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Ostriching and adverse inferences

The law in relation to decisions not to engage with assessments and the consequences that may flow from this

I ended up scratching my head about this issue about a month ago – where a parent doesn’t engage with assessments and doesn’t provide samples for drug testing, what can the Court do about it? It seemed a very obvious answer that the Court would be invited to draw adverse inferences from the failure to cooperate, but I couldn’t easily lay my hands on the authority for that proposition. It turned out to be more elusive than I had imagined, so having done the research and written it up, it was rather vexing to receive an email minutes later to say that the parent was now willing to engage rendering all my hard work pointless.

So, waste not want not. At the very least it might save someone else having to do all the legwork.

1. The starting point is that under the Children Act 1989 and civil proceedings generally, the burden of proof in any allegation falls upon the party making it, and the standard of proof is the balance of probability. Thus, in care proceedings, it will be the task of the Applicant to establish that it is more likely than not that the parent’s behaviour, history or failings amount to behaviour that it is not reasonable to expect a parent to provide and that it amounted to either causing the child significant harm or establishes a likelihood of significant harm in the future.

2. In a case where the allegation is, say, mental health instability or substance misuse, it is not a burden on the parent to demonstrate that their mental health is now fine, or that they are no longer using heroin. (This misapprehension works its way quite regularly into language used outside Court – “This mother needs to show me that she’s changed” and so on, but it is not a legal burden on the mother at all.)

3. If the Local Authority satisfy the Court that an assessment under Part 25 is necessary to establish the history and prognosis of mother’s mental health, or the current status of abstinence from or usage of substances in order to make confident predictions about the future, what happens where a parent declines to participate?

4. The Court of Appeal in S (Children) [2006] EWCA Civ 981 http://www.familylawweek.co.uk/site.aspx?i=ed1435 addressed particularly where the limits are in the family Court of compelling parents to produce evidence.

5. 23. I move, therefore, from the clear need for the court to receive the disputed evidence to the manner by which it should do so. I have no doubt that the submission is correctly made on behalf of the father, and today correctly conceded on behalf of the local authority, that the court cannot compel a party, against his will, to procure the evidence of a person not already a witness in proceedings. A party can be permitted to file evidence which he wishes to file; and, in civil proceedings, he can be compelled to file evidence from himself. He cannot, however, be compelled to file evidence to be collected by him from a third party; for he has no power to compel the third party to co-operate in enabling him to comply with the order against him. So, yes, the father is right: he should not have been subject to purported compulsion to file a report by his psychiatrist. The judge seems to have recognised as much when, in judgment, he observed “although it does not seem to me that the father can be forced to, the evidence from [the father’s psychiatrist] can be obtained now.” Notwithstanding his doubts the judge for some reason proceeded in his actual order to direct the father to file a report from the psychiatrist.

6. A parent can be compelled to provide a statement from themselves within care proceedings (there is no “right to silence” as a result of s98(2) and failure to produce a statement as directed could be treated as contempt and breach of an order and punishable by committal Re LR (Children ) 2013 http://www.familylawweek.co.uk/site.aspx?i=ed117035 )

7. There is, however, a right to silence, when the application is for committal, and the parent must be informed by the Judge that he or she does not HAVE to go into the witness box and is entitled to decline the option of giving evidence. The Court of Appeal confirmed in Khawaja v Popat & Anor [2016] EWCA Civ 362 that the Court can draw adverse inferences from the parents decision to exercise that right to silence (this is NOT the case in criminal law, but is the case in civil law)

http://www.bailii.org/ew/cases/EWCA/Civ/2016/362.html

27.As the proceedings led potentially to a criminal penalty, the appellant could not be compelled to give evidence. He could have remained completely silent and could have addressed submissions as to the strength or weakness of the evidence adduced by the respondent. However, he took a half-way course. He provided two affidavits in explanation, but he declined (as was his right) to have that evidence put to the test in cross-examination.

28. It might have been unwise for the judge to say to the appellant so bluntly that “…the reality is that if you don’t go in the witness-box it is likely that I will infer that you won’t go in the witness-box because you know you are lying…”. However, it seems to me that his overall remarks to the appellant, at the end of Mr Roseman’s opening of the case for the respondents, were correctly in accord with the law and practice as reflected in paragraph 81.28.4 of Civil Procedure 2015 Vol. 1 (p.2460) as follows:

“A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent (Comet Products UK Ltd. v Hawkex Plastics Ltd. [1971] 2 QB 67, CA). It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence (Interplayer Ltd. v Thorogood [2014] EWCA Civ 1511, CA…)…”
29.It is entirely clear from the transcript of the judge’s exchanges with Mr Roseman that he recognised fully the burden of proof that was upon the respondents and the standard of proof required to discharge that burden. The judge pressed Mr Roseman closely upon the evidence adduced in support of the application. I do not accept Mr Hendron’s submission that the judge concluded that the appellant’s silence on its own proved his guilt (contrary to the principles emerging from R v Cowan [1996] 1 Cr App R 1 at 7). The judge was conspicuously aware of the burden resting upon the respondents throughout. In my judgment, it seems clear that the judge recognised that the respondents’ evidence produced a case for the appellant to answer; he found the explanations given in the appellant’s affidavit evidence unsatisfactory and in the absence of oral evidence he drew the inference open to him that the appellant’s explanations were untrue.

30.It seems to me further that the law and practice as briefly stated in Civil Procedure (Loc. Cit. supra), and applied by the judge, is entirely consistent with the jurisprudence of the European Court of Human Rights, as reflected (for example) by the following passage from the judgment in Murray v UK [1996] ECHR 18731/91 at paragraph 47:

“On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.”

“Wherever the line between these two extremes is to be drawn, it follows from this understanding of “the right to silence” that the question whether the right is absolute must be answered in the negative.”

“It cannot be said therefore that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him. In particular, as the Government have pointed out, established international standards in this area, while providing for the right to silence and the privilege against self-incrimination, are silent on this point.”

“Whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.”

8. If a parent has within their possession and control documents or evidence, this can also be ordered to be produced. But the thrust of the passage in Re S 2006 above is that a parent cannot be compelled to participate in a psychiatric assessment if they do not consent. The Court has no power to compel them to do so.

9. However, the Court of Appeal provided a recommendation for such a scenario :-


24. It must be remembered, however, that the request for an order that the father should file a report from the psychiatrist was only the fall-back application made on behalf of the local authority. Their primary application was for an order for the disclosure of the records held by the psychiatrist and the linked records held by the father’s GP. Granted the relevance of the father’s psychiatric condition, that application was in my view unanswerable. In the ordinary case, in which the medical records are held by the doctors, the appropriate direction would have been to grant leave to the local authority to issue what in the Division we still have to call subpoenas duces tecum and ad testificandum, returnable either at the outset of the substantive fact-finding hearing or, surely more conveniently, at a prior review hearing, at which the doctor or doctors can produce the records to the court and answer such questions as will enable the parties both to make sense of them and, more broadly, to collect from them the focussed information about the parent’s likely condition at the time of the event. In this case, however, we are given to understand that the medical records are already in the possession of the father; and so in my view there is no impediment to a straightforward order for his immediate disclosure of them to all other parties. To that order I would attach permission to the local authority and the guardian, if so minded, to show the records to a psychiatrist of their own choosing; and, having studied the records and perhaps having instructed a psychiatrist to educate them about their significance, the local authority and/or the guardian will be free at the next review hearing to ask for leave to issue a subpoena ad testificandum against the father’s psychiatrist. I have to say that, once the court in care proceedings has decided in principle that such information should be obtained and once the parent has had the benefit of legal advice, this cumbersome method of obtaining it is usually circumvented by his agreeing, as a recital to the order, to procure a report from the psychiatrist upon the matters ruled to be relevant. Perhaps, now that this appeal is reaching its end and now that he can be given further and clearer advice, the father will be amenable to that elementary level of co-operation. But we should not count on it. It follows that I propose that the local authority’s cross-appeal and, insofar as it relates to the direction that the father should file a psychiatric report, the father’s appeal should be allowed; and that the orders which I have indicated should be substituted for the direction made by the judge. In all other respects the father’s appeal should in my view be dismissed.

9. The Court does, therefore, have jurisdiction to compel production of the medical records and can, if a party has made an application under Part 25 for an expert, direct that the expert report on a paperwork basis, considering said records. (And the Court of Appeal express hope that given that scenario, a parent would reflect that a report might be more favourable and balanced and nuanced if the expert has the benefit of speaking to them about these issues and thus change their mind about participation)

10.However, such an option is not available with drug or alcohol testing. If the parent is not consenting to the production of samples, alternate methods of collecting the samples cannot be used.

11. The issue therefore is whether the Court is entitled to draw adverse inferences or conclusions (specifically – does the decision by a parent not to consent to providing a sample amount to evidence that the tests if undertaken would demonstrate something unfavourable to the parents case?)

12. The High Court in RE O (CARE PROCEEDINGS: EVIDENCE)
[2003] EWHC 2011 (Fam) considered the issue of adverse inferences where a parent declined to give evidence at all or refused to answer particular questions

13. As a general rule, and clearly every case will depend in its own
particular facts, where a parent declines to answer questions or, as here, give
evidence, the court ought usually to draw the inference that the allegations are
true.

13. A decision not to consent to provide samples for the purpose of alcohol or drug testing is not strictly a parent declining to give evidence, but rather a parent declining to provide additional evidence which might establish things one way or another.

14. It might be analogous to the refusal to submit to DNA testing in paternity cases. The Court in those cases are entitled to draw ‘such inferences, if any, from that fact as appear proper in the circumstances’ (s23(1) Family Law Reform Act 1969) – the Court of Appeal ruled in Re G (Parentage : Blood Sample) 1997 1 FLR 360 that where a putative father refused to submit to blood tests then a forensic inference should be drawn and since the forensic process was advanced by the truth being told in court, those who obstruct that process will have an adverse inference drawn against them.

15. Whilst this is a helpful illustration, as the statute in question specifically provides in s23(1) the Court’s power to draw inferences, and the Children Act 1989 does not, it does not provide a definitive answer.

16. The Supreme Court, dealing with an ancillary relief case, considered the issue more broadly, in Prest v Petrodel 2013 https://www.supremecourt.uk/cases/docs/uksc-2013-0004-judgment.pdf

44. In British Railways Board v Herrington [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said:
“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”

The courts have tended to recoil from some of the fiercer parts of this statement, which appear to convert open-ended speculation into findings of fact. There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. For my part I would adopt, with a modification which I shall come to, the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283, 300:

In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
Cf. Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340

17. It is suggested, therefore, that following the guidance in Prest v Petrodel (The ‘modification which I shall come to’ being very specific to ancillary relief cases and we can thus ignore it) , where the Local Authority have provided evidence which provides a reasonable basis for coming to a conclusion about substance misuse or alcohol misuse, a parent who chooses to be silent and not provide evidence by way of scientific testing (unless credibly explained) may have the Court determine that their silence turns a prima facie case into a strong or overwhelming one.

18. A Local Authority could not simply ask for a drug test as a fishing expedition and ask the Court to draw adverse inferences if a parent refuses to give one – they need to establish an evidential basis for suspicion that a test is necessary. (Previous history, allegation by a credible witness, evidence of the parent acting in a way which is consistent with drug misuse or so on)

(Why Ostriching? It’s lawyer slang for when a client is burying their head in the sand and pretending that it will all just go away if they ignore it. Actually, ostriches don’t do this – though they do dig holes in the sand to bury their eggs, and occasionally put their heads in those holes to turn the eggs hence the myth.)

Octavia, looking for Hartley and Topov

And all through my coffee break time

This is trivial. And that’s coming from someone who wrote a whole piece this week just so he could use a play on words about “kayak”. So yes, I know it is trivial. I do have a piece planned on the President’s Blood on our hands case, but that needs time to percolate, so to speak.

This is about the HMCS new security policy, on a national level, that anyone bringing liquid into Court has to take a sip of it, to demonstrate to security staff that it isn’t acid or some sort of hazardous liquid. That’s been going on for a while with bottled liquid, but it is now being extended.

I’m not sure why the product placement for Costa

(I didn’t write this and I already know that the author has misused ‘effect’)

Obviously, there are times when tempers run high in Courts, and of course sometimes people are attending Court where there’s a history of domestic violence and such, and one would never ever want a cup of acid to be thrown in such circumstances. And of course, one can only imagine the Daily Mail take if such a thing were to happen in a Court building – handwringing and demanding that heads must roll for not having anticipated it.

So I see where it comes from, particularly in light of the recent lurid headlines about acid attacks (and our own Home Secretary having not the slightest clue about what the actual sentencing provisions are for such offences are whilst playing to the “something must be done” gallery)

On the other hand, a minute application of common sense says that the reason why I and my colleagues and opponents don’t go about disguising acid as coffee and throwing it around at Court is NOT for fear of it being confiscated by Security guards (because hitherto we’d have got away with it) but because we’re not maniacs.

As an individual carrying a cup of coffee, the new scheme just causes a mild inconvenience – just taking a sip a little earlier than you anticipated. Not the end of the world.

This, however, does effectively put paid to the practice of coffee runs – where one person kindly goes to fetch coffees for a few other people. (Whilst the author of the email, who is not me, thinks that only counsel ever do this, of course others do it too. Doing a coffee-run, whilst you wait for the hearing to start, or wait for the windbags who went in first to finish, or for facts and reasons, is actually one of the few nice and civilised parts of attending Court. It seems a shame to lose it. )

If you have fetched four coffees and have to take a sip of each to demonstrate their safety, that’s going to rule out people like me who are happy to buy and fetch coffees for others but can’t drink them (because coffee is disgusting), or indeed anyone who prefers to drink their coffee untouched by the lips of others. It also avoids the prospect of someone saying “Does anyone fancy a coffee?” and you saying “ooh, me please” and then changing your mind as you realise that it is Malcolm Halitosis or Tina Moustache offering to fetch them…

(I would also point out that as a way of preventing “Alcohol” being brought in clandestinely, that asking the person bringing it in to sip it contains something of an exploitable loophole. Rather akin to asking the suspected heroin smuggler at an airport to go into a cubicle and do their own cavity searches)

Also, I’m not convinced that cardboard cups are a dream vehicle for transporting corrosive acid.

Cardboard goods are extremely sensitive to contamination. They must in particular be stowed away from colorants, acids, chemicals and fats/oils and be protected from dust and dirt.

How about polystyrene cups?

In the lab,polystyrene is melted and damaged by nearly every solvent.

http://scs.illinois.edu/hpl/documents/MaterialsCompatability.pdf

I’m going to go out on a limb and say that anyone trying to transport corrosive liquid strong enough to injure a person is going to indeed injure a person with it if they try to do so in a coffee cup. That person will be themselves.

Glass bottles, and plastic bottles, possibly. And most Courts have been doing that at security for a long time, and it makes sense. Nobody is really going to object to that.

So if the coffee-cup sip test isn’t going to prevent alcohol (because the person bringing it is the person sipping it, and they will just stay silent) or corrosive liquids (because you’d detect that by the fact that the person’s shoes will be disintegrating) that only really leaves flammable liquids.

I think a sniff test would probably do the job there.

In the meantime, my loophole suggestion :- use a pen to write a message to the recipient under the lid, and assert your article 8 right to respect for private correspondence. (Suesspicious Mind note – this will not actually work, and will almost certainly make you late for Court whilst you argue Human Rights law with security guards, who will do their best to accidentally bang your shins with the metal detector wand and break the zips on your bag/suitcase every time they see you thereafter. So don’t do that)

“Oh my God, he’s got a pumpkin macchiato! Save yourselves! Get to cover” *(Not a coffee drinker, so is that even a thing?)

Benjamin Franklin, what do you want to tell us about whether the minute risk to our safety is worth sacrificing our freedoms?

If anyone wants to tell me in the comments section what the daftest thing they know has been confiscated by Court security, I’d love to hear it. I’ve been told this morning of peanut confiscation in case of nut allergy attack, and bike lights in case… you shine at the Judge??? Has anyone been asked to squirt perfume, or to apply spare lippy to make sure that’s really what it is?

You can’t have your kayak and eat it

(And yes, I did decide to write this one up because I couldn’t resist that joke)

Green v Adams 2017

This was a hearing following Mostyn J’s decision on mother’s application for financial provision for her child under Schedule 1 of the Children Act 1989. Mostyn J had made an order for such provision. The father appealed, unsuccessfully.

Subsequently, the father made an application to Court, aided by Dr Pelling (a name familiar to a lot of family practitioners he has actually had a lot of success as a MacKenzie Friend, including this somewhat pyrrhic victory but victory nonetheless of establishing that an assistant tipstaff assaulted him http://www.bailii.org/ew/cases/EWHC/QB/2004/492.html . I always enjoy a case with Dr Pelling in it – he really knows his way around the more obscure corridors of the law and when I refreshed my mind about the 57 cases that Bailli name-checks him in, he actually succeeds and is complimented for his manner and ability quite a lot of the time, and similarly, Mostyn J enjoys a good legal conundrum, so this had potential to be a fascinating judgment. Sadly, it disappoints, save for the kayak)

The father made an application that the Judge had in effect added things into the ‘pot’ that mother had not explicitly claimed for, that is the costs of a trip to China and the cost of a kayak. And that further, the figures that the Judge had calculated for these were too much, and that the lump sum father was ordered to pay was therefore too much.

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/52.html

These two further points were, first, that the true cost of the trip to China referred to in my judgment of paragraph 1(iii) was £2,300 (which he had established by an email from the school) and, second, that the true cost of a kayak was no more than £500 (which he had established by Internet research). Therefore, he argued that in respect of these two items my assessment had been overstated by £350 and £300 respectively, a total of £650.

16.Accordingly, Dr Pelling argued that my lump sum of £20,600 was overstated by a total of £2,450 (i.e. £1,800 plus £650).

The Judge reminded himself that he did have the power to make awards for more than a person had actually sought.

However, I agree with Dr Pelling that if I was minded to go outside the field of battle as defined by the parties then the father should certainly have been given notice of my intention to do so. In any event, after having examined my memory, and even allowing for the considerable passage of time, I am satisfied that I did not intend to award the mother the full amounts and that I made a minor mistake. It is right that my judgment should be amended to reflect what I intended. Therefore paragraphs 1(ii) and (v) will be corrected to provide that the mother’s claim was for half the sums mentioned, namely £1,500 and £300.

19.However, on 13 July 2017, after the hearing and at a time when this judgment was largely completed, I received an email from Mr Holden which stated that the parties’ son had changed his mind about going on the educational trip to Israel this summer. Therefore, the mother would no longer pursue this head of claim and will repay the sum awarded.

20.The position is very different in relation to the claims concerning the China trip and the kayak. Here, the mother gave her best estimate of the historic costs. It was open to the father to challenge those figures and to adduce competing evidence. He did not do so and now is arguing that the court made its award on a mistaken basis. In my decision of DB v DLJ [2016] EWHC 324 (Fam) at paragraph 57 I stated at (ii) and (iii) that the claimant (that is to say the father in this case) must show that the true facts would have led the court to have made a materially different order from the one it in fact made, and that the absence of the true facts must not have been his fault. In my judgment, a correction in respect of these two items of £650 does not satisfy the criterion of a material difference and in any event I am not satisfied that the true facts could not have been placed before me by the father. I do not allow these corrections.

21.My conclusion is that the mother must repay to the father £3,300 (i.e. the full amount of the Israel trip – £3,000, and half the cost of the computer – £300) against which I offset her award of costs made above of £857, leaving the sum of £2,443 to be repaid.

There was also an application that the judgment should be anonymised, but we can all deduce what the conclusion of that was from the name of the case.

22.I now turn to the father’s application for further anonymisation of the main judgment. He says that the extent of anonymity given by me to the properties in paragraph 14 of my judgment is not enough, and that fictitious numbers and initials should be given. He says that there is a risk of jigsaw identification and a real danger of the people who live at those addresses been targeted by criminals. I am slightly surprised that this submission should be made by the father through Dr Pelling having regard to their trenchant resistance to any form of anonymisation in the proceedings in the Upper Tribunal heard by Mr Justice Charles and reported publicly as Adams v SSWP and Green [2017] UKUT 0009 (AAC). However, I am not satisfied that any further anonymisation is necessary, and this request is rejected.

(Seriously, I really did select this case on the basis of the kayak pun. I’m here all week, try the chicken)

Will you sign my petition ?

Don’t panic, I am not asking you to sign a petition. Although if I was, it would be for someone to make me some artwork of Sweep as a Transformer. Fighting MeGrimlock. And He-Man. That would be epic. Sweep would kick He-Man to bits. Despite not having legs. That’s how rock Sweep is.

Snap back to reality, oh there goes gravity….

This one covers something that comes up from time to time. Can a parent put a petition about their case online (notably on Change.org) and what can they / can’t they say in it?

Mr Justice MacDonald explains it all

“Ferguson!” (google it, or ask someone older)

Southend Borough Council v CO 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1949.html

10.The mother’s petition on the Change.org website is entitled “Please help stop the adoption of my 2 beautiful children”. It is directed to the United Kingdom Parliament and to the Prime Minister. In its original form, the explanatory narrative for the petition set out details of the final hearing before the District Judge, details of the orders granted by the court, the names, ages and disabilities of the children. The explanatory narrative also alleged that the social worker “lied under oath” and that the case was heard “without evidence” of emotional harm or neglect. Whilst, as I have already noted, there is no indication in the papers before me that the decision of the District Judge has been the subject of an appeal, but that certain information provided by the mother since the hearing suggests an appeal is at least contemplated, the explanatory narrative on the petition states that the mother is “applying to appeal to a higher court” to “put evidence before a judge to prove the social worker has lied under oath”. In its original form, the petition also exhibited a photograph of N and T, T being dressed in her school uniform.

If you’re not familiar with Change.org, it is one of those government initiatives like the Cones Hotline, aimed at empowering the public. In effect, anyone can set up a petition online at Change.org asking for others to sign it. If you get enough signatures (100,000 I believe), Parliament will debate your question.

(My prior experience with Change.org, other than it hosting petitions on behalf of parents who have lost their children in Court hearings, was Dave Gorman’s piece on it. http://voxpoliticalonline.com/2014/10/09/dave-gorman-on-government-e-petitions-hilarious-and-perceptive/ )

The Council issued Court proceedings, and the parents agreed at an interim stage to take down the portions of the petitions that would identify the children (their names, surnames, the photographs) but wanted the petition itself to stay up.

The Council considered that the petition, given that the signatories were all members of the extended family, still identified the family and hence the children, and sought removal of it in its entireity. Some of the responders also used the children’s names in comments when adding their signatures.

It is very clear that a parent can’t name the children or put photographs of them on the petition (and if for some reason you doubted that before, MacDonald J makes it very plain in this judgment) but the more difficult area is whether the petition is legitimate once those readily identifying features have been removed.

Here’s what the petition looked like at the start of the final hearing on this issue

11.Following the consent order of 25 May 2017, it took a little time for the parents to comply fully with the terms of that order. On 30 May 2017, the children’s names had been removed from the main page of the petition but the photographs of N and T remained visible and the other details were unaltered. On 8 June 2017, the photographs of N and T had been replaced with a photograph of all four children with their faces partially obscured. Ms Duxbury has confirmed that the parents have now complied fully with the consent order of 25 May 2017 with respect to the pictures, names and ages of the children that had been published on the main page of the petition on the Change.org website. As I have noted, friends and acquaintances of the parents have, on a limited number of occasions, identified the children by their forenames when responding to the petition and those posts remain. The current front page of the Change.org petition, which names the mother, reads as follows:

“In May 2017 family court granted, a full care order and placement order on all 4 of my beautiful children, despite me having solid evidence and this case was heard without evidence of emotional harm, neglect so I am applying to appeal to higher court so I can put evidence before a judge to prove to them i have never neglected my children , nor would i ever put them at risk of any sort of harm (i love my children with all my heart ❤ my focus on life is them) Having my children is my greatest achievement, they are my saviour they switched my focus from the outside to the inside. My children are gifts, they remind me of what's important. please help by signing this petition to reunite my family.<3"

That’s made me all nostalgic for 1337, I haven’t seen a “less than three” for ages and ages. I thought emojis had seen off 1337-speak. Aw, readers, I less than three all of you.

(And she managed to get a heart emoji in, so the less than three at the end is deliberate. Perhaps this mother is an uber haxxor who is keen to bring leet-speak back ?)

However, first, MacDonald J invites the usher to bring out the Naughty Step for the Local Authority and the legal department specifically.

before turning to the substantive issue, I must make some observations about an unfortunate course of conduct by the local authority following the granting of the order by consent on 25 May 2017.

7.Following the hearing on 25 May 2017, the mother contacted the court to alert it to the fact that the local authority was writing to members of her family in a manner that suggested that those family members were bound by the order of 25 May 2017 and prohibited from adding their names and comments to the Change.org petition. Having seen a copy of the letter being circulated by the local authority, I was satisfied that it does indeed read in that way and I notified the local authority through my Clerk that I would require an explanation.

8.The local authority now accepts that the letter it sent to family members does, wrongly, intimate that the order of 25 May 2017 prohibited family members from responding to the petition. Whilst the letter in question was written and sent by the allocated social worker, it would be wrong to criticise her. The social worker, as one would expect, sent the letter to the legal department of the local authority for checking before sending it out and the legal department returned the letter to the social worker un-amended for dissemination. The actions of this local authority legal department in permitting a letter in the terms drafted by the social worker to be sent are strongly to be deprecated. It is a matter of very grave concern that a local authority would seek to pass off an order of this court as something that it is not. There must be no repeat of this.

“All your naughty step are belong to us <3"

The legal framework (if petition is anonymised) boils down to article 10 (right to free expression) versus article 8 (child’s right to privacy)

20.The nature and ambit of the balancing exercise is well established. In considering whether to grant an order with respect to the publication of information the judge must balance the competing rights engaged. In many cases these will be the rights under Art 8 (respect for private and family life) and Art 10 (freedom of expression), although other rights may also have to be placed in the balance when reaching a decision regarding the publication of information. When conducting a balancing exercise between Art 8 and Art 10 (and any other rights engaged), the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) at [17], namely:

i) First, no article has, as such, precedence over the other;

ii) Secondly, where the values under the articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary;

iii) Thirdly, the justifications for interfering with or restricting each right must be taken into account;

iv) Finally, the proportionality test must be applied to each, referred to by Lord Steyn as “the ultimate balancing test”.
21.In applying what Lord Steyn described as the “ultimate balancing test” of proportionality the court must consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve (JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96). This will involve an exacting analysis of the factual case advanced in defence of the measure in question (in this case the removal of the petition) to determine (a) whether the objective of the measure is sufficiently important to justify the limitation of a fundamental right, (b) whether the measure is rationally connected to the objective, (c) whether a less intrusive measure could be used and (d) whether having regard to these matters and to the severity of the consequences a fair balance has been struck between the rights of the individual and the needs of the community (Bank Mellat v HM Treasury (No 2) [2014] 2 AC 700 at [20]).

22.In A Local Authority v W, L, W, T and R (by the Children’s Guardian) [2006] 1 FLR 1 at [53], Sir Mark Potter P summarised the approach to the requisite balancing exercise as follows:

“The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity in that neither article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the courts to examine the justification of interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test …”
23.Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations (Re J (Reporting Restriction) [2014] 1 FLR 531 at [22]).

24.In undertaking the requisite balancing exercises, the impact of publication on the child must be weighed by the court (Re S (A Child) (Identification: Restrictions on Publication) at [25]). Whilst in many cases it will be demonstrated that publication will have an adverse impact on the child, this will not be the position inevitably. In Clayton v Clayton at [51] Sir Mark Potter P said:

“…given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save in so far as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child’s family or private life.”
25.In the circumstances, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publication will be inevitably harmful to the child (see also R v Robert Jolleys, Ex Parte Press Association [2013] EWCA Crim 1135 at [16] and PGS (Appellant) v News Group Newspapers Ltd (Respondent) [2016] UKSC 26 at [73]).

26.Within this context, the court will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation (Re W (Children)(Identification: Restrictions on Publication) [2006] 1 FLR 1) although there comes a point where evidence is not merely speculative but pure speculation (Birmingham City Council v Riaz and others [2014] EWHC 4247 (Fam)).

MacDonald J also raised (but sensibly ruled that he didn’t need to decide the point) an argument about the Bill of Rights 1689. This seems a tricky point for a later Court to resolve. Brrrr.


32.The right of the subject to petition the Crown for redress for personal grievances was recognised in Magna Carta (although it probably dates to the Anglo-Saxon monarchs of England) and, more explicitly, in an Act of 1406 (Rotuli Paliamentorium 7 & 8 Hen. IV, No 63). The Bill of Rights of 1689 (1 William & Mary, session 2, cap 2) restated the right to petition the Crown, and the protection afforded to that right, in clear and unambiguous terms, stipulating that “…it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.” The Bill of Rights continues to apply in England and Wales. The right of the citizen to petition Parliament or the Government in respect of a personal grievance has thus been, and remains a fundamental constitutional principle (within the context of the right to Petition the European Parliament under Art 44 of the European Charter of Fundamental rights, the right to petition has been described as a fundamental right (see C-261/13 P Schönberger v Parliament)). Within this context, the House of Commons has a comprehensive body of rules that make provision for the submission of public petitions (see HC Standing Orders (Public Business) (2009)).

33.I did not hear detailed submissions on the operation of the Bill of Rights in this case and, specifically, on the effect (if any) of the prohibition it contains on “commitments and prosecutions” with respect to petitions seeking redress. Given the answer produced by the balancing exercise in respect of the ECHR rights engaged in this case, it has not been necessary to consider the point further. However, in a case where the balancing exercise were to come down in favour of injuncting a parent from circulating online a petition aimed at seeking redress from Parliament, it may well be necessary to go on to consider whether the fact that “all commitments and prosecutions for such petitioning are illegal” under the Bill of Rights of 1689 renders such a course unlawful.

(i.e is a petition to Parliament the same as petitioning the King, and prosecution for such petitioning is illegal, or is it only petitions to the King/Queen? In which case, Her Majesty is going to get an increased post-bag. )

In this case, the LA raised several arguments to say that publication of the anonymised petition would cause harm to the children, MacDonald J recognised each of these as having POTENTIAL to cause harm generally, but held that the LA had not produced evidence about the harm to these particular children

44.Turning in detail to the contended for justifications for interfering with the Art 10 rights of the parents relied on by the local authority, Ms Duxbury essentially submits that it is a matter of common sense that if C and W see online that their mother does not accept the outcome of the proceedings nor the validity of the care orders, this will act to upset the two children and undermine the stability and security of their respective foster placements. However, aside from this assumption, the local authority provides no specific evidence to support its contention that the presence of the petition, and its contents will cause emotional harm to C and W by means of causing them upset and potentially de-stabilising their respective foster placements.

45.Whilst it is the case that W’s foster placement has recently broken down, and Ms Duxbury informs the court that the foster carers feel that the precipitating issue was a level of anger and frustration being generated in W resulting from conflicting information being received from his birth family, there is no evidence before the court demonstrating that the breakdown resulted from the petition on the Change.org website (as opposed to, for example, exchanges during contact). Further, the assumption inherent in Ms Duxbury’s submission itself must be interrogated by reference to the nature of the information contained in the petition. W is 15 years old and C is 14 years old. Both children are fully aware that they were the subject of care and placement proceedings, that their parents do not agree with the decision of the court and that the parents wish the boys to be returned to their care. Within this context, the information set out in the petition will not result in the children becoming aware of views held by their parents’ regarding their placements of which they were previously oblivious. Whilst it may be said that, if it is permitted to remain online, the fact of, and the information contained in the petition acts to reinforce in the children’s minds their parents lack of acceptance of their placements following the outcome of proceedings, once again there is no evidence before the court that this is in fact the case.

46.Likewise, the local authority provides no specific evidence to support its contention that the presence of the petition, and its contents will disrupt efforts to find adoptive placements for T and N, or make an already challenging home-finding task more difficult, by discouraging prospective adopters from putting themselves forward. The highest that Ms Duxbury can put that submission is to assert that the online petition “could create anxiety with potential adopters”. Once again, whilst it may be said that it is a common-sense proposition that prospective adopters will be more reluctant to consider children who are the subject of an active online campaign, each case turns on its own facts and the assumption must be interrogated by reference to the evidence before the court. Within this context it is again important to look at the nature of the information contained in the petition. The petition makes clear that the children were the subject of proceedings, that the parents opposed to the plan of adoption and that the parents do not accept, and continue to oppose the outcome of the proceedings. All this is information that will be known to any prospective adopters. Within this context, the information set out in the petition will not result in prospective adopters becoming aware of information they would not otherwise be privy to. Whilst it may be argued that the presence of a petition indicating continued, active opposition by a parent following the conclusion of proceedings may act in more subtle ways on an adopter’s willingness to consider the children, once again this is an assumption rather than an evidenced fact. Indeed, information communicated to the court by the mother following the hearing tends to suggest that the local authority has now located adopters for T notwithstanding the existence of the online petition.

47.Finally, the local authority offers no evidence at all to support the alleged risk that the material already in the public domain will cause ongoing embarrassment and, potentially, emotional harm to the children as they get older in circumstances where it will remain on the Internet indefinitely in an easily and repeatedly accessible form. I accept that the fact that information is already in the public domain does not prevent injunctive relief where it can be shown that the repetition of known facts about an individual amounts to an unjustified interference with the private life of that person (see JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB) at [59]). However, once again, in this case the nature of the information is important.

48.The information contained in the petition setting out the mother’s objections and assertions regarding the fairness of the proceedings is, as I have outlined, relatively innocuous (once again, it does not contain details of the evidence before the court or details of the harm the court was satisfied that the children have suffered and does not seek to discuss the children’s individual needs), particularly when compared to other information that the courts have permitted to remain online (see for example Re J (Reporting Restriction), where the information in question was a video of the execution of an emergency protection order showing the child being removed in circumstances that were distressing, which video the court permitted to remain online subject to an order requiring the anonymisation of the name of the child). Further, the local authority offers no evidence to suggest that a petition placed online in response to a judicial decision in 2016, to which 160 people signed up and which received its last signature two months ago, is likely to be accessed in future years by others to the extent that it will result in embarrassment to the children, much less emotional harm. Again, whilst it is possible to speculate that this might be the case, given the nature of the information and the relatively small number of people who have accessed it at a time when it is relatively current, the court needs more than mere speculation before such a conclusion can be drawn. I also again bear in mind that the Administration of Justice Act 1960 does not act to prevent child being identified as having been the subject of proceedings.

49.In the circumstances, I am satisfied that there is very little cogent evidence before the court that each of the children or any of them will suffer embarrassment, much less emotional harm if the petition on the Change.org website remains in place online. Within this context, once again, it must be remembered that what the court is examining is whether there is evidence which amounts to a justification for interfering with the cardinal right of freedom of expression for the purposes of Art 10(2). Whilst it is, of course, possible to formulate a number of common-sense assumptions with respect to the potential impact on each of the children of persons accessing the online petition, the reality is that the justifications on which the local authority seeks to rely for interfering with the parents’ right to freedom of expression under Art 8 are poorly evidenced and largely speculative in nature.

The Judge’s conclusions are very plain that his decision (to allow the anonymised petition to stay up) is not one about the merits or otherwise of petitions and not a template to be followed in all future cases, but about the merits of THIS case and that the LA needed to show evidence about the impact or potential impact on these particular children which would have justified an interference with article 10 and that they, in THIS case, had not done so. It doesn’t mean that a Local Authority in another case would not be able to produce such evidence that would justify the petition being removed.

60.Finally, in respect of the contended for justifications for interfering in the Art 8 right of the children for respect for private life, in this case one of the main factors driving the interference in the children’s Art 8 right is the fact that the mother’s name appears on the front page of the petition and the children are referred to by their forenames in a limited number of the responses to that petition. Against this, the ability of a parent to make clear who is speaking out or seeking to petition for redress is self-evidently very important, it being very difficult, if not impossible, to effectively protest a contended for injustice or petition for redress of a personal grievance if the protester or the petitioner must remain anonymous and prevented from providing any salient details of their grievance that may breach that anonymity.

61.Having regard to the foregoing parallel analysis of the importance of the rights engaged in this case and the respective justifications for interfering with the same set out above, in which I have considered each of the children’s best interests as a primary consideration, and applying the ultimate balancing test of proportionality, I am satisfied that the local authority’s application for an injunction compelling the parents to take down their online petition must be dismissed.

62.Balancing the Art 10 right to freedom of expression of the parents (in the context of the importance of that right, the importance of parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress) against the Art 8 right of the children to respect for their private and family life (in the context of the importance of that the right for the psychological integrity, personal development, development of social relationships and physical and social identity of the children and the court not being satisfied, having regard to the nature of the information and the children’s prior knowledge of it, that the evidence establishes that publication will cause emotional harm to C and W and potentially de-stabilising their respective foster placements, disrupt efforts to find adoptive placements for T and N or cause ongoing embarrassment to the children as they get older) leads me to conclude in this case the Art 10 right to freedom of expression outweighs the Art 8 right to respect for private and family life when it comes to the question of the online petition being taken down. Applying the ultimate balancing test of proportionality, in my judgment it cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.

63.For all the reasons I have given, the application of the local authority for an order compelling the parents to take down their petition on the Change.org website is accordingly dismissed. The order made by agreement on 25 May 2016 will continue in force.

CONCLUSION
64.I recognise that my decision will leave online a limited amount of information concerning the children in a format that has the potential to identify them as having been the subject of proceedings. However, cases dealing with the publication of information concerning children must be decided by the careful and rigorous application of the well-established legal principles articulated earlier in this judgment. As the President observed in Re J (Reporting Restriction), in the face of the challenges presented by the Internet we cannot simply abandon basic legal principles, as Lord Sumption observed in Prest v Petrodel Resources Ltd [2013] 2 AC 415, courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different and as Hayden J observed in Re J (A Minor) [2016] EWHC 2595 (Fam), with respect to the balancing exercise required in cases of this nature, in a mature family justice system the weight afforded to the right to freedom of expression must be recognised and engaged with.

65.Within this context, cases dealing with the publication of information concerning children who are, or who have been the subject of family proceedings will necessarily involve competing interests. The court is required to balance a right that is important to the individual subject children, children who will often have been exposed to significant personal trauma, against a cardinal right that is important to parents, to children and to society as a whole. Where the court is required to strike this balance, a solution that comprehensively satisfies all interests is not possible.

66.Finally, I emphasise that this is a decision that turns on its own facts. It is not a judgment on the merits or demerits of online petitions generally, whether in the context of family proceedings or otherwise. Rather, it represents only the product of applying the required balancing exercise to the very particular circumstances of this case.

67.That is my judgment.

Superman or Green Lantern ain’t got nothing on me

 

 

This is just an update about the book. And if you don’t know that I’ve written a book, then you now have that valuable piece of information. Want to get a copy?

https://unbound.com/books/in-secure

 

Exciting bit. Every last i has been dotted and t crossed. The copy edit has come back and I’ve made all the necessary adjustments and signed the text of the book off.

Having not been through this process before, it was an eye opener – as well as just checking spelling and grammar, the copy editor goes through each line and scene to make sure it is consistent and working. They keep track of which characters are in each location during a scene and make sure that someone who I said a page earlier was in the kitchen isn’t saying anything in the breakout area unless I’ve shown them come back in. That’s really easy to lose when writing, especially when you are making changes and don’t spot that moving someone around on page 19 has ripples on page 24. Same with props – if I haven’t said that someone is holding a deck of cards on page 36, they can’t start shuffling it to pass the time on page 38.  Continuity, basically. Important.

 

I’m really happy with the way the book reads now. It isn’t perfect, because I’m not actually F Scott Fitzgerald (and even then, frankly, he didn’t hit home runs every time) but the flaws in it are my flaws and I’m content with how it is. Really looking forward to you all reading it.

In my acknowledgments at the end, I talk about the fact that you can’t use songs in a book without clearing the use of lyrics with the band/artist, which is time consuming and expensive, so I just haven’t done it. I then said that if anyone wanted to get in touch I’d give them a playlist.

Then I thought, what the hell, I’ll do a playlist for the book anyway (it is spoiler-free, I haven’t picked songs like “Turns out the Cuckoo Clock WAS the key, the whole time” or “Oh, so they’re SISTERS” – fake spoilers those)

If you have Spotify, this should take you to the playlist where you can listen to it.

If you don’t, here’s a track list – so they are songs that make me think about the characters and scenes and mood of the book – honestly, there aren’t any spoilers, and the track-listing is not a chronological order of the book, so you can listen without ruining everything. And yes, I cheated by having a Pixies cover of a Jesus and Mary Chain song so I could get JAMC in twice…

Enjoy

1. Sunshine Superman – Donovan

2. Superstition – Stevie Wonder

3. Opportunities – Pet Shop Boys

4. Work Bitch – Britney Spears

5. Sour Times – Portishead

6. Baby Driver – Simon and Garfunkel

7. Hurt – Johnny Cash

8. Head On – Pixies

9. Still Ill – The Smiths

10. Jailbreak – Thin Lizzy

11. Monster – Imagine Dragons

12. Boom! Shake the Room – Fresh Prince

13. Elastic Heart – Sia

14. I’m Coming Out – Diana Ross

15. Sometimes Always – Jesus and Mary Chain

16. Chillout tent – Hold Steady

 

 

You know what I’m saying dog
Like cats and dogs
It was raining
It wasn’t raining
We were raving

Fasting for Ramadan and Court of Protection

 

An interesting Court of Protection case which might prove useful for other professionals.

 

IH (Observance of Muslim Practice) 2017

http://www.bailii.org/ew/cases/EWCOP/2017/9.html

 

Cobb J was presented with an application by the Official Solicitor on behalf of IH, a man of Muslim background who lacked capacity, for a declaration that IH should not have to fast during the period of Ramadan as would be culturally usual for Muslims who had capacity.

At the same time, IH’s family sought a direction that IH’s body hair should be trimmed.

 

 

  • There is no dispute that IH lacks capacity to make the decisions which are the focus of these applications; the diagnostic and functional criteria contained in, respectively, sections 2 and section 3 MCA 2005 are clearly established on the evidence. Specifically, to have capacity to make the decision to fast for Ramadan, a person would be expected to understand (section 3(1)(a)):

 

i) What fasting is; the lack of food and liquid, eating and drinking;

ii) The length of the fast;

iii) If for religion, for custom (family or otherwise), for health-associated reasons, or for other reasons;

iv) If for religion reasons, which religion and why;

v) The effect of fasting on the body;

vi) What the consequences would be of making a choice to fast and the risks of choosing to not fast or of postponing the decision.

 

  • Dr. Carpenter is clear that IH is not able to understand any of the six points listed in [20] above. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).
  • To have the capacity to make a decision in relation to the trimming or removal of pubic or axillary hair for religious or cultural reasons, a person would be expected to be able to understand:

 

i) Which parts of the hair are being removed – pubic, axillary, perianal, trunk, beard, leg, torso, or head;

ii) Whether the reason for the hair trimming/removal is religious, for the maintenance of good hygiene, custom, or some other;

iii) If for a religious reason, which religion and why;

iv) What the consequences would be of making a choice to have hair trimmed/removed, and of not trimming/removing the hair.

 

  • Dr. Carpenter is clear that IH is not able to understand any of the four points listed in [22] above. He opined that while IH may give the superficial appearance of engaging in prayer, by responding to the familiar practice of the adults in the family turning to prayer (he holds his hands up, or places them behind his ears), he has no understanding of the purpose or higher meaning of the act of prayer. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).

 

 

Cobb J outlined the religious principles involved in these issues, and in particular that the Islamic faith already has provision for those who lack the ability to make their own decisions and who are therefore exempt from obligations that might be placed upon others.

Islamic religious observance for those without capacity.

 

  • The Five Pillars of Islam (‘shahada‘ [faith], ‘salat‘ [prayer], ‘zakat‘ [charity], ‘sawm‘ [fasting] and ‘hajj‘ [pilgrimage]) are the foundation and framework of Muslim life, and are regarded as obligatory for Muslims. Not all actions or observances within Islam, however, are obligatory; some are recommended, others optional, some actions are reprehensible, and others prohibited. In Islam, a Muslim will commit a sin if he/she violates something which is obligatory or prohibited, will be rewarded for carrying out something which is recommended; a minor sin is committed for not doing something which is recommended, and for doing something which is reprehensible.
  • Significantly for present purposes, Islam stipulates different arrangements for those who lack ‘legal competence’. ‘Legal competence’ in Islamic terms is defined by Dr. Ali as “a capacity or a potential for mental functioning, required in a decision-specific manner, to understand and carry out decision-making. Competence is always presumed; its absence or inactivity has to be affirmed by a court.” It is normal (per Dr. Ali) to defer to medical practitioners or experts on the issue of legal (mental) competence; their opinion would be likely to be deemed valid and authoritative in the Shari’a. The evidence filed in these proceedings, most notably from Dr. Carpenter, would be sufficient, I was advised, to form the basis in Islamic law to declare IH to be “legally incompetent”; all parties agree that IH is not legally competent under Islamic law.
  • Dr. Ali advises that the legally incompetent person (along with the terminally ill, the disabled and minors) is perpetually in a heightened state of spirituality, hence he or she is exempt from practising the major rituals of Islam including adherence to the Five Pillars.
  • On the specific issues engaged in this application, Dr. Ali advises as follows:

 

Fasting in Ramadan

i) Fasting during the daylight hours of Ramadan is one of the Qur’anically mandated obligations for all Muslims who are legally competent, and who are not exempt. Certain groups are exempt from fasting; they include the incapacitous, minors, the ill, pregnant women, those who are travelling. Those who are exempt are not morally culpable for not keeping the daylight fast.

Trimming or shaving of pubic and axillary hair

ii) Cleaning pubic or axillary hair is a religiously sanctioned practice deemed in Islam to be a normal human ‘right’ (‘fitrah‘);

iii) The rationale is founded in a quest for ritual purity and cleanliness; (the aphorism ‘cleanliness is next to godliness’ is of course familiar to many religions);

iv) The removal of pubic and axillary hair for the legally competent Muslim is ‘mustahab‘ or ‘recommended practice’; while it is not obligatory (‘wajib‘) it would be viewed as a ‘minor sin’ if unattended (see [26] above);

v) As IH does not have ‘legal competence’ it is not even recommended practice for him (see [28] above); there is no obligation on his carers to carry out the removal of IH’s pubic or axillary hair, and his religious rights are not being violated by not attending to this;

vi) It is highly recommended and praiseworthy for carers (of whatever religion) to shave or shorten a patient’s pubic or axillary hair, in the same way as it is for them to assist the incapacitous in other routine care tasks;

vii) There are differences of opinion between Islamic commentators as to the preferred manner of hair removal; any method would be deemed acceptable;

viii) The time limit within which the hair needs to be cleaned or trimmed or removed is also a matter of assorted opinion, though the majority of commentators favour a 40-day limit;

ix) While it would be not permissible for a competent Muslim to expose their genitals, it would not be contrary to the Shari’a for a Muslim without capacity who requires assistance with his care, for his carers to clean his genitals or shave them; that said, “carers must be sensitive that the client’s dignity is not violated”;

x) ‘No hurt no harm’ is a cardinal principle of Islamic bioethics; avoidance of harm has priority over the pursuit of a benefit of equal or lesser worth. Therefore it would be wrong to create a situation in which observance of Islamic custom would, or would be likely to, cause harm to the person (i.e. IH) or his carers; if there is a risk of harm, then this principle would absolve even the capacitated person from performing an obligatory requirement.

Is it in IH’s best interests to be relieved of his obligation to fast during Ramadan?

 

  • As indicated above ([29](i)) there is no Islamic obligation on IH to fast given his lack of capacity. IH has never been required to fast by his family, and has not fasted while in their care. He has not, thus far, fasted while in the care of the Local Authority.
  • If this had been a case in which IH had some appreciation of the religious significance of fasting in Ramadan (as a means to attaining taqwa, i.e. the essence of piety, protecting one’s self from evil) there may be said to be some benefit in him doing so. But he has no such appreciation.
  • IH, I am satisfied, would not in fact understand why food and water was being withheld for the daylight hours in the month of Ramadan; the absence of food/water would be likely to cause him stress, or distress; this may cause him to become irritable and/or aggressive in the ways described above ([13]) increasing the risks to staff and himself. There is some minor anxiety that fasting and/or mild dehydration would increase the side effects of any one of his multiple medications. It is plainly not in his interests that he should fast, and the declaration will be granted.

 

Is it in IH’s best interests for his pubic and axillary hair to be trimmed?

 

  • Health or social care bodies who make the arrangements for the care for adults who lack capacity owe an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of the religion of P, and to facilitate P’s access to, or observance of religious custom and ritual. All forms of liturgy should, where practicable, be accessible to persons with disabilities. This view is consistent with Article 9 of the European Convention on Human Rights, and the right enjoyed by those who lack capacity as for those who have capacity, to freedom of religion and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. While no specific protection in this regard appears to be offered by the UNHR Convention on the Rights of Persons with Disability, the rights enshrined in the ECHR (above) “are for everyone, including the most disabled members of our community” (Baroness Hale in P (by his Litigation Friend, OS) v Cheshire West & Others [2014] UKSC 19).
  • The duty outlined above is consistent with the expectation that in best interests decision-making for someone who lacks capacity, the court will take account, so far as is reasonably ascertainable “the beliefs and values” of that person which would be likely to influence his decision if he had capacity (section 4(6)(b)); these must include, where relevant, religious beliefs and values. This is illustrated in the instant case by the fact that the Local Authority provides IH with a Halal diet even though IH himself would not know that the food he ate was Halal, or the significance of the source and/or preparation of the food. The Local Authority recognise the need to respect IH’s religion.
  • Of the “relevant circumstances” which require consideration in deciding on this issue, TH has placed the religious significance of the proposed procedure at the centre of the decision-making, and I turn to this first.
  • The frame of reference for consideration of the issue has altered since the start of the litigation. At a best interests meeting on 9 September 2016, TH advanced the proposition that there was a religious “duty” to remove or shave IH’s pubic and axillary hair. In the same manner, his early written evidence (see [14]) referred to the “very essential” and “compulsory” nature of the activity, a view pronounced apparently on the authority of an Imam. This indeed is how Roderic Wood J characterised the issue, in passing, in the case of A Local Authority v ED & others [2013] EWCOP 3069, in which he referred (at [12]) to a “duty” to remove the pubic hair of a Muslim woman (albeit recognising the exemption for the incapacitous). Dr. Ali’s evidence, on which he was not challenged, was to different effect.
  • In short, as is clear from [29](v) above, there is simply no religious duty, or obligation on a person who lacks capacity (‘legal competence’ in Islam) to trim or shave his or her pubic and axillary hair, or on his carer to do so for them. IH does not need to acquire this state of ritual cleanliness in order to derive spiritual benefit as he already occupies an elevated status by virtue of his incapacity. Moreover, I am satisfied that IH himself derives no religious ‘benefit’ by having the procedure undertaken, as he would not understand its religious significance. It is of no consequence to me, in the consideration of these facts, that the carers may be blessed in the eyes of Islam in undertaking a ‘praiseworthy’ activity by trimming the hair; their interests are not my concern.
  • I agree with TH, and with Mr. Jarrod, when they separately expressed the view that if IH had capacity he probably would have observed this custom.

 

And in conclusion

Conclusion

 

  • I have faithfully endeavoured to consider these issues from IH’s point of view, while ultimately applying a best interests evaluation. IH has a life-long developmental condition and has never had the capacity to understand the tenets of Islam; the benefits of adherence to such rituals do not obtain for him, but for others. The fact is that by reason of his disability IH is absolved of the expectation of performing this recommended procedure, and there is no other clear benefit to him. The trimming of the pubic and axillary hair would serve no other purpose. I am anxious that IH should be spared additional stresses in his life, and wish to protect him and the staff from the risk of harm – an approach which itself has the endorsement of Islamic teaching (see [29](x) above).
  • For those reasons, and having reviewed the circumstances extensively above, I have reached the conclusion that:

 

i) The parties are right in agreeing, and I confirm, that IH should be relieved of the obligation to fast during Ramadan;

ii) It is not in IH’s best interests that his pubic and/or axillary hair be trimmed in accordance with Islamic custom for capacitous followers of Islam.

 

 

 

 

Request for support

Quick trigger warning – if you’ve been through painful experiences yourself recently, then this post may be too raw and painful, and as it is not my intention to make life harder for anyone who is working through such trauma, the warning is here to suggest that you close this one down, and come back to the next post, which will probably be about 80s pop, or Mary Mungo and Midge or whatever.

Some of you may have read @SurviveCourts blog, Surviving Safeguarding, where she talks about her experiences of being on the hard end of the social work experience, rather putting all our gripes of trolleys with knackered wheels, or endless frustration with laptops and workloads into perspective. Some of you may have had the pleasure of seeing her speak, which is truly an inspirational experience.

I find myself lucky enough to have got to know her a little, and I’m proud and honoured to think of her as a friend. Though she be but little, she is fierce.

So it was a huge shock to learn that she’d gone through a recent tragedy, and like most of those who have come to know her and hold her in high regard, I wanted to do something, even a tiny something, to help.

Louise Tickle (or as we should now all call her “The Mail on Sunday’s Louise Tickle” as apparently they now own her, in some sort of Jonathan Pryce East India Company style arrangement) got the ball rolling on this, and she says everything that I wanted to say, but better. Because she’s a proper grown up writer, and not a hack like me.

If you can visit the link and help out at all, even in a small way, it would mean a lot to us all.

https://www.justgiving.com/crowdfunding/survivingsafeguarding