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Vaccination

 

This is a Court of Appeal case which follows up from the Hayden J decision in the cestui que vie case (remember, all of us are legally dead because we’re all lost at sea) about vaccination.

As a super-quick bullet point, we had a MacDonald J decision that if a parent disagreed with the child being vaccinated then the LA should NOT use their powers under a Care Order to agree to it and should instead come to Court, and then this later decision from Hayden J that the LA SHOULD use their powers and should NOT come to Court.  (Legally up until this Court of Appeal hearing that meant legally that the LA SHOULD use their powers but any High Court Judge could overrule that)

Re H (A Child : Parental Responsibility : Vaccination) 2020

https://www.bailii.org/ew/cases/EWCA/Civ/2020/664.html

 

Whilst this decision was about the MMR vaccine (which in the minds of some people is controversial because of the now discredited Andrew Wakefield ‘research’ linking it to autism), it has wider application and of course it is entirely possible that whether or not children be given a vaccine for COVID-19 if one is found will become a very hot issue.

 

The Court of Appeal run through all of the relevant research and science on vaccinations and say definitively that the practice of getting an expert to report each and every time this arise is no longer needed – unless there are specific issues or vulnerabilities for the SPECIFIC child, the Court should approach the science as settled that vaccines are safe.

(On the one hand, oh god my comments on this are going to be lively, on the other, I might get Jenny McCarthy talking to me, which my 20 year old self would be very jealous about.  Let’s say, to keep it simple, that I have ABSOLUTELY NO views on this myself and have no interest in discussing the Wakefield stuff or anti-vaxx generally, I’m just reporting the case)

 

  1. It follows that, no matter what legitimate concerns parents may have had following the publication of Dr Wakefield’s discredited paper, there is now no evidence base for concerns about any connection between MMR and autism. On the contrary the evidence, as set out in the unchallenged report of Dr Douglas in this case, overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
  2. I have, in (relatively) short form, rehearsed the history in relation to the MMR controversy and summarised Dr Douglas’ mainstream analysis in relation to the other vaccinations which are habitually given to children. I do so as it is my hope that it will serve to bring to an end the approach which seems to have grown up in every case concerning vaccinations, whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being “necessary to assist the court to resolve the proceedings” (FPR 2010 r.25.4(3)).
  3. In my judgment, subject to any credible development in medical science or peer-reviewed research to the opposite effect, the proper approach to be taken by a local authority or a court is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects. Any expert evidence should ordinarily, therefore, be limited to case where a child has an unusual medical history and to consideration of whether his or her own circumstances throw up any contra-indications, as was the case in relation to one specific vaccine in Re C and F (Children) [2003] EWHC 1376 (Fam) (Re C and F) (see paragraph [320]).
  4. I should be clear that I am here dealing with the purely medical issues which may arise in any specific case, and am not seeking to narrow the broader scope of a child’s welfare and of any other relevant considerations which it may be appropriate for a local authority or a court to take into account when considering his or her best interests when considering the question of vaccination.

 

 

On the issue of whether the LA should seek permission from the Court or use their s33 powers

 

  1. I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved.

 

(The Court of Appeal say that in private law cases – i.e mum says no vaccine, dad says vaccine or vice versa, there’s a place for the Court in resolving those disputes)

  1. Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate households and one parent is the primary carer. As Theis J put it in F v F at paragraph [21],in most circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect.”  As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree.
  2. The situation is, in my view, different in the public law sphere when a care order is in place. A care order is only made if the welfare of a child requires such an order to be made, it having been determined or conceded that pursuant to s.31(2) CA 1989, the child has suffered or is likely to suffer significant harm attributable “to the care given to him or her not being what it would be reasonable to expect a parent to give him”. In other words, the child in question has suffered (or was likely to suffer) harm as a consequence of the care given to him or her by a person with parental responsibility. It is against that backdrop that the parent of a child in care holds parental responsibility. Parliament has specifically, and necessarily, given the local authority that holds the care order, the power under s.33(3)(b) to override the views of a parent holding parental responsibility. The local authority’s view prevails in respect of all matters save those found in the statutory exceptions or where, as I identified in Re C, the decision to be made is of such magnitude that it properly falls within the provisions of s.100.
  3. The situation of a child in care is therefore a far cry from those cases which arise in private law proceedings where parents who share parental responsibility cannot agree on what is best for their child.
  4. For these reasons, I prefer the judge’s analysis in the present case to the analysis in Re SL.
  5. Proportionality
  6. It has not been argued by Mr Bailey on behalf of the parents that allowing the local authority to consent to the immunisation would represent a disproportionate breach of their Article 8 ECHR rights. I merely say for completeness that if such an action on behalf of the local authority does represent an infringement of the parents’ or child’s rights under Art 8 ECHR, I am satisfied that, when considered through the prism of Bank Mellat v HM Treasury (No 2) [2013] 3 WLR 179 (as endorsed in a family context in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 at paragraph [44]), any interference is proportionate.
  7. The position of parents
  8. It is axiomatic that any local authority must involve parents in decision-making and take their views into account. Section 33 CA 1989 is not an invitation to local authorities to ride roughshod over the wishes of parents whose children are in care. As was recognised by the judge at paragraph [17], in the event that a local authority proposes to have a child vaccinated against the wishes of the parents, those parents can make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8 Human Rights Act 1998 to prevent the child being vaccinated before the matter comes before a court for adjudication.
  9. The conclusion I have reached in relation to routine immunisations does not in any way diminish the importance of parental views where there is a real issue about what decision will best serve the welfare of a child

 

The LA can use their powers under a Care Order to vaccinate, even if the parents object. If the parents feel strongly enough, they can make an application under the magical sparkle powers  – inherent jurisdiction.

 

The Court go on to say that deciding this doesn’t give cate blanchett (yeah, I just really want my comments to blow up today) to a Local Authority where the parents are objecting to more serious medical treatment and looks at a case involving whether a child should or should not have a liver transplant.

 

 

  1. The distinction drawn here between parental views that are inconsistent with the child’s welfare and highly problematic cases where there is genuine scope for a difference of view remains a valuable one. It is a reminder that, while the views of parents must always be taken into account, the weight that is given to them depends not upon the vehemence with which they are expressed but upon their substance.
  2. As must have become clear, I do not share the inhibition felt by the judges in some of the decided cases in expressing the view that the scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated. As Theis J said in F v F:
      1. “With due consideration for established contraindications to vaccination in an individual case, it is otherwise in every child’s interest to be protected’

It follows therefore that in my judgment, an application to invoke the inherent jurisdiction or to seek an injunction with a view to preventing the vaccination of a child in care is unlikely to succeed unless there is put before the court in support of that application cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations.

 

In the analysis of all of the legal cases, the Court of Appeal note that for all the sound and fury expended on the MMR vaccine issue, there isn’t a reported case where the Court ruled against the vaccination.

Conclusion

  1. Pulling together the threads of this judgment, I have concluded that:
  2. i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra-indication in an individual case.

ii) Under s.33(3)(b) CA 1989 a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.

iii) The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated, it is neither necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes the proposed vaccination of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.

iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.

  1. It follows that the appeal will be dismissed and that the declaration made by the judge that the local authority has lawful authority, pursuant to s.33(3) CA 1989, to consent to and make arrangements for the vaccination of T, notwithstanding the objection of the parents, will stand.

Court of Appeal two decisions about remote hearings

The Court of Appeal had decided two cases about remote hearings in light of the Covid 19 public health emergency.

 

The first is Re A (Children) (Remote Hearings) 2020

 

https://www.bailii.org/ew/cases/EWCA/Civ/2020/583.html

 

Where a Judge had decided that because the parents in the case could not really participate in a remote hearing, the parents should attend Court for the hearing in a physical building, whilst others attended via video-link  (what lawyers are calling a ‘hybrid’ hearing)

 

The Court of Appeal decided that on the facts of the case, the Judge was wrong to order a hybrid hearing and granted the appeal.  The Court of Appeal point out in painstaking detail that they do not intend in this case to give the impression that hearings in other cases should be remote, should be hybrid or should be adjourned, it is a fact specific case, not intending to give general guidance.

 

  1. It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be allowed against a judge’s decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge’s decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.
  2. It also follows that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases. We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.
  3. Finally, in addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for the child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing.

They do say this:-

Finally, and more generally, we would draw attention to, and endorse, the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.

 

 

The other appeal is, to my mind, more interesting. It deals with a remote hearing for an Interim Care Order and separation.  Those are hearings where the option of waiting for the end of lockdown isn’t necessarily available.

 

Re B (Children) (Remote Hearing : Interim Care Order) 2020

https://www.bailii.org/ew/cases/EWCA/Civ/2020/584.html

 

I have to say, even ignoring the fact that the hearing took place by telephone, this case is a breakfast that would be suitable for dogs.

 

It involved  a case where a boy Sam (not his real name) aged 9 was living with his grandmother. The LA made an application for a Care Order – on the papers they had filed they were not seeking removal.

  1. Accompanying the application was a substantial amount of documentation arising from the local authority’s knowledge of the family down the years, including a fully pleaded interim threshold document, a comprehensive chronology (16 pages) and a thorough template statement from the children’s social worker (34 pages). Of note, this described a close relationship between the children and their grandmother, with plenty of mutual love and affection being shown. Given the local authority’s position, the removal of Sam from home did not even feature in the social work analysis as a realistic option, let alone a preferred one. The case for an interim supervision order was put in this way:
    1. “Whilst [Sam] is not considered to be at immediate risk of physical harm, there have been historical allegations against his Maternal Uncle… who is known to still to be attending the home despite being prohibited by written agreements in place. [Sam] has suffered and remains at risk of suffering emotional harm due to the concerns [about] treatment of him by Maternal Uncle… and Maternal Grandmother.”

 

Lawyers will very quickly spot that the LA evidence was “Sam is not considered to be at immediate risk of harm”  (which is an essential ingredient if they are to seek and obtain an Interim Care Order.

The case was listed for hearing.   Just before the hearing began, the Guardian filed a position statement indicating that she thought Sam should come into care, and the LA changed their position to recommending that. There was no updating interim care plan, and no statement explaining the change in position.

Those representing the parents learned of the change in plan an hour before the hearing. Very understandably, they made an application for the case to be adjourned and set down for a proper contested ICO hearing with the parents having opportunity to respond to the LA case.

The Recorder dealing with the case was getting all of this evidence as a stream of updating emails, whilst wrestling with the other cases in his list. By the time this case came before him, he had been working all morning, and by the time he gave judgment he had been working for 10 1/2 hours, on hearings which were taking place by telephone.

Between 17.20 and 17.41 he gave an extempore judgment. At 17.52 he refused Mr Lue’s application for permission to appeal and scheduled a further hearing for 21 April. At 17.57 the hearing concluded. By that time the Recorder had been working, almost continuously and mainly on the telephone, for 10½ hours. Our observation is that, although we have found the decision in this case to have been unquestionably wrong, the nature of the workload faced by the Recorder, experienced as he is, was surely a contributory factor.

 

  1. We next mention the position of the Children’s Guardian. Her solicitor, having evidently carried out a lot of work in a short time, filed a six-page position statement at 10.49 that morning. We quote the concluding paragraphs in full because, as Mr Squire, who did not appear below, frankly asserted, “the Guardian has driven this in terms of immediacy” and because they represent the whole reason why an interim care order was made for Sam.
    1. “Guardian’s Position

25. The Guardian is very concerned with respect to the safety of both children given their cumulative previous experiences and the lack of emotional stability that they seemed to have experienced under a Special Guardianship Order. She is concerned that the maternal grandmother is prioritising the needs of the maternal uncle and aunt over that of the children, or is at least unable to protect them from abusive situations. Most concerningly, the children seem to be blamed when their behaviours are likely to be expression of the experiences they had, and/or additional needs that their care giver/s should be attuned to identify and respond to; [Samantha] being compared to her mother in derogatory manner and [Sam] being called names are particularly emotionally abusive behaviours in the context of the children’s own experiences.

26. There are concerns that maternal grandmother does not appear to be working openly and honestly with professionals since 2014 and it is noted that the written agreements have been breached on a number of occasions and allegedly the uncle reported that he was prompted by the grandmother to breach or ignore such agreements, and not talk to professionals. It appears as if the maternal uncle continues to be a frequent visitor to the family home and is reported to have been involved with the police 3 times this year in relation to drug offences [C25]. It is also not clear where the Mother is presently residing since her release from prison; the local authority statement refers to the children having had unsupervised contact with her.

27. The Guardian is concerned that both children are at risk of ongoing physical and emotional abuse. She is very concerned with the proposal by the Local Authority that [Sam] remain in the family home under an interim supervision order under the current circumstances, when there are severe limitations in what visits and intervention can be provided and uncertainty around how long pandemic-related measures will need to continue. It is not clear how his safety will be monitored as there are very little, if any, direct social work visits being undertaken at present; the presenting concerns cannot be effectively monitored via virtual visits. Schools often provide an oversight into a child’s wellbeing – however the schools are now closed and it is not known when they will re-open; they also often provide an outlet for both children and carers; being constantly at home can greatly escalate the current risks for [Sam], and limits his ability to reach out to professionals or safe adults outside the house for help. The Guardian is concerned that given these exceptional times it will be very difficult to monitor [Sam]’s safety.

28. It may be that [Sam] will be placed at more risk of emotional and physical harm if he is left alone in the family home. [Sam] has already stated that his family matters are confidential and it is therefore not clear whether he will actually disclose any concerns should they arise at the home; [Sam] may also internalise that violence is acceptable and risk perpetrating violence himself, or take matters in his own hands to protect himself or others, such as, for example, his grandmother if she is also subject to abuse from the uncle. The Guardian believes that both children need to be placed in a place of safety whilst assessments are ongoing.

29. The Guardian therefore supports interim care orders for both children. If the Court agrees that an interim care order is appropriate for both children, the Guardian would strongly prefer for both children to be placed in the same foster placement, if possible. A together and apart assessment to look at the sibling relationship and potential split arrangements for them in the longer term needs to be considered. There are also indication of severely distressed behaviours from the children, emotional regulation and ongoing attachment difficulties, which may require psychological assessment to ensure that the parenting they need to meet their individual needs is fully considered in care planning.”

  1. Once a Children’s Guardian has been appointed, he or she is obliged to exercise professional judgment, whatever the circumstances of the appointment. The court relies on Guardians to be independent in promoting and protecting the interests of the children in the litigation, and they may take, and not infrequently do take, a different position to that of the local authority. We acknowledge that, as commonly happens when an interim application is made at the outset of proceedings, this Guardian was having to absorb a mass of information at very short notice. She had no time to make inquiries, beyond reading the papers and having one conversation with the social worker at about 9 am. In cases of real urgency that may be unavoidable, but in this case it is, to put it at its lowest, surprising that she and the children’s solicitor felt it appropriate to make such a bold recommendation from such a low knowledge base. Neither of them had met or spoken to Sam or to his grandmother or his grandmother’s solicitor, nor did they have any information at all coming from that quarter. We also note that the Guardian was not available for the hearing in the afternoon. Her solicitor was said to be fully instructed, but the Guardian’s absence left her unaware of such arguments as Mr Lue was able to put to the court in response to her recommendation and deprived her of the opportunity to reflect.
  2. We are also troubled by the lack of any balanced analysis in the case for removal that was put by the Guardian, and also by the local authority. There is no reference to the emotional detriment to Sam in being removed from his only parental figure without notice or preparation. There was no reference to Sam’s wishes and feelings about immediate removal, nor any reminder to the court that these were not known. There was no credible explanation for why there had to be an emergency decision. Mr Squire fairly accepted at no less than three points in his appeal skeleton argument that the outcome was “harsh”, though he defended it as not being unfair or unjust. When we asked him about the above matters he described them as a consequence of this being “an emergency application” in which child protection imperatives had to prevail. We reject that argument. The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for Sam. We also firmly dismiss the proposition that the current ‘lockdown’ provides a reason for the removal of a child where none would otherwise exist. It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category. Our overall observation in this respect is that unfortunately Sam’s voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed.
  3. The local authority had in our view taken a sensible position in seeking an interim supervision order, as reflected in its position statement at 10.37. Yet within the hour it had moved to seeking Sam’s immediate removal. Nothing relevant had happened to Sam in the fortnight between Samantha’s departure and the hearing. The only basis for the volte-face was the intervention of the Guardian. We asked Mr Melsa, for the local authority, about the process leading to the changed decision, which came to him in an email instruction when he was in the middle of an advocates’ meeting. We learned that the decision was undocumented and the change of plan unreasoned. There was no evidence about it and no care plan to underpin it. Not surprisingly that led to confusion. At 12.48 the other parties were informed that removal would not take place until Monday 6 April because Sam had a cough that might be virus-related. The social workers then tried to investigate testing, but were unsuccessful. Despite that, at 13.43 the local authority announced that its plan was again one for immediate removal.
  4. Our observation is that it is hard to describe this process as anything other than arbitrary. A local authority must always be responsive to the stance of a Children’s Guardian, but there was no good reason for the plan to have been changed in this case. The consequence was to wrong-foot the grandmother, with whom it was going to share parental responsibility for Samantha, at least in the short term, without any discussion with her. Mr Lue was, as he put it, unable to understand the decision-making process and was having to take instructions by telephone on a constantly moving picture. He gave us examples of matters concerning Sam in the social work statement and the Guardian’s position statement that he has since the hearing been able to establish that the grandmother simply did not accept (for example concerning the arrival of the uncle on 20 March). We were entirely convinced by his account of feeling, in his words, hopelessly unable to represent his client in the way he would normally be able to do. It says a lot that throughout the whole process not one page emanating from the grandmother could be placed before the court. She had no opportunity to file evidence in relation to this serious matter, nor was Mr Lue in a position to marshal a position statement. In cases of exceptional urgency that may be unavoidable, but here it was unfair.

 

 

In terms of the remote nature of the hearing itself

 

  1. The Recorder made some reference to these principles but he did not apply them. Our observation is that this was a case where the central concern related to emotional harm stretching back for years. On the information then before the court it could not in our view be plausibly argued that something had now happened to make Sam’s removal that evening necessary. The circumstances in which Samantha had been taken into foster care showed the need for Sam’s situation to be carefully assessed. The evidence did not remotely justify his peremptory removal and there is nothing in the judgment that is capable of persuading us that it did. Our further observation is that, no doubt partly because of the exigencies of the remote process, there was a loss of perspective in relation to the need for an immediate decision about Sam. This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection. An adjournment would have enabled the parties and the court to have all the necessary information. As it was, crucial information was lacking and its absence was overlooked by the court.
  2. There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April. Whilst it may have been the case that the provision of video facilities was limited at the particular court at the time of the hearing, it is now the case that the option of using a video link is much more widely available. Where that is the case, a video link is likely at this time to be the default option in urgent cases.

 

Guidance for how to conduct remote hearings in Family Court

Very grateful to Gordon Exall of Civil Litigation blog for bringing this to my attention, and obviously a huge amount of work has gone into it by Mostyn J and MacDonald J.

 

Telephone hearings we are aware of and for short and reasonably non-contentious matters they are working well, but the issue facing us presently is how we do hearings where seeing the parties and assessing witnesses are to be done.

 

This document is not an ‘off-the-shelf’ solution, but it outlines the various challenges and solutions so that Courts can, with their local practitioners work out a scheme that works for them.  This probably is not going to be of interest to my non-lawyer non-Judge readers, its a long document and it is really getting into the nuts and bolts of how you make a hearing conducted electronically work.

 

But it is a piece of guidance that is going to save hundreds of hours of duplication over the country as individual LAs and local bar and Courts try to work out what is best for their area, and I’m extremely grateful for the work that has gone into it.

 

If you are ill, I wish you well, and if you are well, I hope you stay that way.  We are living through unprecedented times.

 

Click to access The-Remote-Access-Family-Court.pdf

 

Say you will , say you won’t, say you’ll do what I don’t, Cestui Cue Vie

This case follows on from

https://suesspiciousminds.com/2019/06/21/all-at-sea-2/

in which it emerged that according to a legal argument, all of us are declared legally dead after the age of 7 and thus laws no longer apply to us. Citing the Cestui Cue Vie Act of 1666. [Hint, we are not]

That was a hearing as to whether the father should register the name of his child, this is the final hearing of the care proceedings.

http://www.bailii.org/ew/cases/EWFC/HCJ/2020/4.html

T (A child), Re [2020] EWFC 4 (23 January 2020)

The bit that is useful to family law practitioners and Judges who are dealing with the whole category of ‘I say the Children Act doesn’t apply to me because of X’ arguments is this:-

1. I am concerned here with T, a male child born in the Spring of 2019. The mother (M) is represented by Counsel and solicitor. The father (F) has elected at this final hearing, as he has done throughout the proceedings, to act as a litigant in person. This decision is driven by his fundamental belief that neither the Court nor the State, through the arm of the Local Authority, has any jurisdiction to take decisions in relation to his children. He invests great belief in the scope and ambit of The Cestui Cue Vie Act 1666. I have addressed this in an earlier judgment [2019] EWHC 1572 (Fam). However, when F came into the witness box to give evidence, he requested that he take his oath based on an embossed document, which he had prepared, emphasising his “decree of divine sovereignty”. I permitted him to do so, for entirely pragmatic reasons. He has requested that I determine as a preliminary issue whether he, as a “Sovereign being” can be required to answer questions in these proceedings and, if not, he seeks an immediate order for the return of all his children.

2.Whilst I recognise that F’s beliefs are strongly held and, I believe, genuinely so, I have little hesitation in concluding that he is required to engage as fully as possible in these proceedings, brought by this Local Authority to protect T from what they contend is ‘significant harm’, as contemplated by Section 31 (2) Children Act 1989 (‘the Act’). Parliament has enacted the legal framework by which vulnerable children are protected and provided scope for parental rights and responsibilities to be evaluated in the application of the criteria within Sec 1 (2) of the Act, ‘the welfare check list’. In that process it is in the parent’s interest to give evidence and to advance their case. Inferences may be drawn from any failure to do so. It requires to be stated that this is also and manifestly in the best interests of the child subject to the proceedings

Thank you very much Hayden J. Despite these cases being more and more frequent, there is a lack of reported caselaw saying ‘no, this is wrong’ (you really have to go back to when Wall LJ was the President, and paras 24 and 37 of Doncaster MBC and Watson 2011 http://www.bailii.org/ew/cases/EWHC/Fam/2011/B15.html  for anything useful in Freeman of the Land type cases)

There seem to have been all sorts of shenanigans in this case, including the father having (by way of a trap) removing crucial documents from the Court bundle to prove a point as to how easy it was, him interrupting counsel’s cross-examination, mounting personal attacks on counsel for the LA (for which he later apologised), faking a claim that a previous Judge had not seen relevant documents because the LA were suppressing them – when it was proved that the Judge had indeed seen them.

This is the paragraph that stood out to me from the body of the judgment, however.

56.Earlier this year F pleaded guilty to an offence of outraging public decency. He received a conditional discharge. This incident involved his receiving oral sex from a prostitute in his car in the Bethnal Green area. Initially, F gave some rather ludicrous explanation suggesting that the police officer had mistaken the sexual act for discovering F “urinating into a bottle”. I note that M stood by F’s explanation. However, when I indicated a degree of scepticism at a Directions Hearing, F amended the account. In many ways I have to say that I consider the altered explanation to be equally odd. F says that he encountered the woman in Bethnal Green entirely by chance. She had recently been “beaten up” and her bruises were evident. She had cuts to her face to which she had applied a plaster. As I understand it, blood was still visible. F told me that he felt sorry for her. He explained that he had oral sex with her because he had a long-standing difficulty with erection dysfunction and he wanted to “experiment” with another woman to see if the difficulty was localised to his partner or a more general problem

 

Perhaps it is better to make no comment in relation to this.

 

 

The Judge observed that a lot of leeway had been given to the father, who was in person, and that the Judge had perhaps allowed the father’s tone in cross-examination of the Guardian to go too far. It is a reminder how easy it can become for a powerful personality to dominate the court room and how easily the norms are shifted.

 

46… Most strikingly, the conduct of F towards the professionals is, as they have described in evidence and I have witnessed in this court room, both contemptible and iniquitous. The impact on HHJ Atkinson of the campaign of harassment against her was, as I have read, alarming.

47.So too, in my assessment, has been the impact on Mr Hill, the Director of the unit. F’s modus operandi is to “research” material that might be available, either by way of general gossip or on the internet and to deploy it, when an occasion arises, against those who have crossed him. Given F’s perspective on the world, which perceives a hostile and corrupt state, it is inevitable that this is potentially a wide group.

48.In his cross examination of Mr Hill, which I address further below, F made references to his wife, his culture, his daughter. In evidence, he took Mr Hill, in detail, through the negatives of the Ofsted report, overlooking the fact that the overall assessment was a positive one. He was critical, directly and inferentially, of the building and the staff. I also note, in passing, that F was somewhat disdainful of the other residents. The manner of F’s questioning can best be described as bombastic and, on occasions, bullying.

49.With great respect to Mr Hill, who had held this post for eighteen years, it struck me that F had eroded something of his professional self-confidence. Later, when F came to give evidence himself, I asked him if he recognised that he had this impact on Mr Hill. He told me that he did recognise it. He also acknowledged that he appreciated the real distress he had caused to Judge Atkinson. In addition, towards the end of the case, F proffered an apology to Mr Barnes to whom he has been extremely discourteous and, on occasions, belittling. In what it will be seen is something of a pattern, F speculated adversely about Mr Barnes’s personal and family life. Mr Barnes, like Mr Hill, bore the onslaught with dignity and professionalism. It is necessary to state that this behaviour has taken place in front of me in a court room. I had a strong sense of F endeavouring to rein himself in. I infer that in different circumstances he would have unleashed his invective more freely. I record that F expressed some remorse for his behaviour to Mr Barnes, which I consider, on balance had, at the time it was given, some sincerity to it. What F lacked, however, was any even tentative understanding of why he behaved in such a way.

50.Tellingly, F’s cross examination of the last witness, the Guardian, was, particularly and especially towards its later stages, offensive. Even allowing for the fact that she is the professional representing F’s child and recommending an adoptive placement and might therefore expect a degree of robust questioning from a father acting in person, F’s treatment of her was overbearing, oppressive and bullying. The Guardian should not have had to endure such an onslaught. I was, on reflection, rather too slow in closing down F’s behaviour towards her. This was, I think, a reflection of the distorted dynamic that F creates.

51.It is also important to record that M rarely seeks to rein F in. Indeed, she is often voluble and highly critical of the professionals in her own right. This said, as F himself stated, the couple’s behaviour in this court has been greatly moderated from the behaviour exhibited before HHJ Atkinson. In that court F told me that M, at times, charged around shouting and upturning chairs.

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.