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The Hungarian Games

Posted on July 13, 2016 by suesspiciousminds

 

A peculiar case where the parents were agreeing to adopt their child and the fight was about whether that would be in the UK or Hungary.

Hence the title. And not by any stretch of the imagination, a cheap opportunity for a Jennifer Lawrence photo.  Goodness looking through those photos to find a decent one was a terrible hardship.

 

 

I mean, seriously, I had to research the heck out of J Law for this piece

I mean, seriously, I had to research the heck out of J Law for this piece

 

Re AO (Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/36.html

 

And yes, this Judge was setting me up for an A-O Let’s Go, Ramones * title, and I spurned it. I feel bad and all, but c’mon. J Law!

(*yes I lost my mind in first draft and put the Buzzocks)

In this case then, the parents were both Hungarian, but had been living in England for some time. They had a baby and didn’t feel able to care for the baby, so they contacted the Local Authority to say that they wanted to relinquish the baby for adoption. They understood what was involved and freely agreed to it.  The LA felt that the baby should really grow up in Hungary, to be in touch with the parents culture.  The parents were adamantly against this. That argument meant that the only way the baby could be adopted in Hungary would be if the LA obtained a Placement Order. And in order to do that, they would need to prove that the section 31 Children Act threshold criteria were met – that the child was suffering significant harm, or likely to do so.

Tricky to do.

Let us see how the LA argued that threshold was met.

 

 

  • In this case, the local authority’s case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

 

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

 

  • In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents’ actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.

This position was supported by the children’s guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents’ withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare

 

I think this is skilfully put together, but it is nowhere near establishing threshold.

Unusually, the parents here shared the same silk, Frank Feehan QC, but each had their own junior counsel. I haven’t ever come across that before. But if you think that Frank Feehan QC (of Re B fame) was going to swallow that threshold, you haven’t been paying attention.

 

 

  • On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of “harm” in section 31 (9), and also reminded me of the provisions of section 31(10):

 

“where the question of whether harm suffered by a child is significant turns on the chart’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”.

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

 

  • The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO’s background, the parents had in fact given brief but full details of their own families and background and upbringing.

 

 

 

The Judge, Mr Justice Baker, was also mindful of public policy issues – if you make it too difficult and too onerous and too intrusive for a parent who wants to give their child up for adoption to do so, well then you’ll return to the days of children being left in wicker baskets on the doorsteps of hospitals and police stations. There has to be a balance

 

 

  • In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

 

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

I observed (at para 47 of Re JL, Re AO)):

“It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home.”

 

  • As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
  • It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
  • The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
  • Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

 

 

 

As it was not possible to make a Placement Order without either parental consent or satisfying the threshold criteria, it wasn’t NECESSARY for the Judge to rule whether it might be better for the child to grow up in Hungary rather than England  – but Baker J made it plain that he would not have done so in any event

 

Welfare

 

  • In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO’s overall interests, and I here set out the brief reasons for so concluding.
  • The local authority’s consistent view throughout these proceedings was that it was in AO’s interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been “turned into” an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
  • In reply, the parents’ consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
  • The children’s guardian supported the local authority’s plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
  • Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority’s plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
  • I accept that, other things being equal, it would be in AO’s advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO’s needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO’s needs.

 

 

 

A good decision, in my book. And it clarifies the position for other Local Authorities, and indeed parents.

 

Sometimes the law can be fair and kind, despite all the complex language and mystique.

Oh boy, did someone say “Mystique?”

 

Yes, these images are completely necessary to convey the legal niceties of the case

Yes, these images are completely necessary to convey the legal niceties of the case

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Bit of a c( ) ck up on the old anger management front

Posted on March 29, 2016 by suesspiciousminds

 

This case, decided by Ms Justice Russell, involved a 15 year old, an 11 year old and a 4 year old, all who had become involved in a private law contact dispute between their parents.

FY v MY 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/16.html

 

Readers may recall that Reggie Perrin had a brother-in-law, called Jimmy.  Like all characters in Reggie Perrin, Jimmy had a catch-phrase and his was “There’s been a bit of a c( ) ck-up on the old catering front”  – meaning that he needed to borrow a bit of money from Reggie to tide him over.   [I’ve written the letter “o” here as brackets, to stop it being devoured by over-eager spam filters]

 

Jimmy also had plans to build his own (fairly) secret army, which was to be opposed to just about everything, including long haired weirdos, short haired weirdos, keg bitter, namby pamby probation officers and glue sniffers – I think Jimmy might do rather well in modern politics, as it goes. I think he might acquire a significant number of followers.

 

 

"Do you think so? I thought recruitment might be difficult"

“Do you think so? I thought recruitment might be difficult”

In this case, here are the reasons that the father might have needed anger management

 

  1. On the 1st February 2014 K and M went to spend time with their father at 11 am; L followed later at noon having completed his homework. At 9:30 that night L arrived at home saying that their father had hit K so L had run away. MY tried to call K’s phone, FY’s apartment and FY’s mobile phone and when the phone was answered she could hear K who was very distressed and crying. When K got home at about 10:15 pm he was clearly very distressed.
  3. The boys told their mother that FY had taken them to a restaurant and had made reference to a solicitor’s letter; a comment or response of L’s angered their father and L tried to explain to FY that he was not taking sides, at which point FY started to swear at them and call them abusive names. When K responded FY kicked at him under the table as a result of which K sustained abrasions and marks to his legs (which were seen the next day by his doctor and the court has seen the doctor’s report). They told their mother that their father kicked at L and punched his side. They left the restaurant and both boys sat in the back of the car as K did not want to sit in the front with his father. When K tried to phone his mother and his father saw this he told K not to call and tell her what had happened, but K continued to try to make the call. FY then attempted to take the phone away from his son whilst driving the car, by reaching around the car seats grabbing at K. L tried to intervene and became caught up in the altercation and said that he had been hit on the side of his face near his eye twice, he thought by his father’s elbow. From the pictures taken after the event it is apparent that L’s face was bruised and swollen on one side (the court has seen the doctor’s report about the injuries sustained by L).
  5. When they arrived outside their father’s apartment building, as the boys later told their mother, the struggle between K and his father continued with FY pushing K into the building leaving K with red marks to his the left hand side of his face. About five minutes later at 9:35 pm L arrived at home in a distressed state. MY immediately tried to call K on his mobile and, as he did not reply, called the land line to FY’s apartment. She says that FY answered and she could hear her son crying and asked to speak to him but FY did not allow her to and put the phone down. About 50 minutes later FY returned K to his mother’s home. K was flushed and very upset, he and L sit close to their mother with their heads on her lap, crying. Both boys did not want to see or speak to their father. They were seen and checked over by their doctor on the 4th February, who provided their mother with a short report which sets out their injuries and confirms they are consistent with the assaults as reported. I have seen the documents and accompanying photographs.
  7. The day after, on 2nd February 2014, according to their mother, K and L refused to speak to or see their father. FY phoned and asked to speak to L who did not want to speak to him. At about mid-afternoon FY called again and asked to see M, and for L to go to see him as well. L told his mother that he was scared that if he did not go his father will be angry with him. FY then started to call MY’s mobile phone, the landline and the nanny, repeatedly, to demand that L and M came immediately. MY told him, on the nanny’s phone, that M was on his way but that L would not be coming as he did not want to go. FY was abusive to MY and continued to make repeated phone calls which caused distress to the boys, their mother and the nanny. FY left the country that day and did not return until the 20th March 2014. He chose not to attend court on the 13th March 2014; a hearing which was to listed to review the contact agreed in December 2013.
  9. The boys have continued to be affected by the events of the 1st February. K has spoken to the teachers at his school about what happened and, entirely appropriately the school was concerned about what he had said and the events have been noted on his school records. It is their mother’s recollection that FY did not contact the boys until about 15th February when L spoke to him briefly but K refused to speak to him. On 19th February FY’s sister contacted K to try get him to contact his father but K was clear in his response to his aunt that he would not do so.
  11. On the 23rd February there is an exchange of text messages between father and son; K said that he did not want speak to or see FY “I already know the whole truth because you are a liar and mama is not.” In his response FY, again, raised the court case and texted “Didn’t u want to live in dubai?” K responds, “I don’t want to live with you you said you will never hit me again and you did …I wanted to live in Dubai but not with you.” His father responded “I did not hit u. I love u very much and I miss you.” K texted “You kicked me which is even worse”. FY went on in his text to say that K had hit him and that he had forgiven K, to which K responded “After you kicked me, and pulled my hair and scratched my face.” FY again made reference to the court proceedings and says that he was “fighting for” K and K replies “I don’t care about you and I don’t forgive you for kicking me.” When his father responded by texting that he forgave K and changed the subject to football but K texted; “Well I don’t and because you haven’t even apologised to me.” FY texted “I am sorry baba. I love u” and K texted back; “Fine I will give you one more warning but please don’t kick me again.” FY then asked K to apologise and promise that he will never talk like that to his father again. He was insistent that K posted (on social media) “something nice about ur baba in ur status message” and despite K’s responding three times that he wanted to sleep FY kept texting him. It was well after 10 o’clock at night when all this took place.

 

It must therefore have been momentarily pleasing to the Judge to learn that father was engaging in anger-management work. Momentarily pleasing.

 

  1. On the 26th September 2014 FY applied for interim contact. The case was listed before me on the 3rd October 2014 and by that time the case came FY had undertaken an anger management course with a Dr A-M in Dubai. Doubts were raised about the efficacy of this course and it is a fact, as FY told me in his oral evidence, that Dr A-M is a friend of his of many years standing and that Dr A-M is now married to a member of FY’s family.
  3. I have not heard evidence during this hearing regarding the suitability or otherwise of the course that FY undertook but I question the wisdom of undertaking a course run by someone who a reasonable and independent observer would consider to be unlikely to be able to maintain the requisite objectivity to lead successfully. On the face of it a longstanding friendship would be more likely than not to compromise the ability of any professional to challenge the behaviour, mind-set and prejudices of the participant, and it must be the case that any anger management course must rigorously challenge aggressive behaviour and personal misconceptions of a participant in order to be effective.

 

I don’t think that Dr A-M was quite a brother in law to FY, but certainly related to him by marriage, which is what put Jimmy in my mind.   Well, that, and the fact that the father also brought sit-coms into the mix, by peculiarly comparing his son to Del-boy from Only fools and horses (?) (I know…)   Of course, whilst Del-Boy’s catch phrase was “this time next year, we’ll be millionaires”, it is suggested elsewhere in the judgment that this might be a step-down in fortunes for FY rather than a pipe-dream.

 

FY told AFC  [Anna Freud Centre – the experts instructed] that he wanted his children to be respectful towards him but that K had been brainwashed by his mother and Cafcass had added to it; he had not spoken to him for two weeks. He said that her family were using the children as hostages. He described L as like Del-Boy in Only Fools and Horses and said L “is a commercial guy you can bargain with him“. FY said he was angry with K that is why he did not call him – “culturally in this case he needs to apologise…I tell L if K wants to call me then he knows how to get hold of me…this conflict is a cultural conflict, they turn the British system against me – she is bringing them up to have disrespect for me.” When talking of the incidence of physical chastisement FY said “I regret nothing regarding the children – the only thing was I was an idiot to let her come back to London.” When asked if the anger management course had proved helpful he said that he had “never had an anger problem.” These comments of FY are illuminating and reveal the basis of his case, his approach to these proceedings and his attitude towards his ex-wife and children.

 

I suppose if you absolutely had to, on pain of death, describe one of your children as a character from Only Fools and Horses, that it would probably be better to go for the Del-Boy comparison than using Trigger, but that’s a small crumb of comfort.  In all other circumstances though, don’t compare your children to Only Fools and Horses characters.

 

After various attempts to get contact back up and running, the case came back to Court

 

  1. When the case came back to court there had been a breakdown in L’s relationship with his father. According to his mother’s written evidence (contained in her final statement dated 8th January 2016) FY had continued to contact the boys, particularly L outside of the times set down in the court order. He continued to make reference to, and discuss, these proceedings with the boys. He had also attempted (and sometimes succeeded) in engineering encounters with the boys, for example to contrive to see L pass by on the bus to or from school. In isolation this latter action on FY’s part would be innocuous but it was part of a pattern of behaviour designed to go behind court orders and to involve the children in flouting the orders of the court. FY had become angry with L when his son told him that he had to comply with the court timetable for telephone contact. In any event the order was a generous one for contact to take place every day.
  3. MY’ evidence was that it was sometime around the 16th of October 2015 that FY last spoke to L and told him to “listen…listen carefully”; and, whatever the content of the conversation his mother said both in her written and oral evidence that L ended up screaming at his father down the phone saying that his father was ruining his life. L had not spoken to his father since. Nor has his father spoken to him or even tried to; his father told me during the hearing in January 2016 that he was still waiting for an apology from L; he betrayed no sign of the hurt and confusion he must be causing his son and it was obvious that he not only considered himself to be in the right but that he also considered himself, a fully grown man, to be the wronged party at the hands of a distressed and unhappy young adolescent. From the evidence before me it was not possible to say exactly when this incident on the phone took place but it was certainly before the hearing on the 5th November 2015.

 

 

The father after the children met with Mr McGavin, the CAFCASS officer, tried to induce his son L to send him a text message that the father could produce in Court.  The Judge was singularly unimpressed.

 

  1. It was Mr McGavin’s evidence that the boys had a good relationship with him and could say what they wanted to him and I accept his evidence. He is a most experienced guardian and there is absolutely nothing in the way of evidence before me which could support FY’s case that Mr McGavin had told, or even suggested to, the boys what they might say about seeing their father. On the contrary he has assisted them to get their views across by encouraging them to tell him what they wanted the judge to know. The questions that he asked were open and when he told them of his recommendations there was never any suggestion that they were expected to go along with him. Both he and the Cafcass Legal lawyer were aware of the need for separate representation should it arise and had discussed it and kept it under review.
  3. After this interview K had spoken to FY who, again, had discussed the case and the contents of Mr McGavin’s report with him. FY told me he had sent K the Cafcass report. He was entirely unrepentant his discussions with K in his oral evidence, he accepted it was in breach of the court order and was clearly of the opinion that he had not only done the right thing but that in doing so he had undermined any case that K did, in fact want contact supervised. He encouraged and prevailed upon K to send an email to FY, so that he could produce it in court, it read, “Hi baba, I am writing to say that. Yes I want to see you and hang out with you like I used to, I want to travel to Jeddah, Dubai, Middle East. And I just want to travel anywhere in the world with you. I know you have anger issues. So I will try not to be rude to you so you don’t end up hitting us. Thank you”
  5. In my all my experience as both advocate and judge I find it hard to think of a more blatant example of attempted manipulation. The email, however, does not support FY’s case. The final two sentences are a reference to the previous physical abuse inflicted by FY on his son and to the unpredictability of FY’s temper, along with the fact that he places the responsibility for his abusive behaviour on the children, rather than with himself as their parent and the adult. It is a further example of FY’s controlling and manipulative behaviour. There can be little wonder that L used the word “manipulative” in his text to his father when he complained to him about his behaviour.
  7. Mr McGavin concluded in his final analysis and in his oral evidence that the end of the road had been reached. This was based on repeated attempts to re-establish contact each of which had failed because of FY’s lack of co-operation and engagement with the professionals involved. In the end he withdrew from the process altogether. Neither boy had said wanted to see their father in the present circumstances, but the guardian was sure that they would both want to see FY if they knew they would be physically safe and emotionally safe. Mr McGavin asked that in view of K’s special needs a ‘no contact’ order should be made until he was eighteen, although this would be unusual and exceptional. He felt that K had his own vulnerabilities and that he needed the reassurance of the court order both for his own sense of security and to enable him to stand up to his father until he reached his majority.

 

 

The Judge was invited by mother to make orders that father have no face to face contact with the children (there would be telephone contact and Skype contact). The Judge analysed the father’s case and presentation in this way:-

 

  1. FY’s written and oral evidence was characterised by his inability or unwillingness to begin to see, never mind accept, his own responsibility for the boys’ reactions or feelings about him and how his behaviour had affected them. As Mr Verdan QC, counsel for MY, said in his closing submissions there are many examples but that two of the most obvious and closest in time to the hearing are his refusal to ring L on his birthday and his determination not to ring him unless L rings first to apologise, and, FY’s discussion with K about the proceedings on the eve of the hearing. Not only did he discuss the case he sent K the guardian’s report in order to use it in an attempt to undermine the guardian’s recommendations by pressurising K into to sending him an email confirming “his wishes” as his father wanted them to be presented. It was more than apparent from FY’s oral evidence that he is unwilling or unable to understand any of his children’s emotional needs and does not accept that he has caused them distress, upset or harm, despite the evidence before the court of their obvious distress. His own ability to take umbrage at the behaviour of his young teenaged son when L became angry with his father for the pressure he was putting on him speaks volumes for FY’s need to put his own feelings and amour-propre before the needs of his child, therefore, to suggest that he can safely have contact with M alone is nothing more than a further manifestation of this wilful or inherent deficiency in his parenting.
  3. I accept the submission on behalf of MY that it is nonsensical for him to assert that ‘he had no bad feelings for MY’ and wanted to speak to her in a constructive way. His actions and word to the court, in correspondence and, most seriously, to their sons over the last two years is evidence which is in stark contrast to his assertions. It was apparent from his oral evidence that FY is little short of obsessed about the maternal grandfather’s alleged role in these proceedings. I have found before, and there is no evidence to change my findings, that MY is an independent, sophisticated and intelligent woman who was not in 2013, and is not now in 2016, being controlled by her father in respect of these proceeding or, indeed, any other aspect of her life.
  5. In his oral evidence FY obfuscated, avoided answering questions and dissembled; at times he displayed an almost complete inability directly to answer a question put to him and would use the witness box to air his own feelings of hurt, despair and, at times, apparent bewilderment. Mr Hames’ submission that FY’s answers were a catalogue of grievances against the mother, her father, the professionals and even the children (as when he blamed L for not apologising to him) has some force. He claimed that he hadn’t seen or read critical documents or failed to recall important details about events or conversations put to him. He had no explanation of why he used phrases such as “so ashamed to have sons like you” to L and it was extraordinary that he claimed never to have read the L’s essay (set out above) before giving evidence. Where his evidence conflicts with other witnesses I must and I do reject it.
  7. Both MY and FY are dual-nationals; well-educated and cosmopolitan members of wealthy families who live an international life-style and to suggest anything else is dissonant with their own oral evidence and is not congruent with the totality of the evidence before this court.

 

 

 

  1. It is my conclusion that it is both in the children’s best interests and proportionate for there to be an order for there to be no direct (face-face) contact between the children and their father. There have been repeated incidents of violence directed against the boys and the need for them to be physically safe is no small matter to be weighed in the balance. When he was no longer able to punish them physically FY’s response was to make L’s upset and distress when directed at his father was to make his life as miserable as he possibly could by withdrawing any semblance of support, understanding or affection. Having regard to this behaviour and because of his special needs, for K’s protection and his need for certainty, the no contact order for him is extended in the exceptional circumstances of this case to his 18th birthday. All three children need to be given an opportunity to develop emotionally free from manipulation by their father and free from the oppressive and damaging effects of a background of continued litigation and conflict.
  3. I have, quite deliberately, used parenthesis in the term “indirect” contact and as a matter of fact and logic, as Dr Asen would agree Face-Time or Skype is direct face to face contact and the same risks apply in respect of emotional harm with the corresponding need for supervision. With that in mind I will order that contact is limited to telephone contact as recommended by Dr Asen; one hour, 15 minutes for each boy and 15 minutes at the end. I will hear the parties about frequency.
  5. The children need time out, time to recover and to grow. The changes which the father needs to make before reintroduction of contact will take at least 12 months on the best prediction and while Dr Asen plainly considers that the father may not be capable of making the required changes it is to be hoped that he does.

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A sham of a mockery of a travesty of two mockeries of a sham (diplomatic immunity)

Posted on March 23, 2016 by suesspiciousminds

 

I always love a diplomatic immunity case.

This is the Court of Appeal’s decision in Al-Juffari v Estrada 2016

Click to access approved_judgment_rhd_estrada_v_juffali.pdf

 

and is the one that sent our much-beloved (Subs, check this please) Foreign Secretary off crying to the Guardian and other places because we can’t have our naughty English Courts inconveniencing Saudi billionaires or where will it end?

http://www.theguardian.com/law/2016/mar/22/hammond-criticises-judge-for-stripping-diplomatic-immunity-from-saudi-billionaire

Anyway, this relates to the claim by the Wife for a divorce in this country, and for a financial settlement. As the one detail that leapt out at me was the value of the former matrimonial home being about £100 million, one can see why.

Mr Al-Juffari claimed that the Court had no jurisdiction, because he was appointed by Saudi Arabia as the Permanent Representative of St Lucia.

At first instance, Hayden J made two decisions – first that in looking at this diplomatic immunity, the facts were that Mr Al-Juffari had not actually ever carried out any functions AT ALL in this role and this it was an

 

“artificial construct” designed to defeat the jurisdiction of the court;

This seems on the facts, quite reasonable to me. If you’re relying on a job to be your get out of jail card, at least have the decency to actually be doing that job. Otherwise it’s like playing Monopoly with someone who has at their immediate beck and call a printing firm to produce facsimile Get out of Jail cards as and when required.

[As a little tip, just don’t play Monopoly with Saudi billionaires – they are in a position to buy up Waddingtons*, and demand an immediate rule change in their favour be hand-delivered to every owner of a Monopoly set if they are losing.   * Now Hasbro. Grrr. On the plus side, the Dubai version of Monopoly has some truly amazing hotels. ]

 

Having referred to a number of cases in which the compatibility of the grant of immunity from jurisdiction with Article 6 of the European Convention of Human Rights (“the ECHR”) has been considered, the judge concluded at para 34:

“The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the ‘functionality’ or ‘effectiveness’ of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If ‘functionality’ is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ’s terms, the diplomat is not ‘en poste’, there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction cannot be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W’s right of access to a court.”

21.

The reference to Diplock LJ was to Empson v Smith [1966] 1 QB 426 at p 429C. At para 35(vi) of his judgment, the judge found that since his appointment, “H has not undertaken any duties of any kind in the pursuit of functions of office”. He said that W had provided persuasive evidence that H’s health was such that he was not in a position at present to fulfil any ambassadorial duties. At para 36, he said:

“H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic precision required to support such a conclusion.”

22.

At para 40, he said that he was “not prepared to accede to H’s request to strike out W’s Part III claim on his spurious assertion of diplomatic immunity, as I find it to be.”

 

However, the Court of Appeal had to disagree  (not that it was an artificial construct, but that the English Court had jurisdiction to inspect what was going on, rather than just taking the word of the Foreign Office that a person has diplomatic immunity)

 

Section 8 of the 1968 Act provides that, if a question arises in any proceedings before the English courts as to whether a person is entitled to any privilege or immunity, a certificate issued under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. I have set out at para 18 above the facts the truth of which is conclusively proved by the certificate in the present case. If the immunity of a Permanent Representative or diplomatic agent depends on establishing whether he has in fact performed the relevant diplomatic functions, then the certificate issued in this case is of little value. It does not purport to say anything about the functions performed by H. That is not surprising. The policy reasons justifying the conclusiveness of FCO certificates has been discussed most frequently in the context of issues relating to State immunity. For example, in The Arantzazu Mendi [1939] AC 256, Lord Atkin said:

“Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.”

 

 

As the FCP had provided a certificate saying that Mr Al-Juffari had immunity, that was the end of it.

 

The second question that Hayden J had to decide was whether Mr Al-Juffari was permanently resident in England. Why is that important? Well, because the  Specialised Agencies Convention and the Headquarters Agreement which governs what rights, privileges and immunities a person who is a Permanent Representative has says this:-

 

“(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention].

and

(2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

but

(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions. “

So if Mr Al-Juffari was permanently resident in the United Kingdom, he would only be immune for actions undertaken as part of his official functions (and as we’ve already established, he hasn’t done any. He certainly didn’t marry his wife as part of those functions)

On the facts, it seemed to me rather dubious that he was permanently resident in the United Kingdom

H was born in the Lebanon in 1955. He is a Saudi national and domiciled in Saudi Arabia. He is a member of a large Saudi family of immeasurable wealth. The family has, throughout his life, had a close connection with the UK. In particular, a substantial property, Bishopsgate House, near Windsor Great Park was bought many years ago by H’s father as a family estate for use in summer holidays. The family also had a flat in London. For a time H attended Oxford University before going on to university in the US.

71.

For many years H has had a visa which enables him to spend 180 days in the UK each year without compromising his non-resident tax status. In common with men of his wealth and background, he crosses and re-crosses the world, largely by private jet, staying in properties in various countries owned by, or on his behalf, through elaborate financial structures. The figures produced by Mr Alammari show the division of H’s time over recent years to have been largely spent between Saudi Arabia, Switzerland and the UK; the majority of his time over the period being spent in Switzerland closely followed by Saudi Arabia.

Can one really be permanently resident in a country where the visa only allows you to spend 180 days there? Note also the lack of time in St Lucia…

However,

H has been married three times. His first marriage in 1980, was to Basma Sulaiman, a Saudi national. There were three children by that marriage, M, D & H; each of whom (in common with all H’s children) were born at the Portland Hospital in London. It is common ground that at least the eldest of those children has a British passport.

73. Critical to his ultimate finding that H was permanently resident in the UK, the judge found in relation to this marriage (as with each of his marriages) that ‘the family home was based in the UK’ and that the children were educated in England and speak English.

 

In his overall analysis, Hayden J reached this conclusion that the choice of Mr Al-Juffari as to where to raise his children was a magnetic factor, and thus he concluded that Mr Al-Juffari was permanently resident in England.  (I think he’s about as permanently resident in England as Sean Connery is permanently resident in Scotland, but the Court of Appeal say otherwise)

 

“65. In my survey of the background of H’s life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer’s team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK.

66. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is ‘unlimited in period’, to adopt Langton J’s phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H’s intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H’s appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the ‘but for’ test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence.

And thus, Mr Al-Jaffari does not get to hide behind diplomatic immunity to defeat his wife’s divorce claim. He won on the first point (where I think the facts were completely behind Hayden J but the law wasn’t) but lost on the second point (where I think the facts were pretty iffy but the law backed Hayden J up)

For the reasons that I have given, I consider that the judge was wrong to hold that H is not entitled in principle to immunity from W’s claim. But the judge was entitled to conclude on the facts that H is not entitled to immunity because he is permanently resident in the UK and the claim does not relate to any official acts performed by H in the exercise of his functions. I would dismiss the appeal. It is, therefore, unnecessary to consider the issues raised by the Respondent’s Notice.

 

The right outcome, although by a peculiar route. Having said that, I’m SURE Mr Al-Jaffari will appeal to the Supreme Court. The legal costs are miniscule compared to the sums that are being litigated here.

 

 

 

 

 

 

Comments Off on A sham of a mockery of a travesty of two mockeries of a sham (diplomatic immunity)

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High Court gets into the groove

Posted on March 21, 2016 by suesspiciousminds

 

They had style, they had grace

Lots of lawyers in this case

Setright, Verdan, Renton too

Adam Wolanski, we love you

Ladies with an attitude

Fellows that were in the mood

Don’t just stand there, let’s get to it

Write a skeleton, there’s nothing to it

Hague

 

 

The laboured opening may tell you that this piece is about the High Court case in Ciccone v Ritchie (No 2) 2016 involving the singer Madonna, and the film-maker Guy Ritchie, and their son.  [And no, it is not a request for a section 37 report arising from the Judge having had to view the film Castaway that they made together, though that did cause Significant Harm to anyone who saw it]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/616.html

 

I’m going to start with how the Judge ended, because I think it is powerful and moving stuff, with much wider application than just these two celebrities.

  1. Finally, I would say this. For all the interesting legal argument and great learning that is apparent from the admirable skeleton arguments and submissions of leading and junior counsel, at the root of these proceedings (and, I venture to add, the proceedings in the United States) is a temporary breakdown in trust. For all the media coverage, comment and analysis, this is a case born out of circumstances that arise for countless separated parents the world over.
  3. The court should always be the option of very last resort when parents cannot agree matters in respect of their children. Whilst the law provides a mechanism for the resolution of disputes between parents in respect of their children it is but a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved, accepting that this latter path can be a hard one on which to embark, and to sustain, in the context of relationship breakdown. It is for this reason that during the course of the proceedings on each side of the Atlantic Judge Kaplan and myself have repeatedly urged the parties to adopt a consensual approach to resolving the matters of dispute between them for the benefit of Rocco.
  5. Within this context I renew, one final time, my plea for the parents to seek, and to find an amicable resolution to the dispute between them. Because agreement is not possible today does not mean that agreement will not be possible tomorrow. Most importantly, as I observed during the course of the hearing, summer does not last forever. The boy very quickly becomes the man. It would be a very great tragedy for Rocco if any more of the precious and fast receding days of his childhood were to be taken up by this dispute. Far better for each of his parents to spend that time enjoying, in turn, the company of the mature, articulate and reflective young man who is their son and who is a very great credit to them both.

 

In terms of points of law, there are some worthwhile passages about transparency – this Court case has attracted a lot of media attention in America, because there are ongoing proceedings in New York (where it seems the Press were allowed to come into the hearings, report what was said and even print a still photograph)  – should this judgment be published at all, should there be anonymisation – how exactly CAN you anonymise a case where there is already so much within the public domain, and where anyone with half a brain can identify who the parties are, even if you gave them just “M” and “F” initials?

I do like that the key American decision on transparency in these circumstances is actually called Anonymous v Anonymous

 

Publication of Judgment

  1. I set out the principles applicable when deciding whether or not to publish a judgment pursuant to the President’s Guidance in my judgment in H v A (No 2) [2015] EWHC 2630 (Fam) and I shall not repeat them in detail here. In summary:
  1. i) The public generally have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their jurisdiction.

ii) Paragraph 19 of the Practice Guidance makes clear that in considering whether to publish a judgment the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, Art 8 (respect for private and family life) and Art 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.

iii) The exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons;

iv) When conducting a balancing exercise between Art 8 and Art 10, the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]. In applying what Lord Steyn described as the “ultimate balancing test” of proportionality it is important that the court consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve;

v) Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations;

vi) In undertaking the requisite balancing exercises, the impact of publication on the children must be weighed by the court. Whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In particular, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child.

vii) When the court is considering whether to depart from the principle of open justice it will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation although there comes a point where evidence is not merely speculative but pure speculation.

  1. With respect to the latter point, and noting the difference in emphasis between the two jurisdictions, in reaching her decision that there were no compelling reasons to close the proceedings in New York Judge Kaplan cited the following passage from the decision of the Appellate Division of the Supreme Court of New York, First Department in Anonymous v Anonymous 158 A.D.2d 296 (1990) as follows:
    1. “The unsupported speculation by her counsel as to the deleterious effect the media coverage might have on the child is simply inadequate to overcome the strong presumption that court proceedings be open to the public.”

 

Publication of Judgments

  1. Balancing the competing Art 8 and Art 10 rights, I am satisfied that my judgment of 3 February 2016 following the hearing on 21 December 2015 and this judgment should be published. I am further satisfied that, in the exceptional circumstances of this case and subject to some limited redaction, the judgments should be published without anonymisation. The reporting restrictions in this case will continue to be governed by the order that I have already made and will apply to the reporting of my published judgments. My reasons for so deciding are as follows.
  3. The starting point in this case must be that it will simply not be possible for the court to produce an anonymised version of the judgments such as to eradicate the risk of jigsaw identification. Given the high level of publicity the world over in respect of this case, to produce a judgment that gives rise to no risk of jigsaw identification would result in a judgment that could not even indicate the dates on which the proceedings were heard. Within this context, and in the very particular circumstances of this case, I accept Mr. Wolanksi’s submission that in light of the level of information already in the public domain concerning this case, it is unrealistic to think that the judgments given by this court could be anonymised to the extent required to ensure the parties were not identified whilst at the same time remaining a means by which what the court has done in this case can be understood by the public at large.
  5. In these circumstances, I am satisfied that the choice for the court is to publish the judgments without anonymisation or not to publish them at all.

 

The key legal issue was whether a party who makes an application under the 1980 Hague Convention then needs leave of the Court to withdraw it.

The Court ruled that there does need to be an application to withdraw and for the Court to grant leave.

 

The Law

Permission to Withdraw

  1. FPR 2010 r 29.4 provides as follows in respect of permission to withdraw an application:
    1. 29.4 Withdrawal of applications in proceedings

(1)     This rule applies to applications in proceedings –

(a) under Part 7;

(b)     under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child or;

(c)  where either of the parties is a protected party.

(2) Where this rule applies, an application may only be withdrawn with the permission of the court.

(3) Subject to paragraph (4), a person seeking permission to withdraw an application must file a written request for permission setting out the reasons for the request.

(4) The request under paragraph (3) may be made orally to the court if the parties are present.

(5) A court officer will notify the other parties of a written request.

(6) The court may deal with a written request under paragraph (3) without a hearing if the other parties, and any other persons directed by the court, have had an opportunity to make written representations to the court about the request.

  1. The question to which this case gives rise is whether FPR 2010 r 29.4 applies to applications in proceedings under the 1980 Hague Convention and, if so, what the test is for giving permission to withdraw in such cases.
  3. As set out above, there is no authority precisely on this point. In respect of proceedings under the 1980 Convention some authorities appear to have proceeded on the basis that permission to withdraw is not required (see AA v TT (Recognition and Enforcement) [2015] 2 FLR 1) and some on the basis that it is required (see Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2008] 2 FLR 351 at [16] setting out the terms of an order made earlier in those proceedings and the recent decision of the President in Re D (Children)(Child Abduction Practice) [2016] EWHC 504 (Fam)). In none of those cases however, was the court requested to consider whether the permission of the court to withdraw was mandated by r 29.4 in this context.
  5. Anecdotally, my (admittedly limited) experience suggests that many practitioners do consider that the permission of the court is required to withdraw applications in proceedings under the 1980 Hague Convention and I have certainly endorsed a number of orders which provide for such permission in cases where an applicant has decided, for whatever reason, not to proceed.
  7. The remaining authorities on permission to withdraw concentrate exclusively on public law proceedings under Part IV of the Children Act 1989 (see Re N (Leave to Withdraw Proceedings) [2000] 1 FLR 134, WSCC v M, F, W, X, Y and Z [2011] 1 FLR 188 and Redbridge LBC v B and C and A (Through his Children’s Guardian) [2011] 2 FLR 117). These authorities make clear that in public law children proceedings, where the threshold is capable of being crossed the test for whether permission should be given for care proceedings to be withdrawn is the welfare of the child.
  9. However, care must be taken in relying on these authorities in the context of the question at issue before this court. First, those authorities were decided under the Family Proceedings Rules 1991 r 4.5 which, as detailed below, differs substantially from FPR 2010 r 29.4. Second, and importantly, the conclusions in those authorities that the question of whether care proceedings should be withdrawn is a question which concerns the welfare or upbringing of a child, and that the test for whether permission should be given is the welfare of the child, are grounded firmly in the fact that the upbringing of the child is the main question falling for determination in such proceedings (see London Borough of Southwark v B [1993] 2 FLR 559 at 572).
  11. It is important to note that the procedural requirement of permission for the withdrawal of proceedings is not limited to cases involving children, either in FPR 2010 r 29.4 or more widely. FPR 2010 r 29.4(1)(a) applies r 29.4 to applications in proceedings under Part 7 of the FPR 2010, namely applications in matrimonial and civil partnership proceedings, and is not qualified as only applying where the application concerns the welfare or upbringing of a child. Accordingly, pursuant to FPR 2010 r 29.4(1)(a) permission is required to withdraw an application for a marriage or civil partnership order governed by FPR 2010 Part 7 notwithstanding the proceedings do not concern the welfare or upbringing of a child. There are also other areas of law where permission is required to withdraw an application in proceedings. For example, under the Insolvency Act 1986 s 266(2) a bankruptcy petition may not be withdrawn without the leave of the court.
  13. Finally, and within this context, when considering both the scope of the application of FPR 2010 r 29.4 and the test for permission under it, it is very important to read FPR 2010 r 29.4 in its proper context. That context includes the fact that the FPR 2010 represents a new procedural code with “the overriding objective of enabling the court to deal with the case justly, having regard to any welfare issues involved” (FPR 2010 r 1.1). The court must give effect to the overriding objective when it exercises any power under the FPR 2010 (FPR 2010 r 1.2(a)) and has a duty to further the overriding objective by actively managing the case (FPR 2010 r 1.4(1)). Pursuant to FPR 2010 r 1.2(b) the court must also seek to give effect to the overriding objective when it interprets any rule.

 

  1. I have come to the conclusion that FPR 2010 r 29.4 does apply to applications in proceedings under the 1980 Hague Convention, governed as they are by FPR 2010 Part 12 Chapter 6 and that, accordingly, the permission of the court is required to withdraw such proceedings. My reasons for so deciding are as follows.
  3. In my judgment this is the plain meaning of FPR 29.4(1)(b). FPR 2010 r 29.4(1)(b) provides that r 29.4 applies to applications in proceedings “under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child“. I am satisfied that r 29.4(1)(b) is to be read disjunctively and that the words “where the application relates to the welfare or upbringing of a child” are intended to qualify only the words “any other Part” and not the words “under Parts 10 to 14“. I am reinforced in this view by the fact that Part 10 to Part 14 of the FPR 2010 deal with a wide range of applications that do not, or need not concern the welfare or upbringing of a child.
  5. Whilst it might be argued that the use of the phrase “any other” in r 29.4(1)(b) demonstrates that Parts 10 to 14 are included in r 29.4 only in so far as they apply to applications concerning the welfare or upbringing of children, if this had been the intention I am satisfied that those who drafted the rules would have said so expressly, rather than leaving it to be implied in circumstances where, as I have said, those Parts also deal with applications that need not, and often will not, concern the welfare and upbringing of children. Further, pursuant to FPR 2010 r 1.2(b) when interpreting r 29.4 I must seek to give effect to the overriding objective in FPR 2010 r 1.1. In my judgment reading r 29.4 in this context further militates against this latter interpretation.
  7. FPR 2010 r 29.4 represents a broadening of the type of applications in respect of which permission is required to withdraw when compared with the Family Proceedings Rules 1991. The previous rules, in the form of Part IV of the FPR 1991, made provision for permission to withdraw proceedings only in relation to proceedings under the Children Act 1989 (FPR 1991 r 4.5). For example, although FPR 1991 r 2.8 permitted the discontinuance of a petition for divorce, judicial separation or nullity before service of that petition, the rules made no provision for the proceedings to be withdrawn following service. By contrast, whilst pursuant to FPR 2010 r 7.9 an application for a matrimonial or civil partnership order may be withdrawn at any time before it has been served by giving notice to the court in writing (reflecting the provisions in FPR 1991 r 2.8), pursuant to FPR 2010 r 29.4(1)(a) following service the permission of the court is required before such an application can be withdrawn. Neither FPR 2010 r 29.4(1)(a) or FPR r 29.4(1)(b), which deals with applications in proceedings where either of the parties is a protected party, are not qualified as only applying where the application concerns the welfare or upbringing of a child.
  9. Within the foregoing context, in my judgment interpreting r 29.4 as including within its scope all of the applications governed by Part 10 to Part 14 of the FPR 2010, as opposed simply to those concerned with the welfare or upbringing of a child, is consistent with the overall aim of the FPR 2010 generally and in particular the aim of FPR 2010 Part 1, which requires the court to actively manage the case so as to further the overriding objective of dealing with it justly, having regard to any welfare issues involved.

 

The Judge recognised and acknowledged that where a party seeks permission to withdraw an application under the Hague Convention, it is next to impossible to conceive of a scenario where the Court would refuse and make them press on.

It would not serve the ends of justice to compel a party to pursue an application under the 1980 Hague Convention that they wish to bring to an end. Indeed, whilst not ruling out such a course of action entirely, it is very difficult indeed to think of a circumstance where the court would compel an applicant in proceedings under the 1980 Hague Convention to pursue an application they have indicated they wish to withdraw. Further, having regard to the overriding objective, there are positive merits in this case to permitting the mother to withdraw her application in this jurisdiction. As I observed during the course of the hearing, at present the existence of parallel proceedings in two jurisdictions, before two judges with two sets of lawyers is introducing unnecessary and unhelpful complexity and hindering attempts at settlement, as well as incurring considerable expense. Accordingly, I give permission for the mother to withdraw her proceedings under the 1980 Hague Convention.

 

Finally, just for style points, I have to give a nod to Mr David Williams QC for this turn of phrase

The mother accepts that the Supreme Court of the State of New York has jurisdiction in this matter. The father made clear during the course of this hearing through Mr. Verdan that he, likewise, accepts that the New York Court has jurisdiction, albeit at the outset of the hearing Mr. Verdan submitted that this court should make certain substantive welfare orders in respect of Rocco. Whilst in his Skeleton Argument Mr. Setright undertook an analysis of the jurisdictional position in this case (including an analysis of habitual residence) and submits that this court should, upon the withdrawal of these proceedings, give certain procedural directions aimed at any future applications made in this jurisdiction, he does not suggest at this time that Rocco disputes the jurisdiction of the court in New York. Within this context, and with respect in particular to orders originally sought by the father, Mr. Williams submitted that it would be wrong for the English court to seek to “park its tanks” (to use his phrase) on the front lawn of the United States by taking any steps beyond those necessary to effect the withdrawal of the proceedings under the 1980 Hague Convention.

 

 

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Adoption and parents who had been people trafficked

Posted on February 17, 2016 by suesspiciousminds

 

This is the hottest of hot potatoes that can be thrown at a Judge at the moment.  (And for me, in writing about it, because it involves Brussels II  and Slovakia, which always irks my commentator Andrew when I say “Slovakian” at any point rather than Slovak or the Slovak Republic.  For this particular occasion, any use of Slovakian is taken entirely from the judgment itself, and is not my own creation)

 

Re N and P Children 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/4.html

The children concerned had been born in England. At the time of the decision, one was just over two and the other just over one.

The mother was Hungarian, but had been raised “on the street in Slovakia as part of a homeless family.”

“The father, who is 36 years old, is Slovakian but also speaks Hungarian”

It is alleged that the parents were the victims of people trafficking. The mother’s account is that on arrival at Dover they escaped from the traffickers and travelled across England, staying at various locations, but ending up in Bournemouth.

 

Care proceedings were taken as a result of domestic violence / disturbance incidents.  in early 2015, the parents were evicted from their accommodation and subsequently returned to Slovakia and have had no further contact since that date. Their present whereabouts are unknown although it is understood that the mother has given birth to another child.

The parents did not play any further part in the proceedings, and their whereabouts is unknown.

 

 

  • On 19th January 2015, HH Judge Bond made a further case management order directing the local authority to write to the Slovakian Embassy to inform them of the proceedings and invite a representative to the following hearing and further directed the local authority to liaise with the Embassy to ensure that any independent social worker instructed to undertake an assessment of the grandmother in Slovakia received appropriate clearance. In a series of emails, the local authority was informed that the Slovakian authorities would not support an English independent social worker undertaking the assessment and instead offered the services of the relevant local authority in Slovakia to prepare a report. At the next hearing on 11th February, which so far as I am aware was not attended by a representative of the Slovakian Embassy, the court gave directions facilitating the assessment of the grandmother by the Slovakian authorities. The assessment was duly arranged by the Central Office of Labour Social Affairs and Family and carried by social workers in the branch of that office local to the area where the grandmother lives.
  • In March 2015, the Central Office indicated that the paternal grandmother was willing to care for the children, but the final assessment by those authorities revealed that there had been serious concerns about the grandmother’s care of her own children, including allegations of neglect, and the unexplained death of a baby some years earlier. The condition of the grandmother’s home was also described as unsuitable. The assessment concluded that the grandmother was an irresponsible person who had neglected her obligations to care for her own children and recommended that neither N nor P should be placed in her care.

 

That was then leaving the Court with two options – to make Care Orders and Placement Orders, with a plan of adoption – or to transfer the case to “the Slovakian authorities ” as per their request.

 

Those authorities had set out what they would do with the children if they were returned.

 

 

  • The recent letter from Ms Marcinova has clarified the plans of the Slovakian Authorities for the care of the children, if they are sent to that country. Ms Marcinova stated that “the facility for enforcement of court decisions is a children’s home” which “temporarily replaces a child’s natural family environment or a substitute family environment.” She explained that children’s homes provided care by means of two types of organisational arrangements, namely autonomous groups or professional families. An autonomous group, in which care is provided to a pre-determined number of children, is set up in a separate family house or in a separate section of the children’s home. Professional families are also organisational units of children’s homes. A professional parent is an employee of a children’s home; he or she takes care of 1 to 3 children in a family house or flat provided by the children’s home, or in a property owned by the professional parent. The professional parent has all the powers and responsibilities normally vested in birth parent, although no legal relationship is created between the professional parent and the child. Ms Marcinova stressed that the care provided by a professional family is not the same as substitute family care, but it did provide an opportunity for the provision of individual care to a child placed in institutional care by decision of a court.
  • Ms Marcinova confirmed that the placement of a child institutional care, whether it be in an autonomous group or in a professional family, was regarded as a temporary solution, the aim being to return the child to its original family as soon as possible provided the family was able to resume care. In the alternative, if this was not possible, the child would be placed in a substitute family – foster care or adoption.
  • Upon arriving at the children’s home, a child may first be placed in an autonomous group where they can meet and interact with the professional parent identified as a potential carer. An assessment process is carried out, which may include psychological assessment and counselling. Once the child has been placed with the professional family, there are regular checks and assessments, and the children’s home and other agencies co-operate with the biological family in drawing up a joint plan of social work with the aim of facilitating the child’s return to the natural family
  • Ms Marcinova stated that a secure placement at the children’s home at Renetske Hamre is available for N and P. They could be placed together with a professional parent, in a flat with above-average modern furnishings and equipment, situated in the centre of the town with good access to all relevant facilities. The professional parent identified is Slovak. Ms Marcinova advised that she does not speak English but would be able to communicate with the aid of a dictionary. If necessary, the children could be helped by an interpreter during the adjustment phase. After placement, the authorities would cooperate in providing support to and mobilising the biological family with the aim of securing substitute care for the children within the family. A decision to place the children within the family would be a matter for a court.

 

The Court therefore had to decide whether the proceedings should be transferred under Brussels II, where that would be the plan, or kept in England, where the only concievable plan was adoption.

 

  • In analysing the options, the welfare of the children is my paramount consideration and I must assess the relative merits of the options by reference to the statutory welfare checklist.
  • The advantage of moving the children to Slovakia would be that it would provide an opportunity of either being placed with members of their birth family or having greater contact with the family. It would also provide them with the best opportunity of growing up with an understanding and experience of their culture of origin. Cultural needs are important, but in my judgment in this case they are manifestly outweighed by the children’s emotional needs for stability and security. At present, their needs – physical and emotional – are being met very successfully by their current carers with whom they have formed a close attachment. Given the disruption they endured in the first months of their lives, when they were neglected and ill-treated by their parents, their future security and stability are vital. A move to Slovakia would cause a sudden interruption to their lives, however sensitive and skilful the professional parent to whose care they were entrusted. Such a move would inevitably cause great distress and, I am satisfied, a high degree of emotional harm to two children who have already suffered significantly in this regard.
  • In short, in terms of the statutory welfare checklist, I conclude that in this case the physical and emotional needs of the children, the capacity of their current carers to meet those needs, the adverse consequences of a change in their circumstances, and the very strong probability of harm they would suffer if moved to Slovakia, all outweigh their needs for maintaining a relationship with their birth family and the opportunity to grow up within their culture of origin. In any event, I am satisfied that their need to acquire and maintain an understanding of their culture will to a very substantial extent be met by their current carers, who have been selected carefully for this very purpose.
  • The disadvantages of a placement in Slovakia in this case are in fact so great that I do not regard it as a realistic option. To my mind, the only realistic option is that they remain in their current placement. The realistic options are therefore long-term foster care or adoption. Having regard to the factors already identified and all relevant matters in the statutory welfare checklists, in particular their need for stability and security, the balance plainly comes down in favour of adoption. I take account of the likely effect on the children (throughout their lives) of ceasing to be members of their birth family. In my judgment, any disadvantages are outweighed by the emotional security they will acquire as adopted persons.
  • I therefore accept the clear recommendation of the local authority and guardian. I repeat my expression of gratitude to the Slovakian authorities, and in particular Ms Marcinova, for their careful and thorough response. Given the particular needs and circumstances of these children, and the length of time since they were removed from their family, I do not consider that placing them in temporary care of a professional parent in Slovakia, with the prospect of a further move in due course, to be a realistic option. Although long-term foster care in this country would in theory enable the children to maintain relations with their birth family, the reality is that these children have been abandoned by their parents and such links as exist with the birth family are extremely tenuous. The children are currently in an excellent placement where they have thrived and are being well cared for. Their carers have links with eastern Europe, in particular Slovakia and Hungary and are well qualified to maintain and nurture the children’s sense of identity.
  • It is manifestly clear that this is a case where only an adoption order will fully meet the needs of these children. I therefore approve the local authority care plan and make a care order in respect of both children. I conclude that the children’s welfare requires them to be placed for adoption, and for that reason dispense with the parents consent to such a placement and make a placement order in respect of both children.

 

[What doesn’t occur in this case, which could have occurred, is the Hungarian authorities putting in their own claim for the children. The children were born in England and have lived here for their entire yet short lives. The mother was born in Hungary. The father was born in the Slovak Republic. The English Courts have had a hell of a job trying to decide between two competing jurisdictions. We are surely going to get a case soon which involves three competing jurisdictions. Or four.  What are we going to do with the first children who live in England, but were born in Ghana, and have a Lithuanian mother and a Peruvian father?]

Cases like this tend to be fact specific – the balance might well have tipped if the parents whereabouts were known, and they or the extended family might have continued to have contact. As it stood, the Judge was balancing cultural issues against the benefits of permanence, and decided that in this case, permanance prevailed (though in this specific case the children were fortunate enough to have carers who could meet the cultural needs). Different facts could result in a very different outcome.

 

 

 

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More money than cents

Posted on December 23, 2015 by suesspiciousminds

 

In this case, which involved an application by a mother to take the children to America to live, the Court of Appeal noted that the parents had, to date, spent £850,000 on Court litigation about their children.

This family appeal strongly demonstrates the damage that is caused when separated parents fail to take the opportunity to resolve their differences. Instead of finding its own solutions, this family, which has every other advantage, has engaged in two years of litigation that has caused great unhappiness, not least to two teenage children. The dispute has been about money and about child arrangements. Aside from the emotional cost and general waste of life, the financial cost has been staggering. The parents have so far expended £850,000 on legal costs and even now their overall litigation is not at an end. The scale of the costs is particularly incongruous when the parents each claim that there was not enough money to go around before the costs were spent. The proceedings are yet another example of why the Family Court repeatedly attempts to divert parties into mediated solutions that allow them to keep control of their own affairs. The court is there to resolve disagreements that cannot be resolved in any other way but, as has been said before, it is not a third parent.

 

By way of comparison, to have educated both of the children at Eton would have still left enough money to buy each of them an Aston Martin DB9.  I know lawyers are awesome, but I do think that probably a private school education and a DB9 would have done the children more good.   [The money could even have bought a small cupboard in central London as a first step on the property ladder…]

 

To put it into more context, £850,000 is the figure that the Press have been aghast that Liam Gallagher and Nicole Appleton have spent on their divorce lawyers – and those are two considerably wealthy individuals arguing about a considerable amount of money.

 

Re C (Older Children:Relocation) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1298.html

 

The Court of Appeal also made some observations about the sliding and diminishing scale of the Court’s willingness to make orders about older children and ability to make orders that are effective.

 

A further and central element of the situation is that the children of this family are in fact young persons, being boys now aged 17 and 15. The case illustrates the particular caution that should be felt by any court seeking to make arrangements for children of this age. In the first place, it is likely to be inappropriate and even futile to make orders that conflict with the wishes of an older child. As was memorably said in Hewer v Bryant [1970] 1 QB 357 in a passage approved in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112: “… the legal right of a parent to the custody of a child ends at the eighteenth birthday and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.” Nowadays, the ‘no order’ principle goes even further and requires the court to justify making any order at all, regardless of whether it is in support of the child’s wishes or in opposition to them. With an older child, the court’s grasp cannot exceed its reach, any more than a parent’s can, and attempts to regulate something that is beyond effective regulation can only create a forum for disagreement and distract the family from solving its own problems.

 

As the Court had made orders about the two children previously, technically mother did need leave of the Court to remove the children from the jurisdiction. The Court of Appeal ruled that the older child ought no longer, at 17 to be subject to Court restrictions and orders, and thus there was no need for leave of the Court. If he wanted to move to America with mother, then he could move, and if he did not, he would not have to. In relation to the 15 year old, the mother’s appeal was refused, so he could not go to America with mother, but that all orders in relation to him would end when he was 16, so he could go then if he wished to.

 

  1. Our conclusion is that the general approach taken by this very experienced recorder was one that he was fully entitled to take. To the extent that the appeal is allowed in E’s case and, to a limited extent, in J’s, it is on a basis that was not argued below, namely in consequence of the ‘no order’ principle the court should not have been making or continuing orders about young persons over 16 other than in exceptional circumstances.
  2. As stated at the end of the hearing, the outcome allows the parents and E to discuss the arrangements for his future between them. It is a clear indication that this court does not consider it appropriate for it to contribute to that discussion in any way at all.
  3. In J’s case, the outcome of the appeal is that the mother may not take him to New York. That does not prevent the parents from discussing and reaching agreement about the future arrangements for his residence and schooling, but if they cannot do so the arrangements under the existing order will continue and the terms of s.13 Children Act 1989 will remain in effect.
  4. However, we shall direct that the existing order will cease to have effect in J’s case when he reaches the age of 16. This is a variation of the arrangements that was not the subject of appeal but it is in conformity with our decision in E’s case.

 

 

The proceedings have taken a heavy toll on the children, who emerge with great credit. It must be hard for them to live amidst such conflict. The parents must now bring an end to a situation where their children are being asked to make up for their own inability to communicate effectively. The hearing of this appeal took place on the second last day of the school Christmas term, meaning that the boys did not until that moment know whether or not they would be saying goodbye to their school and their friends. They deserve better, and it is to be hoped that the end of these proceedings and the imminent resolution of the financial case will bring some respite, or even something more enduring.

 

 

The Children Act 1989 s9, as amended in 2014, sets out the Court’s powers to make section 8 orders past the age of 16

 

“9 Restrictions on making section 8 orders

…

(6) No court shall make a section 8 order which is to have effect for a period which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.

(6A) Subsection (6) does not apply to a child arrangements order to which subsection (6B) applies.

(6B) This subsection applies to a child arrangements order if the arrangements regulated by the order relate only to either or both of the following –

(a) with whom the child concerned is to live, and

(b) when the child is to live with any person.

(7) No court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.”

The Court of Appeal had therefore to look at whether a relocation application was a specific issue order, or whether it related to a variation of residence  – they conclude that the Court ought properly when faced with an application about a child who was over 16 to consider that all orders should fall away (and thus mum would not NEED leave to remove from the jurisdiction)

  1. There is, regrettably, some lack of clarity about how relocation applications are to be classified. The debate, which is of long standing, is whether such an application is to be made under s.13 itself or by way of an application for a specific issue order under s.8. There are in my view good arguments for the latter: see the observations of Hale J in re M (above) at 340-341 and the article by Dr Robert George in Family Law Journal [2008] Vol 38 p.1121. However, this court has on at least three occasions proceeded on the basis that an application to relax the s.13 prohibition where there is an existing order is not an application under s.8 for a specific issue order: Re B (Change of Surname) [1996] 1 FLR 791; Payne v Payne [2001] 1 FLR 1052; Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882.
  2. It may seem anomalous that the statutory framework for a relocation application will differ depending upon whether there is a s.8 order in effect. In the above appeal cases, judges been enjoined to apply the welfare checklist even when it is not strictly engaged. In the present case, the difference is potentially sharper because the bar on making s.8 orders for children over 16 will only apply if the application is for a specific issue order: it does not apply if the application is considered to be made under s.13.
  3. How did the recorder deal with this issue? He accepted Ms Murray’s submission that he could make an order in relation to E because he could “regard any new living arrangements as being a variation of the existing shared residence order”. In doing so, he rejected M’s submission that he would be making a new order which, he accepted, would be barred by s.9(7). He found that the circumstances were not exceptional and it is common ground that he was right to do so. Without being prescriptive, I would interpret the main intention behind the proviso as being to allow an order to be made where a child has qualities that require additional protection, not to override the views of a mature child of 16 or 17.
  4. I have set out the arguments on this issue because they formed part of the recorder’s decision and the argument in this court. However, drawing matters together, it seems to me that whether a relocation application is regarded as being made under s.13 or s.8, the general intention of the Act (prominently seen in s.9) is to prevent the imposition of inappropriate requirements on older children.
  5. But I would go beyond that and find that the issue in this case is not to be determined by reference to s.9, but instead by reference to the wider principle expressed in s.1(5). In my view it is not better for the court to make an order in relation to E than to make no order. In fact, it would be positively better for the court to make no order about him. The simple fact is that E is too old to be directed by the court in a matter of this kind. Although the existing child arrangements order, buttressed by the effect of s.13 is not addressed to him, it directly affects him as the subject of the proceedings. This is not to ignore the common interests of this strong pair of brothers, but to recognise the proper limits on the court’s exercise of its powers in the case of a mature and intelligent older child who is now 17 years of age.

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Evidence from witnesses who do not speak English

Posted on December 18, 2015 by suesspiciousminds

 

As this is an issue which is cropping up more and more in recent years, it is helpful to have this clear and comprehensive guidance from the High Court, courtesy of Singer J   (actually echoing the guidance of Jackson J in 2013, NN v ZZ [2013] EWHC 2261 (Fam) but helpful to jog people’s memories – I had missed it first time around)

 

Re  A, B, C and F (children) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3663.html

 

 At my invitation, counsel made submissions about the way in which evidence from witnesses who do not speak English should be prepared. In the light of those submissions, I record the following basic principles:

(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness’s own language before being translated into English. This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2 of which states that:

Where the affidavit/statement is in a foreign language –

(a) the party wishing to rely on it must –

(i) have it translated; and

(ii) must file the foreign language affidavit/statement with the court; and

(b) the translator must sign the translation to certify that it is accurate.

(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness’s own language.

(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.

(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.

(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.

(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.

(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator’s jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.

(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness’s own language and the English translation should be provided to them well in advance of the hearing.

(10) If a statement has been obtained and prepared abroad in compliance with the relevant country’s laws, a certified translation of that statement must be filed together with the original document.

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The ISIS flag is apparently not a red flag

Posted on December 18, 2015 by suesspiciousminds

 

 

The President has published his judgment in one of the “are parents taking children to join up with ISIS?” cases

 

This one he has previously given judgment on, and ruled that at an interim stage the children should return home to parents with the parents wearing electronic tags. The mother, and two other adult relatives, were arrested when attempting to board a flight to Turkey with their four children.

https://suesspiciousminds.com/2015/07/30/syria-children-and-electronic-tagging/

 

This one is the fact finding hearing, as to what the mother’s motivation was.

Re X (Children) (No3) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

 

First, let me recount the mother’s position at previous hearings  (underlining mine for emphasis)

 

  1. The mother’s case
  2. An order made by Peter Jackson J on 22 April 2015 recorded the mother’s position as follows:

    “The mother disputes that the threshold criteria is crossed. She says that she was intending to travel to Turkey with the children for the purposes of a legitimate family holiday. She says that although she understands why the Local Authority has intervened, her wish is for the children to be returned to her care as quickly as possible or for them to be placed with a member of their family. Once the children have settled in their current placement, she would also like to have increased contact with them so that this takes place more than twice per week.”

  3. The mother disputed the local authority’s case as set out in the original Scott Schedule. Her position, as encapsulated in her response to the local authority’s allegation in paragraph 69 (paragraph 78 in the final Scott Schedule), was that “I am a practising Muslim. I do not regard myself as a radical fundamentalist and have no links or contacts with ISIS militants.”
  4. The finding of fact hearing was at that stage listed to start before me on 29 June 2015. Shortly before, the mother’s counsel, Mr Karl Rowley QC, circulated a position statement on her behalf. This set out her position in relation to the findings sought by the local authority as being that:

    “she does not seek to oppose the making of a finding that she was intending to attempt to enter Syria and live in territory governed by the Islamic State. That is not to say that she accepts the truth of the allegations but she does not wish to resist the making of findings on the balance of probability. In these circumstances she does not require cross examination of the local authority witnesses and does not wish to give evidence herself.”

  5. That radical shift in her position gave rise to a certain amount of discussion in court when the hearing began on 29 June 2015. It was left that she would prepare and file a statement. The statement was circulated the next day, 30 June 2015. It represented another radical shift in her position. She acknowledged that she had not been fully open with the court and professionals. Her case now, in short, was (judgment, para 13) that:

    “she had travelled to Turkey to meet up again with, and possibly marry, a man” – I shall refer to him as H – “she had met in this country collecting money for Syrian refugees and whom she understood to be a doctor in Turkey. She denied any intention of travelling to Syria and said “I do not agree with or support or favour anything ISIS do … and have no wish to be involved with ISIS in any way.””

  6. That remains her stance.

 

 

The Local Authority therefore had to seek findings  [again, underlining mine for emphasis]

 

  1. The local authority’s case
  2. As I have mentioned, the final version of the Scott Schedule is dated 17 October 2015 and now runs to 80 numbered paragraphs. Much of this sets out the “agreed context”. Paragraphs 13, 16-20, 22, 24-27, 32, 34b, 36-37, 39-44, 46-48, 51-53, 55, 57-76 and 78-80 contained the findings sought by the local authority which were disputed by the mother. In his final submissions, Mr Simon Crabtree on behalf of the local authority made clear that it no longer sought findings in relation to paragraphs 13-18.
  3. The local authority’s case has seven strands, which can be summarised as follows. In support of its overarching case, the local authority relies upon what it asserts were:

    i) The mother’s acquaintanceship with various individuals who, it is alleged, had travelled via Turkey to Syria in 2014 to take up arms with ISIS militants (paragraphs 19-27).

    ii) Lies the mother told the children’s schools on 27 February 2015 about the reasons for their forthcoming absence from school (paragraphs 28-33).

    iii) The fact that when stopped at the airport on 2 March 2015 the mother gave a false address (paragraphs 36-37).

    iv) The fact that the family’s luggage, when searched at the airport, was found to contain a number of suspect items (paragraphs 39-48); as it is put (paragraph 39), “a large number of items[1] not normally associated with any family holiday.”[2] It is asserted (paragraph 48) that “There is a striking similarity between the items contained in the … luggage and a list of items a known ISIS operative asked a British recruit to bring to Syria with him (and in connection with the same the said recruit was found guilty of possessing items of use to terrorists).”

    v) The fact that, when her house was searched, the items found included (paragraphs 76-77) “ISIS flags” and ‘to do’ lists, written by the mother, “which indicated that the writer of the list was moving and not intending to return.”

    vi) The fact that the mother lied to the police when being asked the purpose of their trip (paragraphs 49-55). She described (paragraph 51) “a multi-faceted trip involving a combination of an adventure holiday, culture, sight-seeing and relaxation.”[3]

    vii) The fact that the mother’s most recent account, as I have summarised it in paragraph 10 above, is a lie (paragraphs 56-65).

  4. This last part of the local authority’s case is further elaborated as follows:

    i) It is said that she met no man in the circumstances she described or at all (paragraph 62). She has (paragraph 63) “manifestly failed to provide any tangible evidence as to his existence and cannot even produce a photograph of him, any contact details or even one of the electronic communications which she claims passed between them.” Furthermore (paragraph 64), “In so far as that man is not a point of contact she had in Turkey for another reason, he is a figment of her imagination.”

    ii) As a separate point, it is said (paragraph 59) that, if her account was true, “it would reveal a mother who was unable to place her children’s needs before her own and that she was prepared to sacrifice her children’s stability, all they knew and their relationship with their father so that she could fulfil her own desire for a relationship with a man she hardly knew.” Furthermore (paragraph 60), if it was true “the extent of her intended folly is revealed by the fact that this man has literally disappeared without trace and left the mother unsupported at a time she needed it most.”

    iii) It is alleged (paragraph 65) that “She has in essence, weaved this account around the notes secreted in the children’s underwear to try to explain away the manifest inherent improbabilities in her first version of events at the eleventh hour and in the face of a growing realisation that no Judge would on the totality of the evidence believe that first account.”

  5. The local authority’s case is summarised as follows (paragraphs 66-74):

    “The reality is, the mother, her own mother and her brother had no intentions of remaining in Turkey.

    They intended to travel with the children from Istanbul to the Turkish border with Syria.

    Once they crossed the border into Syria, they intended to join up with ISIS militants and to supply them with items of use to the group’s combative activities.

    In all probability, they also intended to meet up with those … who had already travelled … to Syria via Turkey.

    In essence, the mother’s plan was to take these children to a war zone.

    As such, she knowingly and intended to place the children at risk of significant harm.

    The sole purpose and intention was … to cross the border into Syria and take up arms with ISIS militants and/or live in the Islamic caliphate ISIS claims to have established in the region for the foreseeable future.

    [Neither] she nor [her brother] had any intention of returning to [her house].

    That is why she suddenly found the money to buy the above electronic equipment which with one exception she financed on credit in February 2015 and why [her brother] paid for the trip using a £12,000.00 loan.”

  6. In conclusion, the local authority asserts (paragraphs 78-80) that:

    “In short, the mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause.

    Although she is arguably entitled to have whatever view she chooses, she is not however entitled to place her children at risk of significant harm or even death in furtherance of such a cause.

    In furtherance of her aims and objectives, [she] is and was prepared so to do and to lie with impunity to conceal her real intentions and motives.”

 

Bearing in mind the two underlined passages, you may be surprised to learn that the President ruled that the threshold was not met, and the children are now living with mother under no statutory orders at all.

 

I have to say that mum’s counsel did a blinding job, but it is still a surprising outcome, on my reading.

 

What about the ISIS flag though?

Thirdly, he submits that the local authority has failed to show that the material recovered from the mother’s home was indicative of her holding such views or being sympathetic to ISIS. The flag is one that has been adopted by ISIS, but it contains the shahada and seal of the Prophet Mohammed, both of which, he says, are important symbols which all Muslims share. The local authority, he correctly points out, has failed to adduce any evidence to disprove the proposition that the flag predated the al-Baghdadi Caliphate, and the mother’s case that she received it from a bookshop some 12 years ago as a gift has not been seriously challenged.

 

[See, I’m NOT a Neo-Nazi, I’m just a collector of flags designed by dentists…]

 

Although the President was not satisfied with mother’s account, the burden of proof was on the LA and he was not satisfied that they had made out their allegations

 

  1. The first point to be made is that, on her own admission, she is, even if she cavilled at the appropriateness of the label, a liar. The contrast between her original case, as I have summarised it in paragraph 7 above, and her revised case, set out in paragraph 10 above is obvious. If elements of her first story have been carried forward into the second, the two are nonetheless so fundamentally different that one or other must be essentially untrue. This is not mere suggestio falsi et suppressio veri; it is simply the telling of untruths, in plain terms lying. The notes to the schools were, on any basis, and wherever the ultimate truth in relation to the trip may lie, false to the mother’s knowledge. Mr Rowley characterises them (paragraph 66) as “ill-advised”. I cannot, with respect, agree. They involved the deliberate uttering of falsehoods. I am also satisfied, and find as a fact, that the mother did indeed give a false address when questioned by DS SH. And the allegations she made in the witness-box against the police were, in my judgment, and I so find, utterly groundless. On matters of fact I accept the evidence of each of the police officers. I cannot accept Mr Rowley’s submissions on the point (paragraph 68).
  2. As we have seen, the mother put herself forward at the hearing as now being completely open, honest and frank. Was she? I am not satisfied that she was. I am unable to accept what she is now saying merely because she is saying it. Some of it may be true. About much of it I am very suspicious. Some of it may well be, in some cases probably is, untrue. But the fact that I am not satisfied that the mother was telling the truth, the fact that I am very suspicious, does not mean that I find everything she said to be a lie. And, as I have already explained, the fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
  3. Be all that as it may, the plain fact is that the mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I am not satisfied that she is being now.

 

 

 

….

 

 

  1. So where, at the end of the day, am I left? There are four key matters, in my judgment, which preponderate when everything is weighed in the balance, as it must be:

    i) The mother is a proven liar. The mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I not satisfied that she is being now.

    ii) H (if that is his true name) is someone known to the mother and who has some connection with Turkey. The mother has wholly failed to persuade me, however, either that she met H in the circumstances she describes, or that their relationship was as she asserts, or that the role (if any) he was to play in Turkey was as she says. I am unable to accept her as being either a reliable or indeed a truthful witness. The mother, in my judgment, has not proved her case in relation to H.

    iii) The mother is an observant Muslim, but the local authority has been unable to prove either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist.

    iv) The luggage contained a significant number of items which cry out for explanation in circumstances where the only explanation proffered by the mother is tied to her story about H which, as I have already explained, I am unable to accept.

  2. It is for the local authority to prove its case. The fact that the mother has failed to persuade me of the truth of her case, in particular in relation to H, does not, as I have already explained, absolve the local authority of the requirement that it prove its case. And, for reasons I have explained and which Mr Rowley appropriately relied on, I must be careful to remember the Lucas point when I come to consider the inferences I can properly draw from the fact, to the extent I have found as a fact, that the mother has lied. The fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
  3. There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion. At the end of the day the question is whether in relation to each discrete part of its case, the local authority has established on a balance of probabilities, applying that concept with common sense, the proposition for which it contends.
  4. Standing back from all the detail, and all the arguments, there are, at the end of the day, two factors of particular importance and which, unhappily, point in opposite directions. The mother, for her part, has not proved her case in relation to H, with the consequence that the only explanation she has proffered for the presence of various significant items in her luggage falls away. The local authority, for its part, has not proved either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist. Weighing these and all the other matters I have referred to in the balance, I am left suspicious of what the mother was really up to but I am unable to conclude that the local authority has proved any part of its case as set out in paragraphs 66-73 and 78-80 of the Scott Schedule.

 

 

It is very difficult to successfully appeal a finding of fact  (the Court of Appeal vacillate from time to time as to whether you even CAN – because technically you appeal an order, not a judgment. In this case, the President did make an order – because he made NO order on the care proceedings or Wardship application, so the LA can appeal that).  The Court of Appeal are very mindful that on a finding of fact hearing the Judge has the advantage of hearing all of the evidence and seeing the demeanour of the witnesses, so are reluctant to interfere.

 

Having said that, I’d appeal the hell out of this one.  The order (which one presumes would have the effect of removing the electronic tags) is stayed until 18th December (oh, today), so we will soon find out whether an appeal has been lodged.

 

 

There’s a lot in the judgment about the contents of the luggage – the President kindly sets out the matters in a footnote.  As indicated above, the President was not satisfied with either the mother’s account (of either a holiday, or that her new boyfirend H had wanted these things) or that the LA had proved that these matters amounted to evidence that mother intended to join up with ISIS

 

Note 1 Including, it is alleged, 9 battery powered or other powered torches, 4 hand-wound torches, 3 solar charger units or power-packs, 4 emergency blankets, 3 new and 2 used rucksacks, 5 mobile phones in excess of the 3 mobile phones chargers carried by the group as a whole, unused computer equipment comprising 6 machines (including 3 identical Samsung devices) and 5 chargers, 3 unused sim cards, 5 Multi-tools devices and power converters etc, what is described as “a large quantity of substantially if not entirely new size ‘large’ and ‘extra-large’ outdoor clothing including coats, waterproof bottoms, breathable t-shirts, gloves and so on”, what is described as “a large amount of medication and panty-liners and tampons”, and “telephone numbers, e-mail addresses and passwords … found on pieces of paper secreted in the children’s underwear in one of the suitcases.”

Note 2 It is further said (paragraph 42) that “By contrast, the luggage did not contain outdoor clothing of a sort which might have been associated with an adventure or camping holiday for (amongst others) 4 children”, (paragraph 43) that “Although there was a large quantity of large and extra-large outdoor clothing there was bar one piece, an absence of such clothing in sizes that would fit any of the children and in particular, X1”, and (paragraph 44) that “Those and most of the other supposedly camping equipment was or appears to be completely new.”

 

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But Belgium says no thanks

Posted on December 17, 2015 by suesspiciousminds

 

This is decidedly weird.  The High Court were dealing with an application under the Hague Convention for an order to return the child to Belgium. The father alleged that the mother had abducted the child and that the child should be returned to Belgium, where the Belgian Courts could then make the decision about where the child should live.

 

The problem was, that before anyone started to get stuck into whether there had been an abduction, whether there were defences under the Hague Convention and Child Abduction Act that might mean that the child should not be returned and so forth, that Belgium would not let the mother and child into their country anyway.

 

Re NA (dismissal of application under Hague Convention) 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3686.html

 

The entire family had come from Iran. They left Iran in 2008, made their way to Belgium and made a claim for asylum. That claim was refused and there was substantial litigation about the appeals process. They tried again afresh in 2011, and again their claim was refused.

The mother and child came to England in 2013, and she applied for asylum here (she and her son have been given leave to remain in the UK for five years – this happened whilst these proceedings were taking place). Father applied two years later for an order compelling the child’s return to Belgium.

Whether there had been an abduction of the child or not, can the Court order someone to return the child to Belgium when the Belgian authorities had ruled twice that the family had no legal right to be in Belgium ?  Nor could the Home Department of the UK remove the mother and child to Belgium – (prior to granting their leave to remain they could have removed them back to Iran, but not back to Belgium)

 

 

  1. There was indirect contact between the father and the child on occasions during 2014. In June 2015 the father issued an application for the return of his son to Belgium pursuant to the Hague Convention, thereby commencing the present proceedings. It is to be noted that that application was issued a little more than two years after the removal of the child from Belgium, and accordingly the application would in any event have raised a lively question as to whether it was “demonstrated that the child is now settled in its new environment” within the meaning of, and for the purpose of, Article 12 of the Convention. That issue and, indeed, any other “defences” under the Hague Convention has never been considered, nor determined, by the court; for in the meantime the question arose whether, even if ordered to return the child to Belgium, the mother could, in fact, lawfully do so, because it appeared that neither she nor the child would be permitted to enter Belgium. As I have indicated, that difficulty arose because the period within which the state of Belgium would have been required to take back the mother and child pursuant to the regulation Dublin II had long since elapsed. It appeared, therefore, that the mother herself could not lawfully voluntarily return with the child to Belgium. It appeared also that the Secretary of State for the Home Department could not now remove the mother and child to Belgium, although it might have been open to the Secretary of State to remove them to Iran, being the state of which they are both citizens.
  2. During the last few months there have been several brief hearings before the court, and most recently on two earlier occasions before myself, whilst efforts have been made fully to explore the immigration status of the mother and child here; the intentions of the Secretary of State with regard to removing them; and the question whether the mother and child could be forcibly removed to Belgium or, indeed, voluntarily return to that state. One possibility that was mooted was that, upon application to it, the state of Belgium might exercise a discretion to permit the mother and child to return to and enter Belgium on the basis of a “family reunion visa”. The difficulty with that particular suggestion was and is that there is no question of “family reunion”, because the mother makes crystal clear that she is not willing to return to live with, or in any way be “reunited” with, the father.
  3. Against that background I made an order dated 28th October 2015, which anyone with a proper interest in this matter could read for its full terms and effect. There were two recitals, which essentially recorded the position as it was or appeared to be at that date, namely:

    “1. Upon it now appearing from the reply from the Home Office dated 28th October 2015 to the request for information in Form EX660 that the mother and child cannot now be returned to Belgium pursuant to the Council Regulation Dublin II, and that the Home Office is now substantively considering the mother’s and child’s claim for asylum, which (it appears) are likely to result in the Home Office either granting asylum or seeking to return the mother and the child to Iran;

    2. And upon the present evidence from the Belgian authorities and in relation to Belgium appearing to indicate that the mother and child could be granted admission on a ‘family reunion visa’, but that there cannot be a ‘family reunion’ as the mother would not agree to living again with the father, and would not voluntarily agree to the child living with the father; but that it is possible (but speculative) that the Belgian authorities might permit the mother and the child lawfully to enter Belgium (without passports) on some alternative basis.”

  4. Upon the basis of those recitals, this case was further adjourned until today, and my order made plain, in summary and in effect, that the father had an opportunity meantime to obtain evidence and material from the state of Belgium to the effect that the mother and child would both be permitted lawfully to enter and remain in Belgium and that any fresh application by the mother and child for asylum in Belgium would be considered by that state. The order made clear that the documents and material required to be produced by the father would have to include an original authentic official actual laissez-passer or similar document in respect of each of the mother and the child, which would actually permit each of them lawfully to enter and remain in the state of Belgium.
  5. Over six weeks have elapsed since that order, and the father has not been able to obtain or produce any such material or documents and, quite frankly, it would seem that there is no realistic prospect now of the Belgian authorities permitting this mother and child to return to and enter Belgium on any basis.
  6. Meantime, there has been a further very significant development. By a decision letter dated 16th November 2015 the Home Office informed the mother and the child that they have been granted asylum in the United Kingdom for a period of five years, with leave to remain here until 12th November 2020. The letter makes clear that if they wish to remain after that date, they must make an application for further leave before the leave now granted expires.
  7. So, the position now is that the ability of the mother and child to remain here for the next five years is no longer tenuous but has been granted. There is, therefore, no further imminent possibility or prospect of the mother and child being forcibly removed by the Secretary of State to Iran. Equally, there is no longer the slightest scope for the application of Council Regulation Dublin II or the mother’s claim for asylum being considered in Belgium, since she and the child have been granted asylum here.
  8. In those somewhat unusual circumstances I simply dismiss this claim for a return of the child summarily to Belgium pursuant to the Hague Convention, on the short grounds that it is not practicable or possible for either the mother or the court or, indeed, anyone else to give lawful effect to an order if one was made for the return of this child to Belgium. As I have indicated, there may have been a range of other “defences” to the application, but in the circumstances I have not given any consideration to them and dismiss this application on the short basis that I have described.

 

All very peculiar.

 

 

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Court of Appeal – section 20 abuse

Posted on November 2, 2015 by suesspiciousminds

 

There have been several reported cases about Local Authorities misusing section 20 now, to obtain “voluntary accommodation” of children in foster care where the ‘voluntary’ element doesn’t seem all that voluntary, and therefore it was only a matter of time before the Court of Appeal fell upon such a case and made an example of it.

 

Here it is:-

 

Re N (Children: Adoption : Jurisdiction) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html

 

As you can see from the title, it is also a case about adoption and the jurisdiction to make adoption orders about children who are born to foreign parents or who live overseas by the time the order is made.  I would really want more time to ponder those parts of the judgment before writing it up.

 

This particular sentence from Aitkens LJ is probably worthy of a piece on its own – raising the issue of ‘limping adoption orders’

 

There is one further comment I wish to make. Both the President and Black LJ have emphasised that when an English court is considering making a placement order or adoption order in respect of a foreign national child, it must consider, as part of the “welfare” exercise under section 1(4) of the 2002 Act, the possibility of the result being a “limping” adoption order. By that they mean an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. There is a danger that natural parent(s) (or perhaps other parties) who oppose the adoption, will attempt to turn this factor into a major forensic battle by engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, in particular the state of the nationality of the natural parent(s). Those legal opinions might then be challenged and there is the danger of that issue becoming expensive and time consuming “satellite litigation”. I hope that this can be avoided by a robust application of the Family Procedure Rules relating to expert opinions.

 

So, focussing just on the section 20 issues  (If you want the background to what section 20 is, what drift is and why it is a problem, I’ll point you towards my most recent piece on it  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/)

 

This is what the Court of Appeal had to say  (and this is one of those judgments that the President has cascaded down – which is a posh way of saying “sent by email to all Courts saying that they must read it and follow it”)

 

  1. Other matters: section 20 of the 1989 Act
  2. The first relates to the use by the local authority – in my judgment the misuse by the local authority – of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013, yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.
  3. As I said in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11, para 100:

    “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated.”

    I drew attention there, and I draw attention again, to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam). As Keehan J pointed out in the latter case (para 37), the accommodation of a child under a section 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case the local authority ended up having to pay substantial damages.

  4. Then there was the decision of Cobb J in Newcastle City Council v WM and ors [2015] EWFC 42. He described the local authority (paras 46, 49) as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re CB (A Child) [2015] EWCA Civ 888, para 86, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division in Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), another case in which the local authority had to pay damages.
  5. Moreover, there has in recent months been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong, on occasions withering, language, for misuse, and in some cases plain abuse, of section 20: see, for example, Re P (A Child: Use of S.20 CA 1989) [2014] EWFC 775, a case involving the London Borough of Redbridge, Re N (Children) [2015] EWFC 37, a case involving South Tyneside Metropolitan Borough Council, Medway Council v A and ors (Learning Disability: Foster Placement) [2015] EWFC B66, Gloucestershire County Council v M and C [2015] EWFC B147, Gloucestershire County Council v S [2015] EWFC B149, Re AS (Unlawful Removal of a Child) [2015] EWFC B150, a case where damages were awarded against the London Borough of Brent, and Medway Council v M and T (By Her Children’s Guardian) [2015] EWFC B164, another case where substantial damages were awarded against a local authority. I need not yet further lengthen this judgment with an analysis of this melancholy litany but, if I may say so, Directors of Social Services and Local Authority Heads of Legal Services might be well advised to study all these cases, and all the other cases I have mentioned on the point, with a view to considering whether their authority’s current practices and procedures are satisfactory.
  6. The misuse of section 20 in a case, like this, with an international element, is particularly serious. I have already drawn attention (paragraphs 50-51 above) to the consequences of the delay in this case. In Leicester City Council v S & Ors [2014] EWHC 1575 (Fam), a Hungarian child born in this country on 26 March 2013 was accommodated by the local authority under section 20 on 12 April 2013 but the care proceedings were not commenced until 10 October 2013. Moylan J was extremely critical of the local authority. I have already set out (paragraph 115 above) his observations on the wider picture.
  7. What the recent case-law illustrates to an alarming degree are four separate problems, all too often seen in combination.
  8. The first relates to the failure of the local authority to obtain informed consent from the parent(s) at the outset. A local authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent. We dealt with the point in Re W (Children) [2014] EWCA Civ 1065, para 34:

    “as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.”

  9. In this connection local authorities and their employees must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 46:

    “(i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under s 20 to have their child accommodated by the local authority and every local authority has power under s 20(4) so to accommodate provided that it is consistent with the welfare of the child.

    (ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

    (iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by s 3 of the Mental Capacity Act 2005, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

    (iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

    (v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

    (a) Does the parent fully understand the consequences of giving such a consent?

    (b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

    (c) Is the parent in possession of all the facts and issues material to the giving of consent?

    (vi) If not satisfied that the answers to (a)–(c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

    (vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

    (viii) In considering that it may be necessary to ask:

    (a) What is the current physical and psychological state of the parent?

    (b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

    (c) Is it necessary for the safety of the child for her to be removed at this time?

    (d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

    (ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

    (x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.”

  10. I add that in cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.
  11. The second problem relates to the form in which the consent of the parent(s) is recorded. There is, in law, no requirement for the agreement to be in or evidenced by writing: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 53. But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature.
  12. A feature of recent cases has been the serious deficiencies apparent in the drafting of too many section 20 agreements. In Re W (Children) [2014] EWCA Civ 1065, we expressed some pungent observations about the form of an agreement which in places was barely literate. Tomlinson LJ (para 41) described the agreement as “almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress.” In Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), the Deputy Judge was exceedingly critical (para 65) both of the terms of the agreement and of the circumstances in which the parents’ ‘consent’ had been obtained. There had, he said, been “compulsion in disguise” and “such agreement or acquiescence as took place was not fairly obtained.”
  13. The third problem relates to the fact that, far too often, the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration.
  14. This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

    “Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

    This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

  15. It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above: i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

    ii) The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

    iii) The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

    iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

    v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

  16. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

 

The marker is down then.  Any LA facing a challenge about misuse of section 20 is on notice that damages may follow, and certainly where the misuse begins after today’s judgment one would expect damages to play a part.

 

The President also tackles here something which has been on my mind for a month. The practice by which agreement is reached that an Interim Care Order is not needed, because the parent agrees (either in a section 20 written agreement) or in a preamble in the Court order that they “agree to section 20 accommodation and agree not to remove without giving seven days notice”   – that is a fairly common compromise which avoids the need for an ICO or to have a fight in Court about the child’s legal status where it is agreed by the parents that the child should stay in foster care whilst assessments are carried out.

 

As the President says here

 

para 169

 I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

 

and here

para 170

iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8)

 

I don’t think that this is legally permissable any longer. (The Court of Appeal could, of course, have said explicitly that such a fetter can only be made where the parent agrees after having had independent legal advice, but they didn’t)

That means that Courts up and down the country are going to be faced with arguments as to whether the right thing for a child is to make an Interim Care Order, OR to rely on a section 20 agreement that could be withdrawn at any time  (including the obvious nightmare scenarios of “twenty minutes after we leave Court” or “at five to five on a Friday night” or “at 5pm on Christmas Eve).

 

The other thrust of the President’s comments on section 20 (8) objections are that as a result, surely even a delay in return of the child to place the matter before the Court for an EPO hearing is going to be a breach unless the parents themselves agree to that course of action.  That in turn raises the spectre of an increase in children being taken into Police Protection, since a forseeable outcome of this case is:-

 

(A) Parent says at 4.55pm on Friday “I want little Johnny home now, I object to section 20”

(B) LA are in breach of the Act and may be committing a criminal offence if that child is not on his way home by 4.56pm

(C) Courts aren’t likely to be able to hear an EPO application on one minutes notice

(D) The police remove under Police Protection instead

 

  [I seriously don’t recommend that as an option as a result of the many cases which batter social workers and police officers for misuse of Police Protection, but I do wonder whether the current case law on Police Protection really works after Re N  – those cases making it plain that it should be the Court decision not a police decision only work if there is time to place the matter before the Court.  BUT until one of them is challenged and the law on Police Protection changes, almost any removal under Police Protection can be scrutinised and perhap[s condemned.  And of course the alternative to THAT, is that more and more cases will instead find their way into care proceedings.  I think that the decisions on Police Protection and section 20 are right, but if we have learned nothing else since the Family Justice Review it should be that fixing one problem often has substantial unintended consequences and causes another problem elsewhere]

 

So, LA lawyers up and down the country, get hold of the current section 20 agreement, and rewrite it to comply with this judgment.

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