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Lions and lawyers and Jesus, oh my

 

 

This isn’t an English case, but people were kind enough to send me the link yesterday, and it is a cracker, so I can’t resist.

 

Couple lose custody of their child after using a stuffed lion as their lawyer

 

(bad choice already. Why did they do that?)

 

They thought the lion was Jesus.

 

(ah)

 

I’m not about to talk smack about Jesus, but he’s not known for his Court room skills. The guy had one trial, and that didn’t work out for him. He would not be my first call. Even if he does have a clear diary and now, a fluffy tail.

 

Couple lose custody of child after using toy lion they thought was Jesus as their lawyer

 

I’ve written this week about a press report based on a court case with a misleading headline (and I see that some people on my Twitter feed have got the BBC to change their headline), but this one isn’t.

 

In the Supreme Court of British Columbia

AJ v British Columbia 2018

http://www.courts.gov.bc.ca/jdb-txt/sc/18/09/2018BCSC0903.htm

There’s some quite nasty stuff in the body of the allegations, which I won’t repeat.

 

The parents certainly had strong views about religion

 

[34]        On April 28, 2017, A.J. sent an email to a social worker, Melanie Crowston, to schedule future access dates but also wrote the following:

God is doing a great work here. And believe me, you want the wicked and corrupt things addressed, because everyone suffers when evil is allowed to harm you and families. So we need Jesus to clean up the corruption and bring justice back to this place. How filthy and corrupt your job is and the people you work for. I am ashamed for you. It is evil. I’m sorry you work for such an ugly corrupted company too…

[35]        As evidenced by this email, the parents continued to have difficulty working cooperatively with others. The mother often demonized those seeking to help her. For example, the parents were asked to leave the parish they were attending. On April 29, 2017, the pastor, on the recommendation of the church leadership, called the police to see what steps were needed to get a restraining order against the appellants. The parents returned to the church on May 3, 2017 and caused another disturbance at a support group meeting. The pastor then sent the parents an email indicating that they were no longer welcome to attend the church.

[36]        On May 10, 2017, A.J. sent an email to [then] counsel for the Director stating the following:

Be prepared for your house to see a very large debt come across and bankruptcy due to the criminal charges against the court system and the ministry of children and youth and particularly the judicial system that has imposed the degradation of children and harm to the families. The Lord Jesus has now come in to judge and he has seen the demise of what He had set in place for good has now been corrupted and covered in greed and filth.

[37]        The trial judge stated that the email “could be perceived as threatening”. At this stage, correspondence was being directed through the office of the Director because the parents refused to communicate with the social worker.

 

 

I know, you all want to know about Jesus, Lawyer Lion.  Hold on, it’s not far off

 

Jesus Lion Lawyer, how did you get the Sword of Omens through Court security? They made Cheetara take off her high heeled shoes.

 

[41]        At the October hearing, the trial judge heard that the parents continued to attend churches with the goal of cleansing them from demonic influences. The parents had also refused to participate in the parental capacity assessment.

[42]        At trial, A.J. testified that she had an application pending to change the name of the child. She wanted C.J. to have a hyphenated first name including Jesus and a middle name of JoyoftheLord. She was also applying for a change in her first name to the Risen Lord Jesus–A, a new middle name of Refinersfire–Deanne, and a change in her last name to add the name Christ.

[43]        One last issue in this case was the conduct of the appellants at trial. First, they refused legal aid assistance and maintained that their legal counsel was the Lord Jesus. Second, the parents verbalized words that were not discernible to the court; they appeared to be speaking in tongues. They spoke in tongues to their stuffed animal, a lion, and claimed that through this lion they were hearing directly from their counsel the Lord. Third, when cross-examining witnesses, the appellants advised each witness that it was their lawyer Jesus Christ asking the questions through the voice of the parent. Fourth, the trial judge found the parents not to be credible witnesses: see paras. 43, 72, 95 and 100.

 

 

I thought that the stuffed lion lawyer who was also Jesus was the best detail, until I read  ‘the judge found the parents not to be credible witnesses’.  What a beautiful bit of understatement.

The appeal was refused. There is no name of a lawyer representing the parents in the appeal, so I don’t know if they were in person, or if the Lawyer Lion padded up for the appeal too.

Obviously whilst there are amusing elements to this story, it is ultimately sad, and I hope the child is okay and that the parents get the help that they clearly need.

 

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Oversharing

Some of you might be aware of the story that Coronation Street are currently running about Aidan and male mental health, with a view to starting an important dialogue.

I’m going to overshare now, hence the title, in that same spirit. So trigger warning for anyone who may not be in the right place to deal with this – I’m not going to go into any details and I hope that it might be inspiring rather than making people miserable. I’m not doing this for sympathy or because I want comfort or pity, but rather because being ashamed and not able to talk about it is one of the most powerful weapons that mental illness has over people, and I’m taking that weapon away from mine.

I have had problems with depression for my entire adult life. Before I had depression, I thought about it the same as everyone else ‘cheer up, pull yourself together, what have you got to be miserable about’

Which, as it is due to chemical deficiencies, is about as realistic as saying to someone with diabetes ‘just digest sugar better’

I’ve learned to cope with depression, but usually in very unhelpful ways. I’ve learned how to hide it, how to mask it from people, how to keep going and have nobody around me have a clue that inside my head my own thoughts are attacking me relentlessly.

The best description I can give you of the sort of depression I have is that my mind employs the very best ad agencies to come up with and play constant adverts to me, knowing me better than Facebook data mining ever could, to sell me the message that I am an awful human being, worthless and hateful in every way and that the whole world would be remarkably better off without me in it.

Now, this is drivel. And some days, some hours, I’m well aware that it is drivel. I’m a human being who has like everyone else some good qualities and some faults. But when that’s the soundtrack to your life, it’s corrosive.

And a large part of what’s corrosive about it is ‘dont tell anyone, it will just make them hate you’

Well, everyone that I’ve ever been brave enough to talk to has not hated me, or run away. They haven’t always understood and sometimes they’ve been shocked or frightened, but all of them without fail have done their absolute best to help, and it has been a huge help.

The stupid adverts don’t stop, but the more honest I am, the quieter they are and the more loudly I can reply ‘this is just an illness and i don’t have to believe that message’

Sorry everyone, I know you come here for law and 80s pop culture, but telling everyone in one go is the scariest thing I can imagine but now it is out there. Don’t worry about me, the darkest days of it are well behind me. I hope that sharing this might empower someone else to speak out, or helps you to start a difficult but vital conversation with someone you love and care about.

Talking helps. Honesty helps. Friends really do care about you, and you are not alone. If you are able to talk, just to one person, it is one of the most powerful and significant moments in your life and it will help.

Take care

Andrew

Incompatible

 

I think during one of the many Writers Guild Strikes in America, the hit TV series Moonlighting, which was built around the ridiculous chemistry between its two leads, David Addison (played by a Bruce Willis so young that he had hair and had never got any shards of glass in his feet) and Madelyn Hayes (a never better Cybil Shepherd), instead ran with a whole season without those two in it, and trying to base the show around two minor cast members Herbert Viola and Agnes DiPesto.

 

It did not really fly.  In the words of Douglas Adams ‘it hung in the air in the same way that bricks don’t’

 

It occasionally still makes me wince to think of that dreadful error of thinking.

That portion of Moonlighting, I would be prepared to give a declaration of incompatibility for.

 

All of which is a sprawling and ramshackle opening to Coulibaly v Coulibaly 2018  (which joyously has a “Rev no 1” in its full title, implying that there’s more to come, yes please!)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2018/936.html

 

As far as one can tell, this case began as a private law dispute with the mother becoming very concerned that the father would abduct the children. It is not clear whether that has any basis (we know he DIDN’T, but not whether it was a rational fear that he MIGHT), or what it was that led to a Local Authority obtaining an interim care order and removing the child.

In any event, the bundles for the Court were delivered via wheelbarrow, if not actual dumper truck.  (And yes, I did hover over google images of Big Trak for this moment… )

 

  1. There was listed today, with one day allowed, a number of wide-ranging applications for declarations pursuant to section 4 of the Human Rights Act 1998 that a number of sections of the Children Act 1989, and also the whole of the Child Abduction Act 1984, are incompatible with the European Convention on Human Rights.
  2. There were delivered to my room yesterday afternoon 7 lever arch files of material. I have not counted up the number of pages, but if one were to assume about 300 to 400 pages on average per bundle, then somewhere between about 2,100 and 2,500 pages are involved. Frankly, the bundles are not coherently arranged and presented, and I could not even readily identify the skeleton arguments for this hearing. In any event, the applicant’s series of written submissions themselves total about 70 pages.

 

A number of sections of the Children Act and the whole of the Child Abduction Act? Tell me more, tell me more

 

 

  1. The proposition that certain provisions of the Children Act 1989 are incompatible with the European Convention on Human Rights was first formally raised in the High Court by an appellant’s notice issued by Mrs Coulibaly on 2 May 2017. Since then she has, at various times, filed a considerable number of supplementary documents and submissions, the most recent of which was earlier this week. That procedural history, of course, creates a somewhat confusing moving target, in particular for the Lord Chancellor, who has been named as the respondent to these applications, to meet. However during the oral submissions of Mr Duke this morning it was clarified and confirmed and agreed that, by a combination of her appellant’s notice dated 2 May 2017 and her various subsequent written skeleton arguments or written submissions to the court, and the oral submissions made today, the totality and scope of all the applications for declarations of incompatibility is as follows.
  2. First, that section 2 of the Children Act 1989 is incompatible with Article 3 of the European Convention on Human Rights (ECHR); second, that section 8 of the Children Act 1989 is incompatible with Article 3 of the ECHR; third, that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the ECHR; fourth, that section 50 of the Children Act 1989 is incompatible with Article 3 of the ECHR; fifth, that section 97 of the Children Act 1989 is incompatible with Article 3, read with Article 10, and also with Article 6 of the ECHR; sixth, that section 1 of the Child Abduction Act 1984, and also the whole of that Act, are incompatible with Article 3 of the ECHR.

 

 

Well, if Mrs Coulibaly succeeds in this application and the High Court declare sections 2, 9, 38, 50 and 97 of the Children Act 1989 incompatible with the HRA, there will be champagne corks flying in the household of Ian from Forced Adoption.  But perhaps let’s not get the ice buckets out just yet.

 

Let’s be honest, if I was writing up a law report that junked an entire Act and large chunks of another, I’m burying the lede under all that Moonlighting stuff….

Mrs Coulibaly was not represented and her brother Mr Duke spoke on her behalf as a McKenzie Friend.

We shall observe with interest how he develops this wide-ranging submissions.

 

  1. I now come in turn to the sections of the Children Act 1989 which it is alleged are incompatible with one or more of those various rights under the European Convention on Human Rights, and I will briefly describe and address the arguments. It will emerge that some points and themes, particularly in relation to international child abduction, recur several times in relation to a number of the statutory provisions under challenge. The fundamental and essential point is an assertion by, and on behalf of, Mrs Coulibaly that the statutory provisions simply are not strong enough and effective enough to prevent international child abduction which, she submits, may amount to “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. Without so holding, may I make quite clear for the purposes of this case and this judgment that I fully accept that international child abduction, whether it takes the form of unlawful removal from this country, or unlawful retention of the child abroad after a lawful removal, does, or may, expose the child concerned to a form of inhuman or degrading treatment. So, insofar as child abduction is the fear of Mrs Coulibaly, and insofar as her argument focuses on child abduction, I readily accept, but need not keep on repeating, that Article 3 is engaged.
  2. During the course of his submissions, Mr Duke said that “the Children Act is useless” and that “the entire Act needs to be rewritten.” Part of the context of his argument is that circumstances have changed in the almost 30 years since that Act was enacted. International child abduction has become more prevalent, and some of the safeguards such as strict border controls on exit have tended to be removed or relaxed. Another phrase used a number of times by Mr Duke during the course of his submissions is that “the Children Act is incomplete.” Those points and submissions indicate, to my mind, the flaw or fallacy in the whole, or much, of the argument on these applications. The issue for the court on an application under section 4 of the Human Rights Act is whether or not a provision of the primary, or any subordinate, legislation in point “is compatible” with a Convention right, or whether it “is incompatible” with a Convention right. That is a wholly different question from whether there are gaps in a particular statute, or the whole corpus of legislation generally, and whether or not an Act of Parliament is “incomplete”. I readily accept, for the purposes of this hearing and this judgment, that mechanisms for preventing the scourge of international child abduction may be able to be strengthened; but that is a world apart from saying that such provisions as there are in the legislation, whether specifically directed to child abduction or more generally, are themselves incompatible with Article 3.

 

 

I think the best argument (and I use best in fairly loose sense) is in relation to section 38 – which is interim care orders. Mr Duke argued that the power to remove a child under s38 is a restriction of the child’s liberty (in that the State in the form of the LA get to decide where the child lives), so unless any of the criteria in Article 5 are made out, that’s incompatible with Article 5

 

1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

(a)the lawful detention of a person after conviction by a competent court;

(b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

 

I would agree with Mr Dukes that none of those criteria apply to an interim care order – but the problem in his argument is that Article 5 only applies if the Court agree with him that an interim care order is depriving a child of their liberty  [Spoiler alert – the Court do not]

 

  1. I turn, next, to the argument that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the Convention. Section 38 of the Children Act falls within Part IV of the Act, which deals with care and supervision. Section 31 of the Act makes provision for what I will call “full” care or supervision orders. Section 38 makes provision for the making of interim care or supervision orders. Again, it is not necessary to cite any of the express provisions of section 38, for much of the argument of Mr Duke is directed not to what section 38 does contain, but, rather, to what it fails to contain. There is, however, one overarching submission in relation to section 38, namely that it is incompatible with Article 5 of the Convention. I have already quoted the opening words of Article 5 above. The submission is that when an interim care order is made and implemented, it has the effect of depriving the child or young person concerned of his liberty. By Article 5 no one shall be deprived of their liberty save in the cases then listed at paragraphs (a) to (f), and in accordance with a procedure prescribed by law. Clearly, when an interim care order is made there is a procedure prescribed by law, namely the provisions of section 38 itself, but the thrust of the submission of Mr Duke is that the circumstances in which an interim care order is made do not fall within any of paragraphs (a) to (f). I do accept that most of those subparagraphs are clearly not in point at all, but, as Mr Neil Sheldon submits on behalf of the Lord Chancellor, one has to have regard to the content of the subparagraphs in order to understand what is contemplated by the words “deprived of his liberty”, which is proscribed by Article 5, save in the permitted circumstances.
  2. I accept the submission of Mr Sheldon that when a child is taken into care pursuant to the making of an interim care order, he is not thereby “deprived of his liberty” in the manner which Article 5, read as a whole, contemplates. Further, I accept the submission of Mr Sheldon that if, in the particular circumstances of an individual case, there is a deprivation of liberty, then that deprivation of liberty can be the subject of case-specific challenge under the provisions of section 7 of the Human Rights Act. This indeed ties in with an important overarching point. The express effect of section 6 of the Human Rights Act 1998 is that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” That section is binding on all public authorities, including, indeed courts. The provisions of the Children Act 1989, wherever they confer a discretionary power, always have to be read and applied with regard to section 6 of the Human Rights Act 1998 and any relevant provision of the Convention. If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable.
  3. Other reasons why it is said that section 38 is incompatible with a range of Articles of the Convention are the following. First, Mr Duke argues that there is nothing in section 38 itself which compels a local authority to provide medical assistance to a child whom they have taken into their care pursuant to an interim care order. This, he says, may involve a breach of Article 3 of the Convention. Just to understand the context in which the submission is made, I have been told (I stress that I have absolutely no independent evidence whatsoever with regard to this) that on 7 February 2018 Mrs Coulibaly’s son was “forcibly removed” from her care by the police. She says that her son later reported that the police had hurt his arms, and they were really painful. The complaint is that it was apparently not for 13 days that the local authority arranged for her son to be seen by a doctor. Mr Duke submits that there should be an added provision within section 38, or elsewhere in the Children Act 1989, to compel a local authority to undertake an immediate, or very early medical examination of every child whom they take into their interim care, both to check that he or she has not been harmed during the process of removal, if forcible, and also to check for such matters as allergies. He submits that the absence of some such express duty in section 38 or elsewhere in the Act infringes the positive obligation on a state to ensure that no one is subjected to inhuman or degrading treatment, as Article 3 of the Convention requires. Again, I make absolutely clear that I express no view whatsoever on whether or not it should be made mandatory for a local authority immediately to arrange a medical examination of a child taken into their care. That, again, is a matter for government and Parliament. But at its highest, in my view, this is another example of the Act being “incomplete”. There is nothing in this regard that renders the Act incompatible with the Convention.
  4. Mr Duke argues also that section 38 of the Act is incompatible with Article 8 of the Convention.  He says, in particular, that in order that the important rights under Article 8 of the Convention are respected (which is what Article 8 requires), there should be express statutory provision for what he calls “a transfer plan” before any child is taken into care. He submits that a local authority can at the moment “just come and grab a child, which disrupts the child’s private life” and that unless there is an express statutory requirement of “a transfer plan”, section 38 is incompatible with Article 8. He further says that often, when a child is taken into care, the child is not enabled immediately to take his own personal belongings with him, and that in order for the Act to be compatible with Article 8 there must be express statutory provision for a child to be able to do so. Again, in my view, these are, at best, matters of good practice, or examples of the legislation being “incomplete”, but the absence of express statutory provisions of the kind that Mr Duke contends for does not render section 38 itself incompatible.

 

I say, that ‘transfer plan’ is a good idea, I wonder if we could call it by a shorter name and have it be a mandatory requirement before the making of an interim care order. We could call it, oh, I don’t know – a care plan?

 

Let us just enjoy the fine work of Holman J once again

 

If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable. 

 

As I’ve suggested above, the article 5 v s38 is very much Mr Duke’s best point.  If you think that this dissection of his best point doesn’t augur well for his less good ones, you are correct.

Surprisingly, Holman J does not grasp the opportunity offered to him by Mr Duke to overturn huge chunks of statute that have been running for thirty odd years.

 

  1. For the reasons I have given, I am crystal clear, even at this short summary hearing today, that none of these applications for declarations of incompatibility are, in the least, arguable. I will accordingly make an order which, first, recites by list all the applications that Mrs Coulibaly has made for declarations of incompatibility as I listed them at the outset of this judgment, and then orders that all the applications for declarations of incompatibility listed under that recital are summarily dismissed.

 

So the law remains intact.  Well, at least until Coulibaly v Coulibaly Rev no 2, which I’m looking forward to. I shall be immensely disappointed if the Act of Union, Magna Carta and  the Licensing Act 1872 (which makes it a criminal offence to be drunk in a pub)

 

 

I’m sorry if the raw charisma and chemistry  of Hubert and Agnes has just burned a hole initially through your screen and now through your retinas.

 

Publication date

The book comes out on Thursday. Here is the unboxing photo of my complementary copies. And a photo of my beautiful spaniel claiming partial authorship.

If you want a paperback copy, I’m delighted to say that Foyles are selling them, so you can get one.

I can’t work out how to copy the link, because I’m doing this on my mobile phone rather than a computer.

http://www.foyles.co.uk/witem/childrens/in-secure,andrew-pack-9781911586944

Hopefully works, otherwise you can get it by Foyles and searching for me or In Secure. You can get the e book at Amazon, but the paperback is proper lovely.

Hope you like it, and if you do, please say so. I’m not going to be a JD Salinger recluse type author, I wrote the story for people to read and enjoy.

Big love,

Andrew

Use of Police Protection – a guide for social workers

 

 

 

 

 

This is intended to be a simple one page guide for social workers as to what to think about when Police Protection is being considered as a route of a child coming into care. It is not a substitute for legal advice on a particular case and the best thing to do is to contact legal for specific advice.

 

The police have powers to remove a child and place the child with the Local Authority, section 46 Police Protection in cases of emergency.

 

The Courts have clarified what ‘emergency’ does and does not mean in this context.

 

The starting point is this:-

 

The separation of a parent and child should usually be a decision for a Court. If it is possible to seek a Court hearing, that should be done.

 

The police should not be asked to use their section 46 powers to bypass the Court and the parent having a fair hearing about removal. Police protection should not be used because it is quicker, easier, less hassle, it is nearly the end of the working day.

 

If a decision is taken to remove a child under Police Protection rather than go to Court, there must be wholly exceptional reasons for this. Those involved would need to show not only that there was a need for separation, but that this need was that no reasonable steps could be taken to keep the child safe WHILST a Court hearing was arranged. The Local Authority have to try very hard to make alternative arrangements so that the decision can be made by the Court.

 

“there is an onerous burden upon a local authority to find alternative arrangements during the delay which would hold the balance of protection and which do not require separation.”

 

It is vital that full and detailed records of the decision-making process are kept, and that those involved set out clearly what efforts were made to obtain a Court hearing and why the risk could not be managed until that hearing.

 

Misuse of Police Protection to remove a child can result in unfairness and human rights breaches, and the Court may hold detailed enquiries as to why this has happened and may award compensation.

 

 

Also, there’s no “O” in Police Protection.   (okay, actually, there are two, but the use of  PPO  as shorthand for removal under Police Protection causes the death of tiny pixies every time it occurs. The “O” in PPO stands for Order, and the absolute thing to remember with Police Protection is that there IS no Order. The Court don’t sanction removal, a police officer does.  I know it is right next to EPO in the statute, and it just sort of feels right in the mouth to say EPO/PPO, but the O stands for Order.  So EPO is right, and Police Protection is right.  PPO is wrong.  Please avoid it!

Use of section 20 – a guide for social workers

 

There is a blog post coming about the Hereford case, discussed in this Guardian article

https://www.theguardian.com/society/2018/mar/16/council-kept-boy-9-in-care-for-whole-of-his-life-judge-reveals?CMP=share_btn_link

but following Twitter discussions, I thought it might be helpful to share the guidance I prepared for my own social work department with others.  Be warned that there’s a Supreme Court decision on section 20 coming soon, in the Hackney case, and all bets are off as to what they might say.  (I think Hackney’s spirits probably sank when they saw the Hereford case whilst waiting for their own judgment)

 

This is intended to be a simple short guide for social workers as to what to think about when section 20 is being considered as a route of a child coming into care. It is not a substitute for legal advice on a particular case and the best thing to do is to contact legal for specific advice.

 

Obtaining consent

 

Before using section 20, the social worker must be sure that :-

 

  1. The parent has the capacity to agree
  2. The parent understands what it is they are being asked to agree to
  3. The parent has been told that they are able to say no and their right to later object and seek return of the child AT ANY TIME
  4. The consent is given freely and not under duress
  5. The prospect of Court proceedings is not being used as a threat to compel a parent to agree to section 20 (you can inform them of the possibility, if it is a genuine one, but not in a way that is directly or indirectly threatening. Social workers should never talk about Court in a way that suggests that the order is inevitable or certain)
  6. AND REALLY IMPORTANTLY that even if the parent is consenting, that the Social worker specifically considers whether it is proportionate and necessary for the child to be placed in foster care AND whether the case should be before a Court rather than by agreement

 

 

All of this MUST be recorded in the social work case notes, which should be done contemporaneously – if for some reason they cannot be done contemporaneously they should be done at the shortest possible interval thereafter with a note made on the record as to when they were made and why they were not made at the time.

 

This recording element is vital.

 

The social worker should obtain this consent from each of the persons who have parental responsibility. IF one parent consents and the other cannot be contacted for good reason, a short period of s20 whilst efforts are made to locate and contact that other parent is probably satisfactory.   (Note that the Courts have not yet specifically decided this point). A careful note should be made as to the efforts made to contact the other parent and why they were not successful – a non-resident parent who is local and has active involvement in the child’s life will need very compelling reasons not to have had this conversation about consent.

 

The Court has also made it plain that the practice of having a police officer present or nearby during discussions about section 20, with the explicit or implied threat of “if you don’t agree, the police officer will remove the child” is completely unacceptable. Don’t do it, don’t do it, don’t do it.

Don’t.

 

On the issue of capacity to agree

 

  1. i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity;
  2. ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 *and in particular the parent’s capacity to use and weigh all the relevant information;

iii)         if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management.

 

If there is any doubt about a parent’s functioning, capacity to understand, mental health issues impairing their judgment, learning difficulties or disabilities, language issues, then section 20 should not be used without seeking legal advice.

 

If section 20 is used as a result of a child protection concern, very urgent consideration should be given to holding a swift Meeting Before Action in order that the parents can have the benefit of free legal advice and to avoid drift and delay.

 

 

*Section 3 of the Mental Capacity Act 2005

 

 

A person is unable to make a decision for himself on section 20 if he is unable to :-

 

Understand the information relevant to the decision   (that the child will not be with them, that the child will be in a foster placement, what foster care means, that they have the right to say yes or no, and that they have the right to change their mind, how long it would be for, what might happen next – what would happen if they say no, what would happen if they say yes)

To retain that information (for a long enough period to make the decision properly)

To use or weigh that information as part of the decision-making process   (a person can make a BAD decision or one that seems foolish, but they need to be having a process of deciding)

To communicate the decision

 

A person is entitled to have help and an explanation given in a way that is appropriate for them.

 

Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam)
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2729.html

 

sets out that the specific things that a parent has to understand in order to have capacity to agree section 20 are these:-

a) That the child will be staying with someone chosen by the local authority, probably a foster carer;

b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time;

c) That the parent will be able to see the child

 

Removal from section 20

 

 

A person who has Parental Responsibility is legally able to remove a child from section 20 accommodation at any time. They can be ASKED to give a notice period or a pause to allow a Court order to be obtained, but they do not HAVE to.

 

The social worker should be aware that the issue of whether a parent should give a notice period at the time of signing section 20 is contentious and that even if they agreed to give the notice period at the time, they are not bound by it at a later point. A parent agreeing to give seven days notice before removal is not a guarantee.

 

 

Section 20(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

 

The fact that the LA think that the child would come to harm if the child was removed does not block that power to remove – the LA would need, in that circumstance, to seek an urgent order from the Court which would give the LA a share of PR.  They cannot simply refuse to give the child back or ignore the request.  (see the Hereford judgment for how badly that can go wrong)

 

This power to remove does not apply if another person has an SGO or Child Arrangements Order and that person agrees to the s20 continuing, OR where the child is over 16 and agrees to accommodation continuing.

 

 

Objection to section 20

 

A parent is able to object to section 20 if THEY are able to provide the child with accommodation or arrange for someone else to do so.

 

The LA cannot ignore that objection just because they consider that the accommodation being put forward is unsuitable, lacking or even dangerous (that might be a trigger for an application to Court to obtain an order instead) but it does not block the objection.

 

What MIGHT block an objection is that the parent has bail conditions that prevent them caring for the child (if they are offering to provide accommodation themselves, not via a third party).  But I would not rely on that at the moment. The High Court said no, you’d still need consent. The Court of Appeal said you wouldn’t, and the Supreme Court are dealing with it at the moment – in the Hackney case. I would still go with valid section 20 consent or a Court order, and not rely on the bail conditions blocking an objection.

 

 

 

Section 20 drift

 

 

Social workers, managers and IROs must be very alive to the issue of drift within section 20 – consent having been given, the child remains accommodated without a clear and time-sensitive plan for the child’s longer term future being implemented. The questions should be asked, answered and recorded on the file :-

 

Should this child be going home or to other relatives?

What would need to happen in order to make that work?

What assessments / information are needed if we can’t make those decisions yet, how are we going to get them and when?

Is this a case that is suitable for section 20 or should it be before the Court?

 

Where a child is expressing strong views about being uncertain or fearful about their status, even more careful thought must be given to the final question above.

Just because a child has been in section 20 for a long time, doesn’t mean that you shouldn’t revisit and ask those questions again.  Failure to properly think about these things is what leads to drift.

 

Unaccompanied children

 

 

For many unaccompanied children, locating and communicating with their parents to conduct the consent exercise in this document will not always be possible or easy. Clear recording must be made of the efforts to do so.

 

A Local Authority can place a child in section 20 if the child is abandoned, which would generally be the case here. Reasonable efforts ought to be made to trace the parents and to communicate with them – that may not always be possible at all and may not be possible in a short period of time.

 

If, in considering the case, the social worker, manager or IRO are of the view that this perhaps ought to be a case which is put before the Court, a Legal Planning Meeting request should be made.

 

The High Court have now ruled that threshold can be satisfied for such children, as a result of them being abandoned (even though the parent has made efforts to move the child to a safer place/country), so the matter needs serious and careful thought as to whether section 20 or court proceedings are the correct route.

The Impostress Rabbet

 

 

I haven’t done a completely non-law piece for a while, and this true story of deception, medical minds being baffled and the strange theory of maternal impression is one of my favourite things.

 

So if you read the blog purely for law, you may skip this one. If you enjoy the digressions more than the law bits, this may be right up your street.   (Someone more erudite than me might be able to develop an argument that this was an early example of what later became called Munchausen Syndrome and later FII, but I don’t know enough to claim that)

 

On 27th September 1726, a woman named Mary Toft went into labour. That was not terribly unusual. What was unusual is that she gave birth to a rabbit. Or in the parlance of the time, a rabbet.

Mary was not done there, however. The next day, a local obstetrician, Dr Howard, was called and Mary gave birth to another rabbet. Over the next month, she delivered nine more rabbets. All dead.

Dr Howard was much impressed by this, and more so once he heard Mary’s account that during her pregnancy, she had seen a rabbet in a field and desired to catch it and chased it but failed and that she had spent her pregnancy dreaming of rabbets.

In a theory that persisted at the time (and indeed wasn’t disproved until the early part of the 20th century), it was considered that things women were exposed to during pregnancy could account for characteristics or failings of their offspring – a timid child might be because the mother had been scared during pregnancy, a child with disabilities because mother had seen someone in the street with similar ailments and so forth. If you are thinking that sounds an awful lot like the Patriarchy just blaming the mother for things that were outside of her control, then, yes, it does.

The most famous example of this theory, maternal impression, was John Merrick, the Elephant Man, who told stories of how his mother had been startled by an elephant during her pregnancy and hence his unusual appearance.

Mary’s rabbets seemed conclusive proof of this theory, and Dr Howard wrote to a number of other doctors stressing the importance of this case and inviting them to come and observe. He even wrote to Nathaniel St. André, Swiss surgeon-anatomist to the King and Samuel Molyneux, secretary to the Prince of Wales. They both came to attend on Mary, who was still popping out rabbets.

They were much impressed with this peculiar medical condition and took some of the rabbets back to show the King.

The King was more sceptical, and sent another doctor down to Mary, who had been moved by then from Godalming to Guildford.

Cyriacus Ahlers was the doctor sent, a German surgeon. He dissected some of the rabbets that Mary had given birth to. He found pellets in the rabbit’s digestive tract. Pellets containing undigested straw and corn. Unless Mary’s womb was full of corn, it seemed very likely that these rabbits had been born elsewhere…

A William Hogarth print of the hare-raising affair

Members of the public were flocking to see Mary, and paying an admission fee to do so. Ahlers and others kept Mary under observation. The supply of rabbits dried up.

And then, the case broke. A hospital porter was caught trying to smuggle a dead rabbit into Mary’s room, having been paid to do so by Mary’s sister-in-law, who had asked him to purchase ‘the smallest rabbit he could find’

Enquiries then revealed that Mary’s husband had been buying a suspicious amount of small rabbits from local sources.

The great medical mystery was solved. Mary had just been (there’s no delicate way to put this), installing dead rabbits into her nether regions whilst nobody was around, and then delivering them in front of a crowd or host of medical gullible fools.

The King’s surgeon, Dr Richard Manningham, devised a plan to get Mary to confess this. He went to her and explained that because there were so many rabbits being born to her (I think the count was 15 at that point), that they would have to operate to remove her womb.

 

That wasn’t something Mary wanted anyway, and at that particular time the risk of death in surgery was extremely high (It is said that Dr Robert Liston once removed a patient’s leg in lightning fast surgery, working so fast that he accidentally cut off the patient’s testicles, his assistant’s fingers and nicked the abdomen of a member of the audience watching – all three died, making it a piece of surgery that had a 300% mortality rate.  This is possibly apocryphal, but it is a great story anyway.)

 

To avoid the surgery, Mary confessed. She was to stand trial, but the case was dropped due to the embarrassment it caused the medical profession and those who had swallowed the story of the miracles. When Mary died, her name was published in the great newspapers of the day along with dignitaries and Dukes, with the annotation “Impostress Rabbet”