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We’ve gone on holiday by mistake

Posted on October 20, 2015 by suesspiciousminds

 

 

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

 

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

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

 

At that time, there were competing explanations

 

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

or

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

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

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

 

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

 

Re M (Children) No 2  2015

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

 

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

 

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

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

 

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

The closest we come is this :-

 

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

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

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

 

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

 

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

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

 

The order says

 

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

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

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

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

    BY CONSENT IT IS ORDERED THAT:-

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

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

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

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

 

 

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

 

"Are you the farmer?"

“Are you the farmer?”

 

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

 

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

 

 

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A stance which could not be described as honourable

Posted on October 16, 2015 by suesspiciousminds

 

I don’t often write about Court decisions relating to British citizenship, but this one

 

Bondada and Secretary of State for the Home Department 2015

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/2661.html

 

had some incendiary stuff in it.  We all got fairly used, in the last two years, to Judges giving Chris Grayling a polite kicking, but Chris Grayling was… well, you don’t need me to tell you.  This is a Judge giving Theresa May an impolite kicking. And Theresa May is a much more formidable opponent.

 

As will be seen, however, the stance taken on behalf of the Home Secretary on other occasions during the period from early December 2012 onwards, and throughout these proceedings, is a stance which cannot be described as honourable. From early December 2012 onwards, both before and after the letter of 29 August 2013, untenable objections were taken to Deelavathi’s claim. The stance taken in those objections refused to engage with compelling DNA evidence. The result was that this stance effectively made an accusation that Deelavathi’s mother has lied about the parentage of her children for more than 60 years. At a very late stage in the present proceedings the Home Secretary accepted the DNA evidence. Nevertheless the stance taken on behalf of the Home Secretary when rejecting Deelavathi’s claim has, without a shred of evidence to support it, continued to make the same effective accusation. The conduct of the UK government in this regard has been grotesque. I add that in making these observations I do not criticise Ms Parry and I do not criticise the legal team in the Government Legal Department. They have approached their task with all such professional courtesy as is consistent with seeking to defend an impossible position.

 

Even against the backdrop of Chris Grayling and all those judgments against him, I don’t think that I have ever seen a High Court Judge use such strong language about a sitting Government minister.  This Judge is Walker J, not someone I’ve previously encountered. I like him.

 

Ms Deelavathi Bondada is the daughter of Mr Chandraiah Bondada. He had British citizenship and had it at the time of her birth. He was married to her mother, and he was married at the time of her birth.

 

The Home Office, during the course of the litigation were alleging that that she was not his daughter and that she might have been an illegitimate product of an affair and thus couldn’t rely on her father’s British citzenship to establish her own.

When she produced DNA evidence that she and her siblings shared the same father, and that her mother is the mother of all five children  (it not being possible to take a DNA sample from her father, who was deceased), the Home Office instead of accepting the utterly obvious and inevitable, instead suggested that all five children had a father who wasn’t Mr Chandraiah Bondada, and that the children’s mother had had an affair with another man and fathered FIVE children with him, whilst being married to Mr Bondada and lying to him.

 

If you find it abhorrent that our Government made such an assertion without any evidence to support that, then you will probably agree with the Judge’s views

 

 

  1. The November 2011 Consular Department letter complained that the passport held by Chandraiah at the time of Deelavathi’s birth had not been submitted. It said in this regard:

    … therefore we are unable to ascertain whether your parents were together at the time of conception or not …

  2. In this way UK government officials raised the possibility that Deelavathi might not be Chandraiah’s daughter. The family did not have the passport held by Chandraiah at the time of Deelavathi’s birth. The only copy that it had was of the initial pages only. This meant that they could not produce the rather limited evidence which the November 2011 Consular Department letter had sought. Accordingly the family decided to do better than had been sought, and to put the matter beyond doubt by obtaining DNA evidence.
  3. In my view the family did not need to do this. The Consular Department already had the evidence that it needed, for it had had since April 2009 the original of Ganikamma’s 1978 passport. If those dealing with the matter had studied that passport at any time between April 2009 and November 2011 they would have seen that their own predecessors had in October 1978 accepted that Chandraiah was Deelavathi’s father. No reason has ever been suggested for thinking that the British consular officials in October 1978 might have failed to carry out all appropriate checks. Accordingly, even without DNA evidence, I would have held on the balance of probabilities that the conclusion reached in October 1978 remained valid today.
  4. If there had been any reason to doubt this, however, the DNA analyses provide an overwhelming answer to any such doubt. At a very late stage in the proceedings the Home Secretary has conceded that these analyses show that Deelavathi is the daughter of Ganikamma, that Ganikamma is also the mother of Kurma, Kandeswara, Tata and Punyavathi, and that these siblings and Deelavathi have the same father.
  5. In these circumstances it is both astonishing and grotesque that those acting on behalf of the Home Secretary have put in issue whether that same father was Chandraiah. The Home Secretary’s stance is astonishing because it necessarily asks the court to say that Ganikamma may have had a secret lover who was the biological father of Kurma, Kandeswara and Tata while she lived with Chandraiah in Burma in the 1950s, and after the birth of Tata in India had the same secret lover who was the father of her remaining two children, Punyavathi and Deelavathi. This unsupported speculation is so far-fetched as to be absurd. It is not a real possibility, let alone a possibility of such substance as to enable the court to make a finding that Deelavathi has not shown on the balance of probability that Chandraiah was her father.
  6. However it is not merely an astonishing stance. The Home Secretary’s stance in this regard is grotesque. The finding that the Home Secretary urges upon the court would amount to a repulsive distortion of evidence that had repeatedly been put before those acting for the Home Secretary, had rightly been accepted on behalf of the Home Secretary by the Liverpool Nationality Enquiries Team, and had with unfailing courtesy and meticulous care been explained repeatedly to others acting on behalf of the Home Secretary. With not a shred of evidence capable of justifying such a stance, those acting on behalf of the Home Secretary have chosen to impugn the fidelity of a blameless 86 year old woman and to impugn the parentage of her five remaining children. Those acting on behalf of the Home Secretary have stopped short of explicitly advancing a positive assertion that the admittedly common father of all five children was someone other than Chandraiah. But they have instead adopted a stance which, with no justification at all, puts the siblings’ parentage in issue, and thereby unwarrantably impugns the whole basis upon which Ganikamma and the children have conducted their lives as a family.
  7. I accordingly conclude that the Home Secretary’s stance on this issue is unjustified and totally without merit. In this regard I do not rely upon the presumption of legitimacy. Deelavathi’s parentage has been proved by overwhelming evidence and without the need to rely upon any presumption.

 

Having said at the outset that I’d never seen a Judge use such strong language about a sitting Minister, at this point in the reading, I felt that he had gone a bit easy on her.

 

You will not be staggered to learn that the Judge ruled that this woman should have her British citizenship. As a fellow British citizen, and I can speak only for myself,  I’d like to say “welcome to Britain, Ms Bondada. We aren’t all like Theresa May”

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Radicalisation of children and ISIS – Jihadi Brides

Posted on August 27, 2015 by suesspiciousminds

 

This is a very powerful and disturbing case. As Hayden J says, this is a whole new category of child abuse which professionals and Courts are learning about very quickly, it just wasn’t something that had even entered anyone’s thinking two years ago.

 

London Borough of Tower Hamlets and B 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2491.html

 

It has a somewhat stellar line up of advocates,  indicative of the serious nature of the case.  In broad terms, the issue was this :-

 

Was a 16 year old girl being radicalised to prompt her to travel to Syria and became a “Jihadi Bride”,  if so, were the parents to blame in any way, and what should happen to her and her brothers?

 

In this case, the girl had been caught at the airport trying to catch a plane with that intent – rather like the recent cases before the President that resulted in ankle-tagging.  Unlike those cases, where the President was satisfied that there had been no overt or abusive radicalisation of the child, in this case there was plenty of evidence.

 

14. I have already referred to a very significant amount of what I will for shorthand call ‘radicalising material’ being removed from the household. During the course of this hearing before me I asked Mr. Barnes, on behalf of the Local Authority, to distil the material that had been removed into an easily accessible schedule identifying to whom the material was attributable. The schedule, which has not been disputed, requires to be summarised in detail.

  2. There were a number of devices attributable to B herself:

    (1) A document headed “44 Ways to Support Jihad” with practical suggestions as to the support of terrorist activity;

    (2) “The Macan Minority” urging participation in Jihadi activity;

    (3) Internet searches relating to terrorist manuals and guides to terror activities. That also included queries as to the response times of the Metropolitan Armed Response Team and the Queen’s Guard;

    (4) Internet searches as to the preservation of on-line anonymity, including, as confirmed by a police officer at an earlier hearing, the downloading of software to hide the IP address of the user’s computer when on-line;

    (5) A downloaded version of “Mujahid Guide to Surviving in the West”. Possession of that document is, of itself, a serious criminal offence. It gives guides to weapon and bomb making and to “hiding the extremist identity”.

    (6) “Miracles in Syria”. This contained information as to how to get to ISIS territory and many photographs of what are referred to as “Smiling corpses”.

    I had not understood what that meant, but I have been informed that it involves photographing the corpses of fighters whose faces are set in a smiling repose and said to reveal pleasure at their glimpses of eternal reward

    (7) “Hiraj to the Islamic State”. This contained information and advice as to how to avoid airport security. It had particular advice in relation to females intending to travel to ISIS territory via Turkey.

    (8) Footage of attacks on Western Forces in the Middle East.

  3. On one of the siblings devices there was the following:

    (1) Numerous articles, some in what are referred to as “glossy magazine format” urging flight to ISIS territory and recommending its “lifestyle”.(2) An edition of Islamic State News showing men being prepared for execution and asserting community support for it.

    (3) An edition of Islamic State News showing before and after shots of human executions.

    (4) A video of terrorist training.

    (5) A video containing images of actual executions and beheadings.

  4. On another sibling’s devices there were the following:

    (1) A number of lectures and video biographies encouraging support for ISIS activities, including videos of attacks upon Western Forces in the Middle East.(2) ‘The Maccan Minority’, seen earlier in B’s own devices, suggesting that files had been shared between the siblings.

    (3) A document called “The Constance of Jihad”. This was a five hour lecture on the need to participate in fighting against non-Muslims.

  5. Finally, from the parent’s own devices:

    (1) Lectures encouraging participation in armed attacks on non-Muslims.(2) Issues of Islamic State News showing the same executions as those seen on the devices attributed to one of the siblings, again suggesting file sharing.

    (3) Photographs of teenagers holding grenades.

  6. Reducing the material in this way to this stark list was, at least to my mind, an important exercise. The impact of the material set out in this way is both powerful and alarming. It requires to be stated unambiguously, it is not merely theoretical or gratuitously shocking, it involves information of a practical nature designed to support and to perpetrate terrorist attacks. I have noted already bur reemphasise that it provides advice as to how to avoid airport security, particularly for females. In addition, the videos of beheadings and smiling corpses can only be profoundly damaging, particularly to these very young, and in my judgment, vulnerable individuals

 

 

Deep breath. You can see therefore that the material was far beyond a ‘come to syria for a life of glamour’ blandishments that anyone could come across on the internet  – there were very strong and graphic images and terrorist manuals. You can also see that the parents’ electronic devices also contained this sort of material.

 

Importantly, much of this material involved how to conceal extremeist views and that was certainly something which had played out with these parents, who had previously come across as concerned and anxious about their daughter’s actions.

 

20. It is not uncommon in my experience, which I am confident is shared by the experienced advocates in this case, for adults in public law proceedings or child protection proceedings more generally to seek to deceive social workers. Sometimes it can be successful for protracted periods. They may conceal a drinking habit, substance abuse, or a continued relationship with a violent partner. Usually these come to the surface eventually. I am bound to say I do not recall seeing deception which is so consummately skilful as has been the case here. I have found myself wondering whether some of the material may have educated this family in skilful concealment of underlying beliefs and activities.

  2. The parents’ joint statements require revisiting. Thus:

    “We are a very strong family unit and we are doing our very best to help prevent such a situation from reoccurring. We are keeping extremely close eyes on B and trying to be encouraging of her moving without ridiculing her for her actions to the extent that this incident forever haunts and affects her day to day living. I, the mother, am particularly sensitive of how we manage the situation which we view as very serious due to my work…
    I understand how to empathise and assist those in need of support through open questioning techniques and motivational encouragement, and have done this with B at great length since the incident to help understand what went wrong. We had thought that we were nearing a stage of putting the incident behind us, having worked together as a family, convening weekly family discussions and opening up about how to move on…”

    “The police officer ‘x’ offered a piece of technology costing £79 which allows complete monitoring of the computers in the house. The instructions were followed and it was bought and a friend who is technologically minded (which neither if us are) installed it for us. The children are not aware of it. We completely understand the police and Social Service’s concerns, but we don’t want any intervention to further impact our family lives for the unforeseeable future. The risk in our minds is not high at present of B leaving the UK, particularly given that all of our passports are being held by our solicitors. We would agree with whatever measures are deemed necessary to prevent risk to B and following the explanation given at the initial child protection conference have agreed, or already carried out, the protective tasks itemised in the assessment report.”

    They were fulsome too in their praise for the social worker:

    “The new social worker explained her role and again seemed very sensitive to the need to limit and time her visits according to B’s studies. We have readily accepted the recommendations of the conference. We were impressed by the thoughtful and specific thought all there gave B. She did not feel like she was lumped together with other girls for no clear reason. The professionals at the meeting voiced confusion themselves about an initial child protection conference being held whilst the child is warded. The Chair expressed concern that it seemed a decision had been made that there must be a child protection done before the conference. In fact following the open and frank discussion at the conference, all professionals voted unanimously for a time limited Child in Need plan. We were very relieved, and repeat, we will grab with open arms practical and genuine offers of help in getting past this terrible event provided we think they will help. We also repeat we are so grateful to those who stopped S getting to Turkey.”

  3. Evaluating those passages alongside the material that was discovered in this household reveals that much of what was said was in fact an elaborate and sophisticated succession of lies.

 

 

It was a very difficult situation for the Court to deal with. There had been limited opportunity for professionals to talk to the boys.  It is worth noting here that Hayden J acknowledges that Courts are often obliged to take social workers to task for poor practice, but here the work that the social worker had done was to be commended.  Hayden J felt that there was no alternative but to remove the girl, B.  He makes a comparison with the nature of the abuse she was suffering which is a strong and powerful one. I will leave it to others to consider whether they think it is too strong or about right.

 

The decision for the boys was much harder.

 

  1. The police found it necessary, as a precaution, to limit professional access to this family. The need for that, to my mind, was self-evident. It has, however, meant that I have limited information into the lives of the male children.
  2. The Local Authority apply to remove each of the children from the household; not just B but the boys too. So corrosive and insidious are the beliefs in this household, it is argued, so pervasive is the nature of the emotional abuse, so complete is the resistance to intervention, and so total the lack of co-operation, that the emotional safety of the boys, the Local Authority says, cannot be assured. I have some sympathy for that view. Nonetheless, in exchanges with Mr. Barnes on behalf of the Local Authority the following, to my mind, important facts have emerged. Firstly, it is conspicuous that radicalised material was not found on the boys’ devices. Secondly, the boys, through a variety of sporting interests, have a much wider integration into society more generally and, on my, as yet, superficial assessment, a healthier range of interests. Between sport and study there is, I suspect, little room in their lives for radicalised interests. Thirdly, it was one of the boys who first sounded the alarm about his sister’s flight. The exact account of that, like everything else this family says, must now be viewed with very great caution, but I strongly suspect there is a core truth that it was the action of one of the brothers that foiled B’s flight to Syria. Fourthly, two of the older boys will be starting 6th Form education at college very soon, and accordingly they will be more exposed to professional scrutiny.
  3. I will require a thorough intense and comprehensive social work assessment of the boys’ circumstances. I will then be able better to decide whether their situation in this household is sustainable or not. Until I have the information I am not prepared to sanction their removal. It may or may not be necessary in the future. The balance of risk, it seems to me is, significantly different in the cases of the boys, at least at this stage. The Guardian supports such a course. Though I hope she will forgive me for saying so, I have not placed very much weight on her view. She was only appointed a few days ago. She has not had any opportunity to meet the children at all. She has an inevitably incomplete knowledge of the background of the case, and virtually no understanding of the wider issues, having, as she told me, never been involved in a case of this nature before. She is in an entirely invidious position. I am sympathetic to her and I do not intend these simple statements of facts to be construed by her in any way as a criticism. They are not.
  4. The social worker appointed in this case, by contrast, has in my assessment
    a deep, well informed and intelligent understanding of the issues. She has been working this case and with this family now for some time. It is in the nature of the proceedings that come before this court, in particular, that the actions of social workers often fall to be scrutinised and are from time to time found to be wanting and deprecated in judgments. The opposite situation arises here. This social worker has, in my judgment, made an outstanding contribution to the case. All those who have encountered her, the lawyers, the police, the guardians, have been impressed both by the extent of her knowledge of this family and by her professionalism. She has formed a very important, and in my judgment, highly effective link between social work and police operations. She has had to absorb and re-analyse her work in a dramatically changing landscape. She gave evidence. She told me she had forged a strong, open, working relationship with B, as she thought. She had been convinced, and she is not, I suspect, unhealthily sceptical, that she had achieved, in effect, a professional result with B.
  5. It is obvious listening to her that despite everything that has happened, she has some affection for B and her professional concern remains. Now, she told me, B will not sit near her or talk to her. The social worker is not deterred. She continues to work to try to engage B in a meaningful dialogue. As she gave evidence, I took the view that this social worker, though saddened by the deception on a personal level, had merely girded her loins and resolved to try to re-forge the relationship. I am not able to identify her by name in this judgment, though I should like to have done so. To do so would only risk compromising the anonymity of the children. I have not lightly rejected her social work assessment in relation to the boys. Her understanding of B is considerable, as I have emphasised, but I have the strong sense, which to her credit she readily acknowledged, that her knowledge of and assessment of the boys was far from complete. As I have said, the balance of risk, at least for the present, is different.
  6. I have no hesitation in concluding that B has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent’s care. I can see no way in which her psychological, emotional and intellectual integrity can be protected by her remaining in this household. The farrago of sophisticated dishonesty displayed by her parents makes such a placement entirely unsustainable.
  7. I return to the comparator of sexual abuse. If it were sexual risk that were here being contemplated, I do not believe that any professional would advocate such a placement for a moment. The violation contemplated here is not to the body but it is to the mind. It is every bit as insidious, and I do not say that lightly. It involves harm of similar magnitude and complexion.
  8. I approach the Local Authority’s proposals by considering B’s needs at this juncture. I am required to do so by Section 1(1) of the Children Act 1989. What she needs, I find, is to be provided with an opportunity in which she can, in a peaceful and safe situation, be afforded the chance for her strong and lively mind to reassert its own independence. An environment in which there are the kind of vile images that I have described and the extreme polemic I have outlined, can only be deleterious to her emotional welfare. I hope she can be provided with an opportunity where her thoughts might turn to healthier and
    I hope happier issues. I have no doubt, as has been impressed upon me by her counsel, that she will find separation from her parents, particularly her siblings, to be distressing, though I note she was prepared to leave them to go to Syria. I do not doubt that the social worker will struggle to find a placement which meets the full panoply of her welfare needs which has been emphasised on behalf of the guardian, but I entirely see why the Local Authority plans or proposals are, of necessity, only general in outline and, to some extent, inevitably inchoate. However, I am entirely satisfied that this social worker will make every effort to ensure the best possible option is achieved for B. That is the Local Authority’s responsibility.

 

 

I note that the parents in this case have been charged with an offence,

 

On 12th August the parents and other siblings were arrested on suspicion of “possessing information likely to be useful to a person committing or preparing an act of terrorism.” That is an offence contrary to s.58 of the Terrorism Act 2000 and carries a substantial custodial sentence.

 

 

What this case really shows is just how sophisticated the grooming process for radicalising young people and families can be, and that over and above the grooming and information about going to Syria and practical arrangements there is sophisticated material and advice on deceiving professionals and allaying professional suspicion.  These things represent completely new challenges and Tower Hamlets (amongst some other authorities) have got really valuable insights and experiences to share with other agencies who might encounter these issues. I hope that there are some joined up discussions to take place about the best way to share these insights and new found expertise.

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Payne v Payne – rumours of my death have been much exaggerated

Posted on August 7, 2015 by suesspiciousminds

 

But now, it looks as though they are finally correct.

If you aren’t familiar with Payne v Payne, it was a Court of Appeal decision about a mother wanting to leave the country with a child and start a new life abroad. The Court of Appeal had provided a set of questions to be posed

 

“(a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b) Is [the father’s opposition] motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive…What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?…

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?…”

 

You can see that those questions drive the Court in many cases to approve the mother moving to say Australia, even though the impact on the child’s relationship with father would be devastating.

 

Payne v Payne would have to go down as one of the least-loved decisions of the Court of Appeal, and occasional efforts are made by the Court of Appeal to backtrack from it – although with difficulty, because it would have needed a Supreme Court decision or a change in statute to do so categorically.

 

The usual efforts have been to create a new category of case to which Payne v Payne doesn’t apply.  And so many Court hearings are taken up with debate as to whether the case before the Court is a  “K v K” case, or a “Re Y” case or a “Payne v Payne” case   (and that taxonomic debate can have a huge bearing on the outcome)

“[60]. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.”

 

For almost the entire time that Payne v Payne 2001 has been authority, Judges have been making speeches deprecating it and forecasting that it would be properly overturned.

In the snappily named   Re F (A child) (International Relocation Cases)(DF and NBF) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/882.html

 

The Court of Appeal overturn the decision of a Judge who had followed the Payne v Payne test and posed those questions in the judgment. Not because the case had been wrongly classified as a Payne v Payne rather than K v K or Re Y, but just because the Court of Appeal rule that the proper approach IN ALL Children Act cases is to follow the welfare paramountcy principle as the major factor, with adherence to the guidance given by the Courts in authority cases but never losing sight of the fact that the welfare paramountcy principle is, erm, paramount.

This is one of those cases that we are seeing a lot with the Court of Appeal as it is presently constructed  – the case before it is used as a vehicle to deploy new policy, rather than any real argument that the Judge in a particular case was “wrong”  instead it is the Court of Appeal using a particular case as a method of delivering a binding speech about policy for similar cases in the future.

 

I am not sure how a Judge could be “wrong” in considering, as this Judge did, all of the relevant authorities on relocation, applying those principles and answering within the judgment the questions that Judges are told to ask themselves and answer.   Any Judge could have been unlucky enough to be overturned on this, as the Court of Appeal had just been waiting for a good opportunity to put an end to Payne v Payne.

 

 

43. Reduced to the barest essentials the guiding principles and precepts are as follows. The welfare of the child is the paramount consideration. That is the only true principle. In deciding, in a case such as this, where a child should be located it is necessary for the court to consider the proposals both of the father and of the mother in the light of , inter alia, the welfare check list (whether because it is compulsorily applicable or because it is a useful guide) and having regard to the interests of the parties, and most important of all, of the child. Such consideration needs to be directed at each of the proposals taken as a whole. The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

  1. For the reasons given by my Lord, in the present case the judge’s reliance on the Payne v Payne criteria led her away from carrying out the necessary overall welfare analysis that was needed

 

If you are a proper law geek and you are wondering how the Court of Appeal can strangle Payne v Payne when it was a Court of Appeal decision and stare decisis applies  (i.e the Court of Appeal is bound by Court of Appeal decisions unless the Supreme Court or statute changes), then here is the answer

 

 

  1. The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation. The caution expressed by Dame Elizabeth Butler-Sloss P in Payne went unheeded, namely that guidance that had been derived from authorities such as Poel v Poel [1970] 1 WLR 1469 was being expressed in “too rigid terms” and ‘unduly firmly’ with an over emphasis on one element of the case. I respectfully agree with her and with the benefit of hindsight the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem.
  2. Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it, to which I will return in due course.
  3. The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:

    “[37] There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the evaluation of where the child’s interests truly lie is to be determined having regard to the ‘welfare checklist’ in section 1(3)”

    “[61] The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount. Every case must be determined having regards to the ‘welfare checklist’, though of course also having regard, where relevant and helpful, to such guidance as may have been given by this Court”

 

 

For those, such as Ian (Forced Adoption) who are not fans of the word ‘holistic’, there’s a bit at the end of the judgment where McFarlane LJ who has inadvertenly popularised the term rather deprecates its overuse (and misuse). He points out that it is not a new or novel creation, but a restoration of the way that the law had worked and decisions HAD been made before a “linear method” had taken hold and moved us away from a proper practice of looking at the whole of the relevant evidence and issues and making a decision that was in the child’s best interests.

 

  1. The word ‘holistic’ now appears regularly in judgments handed down at all levels of the Family Court. This burgeoning usage may arise from my own deployment of the word in a judgment in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2014] 1 FLR 670 where, at paragraph 50, I described the judicial task in evaluating the welfare determination at the conclusion of public law children proceedings as requiring:

    i. ‘a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.’

  2. Having heard argument in this and other cases, I apprehend that there is a danger that this adjective, and its purpose within my judgment in Re G, may become elevated into a free-standing term of art in a way which is entirely at odds with my original meaning.
  3. In the judgment in Re G my purpose in using the word ‘holistic’ was simply to adopt a single word designed to encapsulate what seasoned Family Lawyers would call ‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child’s welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic’ in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation.
  4. Reference to ‘a global, holistic evaluation’ in Re G was absolutely not intended to introduce a new approach into the law. On the contrary, such an evaluation was put forward as the accepted conventional approach to conducting a welfare analysis, as opposed to a new and unacceptable approach of ‘linear’ evaluation which was seen to have been gaining ground.
  5. In the context that I have described, it is clear that a ‘global, holistic evaluation’ is no more than shorthand for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist [CA 1989, s 1(3) or Adoption and Children Act 2002, s 1(4)]. Such an analysis is required, by CA 1989, s 1(1) and/or ACA 2002, s 1(2) when a court determines any question with respect to a child’s upbringing. In some cases, for example where the issue is whether the location for a ‘handover’ under a Child Arrangements Order under CA 1989, s 8 is to take place at MacDonalds or Starbucks, the evaluation will be short and very straight forward. In other cases, for example a case of international relocation, the factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child’s welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’.

 

 

 

Note also that whilst Ryder LJ emphasises and endorse the ‘balance sheet’ approach of the Court having a tabular document setting out the pros and cons of each option, McFarlane LJ deprecates that

Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ’s judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a ‘balance sheet’. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.

 

It will not amaze anyone to know that I am firmly with McFarlane LJ on this.  A balance sheet approach can easily distort a case  – you could produce a table that has 2 cons and 14 pros, but the cons could outweigh the pros because of the weight attached to those two things, whereas some of the pros could be fairly trivial in significance. A visual image of a table with 2 cons and 14 pros, however, is going to lead to an impression that the option is desireable and that the balance is firmly in its favour.

 

As the third Judge, Clarke LJ merely says this, in relation to the weighing up exercise

The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

 

the issue of whether Balance Sheets are, on balance, good or bad, remains a live issue to be resolved.

 

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Wrongful arrest and detention under a location order

Posted on August 6, 2015 by suesspiciousminds

The High Court address a situation in which a woman was unlawfully removed from a plane and arrested as a result of misunderstanding about a location order.

 

Taukacs v Taukaca 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2365.html

 

In this case, the Court had made a location order, that would require the production of the child’s passport, revealing information about his location and preventing him from being removed from the country whilst the Court make decisions about the child’s longer term future.

 

This was served on local police, who went to mother’s home. She provided them with the child’s passport and gave them information. Very specifically, she told them that she had a flight booked for a holiday to Spain, the child would not be going, and asked if she could still go. She was told that yes, the order prevented the child leaving the UK but not her.  To double-check, she visited the local police station to ask the same question and was given the same answer.   What she was told was quite right.

 

However, when she got on the plane, this happened

  1. Having very creditably taken those steps, the mother must have gone with some confidence last Saturday to Birmingham International Airport with her friends in order to fly on Saturday evening to Palma in Spain. She actually boarded the aircraft, but, after she had boarded and before the aircraft took off, she was removed from it. I will now take up the narrative by reading from the short witness statement dated 2nd August 2015 made by a police constable of the West Midlands Police currently stationed at Birmingham Airport Again, it would not be fair in a public judgment to name that police constable. She says:

    “On Saturday, 1st August 2015, I saw a woman in the front office area of the police station at Birmingham Airport who I now know to be Ludmila Taukaca. I was made aware by officers that Taukaca had been removed from a Monarch flight departing to Palma, Spain, this was due to her breaching a High Court order which stated that she was not to leave the United Kingdom and that she had to surrender her passport. Taukaca only spoke Latvian and Russian, so in order to communicate with her I used Google translator on my personal mobile telephone. At 23.00 hours I informed her that she was under arrest for breaching the court order. Language Line was then contacted and the facts of arrest explained to her. Taukaca was then transported to Solihull police station where the facts were related to the custody officer and her detention authorised. I had no further dealings with Taukaca.”

  2. Pausing there, it seems to follow from that that this lady was arrested and then detained in custody for two reasons. First, that she had not surrendered her passport. Second, that she was attempting to leave the United Kingdom. The police at the airport and later at Solihull police station took the view that both of these facts were breaches of the order. The police at her home, and later at West Bromwich police station, had both expressly told her that she could travel and was not required to surrender her passport. Essentially, following that, Mrs Taukaca has been held in custody ever since, as I have said, and was brought here by escorts this afternoon. She was held for a time in the cells here at the Royal Courts of Justice.
  3. One has only to consider those facts to appreciate that this matter has what I would regard as scandalous elements. This lady did produce her own passport to the police. They looked at it, but did not take it with them and left it with her. This lady did tell the police that she had a booked holiday to Spain a few days later and asked whether she could lawfully go. The police told her that she could. This lady took the extra trouble and precaution, which few people might have done, of going to a police station on Friday, together with her friend, to check whether she could lawfully travel to Spain. She was told that she could. She got as far as being on the aircraft when she was removed. That of itself must have been a degrading and humiliating experience and, probably, very frightening for her; and she has now suffered being detained in custody, as I have said, for something of the order of now 42 hours and two nights, and of course missed her holiday.

 

 

She was held in the cells for about 42 hours before the case came before Holman J and it was appreciated that she ought never to have been arrested.

 

The problem, Holman J identified, was with the standard pro forma order,  that the Tipstaff circulates to the police force.

The problem which this case throws up is the language of the standard form location order. Paragraph 2 of the order in this case, which is in standard form, reads as follows:

“The respondent [viz in this case Mrs Taukaca] and/or any other person served with this order must each hand over to the Tipstaff (for safekeeping until the court makes a further order) as many of the following documents as are in his or her possession or control:-

(a) every passport relating to the child, including an adult’s passport by which the child is also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child to leave England and Wales; and

(b) every passport relating to the respondent and every identity card, ticket, travel warrant or other document which would enable the defendant to leave England and Wales.”

 

I have to say that I myself would read (b) in the same way that the officer at the airport read it, that the mother had to surrender any travel document that would allow her to leave England, she had clearly got such items in order to get through airport security, ergo she was in breach of the order. I can quite see why the officer at the airport read it in that way.   The problem is the ambiguous use of “defendant” in that standard order – who can it possibly mean other than the mother?

 

Pausing there, the first source of ambiguity leaps off the page of that part of the prescribed standard form order, although I have to say that it is not an ambiguity that I, myself, have ever spotted or noticed before. The heading of the order describes, in this case Ludmila Taukaca, as “respondent”. The opening words of paragraph 2 require “the respondent” to hand over the specified documents, but, when one gets into the detail of sub-paragraph (b), it will be noticed that it meanders between a reference to “the respondent” and a reference to “the defendant”. So far as I am aware, at any rate in this particular version of this order, it is only within paragraph 2(b) that there is any reference to the words “the defendant”. But at all events, what the person designated as “the respondent”, namely in this case Ludmila Taukaca, had to hand over was any passport relating to herself “which would enable the defendant to leave England and Wales”. It leaves completely unspecified who is meant or intended by the words “the defendant”, but a police officer might reasonably suppose that the reference to “the defendant” was a reference to somebody other than “the respondent” and, perhaps, that it was some further reference to the child concerned.

 

 

In this case, the police who first attended asked to see the mother’s passport and she showed it to them, but they did not ask her to hand it over, as their reading of the order was that they were to take any documents that would prevent the child from being taken abroad.

 

The fact that two different sets of police officers read the order entirely differently is more the fault of the order than the police.

  1. Assuming, however, that paragraph 2(b) did not contain that ambiguity, then it is a clear direction to hand over to the Tipstaff, or in a case like this to the police officer executing the order, every passport, etc., “relating to the respondent”. If and when the police officers last Wednesday looked at Mrs Taukaca’s own passport, which she had handed to them, but then placed it back on the table and left it with her, when they left her home, it was the officers who were failing to understand or failing to discharge their duty under this order. It was not Mrs Ludmila Taukaca, who, it will be remembered, cannot speak or read English.
  2. One then reads on to paragraph 4 of the order. That provides as follows:

    “The respondent and/or any other person served with this order must not knowingly cause or permit the child:-

    (a) to be present overnight at any place other than the place where the child was staying at the time of service of this order; or

    (b) to be removed from the jurisdiction of England and Wales.”

  3. So far as paragraph 4(a) was concerned, this particular child, M, was staying, at the time when the order was served upon the mother in Smethwick, at the address of his brother in Northamptonshire. As I understand it, M has continued to stay at the address of his brother in Northamptonshire seamlessly between last Wednesday and now, so the mother has not been, and is not, in breach in any way whatsoever of paragraph 4(a).
  4. Quite clearly, the whole of paragraph 4 is directed to the whereabouts of “the child” concerned, and a prohibition on causing or permitting the child concerned to be removed from the jurisdiction of England and Wales. Here is the ambiguity and tension in this standard form of order which seems to me to have led to what I have described as a scandalous situation in the present case.
  5. Paragraph 2(b) does require the handing over of passports and similar documents “relating to the respondent”. If they are handed over, then the effect and intention would be to prevent the respondent from travelling out of England and Wales. I have, however, already pointed out ambiguities within paragraph 2(b). The focus of paragraph 4 is a clear and express embargo on removing the child from England and Wales, but neither paragraph 4 nor any other part of the order expressly prohibits the respondent parent from leaving England and Wales. Indeed, it may require very careful consideration whether there should be any restriction on the parent, as an individual and free person, from leaving England and Wales, provided only that the child, who is the subject of the application, is not able to leave England and Wales.
  6. At all events, it seems to me that the way that the police officers, who attended last Wednesday, interpreted this order was that it required them to remove the child’s passport, which they did, and contained an embargo upon the child leaving England and Wales, but no embargo upon the mother herself leaving England and Wales. So it was that, as the mother herself describes, the police said to her words to the effect that, “Yes, you can travel to Spain. It is nothing to do with you, but you cannot take your son abroad.” The same ambiguity seems to have influenced the police officer whom the mother saw and from whom she received advice and reassurance when she attended at West Bromwich police station on Friday.
  7. It seems, therefore, that, as a result of ambiguities in a standard form of order, which judges of this Division have been making now for many years, a terrible injustice was done to this lady. I have explained all this at some length in this public judgment. I have ordered that a transcript of this judgment must be made as a matter of extreme urgency. I personally am last sitting on Wednesday of this week before I go for several weeks of holiday. I intend to ensure that the official approved transcript of this judgment is placed upon the BAILII website before I go. It must be very urgently drawn to the attention of the President of the Family Division. It must, of course, be very urgently and seriously considered by the Tipstaff. It seems to me vital that very urgent steps indeed are taken to clarify and improve the wording of this standard form of order so as to avoid that any other person suffers the injustice and indignity and loss of freedom which this lady has suffered.

 

 

 

  1. I wish to stress very clearly indeed that, so far as I am concerned, Mrs Taukaca has not in any way whatsoever broken any court order. This is not a situation in which she has “purged her contempt”. Rather, she was never in contempt of court at all. She should never have been arrested, still less, detained, and I order her immediate release, repeating as I do a very sincere and unreserved apology on behalf of the legal system. But I wish to stress also that I do not intend in anything that I have said any criticism whatsoever of any of the police officers who were engaged in this case. Frankly, the fault lies with the language of the order and for that, ultimately, the judges must take responsibility.

 

 

It is remarkable that a standard form of order, that has been used for around four years, and has been regularly seen by the very brightest High Court Judges and counsel who are capable of dealing with international law cases (who tend to be bright people) has had these ambiguities within it for all that time.

 

And as a result, this lady has had the indignity of being removed from a plane and arrested, missed her holiday, and spent 42 hours in a cell.  As a result of a poorly drafted clause in a standard order.  Where’s Christopher Booker when you need him?

 

The transcript at the end makes a very sad case even sadder – it was really clear that this woman had no possessions, them having been confiscated, and absolutely no idea how to get across London to Euston station so that she could go home to Smethwick.  You don’t often read Court transcripts that make you want to give someone a hug  (and I have delivered precisely six hugs* in my entire life to people I wasn’t in relationships with, so I’m no hugger ) but this one did.

 

[*Half of those were a mistake, with the benefit of hindsight.  I saw the trailer for the film “The Martian” last weekend, where Matt Damon gets accidentally stranded on Mars and will be entirely alone for years until a rescue mission comes and I believe that I actually sighed wistfully / with jealousy]

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Tag, you’re it

Posted on August 6, 2015 by suesspiciousminds

A follow-up from last week’s case involving a decision that children whose parents were suspected of intending/attempting to take them to Syria to a war zone should be at home with the parents, with the parents being electronically tagged to prevent a recurrance.

 

You may remember that during that piece, I expressed some reservations about how the scheme would operate and who would pay for it.

 

Well, part two of

 

X and Y (children) No 2  2015

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

 

raises that particular question and then doesn’t answer it.

 

The answer is, that in THIS PARTICULAR CASE but not other future ones, the Ministry of Justice agree to pay.

  1. By the time the matter came on for hearing before me on 3 August 2015, Mr Alex Ustych, on behalf of MoJ, was able to tell me on instructions that it would take approximately a fortnight to put all the arrangements in place for GPS tagging. He was also able to say that, having considered its position further since filing its submissions, MoJ was willing, if I took the view that there should be GPS tagging, to meet the cost in this case without having recourse to any of the parties for any payment.
  2. That, as he made clear, was entirely without prejudice to MoJ’s position as I have summarised it in paragraph 2 above, and is not to be treated as a precedent in any future case. In particular, the fact that MoJ is willing in this case to agree to meet the cost does not mark any departure from its fundamental position that the court has no power to order MoJ or NOMS (or, I assume, EMS) to bear the cost of providing GPS tagging.

 

You may have picked up the not comforting crumb that it will take a fortnight to get the tagging sorted out.

So what about future cases?  Well, it seems fairly plain that the MOJ would at the very least want to have an argument about it, and as we learned from the Court of Appeal decision about whether the President’s suggestion that the MOJ/HMCS should pay for costs of a litigant where article 6 would be breached  (no statutory power, so no thanks)  they might well win there.

 

Can the costs be split between the parties?  Well, if you were a solicitor for the parents or child, there’s no way on Earth that you are writing that cheque without the Legal Aid Agency agreeing. And I am certain that they won’t.  Putting a tag on a parent can in no way be construed as an assessment of the parent. What are you assessing? Whether they will run away if there is an electronic device that prevents them from doing so?

 

If you want an expert to assess that, I am available to conduct the assessment.  It will be a very fast turnaround, and my report will consist of the words, “No, they won’t. I don’t know what they will do when you take the tags off”

So, that leaves the good old Local Authority.   Well, what’s sauce for the MOJ goose is sauce for the gander too.  Please find me the statutory power that allows the Court to order the Local Authority to pay for electronic tagging.  I don’t mind waiting.

 

I’m afraid that the very next Local Authority who have to go to Court because children in their area have been involved in an attempt to take them to Syria are going to have to go through this entire argument all over again.

 

And I will add in another argument – it is still really unclear what would happen if one or both of the parents does not consent – is there a proper statutory basis for an interference with their article 5 rights?  It is probably easier if both refuse, because then the children just can’t be placed with them, but if one says yes and the other says no? tricky.

 

If you WANT to enter into this arrangement, the President does set out a very useful template order.

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Irn Brouhaha

Posted on July 16, 2015 by suesspiciousminds

 

I apologise to any readers north of the border for that dreadful gag.

 

Re M 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/2082.html

 

The quick summary on this was “mother applies to discharge care order and in the alternative for more contact” so I wasn’t expecting much out of the case when I opened it up. But then I saw four Silks in the case and I thought “oh hello”

 

In very brief summary, His Honour Judge Dowse made findings that a father (F1) had sexually abused a child. The mother’s resistance to accepting those findings and her continuance of a relationship with father led to a series of care proceedings, ending up with seven children being permanently placed away from the mother.  The oldest C1 is subject to a Freeing Order but has not been adopted, the next oldest C2 is placed with an aunt, C3-C7 have all been adopted.

 

And then there is child C8, who is presently living with mother and her new husband (F2) in Scotland, under no orders.

This is the Irn-Brouhaha  –  the Scottish equivalent of care proceedings was brought in Scotland in relation to child C8 and the Court there concluded that there had not been any sexual abuse, and thus no failure to protect.

That was all well and good for the mother and C8, but raised obvious questions of what should happen with child C1 and C2.  If a Court rules that there was no abuse and there is no risk, should they come home?

 

As you may know, I am no admirer of the 350 page limitation, so I had to smile at this particular line from Hayden J

So scrupulously have the documents been pared down for the application before me, in compliance with the President’s Guidance, that it is not possible to track the evolution of these proceedings clearly from the papers filed.

 

 

The big argument for the case was therefore – what legal status does the Scottish judgment on C8 and the sexual abuse allegations have on the English Courts dealing with C1 and C2?

 

  1. In the course of the proceedings in Scotland the Court was persuaded to re-open the findings of HHJ Dowse. At the conclusion of the Scottish hearing, before Sheriff O’Carroll, the court reached a very different conclusion. In his judgment of the 30th October 2013 the Sheriff found that he was unable, on the evidence before him, to find that the Reporter (whose status is similar to that of the Local Authority in England) had discharged the burden of proving, to the civil standard, that M and F1 had been involved in the sexual abuse of any of their children. The allegations, on this aspect of the case, had been placed before the Scottish Court in this way:

    “2. On various occasions between 22 February 1998 and 1 October 2005, at various addresses in the north of England, exact addresses meantime unknown, M and F1 caused C1, C3 and C4 (who were all under the age of thirteen at the relevant times) to participate in sexual activity and caused them to touch, with their hands or their mouths, the genitals, anus and breasts of M and the penis of F1.

    3. Statement of fact 2 demonstrates that M committed an act of lewd and libidinous practices and behaviour. This an offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995.”

  2. In respect of these allegations the Sheriff stated in his judgment:

    “320. […] However, I am unable on the evidence before me to find that the reporter has discharged the burden of proving to the civil standard that statement of fact 2 is proved. It follows that SoF 3 is not proved.”

    By contrast Judge Dowse found:

    “Both parents were involved in explicit and inappropriate sexual behaviour with C1, C4 and C3 and neither protected the children from the other.”

     

 

It is always curious to see how wording differs in other countries – the ‘lewd and libidinous’ adds something here, I think.

 

Non lawyers may not be aware that Scotland has an entirely separate legal system to England and Wales – the statutes are different, the process is different and they have their own case law. The only time that the cases cross over is when the Supreme Court has to decide a case, when the Supreme Court (which is full of English Judges) has to apply Scottish law to the case and reach a decision.  This means establishing whether the Scottish judgment has any legal weight is not a simple task.

 

 

25. Mr Tyler and Mr Booth have drawn my attention to: Stare Decisis and Scottish Judicial Decisions, J.K. Bentil, [1972] Modern Law Review 537. They adopt the analysis of the legal status of Scottish judgments on the law in England and Wales set out in that paper:

    1. “Apart from the fact that some Scottish judicial decisions which go on appeal to the House of Lords may create binding precedents for the English Courts, the effect on English courts of certain Scottish judicial decisions in their own right appears to have received little or no attention this side of the border. Theory has it that generally Scottish judicial decisions are not binding on the English courts but have persuasive effect only. But in actual practice, the weight of authority on this side of the border tends to suggest that certain Scottish judicial decisions, notably those concerned with the interpretation of statutes of common application on both sides of the border, are indeed binding on English courts.”

The ultimate conclusion reached is as set out in paragraph 20 of their Skeleton Argument:

“Although we cannot assert the Sheriff’s judgment to have a formal (in the sense of automatically enforceable) status, it is clear that it has some status, or perhaps better worded, a ‘real significance’.”      

 

 

 

 

 

 

 

I always dread to type the words Brussels II  in a blog post, but I have to.  (It always makes me think of Stephen Hawking’s publisher telling him that every equation in “A Brief History of Time” would cut sales in half. He only actually used one, in the final version)

Very briefly, if the Scottish judgment here had been in Lithuania, or France, or Portugal, the English Court would have to take it into account, and of course, mother could argue that under article 15 the case ought to be dealt with entirely by Scotland.  but Brussels II specifically does not apply to cases between England and Scotland.

In Re PC, YC & KM (Brussels II R: Jurisdiction Within the United Kingdom) [2014] 1 FLR 605 Baker J observed at para 16:

“It is widely recognised that the provisions governing conflicts of jurisdiction in children’s cases within the UK are, in the words of Thorpe LJ in Re W-B, supra, at paragraph 29, “difficult and complicated.” He was referring in particular to the provisions of the Family Law Act 1986, but as Miss Green has demonstrated, there is similar difficulty and uncertainty as to the applicability of BIIR to the allocation of jurisdiction within the UK.”

Nonetheless he went on to conclude at para 18:

“Given the clear view expressed emphatically by the Court of Appeal very recently in Re W-B, I reject Miss Green’s submissions and adopt the orthodox view that BIIR does not apply to jurisdictional disputes or issues arising between the different jurisdictions of the United Kingdom. Article 15 could not, therefore, be used to transfer these proceedings from England to Scotland.”

 

So the nutshell answer, after four QCs have sweated over it and a High Court Judge have looked at it is, “the Court don’t HAVE to consider it, but probably best not to just ignore it”

We then get into the law on re-opening cases.

Hayden J sets out all of that law very beautifully, but I think that I will cut to the chase, which is Lady Hale’s line In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11.”  about situations in which a party wants to challenge findings that had been made by an earlier Court.

“In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”

But also

    1. “(a) that there is a public interest in an end to litigation – the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; [1997] 1 FLR Hale J Re B (CA Proceedings) (Issue Estoppel) (FD) 295”
    1. (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but
    1. (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and
    1. (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 947, ‘must be applied so as to work justice and not injustice’.
  1. In a further passage that I find has particular resonance to the issues in this case Hale J observes:

    “(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone.”

     

It is ultimately a matter of Court discretion to decide whether to re-open previous findings, but a Court is allowed to consider that there’s limited value in re-running the case unless there’s a decent chance of arriving at a different outcome.

Of course here, we have two judgments, in different countries, which reach diametrically opposite conclusions. That led to some of the barristers having to argue that the Scottish judgment was an exemplar model of the way these things should be done and that HH J Dowse’s judgment was so flawed it ought to have been appealed anyway  (so the Scottish judgment is so superior it establishes a reason for re-hearing) and others having to argue that they were merely Judges reaching different conclusions.

I myself rather liked Mr Howe QC’s approach for the Guardian  (but the Judge did not)

  1. Mr Howe QC, on behalf of the children, engages with these factors in a rather different way and comes to the following conclusion:

    “The Guardian has taken into account the impact on C1 of the court concluding that the allegations were not proved but on balance, and for the reasons given, it is submitted that the balance falls in favour of the court permitting some reconsideration of the findings made by HHJ Dowse on 17th October 2007.”

  2. Mr Howe also submits:

    “the weight to be attached to the Scottish judgment does not arise from any assessment of its merit as an expression of the forensic exercise undertaken. The weight of the Scottish judgment is in its effect. Looking at these circumstances from C1’s perspective, it would be incomprehensible to her that the English court did not ‘think again’ and reconsider, not necessarily overturn, but at least take another look at the allegations given what was found in the Scottish court and how the findings there have enabled a relationship between C8 and M and F2 that, on the evidence before this court, appears to be entirely appropriate and beneficial for him.”

  3. Finally, Mr Howe comments:

    “It is submitted that C2 has to be granted the possibility of some relationship with her sibling and mother by the court agreeing to reconsider the previous findings.”

     

I know that not everyone is fluent in Elegant, so to translate  “It is really important for these children to get to the truth, whatever that might be, and whichever of these judgments is right the fact that they directly contradict each other means that at the moment there is doubt, which can only be eradicated by a re-hearing”

[I  agree with Mr Howe QC here. But as I told you, the Judge did not.  And he was not shy about saying so]

  1. It is self-evident that the interests of neither child is served by an erroneous determination of fact. Such a statement is platitudinous out of context. More than that it can be a dangerous, siren call unless it is considered carefully alongside the other features identified by Hale J in Re B. It is important to recognise that the factors she there identifies are inevitably interrelated. Thus: the insidious dangers of delay have to be considered alongside the more obvious damage caused by erroneous findings of fact. These tensions are notoriously difficult to reconcile and are ever present in family law.
  2. As the President identifies in ZZ (supra), the court’s discretion has to be applied so as to work ‘justice and not injustice’ and so the starting point is, again as he identifies, whether there is ‘some real reason to believe that the earlier findings require revisiting’. That seems, to my mind, to resonate closely with the observations of Hale J: ‘whether there is any new evidence or information casting doubt on the original findings’ (Re B supra). With respect to the Guardian, her views as to the value to C2 of ‘having another look’ lose focus on these important principles and fail to give sufficient weight to the real impact on these children of once again re-opening litigation, which itself may fail to resolve the present situation.
  3. Moreover, I am not prepared to draw the inference, suggested by Mr Howe, that because C1 instigated a further interview, following the Scottish Judgment, she therefore should be taken as signaling a willingness to participate in further litigation. She does not know, for example, what the reach of further litigation might be, nor does she yet have the maturity to understand what its impact on her could be. Before concluding that an issue should be reheard there must really be a substantial reason to believe that further litigation will achieve some clarity. In the light of my view of the validity of each of the respective judgments and finding myself un-persuaded that there are any other solid grounds for believing that a rehearing will result in any clarification of the present position , I can see no basis upon which to grant the application for a rehearing of the English proceedings.

 

[There is a lot in the judgment about a factual comparison between the judgments, and the basis on which the Scottish courts reached a different conclusion. I’m afraid that you would need to read that to fully grasp why on the facts the Judge felt that a re-hearing of the allegations was unlikely to reach a different result.  In very brief terms there were two major issues – that the Scottish Courts had relied on an expert doing something like a ‘veracity’ assessment which is out of favour here and the issues that came up in it were things that HH Judge Dowse had taken into account anyway, and that reliance had been placed on the children saying different things in an ABE interview done years later and the Court felt that this was not unexpected.   I wouldn’t say that I end up wholly agreeing with the conclusions, but because the decision here is largely fact-specific, you do need to read those sections to form your own conclusion about whether the Judge here was right. ]

And finally – wider interest

    1. Finally, I very much regret the delay involved in delivering this judgment. The case provides a powerful reminder of the consequences that ensue when the advocates fail to allow sufficient time in their estimates of hearing for a judge to write and deliver a judgment. The provision of one day to write this judgment is, I hope, self evidently inadequate. All counsel must regard it as a professional obligation to factor time for the judge to write and deliver a judgment into their time estimates. This is a professional duty which should be seen as a facet of the requirement to avoid delay in proceedings concerning the welfare of a child. I take the opportunity here to highlight a pervasive problem which requires to be addressed more widely.

 

It must certainly be the case that a judgment which requires a Judge to look at the intersection of Scottish and English law, Brussels II and all the law on issue estoppel was foreseeably going to take more than a day to write.   I wonder how in a more normal case, counsel are to arrive at a time estimate for a Judge to write the judgment, presumably at IRH so that time can be allocated within the Court listing for the final hearing    (Those advocates who feel the case is a slam-dunk are likely to be estimating 2-3 hours, those who are hoping to persuade the Court that the case is finely balanced before tipping in their favour are likely to be estimating 2 days so that the Court can see that this is a really tricky case which will need very long thought)

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contact handover at Manchester airport

Posted on July 9, 2015 by suesspiciousminds

 

Contact handovers are often pretty fraught affairs. Getting through airport security and getting on a plan can also be a pretty fraught affair.  If you combine the TWO, AND you have one person who is more than happy for the children not to get on the plane and who has got there as late as possible, that’s a toxic combination.

 

Re P (A child :Enforcement of contact order) 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/B9.html

 

The reason for the airport is because the father lives in Sweden, and he comes to England to collect the children and then take them to Sweden for his contact.  As the Judge remarked, the fact that he had made 37 flights to England in a year was illustrative that he was committed to spending time with his children.

  1. The events of 22nd May 2015
  2. The flight booked for the children and father to fly to Sweden left from Z Airport at around 6:30pm. Boarding closed at 6:10pm. The father was waiting at an agreed place at the airport and began sending texts enquiring as to the children’s late arrival from about 5:00pm. The father indicates, and the mother accepts, that she generally arrives at about 5:40pm. She insisted that a 5:40pm arrival was entirely realistic for a 6:30pm flight. In any event, the mother told me she could not be any earlier as she and her husband had to collect the children from school at 3:30pm, arrange for them to change and then to drive from school to Z Airport. She complained that the father should have booked a later flight. I accept his evidence that such a flight would involve changing planes, for example, at Copenhagen and this was the latest direct flight from Z Airport.
  3. However, on this occasion and contrary to her evidence to this effect, the mother did not even arrive at 5:40pm. It may be that she was in the vicinity of the airport at 5:40pm, but it is clear from the texts sent by the father at that point in time, which he was able to produce, asking where she was, that she was not at the agreed meeting point. I accept the father’s evidence that she arrived around 6:00pm. By this stage, the father was highly and rightly anxious about missing the flight since he and the children still had security and passport control to navigate in a large, busy airport. I find that this is the pattern for the handover at the airport with the children and father usually having to run so as to avoid missing their flight. I reject the mother’s insistence that, “They were not too late. They still had half an hour to board the plane.” My sense was that the mother was resentful as to the detail of the arrangements, was not troubled by her late arrival and was making no effort to facilitate the speedy handover of the children, saying they were “upset as usual.”
  4. I cannot be sure of all the precise details, but, in summary, the mother did not exhibit any sense of urgency. The father became increasingly frustrated. The mother’s husband saw fit to intervene. Eventually, the father took hold of both children by the hand and began to try to get them through the security barriers. The mother objected and began shouting and screaming. Airport staff intervened and called the police. The children were hugely distressed. When asked in the presence of their mother if they wanted to go with their father, they said no and the police left them with their mother. By that stage, of course, the children and father had missed their flight in any event.
  5. The mother in her written statement and in her oral evidence insisted that the children were made the subject of a police protection order:

    “The police protection order was to last until 31st May, during which time E was to have no contact with the children.”

At this point, every single lawyer in the country is thinking that the mother is a liar.

 

The Judge explains why

The granting of a police protection order pursuant to s.46 of the Children Act is a formal process governed by detailed procedural requirements, none of which the mother was able to evidence. Of course, a police protection order can as matter of law only last for a maximum of 72 hours and not nine days. On the evidence currently before me, the “police protection order” was a fiction of the mother’s imagination. It is no coincidence that this supposed order covers the whole of the period during which the children were supposed to be with their father in Sweden. I note the mother’s complaint that, “Even during this time the father was trying to call and Skype the children.”

 

Obviously, the whole situation must have been horrible, and the Court acknowledge that, whilst understanding that the father had been sorely provoked.

I do not find the father entirely blameless for the distressing scene at the airport, but understand the pressures he found himself placed under with the flight closing. On balance, I find that this scene was largely instigated by the mother’s behaviour. I do not accept that the children were inherently unwilling to go to Sweden, more that they were understandably confused and terribly upset by the behaviour of their parents.

It doesn’t reflect terribly well on mother that the children are basically travelling with no possessions at all, not even a change of clothes.

 

I was, for example, astonished to learn, very much in passing when I enquired about collection arrangements, that on the father’s visits, whether in the UK or Sweden, the children are sent in, literally, the clothes in which they stand up and with their passports in their hand: no change of clothing, no favourite toys, nothing to cuddle, no books, not even a toothbrush. When the father visits the UK, he is obliged to bring those items with him on the plane from Sweden. The same situation applies even when the children stay with him for four weeks during summer holidays The message this sends to the children as to the totally separate existences they have with each parent is deeply unfortunate and unhealthy. It is compounded by the mother’s refusal to speak to the father at points of handover. The reason she gave was, “I cannot bear to be near him.”

 

The Judge doesn’t say this, and I don’t normally go further than the Judge, but this is SHABBY.

 

There are features of this case that suggest to me that mother is inching towards the Court losing patience and sanctioning a change of residence if she continues on this path of frustrating contact and not complying with Court orders.

 

  1. I simply do not accept the mother’s florid descriptions of the children complaining desperately that they do not want to go to see their father. That is a repetition of the evidence which was demonstrably and comprehensively undermined by the findings of the CAFCASS officer, Mr Power, in his report dated 24th May 2012. If, which I doubt, the children do express such views to her, the most probable explanation is their understanding of her hostility to the father and their desire to please her, their primary carer. I prefer the father’s evidence that the children are loving and affectionate with him, enjoy the time that they spend together and are happy and relaxed with him and his family.
  2. In July 2014, the mother made allegations of sexual abuse against two girls who are friends of B in Sweden. Those allegations were taken seriously by the Swedish police and social work authorities and both girls and their parents have been interviewed. The Swedish authorities found no basis upon which any action could or should be taken. I found the mother’s attempts to blacken the father’s character by insisting that he approved of sexual relationships between young children unconvincing, bearing in mind that such an allegation has never been made before. The evidence, such as it is, does not come close to persuading me that B has been sexually abused.

 

 

I thank my lucky stars that I no longer have to deal with private law contact cases and handovers. It always meant that I spent the whole of Friday afternoon on the phone with (a) clients who wanted to cancel weekend contact for really spurious reasons and telling them not to do it and (b) clients who had just had their weekend contact cancelled for really spurious reasons and having to ring the other side and get it back up and running.

 

 

 

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The “Residence/Schmesidence Act 2015”

Posted on July 3, 2015 by suesspiciousminds

 

Having gruelled through two more cases where lawyers and Judges argued about ordinary residence, even quoting the Lady Hale comments about how these matters are essentially factual and not to get bogged down in legalistic quiblling before doing it anyway, I present my solution.

This will save the country money, free up Judges, and mean that none of us have to ever read these cases again

 

The Residence/Schemisdence Act 2015

 

Section 1

All legislation that involves the terms ‘ordinary residence’, ‘habitual residence’, ‘domicile’ ‘place of residence’ or ‘designated authority’ will hereafter use this Act for the purpose of determining where a person lives.  All previous case law attempting to define or prescribe or clarify those terms shall now have no effect and shall be replaced by the simple procedure in this Act.

 

Section 2

Any Judge who attempts to define, prescribe, clarify, interpret or otherwise futz with this test shall :-

 

(a) Have their decision in the case declared null and void and the case sent back for re-hearing,

(b) Pay the legal costs, on an indemnity basis of all the parties to the original proceedings and of the re-hearing,

(c)  Wear a dunce’s cap at any period when they are within the curtilage of a Court building, for a period of no less than thirty days  (and up to ninety days for repeat offences)  AND

(d) Have an usher sit beside them at all times when they are in Court (during the period prescribed in section 2 (c) above), and the usher shall wear a T-shirt with the legend “I’m with stupid” on the front of it. The legend shall incorporate an arrow and the usher shall be positioned so that a person looking at the arrow would have their attention directed towards the Judge.

[In the event that this is not clear enough, the Lord Chancellor has the power under this legislation to get medieval on your ass]

 

Section 3

3 (1) The procedure for determining where a person lives shall be as follows

3 (2) Ask them  [proceed to section 4 if the answer is not definitive, or not given]

3 (3) Then ask the other parties if they all agree

3(4) In the event of agreement, then the answer given by the person is where they live

3(5) In the event of dispute, the Court may use the following methods of dispute resolution but MUST choose and enforce one of them. The winner shall elect where the person is deemed to live and that decision is final

(a) The competing parties participate in a “who can hold their breath longest” competition.  The competition is covered by volenti fit injuria and no claims shall arise from any loss, damage or injury suffered as a consequence

(b) A dance off  (the Court’s decision on the victor shall be final and shall not be subject to appeal or challenge.  The party may nominate their legal representative to perform in the dance-off on their behalf.   [This may improve the ‘footwork’ at the Bar, ho-ho. It may also mean that barristers websites become more visually interesting as they advertise their ability to succeed in your case by demonstrating the shapes that they might throw]

(c) Pud-Pie, straight to London, no tipsys.   [Quelfie time :- https://suesspiciousminds.com/2015/05/07/things-id-like-to-see-in-judgments-but-never-expect-to/ ]

 

Section 4

4 (1) In the event that a person, on being asked the question at section 3 (2) above

 

(a) Answers  “I don’t know, really”  or  “It depends”  or “Not sure, what day is it today?”  then they shall be deemed to live in Dudley, West Midlands, England

(b) Answers “Wherever I lay my hat, that’s my home”, then they shall be admonished, made to write and send fifty two letters to the Paul Young fan club, and be deemed to live in Luton, Bedfordshire, England

(c) Declines to provide an answer, then they shall be forced to join the Paul Young fan club and act as secretary to such club writing replies to fan letters for a period of six months [In the light of section 4 (1) (b) above, it is anticipated that the workload of the Paul Young fan club may increase exponentially]   and be deemed to live in Slough, Berkshire, England.  Upon pronouncement of this decision, the Judge may at their own discretion add “By the look in your eye, I can tell you’re gonna cry, is it over me?  If it is save your tear, cos I-I-I-I-I am not worth it you see”

(d) Is not there, they shall be deemed to live in the Isles of Scilly

 

To be fair, his hair is completely great in this photo.

To be fair, his hair is completely great in this photo.

 

Section 5 

 

You are already trying to think of loopholes. Any lawyer, McKenzie Friend or litigant in person who makes representations to the Court, whether verbally, in writing, or in any other form of communication (including but not limited to British sign language, semaphore, heliograph, mime artists, smoke signals, carving submissions into representative and meaningful statutes)  offering alternative methods of determining where a person lives *shall have those representations completely and totally disregarded. Such person will also have committed an offence, and the offence will be punishable by the mandatory facial tattooing of that person with the words  “I really enjoy the musical oeuvre of Thomas Dolby and I WILL talk to you about it for hours if you give me the chance”

 

 Section 6

Housing lawyers who attempt to create trouble by referencing the Rent Act 1977 will be subject to the punishments in section 5 above, and additionally to be accompanied for a period of ninety one days by two musicians, one playing a kazoo, one playing the bagpipes, who will play nothing but songs by the band “Yes” and shall play for a minimum of four hours per day

 

 

*Version 1 didn’t include some key words, which would mean that anyone saying ANYTHING to a Court on ANY subject would get the mandatory Thomas Dolby tattoo. That seems unfair. But if it happened, just imagine being Thomas Dolby going to your local Aldi, and SUDDENLY seeing dozens of people who appeared desperate to talk to you.

[Annotations and explanations :-

 

4 (1) (a)  Why Dudley?  I spent more time arguing about designated authority with Dudley than with any other authority, and there was an absolutely untrue and apocryphal story that with one troubled family who lived in a caravan on the border between Dudley and  [name withheld] Dudley social workers went and pushed the caravan three feet onto our side of the border the night before the mother gave birth so that we would be responsible for the child.   Not true, but it is a story that people at [name withheld] told all the time

4(1) (b)  Luton is where he is from

4 (1) (c) Slough, just because….   And my friend Janet, who I worked with back in the mid 90s used to be the secretary to the Paul Young fan club

4 (1) (d) The Isles of Scilly have had zero care proceedings as their return for just about every statistical period that I can find. Even the Falklands have had more proceedings.  If you are the lawyer who does care proceedings in the Isles of Scilly, please contact me. I’d really like to talk to you about a Work-Exchange programme.

 

Dear Paul, sometimes when I play your record I think you are the only one who could ever truly understand me...

Dear Paul, sometimes when I play your record I think you are the only one who could ever truly understand me…

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Adoption and American immigration

Posted on June 22, 2015 by suesspiciousminds

I have been waiting since Re B-S for one of these cases to come up, and it finally has.

Where a family member is put forward to care for a child, and that family member lives in America, the net effect of American immigration law is that in order to be able to get the child into the country to live with that family member, you’d need an adoption order. Nothing less than that would do for American immigration authorities. BUT, does that amount to ‘nothing else will do’ for the English family Court?

 

Re S and T (children) 2015  looks at that issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1753.html

 

Much of the case also involves the horrid rigmarole because in order to apply for an adoption order in England, the prospective adopters need to be habitually resident in England or Wales AND to have had a home in England for 10 weeks before the application.  (In practice, this is an utter nightmare in any case where the relatives are American, as it just causes logistical problems that don’t arise in any other country).  So if you are interested in those matters  those are in the early parts of the judgment, and it shows you the tangle that the process can become.

But my real interest is in the analysis of whether the US immigration requirements of ‘adoption or you’re not coming in’ amount to ‘nothing else will do’

This case is made more complex because they were initially private law proceedings brought about because the father removed the children to Pakistan, their mother later died of cancer, and it seems that the children have been actually living in America since July 2014  (as a result of a ‘holiday’ order made by Singer J, permitting the children, who were wards of Court, to go and stay with their maternal great aunt and great uncle for a defined period of time.  It is the great aunt and great uncle who applied for an adoption order under s84 Adoption and Children Act 2002, with the intention of later applying for an adoption order under US law.

 

[There are complicated technical reasons why they had to do it that way round, but basically if the English Court didn’t make an Adoption Order, they wouldn’t be able to get one in America, and the children wouldn’t be able to live with them]

 

The father was not consenting to the plan of adoption, and was actively opposing it, and there was no Placement Order (or application for a Placement Order)

  1. The issues: can the father’s consent be dispensed with?
  2. The father opposes the making of any adoption order and any order under section 84 of the 2002 Act. The applicants submit that his consent can be dispensed with. He disputes this.
  3. In my judgment, it is clear that there is nothing in section 84 itself to preclude the court dispensing with the father’s consent. Regulation 11(1)(p) is clear recognition that section 52(1) applies to an order under section 84. Moreover, Form A61, the application form to be used in applications under section 84, contains, in Part 3, para (j), provision for an application to dispense with parental consent. The father’s argument, however, is based on the wording of Articles 4 and 16 of the Convention which, he submits, plainly contemplates that a Convention adoption such as is proposed in this case cannot proceed in the absence of parental consent.
  4. I have set out the relevant passages already, but for convenience I will repeat the critical wording. Article 4(c)(2) provides that an adoption can take place “only” if:

    “the persons … whose consent is necessary for adoption … have given their consent freely.”

    Article 16(1)(c) provides that the Central Authority of the State of origin “shall”:

    “ensure that consents have been obtained in accordance with Article 4.”

    Article 16(2) provides that the Central Authority of the State of origin “shall”:

    “transmit to the Central Authority of the receiving State … proof that the necessary consents have been obtained.”

  5. The Convention does not contain any provisions identifying what consents are necessary. On a plain reading of the Convention, it leaves it to the domestic law of the State of origin to determine what, if any consents, are “necessary”. This is borne out by paragraph 129 of the Explanatory Report on the Convention drawn up by G Parra-Aranguren:

    “The persons whose consent is necessary on behalf of the child are determined by the applicable law: it will usually include … the child’s biological parents.”

  6. English domestic law enables the court to “dispense with” a parent’s consent in accordance with section 47(2)(c) of the 2002 Act if the requirements of section 52(1)(b) are satisfied. Those provisions apply both where the application is for an adoption order and where the application is for an order under section 84: see regulation 11(1)(l). They likewise apply in a Convention case: see regulation 55.
  7. The point is, ultimately, a very short one, incapable of much elaboration, but, in my judgment, where the court has “dispensed” with a parent’s consent in accordance with sections 47(2)(c) and 52(1)(b), that parent’s consent is no longer “necessary” within the meaning of Article 4(c)(2). It is not “necessary” because it has been “dispensed with”. It follows, in my judgment, that the court can in principle, as the applicants contend, dispense with the father’s consent in the present case.

 

The President having decided that the Court COULD dispense with father’s consent, then had to decide whether it SHOULD.

  1. The issues: should the father’s consent be dispensed with?
  2. The father submits that, even taking all the available material at its highest, there is no basis upon which the court could properly dispense with his consent and that on this ground alone I should dismiss the applicants’ claim here and now.
  3. In short, the father’s case is that, although he has been the subject of many serious findings – a proposition not challenged before me – they cannot be determinative. Indeed, it is said, they are not sufficient, on a proper welfare analysis, to justify the severing of the children’s relationship with him through adoption.
  4. It is properly common ground before me that, if the father’s consent is to be dispensed with, the applicants have to demonstrate that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625. As the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.” The local authority makes the same point when it observes, and I agree, that what might ‘tip the balance’ in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.
  5. Putting the issue into context, there are two striking features of this case. The first is that the local authority, having considered the matter very carefully, has doubts (a) whether the ‘threshold’ in section 31 of the 1989 Act is met and (b) whether, even if threshold is met, it would apply for a care order, let alone a placement order. The second is that, in truth, adoption is being considered here only because of the seeming imperatives of United States of America immigration law. As the local authority puts it, the issue of adoption would certainly not have arisen but for the stance of the United States of America’s authorities. Counsel for the guardian was equally explicit: “It is purely the immigration requirements of the USA which dictate that although the dispute is between family members, a placement with the applicants will require an adoption process.”
  6. I make clear that neither of these factors can alone, or in combination, be determinative. One can, for example, conceive of a case in which “nothing else will do” precisely because of a requirement of foreign immigration law. But they are, nonetheless, very striking features of this case which must, at the very least, give one pause for thought.

 

 

The President is saying there that the US immigration requirement for adoption as a pre-requisite for the child living in the country MIGHT amount to “nothing else will do” or it MIGHT not. It isn’t determinative either way, and will depend on the merits and background features of the case.  [It appears that with strong reasons why the child can’t live with birth parents and has to live elsewhere, the immigration component might tip the balance, but where the ‘threshold’ component is weak, that it might not]

 

In looking at what might amount to ‘threshold’ against father, the President identified these matters

 

  1. What are the matters alleged against the father? They include, but are not limited, to the specific matters found by Sir Peter Singer as set out in his judgment given on 1 October 2014:

    i) Domestic violence of the father inflicted on the mother in August 2012 (judgment, paras 28-29): details can be found in the maternal uncle’s statement dated 11 April 2014.ii) The fact that the father removed the children to Pakistan in December 2012 without the mother’s consent (judgment, para 80(i)) – something emotionally abusive of both the mother and the children.

    iii) The fact that the father in effect abandoned the children between March 2013 and April 2014 (see paragraph 2 above), though he claims this was on the basis of legal advice he received in Pakistan.

    iv) The unlikelihood of the father fostering any kind of relationship between the children and the maternal family (judgment, para 79) – though this is something he now says he will do: see his statement dated 31 October 2014.

    v) The fact that the father put forward two bogus documents: a purported will of the mother dated 29 August 2013 and a purported “confession” of the mother (judgment, paras 80(ii) and 80(iii)).

    vi) The fact that the father “laid the ground for attempting” to obtain the insurance monies arising out of the mother’s death (judgment, para 80(v)).

    I am of course concerned with those matters which are relevant to the children’s welfare. It is hard to see that (v) and (vi), however deplorable, go to that issue.

  2. As against this, the following matters have to be borne in mind:

    i) Sir Peter Singer’s finding that the applicants and the children’s maternal uncle “deliberately” did not inform the father of the death of the mother “in order, as they sought, better to advance their own case for the children to remain with the mother’s family and in order to distance themselves from him for reasons which, because of his behaviour, are apparent” (judgment, para 80(vi)).ii) The quality of the contact between the father and the children as demonstrated, for example, by the records of contact sessions on 15, 17, 21 and 23 October 2014

     

 

I think that the Guardian’s conclusions are interesting and telling  (it is not really a right way to approach the law)

 

“I do not believe the father can meet the children’s global needs to the extent that [the applicants] can. I have sought in this report to delineate the differences between the father as a potential long term carer for the children in Pakistan and their great aunt and uncle in the USA.

The father’s position is not without merit and this is a finely balanced decision. If there was no one but the children’s father to care for them it is likely that despite his deficits he might be considered good enough. However if there is an alternative, and I accept that the mechanism for achieving an adoption placement for the children in the USA is inchoate, I take the view for the reasons adumbrated within this report, that this is preferable and in the children’s best lifelong interests than living with their father in Pakistan.

I fall back on the aspiration that this Court can do better for these children than place them with their father in Pakistan; it can honour and make possible their mother’s legacy because she knew what was best for her daughters.

 

That comes very close to (if not actually arriving at) a conclusion that if there were no  relatives in America, the children should be with their father, but because the children would have a better life with the relatives in America, adoption is the right plan.  That’s precisely the opposite conclusion of Y v United Kingdom 2012  (the case that launched Re B and all that followed it)  http://www.bailii.org/eu/cases/ECHR/2012/433.html “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

If the Court were approaching this as a pure ‘beauty contest’  – who comes across better, who might be able to meet the child’s needs better, with whom might the child have a better life, the maternal great aunt and great uncle would have won hands-down.  It is decidedly possible that if the great aunt lived in Ilford, not Illinois, and the order was a private law order rather than adoption, that the Court would have gone with that option.  There’s no presumption in private family law that a father would beat a grandparent or aunt. Re E-R 2015 for example http://www.familylawweek.co.uk/site.aspx?i=ed144557

 

But that’s not the approach with adoption.

 

It clearly isn’t the strongest set of ‘threshold’ or risks that father might pose the children, and the Guardian’s analysis whilst intending to be a reason why the Court should make the adoption order and allow the children to live /stay with their maternal family in America actually makes the legal argument as to why the Court shouldn’t.

 

 

  1. In these circumstances, the first question I have to consider is whether, on the evidence currently before me, I could be satisfied that the father’s consent “requires” to be dispensed with (the language of section 52(1)(b) of the 2002 Act) within the principles set out in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, and In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035; whether I could be satisfied that “nothing else will do.” The short answer is that I could not be so satisfied. I agree with the father that the material at present before the court falls far short of meeting the required standard. Taking the matters I have summarised in paragraph 68 above at their highest, the case for adoption is simply not made out. One really only has to consider what is said in the reports of LB and JP and, equally significant, what those reports do not say.
  2. This being so, the second question is whether the proceedings should nonetheless continue. This comes down to two questions: (1) Is there some solid, evidence based, reason to believe that with further forensic activity – the testing of the existing evidence by cross-examination or giving the parties an opportunity to adduce further evidence – the conclusion might be different? This requires a robust and realistic appraisal of what is possible, an appraisal which is evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. (2) Is there some solid advantage to the children in continuing the proceeding?
  3. In my judgment, there is no basis in the materials currently before the court for any belief that prolongation of the process carries with it any realistic prospect of the court ever being satisfied that the father’s consent requires to be dispensed with, that nothing else will do. The deficit in the existing evidence is simply too great to imagine that there is any realistic prospect of the gap being bridged. And in the circumstances, not least bearing in mind the length of time these proceedings have been going on, far from there being any solid advantage to the children in continuing the proceedings, their welfare requires finality now.
  4. The proceedings should now be brought to an end.
  5. I am very conscious that the consequence of this, in a sense, is that the father wins by default. The children go to him because the only alternative is ruled out because adoption is ruled out. But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

So the children were to be brought back to England by August, and to go back to the care of their father.

This, I think, is only the second reported case where a child was taken from prospective adopters who had been caring for the child for a significant period of time, and placed with either a parent or family member. The first of course was Holman J’s https://suesspiciousminds.com/2014/12/05/i-would-put-this-as-a-must-read-adoption-case-dynamite/

 

In that case, the interest of the child being placed with an aunt outweighed that of remaining with prospective adopters, in this one, the interest of the children being placed with dad outweighed that of remaining with prospective adopters who were family members.  (Blood is thicker than water, but parental blood is thicker than blood, perhaps)

Of course this one is rather different, since there hadn’t been any Court determination that adoption was the right plan for the child, and the plan of adoption arose solely as a result of US immigration law, but it does show that the Court is willing to implement the philosphy of Y v UK in real life cases and to reach decisions that it feels to me would not have been made in 2011.

Good luck anybody running a case with an American relative in getting the case done within 26 weeks.

 

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