Category Archives: case law

Devon knows how they make it so… necessary

Posted on April 25, 2013 by suesspiciousminds

 

I was going to blog about the new High Court decision in  Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you.  If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me”    [what we lawyers might call the Dudley v Stephens interpretation of the word ‘necessary’] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

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“The driver cannot ignore the passengers”

Posted on April 15, 2013 by suesspiciousminds

 The judicial review case of H R v Kingston Upon Hull 2013  – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful

 The case is here

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html

 This is, I think, the pivotal passage from the judgment (hence the title)  – underlining mine

 When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.

 Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31st January that they would seek to move the children into foster care.

 They met with the parents on 1st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.

 The LA then moved the children, earlier than they had intended to.

 The parents made an application for judicial review, seeking to overturn two decisions :-

  1. That the decision on 31st January that the children would be moved was unreasonable, it having taken place without consultation
  2. That the decision on 1st February to move them forthwith was unreasonable

The parents triumphed on ground 1, but lost on ground 2  – the Court determining that the events of 1st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.

 The LA had claimed that they had not MADE a decision on 31st January to move the children, but the Court rejected that.

  1.  I gave a short judgment announcing my decision in which I set out the following:

(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.

(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.

(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.

(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.

(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.

 The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when  all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS.  Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.

 The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary.  Underlining again mine, for emphasis.

  1. An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.

The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.

  1. There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.
  1. When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
  1. During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.
  1. In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:

(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.

(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.

(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.

(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.

  1. The passage of the judgment at paragraph 36 is apposite to this case:

“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”

This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced.  [Though of course, the parent is able to obtain legal advice and contest the ICO application]

Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this?   It seems to me that it probably is.    

The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)

56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

 

The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other  – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.

  1. I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):

“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”

Further:

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

  1. Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.
  1. The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.
  1. It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.
  1. During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.

 

Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders.  I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.

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Terminating parental responsibility

Posted on April 15, 2013 by suesspiciousminds

The High Court decision of DW (A Minor) & Another v SG 2013 and the possible revival of applications to terminate a father’s parental responsibility (PR). Has the bar been set high enough?

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/854.html

 A long time ago,  1995, an application to terminate a father’s parental responsibility was heard in the High Court, and that had been the only authority on the point since that time. Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048

 The grounds were that during the course of care proceedings, it had emerged that the father had caused the serious injuries to the child, and the mother no longer wanted him to have parental responsibility, made an application and the Court granted it.

 [Now, of course, that course of events, though tragic, is not exceptional in care proceedings – and one might well argue that finding out that a father had not behaved well, had even been abusive, ought not to result in him being stripped of his parental responsibility – at least not unless the child was being adopted, and I know many of my readers think not even then.

 This is particularly so, since the Children Act 1989 provides a statutory mechanism for the mother to apply to remove the father’s PR, but NOT the reverse. The mother’s PR is sacrosanct, and is only removed by the making of an adoption order. It seemed terribly wrong that the father’s PR could be removed by an application, pace Re P,  with just some evidence that the father was an abuser]

 Most practitioners considered that to be a quirk, an anomaly, and a decision that wouldn’t actually stand up to scrutiny of the Human Rights Act if it were looked at again today.

Most practitioners (myself included) would have been wrong.

 The father in DW was not, one would have to say, a very nice person. He was a man who had been on trial for ten counts of sexual abuse and who only pleaded guilty the day before his children were due to give evidence. He received a four year custodial sentence.  The father, throughout the private law proceedings maintained that he was innocent of all charges and had only pleaded guilty to protect the children   (although finally advanced a position that he accepted that the convictions were made and he could not go behind them)

 So, not a man who would be on the shortlist for any father of the year award, and in writing this piece, I am clearly not defending anything that he has done, or saying that he should play any part whatsoever in the children’s lives.  I am merely doubtful that removing his parental responsibility  (no matter how diminished his exercise of it would rightfully be in practice) is fair.  If you asked me should he have done twenty years in prison rather than four, I’d be right there with you signing a petition to that effect.

 The Judge looked obviously at the statutory provisions (underlining mine) :-

 

Section 4 (1) Where a child’s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if

(a) he becomes registered as the child’s father under any of the enactments specified in subsection (1A);

(b) he and the child’s mother make an agreement (a ‘parental responsibility agreement’) providing for him to have parental responsibility for the child or

(c) the court, on his application, orders that he shall have parental responsibility for the child.

(1A) the enactments referred to in subsection (1)(a) are

(a) paragraphs (a) (b) and (c) of section 10 (1) and of section 10A (1) of the Births and Deaths Registration Act 1953 ….

…

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

 

(3) The court may make an order under subsection (2A) on the application

(a) of any person who has parental responsibility for the child… “

 

Raising the interesting question that a mother can apply for a father’s PR to be withdrawn, and oddly the father can apply for the father’s PR to be withdrawn, but neither can apply for the mother’s PR to be withdrawn.

 The Court also looked at the existing authority of Re P

 

16. “I have to say, notwithstanding the desirability of fostering good relations between parents and children in the interests of children, I find it difficult to imagine why a court should make a parental responsibility order if none already existed in this case. I think the continuation of a parental responsibility agreement in favour of the father in this case has considerable potential ramifications for future adversity to this child. I believe it would be a message to others that he has not forfeited responsibility, which to my mind it would be reasonable to regard him as having done. I believe that it might be deeply undermining to the mother and her confidence in the stability of the world surrounding (the child).”

17. Later, he added (on page 1054):

“I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child. I therefore conclude that it is appropriate to make an order as sought under section 4…bringing to an end the parental responsibility agreement entered into….”

 

For my part, I think there is a conflation there of two issues. If the father in this case DID not have PR, and one were considering his application for PR, I can see compelling reasons not to give it to him. But what the Court is doing is removing PR from a person who already has it  (knowing that the only other mechanism for this is adoption, the most draconian order a family court can make) . 

I think that removing PR from a person who has it is a big deal, and requires something much more compelling – if indeed section 4 as drafted is compatible with human rights (given that it is framed entirely on gender terms, I just don’t think it is). And moreover, that although the fathers in these two cases appear to be pretty unsympathetic characters, the way the decisions are framed mean that fathers who have done less bad things could lose their PR.

 I shall be fair – the alternative way of framing this argument is :-

 

  1. Parliament put in place a mechanism that allowed a mother to apply to terminate the PR of a father , and a mechanism that allowed the Court to terminate that
  2. If you are going to have that power, there must be circumstances in which it can be used
  3. The father’s conduct in both of these cases was reprehensible, and if you aren’t going to allow the application in these cases, what sort of case are you going to allow it? 
  4. If it is only a theoretical power, what is the point of it?  And as far as we can see, it is a power that has only been used on 3 occasions in nearly twenty five years, so it is hardly a landslide.

 [The problem with playing devil’s advocate, is that the devil is persuasive. I shan’t do that again in a hurry]

 The Court in DW clearly considered the case very carefully (and I shall come onto some of the evidence in a moment) and also took into account the human rights issues, rejecting the father’s claims that section 4 of the Act was discriminatory if it penalised ‘bad conduct’ for fathers but not mothers.

 I am troubled by this, since I think that the facts in these two cases, and the decisions as reported, do open the door to a lot of fathers having applications for their PR to be terminated. 

 I don’t think that the bar here was set very high, bearing in mind the importance of the issue at stake. And not least because if the roles were reversed, a mother would be at no risk of losing her PR.

Looking at the bar, considering what’s at stake, it seems to be more fit for limbo dancing than pole vaulting.

 [I did look at illustrating this, and my quick trawl of google images located a David Hasselhoff  Limbo-Dancing album.  And he has his shirt off on the front cover…  I have resisted this, as likely to place me  in excess of the EU Regulations on Cheese-Content for Blogs]

It is however, a judgment that was careful to take into account various factors and placed the welfare of the child at the heart of the case   (and once the Court rejected the argument that section 4 was incompatible with article 8, was the only rational conclusion)

 

  1. In my judgement, the magnetic factors in this case are D’s emotional needs, the harm he has suffered, and the risk of future harm. As a result of the turbulence and disruption endured by this family during the mother’s relationship with the father, and the period leading up to the father’s criminal trial, all members of the family, including A, C, the mother and D have suffered harm of varying sorts and to a varying degree. So far as D is concerned, whether or not he witnessed the father perpetrating any abusive acts on A, I accept that he has suffered emotional harm as a result of the harm inflicted by the father on other members of his family. I accept that, because of his parentage, D’s position in the family is difficult and that there is a risk of his suffering further harm and stigma if he continues to be perceived and treated in any way as the son of this man who perpetrated acts of sexual abuse on his older siblings.
  1. In addition, I take into account D’s expressed wish to have no involvement with his father. As he is only aged eight and a half, the weight to be attached to those wishes is limited. I accept that to a considerable extent his express wishes have been influenced by his mother and siblings. Nevertheless, I find that they are rooted in the reality of his life.
  1. I also take into account the capacity of the mother to meet D’s needs. I find that were the father to retain parental responsibility, she would be placed under very great strain, given the probability as I find that the father would subsequently apply for contact, and that he would seek to be further involved in D’s life. Equally, given all the harm that the father has inflicted on the family, I accept that the mother would find it well-nigh impossible to send a regular report to him concerning D’s progress. I find that imposing such an obligation on her would impinge on D’s emotional security.
  1. All these factors point towards an order terminating the father’s parental responsibility and dismissing his application for a specific issues order. On the other side of the scales, I take into account the fact that, as part of his background, D is the biological child of the father, and that as an aspect of his emotional needs he, like every child, should grow up with some understanding of his origins and, whenever possible, a relationship with each biological parent. But in certain circumstances those needs must give way to more important considerations, in particular, the need for emotional security. I conclude that D’s emotional security would be imperilled were the father to continue to have any further involvement in his life. Equally, whilst acknowledging that as an aspect on their respective Article 8 rights, both D and his father have a family life together, that aspect is in this case outweighed by D’s overriding need, as part of his Article 8 rights, to security within his family.
  1. Miss Townshend sought to persuade me that Re Pwas distinguishable on the facts of this case. On the contrary, and notwithstanding the factual differences between the two cases, I find that it provides invaluable guidance. Following Singer J’s example, I look to see to what extent the well established factors for making parental responsibility orders would be satisfied in this case. I accept that, although the father showed a degree of commitment to D when living in the household, that was wholly undermined by his actions in perpetrating serious sexual abuse on A and C, and this has been compounded by his subsequent denials up to the third day of the trial and renewed assertions that he is not guilty. So far as attachment is concerned, whilst there was undoubtedly some degree of attachment between D and his father when he was a baby, there is no attachment now as he has not had any contact for several years. As indicated above, I find there is force in the mother’s concerns that the father is motivated by wishing to become more involved in D’s life, to the detriment of the family including D. As in Re P, I find that, if the father did not have parental responsibility, it is inconceivable it would now be granted to him, and that this is a factor I should take into account when considering this application to terminate his parental responsibility. Furthermore, like Singer J in Re P, I find that in this case there is no element of the bundle of responsibilities that make parental responsibility which this father could in present or foreseeable circumstances exercise in a way which would be beneficial for D.

 

The evidence in this case was interesting, since father instructed a clinical psychologist, Mr Shuttleworth, to conduct an assessment.

 I am going to simply quote extracts from the judgment and let them speak for themselves  – I do not know Mr Shuttleworth (and I suspect from reading this judgment, I am unlikely to get to know him).  It may be that this judgment does him a grave disservice.

 

  1. In his report, Mr Shuttleworth was critical of Dr Obuaya’s psychiatric assessment carried out in the course of the criminal proceedings, in particular, his failure to identify what Mr Shuttleworth regarded as the clear symptoms of ADHD. Mr Shuttleworth went so far as to question whether Dr Obuaya had been right in concluding that the father had been fit to plead.
  1. On the issue of sexual risk, as stated above, the father maintained throughout the assessment that he was innocent of the offences to which he had pleaded guilty. Mr Shuttleworth noted that in prison he had been assessed as ‘presenting a low risk of recidivism’. In his assessment, Mr Shuttleworth stated that ‘there is no evidence that he has any sexual deviations’ and concluded (contrary to the observations of the sentencing judge) that there had been no escalation of his sexual offending. Mr Shuttleworth recorded that the father denied having been sexually abused by any member of his family, contrary to statements that appeared in the father’s medical records.
  1. Mr Shuttleworth concluded:

“I do not believe that he would be a risk to a child from a sexual point of view. There may be more doubts if he was looking after a girl because of the convictions, however there is no indication that he ever had any particular interest in a male….While I do not believe there is any evidence that he is a risk, his recent behaviour, particularly in prison, indicates that he is fully willing to enter into any programme which might involve him proving his parental skills. He will obviously stop short of agreeing to claim responsibility for any alleged sexual crime in order to enter into any of those programmes.”

He added:

“My overall impression is that he has been amazingly tolerant and accepting of his ex-partner’s fears in not demanding more contact, although I would presume that he would like to have this sometime in the future when his reputation has hopefully been rehabilitated.”

  1. In oral evidence, Mr Shuttleworth drew attention to the father’s claim that his criminal lawyers had advised him to plead guilty to avoid a longer sentence. Mr Shuttleworth was not convinced that the father was a sexual offender and expressed the view that there were grounds to challenge the reliability of the conviction based on his doubts about the father’s fitness to plead, the failure to diagnose ADHD, and ‘the way the trial was conducted’. Cross-examined on behalf of the mother, Mr Shuttleworth stated that, if the father had been abused by his brother, as stated in the father’s own medical records, and if he had been involved in sexual activity with A and C, he would pose a risk to D that Mr Shuttleworth described as ‘moderate’, but he added ‘other people in prison who have more experience of these things assessed this risk as low’. When invited to consider specifically the risk to D, Mr Shuttleworth said:

“Even if he’s had sex with children, I’ve come across a lot of paedophiles who do not abuse their own children.”

Mr Shuttleworth added that ‘there’s an assumption that people who are paedophiles are unable to control their impulses’. He said that he found the father to be a very warm and caring man who cares very much for his children.

 And the Judge’s conclusions in relation to this evidence

 

50. In light of my findings about those matters I turn to consider the evidence of Mr Shuttleworth. I listened to that evidence with increasing concern. I regret to say that I have found his opinions naïve, complacent, unreliable and at times misleading. His reluctance to accept the convictions as the factual basis for his assessment was a dereliction of his duty as an expert witness. His statement in his report that there was no evidence of any “deviations” was simply untenable given the existence of the convictions for ten offences of sexual abuse. His various statements about paedophiles quoted above runs contrary to all the understanding about the dangerous and deceitful behaviour of paedophiles which this court has come across many times over the years. His assessment of risk was, in my view, worthless, and I reject it.

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Scissorhands versus Scissorhands

Posted on April 12, 2013 by suesspiciousminds

An imaginary judgment   [it has been a while, and I always like doing these].  This is like a Kramer versus Kramer for whimsical emo kids…

The Court is dealing today with an application by a father, Mr Edward Scissorhands, for contact with his son, Vincent. Vincent is just 3 months old, and lives with his mother, Kim Scissorhands. The parents have been estranged since the latter stages of the mother’s pregnancy with Vincent, and live apart.

 The unusual feature of this case is a stark one. Mr Scissorhands suffers from a unique physical disability, in that he does not possess hands with opposable thumbs and fingers, but rather a series of blades, five on each hand, the longest of which is approximately eighteen inches long.  Mr Scissorhands has learned, throughout his life, to use these ‘blade fingers’ with precision and accuracy, and the Court has been shown photographs of ice sculptures made by the father, which show both a high degree of artistic skill and control over these fingers.

 It is common ground in this case that Mr Scissorhands is a warm and kind man, who loves and adores his child and that he would be a positive influence and a good role model – his forebearance, inner strength, his kind heart and the way he has overcome what for many people would appear insurmountable obstacles, all do him enormous credit and would be a fine example for his son.

 Nor is there any ill-will or animosity between the parents, save for their disagreement as to whether contact can safely take place.

 The issue is whether, despite Mr Scissorhands knowledge of childcare and desire to put that knowledge into practice, he would be physically capable of doing so safely.

 It is factually correct, and Mr Scissorhands accepts this, that he could not hold his son, nor safely touch him, and that as a result, things that many parents take for granted, such as cuddling, tickling, hugging, changing a nappy, holding the child’s hand when crossing a road, are not possible for him.

 He was asked, by counsel representing the mother, for example, to demonstrate whilst in the witness box, how he would play a game of “peekaboo” and this resulted in several minor, but nonetheless real, cuts to his forehead, which would of course be not desirable for either the father or the child in what is ordinarily a happy and joyful interaction.

 The father’s face, I should add, does bear healing scars in a multitude of places, caused by inadvertent brushes of the scissor blades on his own face. 

One cannot easily ignore, despite understanding that the father would exercise all possible caution and care and would have no intention to cause any harm to Vincent, that if such accidental cuts have happened to the father, causing facial scarring, that it is a risk that cannot sensibly be ignored that a cut might happen, completely accidentally, to Vincent.

 I am invited by the mother to find that the father, not as a result of any culpability on his part but as a result of his unique personal characteristics, would pose a risk to Vincent in unsupervised contact, both in terms of an inability meet his needs  (he would be unable to hold or comfort Vincent if he were distressed and would be unable to change him, feeding him would potentially be manageable though difficult) and the risk of an accidental injury occurring.

 I have to confess that I found this aspect difficult. To make a finding of risk against a father where there is no culpability on his part, appeared at first blush to be harsh, and I had to take care in approaching this.

 However, I have to turn my mind to the test that the House of Lords set for assessing the risk of harm  (although this applies to public law proceedings, it is still pertinent in this private law case, considering as it does how the Court is to tackle the issue of future risk)

 Lord Nicholls in Re H [1996] AC 563 at 585F set out a likelihood of harm as: “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”

 It is not necessary, in determining whether there is a risk of harm to the child (as I must, this being not only a live issue for the Court to determine, but one of the relevant factors in the Welfare Checklist which I must have regard to), that is the basis on which I should approach it  – on the balance of probabilities, with the burden of proof being on the person who asserts risk (in this case mother) is there evidence of a risk that cannot sensibly be ignored.

 I have to answer that question in the affirmative. There is a risk that unsupervised contact would cause harm to Vincent, notwithstanding that father has no wish or desire to cause such harm and that he has nothing but love and warmth for Vincent.  When considering the harm element of the welfare checklist, I am not obliged to consider any mens rea or intent on the part of the parent.

 My conclusion is that Vincent would be at risk of harm in unsupervised contact and that the risk of harm could not be safely managed, despite any assurances that father could give. The harm would be in effect, outside of his ability to control, no matter how careful he would be, a momentary slip would cut this fragile baby.  A baby of 3 months needs to be changed, and comforted, needs to be cleaned, needs to be fed and held. The father, despite his clear desire to do so, is simply not in a position to do that safely.

 I am therefore driven to conclude that unsupervised contact for this father is not possible.

 I turn then to supervised contact. The mother is not willing to supervise the contact (and of course, directing an estranged parent to supervise the contact of their ex partner would be wholly unusual and indeed undesirable).  Nor are any members of her family willing to do so.

 The father has no family members who could undertake this task.

 Neither parent is in a financial position to fund the supervision of contact themselves.

 I have obviously then had to grapple with the fundamental principle that contact with both parents is vital for a child and that contact should not be ceased unless there are compelling reasons for this, only in exceptional circumstances, where there was no alternative. There is a raft of case law to that effect, the most recent being

 IN THE MATTER OF C (A CHILD) sub nom AL v (1) JH (2) C (A CHILD BY HER GUARDIAN) (2011) [2011] 2 FLR 912

 And therefore, a deal of thought has been given to whether some legal underpinning which ensures that there will be a supervisor for father’s contact, to allow him to have supervised contact until such time as Vincent is old enough to (a) not require such ‘hands on’ care and (b) to be in a position to recognise the need to be careful around his father and have the ability to keep himself safe.

 Having established that no family members can supervise the contact, that leaves only professionals.  A supported contact centre would not offer the degree of supervision that is required here – it must be more than merely ‘pop in’ or observed contact, there is a risk management function here.

 Whilst the Court could potentially make a direction for the Local Authority to prepare a report under section 7 of the Children Act 1989, and recommend to them that they prepare some observations of supervised contact, that would be only a short term solution, at best securing two or three supervised sessions of contact.

 Can they be obliged to supervise the father’s contact on an ongoing basis, as that is what is needed here?

 The answer, sadly, is that they are not.

 I cannot compel them under section 11 (7) (d) of the Children Act 1989, since I am not able to place conditions on contact that apply to third parties (as a result of s 11 (7) (b)

 I have been pointed to Family Assistance Orders pursuant to section 16 of the Children Act 1989, where the Court can order a Local Authority to ‘advise assist and befriend’ a family. Does that go so far as to require the supervision of contact?

 The case of S V P (CONTACT APPLICATION: FAMILY ASSISTANCE ORDER (1997)  1997] 2 FLR 277 suggests that a Court going over and above the requirement to advise, assist and befriend component of a Family Assistance Order goes too far.  Whilst I could invite the Local Authority to supervise contact under such an order, I cannot compel them to do so. I can direct s16 (4A ) for the LA to give advice and assistance regarding establishing, improving and maintaining contact, and direct for them to prepare a report s16 (6)

 Additionally, the FAO only lasts for 12 months, and what is required here is something much longer lasting.

 There is a temptation to consider making the FAO, directing that the father have supervised contact, and that the LA report in 12 months; and that is something I will store on the back burner for the moment. 

 I have also considered whether I could reasonably make an Interim Care Order (under which the Local Authority would have a duty to promote the father’s contact, and thus would have to provide supervision of it), but I cannot make such an order of the Court’s own motion, save for alongside a section 37 investigation. I could make more than one such order, if the section 37 report was in my judgment insufficient.  

 RE K (Children) 2012   [2013 1 FCR 87]  being authority for that point.

 But in my view, the most that could be achieved by doing so, would be to obtain a series of supervised contact sessions, and information about whether father could have meaningful contact in such a setting. It does nothing to secure the provision of ongoing supervision of contact; which would only happen if either the Local Authority wished to do so voluntarily, OR they voluntarily applied for a Care Order and one was made in due course.

 I have made enquiries of the Local Authority, and not surprisingly, they take the view that Vincent is being well cared for by his mother and that a Care Order is not required to protect him. They do not volunteer to either supervise his contact, other than as a ‘one off’ nor to issue proceedings.

 To make an Interim Care Order purely to facilitate contact appears to me, in the hackneyed phrase to be a sledgehammer to crack a nut. 

  [Author’s note, I think I can recall a case several years ago where this was done and supported by the higher Courts but I can’t now find it – if anyone recalls it, please nudge me. It might be Re M (Intractable Contact Dispute :Interim Care Order 2003, [2003] 2 FLR 636 where the Court sanctioned a removal under an ICO and a section 37 to try to resolve an intractable contact dispute. I think it probably is. ]

 I thus, it appears to me, cannot order the Local Authority to provide the supervision of contact, and the best statutory provision is to make an order for weekly supervised contact, make the Family Assistance Order for 12 months and direct the LA to report on their work in 12 months time, adjourning any final decisions until that point.

 It must be open to question whether the Court could utilise the same rationale as in Re K (Children) 2012, to make repeated Family Assistance Orders where the report does not cover what is desired  (i.e reports on the quality of that supervised contact and some ongoing commitment to supervise in the future)     – the Court of Appeal in Re K took the view that as there was nothing in statute to PREVENT repeated s37s, it was lawful to do so, and that therefore could be argued in this case, were I to do so.   Thus, a succession of Family Assistance Orders could potentially be made, leading to many years of litigation, albeit litigation only revisited annually.

  Instead, however, I make an order that the mother should make Vincent available for contact with his father once per week for two hours.

 I am entitled, under section 11 to make directions as to how that section 8 contact order will come into effect, and those of course include the handover venue.

 Very well, I have determined, taking into account all the circumstances of the case, and the welfare checklist, with Vincent’s welfare being my paramount consideration, that the handover venue should be the reception area of the Local Social Services offices. The father is not to have unsupervised contact, and is not to leave that reception area with Vincent without the express approval of the Local Authority. Those are matters that I direct, pursuant to section 11 of the Children Act 1989

 I will ensure that a transcript of this judgment, which indicates that Vincent would be at a risk of serious harm if the father’s contact were not supervised, and that any professional who knowingly allowed Vincent to come to that risk would, in my judgment be negligent. 

 I trust to the goodwill and sensible nature of the Local Authority staff that they would not allow Vincent to be subjected to a risk of significant harm that a Judge has carefully determined cannot sensibly be ignored.  I am sure that they will step in and make sure that Vincent is watched and observed and kept safe during the two hour period when he will be in their reception area (or such other venue as they choose to transport him and the father to)

 The parents, may of course, vary the handover location by agreement.

 I am certain that any reasonable Local Authority, mindful of their duties towards a child in need (and I find that Vincent is such a child) in their immediate proximity would conduct their section 17 assessment of his needs REASONABLY and conclude that he needs to have the relationship with his father that the Court have determined is vital for him, and that in order for him to be safe, there is a need for services, in the form of supervision.

 If I am wrong in my certainty, then another Court will look at this case, either by way of judicial review, or a civil claim for negligence.

 Thank you all for your time. 

 

 edward scissorhands

 

 

[As ever with my imaginary judgments, all I did was have the kernel of an idea – what would happen in Court if Edward Scissorhands have a baby? And then run with that, with no idea of how my imaginary Judge would get herself out of this predicament that I had cheerfully dug for her.  I didn’t get on to the disability discrimination aspects, though it does seem to me that it is solely the result of father being physically disabled and not having hands, that has resulted in him not having unsupervised contact. 

 

The joy of this draconian decision (which occurred to my imaginary Judge, who I think is called  Judge Knott-Lestyebe  is that not being a party to the proceedings, though the LA would want to appeal it, they may struggle to do so.

 

Although even this footnote now gets its own footnote  – a person who can show that they are a person interested, aggrieved or prejudicially affected by the judgment may appeal with leave  Re M (Prohibited Steps : Application for Leave} 1993 1 FLR 275.  

Of course, this is all mere fiction and fancy and any lawyer will recognise the most ridiculously far-fetched element of the whole piece – there is no way that post LASPO either party would have had counsel ]

 

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“Not with a bang, but a whimper”

Posted on April 11, 2013 by suesspiciousminds

Possible fallout from R (JG) v the Legal Services Commission 2013

This is the much anticipated, and long-awaited, outcome of the judicial review against the LSC (now the Legal Aid Agency, LAA) and their refusal to pay the child’s solicitors the costs of an expert fee in private law proceedings where the Court had determined (a) that they needed expert evidence to determine the case (b) that the parents who were not in receipt of public funding could not pay for it, or even pay a third share of it, and thus (c ) that the entire costs of the expert assessment should fall upon the child’s public funding certificate.

 That seemed to be the only way for the Court to obtain expert evidence when faced with parents representing themselves or who had no funds to pay for an expert; but many observers were becoming increasingly concerned that the Courts were appointing Guardians in private law cases not so much for what the Guardian could bring to the table, but so that the Court had access to the child’s public funding.

 The LSC were always going to take a stand on this at some point, and refuse to pay all of the costs of an expert report when the parents were not contributing.

 Here are some of the reasons, from a quick think, about why expert evidence might be needed in private law proceedings in order to reach a fair conclusion :-

  1. The child presents as having psychiatric or psychological problems – maybe the child is self-harming, or has anorexia
  2. The child has a medical condition, for example Asperger’s Syndrome, which may impact on change, or routines (and thus how contact and residence are to be managed), or the parent has a medical condition which affects their ability to care, or travel to contact
  3. There are allegations of Parental Alienation Syndrome, or implacable hostility
  4. There are historical concerns that require a risk assessment of future risk
  5. There are allegations about substance misuse  or alcohol misuse (testing, psychiatric evidence about prognosis)
  6. There is a dispute about paternity that requires DNA evidence   (unless the Court is going to start resolving paternity disputes without DNA testing)
  7. There are concerns about the mental health of either parent which requires expert evidence as to diagnosis and prognosis

In our brave new world where neither parent is entitled to public funding, none of those assessments can be done unless someone is prepared to pay for them.  And the LSC have made it plain that this someone is not going to be them, where they have been parachuted into the case as a portable chequebook (sorry, Rule 16.4 Guardian)

Sadly, the judgment in JG v LSC is not yet up, and I’m sure that the Court made attempts to put a ring fence around the most serious sorts of cases and put some exceptional circumstances in place (so I will return to the topic once the judgment is up)

 But in broad terms, the child’s solicitor, and the Law Society lost, and the LSC won. Not a huge surprise. We all saw that coming.   It doesn’t seem  to me that the Courts fought the LSC on the beaches on either this one, or the prior authority case, the judgments in both may as well have been written on a white flag.

 It seems, to this jaded hack, that Abu Qatada was able to get our Courts to do more for him, than the Law Society were able to get a Court to do for children. *  I will cheerfully retract this, if when I see the judgment, it appears that a valiant but ultimately doomed  attempt was made by the Court to  preserve the interests of children as being paramount in the whole exercise. 

*{too harsh? Probably, but I am a bit crosspatch about this. For example, in the recent planning case of  Stevens v Secretary of State for Communities and Local Government 2013, the Court reminded themselves that where a persons human rights are impacted disproportionately by a decision, the Court can look at things more widely than as a pure judicial review.  Was that done in this case?

Furthermore,…….the House of Lords have held that, where the proportionality of the impact of a decision on human rights is at issue, that is a substantive question to be objectively determined by the court, and not a procedural one that requires the court to investigate the decision-making process (R (SB) v Governors of Denbigh High School [2006] UKHL 15: (“SB“) and Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19; (“Miss Behavin’“))

Thus, in SB, Lord Bingham said (at [29]):”The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated”;

and, consequently, what matters in any case is “the practical outcome, not the quality of the decision-making process” (at [31]).  

And I ask, what the practical outcome on children and families of having Courts wish to obtain expert evidence to achieve a fair result in a case but being prevented from doing so, would be?}

 The LSC relied heavily, as they would,  on section 22 (4) of the Access to Justice Act, which provides that costs should not fall on a publicly funded party that would not otherwise have fallen on the party if they were not publicly funded.  [Of course, that Act was written at a time when the sheer volume of unrepresented litigants could not be foreseen, as it was pre LASPO, and I have yet to see whether the judgment wrestled with whether s22 (4) in these circumstances led to an incompatibility with section 1 of the Children Act 1989]

 And the LSC thus argued, and were successful, that the Court would not have made an order that the father or mother pay the entire cost of the expert fee, and that the most the LSC should pay is an equal share, one third.

 Where that leaves children, when the question for the Court in all those private law cases where the parents are not both in receipt of public funding (i.e nearly all of them) and the Court consider that an experts report is necessary to determine the case, is somewhere towards the source of the Swannee.

 *( I think it would need to be both parents getting funding, since the same principles would apply to  ‘parent gets public funding as a result of say domestic violence, would still be the LSC saying that they would only pay the share matched by the other parent)

 Can a Court, in fact, order that a parent pay for the costs of a report? They are an adult, and I think the Court are in difficulties ordering an adult to incur costs, or to do anything  (short of injunctions).  The Court can merely say, if you want to run your case, then there will be consequences for your case if you don’t comply with the directions that have been made. Ordering an adult to do something, or pay for something seems to me to need some statutory basis for the Court having that jurisdiction.

 So the Court can of course say “If you want to obtain this report and rely on it, then you will have to pay half of the costs. No costs, no report.” 

 But that doesn’t help, because of course, when you have two parties to litigation, one of them has a vested interest in not obtaining such a report. They are happy not to have it done.

 And will any expert take on an instruction where the parents are paying privately?  If it were me, I would want cash up front, because how would I get the payment from a mother if my report says something she doesn’t want to hear? Even if the parent is happy with the report, once they have it in their hands, what is the incentive to pay for it? So, cash up front is the only way.

And we are back, again, to the concept that money can buy you a better service in the family Courts   (a parent on income support who wants a report on how their child’s Asperger’s Syndrome might impact on a shared residence arrangement is not going to get one, whereas a parent who is a quantity surveyor say can get the report)

 It doesn’t feel too great to me, that in private law cases (and contrary to what the Family Procedure Rules say) the key question for a Court considering the need for an expert report is not

“Is this report necessary to assist the Court to resolve the proceedings”   but

 “Who will pay for this report?”

[Also, eek, will the LSC now try to clawback all of the expert fees that they have paid out to solicitors representing rule 16.4 guardians in the past?]

[Addendum – very grateful to 11kbw who have the judgment up on their website http://www.11kbw.com/judgments/docs/PNTCJudgment.pdf

 readers can form their own impression as to whether the right of parties to a fair trial, and the issues of whether a broad principle that if parties can pay for a report it shouldn’t all fall on the LSC has been blurred with LASPO whereby a party can now be not in receipt of public funding although they have no means to pay for representation or disbursements.  For my part, I thought an awful lot of the judgment was on the “well, we won’t be having those experts anymore, and this just helps with that” side of the fence.

For example  para 67:-  

“If  the children’s guardian is of the view that the issues identified are beyond his or her skill and expertise, the Court may be minded to ask CAFCASS whether the case can be co-worked by an extended scope practitioner who if necessary can be appointed as a joint guardian”

The exceptions aren’t set out in detail , but are touched on in principle at  para 87, the LSC having argued that the Court would have no jurisdiction even in extraordinary circumstances (the report being absolutely necessary, and the Court having carefully explored whether the other parties could pay a share or a reduced share) and the Court knocked the LSC back on this, though no other point; and said that there WOULD be circumstances in which if the report was necessary and there was simply no other way, the LSC might be ordered to pay for it. 

[Although they don’t need to follow a court order, don’t need to appeal it, and there’s no legitimate expectation for a child’s solicitor that a court order ordering the LSC to pay for it will ever result in a cheque being written, so hooray!]

The overwhelming message I take away is – don’t worry too much about how you are going to fund experts, because there won’t be any.  Bearing in mind that this judgment was prepared by the Judge seized with responsibility for modernisation of family justice, that’s an important message.  But read it and decide for yourselves, it is very possible that I am being deeply unfair. ]

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“How’s that?”

Posted on April 5, 2013 by suesspiciousminds

When does judicial intervention cross the line into being improper and showing bias?

I recently read a very good piece on Lawtel  [other law reporting websites are available]  written by Stephen Gerlis, reporting on the Court of Appeal case ofHadi Jemaldeen v A-Z Law Solicitors 2012

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1431.html 

 As the piece is behind a paywall, and about a civil case, the issues probably won’t have come to everyone, so I thought it was worthy of a discussion in the family law context – with a nod of the hat to Mr Gerlis for his originating piece.

 The importance of the case is that the appeal hinged on whether the Judge who had heard the case had overstepped the mark when exercising control of the questions and posing his own questions, such that the appellant considered him to have been biased.

This led the Court of Appeal to run through the authorities on judicial interventions, and as we are about to embark on a brave new world of litigants in person (whether they wish to be or not) this may be an issue that crops up from time to time. It is that consideration of where the line is drawn that is potentially of interest.

I liked this quotation from Lord Denning (hence the title)

 “The Judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law”.

 

 That authority is from Jones v National Coal Board [1957] 2 QB 55.  and the temptation to be able to quote a case about the National Coal Board AND Lord Denning in any family case is almost overwhelming.  We don’t get much opportunity to crowbar Lord Denning into family law cases.

 

[The only thing I am more tempted to say in Court, which I duly resist every time is “Does Magna Carta mean nothing to you? Did she die in vain? ” ]

 The Court of Appeal set out that the test, when looking at how the Judge managed the trial/hearing is

 

  1. 20.   “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

Which principle is derived from the House of Lords in Magill v Porter [2001]UKHL 67, [2002] 2 AC 357.

 Going back to the Coal Board case (and why wouldn’t we?)

 

  1. In pursuit of that fundamental objective the judge is not required to sit silent as the sphinx. Appropriate intervention while a witness is giving evidence, even while the witness is being cross-examined, is not merely permissible but may be vital. As Denning LJ put it (page 63):

“No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.”

He continued (page 64):

“The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate”.

  1. So there is nothing objectionable, for example, in a judge intervening from time to time to make sure that he has understood what the witness is saying, to clear up points that have been left obscure, to make sure that he has correctly understood the technical detail, to see that the advocates behave themselves, to protect a witness from misleading or harassing questions, or to move the trial along at an appropriate pace by excluding irrelevancies and discouraging repetition. Indeed, it is, as Denning LJ recognised (page 65) his duty to do so.

 

 

So the Judge can appropriately ask questions to clarify, or to check that she has understood, she can prevent inappropriate questions being asked, and she can tell everyone to get a move on once the point has been explored sufficiently.

 

What CAN’T the Judge do? She must not ‘descend into the arena’

 

  1. But there is, of course, a difficult and delicate balance to be held. The judge must not, as it is often put, descend into the arena. Denning LJ referred (page 63) to Lord Greene MR, who in Yuill v Yuill [1945] P 15, 20, had:

“explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict”.

Denning LJ continued (page 64) that it is for the advocate to make his case;

“as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost.”

 

 

Where the interventions can potentially overstep the mark is during cross-examination.   [Back to the Coal Board again  – underlining my own]

 

Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return .”

 

And as, much like Marty McFly, we are no longer in the Fifties, the Court of Appeal added this

one of the changes in civil litigation since 1957, when Jones v National Coal Board was decided, is that more attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case: CPR Part 1.1. An advocate can no longer expect to have unlimited time in which to conduct his cross-examination

 

[And towards the end, the Court of Appeal refer to a recent family case Re J (A child) [2012] EWCA Civ 1231  in which the Judge’s interventions and curbing of cross-examination prevented the matters which went to the very heart of the case being put, and which did end up overturning the original decision]

 As this was a civil case, the decision eventually reached on the case before the Court of Appeal isn’t that important, but you can probably guess from this brief extract from the original trial transcript (Professor Rees being the appellant saying that the Judge had unfairly interrupted him) what the end result of the Appeal was 

“THE RECORDER: I am interrupting your cross-examination.

PROFESSOR REES: No, it is very welcome, your Honour.

THE RECORDER: You had better ask the questions you want to ask.

PROFESSOR REES: Okay. Thank you, your Honour. But it is helpful to have these interventions, if I may say so, because ultimately your Honour has to decide this case and …

THE RECORDER: Well, if you put a document in which nobody has opened on, the witness has never see before, it is fairer for him and for me to try and work out what this document is supposed to be telling us all.

PROFESSOR REES: Absolutely, yes …”

 

[Hint, if you are going to claim in an appeal that a Judge unfairly interrupted you, don’t at the time, tell the Judge that the interventions are helpful and very welcome]

 

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“If you ever go across the sea to Ireland”

Posted on April 3, 2013 by suesspiciousminds

 A discussion of two cases dealing with parents who fled to Ireland to avoid pending care proceedings. We are having a curious burst of the Higher Courts dealing with similar issues coincidentally in batches, and this is another example.

The longer judgment is in  Re LM (A Child) 2013, a High Court decision determined by Mr Justice Cobb

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/646.html

and the shorter is a Court of Appeal decision

 Re OC and OE (Children) 2012 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/162.html

 

In the Court of Appeal case, the Local Authority had concerns about the children, though probably not sufficient to warrant removal, and the mother fled to Ireland with them. The LA sought Interim Care Orders and a return to the jurisdiction. The Court of Appeal agreed that the English Courts had jurisdiction and that making orders compelling the return of the children to the jurisdiction was correct, but reminded themselves, that the status quo prior to the move to another country ought to be restored, and that the Judge had erred in making Interim Care Orders and sanctioning removal of the children in the absence of (a) the parents being there to oppose and (b) the LA demonstrating that the grounds for removal were made out.

 

I felt for the LA lawyer,  “their advocate frankly conceded to the judge that he was not operating in legal territory familiar to him”   and of course, LA lawyers don’t tend to be specialists in international law. If we were, we would wear much more expensive shoes, and work shorter hours.

 The Re LM case is probably more interesting.  Justice Cobb sets out the background here

 

  1. In June 2012, AM (hereafter “the mother”), then in an advanced stage of pregnancy, travelled with her husband, MM (hereafter “the father”) to the Republic of Ireland. In the following month, she gave birth to a baby girl (“LM”). LM is the mother’s fourth child. The mother’s older three children have been the subject of public law proceedings in this country, and are subject to public law final orders, all in kinship placements away from the mother.
  1. At this hearing, in London, the mother told me that she and her husband made that journey to Ireland “purposely to avoid my child [i.e. the baby] being stolen” by the local authority who had taken proceedings in relation to her older three children. It is common ground that this local authority would indeed have issued care proceedings in relation to the baby, had the mother remained in their area.
  1. The mother went on to tell me that “unfortunately” their plan has “backfired.”

 

The plan backfired, because the authorities in Ireland issued their equivalent of care proceedings, and the child was placed in foster care. Having fled there only to avoid care proceedings, the parents had no real interest in staying or living in Ireland – the mother came back to England [although to a different LA than the one she had been living in, and which was 200 miles away] , the father for work purposes moved to Scotland. That obviously had a huge impact on their contact.

 

It was therefore the mother’s application for the proceedings relating to the child to be brought into the English jurisdiction.

 

The High Court went on to identify the main aims of the judgment, and one of them is particularly noteworthy (I know that the ‘flee to avoid proceedings’ is a common school of thought on the internet, and Ireland has been a popular choice – proximity, no language barrier, and their constitutional opposition to adoption being key factors in this. In this case, it seems that it was discussion on the internet that led mother to make that decision to flee to Ireland )

 

  1. This judgment serves two principal purposes:

i) It discusses the legal and practical complications arising in seeking to achieve a transfer of jurisdiction in these circumstances;

ii) It seeks to provide solutions in the instant case, to achieve the move of LM to this jurisdiction in the near future, and the transfer of care proceedings to this Court, initially to the Family Division of the High Court.

  1. This judgment further serves to highlight how futile, and potentially damaging to the infant child, was the course which the parents embarked upon in June 2012. I am advised that there are other parents who have considered leaving this jurisdiction (and indeed been advised by campaigning groups to do so, as the mother indicated she had been) to avoid public authority intervention in their lives, and to achieve some juridical advantage through process in the Irish Courts. Quite apart from the fact that the parents themselves in this case apparently soon came to realise that this was not a good solution for LM or themselves, this judgment will underline how effectively the Courts of England and Wales and the Courts in Ireland, and the public authorities in each State, are able to co-operate to achieve the transfer of a child, and the public law proceedings concerning that child under the Council Regulation (EC) 2201/2003 of 27th November 2003 (hereafter ‘BIIR’), where it is demonstrated to be in the interests of the child to do so. The approach of the English Courts and the Irish Courts appears to be similar; the Irish Constitution exhibits no intention to establish Ireland as a sanctuary for families from other jurisdictions: see the Irish Supreme Court’s decision in Nottinghamshire County Council v B [2011] IESC 48 (at paragraph 72, per O’Donnell J.).

 

[The Irish case is worth reading, and I had not encountered it before. It sets out the very interesting analysis of the Irish constitutional situation with regard to adoption, particularly adoption of children of MARRIED couples http://www.bailii.org/ie/cases/IESC/2011/S48.html    which would probably be an entire article on its own. There certainly has been a school of thought, which this judgment corrects, that the Irish Courts and authorities could not and would not sanction a return of a child to a jurisdiction where adoption was a possible consequence of that return. It is rather more complex than that, and at the very least, the Irish courts would need to be satisfied that the risk of adoption was a very real and proximate one, rather than a possibility ]

The procedure is another Article 15 of Brussels II one [you may remember my recent blog on the Slovak case where the Slovak authorities used it to take over proceedings that were very advanced in the English Courts]

 

https://suesspiciousminds.com/2013/03/22/ambassador-with-these-brussels-2-applications-you-are-really-spoiling-us/ 

For that reason, I won’t set out all of the principles again. (Phew)

 

  1. At this hearing, on the matters relevant to and consequent upon the Article 15 transfer request, the position of the parties is as follows:

i) The mother: The mother initially proposed, and continues to support, a transfer of the proceedings to this jurisdiction, stating that it is clearly in LM’s interests that such a transfer should be effected. Towards the conclusion of her submissions, she appeared to suggest that her agreement to the Article 15 transfer was in fact conditional upon the receiving authority being identified as Y County Council rather than X County Council. I note the mother’s position in this regard and discuss it further below. That her acceptance of transfer is said to be conditional on the identification of a specific local authority as applicant in this country is of no real consequence, given that effective transfer relies on ‘acceptance’ by one party only to the Irish proceedings; in the instant case, the HSE has indicated its unconditional acceptance.

ii) The father: By letter dated 6th March 2013 from the father’s Irish solicitors, I was advised that he “continues to support his wife’s Article 15 request and consents to the transfer of the public law proceedings in their entirety to the jurisdiction of England and Wales. Our client is content that his position be confirmed by Counsel on behalf of the HSE to the English court on 12th March 2013.” In fact the father attended, from Scotland, for the second day of this hearing and confirmed that he supported the transfer but (corresponding to the position of his wife) wished me to identify the proposed applicant authority as Y County Council;

iii) The HSE: The HSE unconditionally ‘accepts’ the transfer and supports the court taking effective steps to achieve transfer of the proceedings to this jurisdiction; it invites me to be satisfied that it is in the best interests of LM that the proceedings are so transferred; the HSE is neutral on the identification of the appropriate ‘receiving’ authority;

iv) The Guardian ad Litem in the Irish proceedings: The Guardian, by letter dated 11th March 2013, confirms that it is her opinion:

“that the application being made is in the interests of [LM] and should be proceeded with as a matter of urgency ….”

The Guardian expresses her concern that “a transition plan” should be devised to achieve the physical transfer of the infant LM to this jurisdiction ideally to “a long term placement …. should the decision outcome of care proceedings in England and Wales be that [LM] remain in long term State care”. She supports a transition plan “strictly on the basis that” LM is placed in the care of a specific local authority (she had proposed X County Council) and recommends that a Guardian ad Litem be appointed for LM.

And then

 

  1. The request for transfer under Article 15 was further predicated upon a conclusion that it is in LM’s “best interests” for the transfer to be made to this court. It is suggested on behalf of HSE that the best interests test is amply satisfied by a combination of the following factors, in summary:

i) LM is British; her parents, siblings and kinship carers are British.

ii) LM has no family in Ireland. Her only connection with Ireland is that she is physically present there because of a tactical international move made by the mother to avoid the jurisdiction of the English courts.

iii) The mother is now in this jurisdiction and has indicated a wish to remain here. Were LM to be returned to this jurisdiction, this would render easier the facilitation of contact between her and her mother. Assessments of family relationships will be more effective if mother and daughter can be seen regularly together;

and

iv) The background history of LM’s older half siblings originates entirely in the area of X County Council; this evidence is likely to be important in any determination of LM’s future care

 

 

[You will note that HSE, who are the Health Service Executive of Ireland, were agreeing to the transfer of jurisdiction, thus showing comprehensively that the theory that Irish authorities are constitutionally bound to stand guard over parents who might run the risk of their children being adopted and ensure they are not removed, doesn’t work in practice, much as the “freeman of the land” devices don’t actually work in practice]

The case then got into a consideration of which of the two local authorities in England (the one mum had fled from, or the one in which she was now living) would be responsible for the new proceedings.

 I won’t repeat any of that argument, as the authorities are all well known, but I did like Justice Cobb’s asides here

 

The hopes of Thorpe LJ in the Northamptonshire case that the statutory sub-sections could provide “a simple test” to be “operated by the court in what should be the unlikely event of dispute, to determine which Local Authority is to be responsible for the care plan and its implementation” (p.891A) have not entirely been fulfilled, as the subsequent case-law demonstrates. What he hoped would be a “rapid and not over sophisticated review of the history to make a purely factual determination” (p.890G ibid.) in any given case has equally proved forlorn.

 

 

On the facts of the case, the Court found that the designated authority was the one that mother had originally fled from and that she had not become ordinarily or habitually resident in the new one (she was effectively sofa-surfing)

 

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“You’re fired! Now, can I have an adjournment?”

Posted on April 3, 2013 by suesspiciousminds

We seem to have had a recent flurry of Court of Appeal decisions about whether it is fair to press on with a final hearing where a parent parts company with their lawyer shortly before the hearing, or even in the midst of it.

This is an interesting dilemma, since obviously there’s a tension between wanting a fair trial and recognising that a parent who suddenly finds that they are representing themselves at the eleventh hour has more than they can realistically cope with, and having decisions made in accordance with the timetable the Court has fixed for the case (that being based on what the child’s timescales are)

On the one hand, it is important that parents who face the prospect of permanent separation from their child (a) HAVE a lawyer and (b) HAVE CONFIDENCE in that lawyer; on the other, if simply sacking your lawyer gets the hearing adjourned, then it would always be better to simply sack your lawyer at the morning of the first day, rather than INSTRUCT your lawyer to argue for an adjournment.

 [Also, if not having a lawyer gets you an adjournment, you can infinitely prolong the decision by sacking your lawyer every time you reach the final hearing, so there has to be a line drawn in the sand somewhere]

 alan sugar

There are two recent cases, with two different outcomes

Re L (A Child) 2013, where the decision to refuse an adjournment was overturned

http://www.bailii.org/ew/cases/EWCA/Civ/2013/267.html

Re GB (Children) 2013, where the refusal of the adjournment was approved.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/164.html

 So, in brief summary, the facts of the two cases :-

 In Re L, the father was having considerable difficulties with his solicitors and things reached the point where they indicated that they were no longer willing to act for him. This happened on the Friday, with the final hearing due to start on the Tuesday. His solicitors conveyed the full set of papers to him on Monday, but he was not at home, having had to set off to make the journey to the town in which the final hearing was to take place.

 The father had sought an adjournment, as although he was ‘wedded to not wanting to return to his previous solicitors, he was also wedded to having legal representation’ and was not seeking to represent himself.

Additionally, and pivotally, there was also a report from a psychiatrist, Dr Bowskill  (this having been a piece of information which caused quite a lot of the disruption between father and his solicitors) and was not presented at the initial final hearing, but was presented to the Court of Appeal.

 

  1. We have what the judge did not have, namely a letter from Dr Bowskill dated 6 September, in which he states shortly but pertinently:

“I have assessed Mr LL and confirm that my opinion is that he is not fit to represent himself in court.”

Beyond that, we have a full medico-legal report from Dr Bowskill dated on its face 20th, but actually signed and dated by the doctor 27 September 2012. What is important is paragraph 7.1, in which the doctor states:

“My opinion is that Mr LL has a Paranoid Personality Disorder, as defined in Section F60.0 in the International Classification of Mental and Behavioural Disorders, Version 10.”

Then in paragraph 7.10 and 11, he states:

“7.10 Given Mr LL’s Paranoid Personality Disorder, I do not believe Mr LL would be able to represent himself in a useful way in the court process. Judge Compston made his findings without being aware of Mr LL’s Paranoid Personality Disorder.

7.11 My opinion is that the degree of Mr LL’s personality disorder is that he would not be able to rationally respond to and address questions that would be posed to him during the Court process. Indeed, the Court process is likely to exacerbate his feeling of paranoia and persecution.”

 For the Court of Appeal, that tipped the balance –underlining mine

I would not myself conclude that the judge’s decision on 14 August and 15 August fell without the very generous ambit of discretion given to a judge who has to balance on the one hand possible unfairness to the applicant, on the other hand unfairness to the respondent in granting the application, to which must be added the all-important welfare dimension taking into account the interests of the child. Finally, there is the general point of public importance that public funding resources need to be husbanded. A transfer from firm A to firm B usually involves wastage and therefore increase in the ultimate bill to the public purse. And always, there is the risk of delay inherent in granting any adjournment and the additional pressure on the limited resources of the court in filling the time vacated and finding matching time elsewhere.

However, the importance of the fresh evidence must, in my judgment, be recognised. Had that information been available to the Recorder, had he had the letter of 6 September and even more the medico-legal report, he would have recognised that he had before him a vulnerable applicant, disadvantaged as a result of his disorder and one who in the opinion of an expert was simply not fit to litigate unrepresented. Accordingly, if he had available to him information available to this court, it is at the least arguable that he would have reached the contrary decision. Indeed, in my view had he had that material, the application required to be granted, at least to give the applicant a limited opportunity to ensure that the certificate was not lost, but transferred to an alternative firm, who would then simply have the relatively light task of picking up the trial from the point at which all the documentation had been prepared. And Mr Maitland Jones, who had only been stood down from his brief to represent on the 14th, would have been available to be briefed on some other day.

 

 

In Re GB, it seems that the parents lost confidence in their legal team shortly after the Issues Resolution Hearing  (a hearing at which their position was confirmed as being that that parents accepted that the 3 children would not be returning to their care, and that the time estimate for the final hearing was reduced by agreement from 5 days to 2),  but did not obtain fresh representation between the IRH and final hearing and had not taken any steps to do that.

They dismissed their legal representation and sought an adjournment to obtain fresh legal representation, which was refused, and thus found themselves in the position of being litigants in person. [Again the underlining is my own, for emphasis]

  1. Ms Sterling’s case before us today sought to highlight a number of aspects. First of all, the mother’s vulnerability before the court. In doing so, we were handed one page from what is obviously a lengthy report prepared by Mrs Westerman, a clinical psychologist who conducted an assessment of the mother. The page that we have sets out three paragraphs listing the outcome of a number of psychological tests that were undertaken. These indicated that the mother had an elevated score in a number of aspects, in particular in one test on the “paranoid scale of the severe personality pathology scale”. Another result indicated the presence of “depressive and masochistic personality traits”; and, generally, Ms Sterling submitted that these results established or at least strongly indicated that her client was a significantly vulnerable individual and not well fitted, or fitted at all, to be either a litigant in person in any proceedings or, more forcefully, the litigant in person in these proceedings in relation to her own history, her own functioning as a parent and the future of her own children.
  1. Ms Sterling also took us to no less than four occasions in the judgment where the judge either herself expressed the view, or quoted the view of professionals, that the mother lacked “insight” into the difficulties that were being raised against her in the proceedings. Ms Sterling also pointed out that this mother had herself had a very troubled time as a young person in the care system.
  1. As part of the task facing the mother at the hearing, she was required to cross-examine the psychologist who had produced this comprehensive report. Ms Sterling said in terms that it was just wrong for a person such as this mother to be required to cross-examine a psychologist in these circumstances. She said that for the judge to have established a trial where this took place was unfair, unjust and unkind.
  1. In support of the second ground of appeal, Ms Sterling having taken us in her detailed skeleton and in her oral submissions to other matters, stressed that the judgment of the court does not simply deliver the task of deciding what should happen to the three children before the judge in November 2011, it also has an impact upon any future child that this mother might have, because it would be taken as the starting point and given credence by the local authority in deciding whether the mother could be a safe or good enough parent for any future child. The submission was made that there was no urgency in the proceedings before the judge, that there was benefit in time being taken to allow for legal representation; the children were not going to be moving, and indeed have not moved, from the places that they were already established in at the time of the hearing and the judge should have given the mother the adjournment that she sought.
  1. Finally Ms Sterling took us to the detail of the task that the mother faced in conducting the hearing. She described it as a herculean task, not least because of the physical burden of the mother carrying the six or seven bundles of paperwork away with her for the first time from court at the end of the first day, travelling on public transport back to her home, reading them as best she could overnight and returning to court for the 9.30 start on the next morning.
  1. Ms Sterling also said that a reading of the transcript showed that to pack so much into the day and for the judge to hold, as she did at the beginning of the first day, that the hearing would finish “tomorrow” was to put too much pressure on the mother and led to the court driving the case forward at an unacceptable pace during the course of the second day.
  1. I asked Ms Sterling whether any criticism was made of the approach the judge took once the hearing had begun, other than the pace of the process, and to that request Ms Sterling indicated that the way in which the judge simply allowed the mother to ask very long narrative questions of the witnesses was in fact a detriment to the mother; it allowed her, to use Ms Sterling’s phrase, “to rant” in an unfocussed manner which almost became self-defeating of the mother trying to present a positive and wholesome picture to the judge

The Court of Appeal in both cases referred back to Re B and T (care proceedings: legal representation) [2001] 1 FCR 512 and cited the general principles about an adjournment application where the parents had become unrepresented [underlining mine]

 

  1. 45.   “17. The assertion by Mr Miss Booth that art 6 obliged the judge to discontinue on either 12 June or, if not then, on 14 June, seems to me to be an unrealistic submission. In this jurisdiction the proceedings are not adversarial proceedings. The judge always holds an inquisitorial responsibility, It is his difficult task to maintain a balance between the rights of the children to an early determination of their future. The obligation of the judge to avoid delay is expressed in the statute. I cannot see that it could be said that this judge, supremely experienced in this field of work, fell into error in balancing the rights of the children to determination against the rights of the parents to a fair trial. It is not a case in which the parents were denied the opportunity to put their case. It is manifest that the judge endeavoured, to the best of his ability, to ensure that the received the support which is conventionally given by a judge and advocates to unrepresented litigants.

[…]

21. When one considers the requirements of art 6 of the Convention, it is relevant to remember that art 6 requires the entire proceedings to have been conducted on a fair basis. It is not appropriate simply to extract part of the process and look at that in isolation. In this case, as my Lord has said, there had been abundant legal advice and guidance of the most skilled nature available to Mr and Mrs T before the matter came before Wall J. There had also been the possibility, indeed the obligation, to produce further evidence: steps that had not been taken on the instance either of Mr and Mrs T or of those were acting for them. I do not therefore agree that, in assessing the impact of the Convention in this case, one should necessarily start on the day upon which the adjournment was sought, ignoring everything that had gone before. Further, I do not agree that, in proceedings of this nature, in which the children as well as the parents have an intimate and pressing interest, one should look at the question of fairness to the parents in paramount priority to fairness (in terms of a prompt decision, which is another aspect of art) to the children. In the passage that my Lord has read, it is clearly apparent that the judge had, and properly had, the interests of the children well in mind when he was making his decision.

22. However, I put those matters to one side. I will look at the case on the basis upon which Miss Booth put it in support of the submission that art 6 did require a decision, either to adjourn the trial or to stop it at the point that I have indicated. We have to remind ourselves, as I have already said, that art 6 is concerned with the overall fairness of the proceedings. The article itself lays down very few absolute rules. That said, both the jurisprudence of the European Court and simple common sense, of a kind that an English lawyer can immediately identify, do require in general terms that certain elements are present in any judicial proceedings, an obvious example is the right and ability of those concerned in the proceedings to put their case. Here Mr and Mrs T had ample opportunity and occasion, as the judge was satisfied they had done.

23. Another consideration is that there should be equality of arms between the parties but, in my view, that does not mean that there must necessarily be legal representation on both sides, indeed on all sides, more particularly where everybody concerned in the case was acutely aware of the need give every assistance to people who were representing themselves. Provided that the tribunal is itself aware o and constantly reminds itself of the duty of fairness, it is very much a matter for that tribunal, and is recognised in the jurisprudence of the Convention as being to a substantial extent a matter for that tribunal, whether, in all the circumstances, it is able to discharge the case fairly.”

[Just as well, considering what has just happened to legal representation in private law cases, that equality of arms doesn’t mean that if one person has a a lawyer, everyone else should have a lawyer]

So, in Re GB, the Court of Appeal went on to consider whether, drawing on those general principles, the decision to refuse an adjournment was plainly wrong

  1. It therefore seems to me that issues such as the one raised in the present case will of necessity be fact specific; it will be necessary to look at all of the elements that were in play before the judge who decided to adjourn or not adjourn a set of proceedings. The principles are set out in the European decision of Re P and most helpfully set out in Re B and T, as I have indicated.
  1. Applying those matters to the present case, and not underestimating the task that the mother faced in conducting this litigation before the court in the, to her, unexpected event of the court pressing on without granting an adjournment, I consider that the process that was adopted and the decision to press on without an adjournment did not breach the mother’s Article 6 rights to a fair trial, looked at either in terms of the narrow focus of the hearing itself in November or, as we have to do, against the canvas of the proceedings as a whole.
  1. This was a case which turned very much upon the assessments that had been undertaken by the various professionals. Much of the work of teasing out the detail, the strengths and weaknesses of the various family members and the vulnerabilities and needs of the children had been undertaken by professionals over the course of weeks and months, had been reduced to writing and was before the judge. The judge’s decision was very much based upon that material. There is a limit in such circumstances as to how much any advocate, lay or otherwise, can achieve where the body of material upon which the judge will rely is established, and there is no countervailing expert opinion the other way. For example, had the independent social worker instructed on behalf of the parents taken a contrary view then there would have been more room for manoeuvre available to an advocate to present a case; here the evidence was all one way.
  1. Secondly, this was a case where the judge was contemplating delay of already one year from the time the children were removed to foster care. Although they were not going to change their placement or their home if the orders sought were granted, everybody involved with them, and in particular the children insofar as they could understand it, needed to know whether or not these arrangements were going to be for the future, so that they could hunker down and get on with life and the task of growing up or bringing up the children; or, if the children were going to go home, plainly that issue had to be determined so that the moves to move them back to the parents’ care could be undertaken. The judge was therefore justified in attaching a premium to the need to achieve finality in this process.
  1. Although Rule 1.1(2)(c) urges the court to establish an equal footing between parties, that can never be justification of itself for a litigant in person seeking an adjournment and holding that the failure to grant an adjournment is a breach of Article 6 rights.
  1. At each turn a balance has to be struck; it is not a balance that is to be determined under Section 1 of the Children Act under which the child’s welfare would be the court’s paramount consideration, but the court must take account of the child’s welfare and the fair trial needs of the parties to the court, which include the parents but also include the child and, to a lesser extent, the local authority. This was a decision that the judge was particularly well seated to take; she had a prior knowledge of the case and she had indicated at the earlier hearing that no adjournment would be contemplated simply for a change in legal representation to be achieved. In my view, the judge was right to reject the adjournment application.
  1. But that is not the end of the matter. Once the case is proceeding a judge is faced with the difficult judicial task of acting as the judge in the proceedings, of refereeing the court process, but doing so in a way that seeks to meet the need for all parties to be on an equal footing so far as is practicable, notwithstanding that one of them is not legally represented, and in this regard I think the judge conducted herself in a way which was conspicuously helpful in meeting that need. In particular, the judge had been open and clear to the parties by indicating at the previous hearing that there would be no adjournment. The parties were in no doubt that that was the judge’s view and any change that they were going to seek to make in their representation would have to bear in mind that parameter set by the judge.
  1. Secondly, once the judge had decided to press ahead with the hearing she was clear in dealing with the mother as to what was required and, on my reading of the transcript, went out of her way to assist the mother to achieve focussed representation in the terms of choosing which witnesses to call and how they should be questioned. One aspect of this is that, despite the breakdown in the professional relationship between the parents and their lawyers, the judge invited counsel and solicitors for the parents to remain in the court room during the morning of the first day of the hearing. The time came when the court turned to ask the mother which witnesses she would wish to call. At that stage the judge was able to ask the mother to spend a short time out of the court room with her previous barrister and solicitors to obtain their assistance and indeed to consider reinstructing them and returning them to their previous role. The result of that was that a list of witnesses was provided and the mother confirmed that she did not wish to reinstruct the lawyers. The judge’s invitation for the lawyers to remain in the court room seems to me a sensible and proportionate step to have taken.
  1. Most of the witnesses who were called on the second day had in fact been stood down, and again the judge did not stand by the previous order which had simply listed a few witnesses to be called; she exhorted the local authority to obtain as many of the key witnesses as possible and adjourned the case from time to time to assist that process.
  1. During the evidence giving itself, the judge allowed the mother full rein; she did not interrupt the mother with interventions designed to keep the mother on a track that a lawyer skilled in the forensic process should follow; she did not bombard the mother with technical points; instead she allowed the mother simply to say what she wanted to say, and then at a suitable interval the judge would try to focus the witness onto a question or questions arising from what the mother had said.

And thus concluded that taking the principles from Re B and T and the European Court decision in P, C and S v  UK, which is reported in [2002] 2 FLR at 631 and applying the facts of this case, the Court had not been plainly wrong in refusing the adjournment.

 What we don’t have then, is a checklist of what factors tip the balance for granting the adjournment and refusing one.

(I’d suggest that relevant factors would be – the circumstances in which the parent and lawyer parted company, the complexity of the trial, the timing of the separation, what steps the parent has taken to try to get fresh representation, the vulnerabilities of the parent, their ability to conduct the litigation in person if given appropriate support, the impact of delay on the case and the child,  and the timescales for reconvening the hearing. But those are just my suggestions, the Courts haven’t sat down and thrashed out a set of factors]

Of course, this raises the interesting point – in order to properly seek an adjournment, the parent (who is representing themselves, perhaps unwillingly) needs to know of the substance of at least four pieces of case law – Re B and T, P C and S v UK, Re L and Re GB, and to be able to highlight to the Court the facts of their case which put them in the Re L bracket and not the Re GB bracket.   [Good luck with that]

It would seem sensible, where the other parties get advance notice of a parting of the ways, for the relevant cases to be brought to Court and the principles distilled into a short document for the benefit of the Court and the parents.

 The Court of Appeal in Re GB also made some salient points about the delay, it having taken 15 months to get the appeal heard, principally because the appeal had not been issued until the transcript of the hearing had been obtained, and firstly there had been a delay in getting the LSC to fund the transcript and secondly in getting the transcript approved by the original trial judge.

The Court of Appeal encourage parties in a similar position to issue the appeal without the documents and use the force of the Court of Appeal’s directions to hasten the production of those documents.

  1. From this unedifying chronology it seems to me that the following points for future practice can be drawn:

a) The preparation of transcripts, and indeed the obtaining of advance authorisation for the costs of preparation from the Legal Services Commission, may take a significant amount of time. At each turn it is important to ask the question: is the obtaining of this particular transcript an essential pre-requisite before either filing a notice of appeal or indicating that the papers are in order for the permission to appeal application to be considered?

b) Where, as here, time was running on and a further first instance hearing was timetabled, serious consideration should be given to filing the notice of appeal in any event, notwithstanding that one or more plainly essential transcripts is not yet available. Such a step

1) enables the Court of Appeal to support a prompt process by the Legal Services Commission and the transcribers in meeting a sensible timetable;

2) enables the Court of Appeal to contact the first instance judge if necessary to chase up approval of the transcript of judgment; and

3) provides a vehicle via which the proposed appellant may seek a stay of the ongoing court proceedings pending consideration of their application by this court.

c) In a case which is already grossly delayed, the notice of appeal if not already filed must be filed within a matter of a day or so after granting of legal funding and not, as here, some weeks later.

d) the pursuit of transcripts in relation to issues which, at best, are peripheral should not delay progressing the case at least to the stage of consideration for permission to appeal.

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What to do in the interim?

Posted on March 28, 2013 by suesspiciousminds

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases)   https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ 

 , a cyst   https://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/ 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,   https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained   https://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/ 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013  

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

“I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

“When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could take.  One would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

 

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.

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Ambassador, with these Brussels 2 applications you are really spoiling us

Posted on March 22, 2013 by suesspiciousminds

The potential impact of the High Court decision in Re T (A Child Article 15 of BR2) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/521.html

An interesting  (if somewhat dry) one, brought about by the intervention of the Slovak authorities in care proceedings in England.

It seems (and one can understand why when one looks at their recent experiences) that the Slovak authorities aren’t that taken with the way care proceedings concerning their citizens are being conducted in England.

In this case, both parents were Slovak, although living in England, and the child had been conceived in Slovakia. In fact, the Slovak authorities had had the mother in care in a children’s home,  become aware that the mother was pregnant and sought to place her in another children’s home that had special provision for underage mothers.

The mother ran away and came to England.

3. Shortly beforehand on 19 May 2008 a court in Michalovce, Slovakia ordered that the mother be placed in a crisis centre following certain allegations by her against her stepfather and mother. In July 2008 the relationship between the mother and father began. The mother was then aged 13, the father 16. On 14 January 2009 the Michalovce District Court made an order placing the mother in the children’s home in that city.

In July 2011 the mother fell pregnant and on 30 November 2011 the Michalovce District Court ordered that the mother be transferred to the children’s home in Kosice which had a special unit for underage mothers. It was from there on 29 February 2012 that the mother ran away with the father and travelled to this country which she entered on false papers. The mother and father went to the town where her family were living, and it was there on 22 April 2012 that T was born.

4. It was not only on account of the mother’s young age that the local authority was concerned for the newly born infant. Almost from the moment of their arrival here in 2008 protective measures had been taken in relation to the mother’s siblings and this led to all or some of them being made the subject of care orders in 2010. I have not been given the details. At all events the local authority undertook a core assessment immediately following T’s birth and only allowed the mother to take him to her own mother’s home on discharge from hospital on 4 May 2012 on the basis that the mother signed a “contract of expectations”. Unfortunately as a result of various intra-familial disputes the placement broke down and ultimately on 18 May 2012 the mother and T moved to a Mother and Baby Unit for a 12 week period of assessment pursuant to an agreement made under section 20 of the Children Act 1989.

However, on 23 May 2012 the mother left the unit leaving the baby behind, and although she returned the following day she left again finally on 27 May 2012, complaining that the place was like a prison. Care proceedings commenced in England, and by the time of this application had reached the point where all assessments were completed, and the recommendation of the Local Authority in England, and the Guardian was that the child should be adopted.

The Slovakian authorities sought the return of the mother (and also later the child) to their country, so that decisions could be made in Slovakia relating to them both, and made an application under Article 15 of Brussels 2 On 19 July 2012 the Director of the children’s home in Kosice wrote to the local authority stating “our interest is that the mother be returned to the children’s home, as she is entrusted to our care by the courts”. Later the authorities in Slovakia expanded this to seek the return of T also.

On 27 September 2012 the children’s home informed the Slovakian Central Office of Labour, Social Affairs and Family (which I take to be the relevant government Ministry) of the circumstances of the case and on 3 October 2012 the Slovakian Central Authority received a report from the Ministry about the mother and T. The Slovakian Central Authority contacted the Central Authority (ICACU) here on 5 October 2012. On 18 January 2013 a lengthy letter entitled “Intervention of the Slovak Central Authority” was received by the court authored by Andrea Cisarova. This has been supplemented by two further detailed submissions dated 21 February 2013 and 8 March 2013.

In these documents the Slovakian Central Authority forcefully argues that under EU law, equally applicable in Slovakia and this country, the mother and T are both habitually resident in Slovakia; the mother is the subject of an order which is entitled to recognition and enforcement here; and that this is a case where a request should be made by this court under article 15 of Regulation Brussels II Revised[1] for a transfer to the Slovakian courts of the proceedings concerning T.

Like most lawyers who don’t specialise in international law, I hear the phrase “Brussels II” and have to suppress a shudder. It normally means that things are going to get fearfully complex.

In this case, what it meant was that the Slovak authorities were asking the English Court to relinquish the case over to them. The mother was agreeing to the order of the Slovak courts that she return and live in the children’s home.

Article 15 provides

9. “Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State … ; or

(b) request a court of another Member State to assume jurisdiction …

2. Paragraph 1 shall apply: (a) upon application from a party; or (b) of the court’s own motion; or (c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph

3. A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.”

Mr Justice Mostyn, who heard this case, picked over the existing sole authority in English law on article 15 [AB v JLB [2008] EWHC 2965 (Fam) [2009] 1 FLR 517 ]   and drew from it the three questions that had to be answered by the Court who were dealing with the application

10. i) First, it must determine whether the child has, within the meaning of Article 15(3), “a particular connection” with the relevant other member State – here, the United Kingdom. Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))?

ii) Secondly, it must determine whether the court of that other Member State “would be better placed to hear the case, or a specific part thereof”. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court “is in the best interests of the child.” This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

11. In paragraph 36 Munby J pointed out that even if affirmative answers were given to all of the three questions there remains a discretion whether or not to request a transfer. However he observed that if all the questions were answered affirmatively it was difficult to envisage circumstances where it would nonetheless be appropriate not to transfer the case.

He then went on to consider the application of article 15 to care cases and distilled the following principles

24. ) Article 15 applies to public law as well as private law proceedings.

ii) As a precondition the court must be satisfied within the meaning of Article 15(3), that the child has “a particular connection” with the relevant other member state.

iii) The applicant must satisfy this court that the other court would be better placed to hear the case (or a specific part thereof). In making this evaluation the applicant must show that the other court is clearly the more appropriate forum.

iv) In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses.

v) If the court were to conclude that the other forum was clearly more appropriate, it should issue the transfer request and grant a stay unless other more potent factors were to drive the opposite result.

vi) In the exercise to be conducted at (iii) – (v), the best interests of the child is an important, but not the paramount, consideration.

vii) In making the best interests analysis at (vi) the court will not embark on a profound investigation of the child’s situation and upbringing but will dwell in an attenuated inquiry upon the sort of considerations which come into play when deciding upon the most appropriate forum.

What was particularly interesting in this case was that the Slovak approach was for mother and child to live together, albeit in a children’s home and given a long process of assessment and testing and support with a view to keeping the family together long-term, whereas the approach of the English professionals was that the mother could not meet his needs and keep him safe and that adoption was the only viable plan.

Thus a transfer to a different jurisdiction was not merely having a different Court with different laws determine the case, but a profoundly different outcome for the child. The direction of travel for either jurisdiction was very clearly laid out.

The High Court looked at the arguments put forward by both parties

31. The Slovakian Central Authority, supported by the parents, argues for a transfer for the following reasons:

i) Both parents and the child are Slovakian citizens. The habitual residence of the mother is Slovakia. The child’s habitual residence is, she argues, Slovakia.

ii) The parents only speak Slovakian. Any proceedings in Slovakia will be in their own language. Similarly any further assessments in Slovakia would be undertaken in their own language.

iii) The mother has agreed to return to Slovakia and to the children’s home to which she has been committed by a court order

iv) T has not been put in a permanent placement and a further move for him will have to take place in any event.

32. The Slovakian Central Authority has outlined the plan for the mother and T were they to return to their native country. They will be placed in the children’s home in Kosice where they will live in a small community with at most four other under-age mothers with their children. They will be cared for 24 hours a day by six child care professionals who will help them to provide care for their minor children. In this way the minor mothers learn to care for their children to create emotional bonds and to achieve parental skills. Psychological and special pedagogical care will be provided and the minor mother will have the opportunity of completing her education.

33. Of course it is accepted by all that this process is fundamentally one of assessment and that were a transfer to be made the court in Slovakia would have to decide whether reunification was possible in the long-term or whether T would have to be permanently placed with alternative parents.

34. In my opinion the plan I have outlined above best promotes the possibility of preserving this child’s Slovakian and Roma heritage. In his skeleton argument counsel for the child stated that “whilst of course there are additional welfare factors because of T’s Slovakian heritage, fundamentally he is a child like any other”. This struck me as a profoundly culture-blind statement. I do regard the promotion of this child’s heritage as being of great importance and I do not consider that the case of either the local authority or the Guardian has sufficient regard to that factor.

35. Additionally, I would observe that it is doubtful that either of these parents or indeed the child is lawfully present in this country under the terms of the Immigration (European Economic Area) Regulations 2006 S.I. 2006 No. 1003.

36. Leading Counsel for the local authority argues that the Slovakian plan would not be in the child’s best interests because it represents but a single inflexible option. This was the central part of his argument and so in fairness to him I set out the relevant paragraphs of his skeleton (as modified in oral submissions) in full:

The transfer of jurisdiction proposal carries with it only one plan, only one option.

The type of assessment proposed under the Slovak plan has already been tried at the Mother and Baby Unit. The Mother left the unit to be with the Father.

Previously she had run away from the Mother and Baby unit at the Kosice Children’s Home to be with the Father. She has consistently in Rotherham refused offers of accommodation on her own because she wants to live with the Father.

The prospects of her remaining without the Father at the Kosice unit for assessment are not sufficiently good to make it in the Child’s interests to try this because of the damage that will be done to him in the process.

The Child has a good, healthy attachment to his foster carer. He is at the age when he has the opportunity to transfer that attachment to another care-giver. If he is enabled to transfer this attachment to his new permanent carer, the prospects for his emotional wellbeing are good. If he is not able to do this successfully, the risk is that he will shut down emotionally and permanent damage will be done to the future prospects of any successful attachment to any carer.

The Slovakian plan involves the Child being placed with his Mother as his primary carer, albeit with professional supervision.

The observations of contact between the Child and his Mother show that he will be seriously distressed if he is placed in his Mother’s full-time care. Despite her best efforts, she is unable to soothe and calm him. He will often not accept care, such as feeding, from her. If the Mother and the Child are put in this position full-time, the distress caused to the Mother is likely to make her chances of caring successfully for the Child even less.

The Mother herself believes that the best way forward would be for Child to be in foster care initially in Slovakia in order to build up contact with her.

The Child suffers from herpes which flares up from time to time. The stress of leaving his foster carer and being placed in his Mother’s care is likely to cause his herpes to flare up. This will add to the difficulty of caring for him and the stress caused to the Mother. If he needed hospital treatment in Slovakia, the disruption to him and stress will be increased.

The further assessment is, in any event, unnecessary given the assessment work which has been done with the parents already. There is already sufficient information before the Court to establish that the parents cannot offer the Child the care he needs.

It is not in his best interests to take risks with his long term emotional welfare and ability to form attachments to a permanent carer and to cause delay in the final decision-taking for him. The prospects of success for the Mother/ Parents are not sufficiently good to warrant taking those risks.

37. It can be seen that this argument comes very close to the profound best interests enquiry concerning the child’s future care which Lady Hale emphatically said should not happen in Re I. Basically, it is a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen. I completely disagree with this approach. The analysis of best interests only goes to inform the question of forum and should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.

38. It can fairly be said that the local authority witnesses on events in T’s short life are all here speaking of events here and that this militates in favour of this court being the more appropriate forum. However, it is obvious that if this case is transferred to Slovakia there will not be any substantive court case as the parents will surely accept the plan of the Slovakian authorities. Only if that further assessment and attempted reunification fails is there likely to be a contested case in Slovakia; and that case will surely be focusing on the most recent Slovakian assessment and the reasons for its failure rather than historical assessments over here.

39. I conclude that all the requirements of article 15 when read conformably with the principles set out by Wilson J are satisfied in this case and that the transfer request should be issued. The proceedings will be stayed but T will remain where he is under a sequence of interim care orders made administratively until the Slovakian court makes a decision about his interim arrangement. Of course in the event that the Slovakian court declines the request then the matter must be restored to this court for final determination.

And of course, the significant matter there is the Court’s determination that it would be for the Slovakian authorities to determine whether the child could remain with the mother, and that in the event of a dispute on that, and proceedings being issued it would be the Slovak assessment and evidence which would be relevant, and not those matters which had occurred in England. The case was duly transferred to Slovakia – although the child had never spent a day in Slovakia and was not habitually resident there, Mostyn J found that the child had NO habitual residence anywhere, and was thus captured by Article 13.

[It was pretty clear from the judgment that although Mostyn found himself to be bound by the Court of Appeal authority in ZA & Anor v NA [2012] EWCA Civ 1396 that a person or child cannot be habitually resident in a country they had never lived in, he wasn’t of the same opinion, and favoured the dissenting judgment of that authority. This child of course, had been living in England for 11 months by the time of the judgment…]

This is a peculiar one – mother was really giving up her life here to go and live in a restrictive environment in Slovakia in order to keep her child with her, although she had herself fled that environment previously.

So, the question arises – if you are representing parents in care proceedings who are from another jurisdiction [where Brussels II applies], and they would be willing to return to that jurisdiction, is it worth approaching that embassy to see if they would be willing to apply under Article 15 to take over the case?

It will depend very much on the circumstances, but is probably something which needs more consideration than one might normally give it. If the Courts are willing to move the case over when the care plans are so divergent, it may be a way of achieving parent and child being together that is more effective than challenging the making of orders in the English courts.

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