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Happy birthday to me

 

 

The blog is five years old today.  My goodness

 

 

During those five years, you’ve been exposed to more 80s pop culture references than Stuart Maconie’s diary, we’ve had adoption explained via passive aggressive notes on a student fridge, learned about how difficult it is to get contact with your child if you are Edward Scissorhands, watched me lose and win an award (winning feels better, no matter what all my hippy teachers tried to tell me), compared our child protection system to nuclear warheads, considered a man who sold bleach as a cancer cure  (also the case where the parents sought advice from a man whose website claims he “Turned Hawaii into a verb”),  watched and winced as policemen, social workers, guardians, lawyers and even Judges got told off for doing things it is hard to believe, attempted to replace the phase “inherent jurisdiction” with “magical sparkle powers” to better reflect its use, had His Honour Judge Wildblood QC favourably compared to Rowdy Roddy Piper, inspected the threshold criteria in Harry Potter and a written agreement from Romeo and Juliet, conducted a retrospective on Tolkein’s short-lived career as a court reporter,  translated Pride and Prejudice into teenager speak, toldyou all how NOT to write a letter of instruction,  examined a Nigerian fertility clinic that managed to deliver babies to people who weren’t actually pregnant,  pondered abut what would happen if we used Truth Serum in Court, found out why it’s best to have your case on just after lunch rather than just before AND deep breath

 

written a bloody book!

 

https://suesspiciousminds.com/ive-written-a-book-find-out-more/

 

If you haven’t already ordered the book, please do. I really want as many people as possible to read it.

 

I’ve written 906 blog posts, and the above is a tiny sample of them (I forgot Kate Bush’s non-molestation order, just for one)

I doubt very much that there’s anyone who agrees with every word I’ve said over the last five years (I don’t think that I actually agree with all of it), but I hope that over those five years I’ve made some of you smile, some of you take heart, some of you reflect, some of you frantically copy and paste into a case summary and some of you feel slightly less miserable on a Monday morning.

I should say that I hope you’ve enjoyed reading it as much as I’ve enjoyed writing it, but I know that you haven’t, because I’ve had an absolute blast.

 

Not retiring, just reflecting.  If you missed any of the highlights (my description, not necessarily that of others) then there’s a link to them below

 

https://suesspiciousminds.com/2016/12/10/adoption-law-illustrated-by-way-of-passive-aggressive-post-it-notes-on-a-student-fridge/

https://suesspiciousminds.com/2013/04/12/scissorhands-versus-scissorhands/

 

https://suesspiciousminds.com/2013/10/08/the-award-losing-family-law-blog/

https://suesspiciousminds.com/2014/10/10/a-big-thank-you-to-lots-of-people/

https://suesspiciousminds.com/2013/09/29/alwaysnever/

 

https://suesspiciousminds.com/2016/07/26/woo-woo-woo-you-know-it/

 

https://suesspiciousminds.com/2015/09/15/and-im-all-outta-bubblegum/

https://suesspiciousminds.com/2012/06/19/the-boy-under-the-stairs-an-imaginary-judgment/

 

https://suesspiciousminds.com/2013/02/05/a-pair-of-star-crossd-lovers/

 

https://suesspiciousminds.com/2014/12/29/why-tolkien-never-made-it-as-a-court-reporter/

https://suesspiciousminds.com/2012/10/12/so-he-was-all-like-pride-and-i-was-all-like-nuh-uh-prejudice/

https://suesspiciousminds.com/2012/09/10/317/

https://suesspiciousminds.com/2012/10/29/one-of-these-nights-youre-gonna-get-caught-itll-give-you-a-pregnant-pause-for-thought/

 

https://suesspiciousminds.com/2013/01/29/would-we-want-the-truth-to-be-out-there/

 

https://suesspiciousminds.com/2013/09/30/your-honour-may-i-hand-up-my-case-summary-and-a-pastrami-on-rye/

 

 

Your very best friend

 

No, not this guy

 

I also hate that duck, and he is not my very best friend, despite what he claims in song form

I also hate that duck, and he is not my very best friend, despite what he claims in song form

 

I want to do a little thought experiment with you.

Step 1. Imagine your very best friend. Try to get them in your mind. For shorthand purposes, as I don’t know the name of the best friend of each and every one of you, I’m going to call this notional best friend Janice.  Imagine that friend, get them firmly in your head. I’m also going to assume that out of 100, you’re going to score this friend 80 or above – so it’s someone you like a lot, and someone you can count on.   (On this friendship scale, Bert and Ernie, or Joey and Chandler are 100, Ant and Dec high nineties.)

 

Step 2. Imagine that you feel like you might have put a little bit of weight on. Not a lot, just a bit. Christmas, orange matchmakers, a bit too cold for running. So you say this to Janice, and you also say “I want you to help me lose weight. I know I’ve got no willpower, but with your help, I can do it.”  Janice kindly agrees.

Step 3.  Janice suggests that you give up some of the things that you like. It’s not ideal, but you know it is for your own good, so you agree. Janice says “I know you’re weak-willed, so I think maybe I should pop in on a Tuesday, make sure you’re not eating that bad stuff, and sticking to salads and quinoa and whatnot.” You agree.

Step 4. Janice pops round every Tuesday. She watches what you eat, asks you about what you ate yesterday, maybe what you’re going to eat tomorrow. She says “Maybe I should just check in your cupboards, while I’m here. Make sure there’s no jaffa cakes in there.”

Step 5. You get home on a Thursday. There’s a note from Janice pushed through your letter-box. “Called round – disappointed you weren’t in. Decided it would be best if you didn’t always know which day I was going to come check up on you.”

 

How much, out of 100 are you scoring Janice on the friendship stakes now? Remember, this is your best friend, and you did ASK her to help you lose weight. And you do WANT to lose weight.  Still, though…

 

Maybe your friendship is becoming a bit more like this...

Maybe your friendship is becoming a bit more like this…

 

Let’s continue.

Step 6. Janice calls round on a Monday. She has some weighing scales and a measuring tape.

Step 7. Janice says that really, to find out why you’re fat, she wants to talk about what you used to eat when you were young, find out what the patterns were then.

Step 8. Janice wants to check your phone, make sure you haven’t been dialling for pizza or takeaways. She asks if you’ve got an itemised bill she can look at.

Step 9. Janice suggests that you join a group, weightwatchers to help you with your problem.

 

How are you feeling about Janice now?  Are you contemplating making a voodoo doll of her out of macaroni and pesto?

Step 10. You ask her to stop. You don’t want this any more. You regret ever involving her. You’re happy as you are. Janice says “I’m not going to stop, not until you’re slim enough”.  You ask her what “slim enough” means, and she says “I’ll tell you when you’re slim enough”

 

If you’re not hating Janice with a burning passion now, then hello Dalai Lama, it is a real honour to have you read my blog. Thank you. And “Free Tibet!”

 

I’m sure you’ve clocked what this piece is really about. But let’s see it through.

Now imagine that Janice ISN’T your best friend, who you scored 80 out of 100. She’s a complete stranger.

Now imagine that you DIDN’T ASK her for help, she came along uninvited.

Now imagine that you don’t even want to lose weight, you were already pretty happy with how you were.

Finally, imagine that we’re not talking about weight at all, we’re talking about how you parent your children.

 

How do you feel about Janice now? Worse, or better?

 

This one? Or THIS one?

This one? Or THIS one?

 

 

It is pretty hard to imagine, unless you’ve been on the receiving end of it, what it must be like to have a social worker come into your home. It hasn’t happened to me, so I can’t really capture it. I suspect it hasn’t happened to 75% of social workers.  So this heavy-handed metaphor is a way of capturing it.

All of us disliked Janice really early on in that chain of events, even though she started as our best friend and she was doing us a favour. We all wished her bodily harm by about step 8.  (Not you, obviously Mr Lama)

I’m not saying that social workers shouldn’t visit homes – sometimes it is necessary, and important to safeguard children. But we should always try to think about what it is like being on the other side of that doorstep, how it must feel, and to respect that. Because even when it is your best friend doing this sort of stuff, at your request, and when you wanted them there, it makes you bristle and get irritated.

 

What we ask of parents, even when it’s necessary, is no small thing.  It sometimes helps to pull back perspective and remember that.

Structural edit

I received the structural edit over the weekend. That’s the big important phase of the book. This is where it goes into the arms of an editor who doesn’t know me, doesn’t have to sugar-coat anything, doesn’t have to look me in the eye and lie to me to save years of friendship. They just read the book cold, as a reader, and as an editor with a critical eye, and they then tell you what’s wrong with it.

It is a bit like a cross between getting a survey on a house that you’ve fallen crazily in love with, and singing on an X-Factor audition (only after you’ve finished singing, the Judge tells you in great detail about every note that you got right, and every note where you were a bit off key)

So it is important, because to make a book really work, you need someone who gives it to you straight. And if you don’t believe that an editor is hugely important, go and read some of the amazing Raymond Carver short stories (What we talk about when we talk about love would be a good start, or Cathedral – or Gazebo, or Menudo… damn, nearly all of it) and then go online and find the draft that Raymond Carver wrote before his editor helped him find the heart of the story. That draft is ugly. Painfully ugly. It took a collaborative effort to make the story so taut and elegant and spare that you can feel the words twang on the page like tweaking piano wire.

Or (and I’m not in any sense comparing my book to this sort of thing),  Leonard Cohen’s song “Hallelujah”, which you will have heard thousands of times, including on X-Factor.   Cohen told Bob Dylan he’d spent two full years working on the song (he was deliberately underestimating, perhaps because Dylan told him that it usually took him 15 minutes to write a song)

Cohen wrote 80 verses for that song. 80 verses. And he kept working on it, working on it, and it didn’t come off. He recorded a version, but it wasn’t right. And then he kept playing it live and kept fiddling with it, and then one day John Cale of the Velvet Underground came to a concert where Cohen played it, and Cale liked the song and he reworked it – more piano, restored some of the original biblical imagery, made it less dark and bitter and more sorrowfully uplifting.  And that song got onto an album of Cohen covers, which nobody really bought. But one person who bought it happened to be visiting a guy called Jeff Buckley, and Buckley happened to play the CD and liked it, and did a magnificant cover of Cale’s cover of Cohen’s song, and put it on an album. And nobody bought that either. Until Buckley died in tragic circumstances, and his work got re-evaluated, and in that process, Hallelujah became one of the most loved and well regarded songs around.  It just had to go through a hell of a process to find the song.

(I’ll cheerfully admit here that I stole that info about Hallelujah from Malcolm Gladwell’s wonderful podcast Revisionist History, which I highly recommend.  http://revisionisthistory.com/   I only just learned that Hallelujah wasn’t a song that the world loved straight away but one that had to be found out of the raw materials, and it is such a great metaphor for the creative process generally, that I’m using it and giving Gladwell full credit for coming up with it. )

I feel like the structural edit is helping me find the book, to bring it to where I want it to be. I can see the fixes and changes that are needed, and the good news is that the editor liked it – she hasn’t put red pen through loads of dialogue or told me that she hates the characters or that my world is flat.  I need to make some bits clearer to readers, I need to switch some stuff around with the ending, some things that I was keeping as mysteries are going to be more dramatic and tense if the reader knows what one particular character knows and is waiting to see when and if and how it all explodes, and I basically need to have more stuff happen in the first half of the book. I also need to rein back on the comic asides during moments of terror and drama…

So I’ve already reworked the first two chapters, for the better, I hope, and this rewriting phase will take about four weeks. I’ll keep you posted. Go and read some Raymond Carver while you’re waiting – he’s the best (or at least, with the help of a damn fine editor he became the best)

 

 

If you haven’t already checked out the book, please visit the site and have a look – ideally to pre-order yourself a copy, and if nothing else, to watch a video of a mouthy sarky lawyer get pelted with water bombs whilst trying to pitch what the book is about.

 

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

Lions, bees and sundry peculiarities

 

Not law at all this one – there doesn’t seem to be much new good law at the moment, it is a dry January.  So I thought I’d share with you this little bit of weirdness, which I went from never having heard of at all to hearing from three separate sources in six weeks (Dave Gorman, No Such Thing as a Fish and a book called Forgotten Science)

Each of them had a slightly different take on it, and as I was taken by the story, I thought I’d like to share it with you.

As you’ll know, lots of products use illustrations of animals to sell their products – from glossy-coated labradors on pet food to comedic chickens on pengest wings to inappropriately friendly tigers selling you over-sugared breakfast cereals originally devised to stop people masturbating.  But here is a question (which will be a bit marred if the image that you see is the product in question, so I’ll put a filler image in)

 

What food product decided to advertise its wares with a picture of a dead lion – and not just any dead lion, but a dead lion surrounded by bees?  (and more importantly WHY?)

 

I don't know about you, but I've never trusted Tony the Tiger - he always had that 70s DJ vibe to him. Operation Yewtree for sure

I don’t know about you, but I’ve never trusted Tony the Tiger – he always had that 70s DJ vibe to him. Operation Yewtree for sure

 

 

Okay, enough padding.  Anyone seen a food product that uses on its packaging a corpse of a lion surrounded by bees? You probably think that you haven’t, but I bet you have and just never noticed it. I bet there’s a tin of it in your house now. Here it is

Lyle's Golden Syrup. Now with more bees than you knew about, and 100% more lion corpse

Lyle’s Golden Syrup. Now with more bees than you knew about, and 100% more lion corpse

 

 

What the actual flipping heck, Tate and Lyle? Who puts a dead lion on their product?  And Golden Syrup has no connection to bees.  Golden Syrup  (insert your own Donald Trump joke here) is just made out of sugar, not honey.

You may have spotted the wording too (not just ‘partially inverted refiners syrup’ which is less appetising than something you want on the front of your tin) but  “out of the strong came forth sweetness”

That’s a Biblical reference, and the explanation as to the tin is just that like most well-known products, it was invented a long time ago, and like most extremely successful businessmen in olden times – paying nuff respect to God for the privilege and wealth you had gotten is just something that went down at that time.

This was a riddle told by Samson (yep, the guy with the hair and the strength and the murderous rages) at a wedding – he told the riddle and said that if anyone guessed it he would give them lots of linen, but if anyone didn’t, they would have to give him linen. They all tried to solve the riddle, which was this

 

“Out of the eater, came forth meat, and out of the strong came forth sweetness – what is it?”

(Now, even though you already KNOW that the answer is a dead lion and bees related, you still can’t get it, so it is no surprise that Samson soon stood with a smile and said “Stop your grinnin’ and drop your linen”  – thus predating Hudson out of Aliens by thousands of years)

Samson had come across the corpse of a lion on his way to the wedding  (when I say ‘come across’ I mean, having earlier killed the lion on a previous walk, he saw the body, because Samson) , and seeing bees around it, had observed honeycomb within the lion and eaten it and he saw that it was sweet. This is not a fair riddle, because it involves not so much solving something with logic, lateral thinking and knowledge of the world and the facts given, but just having to have been within Samson’s mind. This is the sort of solution that Mark Gattis and Stephen Moffat would have rejected as being too unfair and stupid for the finale of Sherlock.  Oh also by ‘meat’ he meant ‘food’, so that’s also cheating along the lines of having had character centred flashbacks where the character somehow confuses a red setter with a ginger schoolboy…

The wedding guests don’t react well to the riddle, what with it not being a riddle, and this leads to an awful lot of murdering and revenge murdering and revenge revenge murdering. It’s not a heartwarming tale, to be honest.

 

Then this is the bit I got from Forgotten Science, which added a whole new layer to things, frankly.  People in the past did genuinely believe that bees spontaneously emerged from dead creatures, and lions were as good as any.

Here’s the poet Virgil

A portent they espy: through the oxen’s flesh,
Waxed soft in dissolution, hark! there hum
Bees from the belly; the rent ribs overboil
In endless clouds they spread them, till at last
On yon tree-top together fused they cling,
And drop their cluster from the bending boughs

 

And here’s Shakespeare

 

“‘Tis seldom when the bee doth leave her comb/In the dead carrion.” (2 Henry IV; iv. 4. 79-80.)

 

So by past, I don’t mean just Biblical times, but for ages and ages after that – in fact, the bees creation story of them emerging spontaneously out of dead animals wasn’t debunked until 1894

 

(1894 to find out that bees are made by bees having sex with other bees is a bit shocking, but elsewhere in the book I learned that it wasn’t until the mid 1600s that anyone proved that women don’t have testicles. It is somewhat weird that the expression we use to simplify sex education to young people is to ‘tell them about the birds and bees’ when the sex life of bees was so totally mysterious)

In essence, nobody ever saw bees having sex, so they must have magically appeared (the same sort of thing happened with geese – nobody ever saw geese mating, or baby geese or goose eggs, so they assumed that geese were hatched at sea, and from that deduction obviously that they hatched from barnacles on the side of ships, hence barnacle geese.

http://sercblog.si.edu/?p=3069

If you were watching early 19th century Sherlock the plots would have been even weirder than today’s outlandish stupidity)

Added to that, people had seen bees come out of corpses of animals, hence proof.  In 1894 a Russian entemologist named Osten-Sacken posited that what people thought were bees were actually a simila-looking insect called drone flies and yes, flies do come out of the corpses of animals, but not by magic, but by flies laying their eggs in rotting meat.  Weirdly, even after people dissected male bees and found their penis, they still persisted with the emerging spontaneously out of lions account. We had to rely on a blind beekeeper named Francois Huber to find the body of a Queen bee with many many snapped off male bee penises inside her (yes, the male bee dies after it is snapped off, which may be a mercy) to solve this mystery.

 

I also learned from Forgotten Science that one of the first clamours for a film to be banned in Britain was for a 1930s film called “The Cheese Mites” which involved nothing more racy than a man examining a lump of cheese with a powerful magnifying glass – which sounds ridiculous, but I never want to watch that film and am happy to consume cheddar in blind ignorance.

 

So not only was Samson’s riddle unfair, but it wasn’t even accurate. He might have seen some insects emerge from a lion corpse and mistaken them for bees, but there would have been no honey.

Who would have thought that that tin with the rather sticky lid in your larder held so many digressing stories?

 

(I’m also reminded that one of the first bits of blogging I did, many years ago (elsewhere)  was about the belief that Vipers made treacle, so there’s a strong correlation between sweet sticky stuff that comes in tins and rampant oddness – see also the Boston Molasses Disaster)

Fire-eating pilot

 

Thank you for coming everyone. As you may know, we have recently been trialling a fire-eating pilot in the Family Courts.  It is very simple – before an advocate addresses the Court on any issue, they must take a stick dipped in oil, set it a light, and plunge it into their throat, extinguishing the fire.  Once that is done, they simply address the Court in the usual way.

 

Q  –  we have some reservations about this scheme

 

That’s disappointing to hear. Have you been to see one of the fire-eating Courts? I’m sure you’d think very differently, if you had.

 

Q – we’re rather puzzled that this scheme seems to have come out of nowhere, with no discussion beforehand or attempts to engage with people who use the Courts to see what they thought

That’s disappointing to hear. Have you been to see one of the fire-eating Courts? I’m sure you’d think very differently, if you had.

 

Q – could you perhaps tell us a little about the safety precautions? For example, what training will we receive in relation to fire-eating?

 

Training is of course essential. I observed some Canadian circus performers undertake fire-eating and it all seems very straightforward. I’m sure you’ll all be able to pick it up

 

Q – did you talk to the Canadians about the safety precautions they used?

 

Oh I didn’t speak to them. I watched a video.  Dip the stick, light it, put flaming stick into mouth. Simple.  None of those circus performers have been injured. That must reassure you all

 

Q – that’s rather dispiriting.  What about fire-extinguishers, for example? First-aid kits in case of burns?  What if the fire catches someone else alight?

 

That’s disappointing to hear. Have you been to see one of the fire-eating Courts? I’m sure you’d think very differently, if you had.

 

Q – could you perhaps tell us the thinking behind the fire-eating Courts? Only, it sort of seems, from the outside, like the intention is to discourage lawyers from doing their job?

 

The pilot has a 70% success rate

 

Q – Could you tell us how you are defining success ?

 

70 per cent. That’s obviously successful, isn’t it? Any number higher than 50 is clearly good, and this is 70. Way above 50.  Wonderful.

 

Q  –  but success as in achieving better outcomes for children? Or running through batteries in Court smoke alarms faster? Or reducing the amount of times lawyers get to their feet? Or thae number of lawyers suffering third degree burns – which I accept many in the wider public would consider a success?

 

70 per cent

 

Listen, all of you seem to just be very negative about this new fire-eating pilot, which is currently being evaluated, but is being rolled out in other Courts whilst we wait for the tedious job of someone sexing up the evaluation to achieve the outcome of it being rolled out nationally.  If you had been to see one of the fire-eating Courts yourselves, you’d feel much more positive. Why, it is almost exactly the same as FDAC, and you all love FDAC, don’t you? Everyone loves FDAC, which is why we’ve designed this to be exactly the same, only with fire.

 

Cue retired District Judge Crichton…

 

 

Brave counsel, asking the Judge on behalf of others whether written submissions might be acceptable in the circumstances

Brave counsel, asking the Judge on behalf of others whether written submissions might be acceptable in the circumstances

 

https://www.judiciary.gov.uk/wp-content/uploads/2016/10/fjc-transcript-of-10th-annual-debate-1-dec-2016-updated.pdf

 

 

It’s coming, it is happening and we almost certainly can’t stop it.  But we must do all we can to make it as safe and fair as possible. Genuine consent – no adverse inferences being drawn from failure to attend one or to reach agreement. No pressure – apparent or unspoken.  Proper adherence to article 6.  Proper judicial reading time.  Clear and easily understood principles about what is confidential and what isn’t  (if we have Judges speaking directly to parents, we need to all know whether the parent can reply in complete confidence or whether their answers are potentially evidence).  We must all speak up when this isn’t happening.   (From my reading into the Canadian model, there are a lot of positive things about it and I think that if it had been introduced here in a careful way with genuine safeguards and protections it could have a lot to offer – but the way this has been imposed without any genuine dialogue about addressing the very real concerns raised by Liz Isaacs QC and Martha Cover and the ALC has to be worrying – as is the obvious underlying motivation that this is a cost-saving device first, foremost and only)

 

 

 

Adoption law illustrated by way of passive-aggressive post-it notes on a student fridge

 

 

  1. You can take cheese out of this communal fridge if your best interests require it.   Yours, Act

 

2.Taking the cheese out of this fridge is a draconian resort and one that should only be done as a last resort. Having said that, if your best interests mean that you NEED to take the cheese, that’s fine.  Just, y’know, think about it first. Yours,  Caselaw

 

3.  But everyone, please remember that if you ARE going to take any cheese, you must be sure that it is proportionate and necessary.  Yours, HRA

 

4.  What the hell are you students doing with the cheese? If you don’t behave yourself with the way you take cheese or decide to take cheese or how much cheese, then we’ll have to come and put a bloody lock on the fridge.   Also, what’s with your fascination with cheddar?  Why not try some brie, or parmesan or Edam? Yours,  Y v UK

5.  Everyone, for goodness sake, you’ve seen what Y v UK said, but everyone’s ignoring it.  This is not cool. We are not being cool here.  Oh yes, ha ha, fridge related pun there, very funny. This is really really serious everyone.  Listen! The fridge is going to be locked if everyone doesn’t learn to be responsible about the cheese. We think the best thing is to have a snappy easy to remember sentence, then everyone can be really clear about when it is OKAY to take cheese and when it is very much not okay to take cheese.  Nothing ever goes wrong with snappy catchphrases (like, for example  “no return to boom and bust”  – that had literally no downside at all)  …. So from now on, just remember,  “Only take cheese from the communal fridge if NOTHING ELSE WILL DO”  .  Yours, Re B

6.  You all heard what Re B said, and we agree. And also, if you are going to take any cheese out of the fridge, you must leave a really detailed note explaining exactly why nothing else will do, and setting out all the other options that you considered  (going down the shops, going hungry, ordering takeway, taking hummus instead) and what the pros and cons are of each of those options and why if you DO decide to take any cheese, why NOTHING ELSE WILL DO”  Yours Re BS

7.  Why the hell is this fridge full of cheese? There’s no room for anything else.  We aren’t going to be able to close the fridge door soon if nobody takes any of this damn cheese out of it. We need to be getting much more of this cheese out of the fridge and into sandwiches, or grated onto pizzas.   We don’t understand this developing cheese mountain. What the actual heck, people? Who has been telling people not to take the cheese?   Yours,  The Government.

8.  Our fridge is full of cheese. It is very bad for cheese to continue to be sitting in the fridge, languishing there, when it could be forming meaningful happy relationships on top of a spag bol.  Listen, I know some of you mistakenly believe that recent passive-aggressive post it notes on the fridge have changed the rules and that it has become much harder to take cheese out of the communal fridge, but all of you are wrong. You fools.  Just go back and read the very first note, by Act, and do that.  And remember that the Government wants much more of this cheese gone, and they are weighing it once a month now to see if you’re managing.  If you don’t get it sorted, then the Government will get Capita to come in and run the fridge services for a lucrative fee.  Yours, Mythbusters  (oh also, the President agrees with this)

9.  I agree with all of that, only I don’t actually agree with it and I will undermine it subtly throughout this note.  However, if people are taking literally the test as being “NOTHING ELSE WILL DO” they are mistaken, because they simply didn’t understand that post-it notes 3, 4, 5 and 6 said.  I hope that’s all clear now. Sometimes it is the best thing for the cheese to be taken out of the fridge, and if so, people must not be afraid of doing it. But they should only do it if nothing else will do.   Yours The President Re R

10.  Once the fridge door has been open and the cheese is in your hand, there is no presumption that the cheese OUGHT to go back in the fridge rather than be grated onto spag bol. We have to start from a neutral position and consider what is really best for the cheese at that point.  Also, we slightly regret the “Nothing else will do” shorthand label referred to in post it note 5, but because Re B has been in the house longer than us, we can’t actually say they’re wrong.  Ignore it though once the cheese is actually in your hand, even if the fridge door is still open. It doesn’t count then. But more generally, of course “nothing else will do” applies. But, you know, just take it with a pinch of salt. (Not the cheese, the guidance)   Yours, Re W

 

 

 

(Oh man, researching google image for passive aggressive fridge notes turns up some shockers.  Here are just four – because the first is more about dishes, I think)

 

 

I like on this both the neat triangular one and 'disapproving mum face'

I like on this both the neat triangular one and ‘disapproving mum face’

 

 

That's a strong retaliatory position. Though I would place smoked kippers in the fridge and sit back to watch the show

That’s a strong retaliatory position. Though I would place smoked kippers in the fridge and sit back to watch the show

 

I  don't know about you, but if I worked there, Tina from HR would be going hungry EVERY single lunchtime.

I don’t know about you, but if I worked there, Tina from HR would be going hungry EVERY single lunchtime.

 

 

Let's hope when the threats to maim co-workers goes to HR, it isn't Tina investigating it

Let’s hope when the threats to maim co-workers goes to HR, it isn’t Tina investigating it

The Re W rehearing (placement with grandparents versus adoption order)

 

You might remember the Re W case – in which the Court of Appeal surprised most family lawyers by saying that in care/adoption there was no presumption in favour of the birth family – maybe you remember the situation in which some of the brightest minds in the country talked vividly about see-saws for what seemed like an eternity.  You might also remember it as the case where one of the plans for moving the child from prospective adopters to grandparents was to engineer a chance meeting in a park and just have the grandparents leave the park with the child and the adopter leave without the child ?  Oh yeah, that one.

 

https://suesspiciousminds.com/2016/07/29/re-w-no-presumption-for-a-child-to-be-brought-up-by-a-member-of-the-natural-family/

 

This time round it is  Re Adoption : Contact 2016    (which is a pithy title, but it is rather like Orson Welles calling his film “Citizen Kane – it’s a sledge”  or  M Night Shyamalan calling his  “The Sixth Sense – Bruce is a ghost”.    I mean, it’s really obviously not called Re A : Return to grandparents 2016, so the judgment lacks that vital component of suspense)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3118.html

 

 

 

The fulcrum is positioned dead centre   – no party starts with any advantage before the evidence is heard  (either the family on “nothing else will do”  OR the prospective adopters on “status quo”)      [At least, that’s the position in law TODAY….  over the last three years adoption law has developed a habit of tilting this way and that like well a see-saw]

 

 

18.There is no presumption in this case one way or the other; the fulcrum is positioned dead centre. I apply a straight welfare test. Significantly, I note that there is no right or presumption in favour of a placement of A within her natural family; at [71] of [2016] EWCA Civ 793 McFarlane LJ said:

 

 

 

 

“The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.”

 

He added at [73] that the phrase “nothing else will do” (from Re B [2013] UKSC 33):

 

 

“… does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs”.

19.Equally, there is no presumption in favour of a ‘status quo’, notwithstanding the powerful words of Ormrod LJ in D v M (Minor: Custody Appeal) [1982] 3 All ER 897, recently cited in Re M’P-P [2015] EWCA Civ 584 at [67]. That said, important in the welfare evaluation is the fact that A has been in her prospective adoptive home for approximately 4/5ths of her life. As the Court of Appeal said at [65] ([2016] EWCA Civ 793), the welfare balance to be struck must inevitably reflect these particular circumstances, which of course are different from the circumstances when the placement order was made. The balance at the placement stage naturally would have tilted towards a family placement if relatives had been assessed, as these grandparents would probably have been, as being able to provide good, long term care for a child within their family.

 

 

 

 

You may recall that this was the case where the Court of Appeal expressed hope that the case might not be an ‘all or nothing’ and that the child might have a relationship with both sets of important people, so contact was an important aspect  (again you’ve guessed that from the  “Rocky – he wins in the end” title   *     – actually Rocky doesn’t win at the end of the first movie, common misconception.  Even now, many of you are saying  “Of course he does, he wins the title”  – nope, he wins in Rocky 2. All he really wanted to do was go the distance with Apollo Creed – the Master of Disaster, which nobody else had ever done. And he did that. But lost on points. Nobody remembers that)

 

Okay, so THIS guy also remembers the result of the fight.

Okay, so THIS guy also remembers the result of the fight.

 

From the first four Rocky movies  (I cannot accept the later ones as part of canon), the fights we actually see Rocky have, his record is Loss, Win, Draw (with Hulk Hogan), Loss (Clubber Lang), Win (Clubber Lang), Win (Ivan Drago).  It’s not that great.  His win rate is 1:1.  He won 1 fight for every fight that he didn’t win.  To put that in context, Herbie Hide won ELEVEN times as many fights as he lost.  Yes, I am claiming here that Herbie Hide would have had a chance against Rocky.  Even Audley Harrison had a win rate of 5:1.

 

I’ve digressed.  Back to law.

46.Direct and indirect contact: When they first made their application, Mr. and Mrs X had agreed to indirect contact taking place between A and the birth parents once per year, albeit not to include photographs, gifts or celebration cards. This stance was, at least in part, attributed to the standard preparatory pre-adoption training which they had received, where this is described (according to Mrs. Gaskin) as the ‘norm’. Over the course of this protracted litigation, and particularly recently, their position has changed in significant respects. They told the adoption social worker:

 

 

 

 

“When we first thought about the adoption process, we did not envisage direct contact with any birth family. However, with circumstances as they are, we see the advantages of contact with siblings. We think the challenges are the emotional aspect but in time [this] will get easier”.

 

And more recently still in their written evidence:

 

 

“We are also very aware of the importance of [A] having some knowledge of her birth family and importantly some relationship with her siblings. Whilst we have acknowledged to the experts our commitment to some level of direct contact if that is felt in the best interests of [A], we do not wish such contact to be disruptive to her continued placement with us, or confusing to her in her development and security. The purpose of the direct contact needs to be carefully considered and the contact tailored to that end”.

 

Mr. X augmented this in his oral evidence, speaking for himself and his wife:

 

 

“We would like A to have contact with the [birth] family if possible… We do genuinely understand the pain… If the chance of contact is available, then this needs to be explored for us and for A so that she can have the right to know her birth family and have a good life.… It’s not about the adults, it is about the children. We have to put her needs first. Happy to do the contact; it would be great for A and her brothers; hopefully we can have a bond (with the paternal grandparents); we can ask them for advice and go to birthday parties…”.

47.I was quite particular in my attempts to establish whether Mr. and Mrs. X felt pressurised by their rather vulnerable situation to agree an arrangement with which they did not feel entirely comfortable; having listened to Mr. X in his oral evidence, and having read and heard the evidence of those with whom they have spoken frankly about this issue away from the court room, I was satisfied that he and his wife genuinely had come to appreciate the benefit to A in there being direct contact between A and her birth family. Mrs. Gaskin spoke of them as people with integrity (see below); from all that I could see and read of them, I concur.

 

 

The ISW, Ms Gaskin said this on the issue of contact :-

 

 

“Mr. and Mrs. X have suggested that initially they feel they could cope with four times per year, rising to six times in the light of positive progress. Of course in time, Mr. and Mrs. X would be the final arbiters of the frequency and duration of contact, and they would make this decision on the basis of [A]’s needs. I am of the view that they are people of integrity and truly want what is best for [A]. They are very clear that they believe that [A] should have a relationship with her birth family and this is something that they have always considered to be the case… They believe that it is important for [A]’s emotional well-being in the long term that she has a relationship with her brothers and paternal family.”

 

61.The obligation on me to consider “whether there should be arrangements for allowing any person contact with the child” (section 46(6) of ACA 2002) is accentuated in this case by the real prospect (accepted by the prospective adopters, as in A’s interests) of direct contact between A and her birth family post-adoption. This indeed adds a new and important dimension to this difficult case. The proposal to introduce a relationship between an adopted child and her birth family after adoption by way of direct contact is in my own experience unique. I was not at all surprised to hear from the adoption team manager that it was unprecedented in this authority’s experience, and in the experience of Barnardo’s (with their wealth of adoption knowledge) whom they consulted on the issue. This proposal reflects the resourcefulness of all those involved – coupled with the creativity of the professionals, and the selflessness of the proposed adopters – to divine an outcome for A which best meets her needs. As I have indicated above, if contact were to happen in the way proposed, it would be likely to play a highly material part in neutralising A’s possible sense of rejection by her birth family, while remaining in the Xs care, at the stage of her development when she is considering more maturely the difficult issues around her identity.

 

 

That is a very unusual amount of contact for prospective adopters to be proposing, and it was clear that everyone had taken on board the hope of the Court of Appeal, which is good to see.  (

 

 

 

 

Discussion and Conclusion

52.No one can doubt the colossal pressure which this litigation has heaped on the prospective adopters and the paternal grandparents over a sustained period of time, and through two rounds of litigation; while commendably uncomplaining about the legal process, it is reasonable to conclude that they have found the repeated forensic scrutiny of their lives unacceptably intrusive, and the uncertainty as to the outcome unbearable. Doubtless each of them has had to develop strategies of self-preservation to protect themselves from the outcome that A is not ultimately to be in their care. All the adults will have found it hard to be assessed and reassessed, but I sensed that each recognised why this needed to happen; to their great credit, and I believe A’s ultimate benefit, they have all engaged fully.

 

 

53.I have listened with great care to the evidence. I was impressed by the ability of Mr. X and the paternal grandmother to reflect generously and sincerely their concern for the other in these difficult circumstances; they all strike me as people of integrity with a deep respect for family. I have been struck by the thoughtfulness of those professionals who have endeavoured to chart these very uncertain waters. I was greatly assisted by the high quality of professional expertise in this case, in a way which, it is clear, Bodey J was not. Mrs. Gaskin described how she had “agonised” over the assessment – “this has been one of the most difficult cases I have had to deal with”. Dr. Young offered appropriate and helpful expert advice; the Children’s Guardian’s report was one of the best of its kind I have seen. She for her part observed that “this has been one of the most testing and difficult cases that I have been asked to report on in my 29 years of practice as a Social Worker…”.

 

 

54.A is, and has been, at the centre of my decision-making. I do not propose to repeat my description of her set out above; it is sufficient for me to record at this point that she has in my judgment had her global needs met in a safe and secure way for the whole of her life thus far; her security and her attachments have enabled her to explore, socialise, and master developmental stages confidently and appropriately. A has attached to Mr. and Mrs. X whom, according to Dr. Young, she identifies as her secure attachment figures.

 

 

55.I am satisfied that both sets of applicants have something genuine and valuable to offer A now and throughout her life. I am of course influenced in reaching my conclusion by the fact that A is securely attached to Mr. and Mrs. X, whom she regards as her parents, and is embedded in their family whom she has come to know as her natural relations. She will have little knowledge or recollection of any life which is different; the continuity and high level of care which she has received has nurtured a strong sense of security with these primary attachment figures. I am influenced too by the knowledge that the paternal grandparents, rightly described by the Guardian as “child-centred people”, are currently raising their grandson with evident love and skill; that they would – I accept – have been more than likely to have been favourably assessed to care for A had they been considered over two years ago, and had that been so, then A would be living with them now. Their belief that A would be best placed in their care is both sincere and passionately held. If A is placed with the grandparents, she would have the considerable additional benefit of being raised in a household with one of her siblings, and in close proximity to the other.

 

 

56.I am equally satisfied that risks are attached to each outcome for A. In evaluating the respective cases, it has been necessary to make some informed predictions about the future, conscious of my obligations to consider the issues by reference to A’s whole future life. In the home of the Xs, there is a clear and identifiable risk that A will feel, perhaps strongly, a sense of rejection when she comes in due course to realise that her brothers are cared for within the birth family, and she is not. This may have significant implications for her sense of identity and self-esteem. This risk, if it materialises, will not arise for a number of years. If it does, it is likely to be moderated by a number of factors, including:

 

 

 

  1. i) That A and the Xs have developed a secure attachment over the last 24 months, which it is reasonable to expect will continue to grow and consolidate; this will operate as an inherent protective defence against disruption of placement;

 

  1. ii) The ability and willingness of the Xs to be open with A about her adoptive status as she is growing up; Dr Young believed that the “key” is in how Mr. and Mrs. X support A to make sense of her status, and advocated adoption ‘talk’ with her from an early age;

 

and

 

iii) The introduction and maintenance of a direct relationship between A and her birth family, namely siblings and other relatives, through contact.

 

57.The risks of medium-term or long-term damage to A by her making her primary home with the paternal grandparents flow directly from the consequences of a move. No question is raised about short-term harm; it is assessed as being inevitable. The professionals spoke of the serious possibility of medium-term and long-term emotional and psychological damage to A by the traumatic severing of the secure attachments which she has formed with the Xs, with the consequent risk of disruption to her placement if these risks materialise and are not adequately addressed. Dr. Young opined that “a significant move such as this at this stage of her development will have a significant detrimental impact on her, of which the long term consequences would be uncertain, and thus any decision must proceed with this knowledge in mind” (emphasis by underlining added). While I am satisfied that there would be no shortage of love, and willingness on the part of the paternal grandparents to assuage the evident hurt for A in the event of a move, which may help A to some extent, the ability (or inability) of the adults around A to address the risk of deeper damage would be affected by a combination of the following factors:

 

 

 

  1. i) A real possibility that A simply does not forge attachments, let alone secure attachments, with new carers, having suffered the traumatic severance of secure attachments with the Xs; there is limited optimism that she will be able to deploy her “an internalised blueprint” (see [27] above);

 

  1. ii) Helplessness on the part of any of the adults around her to explain, in language which a 2½ year old will understand, why this change has been foisted upon her;

 

iii) The lack of experience on the part of the paternal grandparents to deal with the sophisticated and complex challenges facing A in these circumstances, and the evidence, which I accept, that they somewhat underestimate those challenges;

 

and

 

  1. iv) A possible adverse reaction by J to the arrival into the family home of A, and by A who would no longer be an only child in placement, and the risk that the grandparents may be overwhelmed by having to cope with challenging behaviour from A and/or J, or that A will become withdrawn and this will not be detected.

 

The risks of long-term damage are likely to be exacerbated (though in what ways, and to what extent it is difficult to assess confidently) by the fact that none of the transition plans are deemed by the experts to be in A’s best interests. The least bad alternative, which the experts reluctantly favoured among them, would involve summary (and so far as A is concerned unplanned) removal from the Xs care. It is hard to imagine, as Mr. Richardson emphasised, how an infant will react to having lost all her emotional and practical reference points overnight.

58.I should say at this stage, that I was extremely impressed with the way in which the Xs have already displayed many of the qualities which the professionals would advocate in order to mitigate the risk of harm if A were to remain with them; they have prepared a thoughtful, child-friendly, life-story book for A which I have seen, which identifies honestly and in age-appropriate terms who are the key people in her life – birth parents, foster parents and prospective adopters all featuring with explanations of their roles and importance to A. They have maintained contact with the foster carers who looked after A for her first seven months, allowing A to develop a real appreciation of her life-journey; I felt that this ability to embrace wider aspects of A’s life would be likely to carry through into an ability to involve the birth family in A’s life. They have developed in their own adoption ‘journey’ to a position of accepting direct contact between A and her birth family. The risk that A may develop a sense of rejection may be further mitigated by it being explained to her as she grows older – when the language would then be available to explain what has happened to her in a way which an adolescent will understand – that the difference between her situation and her brothers is not about her, but about the context and circumstances in which they each respectively began their lives.

 

 

 

 

 

64.In reviewing the competing options for A I have of course considered the proportionality of the outcomes proposed, particularly where one outcome, namely adoption, involves the creation of a new legal identity for A, and the court’s affirmation of a permanent, enduring relationship between her and a couple with whom she has no blood ties. Drawing all of these powerful factors together, I have reached the clear conclusion that it is in A’s best interests that she should live with Mr. and Mrs. X, where she has established solid, loving, and secure emotional foundations; from that ‘secure base’ she will be able in a wider and more general sense (as she did in a more limited and specific sense when Dr. Young visited her home earlier this year) to explore the world, and importantly with confidence explore and embrace new relationships, including those with her birth family. This outcome is the one which, looked at in the round, is most likely to contain and mitigate the risk of harm which is feared (section 1(4)(e)), and permit A to preserve and enjoy all of the important relationships in her life, including those with the people who she has come to know as her parents, and her birth grandparents and siblings. This outcome most faithfully promotes “the likelihood of” the continuation of important relationships for A and the “value to [A] of [them] doing so” (section 1(4)(f)(i) ACA 2002).

 

 

The Judge decided that there should be contact at least twice per year but that given that the prospective adopters were in agreement, there should not be an order.