough Council v AB [2011] EWHC 101 (Fam), [2011] COPLR Con Vol 313, [2011] 2 FLR 72, a case involving a man with a moderate learning disability, whom the judge referred to as ‘Alan’, Mostyn J grasped the nettle of addressing the conflict between Munby J’s decision in MM, a case that pre-dated the Mental Capacity Act, and Baroness Hale’s observations in R v Cooper, a Supreme Court case that post-dated the Mental Capacity Act but were made in the context of a case involving a different statutory provision. Mostyn J came down firmly on the side of Munby J’s approach. Having acknowledged the correctness of Baroness Hale’s observation quoted above that ‘it is difficult to think of an activity that is more person-and situation-specific than sexual relations’, he added (paragraph 35):

“but the same is true (if not truer) of marriage. But it does not follow that capacity to marry is spouse-as opposed to status- specific. Far from it. I do think, with the greatest possible respect, that there has been a conflation of capacity to consent to sex and the exercise of that capacity. There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent to sex with him or her?”

And Baker J notes that there is the possibility of the Court of Protection line coming into difficulties if a case ever goes to the Supreme Court, but concludes that in this case   (particularly since what TZ intended was to embark on sexual relationships with persons he considered suitable in the future who he had not yet met, rather than with a single known partner) it was more proportionate to look at whether TZ had capacity on an ‘act specific’ way, rather than whether he had capacity to consent to sex with particular individuals.

I can see merit on both sides – if for example, a person with difficulties was in a relationship with a partner who was very alive to his issues and very skilled in explaining things to the person and had no intention of taking advantage of them, that might require slightly less capacity than a partner with very different approach and morals. I think that on the issue of intrusion, however, Baker J was right.

The next interesting aspect is the three-tier test of capacity to consent to sexual intercourse as devised by Munby J and endorsed by Mostyn J in D Borough Council v AB 2011

  1. 27.   “I therefore conclude that the capacity consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissable infections; that sex between a man and a woman may result in the woman becoming pregnant.”

 

There has been speculation, including within judgments as to whether all three elements are applicable where there is no risk of pregnancy (particularly with regard to a homosexual relationship)

The issue arose specifically in this case, as TZ’s sexual orientation was homosexual, and he wished to have sex with men, rather than women.

I believe that this is the first time that the Court of Protection have decided the issue, rather than simply speculated about it. So, this is the key passage

  1. I therefore conclude that in the case of a person in respect of whom it is clearly established that he or she is homosexual – gay or lesbian – it is ordinarily unnecessary to establish that the person has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy.
  1. Having said that, it goes without saying that human sexuality is profound and complex and there are many people, such as Alan in D Borough Council v AB and indeed TZ in the current case, who have, at times, been attracted to both men and women. In those circumstances, it will be necessary to establish an understanding and awareness of the fact that sex between a man and a woman may result in pregnancy as part of the assessment of capacity to consent to sexual relations.

Having established the appropriate test (did TZ understand the mechanical action and the health risks?) the Judge then considered whether TZ met that test

  1. TZ spoke frankly about his own sexuality. He said that he had come out as gay about a year ago. Before that, he had been a bit confused but now was not. There are some reports in the local authority records suggesting that he may have been attracted to women at one stage since he moved into H Home. TZ was clear that this was no longer the case. “I’m not attracted to women at all, just men.” He said that it was important to be friends first with someone before moving onto a sexual relationship. Asked what he would get out of such a relationship, he identified sexual pleasure, but also thought it was important “to be happy and healthy, not be abused, and not be let down”. It seemed to me that he was referring back to unhappy experiences in previous relationships. “It’s not just the sex, it’s about being happy and safe and secure in the relationship.”
  1. TZ described in simple terms the physical acts of sex both between a man and a woman and between two men. He indicated that he understood that, “if men and women have sex, the woman can get pregnant”. He knew that a man cannot become pregnant. He was aware of the health risks from sexual activity, and listed the names of several sexually transmitted diseases. He said that the way of avoiding catching any of these diseases was to use a condom. He said that he knew there was a risk of the condom splitting, and in those circumstances he would get himself tested. He has been tested twice before for HIV. On each occasion, the test was negative.
  1. He said that he would like to have the opportunity to meet a man, by going to places such as gay bars. He said that he had learned to take his time because “you can’t judge a book by its cover”. He said he would rather not rush things, but would rather wait to see if he could trust the man. He would not have sex on a first encounter but would wait until he knew the man a little better. “Sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.”

The expert’s view seemed to be that TZ did not meet the test because he was not able to use and weigh information before making a decision in relation to sexual intercourse and did not have an understanding of the emotional consequences involved.

The Judge rejected that argument.

  1. It seems to me, with respect, that Dr. X is making a similar error as that made by the expert in D Borough Council v AB when he stipulates that the ability to use and weigh relevant information before consenting to sexual relations involves “a complex analysis of risks and benefits often in the abstract and hypothetical”. In D Borough Council v AB, the expert suggested that one essential ingredient of capacity to consent to sexual relations was “an awareness that sex is part of having relations with people and may have emotional consequences”. Mostyn J observed in response (at paragraph 37):

“This criterion is much too sophisticated to be included in the low level of understanding and intelligence needed to be able to consent to sex. Apart from anything else, I would have thought that a great deal of sex takes place where one party or the other is wholly oblivious to this supposed necessity.”

  1. Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.
  1. In any event, I am satisfied in this case, having spoken to TZ myself, that he does have an understanding of the need to weigh up the emotional consequences of having sexual relations. This was evident to me from his comment that he would rather not rush things, but would rather wait to see if he could trust the man and by his observation that “sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.” This insight seemed to me to be well above the level of “rudimentary” ability required.
  1. Overall, I find that TZ does have the capacity to use and weigh the information to the degree required for capacity to consent to sexual relations. I think he has been significantly helped in that regard by the sensitive programme of sex education he has received. Like most people, he may behave impulsively at some point in the future, and in his case that tendency may be accentuated by his ADHD, but I do not consider that this tendency means that he lacks the ability to use and weigh the relevant information.
  1. I therefore declare that TZ has the capacity to consent to and engage in sexual relations

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“Eggs, eggs, damn all eggs!”

Posted on October 2, 2013 by suesspiciousminds

Judicial wrath about the pervasiveness of the word “concerns”  in a care case, and the word being used to mask the lack of substantiated evidence or allegations.

Re Avon, North Somerset and Gloucestershire Public Law Case 2013

 http://www.familylawweek.co.uk/site.aspx?i=ed117568

(The title is taken from the Master, P G Wodehouse, who described Bertie Wooster’s uncle, Lord Worplesden, as having one day come down to breakfast, lifted the silver platter and shouted “Eggs, eggs, damn all eggs!” before fleeing home and never being seen again.   I just like it as a pithy way to convey the feelings of sheer hopeless exasperation)

The Judge in this case made a number of complaints about issues that had arisen in the case – he anonymised the LA involved, by naming all three who regularly appear before him  (nice for the one in trouble, who got to hide in the shadows, but rather rough on the two completely innocent ones who get tarred with the brush of suspicion when they had nothing to do with it)

 

Many of the complaints, though made about the LA, also relate to judicial decision-making (the listing of a finding of fact hearing, the absence of a proper schedule of allegations, the delay, the proliferation of expert evidence – none of which can be done by an LA in isolation, the Court has to shoulder some of the responsibility for this)

 

But then it gets into interesting territory, where the Judge talks about the reasons given by professionals for not wanting to place the children with grandparents

 

 

10.  Time and again I was told that the Local Authority had ‘concerns’ about issues (the word ‘concern was used by the Local Authority advocate more than twenty times in one day). Those ‘concerns’ were not substantiated by direct evidence and should have been. I give this very clear example. The head teacher of a school was called to give evidence about events relating to the other children in the grandmother’s household. Her statement was about events in July 2013 and suggested difficulties within the grandmother’s home then. I asked [sic] whether the events of which she was speaking were representative of the school’s perception of the grandmother’s overall care of those children. I was told from the witness box that there were many other things that the school could say and would want to say. They were not contained in any statement but, I was told by counsel for one of the Respondent parties, reference to them could be found ‘dotted around’ the four lever arch files. Evidence was also available from the health visitor (but did not feature in any statement). If a Local Authority seeks to substantiate an important contention it must do so on direct evidence where that evidence is available. Hearsay evidence is admissible but that does not mean that a Local Authority can dot its contentions around a bundle and then expect a court to reach satisfactory conclusions on issues of such fundamental importance to children and families.

 

 

That does, to me, raise two very important issues.

 

Firstly that the word concern can be waved around in Court and be emphasised and repeated so much that ‘concerns’  (which end up being rather less than ‘allegations’ and far far less than “proven or determined facts”) begin to morph from an insubstantial wisp to solid reasons for not doing something.  I think the Court is right to drag everyone back to the foundation that we work on evidence and proven or provable FACTS, not flights of fancy.  Even where a risk is put as being one that “Cannot sensibly be ignored”   that determination has to be made on the Court establishing that facts that lead up to that risk are made out on the balance of probabilities.

 

Secondly, we are back on the issue that “Judges are not forensic ferrets”  – if the nub of the case is not gathered together in one place (with cross-referencing) but is dotted around the papers hither and thither, to be found by only assiduous reading, that simply won’t do.

 

 

This led on to the Judge’s proper criticism that what seemed to happen with the assessment of the grandparents is that professionals devoted all of their attention to negative criticisms and gave no thought or weight to the potential advantage of a child being cared for within the family or the potential disadvantages to the child of being cared for by strangers (the very heart of Re BS)

 

11. the unprincipled approach to welfare issues. Entirely omitted from the special guardianship report and much of the other welfare analysis were two matters which were of utterly elementary and fundamental importance:

i) The effect now of removing the boy from the grandmother. In welfare checklist language, what would be the effect on the boy of the proposed change in his circumstances that would arise if removed from his current home and what are his emotional needs to remain a part of his current household?

ii) The significance of the boy maintaining his place as a child cared for within his natural family. The boy has an established family life with his grandmother (Article 8 of the Convention was therefore engaged). He had spent the majority of his life in a household with other children there (aged 10, 12 and 15). His step grandfather had played a very full role in his upbringing. By remaining in his family he would continue to see his mother in structured contact.

12. I found it deeply demoralising that these simplistic issues could pass without even being mentioned. What happened in the hearing is that all possible negative points about the grandmother were explored in evidence. At least some of them had no foundation at all. Some of these negative ‘concerns’ were expressed in superlative, wholly unjustifiable and internally contradictory terms, especially within the special guardianship report. For instance I heard in oral evidence that the grandmother was not child focussed and did not co operate with professionals; that was not borne out by the report of the person who said it (or by the evidence of others) and was manifestly unbalanced. It is to the credit of the grandmother that she maintained her decorum whilst this whirl of ill considered evidence was being given about her.

 

Following Re BS, the obvious remaining piece of the jigsaw is going to be how the Court approach the assessment of family members and having a much more robust approach to testing the Local Authority’s assessments where these are ‘negative’   – and indeed whether there ought to be some ‘test’ that ought to be applied by the Court to determining whether a child could be placed with a relative notwithstanding that this is not the Local Authority’s plan.

 

I believe that the Court of Appeal might be mulling this issue at present…

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Inconsistent statements and eating more porridge than Orinoco Womble

Posted on September 19, 2013 by suesspiciousminds

The decision of the Court of Appeal in Re L-R (Children) 2013, which was an 18 month sentence for not giving evidence

http://www.familylawweek.co.uk/site.aspx?i=ed117035

The case involved the appeal of a father from a committal for contempt for his refusal to give evidence in care proceedings during a finding of fact hearing and he received an 18 month custodial sentence as a result of the committal.

I have written before about where section 98 stands, now that section 119 of the Criminal Justice Act 2003 allows for evidence of inconsistent statements to be used in criminal proceedings.

Section 98 is designed to do two things – firstly in subsection (1) to compel a parent to give evidence in care proceedings and (2) to ensure that their right to silence in criminal proceedings is preserved by ensuring that the evidence they give in care proceedings can’t be used against them in criminal proceedings.

“98 Self incrimination
(1)  In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a)  giving evidence on any matter; or

(b)  answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

(2)  A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.”

In the writer’s humble opinion, the intention of section 98 is a very important one. In order to properly and fairly decide matters relating to children it is vital that the Court hear frank and candid evidence from parents, and in order that they feel able to give that evidence with candour and honesty it is vital that they be able to do so without fear.

The father in this case, and other parents in other cases where criminal proceedings are pending or contemplated, are receiving conflicting legal advice. Their family lawyers are telling them of the need for frankness and candour, and the criminal solicitors are warning them that if they speak frankly and candidly, those words might come back to bite them in criminal proceedings.

It is therefore very disappointing that when given the opportunity to resolve this tension, or to indicate that in relation to evidence given in court in family proceedings, s119 CJA might be incompatible with Article 6, the Court of Appeal firmly pushed the problem over to the criminal courts.

16. In this appeal we have been invited to give guidance on the approach to be taken in this regard where there are concurrent criminal proceedings and family proceedings.  For my part I do not see that the issue arises in any form on the facts of the present case where, as I will in due course relate, Mr K effectively provided no material information to the Family Court that might fall for disclosure into the criminal process.

17. Going further, and looking at the matter more generally, the position as a matter of law and practice in the Family Court has been well settled since Re EC.  If problems are to arise, they are much more likely to surface in front of the criminal judge in the Crown Court and relate to how any disclosed material is to be deployed in the criminal process.

18. As such it seems to me that this civil court, both on the facts of this case where the issue simply does not arise and more generally, should resist the encouragement to give general guidance on this topic. 

In doing this, and in upholding both the committal for contempt for not giving evidence and the sentence, the Court of Appeal have put parents and those representing them in a considerable spot.

In the family proceedings, the parent must give evidence – if they do not, not only will adverse inferences be drawn, but they may be committed for contempt and face a custodial sentence. That sentence might be 18 months. Their family lawyer MUST therefore advise them to give evidence.

But it is uncertain whether that evidence can be deployed by the police and CPS in a criminal prosecution IF it shows that the parent has given an inconsistent statement.   (If father gives a no comment answer in police interview, but answers the same or similar question in the family case, that appears to me to be capable of being an inconsistent statement)

That being the case, their criminal lawyer would have to advise them that for the purposes of the criminal trial, it would be better for them not to give evidence in the family court.

Until such time as a criminal court decides – yes, s119 CJA 2003 overrides s98 Children Act 1989 and that the evidence of an inconsistent statement can be used in the prosecution of a parent for an offence other than for perjury, OR determines the opposite, a parent may very well be unwillingly waiving their right not to self-incriminate and their right to silence. They are at least taking the risk that they might be.

Imprisoning someone for following legal advice doesn’t sit too well with me. I hope that the criminal courts do address this issue soon.  I suspect that if and when they do, it will be in favour of s119, not s98  – the criminal courts are certainly far more familiar with the former than the latter.

The other approach is for the family courts to row back from the previous policy of generously giving the police information and material that might inform their investigation, pace Re EC [1996] 2 FLR 625 which established that the Family Court can and often does disclose transcripts of oral evidence given, or copies of witness statements provided by parents or other records in expert reports or social work documents of what parents have said into the criminal process.

That case of course, was decided on the basis that the parents were protected wholly from self-incrimination by s98, which may no longer be the case.

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Lucy in the Skype with diamonds

Posted on September 19, 2013 by suesspiciousminds

 

Picture yourself in a boat on a river….   The High Court decision in Re ML (Use of Skype Technology) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2091.html

The judgment here is pretty short, but involves two cases where Skype was used to assist in Court proceedings. In one, whilst the Court was wary about using Skype as a vehicle for hearing evidence, a solution was brokered, and the solution ended up being far more cost effective than the traditional video-link method.  In the other, Skype was helpfully used to allow the witnessing of the parents signing a consent document (which normally has to be done in the presence of a Guardian) avoiding the need to try to fly a Guardian out to Tibet.

Pragmatic approaches on both cases, and Skype (in the right circumstances, and with the right safeguards) can now be a part of the available toolkit for problem solving.

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