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Category Archives: inherent jurisdiction

Magical sparkle powers – a sparkle too far?

Regular readers will know that when I read the phrase “The Court’s powers under the inherent jurisdiction are theoretically limitless” it makes me bristle, and hence my coining the name “magical sparkle powers” for the use of these, to remind ourselves that the Court is effectively inventing powers for itself out of thin air.

As is established law, Princess Kenny MAY use her magical sparkle powers to get the Black Friday Bundaroo

The problem I have with it is not that the Court have used the inherent jurisdiction as a way to solve a particularly thorny legal problem on an individual case, it is that this then gets used as an authority for “well, we could do THAT with our magical sparkle powers, so THIS is only a further stride along that path” and then THIS gets used as authority for taking another stride to THE OTHER. It is the stepping stone issue.

So a while back, the President ruled that the inherent jurisdiction could be extended to protect vulnerable adults, and then someone else ruled that his decision was authority for protecting adults with vulnerabilities, and then someone else ruled that THAT decision was authority for protecting adults who didn’t seem to have any vulnerabilities but whom the Court wanted to protect

And then we end up with this
http://www.bailii.org/ew/cases/EWFC/HCJ/2017/65.html

Mahzar v Lord Chancellor 2017

Mr Mazar is a 26 year old man with muscular dystrophy. He has no mental health problems and he has capacity. Part of his physical illness is that he needs apparatus to breath through, and this apparatus needs to be suctioned four to five times every hour. Without this, he could be at risk of serious injury or death. Mr Mazar wanted to be in his own home for this procedure rather than be detained in hospital – he says that his family members have had training in the procedure. That may be contentious – I don’t know whether th

I don’t know the ins and outs of why Mr Mazar came to that conclusion, but we don’t NEED to know. If he is an adult, with capacity to make his own decisions and does not have a mental health disorder, he is entitled to say that he does not want to be admitted to hospital. That’s his right. He is entitled to say that even if all of the medical opinion is that this is dangerous and stupid. Even if it might lead to his death.

What actually happened was that the Trust applied to the High Court for permission under the inherent jurisdiction to not only treat him against his will, but for police officers to enter his home and remove him by force if necessary to take him to hospital.

2. The order complained of is as follows:

“(I) It is lawful for the police and any medical professionals, as are required, to enter [address] (the property) and use reasonable and proportionate force to do so.

(2) It is lawful for the police and any medical professionals, as are required, to remove Mr Aamir Mazhar from the property and to convey him to an ambulance.

(3) It is lawful for the ambulance service, together with any other medical professionals and police as are required, to convey Mr Aamir Mazhar to the Queen Elizabeth Hospital, Birmingham.

(4) It is lawful until further order for Mr Aamir Mazhar to be deprived of his liberty at the Queen Elizabeth Hospital, Birmingham for the purposes of receiving care and treatment from his arrival on 22 April 2016 and then to be conveyed to the specialist respiratory centre at Guy’s Hospital, London until suitable care can be put in place for him at home, or to be transferred to an alternative specialist respiratory unit.

(5) The matter shall be listed for urgent hearing on the first available date after 25 April 2016 (upon application to the Clerk Rules (sic)).

(6) There be leave to serve this order without a Court seal until 16:00 on Monday 25th April 2016.”

It was an out of hours application, without any notice to Mr Mazhar or his family and they were therefore not present or represented at the hearing.

The pleaded consequence of the order made by Mostyn J is the forcible and what is described as the highly distressing removal of Mr Mazhar from his family home at 3 am on Saturday 23 April 2016 by two police officers and the ambulance service. Mr Mazhar was and is a young man who has the capacity to make decisions for himself. It is submitted on his behalf that there was no basis in law for the order to be made or for the actions taken in accordance with it.

7. Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person’s alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law.

Mr Mazhar sought damages against the Trust, who settled out of Court. He also made a Human Rights Act claim against the Lord Chancellor for breach of article 5 (that he was unlawfully deprived of his liberty), article 8 (that his right to private and family life was breached) and article 6 (that such a fundamental decision was taken without any challenge to the application being made.

The Lord Chancellor concedes that Mr Mazhar was deprived of his liberty when he was removed from his home and taken to hospital and accepts that he was not a person of unsound mind within the meaning of article 5(1)(e) at the date of the order. He does not however accept that the broader proposition that the inherent jurisdiction is limited in the way suggested on behalf of Mr Mazhar and in particular that it can only be used to facilitate the re-establishment of autonomy. He argues that its use to detain and remove a person who has mental capacity to make decisions about his care (but who is a vulnerable adult) to a safe place such as a hospital is a well recognised jurisdiction which acts as a safety net to protect persons who fall outside the scope of the Mental Capacity Act 2005. He contends that use of the jurisdiction to detain is neither arbitrary nor unlawful because there are procedural safeguards ie it is a procedure prescribed by law, governed by Rules of Court, Practice Directions and Guidance. It is clearly established by case law which is sufficiently accessible and foreseeable with advice and the jurisdiction’s flexibility is reasoned and justified so that, for example, where detention is permitted there are rigorous safeguards that include regular review.

9. The Lord Chancellor does not accept that there were procedural failings such that the detention was unlawful within the meaning of article 5 of the Convention or unfair at common law. He avers that in any event the threshold of ‘gross and obvious irregularity’ is not met. The procedural protections for anyone deprived of their liberty are the lex specialis of article 5(4) and provide equivalent protection to article 6 which the Lord Chancellor submits is not engaged. Any breach of article 8, which is not admitted, is justified by being in accordance with the law, necessary and proportionate.

So who is right?

It is a really important point. As the High Court repeatedly says – the powers under the inherent jurisdiction are theoretically limitless – so on the face of it Mostyn J had the power to make that order, even though Mr Mazhar was of sound mind and had capacity to make his own decision.

Is that really right?

If the law is going to authorise police officers to come into your home and remove you by force and take you to hospital and detain you there while you have treatment that you have not consented to, that seems to me rather a big deal – particularly as there’s no clarity at all about what hurdles the Trust ought to have to meet to establish that – if Mr Mazhar lacked capacity there would be a statutory framework as to what the Court would need to consider and a mechanism for challenge.

So I was reading this case with great interest to see what was decided about whether or not the inherent jurisdiction really does give Mostyn J or other Judges the power to make such a dramatic order – without Mr Mazhar even being told about it in advance and having the opportunity to have his say.

The order was made on a specific evidential basis which was recorded in the recitals to the order. It is important to acknowledge that this prima facie evidential basis was the evidence, at that stage unchallenged because the application was made without notice, which the judge had available to him and which he decided was sufficient to lead to the order that he made. It is part of Mr Mazhar’s claim against the Lord Chancellor that the judge should not have accepted the evidence without an opportunity being given at that stage for challenge and, in any event, that it was insufficient in law to justify the order made. It is also important to acknowledge that some of the evidence provided to the judge was wrong and may have been untruthful. The difference between the recorded prima facie evidence and the agreed facts is stark. The claim against the NHS Trust which deals with those issues has been settled and it is not for this court to give judgment on the failings of the NHS Trust. Some of those failings are however apparent in the differences revealed between the recitals and the agreed facts. The implications are very worrying indeed.

Sadly, the Court doesn’t answer that at all. Instead we get reams of paragraphs about why the challenge to the order of the High Court can’t be by HRA claim or claim for vicarious liability on the part of the Lord Chancellor, and judicial immunity, and this is all absolutely right, but still very frustrating.

43. Lord Denning MR described the principle of judicial immunity in Sirros v Moore [1975] QB 118 at 132D:

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the excess of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred or malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to the Court of Appeal or to apply for habeas corpus or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action in damages. The reason is not because the judge has any privilege to make mistakes or do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well state by Lord Tenterden CJ in Garnett v Ferrand (1867) 6 B&C 611 625:

“This freedom from action or question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be”

All of this is particularly frustrating, because the Lord Chancellor had in June submitted a position statement to the effect that judicial immunity was not going to be relied upon as a defence, and then rescinded that and relied on it successfully

If Mr Mazhar wants to find out whether Mostyn J really did have the power to make that order under the inherent jurisdiction, his mechanism is an appeal of the order, not a HRA claim.

Conclusion:

78. The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal.

79. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal

Annoyingly, Mr Mazhar gave evidence at the hearing, when the case turned completely on legal argument rather than his evidence, so it was unfortunate that he was put through the experience of giving evidence when the judicial immunity point was the real heart of the case.

I hope that he does want to find out and that an appeal will be brought.

That’s not to say that I think Mostyn J got this spectacularly wrong or was off on a frolic of his own – this sort of application and this sort of order is a natural extension of where the legal authorities on inherent jurisdiction are eventually going to take us. I’d be very keen to find out if the Court of Appeal think that there IS a line in the sand that needs to be drawn on inherent jurisdiction and where that line might be.

I don’t think that the law SHOULD have allowed Mr Mazhar to have police officers enter his home and remove him by force and detain him in hospital for treatment that he had a right to refuse. But I think that the law MAY say that this is within the Court’s jurisdiction and powers. I hope that even then, the Court of Appeal may have something to say about the safeguards that ought to be put in place about how such wide-ranging and sweeping powers need to be managed to respect a person’s article 5, 6 and 8 rights.

If police came to my door, forced entry and removed me from my home to hospital for treatment that I’d said I didn’t want, just because doctors thought my decision was stupid and went before a Judge on their own without putting my side of the story, I wouldn’t be satisfied to be told that the Court’s magical sparkle powers make all of this okay. It isn’t okay.

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In which MacDonald J asks the question and answers it in paragraph 1 of the judgment

 

Which is something that I’d like to see more often.

 

The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is ‘no’.

 

In essence, that question arose because the Local Authority had read some of the previous authorities on radicalisation or alleged radicalisation of children to suggest that they ought to be issued as wardship proceedings (which doesn’t get non-means, non-merits legal aid) rather than care proceedings (which do).  That doesn’t feel right, because parents in such cases really do need legal representation.

A scheme so cunning you could put a tail on it and call it a weasel was devised (either nobody invited the LA to simply issue an application for care proceedings so that there would be legal aid for the parents or they did and the LA refused, I don’t know), but anyway an intricate scheme was attempted instead.

As you can see, MacDonald J said no to that.

HB v A Local Authority & Another  (Wardship Costs funding order) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/524.html

 

However, MacDonald J clarified that in his mind, there was no obligation for an LA on a radicalisation case to issue solely in wardship and not in care proceedings.

In the circumstances, I am satisfied that, contrary to the view taken by the local authority, neither Hayden J nor the President have sought to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation.

 

MacDonald J shoots up in the league table of my estimation by also dissecting the much discussed homily that the ‘powers of the inherent jurisdiction/magical sparkle powers are theoretically limitless’

 

I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

 

  • Whilst the inherent jurisdiction is theoretically unlimited, it is, in reality, constrained by proper limits. In London Borough of Redbridge v SA [2015] 3 WLR 1617 Hayden J observed as follows at [36]:

 

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

In R v Central Independent Television Plc [1994] Fam 192 at 207-208 Waite LJ noted:

“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages.”

 

  • Within this context, I am satisfied that the limits that are properly imposed on the exercise of the inherent jurisdiction for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages in this case are those that must be applied when considering the nature and extent of the court’s jurisdiction to order a public authority to incur expenditure. As Lord Sumption pointed out in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at [37], courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Imposing the limits that I am satisfied must apply, I regret that I cannot accept the submission of Mr Hale and Mr Barnes that the inherent jurisdiction of this court is wide enough to encompass a power to order a public authority to incur expenditure in order to fund legal representation in wardship proceedings for a parent who does not qualify for legal aid because that parent does not satisfy the criteria for a grant of legal aid laid down by Parliament, notwithstanding the considerable benefits that would accrue to the parent, and to the child, from such funding.

 

 

 

 

 

Woman kept in a cage

 

This case, involving an 18 year old woman who had lived in England until she was nearly 17 and then went to live with her father in Saudi Arabia, attracted a lot of press attention – the headline of this piece is how it was portrayed in a lot of the Press coverage. The story was that this woman was locked up by her father, to keep her away from men, and was locked up in a cage – the High Court made orders that she be released (although with an acknowledgment that there was nothing the English Court could do if the father didn’t comply)

 

The case is now reported, so we can see the facts.  Al Jeffery v Al Jeffery (Vulnerable Adult : British Citizen) 2016

 

Not "JEFFREY"  - Al-Jeffrey (But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don't use gavels)

Not “JEFFREY” – Al-Jeffrey
(But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don’t use gavels)

 

 

(Let’s be honest, when the other members of Rainbow zipped up Zippy’s mouth, it is hard not to see that as a deprivation of Zippy’s liberty)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2151.html

 

In a similar way to the “woman who sparkled” case, once again, the Press don’t come out of it too well – they had access to this information, and of course used it to doorstep the woman’s relatives. Stay classy, San Diego.

 

I am aware that this has led to considerable publicity in print and online, much of it under a headline “Woman kept in a cage” or words to that effect, the accuracy of which I will later address. I was told (and if it is true, I regret it) that this led in turn to press harassing members of the family in Wales

 

The ‘cage’ element is obviously the major motif of the story,  but there is perhaps more to that than one might think from the Press coverage

 

 

The “cage”

 

  • I refer under a discrete heading to the issue of a “cage” because I am aware that this has given rise to some rather sensational headlines in the media. Further, in two national newspapers last Saturday (it may have been in more) I myself saw large colour pictures of the photograph now at bundle p.C84. It is the case that Amina herself has referred to her being kept “in a cage” or “in a massive cage”. This may have led headline writers and/or their readers to visualise that she was being kept actually in a cuboid cage of the type that an animal might be kept in with some form of bars all around and on top of it. That is not what happened; and the purpose of this section of this judgment is to create some objectivity and proportionality, and to describe as best I can what appears actually to have happened. I stress, however, that I have not heard any oral evidence and I have only seen the two photographs at pp.C84 and 85.
  • Within the father’s flat there were two vertical barred panels. One, now seen at p.84, is yellow. It is a large metal framework of bars upon which is affixed, probably by welding, a metal diamond shaped lattice grille. Each diamond shape in the lattice is smaller than an adult hand. It is the sort of security structure that could be fixed over windows or doors to prevent entry, or could be used as a security partition in, for instance, a store room. It is a form of caging, but not itself a cage. The other, now seen at p.C85, is, in the photograph, a mid-brown colour. It is roughly the size and shape of a full height vertical door. It consists of a hinged metal frame with metal vertical bars through which an adult could not squeeze. It is the sort of security structure that is occasionally seen as an added security door or gate outside a front door, or could be used as a security door or gate in a corridor. It, too, is caging, but not itself a cage.
  • The father admits that both these structures were affixed within his flat. He says through Mr. Scott-Manderson that the yellow lattice grille is simply affixed over external windows to prevent Amina from shouting out to the street below, the flat being on the fourth floor. From the appearance in the photograph at p.84 I am sceptical about this. Amina herself is in the foreground, with the grille beyond her, so the windows could not be in the foreground but off the photograph. Beyond the grille there does, indeed, appear to be a wooden framework which appears to contain glass panes, but they do not have the appearance of external windows. They do have the appearance of an internal glazed screen or partition, like a “room divider”. I say that, because it appears from the photograph that in part of the area beyond the grille there is a hanging cupboard or something similar, and above that the appearance of artificial electric light shining through from beyond. The father says that the glass panes are, indeed, external windows and that the light is merely a reflection from a light within the room. The father says that the purpose of the brown barred door or gate seen at p.C85 was, indeed, to restrict Amina’s access to parts of the flat, including the front door, but that it was removed several months ago. He describes it as a “barrier partition”.
  • On the father’s own account, the purpose of both these structures was to restrict Amina, whether from access to parts of the flat and the front door, or from simply looking or calling out of the window. Further, the father does admit that when he himself leaves the flat to go to his part time work he does lock her in. I conclude that Amina was not literally in a cage, but that her freedom of movement was, and is, admittedly constrained in a way that I would regard as severe, having regard to her age and full capacity. She was, and, so far as I am aware, still is, deprived of her liberty and could be described as “caged”, although not “in a cage”.

 

 

It reads more as being in a room that had a barred window and that she was not permitted to leave the home and had very restricted access to the outside world – as Holman J says, she was deprived of her liberty and could be described as being caged, but she was not ‘in a cage’

 

[Google image has let me down here – I really wanted a picture of Andromeda from Clash of the Titans (1981) in her gilded cage that Calibos was keeping her in.  With a vulture jailer, no less, who would pick up the cage in his beak and carry her off… But no joy. Bah. Anyway, here’s a picture of her as she is awaiting for Poseidon to “UNLEASH THE KRAKEN”  and her liberty is definitely being deprived]

 

There was no doubt in my mind aged 11 that I wanted to rescue this lady

There was no doubt in my mind aged 11 that I wanted to rescue this lady

 

The Judge had made as part of his order that the father must allow his daughter to speak to her solicitor in confidence to provide instructions. That did not happen

 

 

  • Notwithstanding the father’s position as recited in the order and summarised above, the order made three orders, each qualified as being “without prejudice to the issue of jurisdiction”: [i] continuing forced marriage protection orders; [ii] for the immediate return of Amina to England and Wales; and [iii] directing the father to make Amina available for an interview at the British Consulate prior to the fact finding hearing. By the time of the next directions hearing on 5 July 2016, Amina and the father were represented respectively by Mr. Henry Setright QC and Mr. Marcus Scott-Manderson QC who represent them again at this hearing. The order recited that the court had determined that “arrangements must be made for [Amina] to give instructions without fetter or any perception of fetter to her solicitors privately and confidentially” at the British Consulate in Jeddah. Paragraph 15 of the order itself ordered the father to facilitate the attendance of Amina at the consulate “… in order to enable her to speak privately and confidentially to her solicitors from those premises, for the purpose of giving instructions for, and approving, the statement” which another part of the same order ordered Amina to file and serve. I will for convenience refer to that particular provision of the order with regard to attendance at the consulate as “the paragraph 15 order”. Overarchingly, the order of 5 July repeated by reference the order to cause the immediate return of Amina to England and Wales.
  • The father has not returned Amina to England and Wales and has not complied with the paragraph 15 order. As a result, Miss Hutchinson has not been able to speak privately and confidentially and without fetter or any perception of fetter to Amina, and she has not in fact been able to communicate at all with Amina since June 2016. As to the father’s non-compliance, Mr. Scott-Manderson said at the hearing that:

 

“The father consciously decided in breach of paragraph 15 not to take her to, or make her available at, the consulate, although he knew all the detailed arrangements which had been made and no excuse or explanation (e.g. ill health, car breakdown etc.) is put forward. There is an impasse.”

The result was that the fact finding element of the hearing which had been fixed for last week was completely ineffective. Mr. Setright and Miss Hutchinson have no recent instructions from their client. They have no “proof of evidence” from her. They have been unable to take her through, or seek her instructions upon, the several statements and exhibits filed by or on behalf of the father. And, of course, they have been unable to prepare any statement from her. The father did, as required by another paragraph of the order of 5 July 2016, take Amina to the Hilton Hotel in Jeddah last Monday at the start of the hearing, from which evidence was to be given by each of them by video link (or, as I was told on the day, by Skype) to the Royal Courts of Justice. However, Mr. Setright was, in my view quite rightly, unwilling to embark on any consideration of oral evidence in those circumstances. It is elementary that a client is not, as it were, put into the witness box blind. It is elementary that an advocate does not cross-examine without having his own client’s instructions as to what the case is. There were in any event no safeguards of any kind as to the circumstances of Amina in the hotel or what pressures, influence or “fetter” she might be under. For these reasons, too, I myself would in any event have been quite unwilling to embark upon the projected “fact finding” exercise.

 

  • I wish, therefore, to make crystal clear that the reason I did not, and could not, embark upon the “fact finding” that had been scheduled for this hearing was, and is, entirely because of the conscious decision of the father not to comply with the paragraph 15 order. It is his responsibility, not mine, that I am impelled to decide the outcome of this hearing on a consideration of the documents, untested and un-supplemented by any oral evidence. Precisely because that evidence is lacking, I do not by this judgment make any considered judicial finding as to any of the disputed facts. I merely record them, although I must comment upon them.
  • Although the father consciously did not comply with the paragraph 15 order, with its more rigorous terms and safeguards and the express purpose of enabling unfettered communication with Miss Hutchinson, he had complied with the earlier order of 12 May to the extent of permitting Amina to have a meeting at the Hilton Hotel in Jeddah with a British consular representative, Amna Ghulam. The father personally was not in the room. However, he insisted on a lady being present who has been described during the hearing as “the father’s representative”. That lady made a note, which has since been typed up in English and is now at bundle p.C165, and she has made a statement that her note is accurate. In view of para.6(b) of the order of 5 July 2016, I will omit parts which make or include allegations against individuals other than the father who is now the sole respondent to these proceedings, but the note requires to be read in full by any court subsequently engaged in this case.

 

“Note: Amina appears dishevelled, strangely unlike her sister covered with a niqab. She appears to have written ‘kill’ or ‘killing’ on her right wrist with blue ink and red or pink ink.

When asked what were her (Amina’s) future plans, if she wanted to stay in Saudi Arabia or if she wanted to leave the country, Amina responded that she would like to leave the country but her family are not allowing her to leave.

Amina stated that she has been locked up in her room for over a year.

Amina stated whilst the British court case is continuing in the UK her family have informed her that she will only get her freedom (study and work) only after the case in the UK closes.

… Since [she dropped the last case] Amina stated she was abused and locked up, which is why she would like to return to the UK.

When asked why is her older sister allowed to have a phone and she is dressed well and not covered, Amina responded that two years ago she kissed a guy (in KAUST [a university in Saudi Arabia]) who proposed to her twice but her family refused him.

Amina stated her family manipulated her younger sister even before she came to Saudi Arabia that Amina is an evil girl and that she should not speak to Amina. Amina continued to say that when her younger sister came to Saudi she already had a bad image of [Amina] but when she came to Saudi Arabia she found a locked up girl with a shaved head.

… [Her father] is the one who locks me up. And the reason for that is because she had kissed a guy two years ago.

Amina was asked if she is still locked up. She responded that the metal bars are no longer in her room but she is still locked up in the house and she is not allowed to use the phone or internet.

… Amina confirmed that the reason why she ran away and build a case … is because she wants to study, work and get married.

When asked if she wants to get married by her way or her family way, Amina responded that she does not care who she marries, she wants to get out in any way possible …

When asked why she chose to come back and live with her family after running away and not choose the shelter, Amina responded that she did not have the choice, the police threatened her with jail if she did not return to her father. She continued to say that her father has the choice to take her to prison and that he always threatens her with it, she also added that the Saudi police advised her father to take her to prison after hearing what she did.

Amina stated that she would like to inform the judge that she is put in a difficult situation because she will get in trouble with her family if the case does not end. But at the same time she does not trust her family.

When asked to clarify what she wanted, Amina responded that her family wants her to say that she lied about her accusations. She stated that it is not true. And that the judge should know that she is not lying. Amina is afraid that if the case continues her father will continue to hit her.

When asked if her father still hits her Amina responded yes. She stated that her father recently threatened her that if she decides to leave he would take action against her.

Amina continued to say that her father pretends to be cooperative with the Saudi authorities, she stated that he once informed a Saudi judge that if she wanted to complain about him he would take her to the police himself. Amina stated that she had asked her father to take her to the police station after he hit her and strangled her, but he refused.

When asked again if her father hits her, Amina responded yes …

Amina is afraid for her safety if she cannot leave Saudi Arabia. She asked that the court would allow the British Embassy to check up on her every month … She also stated that [she was] prevented from going to the bathroom for one month, she was forced to urinate in a cup. She stated that she would get punished when she used her room as a toilet.

Amina requested to speak with her lawyer.

By the end of the meeting Amina had a phone conversation with her lawyer in the UK.

A note was passed under the table to the British representative.”

 

  • The conversation with the lawyer in the UK was not with Miss Hutchinson but with her assistant, Mrs. Wendy Ramus. I do not know what was said, being privileged, but in any event it was not the private, confidential and lengthy opportunity to take instructions without fetter which the later paragraph 15 order required. The consular representative, Amna Ghulam, with whom the meeting took place, has supplied to Miss Hutchinson by email her own account of the meeting. The existence of the email has been disclosed to the court and to the father’s lawyers but the contents are stated by Mr. Setright to be privileged, as the intended purpose of the meeting (thwarted by the presence of the father’s representative) had been to provide a conduit for information and instructions from Amina to her solicitor, and her lawyers here (who cannot obtain her instructions) do not consider that they can, or should, waive the privilege. As the father’s representative’s note was, of course, prepared in the first instance for the father, I do not know what else may have been said which the father’s representative decided not to record. Mr. Setright indicated in veiled terms, but in open court, that Amina’s team consider that Amina could be at heightened risk if her father saw the consular representative’s own email. The note of the father’s representative refers at the end to “a note was passed under the table to the British representative”. As I understand it, that note has not itself been transmitted here to London. Photo shots of it made by a mobile phone have been. They are apparently hard to decipher, but in any event Mr. Setright asserts that similar considerations apply to it as to the consular representative’s own email record and they claim privilege. I have not seen it and I do not know what it says.

 

 

Far from what was needed, which was the chance for this woman to talk in private with her lawyers, to be able to speak freely and to obtain advice.

 

It was a very difficult scenario. On the one hand, the Court was looking at someone who was an adult living in another country – a country where rules and law and customs are not exactly the same as ours and the potential of interfering with that sovereign state, and on the other there was a British citizen crying out for help and no prospect of it arriving if the English Courts did not intervene.

 

Discretion

 

  • The question now is whether, in my judicial discretion, I should actually exercise jurisdiction and make an order and, if so, what order. I have, indeed, approached this case with very great caution and circumspection. I have had firmly in mind from first to last the risk of exorbitance. Caution and circumspection obviously do not depend on the length of hearing alone, but I did hear this case over four long days, during which I heard sustained argument from very experienced leading counsel. I have had very considerable “thinking time”, both during the hearing and since, while preparing this judgment. I have in fact moved during the course of the hearing from a starting position in which I openly expressed extreme doubt and reservation whether I should actually exercise a discretion to make an order, to the position (which, anticipating the outcome, I now disclose) that I should do so. In my view, the admitted or core facts of this case all point to Amina being under a constraint from her father which, having regard to her age, is severe. Her father admits to locking her in the flat for several hours when he goes out. He admits that until recently the barred door in the photograph at p.C85 was in position, restricting her access to parts of the flat, including the kitchen. He admits that the yellow grille at p.C84 is still in place, and although he says that its purpose is only to prevent her from shouting out of the window, that in itself is a constraint upon her means of communication with the outside world. As I explained at para.33 above, I am sceptical that that grille is not in fact restricting her movement within the flat as well.
  • I agree with Mr. Setright that the terms of the document of the Saudi Arabian court dated 12 April 2016 at bundle p.D12 themselves indicate a person under severe constraint. Although now aged 21, she undertakes not to challenge her father’s authority over all her affairs and not to leave the house without his permission. The father’s own evidence in para.15 of his statement dated 16 June 2016 is that if she were to run away, the police, far from offering her protection from her father, would put her in prison. The very recent events in this case, and the father’s refusal to comply with para.15 and to allow Amina even to have unrestricted confidential and secure access to her consul and her own solicitor, vividly illustrate and underline the degree of continuing control and constraint being exercised. Overarchingly, she is under constraint if, at the age of 21, she wishes to leave Saudi Arabia, whether to travel to Britain or anywhere else, and is being prevented by her father from doing so.
  • In all these ways, Amina is disabled from functioning as an independent adult, not merely just out of childhood at the age of 18, but already aged 21. Amina is a citizen of Saudi Arabia. These constraints may be acceptable and even the norm under the law and culture of Saudi Arabia. But she is also a British citizen, and under the law and culture of Britain they are not. They are, indeed, totally unacceptable, and do represent in the words of Munby J in Re SA “… some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do”. If Amina chooses voluntarily to remain in Saudi Arabia, of which she is a citizen, she must, of course, respect and adhere to the law and culture of that society. But the current constraint is denying to her the right to choose to be British and to live in Britain and to respect, adhere to and be regulated by the law and culture of British society. It is true that she is currently present and habitually resident in Saudi Arabia, but that results from her obedience to the will of her father in 2012. It is accepted that she did not travel there voluntarily and of her own free will.
  • In my view, the current circumstances are such that this British person does require protection, in the language of Lady Hale and Lord Toulson in Re B at para.60; and she is currently in a peril from which she requires to be “rescued”, in the language of Lord Sumption in that case at para.87. Nevertheless, I must exercise great caution and not be exorbitant. There are other factors which weigh in favour of exercising jurisdiction. They include that not only is she British, but she was born and brought up and educated in Britain until the age of almost 17. This is a very significant factor. I would take a very different view of this case if Amina had been born and lived her whole life in Saudi Arabia but happened to be British by descent. Her mother and several of her siblings currently still live in Britain and, although she may be estranged from them, their presence here still indicates the continuing connections between this family and Britain.
  • However, there are also powerful factors which militate against exercising jurisdiction. Her father is Saudi and Saudi alone. She herself has dual nationality. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws done at the Hague on 12 April 1930 provides at Article 4 that “a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses”. Britain is a signatory to that Convention, although Saudi Arabia is not. The view of the British Government, expressed in para.3.2 of its Home Office Nationality Instructions, is that:

 

“Commonly known as the ‘Master Nationality Rule’, the practical effect of this Article [viz Article 4] is that where a person is a national of, for example, two States (A and B), and is in the territory of State A, then State B has no right to claim that person as its national or to intervene on that person’s behalf …”

This may in part explain the position taken by the Foreign and Commonwealth Office in their letter of 14 December 2015 that “Amina is a dual national … there is little that we can do to assist her”. But I am being asked to make an order against the father personally. I am not being asked to “afford diplomatic protection” or in any way to act “against” the State of Saudi Arabia in the language of Article 4, and there is no question of my doing so. In any event, in Re A the child concerned had dual British and Pakistani nationality and that was not suggested by the judgment of Baroness Hale to represent an obstacle to the exercise of jurisdiction, save to the extent that dual nationality was one of the considerations which had been raised by Mr. Setright and referred to in para.64.

 

  • The fact that Amina is present and habitually resident in Saudi Arabia undoubtedly militates against the exercise of jurisdiction, but is tempered in this case by the circumstances in which she came to be there: her father’s insistence and command, from which she has since been unable to escape. In Re B at para.59 Lady Hale and Lord Toulson identified “three main reasons” for caution when deciding whether to exercise jurisdiction. First, that to do so may conflict with the jurisdictional scheme applicable between the countries in question. There is no jurisdictional scheme between Britain, or Wales and England and Saudi Arabia. Second, that it may result in conflicting decisions in the two countries. In view of the proceedings in Saudi Arabia in April 2016, this is, of course, a weighty consideration in the present case. As I understand it, however, the “decision” in the Saudi court in April was not so much a decision imposed by the court in the exercise of its own judgment; rather, it was that court expressing its approval of that which the parties themselves had agreed. Whilst Mr. Scott-Manderson argues that Amina’s more appropriate remedy is to make some application of her own to that court, her ability freely to gain access to that court may itself be limited by the constraints, and she certainly has no means with which to fund a lawyer. Further, I regret that I lack confidence that that court would permit and enforce against the father that she is able to return to Britain, since Saudi Arabia does not recognise dual nationality. The court might not, therefore, recognise what might be the fundamental basis of her application, namely her British nationality.
  • The third reason identified by Lady Hale and Lord Toulson is that it may result in unenforceable orders. In relation to that reason, they said on the facts of that case that “it is possible that there are steps which an English court could take to persuade the respondent to obey the order”, although, so far as I am aware, those steps were not further identified. Enforcement is undoubtedly a significant issue in the present case. Generally, courts do not make orders which they cannot effectively enforce, although almost daily judges of the Family Division do just that in relation to children who have been abducted to countries which are not parties to the Hague Convention on the civil aspects of international child abduction. I accept that there is little or nothing that this court could do to enforce against the father in Saudi Arabia any order which it may make if he was determined not to obey or comply with it. There are no conventions in operation between Wales and England, or Britain and Saudi Arabia. There is no reciprocity. The courts of Saudi Arabia would not even recognise the basis upon which I claim and assert jurisdiction, namely the British nationality of Amina, since the State of Saudi Arabia does not recognise dual nationality and, therefore, her British nationality.
  • The father has no assets here of which I am aware, unlike in the case of Re B (see para.21 of the judgment of Parker J at [2013] EWHC 3298 (Fam) at the remitted hearing), but that does not preclude the persuasive force of an order, particularly one made after a very full and thorough hearing in which, although not personally present, the father engaged and fully participated and was fully heard throughout. The situation that will pertain after this judgment is very different from the situation that pertained under the earlier orders, many of which were expressed to be “without prejudice to the issue of jurisdiction”. By this judgment the issue of jurisdiction has been resolved. Further, the father himself voluntarily chose to live for many years in Wales; to educate and to bring his children up here; and to subject himself to both the protection of, and the constraints of, the laws of Wales and England and the legal system of Wales and England. His wife, from whom he is not estranged, and several of his children continue to live here. He may later, if not sooner, wish or have reason to visit Wales or England again, but he could not safely do so if he remained in breach of a significant order of this court, for he would be liable to be punished (if still in breach) for his continuing contempt of court.
  • For all these reasons, I consider that, although the father may ultimately decide to defy any order I make, this court does have considerable moral and also practical “hold” over him. There is no reason why I should assume or suppose that he will not obey any proportionate order which I may make; and I consider that I should proceed on the assumption that he will obey it.
  • There is one further factor to which I should refer. In Re A at para.65(vi) Baroness Hale referred to the absence of any enquiry being made about how the children in that case were. In Re B at para.86 Lord Sumption referred, rather similarly, to an independent assessment of the situation of the child abroad and said “unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country”. This led Mr. Scott-Manderson to submit that, before making any stronger order, this court should first direct or request some similar assessment of Amina by some appropriate authority in Saudi Arabia. There is, however, the significant difference that Re B concerned a child aged seven by the time of the hearing in the Supreme Court who could not speak for herself. The present case concerns an adult aged 21 who (subject to the constraints) can and does.
  • Balancing all these considerations, I have come slowly and cautiously, but ultimately very firmly, to the conclusion that I should exercise the jurisdiction and should make such orders as I can to protect Amina. If citizenship means anything at all, it does include the right to seek help and protection and, weighing all those factors, I should not deny help and protection to Amina. To do nothing at all would, in my view, amount to a dereliction towards Amina and in effect just giving up on her.

 

What order?

 

  • The next and final question is what order I should actually make. There was much discussion during the hearing about my simply repeating an order in the terms of para.15, hoping that now that a full hearing has occurred the father would permit a private meeting to take place at the consulate. He has, however, persisted in his position that he will not do so unless the Foreign and Commonwealth Office give a prior written assurance that if Amina were to seek diplomatic protection or “sanctuary” in the consulate, the consulate would not give it to her, but would hand her over to the Saudi authorities of the Ministry of the Interior. I see little point or purpose in repeating a para.15 order. Its main purpose when made on 4 July was to enable instructions to be taken from Amina so that a detailed up to date statement could be prepared for her, and an effective fact finding hearing could take place. That having been thwarted by the father, I am not now willing to set up another projected fact finding hearing in inevitably several months’ time. There has been far too much delay already in proceedings which ultimately concern liberty and which were commenced now almost eight months ago last December.
  • There has also, incidentally, been far too much expense. I was told by Mr. Setright that the costs and disbursements of Amina, all funded by English legal aid, are already of the order of £50,000. The litigation has not yet cost the father personally anything, since his costs and disbursements are apparently all being funded by or through the Saudi Arabian Embassy, although he may be required later to repay them.
  • In my view, I should, rather, move directly now to an order against the father personally that he must permit and facilitate the return of Amina, if she so wishes, to Wales or England and pay the air fare. He must at once make freely available to her both her British and her Saudi Arabian passports. She needs the former to enable her freely to enter Britain. She needs the latter to enable her freely to re-enter Saudi Arabia if later she wishes to return there for any purpose. I will specify the date by which Amina must be enabled to return as Sunday 11 September 2016. That allows about five and a half weeks for the father to reflect on this judgment and to make orderly arrangements. I myself will be sitting again here at the Royal Courts of Justice from Monday 12 September 2016, and very shortly after that date this case must be listed again before me. If Amina is, indeed, here, she must attend and I will decide what further orders, if any, should be made. If she is not here, I will similarly decide what further orders should be made or action taken.
  • As I require Amina personally to attend, that hearing will, in the first instance, be listed in private so she is not initially burdened by the presence of the media. However, at or before the conclusion of the hearing I will in some way (by judgment or by a statement) inform the public and any interested representatives of the media the gist of what has occurred between now and then. I wish to make crystal clear that, apart from requiring her attendance before me at that hearing, if she has indeed voluntarily returned to Wales and England, I do not make any order whatsoever against Amina herself. The purpose is not to order her to do anything at all. Rather, it is to create conditions in which she, as an adult of full capacity, can exercise and implement her own independent free will and freedom of choice. To that end, I will give further consideration with counsel after this judgment to what mechanism can now be established to enable her freely to state, if that be her own free decision and choice, that she does not now wish to avail herself of the opportunity provided by my decision and this order to return to Wales or England.
  • I conclude this judgment by expressing my sincere thanks to Mr. Setright QC and his junior counsel Mr. Michael Gration, and to Mr. Scott-Manderson QC for their sustained and distinguished written and oral arguments in this case; and to the solicitors on both sides who instruct them.

 

 

The Court’s Magical Sparkle Powers (TM) – can you take a DNA paternity test from a dead man?

In Spencer V Anderson 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/851.html

a Mr David Spencer, now 20 years old, wanted to establish whether the late William Anderson, who had died intestate (without making a will), was his father. William Anderson had provided tissue samples as part of his medical treatment. Could those tissue samples be used to extract DNA, and thus undertake a paternity test? And presumably establish a form of claim against Mr Anderson’s estate.

It is a judgment by Mr Justice Peter Jackson, so it is highly informative and elegant.

 

  • The application under s.55A was issued on 18 September 2015. His Honour Judge Duggan made a series of directions, giving the respondents and the hospital the opportunity to make representations, and listing the DNA testing issue for decision. He identified the following questions:

 

(1) Does the phrase “bodily samples” in section 20(1)(b) Family Law Reform Act 1969 extend to DNA material already extracted?

(2) Alternatively, does the inherent jurisdiction of the High Court extend beyond the ambit of the Family Law Reform Act 1969 to permit comparison of the DNA of an applicant with samples of DNA already extracted from bodily samples of the deceased and kept in storage?

(3) What is the legal basis of paragraph 66 of Mrs Justice Thirlwall’s judgment of Goncharova v Zolotova [2015] EWHC 3061 (QB)?

(4) Does the testing of the DNA already extracted from a deceased person require consent and if so from whom?

(5) Is the refusal of consent by the deceased’s estate capable of creating an adverse inference whether under the Family Law Reform Act 1969 or the inherent jurisdiction of the High Court?

 

  • I will consider each of these questions in the course of this judgment.

 

Damn good set of questions, those.

 

D FIRST ISSUE: DOES THE FLRA 1969 APPLY?

    • On behalf of Mr Spencer, Mr Kemp initially sought to argue that a direction might be given under the FLRA. However, in the course of the argument he conceded that this argument could not succeed. In my view, the concession was rightly made for the reasons analysed above, which can be summarised by saying that the FLRA:
  • governs the taking of samples from living people
  • makes no provision for samples being taken after death
  • does not contemplate separate directions for sampling and testing
  • does not provide for the testing of existing samples
  • does not provide for the testing of samples that had been taken for reasons other than establishing parentage
  • requires samples to be collected in accordance with regulations
  • does not provide for the testing of DNA itself.

 

  • Mr Kemp rightly described the difficulties as being insurmountable and accepted that in the circumstances of this case a direction under s.20 is not available to his client.
  • There being no other legislation in point, I therefore conclude that there is no statutory power to direct post-mortem scientific testing to establish a person’s biological relationships and consequently no statutory power to make a direction for the testing of Mr Anderson’s stored DNA

 

E SECOND ISSUE: DOES THE HIGH COURT HAVE AN INHERENT POWER TO ORDER TESTING?

 

  • On behalf of Mr Spencer, it is argued that there are two possible sources of such a power: Civil Procedure Rules r.25.1 (or its equivalent, Family Procedure Rules r.20.2) or the inherent jurisdiction.

 

(By “Inherent Jurisdiction” here, everyone means the Court’s “Magical Sparkle Power” (TM), which I have decided should be used from now on, to illustrate just how much of a legal sleight of hand the whole thing is)

The inherent jurisdiction

 

  • The inherent jurisdiction of the High Court is a description of the court’s common law powers insofar as they have not been removed or supplanted by statute. In the Court of Appeal in Re F (above) Lord Donaldson MR described the common law as

 

“… the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.”

 

  • The inherent jurisdiction is therefore a jurisdiction of long-standing that nowadays exists in a number of important contexts. With regard to children, it has been used in a wide variety of creative ways to supplement statutory powers, both through the medium of wardship and otherwise. As recorded in FPR PD 12D, the court can, for example, make orders to restrain publicity, to prevent an undesirable association, to endorse medical treatment, to protect children abducted from abroad and to recover children from abroad. These orders not only affect the individual family members but are also directed towards third parties, either as orders or requests.
  • More recently, the jurisdiction has been developed to provide remedies for the protection of vulnerable but not legally incapable adults. In Re SK [2004] EWHC 3202 (Fam), Singer J said:

 

“I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values.”

That manifestation of the jurisdiction was cemented by Munby J in Re SA [2005] EWHC 2942 (Fam) and the Court of Appeal has confirmed that it has survived the enactment of the Mental Capacity Act 2005: see DL v A Local Authority [2012] EWCA Civ 253.

 

  • These cases and others concerned the protection of vulnerable individuals at risk of coercion or abuse. At the other end of the scale, the inherent jurisdiction can relate to the court’s power to control its own procedures, as in Bremer Vulkan v. South India Shipping [1981] 1 AC 909, where Lord Diplock said this at 977:

 

“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. … The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”

 

  • The inherent jurisdiction is plainly a valuable asset, mending holes in the legal fabric that would otherwise leave individuals bereft of a necessary remedy. The present case (DNA testing) might be said to fall between the above examples of the court’s inherent powers (protection of the vulnerable, striking out).
  • At the same time, the need for predictability in the law speaks for caution to be exercised before the inherent jurisdiction is deployed in new ways. The court is bound to be cautious, weighing up whether the existence of a remedy is imperative or merely desirable, and seeking to discern the wider consequences of any development in the law.

 

That is the problem with the Court’s Magical Sparkle Power – because it isn’t set down properly in statute what the powers are, and the limitations of those powers, and the constraints for using those powers, it ends up being built on with case after case – extending its reach outwards and upwards, and then each case thereafter says “Well, if Munby J was able to use the Court’s Magical Sparkle Powers to do X, then I can use them to do Y” and the next Judge says “Well, if Colombo J was able to use the Court’s Magical Sparkle Powers to do Y, then I can use them to do Z” and so it goes.

There’s a neat argument against the Court’s Magical Sparkle Power here, which rather appealed to me

Submissions on behalf of Mrs Anderson

 

  • Mr Mylonas QC and Ms Street advance the following propositions in relation to the existence of an inherent jurisdiction:

 

(1) The High Court does not have the power to make any order it wishes; see Hayden J in Redbridge London Borough Council v A [2015] Fam 335:

“The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right…”

(2) The court’s powers are limited by s.19(2) of the Senior Courts Act 1981:

“Subject to the provisions of this Act, there shall be exercisable by the High Court—

(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and

(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a judge of the High Court by any statutory provision).”

So, the applicant must, but cannot, show that there was jurisdiction to make an order of this kind before the coming into force of the Senior Courts Act.

(3) Paternity testing within litigation is regulated by Part III of the 1969 Act. Any power to make a direction for scientific testing to establish paternity under the inherent jurisdiction was ousted by the Act: Re O (A Minor)(Blood Tests: Constraint) [2000] Fam 139.

In that case, two men had each obtained directions for the testing of a child to establish paternity, but the mothers, with care and control of the child, refused to consent to the testing. Wall J accepted with reluctance that there was no power to compel the mothers to allow testing when the statute required their consent: this soon led to the enactment of s.21(3). At page 151, he stated:

“In my judgment, unattractive as the proposition remains, both the inherent jurisdiction to direct the testing of a child’s blood for the purpose of determining paternity and any consequential power to enforce that direction is entirely overridden by the statutory scheme under Part III of the Family Law Act 1969. If the remedy is to be provided it is, accordingly, for Parliament to provide it.”

It is said that the present position is on all fours with that facing the court in Re O. Although the decision was given nine months before the Human Rights Act came into effect in October 2000, the court showed itself well aware of the rights engaged on all sides.

(4) There are sound policy reasons for the absence of any statutory power to permit testing in the circumstances of this case. DNA testing is an interference of the highest order with the subject’s right to confidentiality and the privacy of their known family members whose genetic relationships will also be revealed by such testing. If the court allows post-mortem DNA testing in the absence of consent, this is likely to discourage patients from providing DNA during medical treatment and encourage those in Mr Spencer’s position to defer making applications until after the death of the alleged father so as to circumvent the absence of consent. If testing in a case such as the present were to be permitted, it ought to be by way of a scheme (i) devised following the kind of consideration, consultation and scrutiny which Parliament but not the High Court can carry out; (ii) which provides for regulation (eg guaranteeing the integrity of samples and testing); and (iii) which provides clear rules which can be easily understood by healthcare professionals, patients, their family members and those who seek testing.

(5) At present, the law is clear: you cannot test samples taken for one purpose for a different purpose without consent. That clarity would be lost if an inherent power was found to exist. The law must be accessible and sufficiently precise to enable the individual to understand its scope and foresee the consequences of his actions: R v Purdy [2010] AC 345 at 390. In the present case, Mr Anderson was deprived of the opportunity to require his samples to be destroyed or of making a will excluding Mr Spencer.

(6) The decision in CM v EJ does not take matters further forward. It was not a case about paternity testing, no arguments were made against the existence of an inherent jurisdiction, and the use of the jurisdiction was consistent with the relevant statutory scheme, not inconsistent with it.

(7) Re H and A is a case in which the power to order testing was not in question. Likewise, the decision in Jaggi concerned the failure to exercise a power that existed, not the question of whether a power existed in the first place.

(8) As Re O demonstrates, the interests of justice alone do not provide a basis for ordering testing where no power to do so has been identified.

(9) Similarly, a series of cases in the analogous field of assisted reproduction show the reluctance of the courts to subvert a carefully-devised statutory scheme.

 

I happen to agree with all of that, but good luck in ever persuading a Judge that they should make a decision limiting the use of Magical Sparkle Power. You may have picked up from time to time, that I don’t much like the Jedi hand-wave that is Magical Sparkle Power, with Judge’s deciding that they can conjure powers out of thin air to solve a problem. It doesn’t sit well with me in terms of checks and balances.

 

Anyway, the important thing is that Mr Justice Peter Jackson did not agree with me, or the estate of Mr Anderson (and I don’t think on the law as it stands that was a wrong decision – the problem is, as I alluded to earlier, that the law in relation to Magical Sparkle Power is developing as a series of stepping stone cases, each relying on the one before it to extend the power further, and with no real tackling of the foundations of the earliest stepping stones and whether the Courts were ever given quite the scope of Magical Sparkle Power that they are now using)

 

Conclusion as to inherent jurisdiction

 

  • In my view, the following features are relevant to the existence or non-existence of an inherent power:

 

(1) Statutory interpretation

Before the enactment of the FLRA, the preponderant judicial opinion was that there was power to direct the taking of blood to establish a child’s paternity, and such orders were on occasion made: see In re L (An Infant) [1968] P 119 and B (BR) v B (J) [1968] P 466.

The FLRA is the only statute concerned with testing for evidence of biological relationships. It is comprehensive in relation to cases falling within its scope: Re O. In that case, the issue that had arisen lay squarely within the scheme of the Act. It fell under what Wall J referred to at 150 as the “rug” of the legislation, or what Hale LJ referred to as the “footprint” in the Court of Appeal in Re R (see paragraph 39 of the House of Lords’ opinions). In contrast, the testing of DNA post-mortem falls distinctly outside the scope of the legislation. The FLRA cannot be read purposively or convention-compliantly so as to cover cases of the present kind. I therefore do not accept that a power to give directions for post-mortem DNA testing has been ousted by the Act.

Nor do I accept that the court’s powers are limited by s.19(2) Senior Courts Act 1981. This formal, descriptive subsection cannot be taken to have defined or circumscribed the powers of the High Court, or to have frozen them as at the date of the legislation. Were it otherwise, the vulnerable adult jurisdiction could not have existed.

There is a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. I accept that in an area of this kind, policy considerations arise which would be better regulated by Parliament than by individual decisions of the court. In one sense, this speaks for judicial reticence. However, there is no indication that Parliament has turned its attention to the situation that arises in the present case, or that it is likely to do so at any early date. This gives rise to the possibility of an indefinite period during which individuals would be left without a remedy.

(2) Consent

Both the FLRA and the HTA (and the HFEA 1990 and 2008, insofar as they may be analogous) regard consent as the central component of lawfulness.

It is necessary, when considering the availability of a remedy after death, to consider the situation that would have arisen in life. The person concerned would have had the right to decide whether or not to participate in paternity testing and to allow his human tissue to be used for that purpose.

Although neither the FLRA nor the HTA apply to extracted DNA as opposed to human tissue, the use of human tissue is a necessary forerunner to the extraction of DNA and similar considerations and sensitivities must apply when DNA testing is being considered.

If the issue related to the post-mortem testing of human tissue (as opposed to DNA), the terms of the HTA would apply. For testing to be lawful, there would have to have been consent from the individual in life or by a relative after death. Or there would have to be a court order.

(3) The public interest

An intervention of the kind suggested in this case might give rise to uncertainty and concern within the medical world and beyond at the possibility that such orders might be made in other cases, or that in effect the door was being opened to post-mortem paternity testing on demand. Although it does not arise in the present case, the prospect of applications for exhumation cannot be regarded as fanciful when one recalls the circumstances in Mortensen and Jaggi, or indeed those of Richard III.

Against this, there is no sign that the present application has caused alarm to the major hospital involved in the present case (indeed it appears to welcome the court’s assistance), or that applications of this kind are likely to be at all numerous, particularly if they could only be heard in the High Court, and thereby be subject to very close scrutiny. The prospect of this limited development in the law affecting the behaviour of the patient population as a whole is likely to be more imaginary than real.

(4) Identity

Knowledge of our biological identity is a central component of our existence. The issue can have consequences of the most far-reaching kind, perhaps above all for those who do not know or are not sure of their parentage. Within our lifetimes, DNA testing has made the truth available. At the same time, it has made all other kinds of evidence almost irrelevant. While it remains possible to reach a conclusion about paternity without scientific tests, the practical and psychological consequences are different. A declaration made without testing is a finding, while the result of a test is a fact.

The contrast can be found in the opinion of Lord Wilberforce in The Ampthill Peerage Case [1977] 1 AC 547 at 569:

“Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.”

While at 573 he said:

“One need not perhaps, on this occasion, face the question whether, when technology or science makes an advance, so as to enable to be known with certainty that which previously was doubtful, such evidence ought to be admitted in order to destroy the binding force of a judgment or of a declaration with statutory force. It may be that within the limits within which a new trial may be ordered and, on the precedents, those limits are comparatively short, such evidence could be admitted for that purpose.”

The European Convention, as interpreted in Jaggi, underscores the importance of the opportunity to discover one’s parentage. Although the Convention cannot on its own create a remedy, it is desirable that our law is consistent with the approach taken in other jurisdictions if that is possible.

(5) The interests of others

It is a peculiar feature of genetic testing that it inescapably has the potential to affect not only the individual being tested but also those to whom he is closely related. Depending on the facts, the rights of surviving relatives may be engaged, but it is difficult to envisage a situation in which the establishment of the truth about biological relationships could amount to an unlawful interference with those rights; at the very least any interference may be necessary and proportionate. The rights of third parties certainly cannot represent an absolute bar to the existence of an inherent power.

(6) The interests of justice

When all is said and done, the court is faced with a civil dispute that must be resolved. In cases where a power exists, it has long been emphasised that the establishment of the truth is both a goal in itself and a process that serves the interests of justice. As noted above, where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because (by definition in a case of the present kind) people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious. The prospect of a court trying to ascertain the truth to the best of its ability when the truth is in effect there for the asking is a troubling one. Account must also be taken of the needless waste of resources that would accompany a trial involving narrative evidence.

(7) The range of circumstances

The existence of a power cannot depend upon the circumstances of the particular case. What is relevant is the range of cases that might arise. It is possible to envisage opportunistic and unmeritorious applications, but there might equally be applications, perhaps concerning young children, where the need to know the truth about parentage is compelling. The answer cannot be that the court can consider an application in the second case but not in the first: jurisdiction cannot depend on merits.

 

  • Reflecting the complexity of the legal and ethical issues, the above features pull in a number of different directions. If the only considerations related to the interests of the deceased and the public interest, the arguments against the existence of an inherent power would surely prevail. However, the interests of the living and the interests of justice must also be brought into consideration.
  • Taking all these matters into account, my conclusion is that the High Court does possess an inherent jurisdiction that it can properly deploy to direct scientific testing to provide evidence of parentage in circumstances falling outside the scope of the FLRA. If the court was unable to obtain evidence of this kind, severe and avoidable injustice might result. Awareness of the implications of ordering testing without consent and of the wider public interest does not lead to the conclusion that the jurisdiction does not exist, but rather to the realisation that it should be exercised sparingly in cases where the absence of a remedy would lead to injustice.

 

This is not a surprising conclusion. Magical Sparkle Power continues to be most efficacious in evey case. The remedy for all ills.

 

Having established that the Court COULD use Magical Sparkle Power to compel a DNA test from a deceased person’s tissue samples, given for another reason, the Court then had to decide whether they SHOULD in this case.   (This of course raises the issue as to whether someone who is terminally ill should make legal arrangements for the destruction of any tissue samples on death, or whether that should be part of a formal consent procedure when the samples are taken, but that’s a bit beyond our scope)

 

F THIRD ISSUE: SHOULD TESTING BE DIRECTED IN THIS CASE?

 

  • The following factors are relied upon in support of testing:

 

(1) Mr Spencer’s natural desire/right to know his parentage.

(2) Combined with this, the value that knowledge of paternity will have in clarifying his medical status and the need (or not) for intrusive investigations.

(3) The interests of justice and the need for the best available evidence: cf Re H and A.

 

  • In response, it is said on behalf of Mrs Anderson that:

 

(1) An order for testing would be an unjustified interference with her own Art. 8 rights by compounding a distressing situation and creating a risk that a genetic relationship would be identified between herself and a person who has caused her stress and anxiety.

(2) Human DNA is intensely personal and very strong justification is therefore required if it is to be used for any purpose without that person’s consent. The sample was provided by Mr Anderson for his own benefit during the course of medical treatment. He was entitled to a high expectation of confidentiality.

(3) Testing could not have taken place in Mr Anderson’s lifetime without his consent. This statutory bar has been given greater weight than any other rights, including those of a supposed child. Mr Anderson’s option to consent or withhold consent during his lifetime (and to explain his decision) was circumvented by Mr Spencer’s choice not to raise the issue until after his death. It would be unjust if his extensive delay allowed Mr Spencer to achieve testing without consent.

(4) To allow testing in this case would be against the public interest by undermining patient confidence in the confidentiality of providing samples for medical treatment.

(5) Mr Spencer’s delay deprived Mr Anderson of the opportunity to make decisions about his private life and his property.

(6) Mr Spencer’s interest weighs less heavily in the balance than that of Mr Anderson, Mrs Anderson and the public interest because:

(i) His lack of interest in testing until after Mr Anderson’s death shows that he had no interest in testing for paternity in order to satisfy himself of that relationship for its own sake. The court is not obliged to take positive steps to uphold his rights in these circumstances.

(ii) If the request is now motivated by inheritance reasons, his delay denied the deceased the opportunity to manage his estate in the light of relevant knowledge.

(iii) If the request is now motivated by medical reasons, on Mr Spencer’s own case, a test would merely serve to confirm what he already believes to be the case; if no testing is carried out he will continue to benefit from low-risk screening which will reduce his chance of cancer.

(7) Making no order for testing in this case would not exclude the possibility of an order for testing of a DNA sample being made on different facts, for example, where national security or the life of a child was at stake.

 

  • Weighing these matters up with appropriate caution, and seeking to strike a fair balance between the competing private and public interests, I have reached the conclusion that scientific testing should take place to seek to establish the paternity of Mr Spencer by using the stored DNA sample of the late Mr Anderson. These are my reasons:

 

(1) If the application for a declaration of parentage had appeared to be speculative or opportunistic, the request for scientific testing would probably not have succeeded. However, the overall evidence here raises the real possibility that Mr Anderson was Mr Spencer’s father, he having undeniably been in a relationship with Mr Spencer’s mother at the time of conception.

(2) It is common ground between the parties that there is a significant medical issue that turns on the possibility of a biological relationship between Mr Anderson and Mr Spencer. It is of course possible for Mr Spencer to be tested periodically by colonoscopy, but that is only a partial solution because he is surely entitled to know the reason why he should undergo those procedures, or to be relieved of the need to do so. As recently as February 2015, Mrs Anderson regarded it as “essential” that Mr Spencer’s paternity should be established. It does not now lie easily in her mouth to say the opposite.

(3) Although it is possible that the late Mr Anderson (like the alleged father in Jaggi) might have refused to consent to testing during his lifetime, there is no particular reason to regard that as likely. Whether or not he would have welcomed the possibility that he was a father, it may not do justice to his memory to assume that he would have withheld his support from a young man who might have inherited a serious medical condition from him.

(4) The information, in the form of the DNA sample, is readily available and does not require physically intrusive investigations. In particular, it does not require exhumation, as to which particular considerations would undoubtedly arise.

(5) There is no objection on behalf of the hospital, which might be seen as being a nominal representative of the public interest in this case.

(6) The interests of third parties, and in particular those of Mrs Anderson to the extent that they may be engaged, are, with all respect, of lesser significance. There is no indication of any real risk of harm and the establishment of the truth carries greater weight than the question of whether it is palatable.

 

  • I accordingly find that Mr Spencer’s interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court’s inherent jurisdiction to secure this outcome.
  • For completeness I would add that, had testing not been directed, the court would have heard the evidence in the normal way. Statutory inferences could not be drawn in a case where the statute did not apply, but this would not have prevented the court from drawing whatever inferences seemed proper from the evidence before it.
  • I pay tribute to the considerable help that I have received from counsel and invite them to submit a draft order that reflects this decision and replicates so far as possible the protections that would accompany a direction for testing under the FLRA.

 

Magical Sparkle Power, eh. Amazing. For me, it’s a bit like Superman. If you’re writing a Superman comic or film, you know the powers that Superman has been given. It’s a broad spectrum – he has super strength, he has flight, he has X-ray vision, he has heat rays, he has extraordinary speed. That’s a lot to work with, it should cover most of what you need in any given scenario. If you start adding to that with the power to kiss people and make them forget things, to peel his logo off his chest and throw it as a super weapon, to fly so fast round the earth backwards that he can turn back time, then you’re CHEATING.  Superman does have super powers, yes, but he has particular and specified superpowers. He can’t just suddenly produce claws out of his fists because Krypton, or have control over metal because “Superman”.  So “Magical Sparkle Power” is my little way of reminding myself and others that there are consequences to using the inherent jurisdiction to do wholly new and imaginative things that aren’t written down anywhere, because every time you do, it is stepping stone that others will stand on to go a little bit further.  Some of these stepping stones are now just floating in thin air.

 

 

 

 

 

 

Preacher and Cyanide

 

This was a Court of Appeal decision about whether a parent can be prevented from giving their children names of their choosing. In this case, the mother had chosen the names “Preacher” and “Cyanide” for her newborn twins.

Could she be prevented from officially registering these names?

Unlike France, where Registrars themselves have a right of veto, British Registrars can raise eyebrows and gently persuade, but they have no power to prevent a parent giving a name that they consider unsuitable.

Do the Courts have power to stop a parent doing so? Does a Local Authority?

http://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html

The Court of Appeal ruled that the answer was yes, but that the correct route to follow was more complex than one might first think.

 

  1. The issue to be determined is whether there is power in this jurisdiction to prevent a parent with parental responsibility from registering a child with the forename of his or her choice. If the answer to that question is ‘Yes’, the second question (and one which rather unexpectedly requires a detailed consideration of somewhat labyrinthine technicalities) is by what procedural route the court should exercise that power.
  2. For reasons set out below I am entirely satisfied that the court has such a power. I am equally satisfied that it is a power which should be used only in the most extreme cases and only with the sanction of a High Court Judge.

 

Re C (Children) 2016

There were going to be care proceedings in any event, due to the mother’s background of mental health difficulties, and the Local Authority in this case applied to the Court under the Inherent Jurisdiction. The Judge at first instance said that they were wrong to do this, and ruled that if they had Interim Care Orders (which they did), then naming a child was a function of parental responsibility, and the LA could overrule this, using the powers in section 33 of the Children Act 1989.

The parent’s protection about the LA using this power of veto would be to make an application under the Human Rights Act that the power had been used disproportionately.

The Court of Appeal took the view that whilst this was technically correct, that blocking the parents choice of name was such an unusual and important decision that it was best for the matter to come before a Court, and thus that inherent jurisdiction actually was the right step.

 

  1. In my judgment:
    1. i) the choosing of a name (forename and surname) for a child by a parent with parental responsibility and

ii) thereafter the act of complying with the duty of the mother and the father to give to the registrar ” information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register” (section 2(1) BDRA 1953)

are each acts of parental responsibility.

  1. The route chosen in the present case by the judge – section 33(3)CA 1989 supported by an injunction under section 37 SCA 1981 – is superficially attractive, the more so, if Baker J is right, that the mother has a safety net in that she may apply for an injunction under section 8 HRA 1998 where : (i) the proposed course of action by a local authority falls foul of section 33(4) CA 1989, in failing to promote the welfare of the child in question and (ii) where it can be shown to be a unjustifiable interference with the family’s Article 8 rights.
  2. In my judgment, notwithstanding the possible availability of such ‘tit for tat’ injunctions, the use by a local authority of section 33 CA 1989 in relation to the registration or change of a child’s forename has at least two significant problems:
    1. i) if the judge is right and the inherent jurisdiction has no role in a case such as this because section 33 CA 1989 provides the complete answer, then, unless a local authority needs to apply for an injunction under section 37 SCA 1981, this comprehensive invasion of the mother’s Article 8 rights will require no prior sanction from the court.

ii) The matter came before the court only because an application was made under section 100 CA 1989 and not by way of an application under section 33 CA 1989. Section 33 CA 1989 provides for an application for leave to be made to the court with regards to the changing of a child’s surname. There is no similar provision in relation to a forename. There is therefore no procedural route within section 33(3) CA 1989 (or by way of a general “catch all” within the Act) whereby a local authority can bring before the court that exceptional case where the court’s guidance is needed as to the use by a local authority of its powers under section 33(3)(b)(i), in respect of the decision itself (as opposed to seeking the protection of the local authority’s powers by way of injunction).

  1. In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court.

(Whilst the provisions of s33(7) prevent the LA changing a child’s surname without permission of the Court, there is no such ban on forename)

It does seem that it must be right for such a serious step to be aired before a Court and debated properly, rather than a Local Authority using their powers under an ICO under s33 to change the name without the opportunity for the Court to properly consider it, and a parent trying to fix it after the event.

Inherent jurisdiction of course requires that the provisions of section 100 apply (that the desired outcome cannot be achieved by any other statutory order, and that significant harm will arise if inherent jurisdiction is not used)

  1. I am satisfied that the result which the local authority wish to achieve cannot be achieved either:
    1. i) through the making of an order to which section 100(5) CA 1989 applies in the absence of a provision (or requirement) in section 33 CA 1989 for the local authority to make an application in relation to the giving or changing of a forename of a child or

ii) by way of a prohibited steps order or a specific issue order.

  1. That leaves the question of “whether there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm”?
  2. The judge reached the conclusion that section 100(4)(b) CA 1989 was not satisfied; in his judgment, the giving to the babies of the names contemplated by the mother did not give the court “reasonable cause to believe that if the court’s inherent jurisdiction is not exercised” they would suffer significant harm. Further, the judge appeared to be of the view that a single issue relating to the naming of a child, is not, without more, capable of satisfying the section 31 CA 1989 threshold criteria. With respect I disagree; in my judgment, although it will only rarely be the case, the giving of a particular name to a child can give a court reasonable cause to believe that, absent its intervention, the child in question is likely to suffer significant emotional harm. In my judgment this is one such case and there is every reason to believe that if the court’s inherent jurisdiction is not invoked in order to prevent the girl child from being named ‘”Cyanide”, she is likely to suffer significant harm.
  3. In my judgment, the local authority took the correct procedural route when they made an application under section 100 CA 1989 seeking ” the intervention of the High Court in order to exercise its powers pursuant to section 100 Children Act (CA) 1989 and/or its Inherent Jurisdiction” (sic).

 

The significant harm issue is obviously tricky. The Court were satisfied here that the choice of the name “Cyanide” was such that would cause the child significant harm.

Let’s look at the mother’s reasoning

 

“6. I confirm that I believe it is my right to name the children the names that I have chosen as their mother and I believe it is my human right to exercise my right to choose their names and register my children’s names without the interference of the local authority.

7. I confirm that I have chosen Preacher for my boy child as it is a strong spiritual name. It is a name that suggests proclamation and advocacy and being able to communicate with a wide community.

8. I also consider that Preacher is a rather cool name which will stand my son well for the future and I do not consider that it will impact on his development, emotionally, physically or mentally.

9. I confirm that I have chosen the name Cyanide as I believe that it is a lovely pretty name.

10. I further confirm that the name is linked with flowers and plants, that elderberry, hydrangea, cherry laurel and roses all have compounds of Cyanide found in the leaves and the fruits.

11. I believe that Cyanide will be a strong name that will stand my daughter well for the future and that I believe that it is a poison that has been used since the ancient Egyptians and it is derived from the Greek meaning dark blue.

12. I also consider that Cyanide was responsible for killing Hitler and Goebbels and I consider that this was a good thing and therefore Cyanide can be considered as a positive name, reflecting positive action that destroyed very bad people in the war.

13. I do not accept that it will have an adverse impact on my daughter during her formative years or later in her life.”

 

 

The Court of Appeal said this about names generally

 

What is in a name?

  1. One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity. The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of ‘belonging’ which will be invaluable throughout his or her life.
  2. If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity. That remains the case, even if the name used in his or her new family and thereafter throughout their lives, is different from that given to him or her by their birth mother.
  3. The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her.
  4. The judge recognised both the importance of a forename, and the fact that, ordinarily a choice of name for a child, even one which many would regard as outlandish, would not provide a reason for the interference by the state in private family life. The judge said:
    1. “A name is a direct link with the parent who chose the name……A name is also a badge of association, sometimes reflecting cultural identity, nationality, tribal heritage or religion. Above all a name is a gift a parent gives to a child, reflective of personal wishes and traditionally unconstrained in its choosing by legal restriction.

Notwithstanding the above it is not unknown to those working in the Family Court to encounter children whose parents have chosen to give them forenames which can most kindly be described as unusual, idiosyncratic or even eccentric bordering on the bizarre and more accurately be regarded as an act of parental selfishness or thoughtlessness and wholly lacking in consideration of the impact upon the child.

The choice of such names may well be reflective of a general failure to adopt a child centred approach to their responsibilities in meeting the child’s welfare but in my experience that choice of name has never been in of itself a reason for the involvement of the state in private family life.”

  1. The judge went on to consider how taste and perception can change and that a name which “is considered by a child to be an embarrassment at one age on account of it being different or unusual may well, as they get older and begin to assert their individuality, become a badge of pride for those very same reasons.”
  2. The judge correctly identified the important issue in the context of the care proceedings before him as being “the extent to which the local authority can or should exercise its shared responsibility in order to determine the name that a child in their care should be given…”.

 

In relation to the possibility of names being given which could be harmful, and “Cyanide” particularly :-

 

Discussion

  1. I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority’s powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination.
  2. It follows that I am also satisfied that there may be rare cases, where a local authority believes that the forename chosen by a parent, and by which he or she intends to register a child, goes beyond the unusual, bizarre, extreme or plain foolish, and instead gives the local authority reasonable cause to believe that by calling him or her that name he or she is likely to be caused significant harm. In those highly unusual circumstances, the proper route by which the local authority seek to ensure that the course it proposes is necessary and in the child’s interests is (as was held by Butler-Sloss LJ in Re D, L, and LA supra) by putting the matter before the High Court by way of an application to invoke its inherent jurisdiction.
  3. Cyanide
  4. The judge at first instance found that, even allowing for changes in taste or “developing individual perception”, the name “Cyanide” was not “obviously indicative of a parent who is acting so as to contribute or otherwise secure the welfare of her children” and made the order sought preventing the mother from calling her Cyanide or registering her birth in that name. As already recorded, the judge reached that decision notwithstanding that he had held that the issue of the naming of the children was not, in itself, capable of satisfying a court that the child in question was likely to suffer significant harm.
  5. As set out at paragraph 103 above, I disagree with the judge’s conclusion as to availability of the court’s inherent jurisdiction, although not with the ultimate decision he made. For myself, I cannot (at present) envisage any circumstances in which an order preventing a parent from giving its child the forename of its choice could, or should, be made absent the court being satisfied that failure to intervene is likely to cause the child in question significant harm.
  6. In my judgment, giving this child the name “Cyanide” as her forename is capable, without more, of giving the court reasonable cause to believe that she would be likely to suffer significant emotional harm:
    1. i) in relation to her sense of identity and self-worth, particularly here as a child who cannot be brought up by either of her own parents. It is hard to see how (regardless of what justification may be given to her by loving carers) the girl twin could regard being named after this deadly poison as other than a complete rejection of her by her birth mother; a rejection not replicated, in her eyes, in respect of her twin brother.

ii) to her in her day to day life as a child. Whilst teasing and ridicule are a natural part of childhood and, in moderation, help to develop resilience, such a name potentially exposes the girl twin to treatment which goes far beyond acceptable teasing. Further it would be wilful of the court to fail to factor into its consideration the power of social media and the very real danger that a child called “Cyanide” would soon be a victim of “cyber bullying”

  1. In my judgment this is one of those rare cases where the court, in the exercise of its inherent jurisdiction, should intervene to protect the girl twin from the emotional harm that I am satisfied she would suffer if called “Cyanide”.

 

That left “Preacher” – it would seem to me that if there had only been one child that “Preacher” comes under the category of unusual or idiosyncratic names, but could not be said to actually be capable of causing the child harm. The children’s Guardian in this case urged the Court to prohibit “Cyanide” but allow “Preacher”  (and I have to say that I tend to agree)

 

However, the Court of Appeal did not think that the Judge had been wrong to prohibit both names. In essence, they say that the female child, whatever she would be named, might later learn that her name was not given to her by her mother whilst her twin brother had got the name his mother had given him. As a result, she might find out (probably by googling “Boy named Preacher”) that her mother had wanted to call her Cyanide. The Court of Appeal felt that it would be better for both children to have names chosen by others, rather than one by their mother and one by the Local Authority

 

Preacher

  1. In her written submissions, the Guardian submitted that the interference in the mother’s right to name her child was only necessary and proportionate in respect of calling the female baby “Cyanide”. Her argument was that the two names fell on either side of the ‘significant harm’ threshold – “Cyanide” on one side of the threshold – that of being harmful, and “Preacher” on the other – unusual, but not harmful.
  2. The local authority’s application under section 100 CA 1989 was made in respect of both children. The Guardian’s approach whilst understandable, arguably places the twins in conflict, with the boy child growing up with the name chosen by his birth mother whilst his twin does not.
  3. In the case of Birmingham City Council v H (No 2) [1993] 1 FLR 883, Balcombe J described the balancing exercise to be carried out where a conflict arose between the separate interests and welfare of two children in one application in the following way:
    1. “You start with an evenly balanced pair of scales. Of course, when you start to put into the scales the matters relevant to each child – and in particular those listed in s 1(3) – the result may come down in favour of the one rather than the other, but that is a balancing exercise which the court is well used to conducting in cases concerning children.”

At 899E – G, Evans LJ put the matter like this:

“But the welfare of the two individuals cannot both be ‘paramount’ in the ordinary and natural meaning of that word. If that is the requirement of s 1(1) in the circumstances, then the Act presents the court with an impossible task. For this reason, I agree with Balcombe LJ that the requirement must be regarded as qualified, in the cases where the welfare of more than one child is involved, by the need to have regard to potential detriment for one in the light of potential benefit for the other. Only in this way, as it seems to me, can the subsection be applied and the manifest objects of the Act achieved.”

  1. In my judgment the potential benefit to the boy twin in having a forename chosen by his mother is more than outweighed by the potential detriment to the girl child of them having forenames names given to them from two different sources – namely their mother on the one hand and their half siblings on the other.
  2. It is not unusual for a child, with even the most commonplace name, to ask how his or her name was chosen. This is made more likely in the case of an unusual name, such as “Preacher” and in circumstances where the children concerned are not living with their natural parents. The only possible response that his carers would be able to make in response to such a question, would be to tell the boy twin that it was the name that his birth mother had chosen for him. This would lead to the inevitable question from the girl twin as to whether her name had also been chosen for her by her mother and, if not why not? She would undoubtedly ask what name her mother had given to her and why it had been changed. The outcome of such a predictable conversation would be to expose the girl twin to a significant part of the very harm the court seeks to prevent; she would know not only that her mother had chosen to call her “Cyanide”, but also to have to come to terms with the fact that she was to have been named after a notorious poison, whilst her twin brother was to be given the name of a respected member of society, “Preacher”.
  3. I accept the Guardian’s basic submission that the name “Preacher” in itself would probably not have led a court to conclude that he would be likely to suffer significant harm if that was the forename he was given. However, upon carrying out the BCC v H balancing exercise, and having put into the scales the matters relevant to each child, I have reached the conclusion that the girl twin’s welfare can only met by neither she nor her brother having the names chosen for them by their mother. I am reinforced in this view by the fact that, whilst “Preacher” in itself might not be an objectionable name, there is considerable benefit for the boy twin to be in the same position as his sister and for them each to grow up knowing that their half siblings, with whom they live, chose both of their names for them.
  4. I would not therefore conclude that the judge had erred in deciding that it was not in the best interests of the boy twin to be called “Preacher” although for rather different reasons.

 

It would be a very exceptional case where this occurs – even more so if the choice of name was the ONLY matter which went to threshold. Such cases would have to go to the High Court for determination.

 

[I’m sure that all lawyers working in this field have a string of very unusual names that have been given to children within care proceedings. I’m fairly sure that by now, someone will have had a “Hashtag”.  The test is much higher than just a whacky or idiosyncratic name, and into something which could be shown to be actually harmful ]

 

We’ve gone on holiday by mistake

 

 

The outcome of the President’s case involving parents who were found, with their four children (aged between 20 months and 7 years old) around the border between Turkey and Syria, with the suspicion that they intended to cross the border and join up with the conflict going on in Syria.

 

I wrote about the initial decision here, in which the President set out a detailed routemap for recovering such children and bringing them back into the jurisdiction

https://suesspiciousminds.com/2015/05/21/isis-and-children-being-taken-to-syria/

 

At that time, there were competing explanations

 

(a) The parents had become radicalised and sought to join the conflict in Syria, potentially with ISIS and thus exposing the children to significant danger

or

(b) the parents explanation, that they were on holiday in Turkey as a family, with no sinister motives at all.

I note that the family had travelled to this holiday in Turkey by way of ferry from Dover, and then by public transport all the way, and did so without telling anyone.  Perhaps that’s to avoid detection and suspicion (option a) or perhaps the family really like buses or are afraid of flying, and have a strong sense of privacy (option b)

In any event, one would now think in retrospect that holidaying with a baby and 3 young children near the Syrian border was something of a mistake.

 

The next bit of the hearing is to look at what should happen next.

 

Re M (Children) No 2  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2933.html

 

The outcome of this hearing is that the children are all at home with their parents, under no orders at all, and the children’s passports have been returned.

 

Now, there’s always been a background residual concern that in the concerns about radicalisation and terrorism that a wholly innocent family could be caught up and subjected to what must be a terrifying process. So if that is what has happened here, that would be hugely newsworthy.

Equally, if option (a) is what actually happened, and the family have subsequently satisfied a Court that they are safe now, that would be hugely newsworthy.

 

Annoyingly, we can’t be 100% sure of either option. The Court do not set out what findings, if any, were made about the children’s time near the Syrian border in Turkey.  It may be that the Court was not asked by any party to make such a finding, or that the parents made concessions. We just don’t know.

The closest we come is this :-

 

At a further hearing on 2 June 2015 I directed the appointment of an independent social worker, Ms RT, to address matters which, understandably, the guardian did not feel qualified to address, in particular the question of whether the parents can care adequately for the children and prioritise their needs, having regard to their religious beliefs and in circumstances when their allegiance to those beliefs could compromise the safety of the children. Ms RT’s report is dated 16 August 2015. It is a detailed, impressive and compelling piece of work. Because the family’s identity is in the public domain, I do not propose to go through the report in any detail. It is enough for me to quote one brief passage:

It is my assessment that the intervention of the state has been a wakeup call for this couple … It is my assessment that their current beliefs do not pose a risk or will compromise the safety of their children … [They] are good parents and they are able to care for all their children. I see no reason whatsoever to remove the children from their care.”

The local authority and the guardian accept that conclusion and the analysis that underpins it. So do I.

 

It doesn’t feel ideal that we have to infer from one sentence fragment in a judgment  ‘that this has been a wakeup call for these parents’ that the more likely explanation for the children’s presence near the Syrian border was a malign one, not a benign one.

 

But, one could also read it that the ‘wake-up call’ is that the parents now realised that Syria was a dangerous part of the world and that their holiday to Turkey was ill-advised and they would never make that sort of foolish mistake again.

I know which reading I think is right, but the problem legally is that an allegation that the parents had planned to take their children into Syria is an allegation that needs to be proven – the parents don’t have to prove their innocence. In the absence of a clear finding, then it didn’t happen.

 

The order says

 

  1. Having regard to all that material, and all the other evidence before me, I had no hesitation in agreeing with the course proposed by the local authority, endorsed by the guardian and agreed by the parents. Accordingly, at the final hearing on 5 October 2015 I made an order in the following terms:

    “UPON the court receiving the independent assessment of RT dated 16 August 2015 and the position statements of the applicant local authority and children’s guardian, the contents of which recommend the discharge of the wardship orders currently in place on the basis that the identified risks are manageable under child in need plans and ongoing cooperation by the respondent parents with the applicant local authority

    AND UPON the parents agreeing in full to the terms of this order

    AND UPON the court indicating that a brief anonymised judgment will be handed down in writing on a date to be notified

    BY CONSENT IT IS ORDERED THAT:-

    1 The wardship orders first made in respect of the subject children on 4 May 2015 and renewed thereafter on 8 May 2015 are hereby discharged.

    2 The order dated 8 May 2015, requiring the applicant local authority to retain the parents’ and children’s passports to the order of this court is hereby discharged, whereupon the local authority has agreed to return the said passports to the parents.

    3 There be no order as to costs save for detailed public funding assessment of the respondents’ costs.”

  2. It follows that the proceedings are now at an end. I leave the final word to the parents, who say, and I accept, “wish to put the incident behind them and concentrate on being the best parents for their children, with the continued support of their family and friends.”

 

 

Again, that order sets out that there are identified risks, but doesn’t actually identify them. Are those ‘identified risks’ that the parents had planned to take the children into Syria but have now come to their senses, or that the parents are the worst holiday planners since Withnail?

 

"Are you the farmer?"

“Are you the farmer?”

 

Perhaps the people involved in the case know definitelively what happened, but given the importance of such cases nationally, particularly if these parents were exonerated from suspicion, it might have been rather important to actually spell it out.

 

[It may be that the fudge here is because unusually, the identity of the family is known, and they have to live within their local community, but the ambiguity isn’t helpful if they were actually exonerated and considered by a Court to have actually just taken a really badly located holiday.]

 

 

Not being allowed to see an expert report

 

I’ve read this case half-a-dozen times now, and I still don’t entirely get it.

 

NCC v AH and DH 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4845.html

 

Dramatis personae

 

NCC is the Local Authority.   (It isn’t a very cryptic disguise of whom they might be)

AH is a woman, who has some mental health problems and for a time was considered to lack capacity and be a person at risk from :-

 

DH her husband.

 

The application

(a) an application by DH for disclosure to him of any reports and/or letters by Dr. McInerney and the report of Dr. Khouja dated 29th July 2011;

(b) an application by AH for disclosure to her of the said reports and of her Social Services records (it being acknowledged by all parties that she would share them with DH); and

(c) applications by AH and DH for their costs, or a proportion thereof, incurred in both sets of proceedings to be paid by the local authority.

These applications arise from a set of proceedings under the Inherent Jurisdiction and a set of proceedings under the Mental Capacity Act in the Court of Protection.  Both seem to have arisen because AH made allegations about her husband’s behaviour towards her which were believed (but which appear to have been more a result of her mental health problems).   NCC considered that AH was a woman that they owed duties towards, as a result of Re Z (Local Authority: Duty) [2005] 1FLR 740, especially at para.19.

 

In my judgment in a case such as this the local authority incurred the following duties:

i) To investigate the position of a vulnerable adult to consider what was her true position and intention;ii) To consider whether she was legally competent to make and carry out her decision and intention;

iii) To consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

iv) To consider whether she was legally competent to make and carry out her decision andintention;

v) To consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

vi) In the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

vii) In the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

viii) Where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

ix) In very exceptional circumstances, to invoke the jurisdiction of the court under Section 222 of the 1972 Act

 

 

A psychiatric report was directed in those proceedings, from a Dr McInerney. It appears that within the proceedings, the Official Solicitor (on behalf of AH) and Local Authority, took the view that the Court should take the unusual step of not disclosing that report to DH, on the basis that there were things AH had said about his behaviour which might put her at risk if DH were to see it.  [That’s quite unusual, we’ll come back to it later]

The Official Solicitor and LA also told the Court that they did not rely on Dr McInerney’s report and wanted a second opinion, from a Dr Khouja.  DH  of course, had not seen it, so it was rather hard for him to say whether he did seek to rely on it, or whether a second opinion was necessary.  (One can make an informed guess that if it said things that the LA and OS agreed with, they wouldn’t have been asking for a second opinion, so DH would probably have agreed with what was said)

[It is also worth noting that DH had to pay a share of the costs of Dr McInerney’s report, although he never got to see it or know what it said. He didn’t have to pay a share of the costs of Dr Khouja’s report]

Dr Khouja was directed to file two reports, one on capacity (which DH DID get to see) and one”considering the recent Social Services assessment of AH, and he may also include in that supplementary report, any matter or opinion which he would wish to report upon, but he is of the view should be withheld from DH pending judicial determination of any disclosure issues.”  which DH didn’t get to see.

Dr. Khouja concluded that AH did not lack capacity in respect of any of the matters which he had been instructed to assess. This led to Bodey J’s order of 11th November 2011. By consent, NCC were given permission to withdraw both sets of proceedings. The Official Solicitor was discharged as litigation friend to AH although he remained as an interested party for the purposes of the disclosure application.

 

So, the proceedings were withdrawn, because AH had capacity to make her own decisions about whether she wanted to be with DH or not, and it wasn’t the role of the State to intervene on her behalf.

DH, having gone through all of this and having had to pay for all of his own legal costs, was understandably unhappy, and wanted to make a series of complaints about what had happened.  In order to inform his complaints and no doubt to bolster them, he wanted to see both of the expert reports that had been withheld from him. And he was also asking that some of his costs be paid.

 

Law on non-disclosure

 

The law is that generally, a document filed at Court should be seen by all parties, and the burden is on the party seeking non-disclosure to establish why that general rule should not be followed.

The substantive law is set out in the House of Lords case of Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 [1995] 2 FLR 687. The test is:

“(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party…

(2) … the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

(4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

(5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

[Although Re D here deals with a child, the principles are much the same. The argument was that disclosing to DH an expert report in which AH was presumably making allegations to the expert about abuse might put her at risk.  The counter argument to that is that as a consequence of these proceedings, DH might have to live apart from his wife as a result of such allegations but they were being made in a way that concealed from him what they were.  ]

Moylan J’s judgment does not really deal with this, although to be fair, the decision to not disclose the documents at that earlier stage had already been taken and presumably there is a judgment weighing up those factors at that time.  Instead, he looks at the duty of disclosure being that the documents are disclosed in order to allow a person to participate effectively in the hearing  –  in order to have a fair trial.

  1. Turning now to the legal framework, the expert evidence in this case was obtained for the purposes of these proceedings and pursuant to court orders. The court has power to provide to whom such evidence is to be disclosed and to whom it is not to be disclosed, including a party to the proceedings: see, for example, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.
  2. The experts overriding duty is to the court. Both proceedings in this case were heard in private. The reports are, therefore, confidential to the court, as described by Sir Nicholas Wall, President, in A County Council v. SB, MA & AA [2011] 1FLR 651. At para.34, he said:

    “In my judgment, ‘confidentiality’ in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court’s permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court”.

  3. As a result of being confidential to the court, and to the proceedings, a report cannot be used by any party for any collateral purpose or purpose unconnected with the proceedings without permission from the court. There are a significant number of cases which address the factors which the court will take into account when deciding whether to give such permission.
    1. Turning now to disclosure, the general rule is that a party is entitled to the disclosure of all evidence which any party proposes to adduce to the court. As Lord Dyson said in Al Rawi & Ors. v. The Security Service & Ors. (Justice & Ors. Intervening) [2012] 1 AC 531, at para.12:
      1. “Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance”.
    2. It can be seen from this passage that disclosure is made for the purposes of the proceedings and to ensure that any trial is fair.

 

But of course we know that during the proceedings, those documents were kept from DH. There were allegations being made about him that he was kept in the dark about.  When it emerged that AH had capacity, and wanted to remain in a relationship with DH, the proceedings were withdrawn.

Should he now be entitled to see those reports?   (after all, they are about AH, and she has capacity to say whether she wants him to have them – and she does)

  1. Given the determination of the substantive proceedings, I can identify no grounds on which disclosure of the reports should be ordered. They were prepared for the purposes of the proceedings. They were not disclosed to DH and AH pursuant to orders made during the course of those proceedings. There is no freestanding entitlement to disclosure once proceedings have concluded. Disclosure is part of the process by which the court ensures that a fair trial is effected. It is self-evident that, following the determination of proceedings, disclosure of evidence is no longer required for the purposes of the proceedings or in order to effect a fair trial.
  2. It is self-evident in this case that disclosure can no longer be sought for the purposes referred to in DH’s Solicitor’s letter of 18th March 2010, namely to enable the evidence to be tested within the proceedings. Rather, disclosure is sought by DH and AH for collateral purposes, namely to challenge, what they refer to as, the “toxic” comments in the reports. This, they contend, is necessary to enable them to clear their names. They also want to report Dr. McInerney to the GMC, and possibly to take libel proceedings.
  3. None of these appear to me to provide, in the circumstances of this case, any ground for ordering disclosure. I cannot envisage any court giving permission to DH and/or AH to use the reports for the purposes of any such step. Now that the proceedings are at an end, there is no justification in seeking to challenge the contents of reports prepared for, and only for, the proceedings. I can, therefore, see no basis on which DH and/or AH could now successfully seek to challenge the orders made during the course of the proceedings.

 

That seems to me to be a rather curious way of looking at things. It ought not to matter what DH wants to do with the documents, and whether you think he ought not to do it. This was a report about AH, and we now know that she has capacity to decide for herself whether she wants it to remain confidential or whether she wants her husband to see it, and she does.  I can see that the Court approach is to draw a line under the proceedings and for everyone to move on and forget the whole thing, but once AH has capacity, she is no longer a vulnerable person who needs the protection of the Court. The decision not to disclose the reports at the time were taken in the context that it was believed that she lacked capacity and needed that protection.

The next bit is even more suprising.

Finally, given the clear risk of satellite litigation, I propose to order that neither the Official Solicitor nor the solicitors instructed by the Official Solicitor should disclose the non-disclosed documents or the Social Services records, insofar as they have them, to AH. If this were to happen, it would undermine the effect of my judgment and proposed order.

 

Well, it makes sense. The Court order could easily be circumvented by a subject access request under the Data Protection Act 1998, for disclosure of the records that are held about AH and DH.  This is, however, the Court making an order that a Local Authority need not comply with their statutory obligations under primary legislation if a request were made.  Not only that, it is an order about primary legislation where the first port of call in a dispute or challenge is not actually the Court but to the Information Commissioner.  Does the Court even have jurisdiction to do this?

 

[Well, of course the answer to that is going to be that the original application was under the inherent jurisdiction, and we can all chant the answer “the powers are theoretically limitless”]

 

I can’t actually establish under the DPA what section you would use to refuse a section 7 request.  It doesn’t fit any of the non-disclosure provisions in Schedule 7 of the Act.

 

My best argument would be that in making that order, the Court has effectively determined (though without giving a judgment as to why) that this is satisfied

The Data Protection (Subject Access Modification) (Social Work) Order

2000:

this provides that personal data held for the purposes of social work

are exempt from the subject access provisions, where the disclosure to the

data subject would be likely to prejudice the carrying out of social work, by

causing serious harm to the physical or mental health, or condition, of the

data subject, or another person.

 

For law geeks, there’s a really obvious way of getting the reports, but obviously it would be wrong of me to spell it out here.

 

You won’t be surprised, having read the rest of this, that Moylan J didn’t allow the application by DH for costs.

 

  1. Turning next to the issue of costs, I am satisfied on the evidence that AH was given no assurance that her costs prior to the appointment of the Official Solicitor would be paid. I accept the evidence of Ms. Hardman and Mrs. Ord to that effect, which is supported by the records produced from AH’s own solicitors. Additionally, AH herself says that she was not in a fit state at the relevant time and was not taking things in.
  2. Secondly, in respect of proceedings in the Court of Protection, I can identify no justification for departing from the general rule that there should be no order as to costs. There is nothing in NCC’s conduct which would justify my departing from that rule. The proceedings have concluded without any determination. I am satisfied that NCC have acted properly throughout, in accordance with their obligations. There is no point at which they should have decided, as submitted by DH and AH, to discontinue the proceedings earlier than they did, namely following the receipt of Dr. Khouja’s report.
  3. I am also not persuaded that I should make any separate order in respect of Dr. Khouja’s costs. These were part of the costs of the proceedings to which the general rule applies.
  4. Thirdly, in respect of the costs of the proceedings under the inherent jurisdiction, I am also persuaded that NCC acted properly throughout in bringing the proceedings, in that, in so doing, they were acting in accordance with their obligations in respect of vulnerable adults. As the letter from DH’s solicitor dated 18th March 2010 makes clear, it was accepted that AH had said things to social workers which would lead professionals to have concerns. The letter specifically states that:

    “Our client accepts that the premise of the proceedings is that the local authority believes that his wife’s descriptions of how he has treated her may be true”.

    I can identify no point at which NCC should have decided to discontinue those proceedings earlier than when they did.

 

Thus DH had to pay for legal representation, in order for NCC to go to Court and argue that his wife lacked capacity and needed protecting from him, even though it turned out in the end that she didn’t, and had to pay for a share of an expert report (which probably would have helped his case if he’d seen it) which he wasn’t allowed to see and will never see. The whole of this case was based on allegations which he hasn’t seen and none of which were proved.

 

This one is probably far too legally complex for our friend over at the Telegraph, but it certainly is one that might warrant the “Kafka-esque” label that he routinely affixes to cases.