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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

Reid ’em and weep

The peculiar goings-on in the case of Westminster v Associated Newspapers Ltd

 http://www.bailii.org/ew/cases/EWHC/Fam/2017/1221.html

This was a specific hearing arising from a set of care proceedings in which both parents were asserting forcefully that their son H was very ill indeed. The Court, having heard a great deal of evidence and had that evidence tested by lawyers, including lawyers acting for the parents, decided otherwise

 

I found, firstly, that the parents had misreported and exaggerated H’s medical symptoms. I concluded that this had led not only to his emotional harm but to his physical harm. In consequence, particularly of the exaggerated gastrointestinal pain, there was the unnecessary insertion and thereafter the prolonged use of a Hickman line, which exposed H not merely to the risk of short-term infection, but to the risk of liver failure in the long term. It perhaps requires to be underlined that in consequence of his parents’ actions H’s life was placed in peril.

 

 

 

4.I went on to find that the mother, through bullying and bombastic behaviour, had intimidated medical professionals and others to the extent that she confused and undermined their confidence in their own professional judgement. In the hospital it generated a febrile atmosphere in which there was an elevated risk of clinical error, I found this compromised H’s safety.

 

 

 

5.In particular, and this requires perhaps to be emphasised too, in April 2016, on the most compelling of evidence, I found that both parents had, on separate occasions, tampered with H’s TPN pump. The effect of this, though it did not immediately threaten H’s health was, again, to cause confusion and alarm on the ward and jeopardise professional objectivity.

 

 

 

6.The father has both directly and passively acquiesced in the mother’s distorted perspective of H’s health and medical needs. The mother presented H to the world as dying, in extremely alarming e-mails. Moreover, on the evidence, she inculcated in H himself, a view that he was dying. The parents’ actions led to prolonged stays in hospital, the consequence of which was that H has been robbed of much of his childhood and teenage years.

 

 

 

 

7.This is of course a desperate situation made all the more depressing by the fact that H has an outstanding, lively, irrepressible intellect and a keen and zany sense of humour. It is a tragedy that these talents have not been allowed to flourish and grow as they ought to have been. I reiterate, in order that the point is not lost in the detail of my judgment, the harm caused to H by his parents, protracted over many years, exposed him to significant harm at the most serious end of the spectrum, ultimately risking his life.

 

 

The parents, not being in agreement with the judicial decision, sought to involve some crusading journalists to fight their case in the court of public opinion. The Telegraph and the Mail ran sympathetic pieces.

 

I wrote a long passage here, but actually I’m not going to bother with it. My readers already know whether they think Christopher Booker is a champion for justice or something else, and they are all entitled to their own views.

So instead of the long passage where I try to be balanced and reasonable and just annoy everyone on both sides of the argument, here’s a a photo of a young Cat Stevens tasting some food. I can’t tell if the food in the pan is fish, chicken or even pigs (the curly bits could be tails?).   If you are only familiar with beardy old Cat Stevens, DAMN he was a handsome young fellow.

 

My own recipe for rough emotional week – First Cut is the Deepest swiftly followed by Father and Son, get it out and move on

Anyway, this secondary decision was as a result of the child being visited in hospital by a journalist and interviewed by said journalist, who had not been open and transparent about who she was when making the visit.

 

 

 

15.I was informed during the course of the hearing, by the local authority, that it suspected that a reporter from The Daily Mail had visited H in ‘Unit A’ on 8th May. That reporter, I was told, was thought to be a Ms Sue Reid, though the visitor book bore an inscription that a Susan Odette Brown, recorded as ‘a friend’, had visited that day. I indicated to the local authority that they should make inquiries to establish such facts as they could. In pursuance of that, they drafted the following questions which were relayed to The Daily Mail. They are succinct questions and they are responded to with equal clarity. They require to be set out:

 

 

 

 

 

“Do you (i.e. The Daily Mail) employ or commission a journalist called Sue Reid or Susan Odette Brown? Answer: yes.”

 

 

 

 

“Did this journalist visit [the unit] on 8 May 2017 or at all? Answer: Yes.

 

 

 

 

What was the purpose of this visit? Answer: Miss Reid has confirmed that she visited in order to see H and see his social situation.

 

 

 

 

How was the visit arranged?”

 

 

The response was as follows:

 

 

“A campaign group alerted Miss Reid to H’s living arrangements and asked her to pay him a social visit. H’s parents also wanted Miss Reid to visit him and accordingly they passed on H’s mobile phone number. Miss Reid rang the number and spoke to H, who invited her to visit him and gave her a suitable time to do so.”

 

 

The final question was framed thus:

 

 

 

 

“Did you have permission to talk to H, a young person aged 15, and if so who gave you permission? Answer: Yes, H and his mother.”

 

16.These questions had in mind the protection afforded to young people and particularly to those who are vulnerable, by the Codes of Practice (2016), Independent Press Standards Organisation (IPSO). It is convenient that the relevant guidance be set out here:

 

 

 

 

 

“Clause 8 protects patients in hospitals and similar institutions from intrusion. It requires journalists to identify themselves and to obtain permission from a responsible executive to enter non-public areas. The clause applies to all editorial staff, including photographers.

 

 

The clause covers the newsgathering process, so the Code can be breached even if nothing is published. The clause also requires that, when making inquiries about individuals in hospitals and similar institutions, editors need to be mindful of the general restrictions in Clause 2 of the Code on intruding into privacy.

 

 

[Some readers may remember certain press scandals about Russell Harty, a celebrity whom certain sections of the Press believed was hospitalised because of AIDS and reporters donning medical gowns in order to gain access clandestinely to the hospital. ]

 

Of particular relevance is:

 

 

 

 

Identification and permission

 

 

 

 

Journalists must clearly identify themselves and seek permission from a responsible executive to comply with the Code. The use of the term “executive” implies that permission can be obtained only from a person of sufficient seniority. A journalist who attended a London hospital after the Canary Wharf terrorist bomb photographed an injured victim in the company of a relative and another person who he thought had obtained permission from hospital staff.

 

 

When medical staff complained, the PCC found the Code had been breached. It said: “The Commission was not persuaded the reporter in this particular case had followed the provisions of the Code: it was not enough to assume that his identity was known or to rely on the comment of an individual who was clearly not a responsible executive, although the reporter had done so in good faith.” Hutchison v News of the World: http://www.pcc.org.uk/cases/ adjudicated.html? article =MTkwMA

 

 

What the Code says

 

 

  1. i) Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries.

 

 

  1. ii) The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions. A public interest exemption may be available.

 

 

 

 

Non-public areas

 

 

In most cases, what constitutes a non-public area will be clear and will certainly include areas where patients are receiving treatment.

 

See: Stamp v Essex Chronicle

A man v Daily Mail

 

 

17.The code purposefully set a strong objective to safeguard children. The following requires emphasis :

 

Clause 6

 

Children

 

The Code goes to exceptional lengths to safeguard children by defining tightly the circumstances in which press coverage would be legitimate. For the most part, this applies up to the age of 16 – but the requirement that pupils should be free to complete their time at school without unnecessary intrusion provides a measure of protection into the sixth form. In the absence of a public interest justification, pupils cannot be approached at school, photographed or interviewed about their own or another child’s welfare, or offered payment, unless consent is given by the parent or guardian.

 

 

The welfare of the child includes the effect publication might have.

 

 

A complaint from an asylum seeker was upheld after a newspaper interviewed and identified some of his children. The PCC said the article was likely to provoke a strong reaction in readers, which might affect the children’s welfare.

 

 

Kenewa v Sunday Mercury

 

 

There is a public interest defence available to editors, but here again the bar is raised in favour of protecting children and the Code states that “an exceptional public interest” would need to be demonstrated.

 

 

 

 

What the code says

 

  1. i) All pupils should be free to complete their time at school without unnecessary intrusion.

 

 

  1. ii) They must not be approached or photographed at school without permission of the school authorities.

 

 

iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

 

 

  1. iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child’s interest.

 

 

  1. v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life.

 

 

A public interest exemption may be available. See Page 96.

 

Consent

 

 

The press has to establish which is the competent authority to grant consent in each case.

 

See: A woman v Derby Telegraph

Brecon High School v Brecon and Radnor Express

 

 

 

18.In order to advance their own explanations, the parents both filed statements in which the broad thrust of the answers given by The Daily Mail were or appeared to be disputed. It has been necessary for me today to inquire as to what in fact led to the visit, which all agreed took place, between Ms Reid and H at the unit on 8th May.

 

 

 

19.As the evidence has unfolded it has funnelled into a very narrow area of agreement and disagreement. Today there were filed, on behalf of Ms Reid, a number of e-mail communications, which have been helpfully set out by Mr Browne QC and Mr Wolanski, who represent her through Associated Newspapers Limited. A key communication is an e-mail sent at 18:30 on 6th May by H’s mother to a Miss Miray Kester, whom she describes as a friend. It is clear from that email and the earlier discourse that it was intended to provide a summary of H’s situation from the mother’s own perspective. It is, characteristically, a gross distortion of the facts. It presents H, in melodramatic terms, brutalised and neglected by the system. Yet again the mother describes H as suffering from serious illness. As those reading my earlier judgment will appreciate and as time has now borne out, H is not suffering from any serious illness. Those conditions which he does have are not seriously debilitating.

 

 

 

20.It is unnecessary for me further to burden this judgment with the details of the email communications because a number of factors are clear. Firstly, I am satisfied that, in the context of the email communication as a whole, the email I have referred to above was written by the mother as a briefing document for the press. The document, which I do not propose to read into this judgment, speaks for itself. Secondly, Ms Reid obtained H’s telephone number and spoke to him directly before she spoke to the mother. This she agreed in evidence. Thirdly, Ms Reid later spoke to the mother on the telephone and the conversation lasted some 40 or so minutes. In that conversation Ms Reid plainly formed the view that the mother was at her wits’ end, very distressed and agitated. Much of the content of the e-mail of 6th May seems to have been replicated in that conversation, which Ms Reid agrees took place.

 

 

 

21.The mother asserts that the move to the unit is a tragedy for her son. As she puts it, it is ‘a violation of his human rights’. She refers to his ‘being locked away’ and she caricatures it as a focus on ‘mental disorder’ rather than the contemplated across the board evaluation of his needs that I have described. This is all deep-seated, the mother has been hostile to Great Ormond Street now for many years. It was very much a feature of her evidence in January and February of this year. The mother denies giving Ms Reid permission to speak to her son. However, she says: had this journalist asked me directly if she could have permission to speak to my son, I would have said yes. But, she says, ‘it was never asked’.

 

 

 

22.It is plain, having listened to the mother’s evidence and Ms Reid’s evidence, that the mother not only was enthusiastic about H having an opportunity to meet a journalist but never at any point in the conversation gave Ms Reid even the slightest suspicion that she had the remotest anxiety about it. The mother is highly manipulative, as Ms Reid has now plainly found out. I think it unlikely that she gave her express permission but I am quite clear that she enthusiastically contrived with Ms Reid to facilitate the interview. Ms Reid told me, and I accept, that the mother gave her the address and details of the unit.

 

 

 

23.In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

 

24.The facts are now, as I see it, uncontroversial. Ms Reid went to Unit A. She did not make herself known to the staff. She did not identify herself as a journalist and she did not seek permission from a responsible executive to enter these non-public areas. It is also clear and again she accepts that she was aware that H was subject to a Care Order (in fact it is an Interim Care Order but that is of no consequence here).

 

 

I’m going to repeat paragraph 23, because I think it is significant

 

In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

Long carefully balanced paragraph removed, because it even made me throw up a little.

 

Instead, who would like to see a picture of Cat Stevens and some kittens? Of course you would.

 

 

There are dog photos too, but this blog has been dog-centric, and time for cat-rebalancing

 

 

Only click on the link if you’re comfortable with being a bit sad for a few minutes whilst simultaneously awestruck. (And see – handsome…)

 

 

A stain on the reputation of the family justice system

 

There’s been legal chatter for a while about the issue of alleged perpetrators of domestic violence being able to cross-examine alleged victims.  There was a big press campaign, and our beloved Lord Chancellor got knee-jerked into issuing a ‘something will be done’ statement without actually getting any funding for it, which then got kicked into the long grass in the quest for strong and stable Government by calling a snap election.

Lucy Reed over at Pink Tape has written about it quite a lot, and well worth checking out Pink Tape if you don’t already read it.

Anyway, here is Hayden J’s pretty savage commentary when it arose in a case before him

A (A Minor : Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam) (19 May 2017)

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1195.html

  1. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).
  2. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.
  3. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.
  4. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.
  5. The iniquity of the situation was first highlighted 11 years ago by Roderick Wood J in H v L & R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162. It was reiterated in Re B (a child) (private law fact finding-unrepresented father), DVK [2014] EWHC (Fam). Cross examination by a perpetrator is prohibited by statute in the Crown Court, in recognition of its impact on victims and in order to facilitate fairness to both prosecution and defence. In Wood J’s case he called for ‘urgent attention’ to be given to the issue. This call was volubly repeated by Sir James Munby, President of the Family Division in Q v Q; Re B (a child); Re C (a child) [2014] EWFC 31 and again in his ‘View from the President’s Chambers (2016): Children and Vulnerable Witnesses: where are we?
  6. In that document the President highlighted the Women’s Aid Publication: Nineteen Child Homicides. I too would wish to emphasise it:
    1. “Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control.”

Commenting on this, the President asked ‘who could possibly disagree?’ The proposition, in my view, is redundant of any coherent contrary argument.

  1. I understand that there is a real will to address this issue but it has taken too long. No victim of abuse should ever again be required to be cross examined by their abuser in any Court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos.

 

 

Damn…

 

For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

 

If Hayden J’s hat was in the ring for replacement of our current President at the end of his term, he may just have lined the brim with lead.  The MOJ tend to be squeamish about Judges getting too outspoken. Although I may be wrong and that only happens in Judge John Deed. ( I’m still quietly hoping for Mr Justice Peter Jackson as next El Presidente, although my chief preoccupation is worrying that we might be trading down for  [REDACTED REDACTED REDACTED] )

 

Ha ha, my hat will be easier to pick out of the ring than Hayden J’s… putative President Oddjob

 

 

Oh man, I’m now going to be thinking about Mr Justice Knick-Knack all day….  That and imagining Sir James Munby delivering his next Benmusa judgment with a large white Persian cat on his lap.

 

 

Forensic incontinence

 

At the present time, there are few smaller pockets of intense joy than visiting Bailii and seeing the name Benmusa appear in the new cases list.

If you’ve not been keeping up, Ms Benmusa believes (without the tiresome business of evidence or justification) that she is the secret illegitimate daughter of Princess Margaret and that opening up Princess Margaret’s will is the final (or indeed first) piece of the puzzle. The only way she can do that is to make an application to the increasingly exasperated and creatively irritated President of the Family Division. The last time, she produced a death certificate from someone she claimed to be her maternal aunt (who would thus be Princess Margaret’s older sister… do you see the inherent problem with that? And added to that, said maternal aunt was born at a time when Princess Margaret’s father would have been ten and more interested in whatever the turn of the twentieth century equivalent of Transformers were than procreation)

 

This time round, Ms Benmusa’s killer argument is that the sole piece of evidence that she herself produced was ‘a flake’  (which we assume to mean ‘fake’), which is an impressive trump card to pull out. It is the legal equivalent of tripping over your feet and falling flat on your face and trying to recover the situation by shouting loudly “I meant to do that”

This brilliant argument did not, needless to say, impress the President, who was somewhat mournful (yet comedically so) about the fact that the remainder of his, and indeed all succeeding Presidents, was going to be taken up with Benmusa applications and that there wasn’t even a Court fee to be paid. The Court staff HAD to issue the applications even if they had no merit and the President would have to consider them. There was no value in declaring Ms Benmusa a vexatious litigant as that would just lead to a string of leave applications.

How was the President to stop this ‘forensic incontinence’?    (and with that line, the President has set a high bar in my new Pithiest Judicial Remark of the Year contest.  You’ll all be stealing that.)

http://www.bailii.org/ew/cases/EWHC/Fam/2017/966.html

Ms Benmusa’s wasting of the court’s time – a phrase I use advisedly and deliberately – has been facilitated by the surprising fact that an application of the kind made by Ms Benmusa is, rara avis, one that can be made without payment of any court fee: see Tristram and Coote’s Probate Practice, ed 31, paras 25.234 and 25.265. I cannot help thinking that even someone like Ms Benmusa might be deterred from such forensic incontinence if she had to pay a fee.

What is to be done? As a matter of high constitutional principle (1) court staff cannot refuse to issue process – such a decision can be taken only by a judge – and (2) a judge cannot make an order absolutely barring access to the court; even a vexatious litigant so declared, or a litigant subject to a civil restraint order or a Grepe v Loam order (see Grepe v Loam (1887) 37 ChD 168) retains the right to apply to a judge for permission to bring proceedings. So, there is no kind of order I can properly make to prevent Ms Benmusa continuing to bombard the court with further nonsensical applications which will have to be put before a judge. What I can do, and this is what I propose to do, is to direct that if any further application is received from Ms Benmusa it is, before being issued, to be put before the President of the Family Division who can then either direct, if appropriate, that the application is, by order of the President of the Family Division, to be returned, unissued, to Ms Benmua, or direct, if appropriate, that the application is to be issued, whereupon it can then be considered by the President of the Family Division in the usual way.

 

Awesome – one individual has effectively just got their own Presidential Practice direction.

 

I shall be sad to see an end to the Benmusa litigation – the President clearly has greater control over his curiousity than I would have – I’d have opened up the will and had a peek and told the world that there was no secret confession about ANY secret illegitimate children in there. But I guess those who believe would have just written that off as part of the cover-up.

 

 

(*Also kudos to the President for using rara avis, one of the few Latin phrases that I know – it means ‘that rare bird’ or in this context ‘very unusually’ )

The gift that keeps on giving – Princess Margaret’s will

 

Ms Benmusa, not content with the hint dropped from the last judgment, which was as heavy as an anvil catapulted into the air by Wiley Coyote only to come crashing back down on his bonce, revived her application to see Princess Margaret’s will, which would prove that she, Ms Benmusa, was the illegitimate daughter of Princess Margaret.

She filed a statement, making reference to her aunt, who was born in 1904.

As the President carefully pointed out, this aunt is thus purportedly the elder sibling of Queen Elizabeth II. That is difficult to countenance, because (a) being the elder sibling of Queen Elizabeth II would have made this Aunt the Queen, and perhaps more importantly (b) the alleged father of this aunt was King George VI who was born in 1895. I know times were different then, but I do honestly believe that if King George had fathered a child when he was just nine years old, that would have been something of a sensation.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/785.html

 

The judgment is short enough, and cool enough, to print in full, so I’m going to…

 

  1. I have before me, as President of the Family Division, another application by Malika Benmusa. I struck out a previous application on 14 March 2017: Re Benmusa [2017] EWHC 494 (Fam). This application is dated 20 March 2017 and was received by the court on 23 March 2017.
  2. This application, like the previous one, seeks “To apply to unseal the will of the late Princess Margaret.” The only difference is that, on this occasion, the application which, like the previous one, I am invited to deal with “without a hearing” is accompanied by a closely-spaced one page statement by the applicant dated 20 March 2017 and a copy of a death certificate of a woman, who was born in 1904 and died in 1997 and who, according to the applicant, was “my late Aunt.”
  3. I do not propose to set out the entire contents of the applicant’s statement. Its flavour can be judged by the opening part (again I set it out as written):
    1. “I MISS MALIKA BENMUSA, am the last child of the late princess Margret … I was born in Scotland. My mother married my father a year before I was born, then separated, but never divorced. I do not wish to give out my father id as he is a very well know. […] My mother was very frightened of her so called family, and felt I needed protection. I am the heir to the throne of England. This is why so much trouble has been taken to cover up my identity. I believe between the age of three years old I was raised by my mother older sister, not known to the public, due to my grandparents’ not been married, and because of the war at the time. When I was three years old I believe my mother was frightened by her own family member to give me up for adoption, my mother did not consent to this. They frightened her saying that she was a drunk and my father was a drug addict. And my mother was told to remove me from the care of her older sister who real name was [name as on death certificate] […] Last address was before she passed [address as on death certificate]. The Kings Georges oldest daughter.”

In charity to the applicant I quote no more.

  1. The application is self-evidently complete nonsense It is a matter of public record, of which I can take judicial notice, that the father of her late Royal Highness Princess Margaret, Countess of Snowdon, was his late Majesty King George VI, who was born on 14 December 1895, and that her mother was her late Majesty Queen Elizabeth the Queen Mother, who was born on 4 August 1900. They married on 26 April 1923. Quite obviously a woman born in 1904 could not have been, as the applicant asserts, her mother’s elder sister if, as she also asserts, her mother was HRH Princess Margaret. I have no hesitation in concluding that I should strike out the applicant’s claim, as I do. It is a farrago of delusional nonsense.

 

I am ordering in popcorn and waiting for round 3.

In which MacDonald J asks the question and answers it in paragraph 1 of the judgment

 

Which is something that I’d like to see more often.

 

The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is ‘no’.

 

In essence, that question arose because the Local Authority had read some of the previous authorities on radicalisation or alleged radicalisation of children to suggest that they ought to be issued as wardship proceedings (which doesn’t get non-means, non-merits legal aid) rather than care proceedings (which do).  That doesn’t feel right, because parents in such cases really do need legal representation.

A scheme so cunning you could put a tail on it and call it a weasel was devised (either nobody invited the LA to simply issue an application for care proceedings so that there would be legal aid for the parents or they did and the LA refused, I don’t know), but anyway an intricate scheme was attempted instead.

As you can see, MacDonald J said no to that.

HB v A Local Authority & Another  (Wardship Costs funding order) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/524.html

 

However, MacDonald J clarified that in his mind, there was no obligation for an LA on a radicalisation case to issue solely in wardship and not in care proceedings.

In the circumstances, I am satisfied that, contrary to the view taken by the local authority, neither Hayden J nor the President have sought to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation.

 

MacDonald J shoots up in the league table of my estimation by also dissecting the much discussed homily that the ‘powers of the inherent jurisdiction/magical sparkle powers are theoretically limitless’

 

I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

 

  • Whilst the inherent jurisdiction is theoretically unlimited, it is, in reality, constrained by proper limits. In London Borough of Redbridge v SA [2015] 3 WLR 1617 Hayden J observed as follows at [36]:

 

“The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

In R v Central Independent Television Plc [1994] Fam 192 at 207-208 Waite LJ noted:

“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages.”

 

  • Within this context, I am satisfied that the limits that are properly imposed on the exercise of the inherent jurisdiction for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages in this case are those that must be applied when considering the nature and extent of the court’s jurisdiction to order a public authority to incur expenditure. As Lord Sumption pointed out in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at [37], courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Imposing the limits that I am satisfied must apply, I regret that I cannot accept the submission of Mr Hale and Mr Barnes that the inherent jurisdiction of this court is wide enough to encompass a power to order a public authority to incur expenditure in order to fund legal representation in wardship proceedings for a parent who does not qualify for legal aid because that parent does not satisfy the criteria for a grant of legal aid laid down by Parliament, notwithstanding the considerable benefits that would accrue to the parent, and to the child, from such funding.