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Extending an olive branch

 

 

I like to occasionally share with you the peculiar world of big money divorce cases, because when you are used to domestic violence, crack cocaine, scabies, gas-lighting and smearing (I hasten to add that is at work, not my personal life) hearing about people argue about how big a yacht they need is light relief.

 

The case name on this one stood out to me when I saw it on Bailii in the Family Court section of newly reported cases. See if you can guess why…

 

Christoforou v Christoforou (Alleged Removal of Trees from the Applicant’s land) [2020] EWHC 43 (Fam) (14 January 2020)

http://www.bailii.org/ew/cases/EWHC/Fam/2020/43.html

 

That’s been wrongly filed, I say to myself, says I. But no, it is in the right place. And it genuinely is a fact finding hearing as to whether or not a husband has cut down olive trees from his ex-wife’s land.

As part of the financial settlement in a sixty million pound divorce, some land was transferred from the husband to the ex-wife. In those proceedings, the Court had this to say about the husband’s honesty

 

9.In this context, I bear well in mind, as I must, that findings of previous attempts to mislead the court, or of outright lies found to have been told to the court, are not in themselves evidence that the respondent is necessarily lying to the court in the context of “the tree issue”. In his earlier judgment, reported as Christoforou v Christoforou [2016] EWHC 2988 (Fam), Moylan J made a number of clear findings against the respondent. He found, in terms, that he was a dishonest and unreliable witness. In paragraph 26, his Lordship said this:

 

 

 

“When assessing his evidence I have, of course, considered the extent to which it is based, for example, on faulty or mistaken recollection or the absence of documents. I have come to the clear conclusion that his evidence, when dealing with contentious issues, was largely based on an indifference to the truth and was motivated by what he seeks to achieve in these proceedings rather than on his true recollection of events. I am satisfied, from the way in which significant elements of the husband’s factual case have mutated during the course of these proceedings and from the way in which he gave his evidence, that this has to a significant extent been deliberate.”

 

The wife’s allegation was that when she got to her newly recovered land, fifty olive trees had been removed. In a huge coincidence, a piece of land that the husband owned acquired about fifty new olive trees. This is a head-scratcher, no?

 

I’m delighted to see that the wife had spent £500,000 litigating this issue (I really hope that means the recovery of the land, and not just the trees, but who knows?)

 

 

  1. The matter comes back before me today (i.e. 6 March 2019). The respondent continues to make no admissions in relation to liability notwithstanding that these matters have absorbed several days of court time and an enormous amount of the lawyers’ time with the inevitable expense which that has entailed. The applicant’s costs alone are now approaching c. £500,000 on this one issue alone.

 

I honestly think that’s just the trees.

 

The litigation included :-

 

Drone evidence!

Allegations that the drone evidence was tampered with.

A forensic expert to consider whether the SD card from the drone had been tampered with.

Tree experts!

The husband saying that he had bought the olive trees from someone else (that someone saying ‘yes, I sold him a bunch of very small and new olive trees, but not THESE ones)

The husband asserting that there were in fact NO olive trees on the wife’s land, but merely some straggly old trees which were just used as ‘windbreakers’ and were cleared.

The ghost of George Washington giving character evidence via Ouija board

 

(One of those things is not true. But only one of them)

 

My conclusions and findings

41.Having carefully reviewed all the evidence which is before the court, I am entirely satisfied that, on the balance of probabilities, the respondent was responsible for the removal of the applicant’s trees prior to the formal transfer to her of the plots of land on which they previously stood. If he did not physically assist in the removal of the trees, I am satisfied that he gave instructions to a team of contractors to carry out the removal. It is abundantly clear from the terms of Mr Cocking’s report that this operation would have involved a substantial number of man hours and, most probably, a significant amount of heavy lifting equipment to remove and transport the trees. It was, in my judgment, a substantial operation which was motivated by a desire not only to preserve what he could from land which he had fought tooth and nail to preserve in the context of the ongoing matrimonial proceedings: it was also, as I find, an act of pure spite against the applicant.

 

 

42.Whilst the respondent admitted removing eight “potted” palm trees, he has maintained throughout that he did not remove any of the missing olive trees as the applicant was alleging. In support of that ‘defence’ he has sought to construct an elaborate narrative into which he has woven various ‘explanations’ as to why her allegations are unlikely to be true. He has declined to submit himself for cross-examination in relation to his narrative, aspects of which are patently untrue in the light of the unchallenged expert evidence. I do not accept that the CAPO documents assist me at all in relation to the tree issue. These were provided to the SJE and found no traction whatsoever in Mr Cocking’s report. Further the statement from Mr Theodoridis dated 21 November 2018 confirming his conversation with Mr Cocking confirms specifically that the (transplanted) trees shown in situ on the respondent’s retained land identified in various photographs were not sold by his nursery business to the respondent. The statement confirms precisely what was sold to him (i.e. 48 small ornamental olive trees which were not trees designed for the commercial production of olives and none more than 6 years old at the most). The statement from Mr Theodoridis contains a statement of truth and has never been the subject of formal challenge by the respondent. I can only conclude therefore that this aspect of the respondent’s narrative account is a pure fabrication. I know not whether he has at any stage planted anywhere on his retained land elsewhere in Cyprus the trees which he describes in paragraph 18 of his April 2018 statement but I am confident on the basis of the undisputed expert evidence that these were not the trees observed by Mr Cocking during his site visit. Thus, I reject in its entirety the detailed description he gave at paragraphs 18 to 20 of how his workmen planted the trees supplied by the nursery over the course of five days and his account of having spoken to those workmen when some of the trees died. I reject entirely his denial of having removed, or caused to be removed, olive trees from the farm and I find his challenge to the authenticity of the drone footage to be part and parcel of the narrative he was constructing in defence of his former wife’s allegations. He appears to accept in paragraph 29 of his statement that whatever was removed from the land was removed by his work force on his instruction but he then attempts to pass this off as the ‘cutting back of some wind breakers’. In this context, I remind myself about what I saw and observed when I watched the drone footage prior to the instruction of either of the joint experts in this case. There is no doubt in my mind that what I was observing in the earlier footage, taken prior to the removal of the trees in question, was an established row of mature olive trees. It was only the indignation expressed by the respondent through his counsel on that occasion and the strength of his denial of involvement which persuaded me to allow him to proceed with the instruction of a single joint expert in relation to the authenticity of the drone footage and the instruction of Mr Cocking. It follows that I reject the respondent’s account at paragraph 65 of his statement in relation to why the drone footage is unlikely to be genuine just as I reject his attempt to pass off what was removed as a ‘row of wind breakers’ if that was indeed the thrust of his case.

 

 

43.Further, I reject the respondent’s account in paragraph 70 of his statement that, on receiving the initial allegation in November 2017 that he had removed the trees, he had a conversation with a local nursery about the impossibility of such an exercise. If I am wrong and any such conversation took place, it was likely to have been part and parcel of the false narrative which he was seeking to construct for the purposes of his defence to this court. I reject the evidence of Ms Theophilou as assisting one way or the other on the principal issue of the respondent’s liability for the removal of the trees. She had been asked to express a view about the likelihood of mature trees surviving the transplantation process and, as is now apparent, some of the re-transplanted trees have not survived the restitution exercise which the respondent agreed to put in place following receipt of both experts’ reports.

 

 

44.I am driven to conclude, as I find to be implicit from the respondent’s own actions and the instructions given to his legal representatives since receipt of those expert reports, that his written evidence to this court contains a number of highly misleading and untrue representations as to his own involvement in the removal of the trees from the applicant’s land. Further, I find that at the time he made those representations, he knew them to be untrue. In this context, I agree with the earlier findings made by Moylan J (now Lord Justice Moylan) that the respondent cannot be considered a reliable witness in terms of the truth of several aspects of his evidence as presented to the English court in the context of this long-running matrimonial litigation and its implementation

 

Of course, whilst all of this is mildly amusing and these are very rich people involved in a process of gradually moving funds from their own bank accounts into the bank accounts of their legal representatives  [which I am honour-bound as a lawyer to consider a good and proper thing to do and all clients should do more of it], I also remind myself that this nonsense has tied up a family High Court Judge for a considerable period of time whilst other cases wait, and that to do so involves paying the Court a very meagre fee. About time that the Government looked at making big money divorce cases pay a Court fee commensurate with the valuable and scarce public resource they are taking up.   (My quick look at Court fee schedule suggests one of these parties had to pay £255 court fee for a disputed ancillary relief application)

Every breath you take

 

 

 

This is a Court of Appeal decision in relation to a mother, who amongst other things suggested that she and her five year old should be capable of being ‘breatharians’, that is living without food and possibly water.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/2281.html

 

C (A Child) (Special Guardianship Order) [2019] EWCA Civ 2281 (20 December 2019)

 

[This is annoying, because I drafted this last week, but needed to add the Ricky Jay references in, and then lo and behold, this week’s episode of QI touched on Breatharians, making me look like some sort of Johnny-come-lately..]

34… He decided that they were established based on the matters set out in the threshold document. “Key to the crossing of the threshold” were the parents’ respective mental health difficulties. These had “rendered them effectively unable to care for C when these proceedings commenced”. He was also satisfied that the parents’ “rejection of modern medical care” had led to C’s health needs being neglected in particular in respect of the discrepancy in the length of her legs which affected her gait. This was “an example of the problems which the Local Authority say would arise if C’s parents were to reject medicine entirely in the future”. He identified one “controversial factual” dispute, namely whether the mother would continue to take the prescribed medication, to which I return below.

 

 

 

35.When dealing with the background, the judge referred to the parents’ lifestyle and their beliefs. He commented that the mother has “adopted a lifestyle which can be said to go well beyond the merely alternative” and that her beliefs are “deep-rooted”. She “has difficulty accepting not just the validity of Western medicine but that such medicine is not in itself harmful”. He also said that: “Perhaps at its most extreme the mother has suggested that both she and C ought to be capable of being ‘breatharians’, meaning that they should be able to survive without food and possibly water”.

 

 

 

36.The judge expressly “emphasised” that, having heard the mother give evidence, she “clearly loves her daughter dearly and wants by her own lights the very best for her”. He also referred to the “full benefit which natural parenting brings to a child”; he attached “particular importance” to this. The judge separately addressed C’s wishes and feelings, as set out below, but he also expressly recognised that C “will at some level want and she certainly needs a close relationship with her mother”.

 

 

 

37.The judge summarised the evidence from the psychiatrist. He noted the mother’s initial refusal to take anti-psychotic medication and that since then she has “abided by [her] medication regime”. In her oral evidence the mother said that “she will continue to take that medication for so long as it is advised”. The judge recorded the medical evidence that, if she “abides by her current regime, then there is … a good prospect that her condition will remain stable and continue to improve”.

 

 

 

38.One issue had a significant impact on the judge’s assessment of the mother and on his ultimate determination. This was whether the mother had or had not told the social worker who undertook the parenting assessment that “she would cease to take her medication when the proceedings come to an end”. The mother disputed that she had said this. Her evidence was that she had told the parenting assessor that she had explored alternatives and found one in ginseng tea, adding that she “would not in fact, certainly if so advised, cease to take her medication”.

 

 

 

39.The judge preferred the evidence of the social worker. He was “a professional assessor”. The “answer had struck [the social worker] and he checked it with the mother”. This was a “highly significant element within his assessment”. Further, the judge noted that the mother “has for so long adhered to an alternative lifestyle that I cannot believe [she] only recently … discovered ginseng”. Nor, he added, “is it in any way clear to me how the mother could rationally believe that ginseng was a potential cure for her mental illness”.

 

 

 

40.The judge concluded that this issue indicated more than that the mother was “still merely lacking insight into her condition”. He concluded that the mother’s explanation of her conversation with the social worker had been untruthful, which led him to question “how sincere the mother is in other aspects of her evidence”. I return to this below.

 

 

 

41.This led the judge to have “difficulty in accepting the mother’s evidence” that she would abide by the treatment programme, in particular medication, for her mental health disorder. This, in turn, led the judge to conclude that “there remains a significant chance … that the mother’s current progress in terms of her mental health will not be sustained”. If the mother did not continue with the treatment, there was “not simply a risk but, according to (the psychiatrist), close to a certainty of a relapse”. The mother’s condition would “deteriorate within weeks or months” and she would be “unavailable” to C. This “undoubtedly represents a potential source of future harm to” C.

 

The mother denied that she had told the assessor that she would cease taking her anti-psychotic medication, and instead asserted that she had been exploring other options including ginseng, but would not cease her medication if doctors advised against it.

This is the first reported case involving breatharians that I’ve been able to find.

 

Essentially the belief is that through meditation and enlightenment, a person can achieve a state where they do not need food to survive and can survive on sunlight alone.

 

One of my favourite books, Ricky Jay’s  “Jay’s Journal of anomalies” has a chapter all about the Victorian practice of people who claimed to have done this and who would lock themselves in rooms without food or water and then charge people to come and look at them through windows or keyholes.

One particular one is Bernard Cavanagh, of County Mayo, who took London by storm by allowing them to view his supervised fast, which he said had been in progress for 5 1/2 years.

 

Jay gives a lovely piece of interview / interrogation where you MIGHT think Mr Cavanagh is being somewhat elusive

 

Q: Is it true you haven’t eaten for 5 years?

C : Wouldn’t I eat if I was hungry?

Q: But do you eat or drink anything?

C : Wouldn’t I drink if I was thirsty?

Q : Don’t you ever take anything in the shape of food?

C : Wasn’t the door locked up?

He was finally undone by a Mrs Harriet Hatt, who had been to see and marvel at the Fasting Man, and was thus surprised the next day to see the same man in a butcher’s shop ordering ‘a saveloy, threepenny worth of bread and a quarter pound of ham cut particularly fat…

Mr Cavanagh admitted that he had bought the food, having been tempted, but that he had thrown it away without eating it.

At the inquiry conducted by the Mayor, one of the most beautiful lines I’ve ever read was uttered.

“What, said the Mayor, would become of our country, prosperous in commerce, magnificent in war, happy in land, triumphant on the ocean, what would become of us if we suffered Cavanaghs to purchase saveloys?”

Mr C was sentenced to prison, once month for the saveloy, fourteen days for the bread and six weeks for the ham cut particularly fat…

 

I did find litigation based on the idea that mystics can control all of their bodily functions and even appear to need no food, drink or even show signs of life, so I invite you to  go down the rabbit hole of this:-

 

Court to Decide Whether Guru Is Dead or Just “In Deep Meditation”

 

Where litigation have gone on for about five years now as to whether a swami in a freezer is dead (hint yes) or has simply been holding his breath all this time (no) – the people arguing that he is still alive are not at all motivated by that allowing them to continue to control his assets of $170 million, not in the slightest.

 

 

Anyway, back to our case

 

The appeal was based on an assertion that the Judge was wrong to have made a Special Guardianship Order and had not properly applied Hedley J’s Re L case (that society and the Courts must be willing to tolerate very diverse forms of parenting ). People seem to continue to not appreciate that the Court of Appeal have ruled that Re L is applicable to arguments as to whether threshold is crossed, but not where the threshold is crossed.

Re H (A Child) (Appeal) [2016] 2 FLR 1171

 

76.When dealing with public law proceedings, McFarlane LJ dealt specifically with the relevance of Hedley J’s remarks in Re L. They were “entirely directed to the question of the threshold criteria”, at [89], and were “describing the line that is to be crossed before the state may interfere in family life”, at [91]. He also noted that although “Hedley J’s words in para [50] are referred to in each of the main judgments in the Supreme Court in Re B [Re B (a child) (care order: proportionality: criterion for review) [2013] 3 All ER 929], such references are in the context of consideration of the s. 31 threshold rather than welfare”, at [91]. He concluded, therefore, that the trial judge’s reference to what Hedley J had said about the need for society to “be willing to tolerate very diverse standards of parenting” was “out of place, as a matter of law, in a case where the issue did not relate to the s. 31 threshold, but solely to an evaluation of welfare”, at [93]. The judgment then addresses the issue of proportionality, at [94] and [95].

 

The Court of Appeal gently reminded everyone of this, and then set out that so far as issues about parents ‘character’ were concerned, the Court must confine those to the way that their character may affect their parenting.

 

 

 

 

79.I deal first with ground (a), namely the submission that the decision in this case was based on a flawed approach to the mother’s lifestyle and beliefs and offends against the principle that the courts “must be willing to tolerate very diverse standards of parenting”.

 

 

 

80.As referred to above, the case of Re L, from which the words quoted above derive, was concerned with threshold. The present case is not concerned with threshold. However, although McFarlane LJ considered that, what might be called the Re L perspective, is “out of place” in a welfare evaluation, it is clear that the “character of the parents” is relevant “only to the extent that it affects the quality of their parenting”, as referred to by Lord Wilson in Re B, at [30]. Although that case was also dealing with the issue of whether the section 31 threshold has been crossed, in my view the relevant consideration when the court is making a welfare determination remains the extent to which the character of the parents, in terms of lifestyle and beliefs, “affects the quality of their parenting”, to adopt Lord Wilson’s phrase from Re B, at [31]. This is because the court is assessing the welfare consequences for the child of that parenting.

 

 

 

81.The judge did describe the mother’s beliefs as “very strange” but this was in relation to the mother’s suggestion that she and C “ought to be capable of being ‘breatharians”. In my view, it is clear from other references in the judgment and, indeed, the overall structure of the judgment that the judge was specifically considering the manner in which the mother’s beliefs impacted on her care of C. The judge considered whether they were a potential source of harm and decided that they were. They were also relevant in the welfare analysis when the judge considered C’s needs. He was “not satisfied” that the mother “would, at the moment [or] in the longer term, be able to meet those needs”. None of these conclusions were based, as is submitted on behalf of the mother, on the judge’s “disapproval” of the mother’s beliefs but on the likely welfare consequences for C.

 

It seems very clear to me that in looking at the aspects of mother’s character that had an impact on whether she would be likely to comply with the necessary medication to manage her mental health and a belief that she and her child could survive without food and drink, those aspects were obviously relevant to parenting.

 

The Court of Appeal also give this guidance

67…I agree with the submission that, when a court is determining care proceedings, and even if the ultimate decision is to make a special guardianship order (which is legally not a public law order), there are good reasons for the court dealing with the threshold criteria. In particular, this will set out the court’s conclusions on the evidence and provide a clear factual foundation both for the basis of the order and for any applications made in the future.

Can and should a Local Authority facilitate the use of sex workers for a vulnerable adult?


This is an issue that comes up from time to time, and it provokes a lot of contentious debate on either side. On the one hand, there’s the argument that sex work is exploitative and in this country subject to criminal laws.  On the other, there’s the argument that there are certain vulnerable adults who have appetites and needs and are not able to have those needs met any other way.   I’m taking no moral stand either way on this argument, just reporting what the High Court, in this particular case before Keehan J, decided.

 

In this case, the Local Authority went to the Court of Protection to say that they did not feel that facilitating P’s use of sex workers either in this country where it would be illegal, or by facilitating his travel to the Netherlands where it would be, was in his interests and that they did not wish to do it, and sought a declaration from the Court to that effect.

https://www.bailii.org/ew/cases/EWCOP/2019/43.html

 

Lincolnshire County Council v AB [2019] EWCOP 43 (08 May 2019)

 

1.These proceedings in the Court of Protection are brought by Lincolnshire County Council in relation to a man, AB, whom I shall refer to as ‘P’ in this judgment. He is a 51-year-old man with a diagnosis of moderate learning disabilities, autistic spectrum disorder, harmful use of alcohol and psychosis due to solvent abuse. He suffered, sadly, a chaotic childhood. He had difficulties engaging in mainstream education and spent much of his childhood in boarding schools, due to concerns about his behaviour, which are recorded as having been inappropriately sexualised from a young age.

2.He was first detained under the Mental Health Act 1983 in 1985. Thereafter, he was detained on a further 10 occasions between 1985 and 2003, generally as a result of interpersonal conflicts, alcohol abuse or withdrawal hallucinations and seizures. In 2000, P moved into his own property and began a relationship with a woman, who was noted to have exerted significant influence over him. The pair are recorded as falling into a pattern of drinking and engaging in antisocial behaviour in public. In July 2003, P was evicted from his flat, having caused significant and substantial structural damage.

3.In October 2003, he was admitted to hospital. Thereafter, he was detained under section 3 of the Mental Health Act and he remained in various psychiatric facilities for the next seven years. On his discharge in October 2010, P moved to another placement. It was here that he developed a friendship with a local prostitute and thereafter, began his fascination with female sex workers. He has since lived at a number of residential properties and during this time he has been facilitated to access sex workers, and then on occasions, to travel to the Netherlands to have sex with prostitutes there. In November 2008, he moved to his new supported placement. In April 2018, Lincolnshire County Council made an application for the court to determine P’s capacity and best interests, specifically with regard to contact with sex workers.

4.Evidence was sought from Dr Lisa Rippon, who concluded that P lacked capacity in all relevant domains, save the capacity to consent to sex. On the issue of contact, and particularly contact with sex workers, she said as follows:

“P has limited insight into the risks that others might pose to him, including sex workers, and overestimated his ability to keep himself safe. He could not think through the potential consequences of visiting sex workers, including the possibility of financial exploitation or involvement with the criminal justice system. I believe that P failed to both understand the information necessary to make decisions about contact and was unable to weigh up the benefits and risks. It is therefore my opinion, that P lacks capacity in this area and this is as a result of his learning disability and autism.”

5.The position now, is that the local authority do not intend to facilitate P’s access to sex workers, whether in this country or abroad, in particular in the Netherlands. They set out their reasons in a detailed and helpful position statement. P’s litigation friend has visited him on a number of occasions in the recent past to gain his views. P, it is said by his litigation friend, has a high sex drive and finds the lack of access to sex workers frustrating. He has stated that self-pleasuring using pornography, sex dolls and toys, is not the same as having physical contact with a woman. He would wish to continue his past conduct of having and being permitted to have sexual relations with sex workers, here and in the Netherlands.

 

 

That sets up the background and the judgment then moves onto the decision

 

Conclusion
6.I have due regard to P’s wishes and desires. But I have come to the clear conclusion that the local authority have adopted the right decision and approach, in not seeking to facilitate his contact with sex workers either here or abroad.

7.In coming to that conclusion, I have had regard to s.2 of the Mental Capacity Act 2005. There has been no change in the P’s circumstances, namely that he lacks capacity as I had set out above. I have also had regard to ss.3 and 4 of the 2005 Act. I note that a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence, pursuant to ss. 39,42 and 53A of the Sexual Offences Act 2003.

8.If care workers who look after and support P, were to facilitate such activity, they would be committing a criminal offence and any declaration by me, would not alleviate their liability to be prosecuted. In the Netherlands, of course, prostitution and payment for sexual services are not illegal. But in my judgment, there is a very real risk that if a care worker here, supporting P, made arrangements for him to travel to the Netherlands for the purposes of having sexual activity with a woman for payment, they would be at risk of being prosecuted for a breach of the Sexual Offences Act 2003.

9.Accordingly, I would not be minded to make any declaration permitting care workers or the local authority to arrange for P to have sexual activity in exchange for payment with a woman, either in this country or in the Netherlands. Secondly, and in any event, I consider it would be wholly contrary to public policy for this court and for this local authority, to endorse and sanction P having sexual relations with a woman for payment. Thirdly, and in any event, notwithstanding P’s clearly expressed wishes and his clear desires to continue to meet prostitutes for sexual activity, I do not consider it is in his best interests to do so. I have well in mind, his expressed views that he does not consider that he would otherwise be able to have a relationship with a woman and therefore, he sees no alternative but to seek to use the services of prostitutes.

10.I have regard to the fact that he finds self-pleasuring is not of the same enjoyment or satisfaction as having sexual relations with a woman. In light of the opinion of Dr Rippon, however, it is clear that P does not understand all of the implications of having sexual relations with a woman for payment. He puts himself at risk to his health, his welfare and his safety and he puts himself at risk of exploitation: none of which he accepts or understands. In those circumstances, I am entirely satisfied that it is wholly contrary to his best interests for him to have sexual relations with prostitutes. Still less, is it appropriate for this court to sanction the same. On behalf of P, his litigation friend through counsel, Miss Twist, acknowledged those factors, not least the impact of the criminal law and did not seek to pursue an application for the court to grant such declarations. In my judgment, that was an entirely right and appropriate decision.

11.I have been asked to give this short extempore judgment, so that it may be transcribed and a copy given to P, so that he may know why the court has come to the above conclusions. I entirely accept that P will be, to put it mildly, disappointed by and he will undoubtedly not agree with my decision. Nevertheless, I am satisfied that the conclusions I have reached are in his best interests.

 

Hounds of justice

 

 

 

I was momentarily tempted to headline this piece

 

Qui odoratus Isacus, de qua n eam

But then I remembered that I didn't do Latin at school, so I've no way of checking whether 
Google translate is right when it claims that this is the Latin for "He who smelt it, dealt it". And I knew the comments would be full of corrections to it.


This is a curious little case, involving a flawed ABE interview.  Not that unusual, it is more startling to find a judgment which commends the ABE for good practice than castigates it for bad.

This one though involves both anatomically correct dolls being used by the intermediary (The 1980s faxed and said "hi") and a dog being brought in. 

Yes, a dog. 

A real one. 

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B36.html

Re J and K (Flawed ABE interview) 2019

 I don't think His Honour Judge Hayes QC was too enamoured with this process. 


  1. As to the presence of B the dog in the interview room, I have never before seen a dog present during an ABE interview. There was no good reason to have a dog in the room and I find that it was misguided to have the dog present.  What took place during the video (summarised below) amply demonstrates why I say this.
  2. The purpose of the video was to speak to and elicit a free narrative from J.  And yet there were frequent times during the video when the dog took centre stage and attention / comments were directed to the dog rather than J. At one point, the dog took up a position on one of the chairs. The chair was there for child J, not the dog.
  3. On more than one occasion, the dog licked J on the face and on her hand.  J was distracted by this.  The adults were enamoured by it.  I was left asking myself why it was happening at all during an ABE interview of a young child


At one stage, after a vitally important (and pretty leading)question had been asked, the whole interview then forgets itself because of a certain doggy odour 

J Because he said, “Don’t ever tell anybody and we’ll do it, er, when mummy isn’t here and when mummy is here we’ll cover them up”
Officer Okay.  Do you smell a little smell in the room?  Do you think B has [done] a little trump?
J Yeah.
Intermediary Has she?
Officer I’m not sure.  I think so.
Intermediary Oh no.
Officer That’s okay.  She’s okay. Can you smell it or it is just me?
Intermediary I can’t smell anything.
J I can.
Intermediary Can you? Oh no, it’s probably going to reach me in a minute.
Officer That’s okay.
Intermediary Sometimes she gets a bit of wind.
Officer That’s okay.  That’s what animals do isn’t it?
J And we do.
Intermediary Yes, and we do.


So it was that what J said at the start of the above exchange about what her father had said to her (clearly a worrying account) was not developed any further.  The smell made by the dog distracted the attention of the officer, the intermediary and the child. The conversation turned from what J said to a discussion about the dog breaking wind.  It is simply unacceptable that that this happened.

 

[65]  As I have said, the observations that I have made do not, in the circumstances of this case, have any bearing on my findings of fact.  But the errors that were made could – in other circumstances – have had serious evidential consequences. A poorly conducted ABE interview has some parallels with a police officer (or some other person) trampling over a potential crime scene rather than adhering to essential forensic guidelines.

 

[66]  The video interview of J on 22 November 2016 regrettably strayed from its objective of “achieving best evidence” from the child.  It would be helpful for my observations to be fed back to the officer and the intermediary and, subject to considering any representations to the contrary by the parties, I will give permission for them to see this Judgment (or part thereof) for that purpose.  My observations are intended to be constructive criticism .  I hope that they are read in that spirit and that those involved will reflect on what went wrong and avoid making the same mistakes in the future.



Maybe I should have called it Never Work with Children AND animals...

All at sea

 

Hi everyone.  It turns out we are all dead.

I’m not sure in our current political climate whether that is a shock or a blessed relief to us all. It certainly explains a lot.

Hayden J was dealing with an application under section 33 (and the inherent jurisdiction) for a Local Authority who held an interim care order to register the child’s birth, the father strenuously objecting to the birth to be registered.

 

Why?

Because we are dead, obviously.

That’s not fair. Some people aren’t dead, but those people are under seven and not reading my blog.

If you are over seven, you are legally dead *

 

(*is the argument being put forward in this case. It is NOT my opinion, and anyone contacting Norwich Union in the hope of getting their life insurance payout may be out of luck. Not least because they are Aviva now)

 

T (A child), Re [2019] EWHC 1572 (Fam) (12 June 2019)

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1572.html

 

But before I even get into explaining why we are all legally dead, here’s a picture of Blue.  Which will also be skilfully woven into this delicious narrative.  Buckle up, buckaroo.

 

I rest my case

 

 

  1. F has strong beliefs surrounding the concept of “sovereignty”. This is a very particular concept for him. It has nothing at all to do with contemporary debate. It is essentially a personal ideology. F believes that central to the concept is the power and writ of the individual. ‘We are each…’, he says, ‘our own sovereign. We come from the Earth, we are the creations of the universe. We are governed by a Common Law but only to the extent that we depart from three principles. These three imperatives are: to do no harm; to cause no loss; to inflict no injury.’ In circumstances where they are proved to have occurred, to the criminal standard of proof, F asserts that what he calls the Common Law is then triggered.
  2. He places great emphasis on The Cestui Cue Vie Act 1666. In the 1666 Act Section 1, F tells me, there are provisions which state ‘that if a title or living being does not prove themselves alive after 7 years they are considered lost at sea. This is the means for government to take control of the dead entity’s property.’ F believes this to be the route by which the government ‘help themselves to money and property.’ We are in such circumstances considered ‘dead entity in the eyes of the law.’ In a graphic and powerful metaphor F states to me that we ‘come to life and are temporarily risen from the dead when summonsed to court’. The requirement to ‘all rise’ when the judge enters the court is symbolic of rising for the resurrection. These views may sound unusual and somewhat eccentric. They are, however, genuinely held and I have done my best to summarise them.
  3. It is in this context that when a birth is registered, F considers this to be the equivalent of an ‘entry into a ship’s manifest’, in which the child becomes ‘an asset to the country which has boarded a vessel to sail on the high seas.’ This facet of admiralty and maritime law is pervasive in F’s thinking. The essence of F’s objection is his belief that registration will cause his son to become controlled by a State which he perceives to be authoritarian and capricious.
  4. T has been given a name and surname but F strenuously resists registration. This is notwithstanding that a failure to do so is, in a variety of practical ways, likely to serve as an impediment to the promotion of T’s welfare as well as to have an adverse impact on F’s own legal status

 

And boy does researching The Cestui Cue Vie Act 1666 take you down some rabbit-holes.  It crops up quite a lot in the  ‘law only applies to me if I agree to it’ fallacy,  and my favourite bit was

 

“When a ship BERTHS, it is given a CERTIFICATE at a DOCK,  and the Government gives you a BIRTH CERTIFICATE from a DOC, so you’re just a ship owned by the Government”

That’s someone for whom rolls of  tin-foil (9)  is always in their Ocado basket.

 

Anyway, The Cestue Cue Vie Act 1666 does not assert that everyone is legally dead unless they prove every seven years that they are alive, of course not.  It says that if a person is missing without trace for seven years they can be pronounced legally dead without their creditors or heirs having to legally prove that they are dead.

 

The Judge kindly, but sadly for me, avoids getting into legal analysis of whether the father was right, and just decides that there are benefits for a child being registered as a citizen and getting those rights, and rules that the Local Authority can do it under section 33 of the Children Act 1989  (in doing so, considering one of my favourite cases where the mother tried to name her daughter Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/  )

 

The Judge also ruled that s33 was sufficient, and the inherent jurisdiction wouldn’t work here.

 

  1. It requires to be stated that such an order is inconsistent with my conclusion that Section 33 (3) CA 1989 is apt to address the requirement for registration. In London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) I made it clear that the inherent jurisdiction of the High Court is not, as I termed it there, ‘a lawless void’ permitting judges to do all that which we consider to be right and helpful. Its power is only available through the gateway of Section 100 CA 1989. It is perhaps helpful to reiterate what I said in London Borough of Redbridge v SNA (supra):
    1. “33. The concept of the ‘inherent jurisdiction’ is by its nature illusive to definition.  Certainly, it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’.  But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited.  Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way, that is faithful to its evolution.  It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.”

Disclosure

 

This is not a new topic, but it bears repeating.

 

Please don’t use the word ‘disclosure’ when the word ‘said’  or ‘alleged’ would do better.

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/532.html 

 

[33] … despite the fact that the use of the term ‘disclosure’ to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term ‘disclosure’ to describe what the children had said to them).

 

Disclose means to make known, to cause to appear, to allow to be seen.  It has the connotation of truth.  Whether you believe the allegation or not, until the Court has determined it, it is an allegation not a disclosure. I understand why social workers might feel uncomfortable about saying ‘alleged’ but ‘said’ or ‘told’ conveys perfectly well that the child SAID X, without giving a value judgment of ‘and X is true’

 

By way of concrete example, I can DISCLOSE to you that I think Natalie Portman is a fine looking woman.  If, however, I tell you that I had a relationship with Natalie Portman and that she initiated it, you can’t properly say that I DISCLOSED that to you.   That’s an allegation, not a disclosure.  It might be true, it might not be.  (It is not)

But if I tell you that, you’d be wrong to say I disclosed it to you.  Stick with ‘said’

 

Example pulled out of thin air.

 

If you want to do one small thing to improve your written work, a find/replace on disclose / disclosure is a good start.  Hint, if you are not using the word ‘disclosure’ in a Court document to mean ‘a bunch of documents provided by someone’ just find a replacement word.    This is not just social workers, a random trawl on Bailii found me a dozen examples of the very best and brightest of our judiciary using it in judgments. Old habits die hard.

 

For further reading, I recommend

 

Things children say – Disclosure, allegations and why language matters

 

 

and

 

https://dbfamilylaw.wordpress.com/2018/02/06/listening-to-children-and-disclosure/

a Hayden to nothing – or “has a Judge just decided that a man has a right to sex with his wife?”

 

There isn’t a judgment on this, because it is a case that has not yet been decided, but given that it was the number one article on most viewed on the Guardian this morning (and it is still top ten) and my twitter stream is full of very outraged people  (some of whom know why they are outraged and are right, and some don’t know why and are outraged for the wrong reasons), I thought I’d write about it.

https://www.theguardian.com/law/2019/apr/03/english-judge-says-man-having-sex-with-wife-is-fundamental-human-right

 

It involves a Court of Protection case in which a woman with learning difficulties is facing a deterioration in her ability to make decisions, and may have reached the stage where she can no longer consent to sex  (The legal test for an adult to consent to sex is whether they understand, or are capable of understanding, three things. 1. The mechanical process. 2. the risk of pregnancy and how to avoid that. 3 the risk of STDs and how to avoid that.  So it is a low bar, and if someone is as an adult a person who used to be able to consent and now there are doubts, that must be a horrendous situation for her and everyone who cares about her. Note that the Court have not YET decided whether she lacks capacity, from the Press report)

 

The husband said that he would agree not to have sex with his wife whilst all of this was looked at, and was willing to give an undertaking to the Court (a promise that he could be sent to prison for if he breached it). Social workers wanted there to be an order instead.

 

The Judge, with a Press Association journalist present, was considering the case. Mr Justice Hayden said “I cannot think of any more obviously fundamental human right than of a man to have sex with his wife – and the right of the State to monitor that. I think he is entitled to have it properly argued.”

 

Now, I personally would have said something like “It is important that a Judge, before allowing the State to control and monitor what goes on in the bedroom between two adults in a relationship, should carefully consider the evidence and hear proper argument about that”

And that wouldn’t, it seem to me to be controversial.

 

So, if you are annoyed because

 

A) A Judge has ruled that the old setting of ‘there’s no rape in marriage, men are entitled to sex from their wives regardless of the wife’s feelings’ has come back

 

then you can stop being annoyed about that, because that hasn’t happened. And also couldn’t happen, because the decision to overturn that barbaric proposition was in an Act of Parliament and the Courts have no power to overturn Acts of Parliament.

 

If, however, you are annoyed because

 

B) Language has power, words have power, ideas have power, and the old law that allowed wives to be raped under the guise that they were property of men and men were entitled to complete autonomy over their body is such a barbaric and not that old view that it is necessary to be very mindful of the sensibilities of language when thinking about any wording that implies that a man has rights over a woman’s body EVEN WHEN YOU DON’T MEAN THAT

 

then you are fully entitled to be annoyed about that, and it is a subject well worthy of debate.

 

I think the Judge could have expressed his thoughts much more clearly, and been alive to the landmine of ‘conjugal rights’ and women as chattels that was in his path, and been very very clear that he was talking about the rights of both men and women to have respect for their private life from the State and the State should only interfere where it is necessary and proportionate to safeguard others.

I fully accept that my view of his words has to be coloured by the fact that I am a man and not a woman and so I need to check my privilege – I’m sure that I would have a different perspective to bring to this issue if I were female. You might well end up thinking that there’s not a chasm of difference between A and B, and that to say B you must have thoughts in your mind that A is not that bad. I don’t know that I’d go that far, but I accept that others might.

 

I hope there’s going to be some judicial clarification published. My twitter feed is awash with people thinking A) or if not A) that this is a Judge who wishes he could do A) and is probably going to let some awful rapist off.

 

It is worth remembering that in all of this, there is a man and a woman, who are already going through a dreadful ordeal that you wouldn’t wish on anyone, and the Press coverage is probably making that even worse. If you are that man and you wanted to talk to a friend or colleague about what is happening to you, you probably can’t do that today.