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Something something oranges something part 2

Posted on May 16, 2016 by suesspiciousminds

 

You may recall the recent Holman J case in which a 16 year old subject of care proceedings had told the social worker and Guardian something personal which he did not want his parents to know, and the social worker and Guardian were divided as to whether this was something which could legitimately be kept from the parents

 

Something something oranges something

The application, this time with the parents represented, was decided by Mrs Justice Roberts.

Local Authority X v HI and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1123.html

It raises some interesting questions.

The Court was aware of what the information was, as were the social worker and the Guardian. The mother and father did not know what it was. All of the barristers knew the information, having agreed (upon instructions from their clients) that they would know it but not share it with them.  It is almost impossible to fathom what the parents counsel were supposed to do if the parents were making guesses as to what it might be – save for just being plummy and saying “I can’t indulge in speculation”

The parents, who were the only people in the room who didn’t know what their son’s personal information was,  really then had to work on the basis of Holman J’s categorisation of the information

  1. As to the substance of the information which I has shared, it was described by Holman J in an earlier judgment[1] in this way:-
    1. “Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to the guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is in any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year old child who is in their care, They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.” (The emphasis is mine.)

The argument came into these two camps

A) The Guardian arguing that just as a doctor has a duty of confidentiality to a young person who has capacity (see Gillick) so do a social worker and Guardian have a similar duty if a young capacitous person tells them something and says that they want it to go no further.  (also relying on the  PD v SD, JD and X County Council [2015] EWHC 4103 (Fam).  which was the young person who wanted to undergo gender reassignment and did not want his adoptive parents to have any detailed information)

Thus, on the Guardian’s case as advanced by Dr Bainham, the duty of confidentiality which was found to exist as between a Gillick competent child and a doctor or other medical professional advising on, or offering, medical treatment would necessarily be extended so as to cover social workers and other professionals engaged with the young person concerned.

B) The Local Authority and the parents arguing that that was correct IF the case was not in Court, but once there were Court proceedings, the Article 6 right to fair trail would outweigh such a right to confidentiality, unless there were compelling circumstances.

  1. Specific guidance in relation to the obligations on a local authority in care proceedings was provided by Lord Mustill in the leading case of Re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593. At page 615 D to H, his Lordship set out five principles with which the members of the full court were in agreement.
    1. “1. It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.

2. When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

3. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

4. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

 

Obviously an important issue to resolve – young people do tell social workers and Guardians things, and sometimes they would prefer that their parents did not know. If the Guardian is right here that the approach should be in line with Gillick, then the decision would be made by the individual social worker and Guardian, and if not, the decision would be made by the Court, with non-disclosure being the exception and not the rule.

 

In the context of the present application, it is important to state that the information in respect of which I seeks to maintain privacy is not information which will have a bearing on any evaluation undertaken by the court in relation to the issue of whether or not the care which the second and fourth respondents have given, or may give in future, to I is likely to cause him to suffer significant harm such as to justify the making of a final care order. In my judgment, it will have no bearing whatsoever on any judicial investigation into the quality of the care they have provided in the past or the care they are likely to offer to I in the future in terms of the sort of care it would be reasonable to expect a parent to provide. Further, the local authority accepts that the information has not, and will not, affect or influence their decision-making for I in terms of the final care plan which is now before the court.

 

It would be very difficult to withhold from the parents information which went to whether a particular allegation in the case was true or false, or where the child was expressing a view about where his future home should be, but in this case, the Court was saying that the information was personal and not something that would have any bearing on the outcome of the case.

Father’s counsel disagreed,

  1. In his written skeleton (para 117), Mr Day on behalf of I’s father says that his client wishes to utilise the material at the forthcoming final hearing. He raises concerns that I “will become involved [in] gang culture and criminality and that corporate care will not be in his best interests. The sensitive information very much supports and grounds that contention and is required for there to be a fair trial.”
  4. With respect to Mr Day (who knows the nature of the confidential information), I can see no correlation at all between the information which I has imparted and the likelihood of his becoming involved in gang culture or the sort of criminality which is sometimes associated with such involvement or membership. The link between the two is not even tenuous in my judgment. Furthermore, the statement of intent to use the information at the forthcoming trial is made in an evidential vacuum. As matters stand, I’s father does not know anything about the information and he will not know unless and until the court authorises its disclosure. Mr Day seeks to widen the ambit of his assault on confidentiality by asserting that the material is relevant to that part of his client’s case which relates to an allegation that the local authority will not provide appropriate care for I if a final order is made. It seems to me that this is a matter for the trial judge who will be responsible for scrutinising with the utmost care the final plan advanced by the local authority.

 

What was the right test? And was the information relevant?  The Judge decided this

 

Analysis and Discussion

  1. The local authority was absolutely right to make this application. In my judgment, Holman J was also absolutely right to rule that the matter must come back to be dealt with on notice to the respondents.
  4. In terms of the correct approach to the issue of disclosure, I do not accept that I can consider issues flowing from I’s ‘personal autonomy’ in a vacuum. In my judgment, Mr Day is correct on this point. Gillick and Axon were both cases which did not involve any consideration of the engagement of Article 6 rights. In each, the applicant was seeking declaratory relief but no more. In this case, both Article 6 and Article 8 rights are engaged and accordingly the Re D test must form a part of the overall balancing exercise which I have to perform. However, it seems to me that the principles to emerge from Gillick and Axon become relevant at the stage of the balancing exercise where judicial focus is on the welfare of the child or young person. Respect for his or her views and the consequences of overriding those views where they are genuinely and strongly held must, in my judgment, form part of those welfare considerations.
  7. Dr Bainham makes the valid point on behalf of the Guardian that if Gillick principles are not accorded priority, any ‘looked after’ child in these circumstances would be at a disadvantage since his views would be accorded less respect because of the fact that he is at the centre of contested care proceedings. Whilst I can see the force of that submission, it does not in my judgment mean that I can disregard the equally important considerations which flow from the engagement of the respondents’ Article 6 rights. I’s views are important. They are entitled to considerable respect but they are one aspect of the overall balance which has to be achieved in this case. In my judgment, they are not determinative of outcome. Further, the fact that neither of his parents is currently exercising day to day parental care for I does not dilute the parental responsibility which they currently share with the local authority.
  10. The first question which must be addressed is that of relevance. Nothing which was said by I impinges upon, or affects in any way, the local authority’s case in relation to the respondents’ allegedly deficient parenting. On behalf of the local authority, Mr Krumins submits that it is important to distinguish in this context between the relevance of the information and the weight which can properly be attached to it. In relation to relevance, he contends that the threshold is low. Nevertheless, he concedes that the information is unlikely to assist the trial judge and will ultimately make no difference to outcome. I bear in mind the observation of Thorpe LJ in Re M (Disclosure) that if there is anything within the local authority’s care plan which gives rise to concerns, that may well be adverse to the respondents’ case should disclosure be withheld. However, where the principal challenge to, and defence of, the care proceedings amounts to a denial by the second and fourth respondents of the poor parenting which gives rise to the perceived risk of significant harm to I, it is difficult to see how a care plan which involves removal from that harmful environment can be said to raise independent concerns. That will be the central issue for the trial judge to determine.
  13. I have significant concerns about whether or not the information for which protection is sought is truly relevant to these proceedings. Whatever subjective views Mr Day may seek to advance on behalf of I’s father, it is difficult to see how any objective analysis of the information could lead to the conclusion that it has any relevance to the issues to be determined later this month. However, for the purposes of my judgment and on the basis that Mr Day is right and it has some tangential (or greater) relevance, I must go on to apply the balancing test set out in Re D.

 

Having decided to approach the matter on the Re D principles, the Judge went on to consider whether disclosure would present some risk of significant harm to the child

 

  1. Thus, the next question to be answered is whether disclosure of this information would involve a real possibility of significant harm to I.
  4. The Guardian and the local authority are not agreed on this aspect of the case. The local authority accepts that disclosure would be likely to expose I to an awkward and embarrassing situation, but no more. Within the material which has been put before the court is a statement prepared by a social worker on behalf of the local authority. It is dated 8 April 2016. In that statement, the social worker, AB, expresses the view that I may be embarrassed or ashamed as a result of disclosure. However, she acknowledges, too, that he may in future be reluctant to share information with professionals if the information is revealed to his parents against his wishes. Her statement also raises an issue as to whether what he said was true in any event.
  7. The concerns of the social worker find strong reflection in the Guardian’s evidence. She tells me that, knowing what she does about I’s father and step-mother, she believes neither ‘would … be able to respond to the information in a child-centred way at all, and that this could have emotionally devastating consequences for [I]’. She sets out in her evidence a report which she had received from a colleague who was present at a recent LAC review which was attended by I’s father and step-mother. One of the issues for discussion on that occasion was their willingness to engage in some work with an appropriate professional in order to assist their understanding of I’s needs. Their presentation on that occasion was said to be “extremely oppositional, even in [I’s] presence”. The report which emanated from that meeting is recorded in the body of the Guardian’s statement in this way.
    1. “It was appalling … [I’s father] totally took over, attempting to intimidate the professionals, leading to … [I] putting on the hood of his jacket and pressing his forehead onto the table in what appeared to be a combination of anxiety, frustration and sheer embarrassment. His wife [I’s step-mother] then started a wholly inappropriate and crass attack on the social worker – how can she do the job at her age, not having children. Basically, following father’s continued ranting and finger-pointing at me, I had no choice but to prematurely bring the review to an end. I’m far from convinced that the LA should be promoting contact for [I] with them. Before there can/should be any relationship work undertaken, perhaps father in particular should be advised to see his GP regarding having anger management and/or counselling. He certainly won’t be invited to the next review unless he makes some radical changes.”
  9. The Guardian expresses her very real concerns that the good relationship which I has managed to establish with his social worker and foster carer may be damaged by disclosure of the information which he wishes to keep private. Those relationships are important to him because they enable him to confide in these professional carers and, in turn, to receive appropriate support and guidance. To override his express wishes may undermine his trust in professionals making it difficult for them to offer the level of help and support from which he has so clearly benefitted to date. This would be entirely counter-productive and inimical to his best interests. She has no confidence in either the father’s or step-mother’s ability to respond appropriately or sensitively to something which I regards as a personal and embarrassing episode and she regards the prospects of disclosure as being ‘highly detrimental’ to his welfare.
  12. Thus, it seems to be common ground that disclosure to the parents will cause I emotional upset and some distress. The disagreement centres on the level of emotional harm and whether or not this is likely to be “significant”.
  15. On behalf of the father, Mr Day submits that “the worst reaction could be that the father is dismayed, disappointed and at worst may remonstrate with his son”. On behalf of I’s step-mother, Mr Fletcher reminds me that I has been told by his social worker that it is not possible for her to provide him with a guarantee that anything he tells her will remain private as between them. He points to the absence of any direct statements by I himself as to his fear of his parents’ reaction. He invites me to consider whether any perceived harm could be mitigated by putting in place safeguards so as to ensure that I was protected from any such reaction from his father and step-mother as that anticipated by the Guardian.
  18. I have to bear in mind that I is a very vulnerable young man. He is not yet 16 years old and has already been the subject of two separate sets of care proceedings. He has been found to have suffered neglectful and abusive parenting at the hands of his mother. His experience of life was fractured when he left his home with her to live in a completely different part of the country with his father and step-mother. His unhappiness and distress in that placement is reflected in his attempts to abscond and his absolute resistance to any return to that household and any form of continuing relationship with his father and/or his present wife. Whilst I accept that it is an untested account, I regard the record of what transpired at the recent LAC review as providing a valuable insight into what I is likely to be experiencing at the present time in terms of the conflict which appears to exist between his family and the professionals who are currently caring for him. The picture of I which emerges from the record of that meeting is one of a young man who has few, if any, coping strategies for dealing with that conflict. I do not accept that the absence of a specific reference by I to fear of his father’s reaction should lead me to a conclusion that he has no such fear. On behalf of the mother, Miss Bartholomew supports the Guardian’s position that there is a real risk of further significant harm to I in the event of disclosure. She records in her written submissions the mother’s historic and ongoing concerns about the aggressive and inflexible behaviour demonstrated by his father. She is concerned that his reaction to the information may well place I at risk of significant harm.
  21. In my judgment, whether one applies the label of “significant” or “real” harm to the question, there is indeed a real possibility of significant and detrimental harm to I if this information is disclosed. In his evidence in response to the local authority’s case, I’s father has denied entirely that his son is suffering, or has suffered, from any significant emotional harm. He accepts that he has shouted at I but justifies this on the basis that, “If you don’t stand up as a parent, the children are going to walk on you”. It is said that he referred to I in highly derogatory terms because of his educational difficulties. He does not admit using any such inflammatory terms but still refers to I in his statement as “this little boy”. I am satisfied that there is a clear risk that the consequences of disclosure of this material may well result in I’s disengagement from the professionals who have provided him with guidance and support since his reception into care. He has been damaged by his experience of family life in recent years and findings in relation to threshold have already been made in the context of the interim care order which sanctioned his removal from his father’s home. If his current support structure were to be put at risk for any reason, he may well withdraw and internalise issues thereby putting his happiness and future wellbeing at significant risk.
  24. I bear in mind, too, that whether or not the trial judge makes a final care order at the conclusion of these proceedings later this month, any prospect of repairing the relationship between I and his father will inevitably have to involve some form of therapeutic input from an appropriate professional or professionals. In this respect, it is essential that I believes that he can repose trust and confidence in those professionals and the care and support they will be providing. It would be harmful to him, and significantly so, if the chance to restore some form of relationship between parent and son in future were jeopardised because of a disclosure now of information which he regards as confidential.

 

The next step was to balance the article 6 rights and article 8 rights.

 

  1. In these circumstances, the final step is to weigh the interests of the respondents in having the opportunity to see and respond to the material. This involves a rigorous consideration of the engagement of their Article 6 and Article 8 rights.
  4. Given what I have already said in my judgment, I can dispose of the issue in relation to their Article 8 rights in fairly short order. These rights, whilst engaged, cannot take precedence over I’s Article 8 rights and he is clearly expressing a wish for no communication with his father or step-mother at the present time. As Yousef makes clear, the child’s rights are the paramount consideration in any balancing of competing Article 8 rights.
  7. As to the respondents’ Article 6 rights, the relevance of the information to outcome has already been addressed. In my judgment, it is of tangential or minimally indirect relevance at its highest and is completely irrelevant at its lowest. The local authority accepts that it will not impact upon outcome or future planning for I. The respondents’ rights to a fair trial are, of course, absolute but, as Lady Justice Hale acknowledged in Re X, in deciding how to conduct a fair trial, it is perfectly reasonable to take account of the facts and circumstances of the particular case with which the court is dealing. The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing. Whilst I accept that any departure from the usual requirements in relation to the disclosure of evidence in an adversarial trial must be for a legitimate aim and proportionate to that aim, the Court of Appeal has held that protecting the welfare of vulnerable young persons is a specific and undoubtedly a legitimate aim.
  10. In my judgment, the harm which would be caused by disclosure of information which has very little, if any, relevance to the issues which need to be determined by the court would be wholly disproportionate to any legitimate forensic purposes served. I am entirely satisfied that depriving the respondents of the opportunity to have this information will not deny to any of them a fair trial. Disclosure would, however, be a breach of I’s Article 8 rights.
  13. Considering all these matters in the round, I have reached the clear conclusion that the case for non-disclosure of the information which is the subject of the Guardian’s current application is compelling. The circumstances of this case, looked at in the round, do make it exceptional and I regard it as entirely necessary that I’s confidence and privacy in this information is maintained. I cannot overlook the fact that, as a Gillick competent young person, he has expressed in the clearest terms his wish that the family should not have access to the information. Those wishes deserve the court’s respect, albeit in the context of the overall balancing exercise which I have conducted

 

This particular passage has some broader significance – the right to a fair trial does not mean that a person gets to run the case exactly as they please, the Court controls the content and nature of the hearing whilst still having the duty to secure that the trial is FAIR

 

The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing

 

Finally, the Judge recognised that the parents knowing that something was being kept from them (even if most of us can guess what it might be) was difficult

 

Finally, I would conclude by echoing the words of Holman J which are exquisitely apt in this case. I, too, am deeply conscious that whenever disclosure issues of this kind arise, there is inevitably a problem once parents or other interested respondents are put on notice that there exists some information in respect of which the court has supported an application for non-disclosure. As Holman J observed, ‘”conspiracy theory” and imaginings may inevitably take over’. The parents and step-mother may well be concerned that the information is graver than it actually is. I would hope to reassure them by my finding in relation to the likely relevance of the information to the issues which are at stake.

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Megalomania and physics

Posted on May 5, 2016 by suesspiciousminds

I did a sort of interview thing for This Lawyer’s Life last week, and it occurred to me that some of my readers might not have seen it, so here is the link.

Monday Man : This Lawyer’s Life: Andrew Pack aka Suesspicious minds

There was originally a photograph of me on the piece, but I soon got rid of that. I could not be responsible for bills for cracked laptop and ipad screens.

 

This Lawyer’s Life is a great site anyway – it’s like Grazia for lawyers, but with less Jennifer Anniston (and probably about the same amount of Amal Clooney)

 

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In the soup

Posted on March 2, 2016 by suesspiciousminds

This is a set of care proceedings dealt with by His Honour Judge Wood in Newcastle – so not binding or exciting case law, but sad and interesting and with some unusual quirks.  So far as I am aware, it is the first set of care proceedings in which a tin of tomato soup plays a key role.

 

[The very unfortunately named Lancashire County Council v A (Burned Child) 2015 mentions soup tangentially, but it does not specify tomato…   http://www.bailii.org/ew/cases/EWHC/Fam/2015/1156.html

 

Oh, and of course the Hampstead Hoax case Re P and Q 2015 involves a finding that the mother and her partner made Hemp Soup and fed it to the children       http://www.bailii.org/ew/cases/EWFC/HCJ/2015/26.html   

 

Turns out soup crops up more than you’d think. Spaghetti hoops, however, have never turned up in a published family judgment on bailii, just in one horrendously complex case about tanks used to store polymers – a case apparently worth £40 million…

Baked beans feature in no published  family law judgments at all.  Lots of other weird stuff, including the wonderfully named

Baron Uno Carl Samuel Akerhielm and another v Rolf De Mare and others (Eastern Africa) [1959] UKPC 11 

Quite hard to imagine the Baron, or Rolf De Mare eating baked beans 

My dear old friend Shepherd’s Pie just comes up in a criminal case, where the plan was to add death’s head mushrooms to the Shepherd’s Pie to poison someone.     http://www.bailii.org/ew/cases/Misc/2011/13.html

I have digressed into foodstuffs versus the law. Sorry! ]

 

 

 

Re S 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B7.html

The case involved two very ill children, and parents who were from India, and who in the midst of care proceedings went back to India and who were saying that they would only return to collect the children and take them to India. Thus not participating any further in the care proceedings. That is a shame, because certainly from the judgment it seems that mother was potentially a perfectly suitable carer for the children and the issues were really around father. Additionally that father’s issues were potentially of a mental health nature and thus potentially treatable.  If the parents had engaged with the process, the outcome could easily have been very different.

 

This being an international case, efforts were made to contact the Indian authorities. With the exception of what used to be called the Slavic countries, this response is pretty typical of what we tend to get when contacting foreign authorities.

I should mention at the outset that as these children are Indian nationals it is only right and proper that the Indian authorities should have been notified of this action being taken by the local authority in respect of Indian subjects. They were duly notified via their Embassy in November 2015 with full details as to the nature of the action being taken, as well as the contact details of all relevant family members, receipt of which was apparently acknowledged, with an indication that the Embassy would contact F, but nothing has been heard since.

 

The two children were, as I have said, very unwell.

 

  1. The background is significant. Each of these children suffers from profound disability and severe cognitive impairment. In B’s case, her current diagnosis is epilepsy, encephalopathy, global developmental delay, microcephaly, cortical visual impairment. She is fed by gastrostomy. She suffers from prolonged seizures as well as sound sensitivity. She has scoliosis of her spine and subluxation of her hip. By reason of her disability she receives extensive support from a community paediatrician, a consultant paediatric neurologist, consultant orthopaedic surgeon, an epilepsy nurse, dietician, speech and language therapist, occupational therapist and physiotherapist and sensory support team with regard to her health, mobility and postural needs.
  2. So far as C is concerned, his current diagnosis is dystonia, perinatal hypoxic lactatemia, encephalopathy, epilepsy and global developmental delay. He had previously had a nasogastric tube to aid feeding until May 2014 when it was replaced by a gastrostomy. He is currently in receipt of support from the community paediatrician, orthopaedic surgeon, epilepsy nurse, dietician, speech and language therapist, occupational therapist, physiotherapist and sensory support team.
  3. It goes without saying that each of these children is totally dependent on carers to meet all of their holistic needs, to ensure that they receive the medication and the delivery of their health plans as well as being closely monitored to ensure that their health and presentation, safety and wellbeing is at all times met. Neither has any verbal communication. B will apparently cry with distress, but it is said to be hard to find the cause at any time other than by elimination. C responds to sounds and sensory stimulation only.
  4. The local authority says that F in particular does not recognise the needs of his children and their increase. He has, from time to time, as part of a pattern, accused health and educational staff of harming both of the children, as well as ignoring advice from a range of professionals.
  5. There is, as I say, a significant history, but the onset of the precipitating event, if I can put it that way, was that on 13th March 2015, C was admitted to the University Hospital of North Durham with life threatening dystonia, that is to say a movement disorder that causes muscle spasms and contractions. This particular episode required a high level of nursing on admission and frequent monitoring, as persistent back arching had put him at risk of airways compression. This was described by medical staff as a serious life threatening medical condition, resulting from a gradual increase in muscle tone and, on admission, his father reported that he could no longer manage this at home, the spasms having become more frequent.
  6. The medical records record, and one of the treating paediatrician’s comments based on that record, that such severe dystonia would have developed over time and suggest that health support should have been sought at an earlier date to prevent this life threatening episode.
  7. B was admitted to the same hospital on 19th May 2015 due to increased seizures and she required monitoring and medication review and due to her complex needs and swallowing difficulties she has been fed by a gastrostomy which enables her to receive liquid feeds throughout the day in accordance with a dietician devised regime.

 

Given B’s difficulties with feeding and seizures, it was of vital importance that any medical advice regarding feeding be followed. There was an incident where it appeared not to have been, and the investigation as to the cause cannot have been too onerous or complex.

 

The local authority say this has been extensively discussed with B’s father and, on 9th June last year, whilst she remained an in-patient and F had been alone with her in her room, carers arrived to find B vomiting over her clothes and bedding, a liquid that was orange in colour and smelt of tomato soup. A tin of tomato soup was noticed in the waste bin in the room. F, who had briefly left the room, returned and was asked if he had fed B foods either orally or via the gastrostomy site and he denied it, but it is said that later in the evening he admitted that he had given B tomato soup with mashed potato. Medical advice suggested that this placed her at significant risk of aspiration and choking and could have been a life threatening situation for her. It constituted, in any event, having ignored the dietary advice, giving oral feeds that had not been agreed by medical staff, and thereby placed her at risk of significant harm. F at different times, it is said, has disagreed with the feeding and medication regime for the children and has indicated in terms that he would not follow such a regime once the children returned to his care.

 

The father’s behaviour become more challenging and peculiar after this. He started to assert that the medication given to the children was making them ill, that hospital staff had inserted electronic chips into their heads, that there was silver metal being placed in their brains and that the hospital were using the children as human guinea pigs to test the effects of bacteria upon them.  It was this behaviour, in combination with the fact that the children had very significant health needs which would have to be met, on discharge by their parents, that led to the degree of concerns that the Local Authority held.

 

  1. In addition to the evidence of the then social worker, Claire Brown, the local authority relied on the reports of two paediatricians who have cared for the children in Durham, Dr Haves and Dr Balu. These are frank and, in the case of Dr Haves in particular, really quite hard hitting reports, in which neither pull their punches. Dr Haves expressed belief that both of these children would suffer significant harm if they were returned to the care of their parents they being in hospital continuously from the time of their admission up until November, as I will come to. She was very concerned at what to her was M’s extended and unexplained absence. She considered F to have a significant undiagnosed mental health disorder, which was deteriorating and impacting on his ability to work with professionals, he declining to undergo mental health assessment. Dr Haves considered his belief about the causation of the children’s disability, which is thought, from a medical point of view, to be genetic in origin, to be paranoid or delusional in nature, but more worryingly, that belief acted as a barrier to the administration of proper care and she gave a long list of examples of that, some of which I have already touched upon.
  2. She felt his allegations against medical professionals were incompatible with any evidence, or indeed reasonable expectation. Nor, in her experience, could his views be explained by a cultural variant, or an adjustment reaction to the children’s disability, she having had some significant experience of working in communities where many people from the Indian sub-continent live. She gave examples of F’s paranoid beliefs that extended to his emails being hacked, his receiving telephone guidance from professionals in London and neighbours reporting on him, and she said it was impossible to engage with him in a rational way, which in turn made the provision of medical care in the community almost impossible.
  3. There were other specific concerns. First, his inability or unwillingness to recognise and manage seizures of which there was a long history. This had profound implications for ensuring the correct medication. His inability or unwillingness to comply with medical advice, withdrawing, reducing or increasing doses of medication, particularly anti-convulsants, such that, at times, the children were inadequately protected, or so dosed up that they presented as sedated. F also made claims of medical expertise, repeated, I see, in his closing submissions. His claims of academic qualifications include biology, microbiology, immunology, pharmacology, none of which were ever substantiated, but used by him to engage with professionals in what they considered an inappropriate way. He had acquired medical equipment with no qualifications to use it, such as a blood pressure machine, as well as taking steps such as dressing in an NHS uniform or a white coat, thereby implying that he had qualifications that he did not have. He had, on occasion, administered high flow oxygen to B, without any medical intervention or advice. He fed her orally, as I have mentioned, and administered a privately acquired nebuliser. Dr Haves also had worries about his emotional attachment and basic care, noting on occasion a lack of reaction to distress, a lack of stimulation, at one point offering to donate the children to medical science if a genetic condition was ever established, as well as leaving the children unaccompanied for significant periods. Finally, was her concern about his reluctance to accept support. She concluded her report by saying this: “B and C have profound and complex neuro disability. They are highly dependent on others for all aspects of their care and remain highly vulnerable to complications. As such, the level of parenting capacity required to meet their needs is extremely high and it is expected that any parent in that situation would require the help and support of a wide range of professionals, to give expert advice and opinion. Professionals working with families caring for such disabled children are generally highly skilled and experienced at working with families with a variety of different beliefs and levels of understanding and work hard to develop positive relationships with the families, regardless of any differences in opinion. However, in order to work in an effective way with families, professionals need to be able to expect a level of honesty and openness and to be satisfied that parents and carers have a reasonable understanding of key health issues. Where parental understanding or belief systems appear to be acting as a barrier to providing adequate care to highly vulnerable children, professionals must raise their concerns. Professionals working with F have had long standing concerns about his mental health and well being and how his strongly held beliefs are impacting on the care of his children and his ability to work with professionals. There has been real professional anxiety about the possibility of actual harm occurring, as a result of his beliefs and behaviour and about the potential future risk to the children, owing to any possible undiagnosed, untreated and unmonitored mental health condition. There is now additional witness evidence of incidents of a very serious nature, in which the children have been placed at high risk due to F’s behaviour. I strongly recommend that he should not be allowed any further unsupervised access to his children and that he undergoes an expert psychiatric assessment.”

 

The Judge made the following findings in relation to father

“iv) F holds strong and dogmatic views on the treatment of his children. Some of these views are paranoid and delusional. His insistence on the validity of these views impinges on the ability of the treating team to treat the children effectively. F is unable to exercise consistently rational judgments in relation to what care and treatments are in the children’s best interests, thus placing them at the risk of significant harm. The following are examples.

(i). C had a microchip deliberately implanted in his head, which is the cause of his fits.

(ii). B has been deliberately inoculated with harmful substances.

(iii). B’s fits at school are caused by allergens and bacteria.

(iv). The dose of Keppra may be poisoning B.

(v). An obsessive belief that Lamotrigine is the cause of B’s fits.

(vi). Both children have been implanted with bacterial pathogens and silver fragments in their brain.

(vii). A refusal to submit to psychiatric assessment by professionals from the National Health Service who were ‘the opponent’ and were ‘a criminal organisation’, who fabricate information.

(viii). M has gone to India to have children since it is safer. The NHS have made the children how they are.

(ix). The other paranoid beliefs, some of which I have mentioned, including the view that his emails are being hacked.”

The father claimed, though was not able to evidence this claim, that he had a Masters degree in Zoology.

However, given one of the later findings made was :-

“viii) F made unsubstantiated claims of expertise in science, microbiology, biology, immunology and pharmacology. He seeks to take on a medical role in relation to the children, over and above that which it is reasonable for a parent to claim in such circumstances. The following are specific examples:

(i). F required various medical equipment – a blood monitoring machine – which he had no expertise to utilise.

(ii). F dresses in a white coat and has been seen examining the children with a stethoscope in hospital.

(iii). F brought intravenous bags to administer fluids without seeking advice.

(iv). The use of an Abigail pump incompatible with the current feeding regime.

(v). Administering high flow oxygen without medical advice.

(vi). Administering privately acquired nebuliser.

(vii). Administering a significant quantity of potato and tomato soup, either orally, or via a nasogastric tube, without seeking prior advice.

(viii). F’s expressed intention to return to a natural feeding regime, should the children return to his care, which is contrary to professional advice, which will place the children at risk of harm.”

 

One can see why hospital staff were concerned. An unsubstantiated Masters in Zoology doesn’t really equip one to be walking round in a white coat in a hospital wearing a stethascope and examining children. I’d be pretty concerned if he’d been walking round a petting zoo examining rabbits.

Given that the parents had withdrawn from the process by going back to India (it seemed very likely that this had been because mother was pregnant and wanted to have the baby overseas and not return to the UK) the Judge had very little choice but to make the Care Orders sought.

 

  1. The court has therefore been presented with two options: a return to the parents or other family in India, or the making of a care order with a plan of long term foster care. The return to India was far from fanciful as an outcome. It is perfectly possible that, despite the findings the court has now made, that these children could go to India, could there receive suitable care and be cared for either by extended family or some institution, nevertheless maintaining the link with the birth family. The local authority says that the findings in fact do not permit a return to the parents and unless and until there is acceptance of those findings and an understanding as to how they can work with professionals in the future, that is simply not a possible outcome. Although the parents say they can access a lot of support, both from family and from professionals, there is no indication that they do not seek to care for the children themselves. Indeed, they seem to be saying that they intend to care for them. Whatever it is, in any event, it is all wholly unassessed and that is not because the local authority has not tried to assess it, but because of the parents’ conduct throughout this litigation.
  2. The local authority is supported by the guardian in its entirety over the inability of a plan to place the children with the parents. Counsel for the parents frankly accept that they cannot presently advance the parents as carers, given their responses to the litigation.
  3. The only other contention is long term foster care. There is, literally, no other alternative. The local authority has identified a permanent foster parent who, with the support of 24 hour professional care, can care for the children at their present home, which was for a time at any rate the home of the family, and which is adapted and fully equipped to meet the children’s needs. Their needs will be met in accordance with the care plan, if approved, that is to say medical needs, a multi-agency care team, schooling, personal education plan, as well as universal services.
  4. The children’s guardian raised an issue as to whether Children and Families Across Borders should nevertheless embark upon assessment in India, as the present social worker appeared to be suggesting in her final statement, but withdrew after the discussion we had about it. Because, unless and until there is a plan, or at least a proposal of a plan, that could meet the children’s needs, it would, I am satisfied, be an academic exercise, despite, as I say the suggestion that it should be proceeded upon, in any event.
  5. From the court’s point of view, nothing would give greater pleasure than to be able to reunite this family, scattered across two continents. However, the findings that the court has made, are serious and, absent them being addressed by the parents, or them preparing a care regime where safety would be ensured by others who have made themselves available and been assessed, it seems to the court that it would be completely unrealistic and disproportionate to embark upon an assessment in what would be a vacuum. If the parents seek to oppose the order actively, they can of course apply to discharge any care order made, explain their responses to the findings and offer properly supported proposals, which are capable of investigation and assessment. It seems to the court that, at the present time, they are in denial and they have not, despite on the face of it putting forward long lists of names, advanced proposals which are capable of being exposed to such a process.
  6. By reference to the welfare checklist, the wishes and feelings of these children would be very difficult to ascertain. I accept they have a relationship with their father, in particular, which is of value to them. Set against that, they are well and building good relationships and thriving within their limitations. Their needs and characteristics are central to this case: they are complete, profound and life long, as well as life limiting. Any change in circumstances for them would be very hard to manage but, if all other factors were in place, no doubt could be managed. The risk of harm is, in the court’s judgment, profound. The findings go directly to the welfare question and there is simply no understanding as to why F, in particular, but M to an extent, have behaved as they have. It turns directly on their capability, which is impossible to assess, because neither has engaged meaningfully in the final analysis, so it is really very difficult to measure.
  7. Looking at the range of powers available to the court, they are in truth extremely limited.
  8. This is a desperately sad case, where, whatever their motives, the two children with whom I am concerned, have been effectively abandoned. I am satisfied that on an application of the welfare checklist and by reference to the Article 8 rights of parents and children, the only order that presently meets their needs, is a care order. So I approve the care plan for long term foster care. I note that the local authority will seek to facilitate regular contact, should the parents come. Should they choose not to, they will endeavour to facilitate Skype contact. Whilst it is of course for the local authority to promote contact for children who are in their care, it is also incumbent upon the parents to make themselves available and demonstrate a commitment so that any contact that takes place can be meaningful.
  9. I wish both children and their carers well. I very much hope that the parents, faced with the enormity of what they have done, can and will reflect and, in time, at any rate, engage in a way that might yet give these children a chance of life within their family.

 

 

 

 

[Later edit – very sad postscript is that the health of one of the children deteriorated still further and the Hospital sought a declaration from the High Court that treatment cease   http://www.bailii.org/ew/cases/EWHC/Fam/2016/535.html    The parents represented themselves in those proceedings, and stood by their views that the children had been made unwell by the hospital and that they should be sent to India forthwith]

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Girl I wanna make you SWET, SWET till you can’t SWET no more

Posted on February 26, 2016 by suesspiciousminds

 

Seriously? Seriously?

The Social Work Evidence Template gets amended, in a press release on a Friday, and tells practitioners that it is to be used from Monday. Yes, this coming Monday.

The new templates should be used in new cases from Monday, 29 February onwards.

 

Good luck with that.  Haven’t even had time to read it yet to see what I like or don’t like about it.

Again, the press release claims that the President has endorsed it  (Frankly, I like to see the President himself saying that, because I find it rather tricky to imagine that he ever read a statement in the SWET format and said “Hey, this is great!”   – in my mental picture here, he uses the same voice as Casey Kasem from America’s Top Twenty / Shaggy from Scooby Doo)

 

[And also there is some form for claiming that the President has endorsed some guidance, only later to watch aghast as he distances himself from it in a judgment]

http://www.familylaw.co.uk/news_and_comment/updated-template-to-help-social-workers-prepare-for-court-launched

 

 

 

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Conference 2 – in Birmingham no-one can hear you scream

Posted on February 18, 2016 by suesspiciousminds

The Transparency Project are once again involved in a multi-disciplinary conference about the child protection system – entitled “The Child Protection System – Where do we go from here?”.

This conference, is the second held by its organisers and is intended to be a genuine conversation between professionals of different disciplines AND those whose lives the court and child protection system actually affects. It is being held on 3 June in Birmingham and will be  More Amazing than Being Bruce Wayne*. The conference will be opened by DJ Gailey, and will involve all sorts of other interesting and challenging speakers and participants (Maggie Siviter, Clare Fenton-Glynn, Dr Lauren Devine, Brid Featherstone, Louise Tickle, Lucy Reed – hopefully some real parents too, as they were so good last year).

Do take a look at the information, circulate it to colleagues and friends, tweet it like crazy and share it on all your weird facebook yahoo google groups – and book a place!

*the author is not responsible for any difference of opinion between us about what constitutes “More Amazing than Being Bruce Wayne”     – frankly, I may be overselling it, because he has a butler who is also like a surgeon, his boring day job is dating models – that’s the part of his life that is LESS COOL and that he finds less enjoyable and he (sshhh) is secretly Batman.

Astute blog-readers may have picked up on the fact that I have largely stolen this from Lucy Reed’s post due to pressure of time. Hers had slightly less Batman references, which means that mine is the winner.

 

http://www.qwantz.com/index.php?comic=1502

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Lawyer slaps Judge

Posted on February 18, 2016 by suesspiciousminds

 

Shame on all of you lawyers who just let out a wistful sigh. Shame on you. Shame.

This actually happened in India.  [And not, as was my first thought on hearing that this had happened, in Liverpool]

A Jaipur lawyer, Prem Surana, had slapped a magistrate in the open court and used abusive language as the magistrate disallowed his application for exemption from appearance and issuing a non-bailable arrest warrant against the advocate, an accused in a criminal case.

http://timesofindia.indiatimes.com/india/Slapping-a-judge-is-slapping-justice-delivery-system-SC/articleshow/19791742.cms

It turns out that there are consequences for this, and said lawyer is now in custody for Contempt of Court. I do have to admire his chutzpah for offering instead an undertaking of good behaviour for five years.  [I absolutely love that he was only prepared to commit to not slapping Judges for FIVE years, rather than indefinitely]

For once, I’ve beaten Lowering the Bar to this story…

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Abuse of power

Posted on February 4, 2016 by suesspiciousminds

 

I came across this Court of Appeal case this evening.

 

Director of Legal Aid Casework v the Queen on the application of Sunita Sisangia 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/24.html

It all hinges on whether wrongful arrest is an ‘abuse of power’ and thus covered by the provisions of LASPO as something you can get legal aid to sue for. It is all a bit dry and technical, but where it ends up is the Court of Appeal having a legal geek out about words and phrases that can’t really be tied down to a definition, but you know them when you see them.

I had not realised that things as simple as ‘building’, ‘income’ ‘trade’ ‘invention’ and ‘gaming’ come into that category. And so, we learn today, does ‘abuse of power’

 

[The fact that our tax law can’t define income might explain why Google and Facebook have such meagre taxbills… thank you, I’m here all week. Try the chicken.]

 

  • In my judgment the fact that a definition of “abuse of position or power” of universal application cannot be extracted from the authorities does not mean that the term defined can be ignored. It is equally possible, indeed probable, that Parliament’s intention was that it should be left to the courts to develop what the phrase means. In other areas of the law this is clearly so. For example in the field of taxation Parliament has never attempted to define “income” or “trade”. In the intellectual property world neither Parliament nor the drafters of the European Patent Convention have ever tried to define the word “invention”. As Pumfrey J said in Shoppalotto.com Ltd v Comptroller General of Patents, Designs and Trade Marks [2005] EWHC 2416 (Pat) 396, [2006] RPC 293 at [6]:

 

“A moment’s thought will show that it is not possible to provide an exhaustive definition of “invention”. The Convention does not attempt to interpret the word but provides a list of things which are excluded, whether or not they would be regarded as inventions.”

 

  • Likewise in the case of a “building”. As Byles J said in Stevens v Gourley (1859) 7 CBNS 99:

 

“The imperfection of human language renders it not only difficult, but absolutely impossible, to define the word “building” with any approach to accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it.”

 

  • The natural meaning of the term defined may be its meaning in ordinary discourse, or it may be its meaning as a legal concept. This is illustrated by McCollom v Wrightson [1968] AC 522 where the meaning of “gaming” as a defined term in section 55 of the Betting, Gaming and Lotteries Act 1963 was coloured by the meaning given to the word “gaming” by the common law.
  • The fact that “abuse of position or power” cannot be given a hard-edged definition does not mean that the concept itself is meaningless. A number of judges have, in different contexts, explained what they perceived to be the ingredients of an abuse of power. In R (Puhlhofer) v Hillingdon LBC [1986] AC 484, 518 Lord Brightman (with whom the other Law Lords agreed) said obiter:

 

“The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity.”

 

Given that it is the twentieth anniversary of the film “Trainspotting”, it tickled me that one of the lead authorities on abuse of power happens to be called Begbie

 

 

 

“[76] Abuse of power has become, or is fact becoming the root concept which governs and conditions our general principles of public law. It may be said to be the rationale of the doctrines enshrined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, of illegality as a ground of challenge, or the requirement of proportionality, and of the court’s insistence on procedural fairness. It informs all three categories of legitimate expectation cases as they have been expounded by this court in R v North and East Devon Health Authority, ex parte Coughlan [2002] 2 WLR 622.

[77] The difficulty, and at once therefore the challenge, in translating this root concept or first principle into hard clear law is to be found in this question, to which the court addressed itself in the Coughlan case: where a breach of a legitimate expectation is established, how may the breach be justified to this court? In the first three categories given in Ex parte Coughlan, the test is limited to the Wednesbury principle. But in the third (where there is a legitimate expectation of a substantive benefit) the court must decide ‘whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.'”

You wee radge...

You wee radge…

 

The Court of Appeal conclude that you can’t tie down abuse of power to a definition.

 

As I have said it is a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is.

 

I might offer this, as an example of abuse of power that is pretty unmistakeable…

 

‘Recommend me or you’ll never see your children again’: social worker struck off for abuse of power

 

A social worker who threatened foster carers with the loss of children in their care if they did not describe him as ‘supportive’ has been struck off the register.

A Health and Care Professions Council (HCPC) panel heard the Peterborough social worker believed the foster carers, who cared for the younger two of three siblings, had made a complaint about him.

He also told the birth mother of all three children, cared for by two sets of foster carers, to contact his manager and make a complaint about the foster carers looking after her first child.

Threats

He told her to tell his manager he was a “brilliant social worker”, adding that if she reported him to the police, she would “never see her children again”.

He called the mother on her mobile phone two or three times a week without any professional reason to do so, called her overweight and told her if she lost weight she would “stop having epileptic fits”, the HCPC panel reported

 

Yes, that’s what abuse of power looks like.

 

begbie 2

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DFE report on Special Guardianship reports… my report

Posted on January 7, 2016 by suesspiciousminds

 

There has been some concern about the increase in the numbers of Special Guardianship Orders made, notably post Re B-S, and whether they are being made because Courts are sure that they represent the best outcome for a child in any particular case or whether they are sometimes ending up as rushed jobs because one can’t rule them out on a “nothing else will do” test.    [As with almost anything in Family Justice, whether you think an increase or decrease in any particular outcome is a good or bad thing depends entirely on your perspective. ]

The DFE called for responses on this  to consider whether there was  a problem and what solutions might be. They have now published their report.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/487243/SGR_Final_Combined_Report.pdf

 

 

 

In summary, the review has found that:

  • The majority of SGOs are made to carers who have an existing relationship with the child and who, with some appropriate support, intend to and will be able to care for the child until 18;
  • There is a significant minority of cases where the protective factors we expect to see in each case – described above – are not in place. In particular, the following issues have been found:
  • Rushed or poor quality assessments of prospective special guardians, for example, where family members come forward late in care proceedings; where there has been inadequate consideration early on of who might be assessed; when assessments have been carried out very quickly to meet court timelines; or when the quality of an initial assessment is challenged, requiring the reassessment of a special guardian.
  • Potentially risky placements being made, for example, where the SGO is awarded with a supervision order (SO) because there remains some doubt about the special guardian’s ability to care for the child long-term. In the Research in Practice case file analysis, almost half of the 51 cases considered had a SO attached to the SGO. This is particularly concerning where the child is not already living with the guardian, or where there is no or little pre-existing relationship. 70% of respondents to the Call for Evidence said that the assessment process for determining whether a prospective special guardian is suitable could be improved.
  • Inadequate support for special guardians, both before placements are finalised, and when needs emerge during the placement, for example, where the special guardian has not received the information or advice to make an informed choice about becoming a special guardian, or where they receive little or inadequate support post order to ensure they can support the child’s needs. 72% of respondents to the Call for Evidence said that advice and support should be provided to children, special guardians and birth parents before, during and after the award of special guardianship.

The review indicates that the challenges identified with SGOs occur at different points in the care process, but an assessment that lacks quality at the start is a major contributor to the issues highlighted above. It is vitally important for the local authority analysis to be robust, supported by strong and intelligent evaluation. SGOs are permanence orders, awarded on the expectation that the child will remain in that placement until he or she is an adult. For this reason, a sound prediction of the child’s long-term welfare in that placement should sit at the heart of the assessment, and form the basis for the final care plan.

 

Next steps

 

 

As set out above, we need to ensure that children living under an SGO are safe, and that the placement gives them the best chance of good outcomes in their life. To be confident of this, children deserve to be assured that there is a robust assessment, that decision making is evidence-based, that the placement is assessed as being likely to last until 18, and that appropriate support will be available. The issues identified by the review suggest that these principles are not consistently followed.

Given this, we intend to:

  • Strengthen the assessment process, to ensure that assessments are more robust and more consistent for all children, and that they are based on the fundamental principle that the person being assessed is capable of caring for the child for the whole of that child’s life to adulthood;
  • Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship; and
  • Consider what support should be available to children living under special guardianship arrangements

 

 

The assessment process

Immediately, the Government will amend regulations and statutory guidance to require that the local authority report to the court on potential special guardians includes:

  • the capacity of the guardian to care for the child now
  • and until the child is 18
  • the prospective special guardian’s understanding of the child’s current needs and likely future needs, particularly in light of any abuse or neglect the child has previously suffered, and their ability to meet those needs
  • the prospective special guardian’s understanding of any current or future risk posed by the child’s birth parents and their ability to manage this risk
  • an assessment of the strength of the previous and current relationship between the child and the prospective guardian

 

 

 

They then say that they intend to publish further proposals in the New Year

 

The critical things are obviously what precisely is going to go into the Regulations that will be published “immediately”, and very critically whether the additional demands on the authors of the report will be counterbalanced by a statutory time period in which they should be carried out.

I’ve seen plans and press releases from Central Government before that don’t quite materialise into actual nuts and bolts of law.  For example, Simon Hughes spoke all around the country and got reported in the national press relentlessly that the Government would be introducing proposals to give all under 10s a ‘voice’ in court proceedings about them.  How this would differ from the voice that they currently have through the Children’s Guardian was never explained. Some people read it thinking that all children in all cases would attend a Court hearing always, some read it that some children would be allowed if they asked, some that children would all meet the Judge but not come into Court, some that children would be able to write a letter for the Judge (that everyone else would read? that nobody else would read? that some people would read?)

But no matter how often I searched and asked, nothing concrete as to what those proposals would actually be ever emerged.

And it now  seems to have been kicked into the long grass, which is so handy for those in Government. If someone ever went into the long grass behind Parliament armed with a scythe  (insert your own Aiden Turner picture here if you wish) they’d turn up all manner of exciting things.

 

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Humblebrag thanks

Posted on December 24, 2015 by suesspiciousminds

 

The blog just clocked up a quarter of a million visitors for the year , which is about a fifth more than last year

[And if

Click to access hm_-attorney_general_v_conde_nast_publications_limited_final.pdf

is accurate,  I get about half as many visitors a month as a copy of GQ magazine sells in a month. So if you are Rolex, Aston-Martin or Armani and you want to place some adverts, I’m willing to think about it ]

Given that when I started it in February 2012, I wasn’t sure whether anyone would ever read it (and for about 2 months that was a fairly accurate prediction), and whether I would run out of stuff to say very quickly  (nearly 800 posts later, it turns out not), that’s a very pleasant surprise.

 

Thank you very much to everyone who has come to the website, I hope you’ve found something of use, or something of interest, something that has helped or something that has made you think. Even if it made you think about how much you disagree with the decision I’ve been writing about, or my analysis of it.

 

I’ve just been reading Nick Bostrom’s book “Superintelligence”*   and he says something lovely  in his acknowledgements section, which I will gladly steal.  Find “book”, Replace “blog”…

 

“Many of the points made in this book are probably wrong”

 

Thank you for visiting. Please, come again.

 

 

(*which is great. Somewhat terrifying, but great)

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Court in a trap

Posted on December 24, 2015 by suesspiciousminds

 

This is not at all Christmassy, but it is one of my favourite little law stories.  It involves the principle of a convertible argument  – an argument that is very strong, but can be reversed and is just as strong for the other side.

 

It involves Ancient Greece, and a man named Protagoras (not the triangle guy). Protagoras was a philosopher but also a lawyer, and he made part of his living by teaching students in law.

A young man, Euathlus, approached Protagoras and asked Protagoras to teach him law.  However, Euathlus had no money to pay for this tuition.  They agreed that Euathlus should pay Protagoras when Euathlus won his first case in Court.

The training was completed, and Euathlus was giving clients advice but not appearing in Court. Time passed and it became apparent to Protagoras that Euathlus was never intending to take a case on in Court, and so he would never be paid.

 

Protagoras went to Court himself, saying that Euathlus should be ordered to pay him. His argument was short and beautiful  (one could even say “sophisticated”, given that Protagoras was a Sophist)

“Let me tell you, most foolish of youths, that in either event you will have to pay what I am demanding, whether judgment be pronounced for or against you. For if the case goes against you, the money will be due me in accordance with the verdict, because I have won; but if the decision be in your favour, the money will be due me according to our contract, since you will have won a case.”

 

Euathlus had learned from the best though, and replied

“I might have met this sophism of yours, tricky as it is, by not pleading my own cause but employing another as my advocate. But I take greater satisfaction in a victory in which  I defeat you, not only in the suit, but also in this argument of yours. So let me tell you in turn, wisest of masters, that in either event I shall not have to pay what you demand, whether judgment be pronounced for or against me. For if the jurors decide in my favour, according to their verdict nothing will be due you, because I have won; but if they give judgment against me, by the terms of our contract I shall owe you nothing, because I have not won a case.”

 

 

 

The jurors simply adjourned the decision indefinitely, probably because they recognised a Paradox when they saw one….

 

[Personally, I would make Euathlus pay, but it is damn difficult to construct a judgment to make it unappealable]

 

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