Category Archives: case law

“To lose on a case once in the Court of Appeal may be regarded as a misfortune, to lose three times on the same case looks like carelessness”

Posted on March 4, 2013 by suesspiciousminds

The misadventures of the LA in the case of Re B (2012) (the Slovakian grandmother case)

This is indeed, the third time that the Court of Appeal have heard the case, and on each occasion, the LA have lost. They have had a steadily increased judicial kicking each time that they did so, and the Court of Appeal almost seem to be running the case management of the case.

The latest instalment is here

http://www.familylawweek.co.uk/site.aspx?i=ed111948

It involves a case where the LA had put forward a plan of adoption for children and rejected a grandmother, who was living in Slovakia. At the very first appeal hearing, the Court of Appeal determined that adoption was not the right plan for the children and that the children should be moved over to Slovakia, although that would require a transition and a build-up of contact.

That was on 9^th November 2011.

The case came back to the Court of Appeal on 16^th November, with the LA seeking amplification and also seeking to introduce some fresh evidence about grandmother (including an allegation that she had attended a meeting with the mother, posing as the mother’s interpreter)

The Court did not think that these fresh allegations were any impediment to the plan, and were gravely disappointed that the LA had not moved on with the transitional plan. They delivered a judicial ‘get on with it or we will take your ICO away from you and run things ourselves’ warning.

It was therefore pretty surprising that the case came back for a third time on 14^th December, with the Court of Appeal being asked to decide between three plans for transition, and there having been no increase to contact since the Court of Appeal had decided that these children were going to move to Slovakia and live with the grandmother.

The Court were not best pleased that the LA had unilaterally decided that they weren’t going to implement the Court of Appeal’s decision.

The Court of Appeal expressed this fairly witheringly

3. The performance of the local authority since seems to me, albeit without the fullest investigation, lamentable. We have not had any evidence from officers of the county council, which might of course explain or justify what on the correspondence seems to have been almost a conscious endeavour to defy the direction and pace for transition clearly set out in the judgment of the majority on 16 November.

4. The tragedy is that, whoever may be responsible for the confusion, lack of control, and lack of direction over the last four weeks, the children have suffered. The transition is now more difficult to manage and plan than it was on 16 November. A precious period of four weeks has elapsed which only increases the uncertainty for the children and introduces the stagnation of a process which essentially required firm forward progress.

It emerged that the LA had been unhappy with the Court of Appeal decision and been taking advice about appealing it, and had decided that they wished to do so. They had taken the decision that increasing grandmother’s contact and building up the relationship might hamper their appeal and thus had not implemented a transitional plan as the Court of Appeal had asked them to do (and subsequently pressed them to do)

They had not, at the November hearings, sought leave to appeal, or a stay, or indicated that they were contemplating that course of action.

The Court was therefore given one plan of transition to grandmother’s care drawn up by those representing grandmother, one by the Slovakian authorities (who were obviously perplexed by the scale of the resistance to these children moving to their country) and one that had been drawn up by the LA (obviously slowing the pace of transition to give them the chance to go and get their behinds kicked by a larger number of Judges in an altogether different building. Also see below for the timing of the creation of the plan)

Always a risk in having three plans before a Court that they decide that none of them pass the Goldilocks test, and make their own, which will be ‘just right’ and that’s exactly what they did.

9. Our first task, perhaps, is therefore to be much more directive in relation to the next steps than we were on 16 November. On that occasion we relied on the responsibility of the local authority. We relied, perhaps over-optimistically, on the belief that there would be harmony, that there would be collaboration and that there would be a general acceptance of the orders of this court. In that we have been disappointed.

The submission made by Mr Bellamy, which has much force with me, is that this transition plan proffered by the local authority saw the light of day at about 30 minutes past midnight this morning and is written without any consultation at all with the grandmother or with her very experienced solicitor and counsel.

10. How then should we be directive? If fairness to adults and general justice were to rule, I would certainly opt for Mr Bellamy’s plan, if not that of Ms Cisarova. But whatever the history of adult behaviour, we have to above all search for the welfare of the children, and I reach the reluctant conclusion that the proposal of Ms Cisarova and, more narrowly, the proposal of Mr Bellamy fail the test of what is best for the children.

11. Accordingly I would reject all three proposed transition plans. I would direct that the process of transition must start immediately, by Monday next at the latest, and that it must be completed to ensure that these children have left this jurisdiction and arrived in Slovakia by 4 January at the very latest.

That pretty much settled that. The Court then considered whether this should be done under an Interim Care Order, or a Residence Order, with grandmother agreeing to the children being section 20 accommodated during the transition period. There was a two-to-one split on that, with the Court opting for a Residence Order and s20 consent.

Leave to appeal was also refused, the LA were directed to get any formal application for appeal in by 19^th December (I think 3 working days later) and the stay was refused.

It would be fair to say that Mr Norton, representing the LA, whom I know and like, has had more successful days in his professional career.

14. It is high time that the adults surrounding these children, whether they be family members, whether they be laudable foster carers, or whether they be local authority officials, started working wholeheartedly to achieve the result which we impose. If there is some fundamental unforeseen development which requires judicial intervention then there must be an application to the Applications Judge of the Family Division

This case does point up the difficulties in trying to get the Court of Appeal to case manage a case, the family were very lucky here that they were able to get hearings so quickly. It also shows that you defy the Court of Appeal at your peril, and that if you do intend to appeal a decision that they make and not begin implementing it, you had better put everyone on notice.

It doesn’t seem that any applications for costs were made, but the need for the December hearing must have sailed pretty close to that point. I don’t know if they lodged their appeal, they may have been tempted, given that they had three different Court of Appeal judgments to appeal against…

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Posted in adoption, case law and tagged Court of Appeal, grandmother from slovakia, re b (2012), slovakia, slovakian grandmother, the slovak grandmother case. Bookmark the permalink.

“Don’t ever invite a Judge into your house, you silly boy, it renders you powerless”

Posted on February 22, 2013 by suesspiciousminds

A peculiar little case, considered by the High Court, and not just a cheap opportunity to quote from The Lost Boys, honest. [But come on, when would Suesspicious Minds ever pass up an opportunity to reference the Lost Boys? “Burn rubber, does not mean warp speed!”]

Re AMV and MV 2012

http://www.familylawweek.co.uk/site.aspx?i=ed111643

It isn’t an important case, save for those involved, nor does it say anything vital about the law, but it is one of those interesting ones that I collect and write about where the mind boggles at how cases sometimes end up being conducted.

The Judgment is very short. Here is the nub of it.

A private law dispute where the mother and the children were living sometimes at her own home and sometimes with the maternal grandparents. The father alleged that the mother was living full-time with the grandparents, in an unsuitable property and not living at her own address at all.

The District Judge decided that the best way to assess that was to go out and see for herself.

So the mother was asked to agree to that site visit, there and then, and given 15 minutes to decide. [I like to imagine that the Judge was also loudly humming the Countdown theme tune, but this did not actually happen]

Obviously, saying no might have given the impression that there was something to hide, so with some confusion, she agreed.

It hadn’t been possible to contact the grandparents to forewarn them / ask them, so the Judge, accompanied by the mother, father, counsel and the CAFCASS officer set out on the journey.

All parties duly arrived at the mother’s house, were permitted entry and apparently combed the premises, opening doors, looking in cupboards and fridges, even looking in wastepaper baskets. I was told that the District Judge had specifically looked into a dustbin and, as a result, made an express finding, arising from this as to the likely occupancy of the house.

6 On completion of this outing, the parties (still in the two separate cars) drove to the maternal grandparents’ property. On arrival they were given admittance. The maternal grandparents were to an extent taken by surprise. They did not have independent legal advice. The process of investigation, as already described, then took place in their home, with doors being opened, the contents of drawers being investigated and the like.

7 The parties returned to court. The entire outing took about one and a half hours. The District Judge made findings in reliance upon what had been seen – indeed, a great deal of cross-examination of the CAFCASS officer took place on the basis of counsel’s perception of the state of the two homes.

It is not going to take a genius to work out that the Court having made decisions based on these site visits, the mother was going to appeal those decisions, and that she was going to succeed in that appeal.

To my mind, this entire procedure was wholly unacceptable. In the first place, it was a suggestion which came within or shortly after the opening of the case and did not permit time for proper consideration of the implications. In reality it gave the mother and her adviser little effective choice but to agree for fear that a negative response would draw an adverse inference from the court. It was, in effect, litigation by ambush.

9 Although I have not been addressed in detail by either counsel, it would also seem to me it was, prima facie, a breach of the mother’s Article 6 rights to a fair trial. It is not the role of a judge in such a situation to play detective and enter a person’s home. 10. More importantly this Judge entered the home of a third party in order to elicit evidence. Prima facie, that was a breach of the maternal grandparents’ Article 8 rights.

To my mind, a judge’s job is to consider the facts presented, weigh up that evidence after cross-examination, make findings and a determination. If the methodology adopted by this District Judge was correct, it would lead inevitably to breaches under the ECHR. A Judge cannot seek to determine who is telling the truth by a surprise or unannounced visit in relation to disputed facts. That is not an appropriate way to litigate.

Moreover, the method of approaching third parties and seeking entrance into their home in those circumstances as I have stated left them with effectively no choice. I doubt that they felt that they had any alternative but to open their front door and make the Judge, counsel, their daughter and their former son-in-law welcome in their flat.

The District Judge found their home was cramped, dirty and untidy. Hardly a matter which was appropriate in all the circumstances.

10 I consider that it is inappropriate for any District Judge to seek to deal with a case in this manner. Especially as the site visit came at the Courts suggestion without any or any sufficient time for mature reflection let alone legal advice.

If there are real concerns that children are not being cared for properly (and that was not an issue in this case) it is a matter that can be dealt with by social services who are entitled to, and do make, regular unannounced visits.

I deprecate the method used by the District Judge and would urge that nothing similar occurs in the future.

I suppose the process of the District Judge effectively making an unannounced visit and looking in dustbins, and the parents counsel cross-examining the CAFCASS officer about a home visit to which not only they, but also the Judge had also been present (and thus technically witnesses about) was slightly more scientific and forensic than the Judge starting the judgment with “Ip dip sky blue, it is not you” , but not all that much more.

Please, judges and counsel of the land, keep making such extraordinary and peculiar decisions, it brightens up my day.

[The usual tangent – it seems that the lore that a vampire must be invited into your home comes from Bram Stoker, in “Dracula” “He may not enter anywhere at the first, Unless there be some of the household who bid him to come; though afterwards he can come as he please.” – where Van Helsing is recounting the powers and limitations of the vampire, and wasn’t around as a myth before then]

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Posted in case law, private law and tagged AMV v RM 2012, article 6, article 8, can a judge visit my home, judge going to grandparents home, judge making site visit, judge visiting parents home. Bookmark the permalink.

Vulnerable witnesses revisited

Posted on February 22, 2013 by suesspiciousminds

The Court of Appeal have looked again at a case involving the issues of a vulnerable adult giving evidence. Re M (A Child) 2013

Sadly, given how often this crops up, they have not given any generic guidance for the Courts to apply, but the case throws up some interesting issues.

http://www.familylawweek.co.uk/site.aspx?i=ed111952

The issue related to a finding of fact hearing, where the father was one of the adults “in the frame” for causing the injury to the child. Noting his cognitive difficulties, a cognitive assessment was undertaken of him.

That concluded that he was not capable of instructing a solicitor, but was capable of giving evidence. He would not be capable of providing a narrative statement.

His capacity to give evidence was both fluctuating and deteriorating and before the fact finding hearing, a further updating report on his cognitive abilities was commissioned.

This arrived the day before the fact-finding hearing was to begin

6. Dr North addressed that task, decided that a narrative statement could not be filed and by his report made it very plain that the father’s capacity to testify had deteriorated in consequence of mounting stress and anxiety. Dr North in his final report was relatively, but not absolutely, clear in his opinion that, whilst the father remained capable of giving evidence, he was to be regarded as a vulnerable witness due to his cognitive difficulties and his level of suggestibility. In order to help him to succeed in giving oral evidence Dr North suggested some preliminary familiarisation with the setting, but more importantly went on to set out in ten bullet points some pretty fundamental things that should be done if his competence was to be retained; particularly, the seventh bullet point stated:

“He should be offered a ‘supporter’ whilst he is in the witness box who can help him to understand any difficult questions and encourage him to provide accurate answers.”

7. Then, below the bullet points, Dr North wrote:

Mr Smith becomes excessively anxious if he has to speak in front of other people. His anxiety level may lessen if he is made familiar with the court and the court processes. If his anxiety levels do not reduce it will be essential to provide him with additional facilities such as using a screen or a video link. If his anxiety levels are excessively high he will find it extremely difficult to provide evidence; this can be assisted by the provision of screen or video link.”

And then, importantly, in the concluding paragraph:

“Mr Smith is a very vulnerable man and in order to help him to give oral evidence it will be essential that he be provided with an advocate or intermediary in order to help him to negotiate and understand the court processes and proceedings.”

Now, obviously, none of this was in place the next working day, and those representing the father made requests that such arrangements be made.

The Judge rather ‘parked’ that issue, saying “well, we will all try, counsel and myself, to make it easy for the witness“, but in the end it is impossible to spell out anywhere in the transcript the judge giving a ruling on the application or saying much beyond that she was minded to, as it were, get on with the case, see how it went and possibly return to the issue at a later stage in the light of the father’s performance.

The Court of Appeal describe this as a ‘high risk judicial case management decision’ and of course, not actually determining the application for the steps proposed by Dr North to be taken or not taken, robbed the father of either having those safety mechanisms or being able to appeal the decision for them not to be provided.

This next bit is very peculiar –the Guardian was charged with the role of being the ‘advocate or intermediary’ to help the father in the witness box.

The father did testify, but, before he did, an unsatisfactory makeshift was engineered whereby Mr Taylor, who was after all the guardian ad litum, found himself trying to undertake, additionally, the role of being intermediary. He had no previous experience of that role unlike Dr North. He had some brief guidance I think from Dr North, but not only was he not a registered practitioner but he was attempting the responsibility for the first time and, fundamentally dangerous, trying to fulfil two functions at the same time; functions that were not mutually complementary and which were liable to take him into conflict between Role A and Role B.

This seems to me to have been an intolerable position both for the father and the Guardian to find themselves in.

At the conclusion of his evidence Mr Taylor registered with the judge how uncomfortable he felt at the end of his endeavour to provide intermediary services. He said, by way of self-criticism, that he felt that he had failed the father

The Court of Appeal came to the conclusion that the father had not been fairly treated by the process and that his article 6 right to a fair trial had not been properly adhered to, and directed that the finding of fact hearing be re-tried. [underlining mine for emphasis]

21. By way of conclusion, I would like to express my appreciation of the burden borne by [the Judge] , who is the designated judge in a busy care centre. She has a responsibility for containing delay in these county court cases. Although this case was not particularly urgent, it was necessary to ensure completion at the earliest viable date. Had she acceded to Ms Storey-Rae’s application, the consequence would have been months of delay. So I would wish to be in every way supportive of the judge’s general duty to manage all cases to achieve targets. I only observe that that general duty cannot in any circumstance override the duty to ensure that any litigant in her court receives a fair trial and is guaranteed what support is necessary to compensate for disability. It is easy to be critical with the advantage of hindsight, but I do think that the judge fell into error in not ruling specifically on Ms Storey Rae’s application of 13 April. I think she fell into error in adopting the “let’s see how we get on” management policy. As I have already observed, it seems to me a dangerous policy because, by not grasping the nettle, it risks having to adjourn not at the optimum moment before the trial is launched, but at a very late stage, when things have run off the rails and then there is simply further wastage of court time.

22. I also think that she was wrong to take the evidence and to endeavour to assess the expert contribution of Dr North when the case was over and done, and then to rule on the issue of capacity. It seems to me that to defer the ruling beyond the evidence of Dr North and the submissions that followed and to set it in her final judgment was less than ideal. Finally, I consider that her justification for the course that she had adopted throughout the trial is unpersuasive in that it fails to grapple with core expert evidence from Dr North as to what was essential and to explain why a simple protective measure, like the provision of a screen, had simply not been put in place. Some steps were taken to ease the mother’s contribution by ensuring sight lines that did not bring her into direct eye contact with the father. It seems to me almost worse to take steps to assist the mother, who had no particular disability, and not to do more for the father.

23. Whilst it is never attractive to order a retrial of any fact finding investigation, I conclude that we have no alternative, and that is the consequence of finding a breach of Article 6 rights

It does seem that the importance of this case will be in those representing such vulnerable persons to secure detailed expert evidence addressing the difficulties of the client in giving evidence and what can be put in place, and in persuading the Court that such recommendations need to be adjudicated on and not merely ‘parked’

Given what we know of the Legal Services Commission, I am unclear as to how funding to obtain the intermediary or advocate to assist father in the witness box would be obtained, but those efforts would have to be made. It must be manifestly unfair for a party to the proceedings to have to take that neutral role.

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Posted in case law, fact finding and tagged cognitive assessment, Court of Appeal, protecting a vulnerable witness, Re M (A child) 2013, Re M A (A child) 2013, vulnerable adults, vulnerable witness. Bookmark the permalink.

“Lancashire Hot Pot(ato) “

Posted on February 21, 2013 by suesspiciousminds

The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.

They conclude, to skip to the chase, that it does not. But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.

http://www.bailii.org/uk/cases/UKSC/2013/9.html

To make it simpler, Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture. The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.

The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator. (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)

Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009) http://www.bailii.org/uk/cases/UKSC/2009/17.html have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there.

If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma. Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there. (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)

When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.

So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.

One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one. [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]

But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.

[*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]

There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles. At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.

The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’ BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.

So, Fred and Betty have a baby. Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?

The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.

“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.”

And here (my underlining)

The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.

The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.

It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”

They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.

As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.

If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.

In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.

This is emphasised again here:-

Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.

It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.

And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely on the single “whodunit” fact, but to rely on the totality of matters which were found in the judgment.

It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.

So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.

[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty’s child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles – NO, they should not. ]

Oh Fred, you should have put forward an alternative perpetrator

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Posted in case law, fact finding, threshold criteria and tagged lancashire finding, likelihood of future harm, Re J (Children) 2013, Re S-B, supreme court, threshold criteria, uncertain perpetrator. Bookmark the permalink.

“If you change your mind, I’m the first in line”

Posted on February 21, 2013 by suesspiciousminds

The Supreme Court decide that a Judge CAN change their mind after delivering a Judgment.

I blogged about the case in the Court of Appeal here :-

https://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

In brief, a Judge heard a finding of fact hearing about an injury to a child, gave a judgment that the father was the sole perpetrator. After judgment, father’s representative sent in some aspects for clarification (i.e things that they considered had not been properly considered in the judgment) and some months later, at another hearing, the Judge announced that she had changed her view of the case and that it was not possible to exclude mother from having caused the injuries, and stopped short therefore of a positive finding that father had caused the injuries.

The mother, who had of course, been off the hook, in the initial judgment, appealed.

The Court of Appeal decided, two to one, that the Judge could not change her mind about the judgment she had given (save for if some fresh evidence had come to light) and that she was bound by her first judgment.

The father, understandably, having been all the way in, then half-way out, then all the way in again, appealed that.

The Supreme Court determined the issue in Re L and B (Children) 2013

http://www.bailii.org/uk/cases/UKSC/2013/8.html

One of the things that troubled me about the Court of Appeal decision was the unspoken but inexorable consequence that although an advocate unhappy with a judgment is told to raise points that needed clarification or exploration with the judge prior to any appeal, if doing so cannot lead to a Judge changing their mind, it seems a rather fruitless exercise. I think for that reason, the Supreme Court were right in giving the Judge power to change the findings made if the representations swayed her.

The Supreme Court concluded here that what had happened in reality, was the Judge reconsidering the conclusions reached in the light of the representations made by father’s counsel, and had changed her mind accordingly.

Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case. This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.

Exercising the discretion in this case

If that be the correct approach, was this judge entitled to exercise her discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to adhere to the conclusion in her December judgment, having recited (at para 55) the clarity of the conclusion reached, the general assumption that the order had been perfected, the general implementation of her conclusion, her adherence to it at the hearing on 23 January, and the absence of any change in the circumstances and the “general slackness” that left the order unsealed. He was also somewhat puzzled as to why the result of her change of mind was “seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator” (para 56). Sir Stephen Sedley held that something more than a change in the judge’s mind was required, because “it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice” (paras 79, 80). Rimer LJ, on the other hand, held that the judge was “honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. . . . the judge would be presented with real difficulty in her future conduct of this case were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong. The court should not be required to make welfare decisions concerning a child on such a false factual basis”. It could not be in the interests of the child to require a judge to shut his eyes to the reality of the case and embrace a fiction.

The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach. They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result. The care plan may have been developed (we do not have the details of this) but the child’s placement had yet to be decided and she had remained where she was for the time being. The majority were, of course, also right to stress the importance of finality, but the final decision had yet to be taken. I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. Section 1(1) of the Children Act 1989 provides that where a court determines any question with respect to the upbringing of a child the welfare of the child shall be its paramount consideration. While that provision does not apply to procedural decisions made along the way, it has to govern the final decision in the case.

Mr Charles Geekie QC, on behalf of the mother, argues that even if the judge was entitled to change her mind, she was not entitled to proceed in the way that she did, without giving the parties notice of her intention and a further opportunity of addressing submissions to her. As the court pointed out in Re Harrison‘s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.

For those reasons, therefore, we ordered that the father’s appeal against the decision of the Court of Appeal be allowed. No party had sought to appeal against the judge’s decision of 15 February 2012, so the welfare hearing should proceed on the basis of the findings in the judgment of that date. We were pleased subsequently to learn that agreement has now been reached that Susan should be placed with her half-brother and maternal grandparents under a care order and, after a settling-in period, have visiting and staying contact with her father and her paternal family. The local authority plan to work with both families with a view to both mother and father having unsupervised contact in the future and it is hoped that the care order will be discharged after a period of one to two years.

The Supreme Court then took a look at the issue of whether a Judge could change her mind post the order being sealed. (In this case, the sealing of the order had taken place long after the judgment had been given, or maybe it did, and there is authority to suggest that a judgment cannot be changed after the order is sealed or maybe there isn’t)

On the particular facts of this case, that is all that need be said. But what would have been the position if, as everyone thought was the case, the order made by the judge on 15 December 2011 had been formally drawn up and sealed? Whatever may be the case in other jurisdictions, can this really make all the difference in a care case?

The Court of Appeal, despite having themselves raised the point, do not appear to have thought that it did. Sir Stephen Sedley said that it seemed to be of little or no consequence that the order recording the first judgment had not been sealed or that a final order in the case remained to be made (para 74). Both Thorpe and Rimer LJJ held that the relevant order in care proceedings is the final care order made at the end of the hearing. They expressly agreed with Munby LJ in In re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21. This was a case in which the mother challenged the adequacy of the judge’s reasons for finding her complicit in the sexual abuse of her daughter in a fact-finding hearing in care proceedings. Having quoted my observation in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part of the whole process of trying the case and once completed the case is part-heard, Munby LJ continued, at para 21:

“Consistently with this, the findings at a fact-finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24.”

This court has since agreed with that proposition. In Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, all seven justices agreed that:

“It is now well-settled that a judge in care proceedings is entitled to revisit an earlier identification of the perpetrator if fresh evidence warrants this (and this court saw an example of this in the recent case In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319).” (para 46)

There are many good reasons for this, both in principle and in practice. There are two legal issues in care proceedings. First, has the threshold set by section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount consideration of the child’s welfare require to be done about it? Much of the evidence will be relevant to both parts of the inquiry. It may be very helpful to separate out some factual issues for early determination, but these do not always neatly coincide with the legal issues. In this case, for example, there was no dispute that the threshold had been crossed. Nevertheless, it was convenient to attempt to identify who was responsible for the child’s injuries before moving on to decide where her best interests lay. In such a composite enquiry, the judge must be able to keep an open mind until the final decision is made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned, but particularly to the children, if the only way to correct such an error were by an appeal.

This is reinforced by the procedural position. As Munby LJ pointed out in In re A [2012] 1 WLR 595, para 20, in the context of a fact-finding hearing there may not be an immediate order at all. It was held in In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to an appeal. Nevertheless, it would be very surprising these days if there were no order. In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of fact made at a fact finding hearing should be the subject of recitals to an order issued there and then. But this is merely a recital in what is, on any view, an interlocutory order.

Both the Civil Procedure Rules and the Family Procedure Rules make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955). This may be done either on application or of the court’s own motion: CPR r 3.3(1), rule 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.

Clearly, that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised “judicially and not capriciously”. It must be exercised in accordance with the over-riding objective. In family proceedings, the overriding objective is “enabling the court to deal with cases justly, having regard to any welfare issues involved”: rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good example. At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the child’s injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mother’s apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.

The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear-cut.

On the one hand, given that the basis of the general rule was the lack of a power to vary the original order and there undoubtedly is power to vary these orders, why should it make any difference in principle if the reason for varying it is that, on mature reflection, the judge has reached a different conclusion from the one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot be in the best interests of the child to require the judge to conduct the welfare proceedings on the basis of a false substratum of fact. That would have been just as true if the December order had been sealed as it was when it had not.

In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.

Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.

On the other hand, the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, para 2. If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.

They then realise that this is really really really difficult, and sidestep the question in a way that any rugby fan would admire.

The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it. In our view the preferable solution would be to avoid the situation arising in the first place.

That, for my mischievous mind, raises the interesting question of what happens if a Judge delivers a finding of fact judgment, and instantly in front of the parties, produces an order that she has prepared setting out the findings that were made and stamps it.

It seems that the judgment is then frozen, and can’t be altered, and that she would not be entitled to change her mind despite any representations, and is simply inviting the wounded parties to put up and appeal, or shut up. That’s probably grounds for appeal in itself.

Probably good practice is for a short window of opportunity (say the appeal window) to be given, before the order is then stamped, and the Judge considers only representations made within that window.

But, what if, as happened here, father makes representations, and the judgment changes? Does mother then get a second window to make her own representations, to try to change the judge’s mind a second time? Her window of appeal must, it seems to me, start from the time that the Judge settles an order arising from the judgment (you appeal orders, not findings).

And if mother succeeds, is that the end of it, or does father get another crack at it?

Could we end up with an interminable oscillation between judgment and representations to alter that judgment?

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Oh Lord, won’t you buy me, a McKenzie Friend ?

Posted on February 20, 2013 by suesspiciousminds

The Court of Appeal considered the role of McKenzie Friends, post the Practice Note guidance, in the case of Re H (Children) 2012 Neutral Citation Number: [2012] EWCA Civ 1797 [and I know, my title is awful, but it does scan, if you sing it to yourself]

Although the judgment was ostensibly given in June 2012, it fluttered across my computer screen today. Not quite sure why there was such a delay.

Also, sadly, I haven’t yet been able to track it down on Bailii, so can’t give you the full transcript (I have it, but it is behind a paywall, so can’t link it)

It raises some interesting points, not least being that almost inevitably, for private law proceedings, once we get to April and the State takes away free legal advice for almost all cases, we are going to see more cases conducted by parents in person, and thus more McKenzie Friends.

I can at least link you to the guidance

http://www.familylaw.co.uk/system/uploads/attachments/0000/8125/McKenzie_Friends_Practice_Guidance_July_2010.pdf

For those of you who may not know, a McKenzie Friend is someone who assists a litigant in person with their case. It happens generally when that person does not have a lawyer. The McKenzie Friend does not have to be a lawyer, or have any legal background (though some do) and there are some rules about what they can do. They don’t get to speak in Court * or ask questions, but they can help the person understand what is going on.

{*unless they ask for rights of audience in a particular case and are granted them, which will be decided on the facts of the case. Rights of audience is our special medieval lawyer language way of saying “Is allowed to speak to the Judge without being in the witness box”}

From the guidance

What McKenzie Friends may do

3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case

papers; iv) quietly give advice on any aspect of the conduct of the case.

What McKenzie Friends may not do

4) MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii)

manage litigants’ cases outside court, for example by signing court documents; or

iii) address the court, make oral submissions or examine witnesses.

Now, as in any walk of life, there are bad McKenzie Friends, and good ones, just as there are good and bad Judges, lawyers, social workers, dentists, South African athletes and so forth. I happen to have met with one through the writing of this blog who I think is an excellent one, balanced though passionate, and smart as a carrot*. {*which is Northern for smart}

The guidance really came about to try to get some clarity about the role and minimise the harm that a bad one can do in a case. If you ever wonder about the reason for rules being introduced, I suggest you look on a Court report website and type the name “Pelling” into the search box.

Now, as Justice Wall observes in this case, cases involving McKenzie Friends don’t often come before the Court of Appeal (I think what he means is where the involvement of the McKenzie Friend was an active issue, as I know of a few successful appeals where a McKenzie Friend was involved and very helpful), and he believed this to be the first case since the Guidance where it was an issue for the Court of Appeal.

In this one, the Judge at first instance had refused the particular McKenzie Friend who was assisting the father. The Judge had felt that the particular McKenzie Friend had gone further than the guidance and had caused the mother to feel intimidated. She was at pains to make clear that father could obtain another McKenzie Friend for the hearing.

The appeal also revolved around the father’s desire to file statements from ,and call, a number of character witnesses. The Court of Appeal politely explain why character witnesses (which seem to be important evidence so far as a parent is concerned) aren’t helpful to the Court.

People in the appellant father’s position frequently take the view that “character”witnesses are of particular importance in Children Act cases. In fact, often the reverse is the case. A witness who knows one of the parties, even if he or she has seen the party in question with the children, is rarely any help to a judge deciding what is in the best interests of the child or children concerned in the particular facts of the case.

The reasons for this are threefold. Irrespective of the quality of the witness, often the witness is partisan in favour of one party rather than the other. Secondly, what matters of course is the judge’s assessment. And thirdly, what also matters is that the witness can rarely give direct evidence about the issues which the judge has to decide.

Now, we turn to the reasons for refusing the McKenzie Friend

She had adjourned the case on a previous occasion in order, as I said, to ensure that she could familiarise herself with the papers and she heard a number of submissions from the solicitor acting for the children, including evidence that the father’s McKenzie friend had overstepped the mark and prepared a document in the case template which referred to the name of a child who was nothing to do with the proceedings, even though the father asserted that 80 percent of the work had been done by him.

15. The judge concluded her short judgment with these words:

“5. I am concerned about the fact that there is a crossing over it seems to me here of a McKenzie Friend into the realms of conducting litigation. So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much. I do not accept the explanation for Joshua [that is the name that was included in the father’s application]. I am not going to permit [the McKenzie friend] to be a McKenzie friend, as I am invited to do so, not only by the mother but also by Mr Philips on behalf of the children. I also think it is highly likely that she was intimidated in the manner she has described and of course given that the hearing is in January 2012, Mr [H] has plenty of time to appoint another McKenzie friend. If required to do so, I am happy to give further reasons, but this case is only allocated 30 minutes in what is a very busy list.”

The intimidation thing is quite case specific, but I was interested in the suggestion that a McKenzie Friend contributing 20% to a document is 20% too much.

Would the Court of Appeal accept this or reject it?

Even if one takes away the finding of fact that the mother was intimidated from that hearing, there seems to me to be adequate reasons for the judge to have acted as she did. She also read the curriculum vitae of the father’s McKenzie friend and referred to the guidance.

16. For myself, I have come to the clear view that this was a case management decision by the judge exercising her judicial discretion, albeit in a swift and it must be said somewhat rough and ready way; nonetheless it is in a way with which this court should not interfere. It needs to be said that the reasons that she gave are perfunctory but, in my judgment, reasons do not have to be elaborate if they are stated briefly and shortly and the fact that the judge was sufficiently straightforward to say that she could give fuller reasons if she wanted to, given a longer period of time, does not mean that the reasons she did give were in any way inadequate. If they had been inadequate, it may be that I would have expected certainly that she would have been asked to elaborate upon them, but she was not. This is a case management decision which in my view the judge was entitled to make and I would therefore dismiss the appeal.

17. It is worthwhile pointing out, however, in view of the submissions made to us this afternoon by the appellant father that the judge did refer to the guidance, reported at [2010] 2 FLR 962, which makes it very clear what McKenzie friends may not do:

“4) MFs may not i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses.”

The following paragraphs of the guidance also set out the duties of a McKenzie friend and what a McKenzie friend cannot do:

(18) “Rights of audience and rights to conduct litigation

MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis.

(19) Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF.

This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.

(20 )Any application for a right of audience or a right to conduct litigation to be granted to any lay person should therefore be considered very carefully. Thecourt should only be prepared to grant such rights where there is good reason to do so taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to lay persons automatically or without due consideration. They should not be granted for mere convenience.”

18. In those circumstances, on the findings which the judge made, my clear view is that she was entitled to do what she did. I would therefore refuse permission to appeal paragraphs 4 and 6 and I would dismiss the appeal in relation to paragraph 1.

It seems to me, therefore, that the Court of Appeal have given a degree of backing to a very broad construction of the prohibition on the guidance that they must not “manage litigants’ cases outside court, for example by signing court Documents” as including also having a hand in the construction of such documents (if even a 20% contribution is 20% too much, then that suggests no input at all)

That seems to me to be quite a significant matter – there’s obviously a large space between the McKenzie Friend “conducting the ligitation” which is prohibited, and having no input into the construction of documents prepared for Court at all.

Does that mean that a McKenzie Friend is prohibited from looking over a document prepared by the litigant in person before it is filed and suggesting that a point could be made better, or that a passage be toned down, or correcting a factual inaccuracy? What about typos? What about where the litigant in person is asserting something that the McKenzie Friend, from experience and knowledge knows is wrong in law (like “I am entitled to an equal share of time with my children” or “The father has to prove his allegations against me beyond all reasonable doubt” ?) – what about where there’s a basic mistake in style (addressing the Judge as “Your worship”) ?

Common sense says to me that of course the McKenzie Friend should be able to have that sort of input, where the Court has agreed to a request that a McKenzie Friend be involved. But the wording “So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much.” which was not held by the Court of Appeal to be wrong, still less plainly wrong, leaves the door open to that sort of ambiguity.

It would seem that for safety’s sake, an application ought to be made for the McKenzie Friend to conduct litigation – this being something traditionally done where the McKenzie Friend intends to seek rights of audience in the case, and if that is granted, then the McKenzie Friend would be allowed to assist in the shaping, crafting, finessing and polishing of court documents. That would be using the provisions in paragraphs 18-20 of the Practice Note, and is probably something that most careful McKenzie Friends already do.

[As one of my traditional digressive footnotes, I became sidetracked into wondering whether McKenzie was the name of the Friend, who first did this, or whether there was a McKenzie, who HAD a Friend…

And find that it was a divorce case in 1970 between Mr McKenzie and Mrs McKenzie , where Mr McKenzie’s former solicitors had kindly sent a young Australian barrister along to assist Mr McKenzie by taking a note and explaining things as they went along, little knowing what a chain of events would be set in motion by this

http://z2k.org/wp-content/uploads/2011/09/MCKENZIE-v-MCKENZIE-1970-3-W-L-R-4721.pdf

“Every litigant is entitled to have the assistance of a friend nearby and that friend is entitled to assist the litigant by prompting him, making notes or suggestions, giving advice, and suggesting ways in which the litigant can cross-examine the witnesses: per Lord Tenterden C.J. in Collier v. Hicks (1831) 2 B. & Ad. 663, 669. While it is true that nobody can take part in the proceedings as an advocate unless he is qualified so to do by being a member of the Bar or in the lower courts a solicitor, there is no prohibition on any person assisting a party to the proceedings in other ways, e.g., by passing notes, giving advice, or prompting.

The judge said that Mr. Hanger could not take part in the proceedings. He was merely sitting next to the husband and making suggestions to him”

That also took me to the charming reference within McKenzie v McKenzie to this passage :-

“In saying that I have in mind Tucker v. Collinson as reported in The Times, February 11, 1886 (reported on another point in 34 W.R. 354). In that case a lady, stricken with court dumbness when her appeal was called on, was not allowed to have the assistance of somebody who wished to help her. But that ruling turned on some very special provisions of the in forma pauperis procedure then”

Which raises two issues – one, why on earth would anyone think that an ordinary person would need assistance to understand commonsense everyday language like in forma pauperis, and two – I love the idea of an age where one could be stricken by Court dumbness. It has certainly happened to me from time to time, and I had no idea it was a known condition. In future, I will simply say that “For the moment, I am inhibited by the affliction referred to in Tucker v Collinson” and hope to get away with it

But back to my original digression

If the Court had taken the alternative approach of naming the assistant after the person who was helping, rather than the name of the client being helped, they’d have been Hangers-On, rather than McKenzie Friends.

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Posted in case law and tagged can a friend help me in court?, can a friend speak for me in court?, is there a limit to what a McKenzie Friend can do? Re H (Children) 2012, McKenzie Friends, my mckenzie friends all drive porsches i must make amends, rights of audience, what are the rules about McKenzie Friends, what is a mckenzie friend?. Bookmark the permalink.

“Finding” out the hard way

Posted on February 18, 2013 by suesspiciousminds

A discussion of the High Court decision of A London Borough v A and Others 2013, and what it tells us about coming to terms with difficult findings.

The case does not contain much that is precedent or important for cases other than for these specific facts, but on a human level, it throws up some really interesting issues, which I felt were worthy of a closer look.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/96.html

In this case, the family had had four children and one of them died. A finding of fact hearing was conducted, and the Court concluded that the father had been responsible for the death of that child, having rejected the proposition that one of the other siblings, C, had caused the injuries and hence the death.

At the final hearing, the mother had not come to terms with this finding or accepted it, and the Court were faced with the stark choice of adoption or returning the three surviving children to her care with that risk in place.

The Judge decided, having heard the evidence, that if mother could be assisted, through provision of therapy to move to “a substantial and genuine acknowledgement that the father may be dangerous, combined with a genuine emotional distancing from him, would be sufficiently protective.”

And made as a finding that if, at final hearing, she could be demonstrated to have reached that point, this would be sufficient for the children to be placed with her. The Judge therefore adjourned the final hearing for five months, to give mother the chance to get to that point, with help. This was a real second chance, and it was of course imperative for her to grab it with both hands.

Therapy was provided for her, and she was seen again by the psychologist following that therapy, to see if there was any movement

Sadly for her, there was not.

On 19 November 2012, the mother’s therapist reported to a professionals meeting within the limits of proper confidentiality. She said that the mother had been open about her reluctance to engage in therapeutic work but had shown commitment and was open to attending more sessions. The mother “is clear about what the judgment said and understands she will have to talk to the children about this later. [She] however feels she cannot say for sure what happened as she wasn’t there and feels this is true for anything that she has not been present for in life. [She] believes that ‘seeing is believing’ and this is where she is at and cannot go beyond this perception.” The therapist said that she had been working with the mother on her beliefs but that the possibility of change would take perhaps a year or more and without any certainty of a shift in her belief system.

On 21 November, the mother met Dr Asen, who discussed her understanding and acceptance of the risk posed by the father with her. In his report at paragraph 3.1, he records what she said:

“I can’t know what happens if I wasn’t physically there … but I believe that he did not do it … there is nothing else apart from the Judgment that shows me what happened … Judges have the power to make a Judgment … but the coroner found something different … I wasn’t physically there, so I don’t know what happened.” She added, “it is not fair that I have to say what one person (i.e. the judge) has said”. She repeatedly stated that, as she had “not been there”, “I do not know” what had happened. When I put to her that none of the professionals involved in the case had been ‘there’ either, but had nevertheless arrived at different conclusions from her, she replied, with a smile on her face: “but you don’t know K… – they don’t know K…” She said she knew K… very well and therefore “I know he could not have done it.”

The mother accepted that this note is accurate with the exception of the two passages I have underlined, which she denies saying. Dr Asen explained that he keeps a contemporaneous note during interviews such as this and he confirmed that the mother spoke in the way he records. I accept his evidence about this.

In his report, Dr Asen concludes that nothing has changed with regard to the mother’s internal understanding and acceptance of the risks posed by the father to the children and herself. “Essentially her current position is no different from how she presented earlier this year when I first assessed her …”

This is something which professionals come across quite often with findings of fact hearing, that the findings are made, that there needs to be some movement towards accepting them, but that people remain of the position that the judgment is ‘one person’s opinion’, ‘they weren’t there, so how can the judge know what really happened’ and ‘they don’t know him/her like I do’

Those are all pretty natural, understandable, and human reactions; but against the background of a ticking clock (as decisions needs to be made for the children and they can’t wait for the parent who has been found to be not culpable to come to terms with the awful reality). It is harsh, it is difficult, but from a legal perspective (if not a human one), once the Judge has given that finding of fact judgment, that is now the truth of what happened. As hard as that must be, once the Judge has made the decision, the time for doubts or uncertainties about what has happened has gone, the truth is now what the Judge said happened.

In this case, and adding a particular dimension, there was of course the issue that if the mother was not accepting that father caused the injuries, the only other candidate was the child, C. And how would C growing up in her care, with that in mind, impact on C?

He [Dr Asen] advises that the mother is able overall to provide a psychologically nurturing environment for children, but that in relation to C there is one major limitation in that, when he had the ability to understand, she would “tell him what the judge said …” When Dr A pointed out that C would in all likelihood pick up her own underlying views, namely that she does not believe that the father could have killed B, and that he will ask questions, leading to C and his siblings coming to the conclusion that his mother believes that he actually killed his brother (even though he was not legally or morally responsible), the mother replied that she would not be able to tell C that his father had caused B’s death, repeating: “I don’t know what happened — I wasn’t there.”

Dr Asen concludes that this position is also unchanged and it is his opinion that the consequences for C and his welfare remain a major concern for the reasons set out in paragraph 5.5 of his first report. I will not repeat that passage, which lays out the implications for all the children of there being two conflicting stories about such an important part of the family history, and for C, who would pay a very heavy penalty for something the court had found he did not do.

Dr Asen also discussed the mother’s support network with her. He gained the strong impression that she had not discussed the risks the father poses with her friends and that they could not at this stage contribute to the protective network that needs to be in place.

Dr Asen’s opinion is that the changes made by the mother, if any, are not sufficient to reduce the risks posed to the children’s future welfare if returned to the mother’s full time care now or in the medium term future. Plans should be made for the children and the mother should continue to be offered therapy.

On a human level it is deeply sad and tragic that mother wasn’t able to reach the stage that the Judge had wanted, even with the help, and although he had lowered the stage from one of total acceptance of the findings. It is not terribly surprising with a lawyer hat on, that the case was going to conclude with decisions that were adverse to her.

She wasn’t helped by a decision to file a letter of support from a leading light of her local community / religion, this being more of a nail in a coffin than a letter of support

The mother was then asked about a letter circulated on 17 December 2012 by Dr O, who holds an honorary title and is the local co-ordinator of the Traditional Rulers Union of the parents’ community. This letter, entitled “Community Support” and running to three pages, was sent to the mother’s solicitor and copied to the therapist, to Ms Stephens, to the Guardian and to Dr Asen. In it, Dr O is highly critical of the judgment that the father was responsible for B’s death, and of many aspects of the proceedings. He refers to C as having been up and about “mischievously” on the night and he draws attention to the Coroner’s verdict. He states that “the couple have been made to separate” and that the process, including therapy, is “psychological warfare… professional blackmail” in that it attempts to persuade the mother that her husband killed the baby. He variously describes the process as prejudicial, racist and insulting, and says that the social workers are seeking to destroy the parents. Dr O then sets out a practical programme which he would coordinate for visits to be made by members of the community to the mother and children

The Judge’s consideration of the mother’s position was measured and careful, and was mindful of the difficult situation she found herself in

Having listened carefully to the mother and being conscious of the intense difficulty of her position, I find that her views have not moved on in any meaningful way since she undertook therapy. I assess her as being deeply sceptical about the father’s responsibility for B’s death, and in my view it is this, and not only cultural or religious considerations, that explains her decision to remain married to him.

The mother’s witnesses, most of whom do not form part of her immediate cultural and ethnic community, are clearly excellent people. They have an appreciation of the court’s findings and of the risks posed by the father, and I am sure they could be relied upon to do their best to support the mother and children. However, it is striking that even this body of opinion has not enabled the mother to move on in her own thinking. She did not involve them over the past months in planning the future with social services. I do not accept that this is because she did not want to trouble them: it is more likely that she did not involve them because their views do not coincide with her own.

Instead, it is to her family and her community, including her church, and to Dr O, that the mother has turned. The view of the family and significant community members is that C was probably responsible for B’s death. The views contained in Dr O’s letter reflect this and it is to be noted that the mother has not chosen to call evidence from the people upon whom she most depends.

Making all allowances, I cannot accept the mother’s evidence about her present beliefs. I do not believe that she has even reached the point where she has an open mind about what happened to B. Her nature is not militant, but I find that she has a quiet belief that the father is probably innocent. She was not frank about Dr O when first asked about him in evidence, and I was not persuaded by her attempt to dissociate herself from the views he expresses.

Setting these conclusions against the many other factors in this case, and weighing up the children’s individual interests, I have concluded with real sadness that they cannot be returned to the care of their mother. The nature of the risk in this case is of the utmost gravity and there are no effective measures that could guarantee the children’s physical safety over time. Like Dr Asen, Ms Stephens and Ms Shepherd, I find that despite any current good intentions, the mother would not be reliably able to exclude the father from her life or the life of the children over the long period of years that would be necessary for their safety and wellbeing. She does not have the inner belief to enforce separation, and she would come under increasing pressure from her own thinking, from the father, from the community, and no doubt in time from the children themselves, to let him back into their lives once the intensity of the current professional interest was in the past. Moreover, even if the father was kept at a distance, I accept the evidence of Dr Asen about the likelihood of emotional harm to the children that would arise from being brought up in an environment in which the prevailing belief was that the father was innocent. The consequence is that C would learn that he was thought to have harmed B, and yet none of the children could see the father or be given a good reason why they could not.

I accept the unanimous professional evidence and therefore approve the local authority’s plans for the three children’s future placements. I shall make care orders and, having considered the terms of the Adoption and Children Act 2002, make placement orders in relation to M and J. In M’s case, adoption is clearly in her interests, and in J’s case, a time-limited search for adopters is in my view right, while at the same time seeking a long term foster home. I dispense with the parents’ consent to making placement orders because the children’s welfare requires it. If an adoptive placement is not found, the placement order will have to be discharged in a timely fashion – the application can be made to me.

As we wind our clock ever more tightly and make the hands turn faster, how compressed will the time period for a parent to come to terms with an awful finding against their loved one be? You can’t hurry love, as they say, but you can’t necessarily hurry dismantling that love in the light of an awful finding either…

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Posted in case law, fact finding, threshold criteria, timescales and tagged coming to terms with findings, fact finding hearing, finding of fact hearing, making decisions after fact finding hearing, re A London Borough v A and Others. Bookmark the permalink.

Who benefits?

Posted on February 15, 2013 by suesspiciousminds

I have been aware for a while now of a pending problem as a result of benefit changes. The plans to cap benefits for families means that for some families, who live in areas of the country where rents are high, they will no longer have enough housing benefit to cover their rent.

This is coming to a head in central London, as can be seen from this story in the Guardian.

http://www.guardian.co.uk/uk/2013/feb/13/london-council-relocation-benefits-cap

Camden, for example, will have to be moving 700 families out of their area, unless they can find £90 a week to cover the brand new shortfall between their rent and their Housing Benefit. And they won’t be moving a tube stop or a long bus ride from their homes, but almost certainly out of London. The places being discussed are Bradford, Birmingham, and Leicester. [As someone who has practised in Birmingham and knows about their housing waiting list this came as a hell of a surprise to me, that Birmingham suddenly apparently has housing to spare]

Brent estimate that they might have 1,000 families who need to move, and have purchased housing in Luton and Slough.

This all arises of course from the harsh reality that the cost of housing varies considerably across the country, and there are a lot of areas in the country where people on benefits are provided with housing where it would simply be impossible for an average working family to live. That leads to costs to the public purse, of course, and we are in a climate of austerity.

Politically speaking, the sell that it feels wrong for families on benefits to be in receipt of more money than an average working family, has made it possible for these changes to be pushed through.

In reality, moving your children from a school in Camden to a school and home in Leicester, doesn’t come without an impact. We aren’t talking about moving from one posh street in a town to another rather less posh street, but moving many many miles away, away from your family, your social networks, your supports and your children’s social networks.

What we can’t predict, of course, is how many families hovering on the brink of care proceedings might be tipped by this, as they try to manage disruption, unhappiness, profound feelings of dislocation, isolation and being moved from all their supports, both professional and family / friends.

From a legal point of view, assuming that being offered housing in Leicester and turning it down legitimately extinguishes the duty of the Housing department towards a parent (I am not a housing lawyer, and will stand to be corrected if not) causes a problem for a parent in that situation. They either accept the move or they are voluntarily homeless. (And of course, there will be either limited or most likely no recourse at all to free legal advice to challenge housing)

So, if the parent refuses to move to Leicester, and housing discharge their obligations and in due course serve eviction or notice to quit proceedings, what happens then?

[My use of Camden here is purely illustrative because they are the lead authority in the story, I don’t work for Camden, don’t represent them, and am sure that they are as utterly horrified as being put in this awful position as anyone else would be]

Well, they probably approach Social Services and ask them to help with provision of housing, on the basis that the children will be in need of this.

The Court of Appeal looked in the case of R V B LONDON BOROUGH COUNCIL, EX PARTE G (2001) [2001] EWCA Civ 540 at the issue of whether the Local Authorities duties under section 17 or section 20 of the Children Act 1989 extended to the duty to provide housing for a parent to keep them together with a child and found that it does not.

The LA can be obliged to offer accommodation under section 20 for the children, but not for the parent. So the children could be placed in care whilst the parents sleep rough.

In reality, it seems both unlikely and undesirable that a parent would agree to place their children in care purely as a result of housing difficulties.

The duties to accommodate an adult arise from the National Assistance Act 1948, and it is unlikely (unless the parent has health or needs over and above destitution) for them to qualify for accommodation under those provisions.

So, a family with 3 children are evicted from their property in Camden, and refuse to go to Leicester. Housing’s duties to them has ended. They won’t be able to get private rental accommodation, because housing benefit won’t be sufficient to pay the rent. They won’t be able to get Social Services to accommodate the family, and their choices are therefore :-

Be homeless in Camden
Put their children into foster care and be homeless themselves
Move to Leicester

What if they call everyone’s bluff and go for option 1, being homeless in Camden with their children? Well, there is clearly then a risk of significant harm for the children, who would be living and sleeping rough.

I can’t, for my part, envisage any family Judge that I have ever been before, entertaining positively an application for an Interim Care Order where the threshold was based solely on homelessness that has arisen through a parents legitimate desire not to be relocated to the other end of the country (this isn’t them being evicted for not paying rent or being anti-social, just that they happen to be poor in an area of the country where it is no longer okay to be poor).

The grounds for an ICO might be met, but I can’t envisage a Court actually making the order. [I can’t find the attribution, but the line “I can believe in hell, I just can’t believe there’s anyone in there” struck me] and that the Judge would probably be summonsing Directors of Housing and Directors of Social Services to come to Court to explain what the heck is going on with this. [Not that they are called that anymore, they are probably called Chief of Envisioning and Chief of Commissioning or some god-awful thing now]

So, a family who call the LA’s bluff are probably not going to find themselves in Court (probably – I emphasise that this is not my advice), and that leaves them and their 3 children sleeping rough in Camden. Are Camden Social Services going to be okay about that? Or are they going to get somewhat fretful and think that regardless of whether they have a DUTY to accommodate, they might find some section 17 money to finance accommodation at least whilst the family make some transitional arrangements to get housing elsewhere?

I know that if I were such a family, I would be settling my children down in a park, ideally in close proximity to tramps drinking Special Brew, and calling a journalist to come and take some photographs to illustrate the story. I think the political fallout from that would lead to the Director of Housing and Director of Social Services being called in to see the Leader of the Council.

One way or another, the big bosses of housing and social services are going to get shouted at by someone.

This is not merely theoretical, at some point, some family is going to say “no, I’m not moving to X, this is our home” and some really tough decisions are going to have to be taken.

I was reminded, in writing this piece, of the Westminster “Homes for Votes” scandal, in which in certain key marginal wards, Westminster managed its housing stock in such a way that those who were considered demographically likely to vote Labour (the poor, the unemployed) ended up having to get housing outside of the area.

I don’t claim that there is overt gerrymandering here [that would be a scandalous suggestion, that a Tory government might want poor people moved out of the home counties and into the midlands and the north], but a consequence, intended or not, of making public housing unaffordable in London to those on benefits and shipping them out to cheaper places in the country, is to further wider the divide between affluent and poor parts of the country?

Those affluent parts will have populations who are council tax payers rather than users of services, and the poor parts will have populations with a high proportion of users of services and low proportion of council tax payers.

{I’m aware that I’ve been channelling Private Fraser from Dad’s Army this week “We’re all doomed” but as this hasn’t been implemented yet, there is still a chance of public disquiet changing this course and I’d rather light a candle than curse the dark. I will try, however, to be more cheerful next week}

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Posted in case law and tagged benefit cap, can i be made to move to another area, can i be made to move to another party of the country? can housing make me take a house somewhere miles away?, changes to benefit, dame shirley porter, gerrymandering, housing, housing benefit. Bookmark the permalink.

Jumping the gun

Posted on February 14, 2013 by suesspiciousminds

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child. (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

[The removal is under s35(2) of the Adoption and Children Act 2002

Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

The case can be found here

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER. Her prompt action in lodging the application got her that protection.

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.

I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.

On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.

LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.

I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.

In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011

http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.

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Posted in adoption, case law and tagged adoption, article 6, article 8, can social services remove a child from prospective adopters, DL v London Borough of Newham 2011, Re RCW v A Local Authority 2012, removing child from prospective adopters, right to fair trial, right to family life, section 35 Adoption and Children Act, section 35(2) Adoption and Children Act, section 35(5) Adoption and Children Act. Bookmark the permalink.

Pindown revisited?

Posted on February 11, 2013 by suesspiciousminds

The Court of Appeal decision in The Childrens Rights Alliance v Secretary of State for Justice 2013

This was an appeal against refusal for judicial review of the Secretary of State’s refusal to provide the Childrens Rights Alliance (or the children concerned) with details of which children were the subjects of illegal restraint methods whilst held in Secure Training Centres in the UK. That disclosure would obviously have been a prelude to advice about, consideration of, and possibly issue of civil claims on behalf of those children.

The case can be found here:-

http://www.bailii.org/ew/cases/EWCA/Civ/2013/34.html

The Childrens Rights Alliance lost the appeal, and thus won’t get access to the information that is required. That may have been the right decision on a strict formulation of the law on judicial review, but on reading the case I felt that it is a state of affairs that deserved a bit more attention, and perhaps some of my readers might be in a position to do something.

At the Secure Training Centres, which “accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.”

Until about July 2008, there was fairly widespread practice at the four Secure Training Centres, which held about 250 young people, of using restraint techniques that staff genuinely (but mistakenly) believed to be lawful

it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are “distraction techniques”. The PCC Training Manual for 2005 (PCC stands for “physical control in care”) describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.

At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in C ([2008] EWHC Admin 171).

It was clear, and not disputed that these techniques were used on children who were very vulnerable.

9. “It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people.”

And it was clear that this happened to a significant number of ‘trainees’ in these institutions

15. “76… [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.

77… [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques… were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.

78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale…”

The telling and difficult thing for the Childrens Rights Alliance, which is why they invited the Secretary of State to take steps to inform the particular children that they had been illegally restrained and when, was that many of the individual children would not have known at the time that what was happening to them was illegal and would give rise to a claim now

At the end of paragraph 91 Foskett J stated that very few, if any, of the trainees appreciated at the time that what was done to them was unlawful. Earlier he had said this:

“88… I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time.”

Following through the judicial review principles (which is pretty dry and beyond my interest in this piece), the Court of Appeal concluded that there were no grounds for judicially reviewing the Secretary of State’s refusal to carry out this exercise and therefore the court at first instance had not been plainly wrong to refuse it.

Of course, and the Court hint at this – there is nothing within this judgment which prevents or would inhibit any individual child who had been detained at an STC in asking for information about their records and whether they had been subject to illegal restraint. But what the Childrens Rights Alliance had wanted was not for the individual children to be obliged to “Pull” to get their rights, but for the Secretary of State to “Push” and be obliged to notify them that they had been treated illegally.

It is a sobering experience to read of these things happening to children in custody, and reminded me vividly of the Pindown crisis.

That might well be ancient history for some of my readers, so I will elaborate.

In the 1980s, in Staffordshire, a method of discipline was introduced in children’s homes for children in care who were being difficult or hard to manage, involving locking them in rooms on their own for periods at a time, this method of discipline being called Pindown. It lasted for various periods, but for one child, it lasted for 84 consecutive days. It caused a scandal when it came to light, with World in Action doing a documentary on it, and was the subject of a significant public enquiry. (In large part, it led to the construction of the legal principles in the Children Act 1989 about “secure accommodation”)

Very sadly, I have struggled to find a copy of the Pindown report which was written by Allan LevyQC (sadly no longer with us) and even Amazon say “Currently unavailable. We don’t know when or if this item will be back in stock.”

Perhaps this is an example of George Santayana’s well worn remark that those who fail to learn from history are doomed to repeat it. And for the modern era, those who hide away public enquiries and don’t ensure that access to them is easily found online shouldn’t be surprised that people don’t know the contents.

Of course I understand that staff on the ground in a Secure Training Centre are doing a difficult job, one that I wouldn’t want to do, and that the children detained there are not little Peter Pan figures full of cheeky (but ultimately harmless) mischief, but incredibly disturbed and challenging young people. I do understand that managing them is hard and that if guidance was given to those staff that “figure four armlocks” were okay, they were going to follow that guidance. It is the people who gave them that guidance who let the children down.

[As an incidental detail, I note that in Russia, this armlock technique is known as the ‘militia’ armlock because it is used by the Russian militia and police…. ]

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Posted in case law, judicial review, public inquiry and tagged allan levy, children's rights alliance, illegal restraint, illegal restraint in secure training centres, judicial review, pindown, pindown enquiry, restraint, secure accommodation, secure training centres, unlawful hold techniques. Bookmark the permalink.

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