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Empty children’s home

Another day, another High Court case about an extremely vulnerable child with no suitable accommodation. Honestly, i could write four of these posts a week.

Nottinghamshire County Council v LH (A child) (no 2) 2020

  1. On 23 September 2021 I refused to exercise the inherent jurisdiction to authorise the continued deprivation of the liberty of LT, a 12 year old child who was being confined in an acute psychiatric admission unit for adolescents. She does not have a psychiatric condition requiring hospitalisation. She is a looked after child but the local authority had not been able to find anywhere else in the whole country to accommodate her. Evidence before the court demonstrated that it was harmful to LT for her to remain on the unit. The only reason the local authority sought to keep her on the unit was that it had been unable to find any alternative placement. I had previously been prepared to authorise the deprivation of LT’s liberty on the unit whilst urgent efforts were made to find alternative accommodation but by 23 September 2021 LT had been on the unit for over a week. She had just come out of isolation (as a Covid-19 precautionary measure) and it was anticipated that this would, if anything, increase the distress to her. Still no alternative accommodation had been identified. I refer to my judgment Nottinghamshire County Council v LH, PT and LT 
    [2021] EWHC 2584 (Fam).

Really sadly, within the psychiatric unit, LT is by far the youngest patient and because of her huge needs she is being taunted by other patients as a result of the attention she gets from staff.

The Local Authority found a resource for her, which was an empty registered children’s home. They did not have staff with psychiatric training to staff it, so have had to hire and train staff specifically to care for LT.

The local authority’s plan now is to apply for a Secure Accommodation Order. However, according to evidence put before the court from Mr Edwards, Director of Youth Families and Social Work at the local authority, there are currently approximately 50 children nationally on a waiting list for secure accommodation and those with behaviours such as LT’s often remain towards the back of the queue. Hence, he advises, it is “highly unlikely that this will be a viable solution for LT.” Accordingly, as what Mr Edwards refers to as “the least bad immediate alternative available”, the local authority proposes to transfer LT to the W Children’s Home from Monday 27 September 2021. This is a registered children’s home which is currently empty after previous residents have departed. It can accommodate up to four children but for so long as LT is there, she will be the only resident. The staff on site are unqualified and have no experience of managing children who self-harm but the local authority plans to rely on agency nurses, using the same agency as currently provides nurses to work alongside the NHS staff to care for LT on the psychiatric unit. On handover, the Trust will provide advice and materials about managing LT to assist those caring for LT at the new placement.

They have done remarkably well to put this together, but it is a shameful state of affairs that in our country we don’t have something proper in place for all of the children like LT, and bespoke placements are having to be put together out of thin air. I don’t know what the solution is, but a starting point would be building units staffed by medically trained professionals aimed at managing and alleviating the problems of young people like LT – at present, they don’t fit well into adult psychiatric units or into children’s homes – we need specialised resources dedicated to helping these most troubled children.

  1. Mr Edwards says that the decisions he has now had to make in respect of LT are some of the most difficult he has had to make in his professional career of over thirty years. I fully acknowledge the extreme difficulties faced by all those involved in these decisions, and in caring for LT. This case demonstrates the consequences of the national shortage of secure and other suitable accommodation available for vulnerable children. It has caused avoidable harm to this child, anguish to her mother, stress for numerous professionals and carers, disruption to other vulnerable children and young persons, and avoidable expense to the NHS and the local authority. I direct that a copy of this judgment is provided to some of those who might be able to address the root cause of the problems this case demonstrates: the Children’s Commissioner for England; the Secretary of State for Education; the Minister for Children; the Chair of the Care Review; the Parliamentary Under Secretary of State in the Ministry of Justice, Lord Wolfson QC; the Chief Social Worker; and Ofsted. It will join a number of similar cases brought to their attention.

Sadly, the way the news cycle and political attention work, I’m afraid that it will take a real tragedy to open eyes to the desperate need for an urgent solution to these cases. Everyone involved in these cases is working tirelessly and under huge pressure to make sure that the tragedy does not involve the case they are working on, but it is no way to run a system.

Intercontinental telepathic love snails

Or “Snail mail”

It has been a while since this blog has given you something that is just weird and has no law implications, but as I am on leave this week, and I’ve learned about the Pasilalinic-sympathetic compass, I thought that I would like to share it with you.

In the mid 19th Century, a French occultist named Jacques-Toussaint Benoît was giving thought to the issue of communication over long distances. The telegraph had recently been invented, but the laying of transatlantic cables was proving arduous and the salt in seawater was rotting the cables. Something better needed to be invented, and Benoit was nothing if not inventive.

A hundred years earlier, some Rosicrucians had devised the system of the sympathetic alphabet – two people would have a portion of skin removed from one another’s arms, and transplanted onto the other, tattooing letters onto the new piece of skin, and considered that they could communicate remotely by pricking the desired letters on the tattooed portion, causing a sensation in the other person’s arm.

If you’re thinking – hmm, that sounds as though it might not actually work, buckle up buckaroo, because we’re just getting started.

Benoit’s starting point for creating a device that would allow two people to communicate over long distances was, naturally, the principle that once two snails have been in love they remain connected for life. Whatever happens to one snail would thus occur to the paired snail.

And of course, once you have thought about this principle, it is a small step to begin construction of a device involving twenty four snails, a ten foot scaffold, zinc bowls and copper sulphate. One person has one device, consisting of twenty four snails, each having mated with their pair that belongs to the other person’s device. (each snail corresponding to a letter of the alphabet – moving snail A on contraption one would cause snail A to be propelled on contraptation two – because once the snails have been in love, they are linked forever no matter what the distance, remember?), and so you could painstakingly spell out a message on what was effectively a giant snail typewriter. 24 rather than 26 because French was the language being used and they only use the letters W and K for words imported from other languages)

Benoit would need funding though, and for that he approached the owner of a gymnasium, Monsieur Triat, who I can only presume was blessed with the twin assets of being both solvent and gullible. Benoit told Triat that he would just need to acquire a few pieces of wood to make the invention work, and Triat allowed him to have free food and lodgings whilst the invention was perfected.

A year later, Triat became impatient (I’m not sure impatient is the mot juste there, it seems extraordinarily patient to have given this scheme more than 20 seconds ) and wanted to see the machine and have a demonstration.

Benoit initially stalled (hmmm, wonder why) but had to acquiesce and finally on 2nd October 1850 Benoit invited both Triat and a journalist Jules Alix to observe the machine and to demonstrate it. Benoit explained that at this point, he was in regular snail conversation with a collaborator in America, but for the purpose of this demonstration he had constructed two machines in the same room.

At one end of Benoit’s apartment rested a huge wooden frame, a large horizontal disc suspended beneath. In the disc were twenty-four holes, each containing a zinc dish lined with a cloth soaked in copper sulphate solution. The cloth was fixed by a copper blade, and in the dish, secured by glue, sat a living snail. Against each dish was written a letter of the alphabet. To transmit the letter, the operator would touch the snail in the dish, causing a sympathetic reaction in the corresponding snail in the other half of the apparatus – a device of identical construction at the other end of the room

Benoit explained that Triat would be at machine one, and would convey a word through the manipulation of the snails, and that Alix would be at the other. Triat asked if the machines could be separated perhaps through a curtain and Benoit explained that this was sadly not possible.

During the demonstration, to supervise closely and ensure that it was being done properly, Benoit stood very closely to the machines and walked between the two of them. Despite this less than perfect test condition, the word transmitted was still wrong.

Triat was very sceptical, but Alix wrote a glowing review for La Presse, even suggesting that this communication method, once refined, might even be worn by ladies as an accessory wrist band allowing them to communicate and look stylish – with 24 snails wrapped around their wrists.

On 27 October a glowing article appeared in La Presse: `…snails which have once been put in contact, are always in sympathetic communication. When separated, there disengages itself from them a species of fluid of which the earth is the conductor, which develops and unrolls, so to speak, like the almost invisible thread of the spider, [but] the thread of the escargotic fluid is invisible as completely and the pulsation along it as rapid as the electric fluid.’

Triat demanded a second demonstration, under properly strict conditions. It is almost as though he suspected that someone walking to and fro between the two devices could have just been conveying the word that was being transmitted though the medium of a whisper. Benoit agreed and a date was set.

But not kept. Benoit disappeared, and the Pasilalinic-sympathetic compass was never put into mass production.

During the 1871 barricades of Paris, Marquis Rochefort floated it as an idea for communication. He had previously rejected ideas such as ‘dropping hammers out of hot air balloons on our enemies’ and ‘release lions from the zoo to attack our enemies’ as outlandish, but something in the lovelorn telepathic snail telegram struck a chord in him.

There’s a very good episode on this on the Ridiculous History podcast, and also a great Atlas Obscura article, here

Psychic Snail Sex Couldn’t Replace the Telegraph, But One Frenchman Sure Tried – Atlas Obscura

and this one

CABINET / The Internet of Snails (

“As shameful as this one is”

A case like this has been coming for a while. I’ve been writing for a long time about the crisis in welfare secure beds and the tendency as a result of chronic shortages in such beds for the High Court to be asked to approve placements exercising powers that are all but secure accommodation in name (and sometimes even greater ones) when the units are not Ofsted-approved for such secure accommodation.

We have finally reached a point where a High Court Judge, even faced with no other option for the child, decided that approval of the existing regime under inherent jurisdiction would be wrong, and indeed a breach of the child’s article 3 rights.

Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam) (14 July 2021) (

Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The parens patriae inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.

We know that the Supreme Court are to hear an appeal in relation to secure accommodation, Re T. Even if they are to go far further than I could envisage them doing and declare that the Government is breaching the article 3 rights of extremely vulnerable children by not providing sufficient welfare secure beds (and i really don’t think they will go that far), this isn’t a short-term fix. Even if they did that, and the Government accepted it and did something about it, planning, building, approving and staffing the twenty additional secure units that the system really needs is going to take years.

Why is demand for welfare secures so high? Well, in part because brand new concerns have arisen over the last ten years. Nobody was welfare securing children to protect from radicalisation, county lines or systematic grooming ten years ago. The problems with mental health and mental welfare of children has also increased considerably in that time. The favouring by units of criminal beds has also been a fairly recent phenomenon.

In looking at this case, I will describe some of Y’s problems first:-

“On 3 July 2021, Y attempted to strangle himself at the residential placement using a phone charger cable. Y was conveyed to the Emergency Department at the [named hospital] where he presented as agitated and combative on arrival. The history given at the Emergency Department was that care home staff had found Y distressed and threatening to kill himself. He had a screwdriver which he had used as a tool to self-harm and was blue in the face with a cord around his neck which they removed. Y was said to have had fought out against them and assaulted them by spitting and hitting them.

On arrival of the CAMHs practitioner at the emergency department Y was in full restraint with several police officers and staff. His legs were strapped together and his face covered with a guard to prevent him from spitting and biting. On the advice from the CAMHS practitioner, Y was given IV lorazepam following a discussion with the psychiatric consultant, Dr Amdan. Y was admitted to a paediatric ward.

The [named hospital] is not CQC registered to provide mental health care and does not have staff trained to provide physical restraint. During the course of the hearing Ms Davies on behalf of the hospital Trust reiterated that staff on the ward do not have the training or expertise or manage the challenging behaviour that is exhibited by Y and no training in the deployment of physical restraint techniques. Within this context, the local authority agreed to provide trained staff to undertake these tasks. Ms Davies contends however, that there have been difficulties with both the attendance of and the qualifications of the staff provided by the local authority. This has resulted in the Trust having to make frequent calls to the duty social worker in relation to the care provision for Y.

On 4 July 2021 at 3pm Y absconded from the ward following a further incident in which he had become aggressive and combative with staff. Y was recovered to the ward by police, social workers and security staff. He was returned to the ward in handcuffs. Upon removal of the handcuffs, Y crawled under the hospital bed and attempted to bring the bed mechanism down on himself. He was pulled out from under the bed by police and restrained on a mattress situated on the floor. The handcuffs were re-applied by the police at this point. Following this, Y had several incidents of holding his breath”

The current staffing ratio for Y is five to one. He is not able to have a proper bed, a pillow or a sheet. When he showers, the door to the shower has been removed, affording him no privacy. He is having regular intravenous tranquilsers administered, at the maximum dosage that doctors consider safe.


It is impossible to read any of this without feeling a deep sense of shame that this country has been allowing a damaged 12 year old boy to be treated in this way.

“HHJ Singleton QC extended the order authorising the deprivation of Y’ liberty on the hospital ward, the restrictions authorised comprising 5:1 supervision on the ward, the use of physical restraint and the use a fast acting tranquiliser administered intramuscularly if efforts to gain his co-operation proved impossible. HHJ Singleton QC expressly deprecated the use of handcuffs on Y as a method of restraint.

Y currently remains contained on the ward in a sectioned off area. The doors to the paediatric ward have been securely shut and the area cleared of all movable objects. The door to the shower in which he washes himself has been removed, and therefore Y has no privacy at all when showering or dealing with other aspects of his hygiene. He is at present sleeping on a mat on the floor and he is unable to have a pillow, or a sheet due to the risk of self-harm and suicide. Y is still being prescribed daily intra-muscular Olanzapine, which is an anti-psychotic, the hospital taking the view that without this chemical sedation Y’ behaviour would be simply unmanageable. Y does not socialise. In stark contrast to every other case of this nature that has recently come before this court (none of which involved placement on a hospital paediatric ward rather than in a residential setting), neither the evidence contained in the bundle nor the submissions made by the advocates identifies any positives with respect to Y current parlous situation, whether with respect to improvements in his behaviour, his relationships with staff or otherwise. His assaults on staff are frequent, violent and cause injuries to both Y and the staff.

The primary purpose of a paediatric hospital ward is to treat children, not to deprive them of their liberty by means of locked doors, sparse belongings and chemical restraint. There is now no clinical basis for Y to be on the hospital ward and he is medically ready for discharge. There is therefore also now no connection at all between purpose of the hospital ward on which Y is held and the deprivation of Y’ liberty. Within this context, Y currently remains contained on the ward in a sectioned off area that is not designed to restrict the liberty of a child but rather to provide medical treatment to children. The doors to the paediatric ward have been securely shut and the area cleared of all movable objects. Accordingly, not only is there no connection at all between purpose of the hospital ward on which Y is held and the deprivation of Y’ liberty, but the arrangements that are in place to restrict his liberty in that setting are, accordingly and necessarily, an entirely ad hoc arrangement that is not, and indeed can never be, designed to meet his needs.

The door to the shower in which Y washes himself has been removed, and therefore Y has no privacy at all when showering or dealing with other aspects of his hygiene. It must be beyond reasonable dispute that, whilst aimed at preventing him from harming himself, this is a grossly humiliating situation for a 12 year old child to be in and one that presents him with an invidious choice between embarrassment and the maintenance of personal hygiene. It would likewise appear that Y has no means of ensuring privacy on the ward when getting dressed and undressed. Added to this indignity, Y must at present sleep on a mat on the floor and he is unable to have a pillow, or a sheet due to the risk of self-harm and suicide. Y does not socialise. It is unclear on the evidence before the court how Y takes his meals or how he maintains any form of daily routine more generally. Once again, these ignominies have their roots in the fact that a paediatric hospital ward is simply not equipped to undertake the task that circumstance, and an acute lack of appropriate resources, has assigned to it.

I accept the submission of the Children’s Guardian that a further consequence of the paediatric hospital ward being a wholly inappropriate venue for the deprivation of Y’ liberty is that there is an increased risk that the restrictions authorised by the court as lawful risk being regularly exceeded in an attempt to manage Y in an inappropriate setting. There is indeed evidence that this has taken place in circumstances where, for example, Y has been deprived of a bed, pillow and blankets, where on occasion physical restraint is taking place by staff who are not properly trained and, whilst HHJ Singleton QC authorised the use of “fast acting tranquilisation” as a means of chemical restraint when efforts to gain Y’ consent fail, where the current regime of chemical restraint cleaves closer to that of constant sedation. This is not the result of malice or negligence but simply of an increasingly desperate attempt to contain Y in a situation that is not designed, in any way, for that purpose.

Further, and within this context, the fact that the hospital ward is a wholly inappropriate venue for the deprivation of Y’ liberty forces medical staff to step outside the normal safeguards that are put in place in that environment. As I have noted, Y is still being prescribed daily intra-muscular Olanzapine, which is an anti-psychotic, the hospital taking the view that without this chemical sedation Y’ behaviour would be simply unmanageable. However, as Dr SH has made clear, a medication plan is not in place nor set out for the Trust to follow, the Trust is not CQC registered to provide mental health services, paediatricians on the ward are not experienced at prescribing anti-psychotics and other psychiatric medication to patients and, in that context, the only guidance available is that provided by the Alder Hey medication protocol. All these factors in my judgment increase the risk to Y of being harmed by the restrictions that are in place.

In stark contrast to every other case of this nature that has come before this court, neither the evidence contained in the bundle nor the submissions made by the advocate identifies any positives with respect to Y current parlous situation, whether with respect to improvements in his behaviour, his relationships with staff or otherwise. His assaults on staff are frequent, violent and cause injuries to both Y and to the staff who are doing their utmost to care effectively for him. In this context, I accept the submission of Mr Jones that whilst the arrangements in cases such as Lancashire v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam) or Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam) were sub-optimal, and in certain respects inappropriate, Y’ current situation is orders of magnitude more severe having regard to the matters that I have set out above.

Having regard to the matters set out above, I cannot in good conscience conclude that the restrictions in respect of which the local authority seeks authorisation from the court are in Y’ best interests, having regard to Y’ welfare as my paramount consideration. Indeed, I consider that it would border on the obscene to use the protective parens patriae jurisdiction of the High Court to authorise Y’ current situation. I am further satisfied that this conclusion is not altered by the fact that, as at 12 noon yesterday, there was no alternative placement available capable of meeting Y’ needs. In this case, I consider that the current arrangements for Y are so inappropriate that they constitute a clear and continuing breach of his Art 5 rights. Within this context, the fact there is no alternative cannot by itself justify the continuation of those arrangements. All the evidence in this case points to the current placement being manifestly harmful to Y. Within that context, the absence of an alternative cannot render what is the single option available in Y’ best interests and hence lawful.

In circumstances where I am satisfied that the current arrangements for Y constitute a breach of his Art 5 rights, it is not necessary for me to go on to address the submission that Y’ Art 3 right not to be subjected to torture or to inhuman or degrading treatment or punishment has also been breached in this case. A given situation will cease to be in a child’s best interests long before that situation meets the criteria for a breach of Art 3 of the ECHR. However, I would observe that, whilst the threshold is a high one, there is considerable force in the argument that Y’s current situation as described above breaches Art 3 in circumstances where treatment is inhuman or degrading for the purposes of Art 3 if, to a seriously detrimental extent, it denies the most basic needs of any human being, particularly were Y’ current parlous situation allowed to persist for any longer.

The foregoing conclusions of course lead inexorably to a stark question. What will now happen to Y? The answer is that local authority simply must find him an alternative placement. Y is the subject of an interim care order and therefore a looked after child. Within this context, the local authority has a statutory duty to under Part III of the Children Act 1989 to provide accommodation for Y and to safeguard and promote his welfare whilst he is in its care. More widely, and again as made clear by Sir James Munby in in Re X (No 3) (A Child) [2017] EWHC 2036 at [36], Arts 2, 3 and 8 of the ECHR impose positive obligations on the State, in the form of both the local authority and the State itself. Art 2 contains a positive obligation on the State to take appropriate steps to safeguard the lives of those within its jurisdiction where the authorities know or ought to know of the existence of a real and immediate risk to life. Art 3 enshrines a positive obligation on the State to take steps to prevent treatment that is inhuman or degrading. Art 8 embodies a positive obligation on the State to adopt measures designed to secure respect for private and family life. Pursuant to s.6 of the Human Rights Act 1998, and within the foregoing context, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Within this context, the court has discharged its duty, applying the principles the law requires of it, to give its considered answer on the two questions that fall for determination on the local authority application. That answer is that it is not in Y’ best interests to authorise his continued deprivation of liberty on a paediatric ward. The court having discharged its duty, the obligation now falls on other arms of the State to take the steps required consequent upon the courts’ decision, having regard to mandatory duties imposed on the State by statute and by the international treaties to which the State is a contracting party.


For the reasons set out in my judgment, I decline to authorise the continued deprivation of liberty of Y on the paediatric ward at [the named hospital]. Given the conditions in which Y is currently deprived of his liberty, which I am satisfied breach Art 5 of the ECHR, it is simply not possible to conclude that the restrictions that are the subject of the local authority’s application are in his best interests, even where there is no alternative currently available for Y.

Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The parens patriae inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.

Once again, the difficulty in this case is that a child requires urgent assessment and therapeutic treatment for acute behavioural and emotional issues arising from past abuse within a restrictive clinical environment but no such placement is available. Once again, these difficulties are further exacerbated by the problems that arise when seeking to distinguish between psychiatric illness and the psychological impact of trauma for the purposes of the application of the domestic mental health legislation.”

  1. Two further matters call for comment. Whilst the focus of this court is, and has to be, on the welfare of Y, it cannot be ignored that the situation that has arisen in this case by reason of an acute lack of appropriate resources for vulnerable children in Y’ situation has impacted severely on many other children and families. In this case the absence of appropriate resources has resulted in many other children being denied planned surgery, being diverted to hospitals further from home at a time of illness and anxiety and in disruption to the paediatric care arrangements for an entire region of the United Kingdom. Within this context, the adverse impact of the lack of appropriate provision that the courts have to wrestle with week in and week out in cases of this nature is now also impacting on the health and welfare of children and families who have no involvement with the court system.
  2. Finally, I wish to make clear that nothing that I have said in this judgment constitutes a criticism of the doctors, nurses, social workers, police and other professionals who have been required to engage with Y. They have, I am satisfied on the evidence before the court, tried to do their best in a situation in which they should never have been placed. All those involved have done their level best in a situation that has bordered on the unmanageable. In so far as fault falls to be apportioned, it must settle on those who have not made the provision required to address the needs of highly vulnerable children such as Y.
  3. It is, once again, my intention to direct that a copy of this judgment is provided to the Children’s Commissioner for England; to Lord Wolfson of Tredegar QC, Parliamentary Under Secretary of State for Justice; to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education; to Josh MacAllister, Chair of the Review of Children’s Social Care; to Vicky Ford MP, Minister for Children; to Isabelle Trowler, the Chief Social Worker; and to Ofsted.
  4. That is my judgment.

What happens next for Y? Well, it isn’t at all clear. A proper secure unit, that has trained staff, if one can be found, a proper children’s psychiatric unit, if one will take him.

Y is probably the worst example that we’ve seen, but make no mistake. This is a nationwide crisis, and a crisis for which it is hard to find a fast solution. Specialist psychiatric children’s units that offer trained staff and trained support for children in crisis, regardless of whether their extreme behaviour emerges from a mental health condition or as a result of experienced trauma would be my suggestion, but that’s expensive, and won’t happen overnight – the units have to be planned (and believe me, no home owners are happy with the suggestion of planning permission for such units near their homes) and built, and staffed.

Something rotten in the state of hair strand testing?

There’s a decision reported on Bailii which was decided by the President of the Family Division.

Greater Manchester Police v Zuniga & Ors [2021] EWHC 1572 (Fam) (10 June 2021) (

It sounds very technical and dull – it was about what happens to evidence gathered in the family Courts if it is capable of being DNA tested (such as hair samples) when it goes to the police – who have various duties and responsibilities about this.

But far more importantly, it is about a lab based in Manchester who are under police investigation for falsifying the results of tests for alcohol and drugs – and that some 27,000 tests are under suspicion. A lot of this relates to criminal law cases. The suspicion is that in order to get commercial advantage and gain contracts with the police for their drug and alcohol testing, the lab cut corners – falsifying results and cutting and pasting results from one case into others.

The criminal investigation is ongoing, so we must be careful not to make conclusions that these allegations are proven, but one of the defendants has made admissions of a cover-up during two cases involving family Court where concerns arose and the Court was trying to get to the bottom of anomalous cases.

  1. The background to the case is an investigation begun in 2017 and led by GMP into data manipulation by the seven Respondents, who are the suspects in the case, at a forensic laboratory which, via two different companies consecutively operating at the laboratory, provided services to police forces for the purposes of identifying drug use. The forensics analysed hair, blood, and urine for quantities of illegal substances, and the results provided, some of which were falsified, were used in in criminal, family, coronial or employment cases.
  2. The investigation has uncovered 27,000 reports which appear to have been affected, and therefore the potential injustices which have occurred as a result of the data manipulation are many and serious. It is worth recording that an investigation of this scale, complexity, and irregularity is difficult and skilled work, which necessarily takes time.
  3. The alleged activity occurred between 2011 and 2017 at the same Manchester testing centre, the Hexagon Tower. Two companies were primarily involved, and the Defendants span both: Trimega Laboratories (“TL”) operated at the Hexagon Tower from 2009, and continued under that name (after the Ingemino Group bought TL in 2012) until they ceased trading in April 2014 and the company was liquidated by KPMG; Randox Testing Services (“RTS”), bought the equipment and methodology from TL upon its liquidation and operated at the Hexagon Tower from 2014 onwards.
  4. The Respondents are said to have engaged in data manipulation practices for the purposes of ensuring rapid accreditation by the regulator, UKAS, by which the company could provide its forensics services to the police forces, thereby gaining commercial advantage over competitors. The object was therefore the raise the value of the company by gaining a larger market share.
  5. This data manipulation dates back almost a decade and takes a variety of forms, including copying results and quality assurance data from one sample and pasting it into another, as well as manipulating quality controls and suitability tests, and falsifying identification of drugs and validation data.
  6. Against this background, the seven suspects have been served as Respondents in the case on the basis that they are affected by the order, following the Criminal Procedure Rules Part 47. None has chosen to appear to oppose the application.
  7. The alleged data manipulation first came to light in January 2017, when RTS contacted GMP following their discovery of data manipulation at Hexagon Tower. Both RTS and GMP began concurrent investigations, and RTS cooperated with GMP throughout. RTS discovered the erroneous results in the forensic data during a trial of a person accused of driving under the influence of drugs, in which the prosecution’s expert evidence was challenged and, upon the defence instructing an expert, the two experts were unable to agree due to data anomalies which undermined the reliability of the report from RTS. RTS investigated this and found that the anomalies were data duplication that could only have been carried out by a laboratory assistant with extensive knowledge of the system. Their investigation uncovered that the data manipulation had been ongoing since before they purchased the laboratory and equipment in 2014.
  8. GMP’s investigation also involves the cover up of data anomalies relating in particular to two family court cases. These cases are “the Welch case” and Bristol City Council v A & A and Others (2012): in Welch a woman contested the results from TL of hair testing for drugs, and the another forensic provider was employed to test her hair; in Bristol City Council, TL’s drugs testing was challenged by a woman whose children had been removed from her care on the basis of drugs use. In both cases TL’s tests were contradicted by newly instructed forensics providers, and TL acted defensively, possibly for the purposes of competition with the alternative forensic providers used in those cases. Bayliss admitted in police interview to involvement in a cover-up during these two cases. The anomalies in these cases were discovered at the same time as the sale of TL to Ingemino. If disclosed, the fact of the anomalies would have dramatically reduced the value of the sale. There is also investigation into what the senior management of TL knew of these cases at the time.

I wrote about the Bristol case at the time.

Hair we go again – or blip versus tip | suesspiciousminds

I’ve written before also about how unsatisfactory it is, given the huge amount of public money spent on drug and alcohol testing and the huge decisions that can be made as a result of the results, that we simply can’t get a straight answer on how reliable these tests are.

Help, it’s the care-hair bunch! | suesspiciousminds

(goddamn it, that piece was nine years ago – I’ve been yeeting on about this for nine years)

The decision of the President in this case is twofold – firstly all of the material held about the testing in the family cases under suspicion is going to go to the police and secondly, the family members involved are entitled to ask for that from the police and also get evidence from the police about what the concerns are that led to their tests being considered suspicious.

It isn’t clear to me whether the police will be contacting the alleged victims of these suspicious tests or whether it is for the victims themselves to chase this up. But if you did have drug tests conducted by Trimega using the Manchester labs between 2007 and 2017 you may want to contact your solicitors and see if anything can be done.

I’d really welcome this whole topic being properly cleaned up – we can’t have rival labs hiding behind commercial advantage and competition as a rationale for not being properly transparent about how accurate these tests are.

E-mail justice

This is a curious little appeal – I’m slightly surprised it went to an appeal rather than just got reconsidered at local level but it seems like the attempt to do that was rebuffed.

M (Children: Applications By Email) [2020] EWCA Civ 806 (28 May 2021) (

Basically, a Court had directed in care proceedings that there be a psychiatric assessment of the mother. The mother didn’t turn up for the appointment and the psychiatrist alerted everyone and offered a second appointment. Mother’s solicitors were asked why mum had not attended and they didn’t have instructions. The Guardian considered that the appointment should not be reoffered. The children’s solicitor, quite properly, notified the Court that there had been a slip in the timetable.

However, between draft 1 of the notification which was sent to the Court by email and it being actually sent, there was a development. The social worker informed the lawyers that the children’s grandmother had died a few days earlier and that of course the mother was devastated.

That really should have made everyone take stock and decide to notify the Court that the appointment was missed and that enquiries were going to be made as to whether a second appointment could be offered and once the impact on the timetable was known, the Court would be asked to consider matters.

Instead, the email went as drafted, without that key piece of information, but with a draft order for the Judge to approve. (Slightly oddly not the Judge dealing with the case but the Designated Family Judge).

Within 15 minutes of receipt of the email from the children’s solicitor, those representing the mother sent an email contacting the Court.

The Court made an order discharging the direction for a psychiatric assessment. Those representing the mother contacted the Court to ask this to be reconsidered and the Court said that the decision had been made and were standing by it.

So far as the court was concerned, the entire procedure consisted of three emails sent and received within a period of an hour and a quarter.

Hi, it looks like you’re lodging a draft order that isn’t actually agreed. Do you want to get it agreed ? YES / NO

The Court of Appeal in looking at this stressed that there are circumstances, such as the parties inviting the Court to consider a CONSENT ORDER to which everyone CONSENTS, where matters could be dealt with by way of email, but this was not a consent order and the email from the children’s solicitor had not even set out that some of the parties had an alternative view or were without instructions.

  1. Taking stock:

(1) There was, first and foremost, an obligation upon the mother’s solicitors to bring to the court’s attention a development that impacted on the timetable. The children’s solicitor was observing the ‘compliance order’ and following good practice by engaging with the other parties about this, and in drawing it to the attention of the court before a deadline was breached.
(2) However, the making of an application to discharge the order was evidently a step beyond what the compliance order required. It is far from clear why the Guardian considered that the assessment as a whole should be scrapped without some better understanding of the mother’s position. It is clear from the sequence of events that she formed her view before she knew of the mother’s recent personal difficulties, and that she did not revise it when that information was given by the local authority. There is no information about whether or not the children’s solicitor took the Guardian’s further instructions about making an application after that further information came to light.
(3) It is in any case unfortunate that the children’s solicitor’s message was not amended in the light of the information that became available after it was dictated and once it became clear that the application was opposed by the mother. The message to the court did not set out these matters as it should have done. Nor did it explain that on 7 April Dr D had offered the mother another appointment on 25 April.
(4) Further, an application made by email must confirm whether the proposed variation is agreed. The position of the other parties (the local authority, the children’s fathers and the uncle and aunt) was not stated, if indeed it was known at all to the Guardian and the children’s solicitor.
(5) By allowing requests to vary orders to be made by email, the court had used its power to dispense with the requirement for an application notice. In doing so, it had ordered that any such application was to be made to the allocated judge. We asked why this application had been made to Judge Williscroft, who is the Designated Family Judge and had had no previous dealings with the case, and not to District Judge Gillespie, the allocated judge. We were told that this is because the DFJ takes a close interest in the timetabling of cases in her area. That is as it should be, but it does not justify parties approaching a DFJ to make orders in cases allocated to other judges, unless there is some special reason why that should happen in a particular case.

The appeal was obviously allowed and directions made for the assessment to take place.

40. For these reasons, I conclude that the order was wrong and unjust for serious procedural irregularity: indeed, the error in the order was the direct result of the errors in the procedure. The appeal will be allowed and the order will be set aside. The overall circumstances speak in favour of a revision of the timetable, and not for remittal. The original order will revive, with revised dates and (because Dr D is no longer able to report in time) a different expert, who has been identified. The order will record that the mother has promised to attend her appointment and I know that those supporting her will help her to do that; if she fails without good reason, she can expect the order to be discharged. I hope she will be assessed, because even if the child cannot return to her care, the report will be of value in planning for their future, as identified in the District Judge’s original order.

Finally, I make these observations about the procedure for making applications without the filing of an application notice.

Rule 18 of the Family Procedure Rules 2010, which is in similar terms to rule 23 of the Civil Procedure Rules, concerns applications made within existing proceedings. The respondents to an application are the parties to the proceedings (rule 18.2). Rule 18.4 reads:

This framework allows the court to accept and consider applications made without a formal application notice and to make orders without a hearing. It is desirable, at a time when the courts are under considerable pressure of work and where remote case management hearings have become common, for these powers to be used flexibly in the interests of justice and, in the Family Court, in the interests of children. To this end, the court must distinguish applications that can appropriately be made without an application notice from applications that should, because of the importance of the issue or for some other reason, be made by formal notice. The fact that it has given a general permission for applications to be made by email obviously does not prevent it from requiring an application notice to be filed in a specific instance.

Similarly, the court must discriminate between those applications that require a hearing and those that do not. The default position is that there should be a hearing, as the court can only make an order without a hearing if it does not consider that a hearing would be appropriate. It should be on solid ground if it makes an order without a hearing when, as the rule contemplates, the parties agree that a hearing is not required, or where the order is agreed. It may also decide to dispense with a hearing in other circumstances, for example where the issue is not of particular importance, or where the proper order is obvious, or where the documents contain all the information and arguments and a hearing is unlikely to add much. There will be other reasons why an application can be fairly dealt with without hearing – it is all a matter of judgement.

The essential point is that, whatever form an application takes and whether or not there is a hearing, the same standards of procedural fairness apply. The fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person.

Head-banging therapy

When I was at middle school, our deputy head announced that from that point on, at school discos, ‘head-banging’ was forbidden. She went on to explain how dangerous it was to bang your head on the floor repeatedly. This was one of the early moments in my life where I realised that adults are not infallible. (It’s particularly weird, looking back, because our school disco was run by the caretaker who owned only three records – Prince Charming, Stand and Deliver and Eye of the Tiger. We must have been head-banging to Eye of the Tiger. Also, frankly as none of us had long hair head-banging was utterly pointless )

Anyway, this case involves the welfare stage of a set of care proceedings, some devastating findings having been made at a fact finding stage by Keehan J.

K (Children) [2021] EWHC 1409 (Fam) (26 May 2021) (

Some of what Keehan J said about the parents included this: –

The mother and the father have serially lied to the court, to the social workers, to the children’s guardian and to every other professional with whom they have had contact, including the police and health professionals.

  1. The mother is the most egregious liar I have ever encountered. The father has also serially lied to the court, to the social workers and to the children’s guardian.

There was an abduction of the children during proceedings and a concealed pregnancy.

The President of the Family Division dealt with the welfare portion of the case

The Court instructed an expert, Dr Banks, to try to understand why the parents were locked into a pattern of denial of the findings and whether this pattern could be broken.

In oral evidence, Dr Banks said this:-

Because of the nature of the parents’ difficulties, and particularly the mother’s approach which is to push and talk so as to ‘bamboozle’ others, Dr Banks advised that the therapist needs to do, what he called, ‘head-banging’ therapy, so as to be directive with respect to each parent, rather than passive.

Dr Banks in his written report made these observations :-

  1. Dr Banks conducted three sessions with the mother and two with the father, each over a video link. With respect to the father, Dr Banks considered that there was a deficit in the father’s ability to integrate emotional and cognitive information in order to provide a sound conclusion. This deficit might lead to distortions in his presentation and to misunderstanding. The father is unlikely to understand the role of formal organisations and institutions and is unlikely to be able to balance competing priorities leading him to be ‘mono directional’ in his decision-making and choices. Dr Banks identified ‘a high level of denial and lack of insight as to the impact of the father’s overall behaviour on the outcome of the current proceedings.’ In short, the father did not consider that he had acted in a way that might demonstrate a lack of cooperation or deception. The father, in Dr Banks’ view, feigned helplessness and lack of understanding of the English legal process as an explanation; a claim that Dr Banks considered was ‘likely to have little foundation’.
  2. The father explained to Dr Banks that, although he had agreed with the court order requiring him not to have any contact with his wife in order to facilitate the rehabilitation of the two boys to his care, he took the view that the court had overstepped its boundaries in imposing this restriction, had not given him any explanation as to the reasons for it and that it was, therefore, an unfair request. He claimed that he had effectively agreed to the conditions under duress.
  3. Dr Banks found the father to be ‘particularly psychologically defended using high levels of denial and minimisation to protect him from feelings of guilt, shame and blame’, with regard to his involvement in the difficulties in the court process and the removal of the children. Importantly, Dr Banks advised ‘this process will ultimately inhibit the father’s capacity for change where he will find it difficult to manage future behaviour when not recognising that outcomes are a consequence of past behaviour.’ Further, Dr Banks considered that the father had difficulties in mentalising and emotionally appreciating his children’s experience and, when specifically asked about the impact on the children, the father gave more detail about the emotional impact on himself.
  4. In view of the father’s reliance upon an interpreter, Dr Banks decided that it was not appropriate to undertake psychometric testing of him.
  5. With respect to the mother, Dr Banks’ initial appraisal was:
  6. Dr Banks considered that the mother’s adult attachment style was motivated by fear (of the authorities) leading to strategies of withdrawal and escape, and ways of dealing with the perceived threat which would become incoherent, self defeating and non-productive.
  7. The mother is seen as by far the more dominant of the two parents within their relationship.
  8. During his sessions with the mother, Dr Banks saw evidence of false beliefs, and an underlying theme of anger towards professionals. There was also ‘a high degree of fragmentation and false innocence and blame with distorted episodes’ which indicated that, essentially, the mother has difficulty in integrating both emotional and cognitive information. The mother identified difficulties in her relationship with the father, and displayed anger with respect to his behaviour, as she alleges it, of making contact with other women. Whilst the mother accepted that she had ‘done wrong’, Dr Banks, despite pressing on more than one occasion, was unable to illicit more that minimal examples of this from her – for example accepting that she had made a false allegation against the father with regard to the original injury to R in May 2017.
  9. During the exercise of psychometric testing, the mother’s scores indicated a high level on the ‘Obsessive Compulsive Subscale’. Dr Banks advised that such individuals tend to be fairly rigid and follow their own personal guidelines for conduct in an inflexible manner, even when this may conflict with social norms. The mother also demonstrated elevated scores on the paranoia scale and the hyper-vigilance subscale. She demonstrated a markedly elevated score on the ‘dominance scale’. Such a score, Dr Banks advises, identifies an individual who is generally domineering and tends to have little tolerance for those who disagree with their plans and desires.
  10. In a further test designed to assess socially desirable responding, the mother’s score on the ‘self-deceptive enhancement scale’ was very much above average indicating, in Dr Banks’ view, that she shows ‘a form of self-enhancement best described as rigid overconfidence akin to narcissism’.
  11. More generally Dr Banks considered that the father exhibited passive aggressive characteristics of a type that would typically result in attempts to sabotage agreements or disrupt agreements that have been reached, while attempting to appear cooperative. It is particularly difficult to resolve the source of conflict within such individuals, due to it being denied.
  12. The mother, too, is seen by Dr Banks as having passive aggressive personality characteristics. He considers that ‘The mother is now faced with a situation where even with her back against the wall, she does not show good reflective qualities to consider alternative strategies to those that have clearly failed her.’ She has a poor reflective capacity, which may give some insight to explain why the children’s needs were not prioritised.
  13. Dr Banks considers that ‘individuals who show passive aggressive behaviour are highly manipulative and tend to avoid responsibility for their behaviour.’ He further (and importantly) concluded:
  14. Dr Banks found that both parents take the view that Keehan J ‘got it wrong’ and that the court process was flawed. Both parents ‘struggled to agree any point in the judgment’.
  15. Despite his appraisal, Dr Banks concluded:

The parents would benefit from a couples therapy approach which would need to take place with two family therapists who could work with the parents to help achieve an alteration in the parents’ perspectives of their behaviours. The approach here will need to be direct and challenging and certainly not a non-directive type approach, as this would only lead to both parents going round in circles and having their existing views confirmed.”
Dr Banks advised that a minimum of twenty sessions would be needed, but that this was within the children’s timescales in his opinion.

The Court had to consider whether to make the Care and Placement Orders sought by the Local Authority or whether to extend the proceedings to commence the ‘head-banging therapy’ recommended by Dr Banks. The President analysed the issue here

  1. Of particular note is Dr Banks opinion (set out at paragraph 35 above) that it would be very difficult to establish a cooperative agreement with the parents that would hold up, due to the high level of the parents’ defensive avoidance, their denial and their huge degree of psychological defendedness. This conclusion is entirely supported by the analysis offered by Dr Banks with respect to each parent. Both the psychological labels that he attributes to the various elements of what he has identified from the parents’ behaviour, and the, at times, striking evidence that he reports of their responses to him during his sessions, justify the application of terms such as ‘high level’ and ‘huge degree’. Yet, despite the coherence of his analysis and his negative conclusion as to the ability of the parents to enter into a sustainable working agreement, Dr Banks’ recommendation is that this couple could respond sufficiently to a single course of therapy to such a degree that his opinion as to their ability to abide by an agreement could change sufficiently for the authorities to trust them to work cooperatively in the future. With due respect to Dr Banks, that recommendation seems to be wholly at odds with, and not supported by, the body of his report.
  2. No matter how directive and robust a therapist may be, the task in hand, namely bringing about sufficient change to establish a situation where the parents can each be trusted not only to enter into, but to stick with, a working agreement with the social workers for the protection of their children, is a very complex and substantial one. Not only must the therapist seek to challenge and turn around a long-established element of the mother’s character, which is maintained by a high level of avoidant behaviour and denial, he or she must also address the difficulties that exist in the couple’s relationship and enhance the father’s ability to understand and resolve his own difficulties. In addition the therapist will be working with a couple for whom lies and deceit are second nature, and who are each in almost total denial that they have any problems that need to be resolved.
  3. Dr Banks advises, and I readily accept, that it is not necessary for parents to exhibit a significant degree of understanding or acceptance of the nature of their difficulties before embarking on therapy. But, where the issue is should the course that would otherwise be in the children’s interests be put on hold for months, there surely needs to be some basis for the court understanding and accepting that there is at least the potential for sufficient change to take place. Here, the description of the nature of the parents’ difficulties, the degree to which those difficulties have been seen to be entrenched over years and the absence of any indication from the parents that they even recognise that they have those difficulties, make it difficult to accept that a single course of couple therapy could provide a commensurate remedy.
  4. After reading his report and then hearing his oral evidence, I was therefore left in the position of understanding and accepting his analysis of the problems, but far less able to understand and accept that his recommendation for therapy offered a sustainable potential solution.

The President went on to look at the written evidence and the parents oral evidence,

  1. the court has the parents’ respective responses to the detailed findings of fact made by Keehan J. These can only be described as being wholly minimal and self-serving. In the mother’s case, once those elements which are indisputable (for example ‘the police came to the hospital’ and ‘by chance a nursing professional in America identified the mother and alerted the authorities’) are removed, the only statement which is a genuine acceptance of an adverse finding is that the parents colluded with each other to conceal the birth of Q and her presence in England. In the father’s case, the only matters of genuine acceptance are that he lied about events in May 2017 and that he never had any intention of being a sole carer for the two boys. It is of further note that the mother’s admission that the parents colluded together to conceal the birth of Q, is wholly at odds with the father’s assertion that he did not even know of the pregnancy until he was introduced to his baby daughter at the age of four months.
  2. Despite Keehan J’s express and detailed findings, and despite stating that they accept that the judge made those findings, the parents’ evidence at this hearing demonstrated that, far from accepting that the findings have been made and must form the basis of planning for the children’s future, they still deny many matters of significance and seek to establish alternative conclusions. This is particularly so in relation to the bruise on R’s eyebrow, the trip to Stranraer, the calling of police in December 2019 and the attempt to flee with Q via Gatwick Airport, but the reality is that (as the parsimonious response to the findings of fact demonstrates) this is their approach to any of the adverse findings save for the minimal matters that have now been admitted.

strikingly given the stage that the court process has reached, the identification of her problems by Dr Banks, and the proposal for therapy to address those problems, during her evidence in chief the mother volunteered a detailed account of church-based therapy. Her account was, even on its own basis, internally lacking in credibility. It was roundly denied by her husband, who had only attended a few early sessions, but had not found them helpful and had withdrawn. He considered that there were still significant difficulties in the couples relationship. Against his evidence, the mother’s account of a course of couple counselling for well over a year, totalling over 100 sessions, and which had resolved all the difficulties in their relationship can only be a blatant lie.

(If you are going to lie, at least get your stories straight)

The President reached this conclusion

  1. Once the parents’ evidence is brought into consideration, the prospect of therapy being able to achieve and maintain a sufficient change in each parent are, in my view, further reduced to a significant degree. The findings that I have now made as to there being nothing other than minimal change in the parents’ acceptance of past harmful behaviour, and their apparently undiminished ability to produce and develop new lies to this court, do not provide any basis at all for identifying that there is any prospect of change on the part of either of them (paragraphs 95 to 98).
  2. Neither parent accepts Dr Banks’ assessment of their individual problems; the mother simply does not see herself as Dr Banks sees her. Rather than receipt of the expert’s report providing a mirror that each parent can look into and gain some understanding of what now needs to be addressed, this potentially dynamic moment has come and gone without any hint of impact in terms of enhanced self-awareness, and with the parents’ dishonest behaviour presenting as firmly embedded as ever. One is driven to the conclusion that, when the parents say that they are willing to undergo therapy and will do whatever is necessary to establish that they can care for their children, they are simply saying what they perceive is necessary and doing no more than paying lip-service towards accepting that there is a need for therapy. It may be that they are not deliberately doing so. It may be that they are incapable of seeing the truth of what Keehan J has said about their past behaviour and what Dr Banks says about why they behaved as they did. Be that as it may, the result is that they have not demonstrated to this court that they genuinely understand why they need therapy.
  3. Taking this appraisal of the parents’ evidence and presentation in the court process into account alongside my concern that the prospect of success in therapy does not seem sustainable even on Dr Banks’ evidence because of the scale of the problems to be addressed, it is impossible to escape the conclusion that there is no realistic prospect of therapy producing sufficient enduring change of the scale and degree necessary to justify consideration of placement of the children in their care on the basis that it would then be sufficiently safe to do so.
  4. Given my conclusion, which is that, despite Dr Banks recommendation, the evidence does not establish that the parents’ problems might be sufficiently resolved through therapy, it is not strictly relevant to consider the question of an adjournment of the case for four months to monitor how the parents might engage with the therapist and establish a therapeutic relationship. Even if a positive report were received after four months, my conclusion that the degree of change that is needed to establish safe parenting is beyond the scope of the proposed therapy would still stand. Indeed to take four months even to reach that stage indicates just how much work would then need to be done in the months that followed, thereby stretching the time during which the children were, yet again, waiting for a permanent placement yet further.
  5. On the issue of capacity, therefore, my sad conclusion is that the current lack of capacity to provide sufficiently safe, stable and nurturing care for their children cannot be reversed by a single course of therapy, starting as it would, from a baseline where the parents simply do not accept that there is any problem that needs to be addressed

The Court went on to make Care and Placement Orders.

A judicial T-shirt cannon loaded with “whoop-ass” t-shirts

I occasionally make reference to judgments where the Judge opens a can of whoop-ass on one party, usually the Local Authority. This one goes so far beyond a can, and even beyond a supermarket trolley filled with cans of whoop-ass that only the title I’ve selected will suffice to show just how much whoop-ass was being thrown about. And rightly so.

IF you are from Herefordshire CC, you may want to skip this particular post. Or at least get a very strong coffee before reading.

I’ll open with the conclusion:-

  1. My strongest criticism must be directed at this local authority. In the whole of my professional life I have rarely encountered such egregious and long-standing failures by a local authority. The worst of it is, I cannot after the closest possible enquiry, understand why or what motivated the local authority to fail these children, this mother and the interveners as appallingly and for as extended a period of time. The whole history of the role of this local authority in the lives of these children is highly inexplicable. The only matter which is clear to me is that it did not have the welfare best interests of the children at the heart of its decision-making, such as it was.
  2. This must call into question whether this local authority’s children’s services department is fit for purpose. That is a question which is not for me to answer. I can say that they had failed these children in an extraordinary manner over a prolonged period of time.
  1. The local authority’s actions, omissions and failures in this case have been spread over a period in excess of eight years. Mr Baird readily accepted and described the conduct of the children’s services department in the lives of these children as appalling. He was plainly right to do so. He offered to write a personal letter of apology to Child A, Child B, Child D, the mother and the interveners and will ensure this course has been taken.
  2. Prior to receiving final closing submissions, I received a letter of apology to the court in respect of the local authority’s conduct in the light of these children from Herefordshire Council. The letter was signed by the Chief Executive of the council and by two of the deputy Chief Executives.
  3. I was told by Ms Meyer QC that the council had agreed to undertake an internal review of the council’s children services department and would commission an independent external review of the same.
  4. I gave permission for a copy of this judgement, once handed down, to be sent to named officers in Herefordshire Council in order to inform the reviews. Further, I was told that once an anonymised published version of this judgment was available, the Council proposed to call a full Council meeting at which the contents of this judgment would be discussed, and the way forward would be considered.
  5. I have directed that a copy of this judgment should be sent by the local authority to the following:

(i) The Secretary of State for Education

(ii) the Chief Social Worker

(iii) the Children’s Commmisioner; and

(iv) the Chief Inspector of Ofsted

There’s obviously a huge amount in this judgment and my summary of it is in no way a substitute for reading it. I’ll give a brief overview and then pick out some of the most serious complaints against the Local Authority

YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam) (26 March 2021) (

(You know it is going to be worth a read when the case name has that description)

Four children were made the subject of Care Orders to Herefordshire in 2014 and placed in foster care. At the final hearing, allegations were made that the children had been the victims of sexual abuse – the Court found threshold proved but in terms of sexual abuse the findings were exposure to sexual knowledge rather than direct abuse.

The case came back to Court in 2019 for three things- mother’s application for contact, an application to change the children’s surname and an application by the LA to discharge the care orders with an invitation to make Special Guardianship Orders in favour of the foster carers.

During the enquiries about these applications, it emerged that the children had continued to make allegations of sexual harm and abuse and that the foster carers had not been properly appraised of the decision of the Court at the fact finding.

Tragically, in the interim period, one of the children became extremely unwell and subsequently died.

This is the first of the big complaints. When the child became ill and was on life-support, the medical advice was to have the life-support turned off. The parents were not consulted. The Local Authority, on legal advice, decided that they could use their powers under section 33 of the Children Act 1989 to consent to the life-support being turned off.

  1. 116. At 10:40am Mr Baird sent a draft response to Dr Zafurallah to the local authority’s legal department for approval. At 10:43am Tim Marks one of the then local authority solicitors replied to Mr Baird as follows:

“discussed this with Liz and we agreed birth parents need to be informed about the medical advice. We need to consult with them but my legal advice is our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If this is contrary to the parents wishes it is unfortunate but we need to take that course”

As I shall set out shortly this legal advice, as Mr Baird now accepts, was wrong.

It is hard to imagine a decision that the Local Authority can ever take when dealing with a child that is more serious than consenting to a course of action that ends the child’s life. It is astonishing to me that anyone at a Local Authority could contemplate doing so under s33 rather than placing the case before a Court. It is unclear whether they even considered the article 2 implications.

133. In Child C’s case, therefore, the profound life and death decision to consent to the withdrawal of life support ought to have been the subject of an application to the High Court either by BCH or by the local authority. It was wrong and an inappropriate use of its powers under s.33 of the 1989 Act for the local authority to have exercised its powers to consent to the withdrawal of Child C’s life support.

Both the mother and the father told Ms Leader on the morning of 6th June 2019 that they agreed with the decisions of the treating clinicians. The local authority has now accepted that given:

i) neither parent had had any contact with any of the children, including Child C, since late 2012;

ii) neither had been involved in any meeting or discussion with treating clinicians at BCH; and

iii) the circumstances in which they were told of the parlous state of their daughter on early morning of 6th June;

I could not accept or find that either parent had given informed consent to the withdrawal of Child C’s life support.

Next topic for me is disclosure – this was a case where there were a wealth of documents and material to be considered and for the Local Authority to consider very rigorously whether they should disclose into the proceedings – the Local Authority has duties to disclose material which not only supports its case but may weaken or undermine its case or potentially strengthen the case of any other party.

The Court notes that due to the delays in providing proper disclosure and it coming in piecemeal and thus one set of documents disclosed revealing the existence of others that then had to be asked for, the oral evidence in this 20 day hearing could not begin until day 9.

It seems that the important task of handling discovery was left to social workers rather than being undertaken by lawyers.

The circumstances of the case reached a point in December 2016 where the Designated Family Judge who had been hearing the case felt compelled to include a recital in extremely strong terms

185. In his order of 2nd December 2016 HHJ Plunkett, understandably and wholly reasonably given the history of this case, included the following recital in his order:
“[the court] is concerned about the surprising degree of resistance to accept the clear judgment from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm”
What did the local authority do in response to this very serious expression of concern by a judge that the children were suffering emotional harm in their foster placement and that consideration should be given to moving them to an alternative foster placement? Very shockingly the answer is nothing.
Ms Cox confirmed this in her evidence.
Worse still, on day 14 of this fact-finding hearing a note was disclosed of a meeting held on 13th December 2016 between Ms Cox and Mr Scott, a then assistant director of children’s services. At point 12 of 12, I repeat point 12 of 12, the following is recorded:
“YY case. In court. Challenge from Judge P re contact for relatives, ‘brainwashing’ by social workers/foster carers. Cafcass to visit children soon. Children plan in overview which we support. GC to discuss with AC on her return.”
HHJ Plunkett is not just a senior and hugely experienced family judge, he is the Designated Family Judge for Hereford and Worcester. The lack of any response to, or action taken in respect of, the concerns expressed is truly woeful. The utterly contemptuous response of an assistant director of children’s services of this local authority is absolutely appalling and shocking. It is completely inexcusable. However, this demonstrates the skewed and wholly inappropriate response of this local authority to the desperate needs of the children and reveals a mindset which has ultimately caused them considerable possibly irreparable emotional and psychological harm. I sincerely hope it has not.

The case had had the involvement with an expert, Dr Asen. The LA mounted an attack on him in a position statement. Keehan J was not, it would be fair to say, taken with this:-

182. Dr Asen had from time to time, between 2013 and 2016, been instructed to advise on the way forward in this case. He is one of the most experienced and highly regarded child psychiatrists in the field of high conflict children’s cases in the country. In 2014 a social work professional had recorded on the social work files that Dr Asen had expressed a view that the judgment and order of HHJ Rundell in the fact-finding hearing of 2013 was wrong and it should have been appealed. If this had been Dr Asen’s view he would have expressed it in one of his reports. He did not. I do not understand the motive for this false recording, but it indicates that the same professional in the local authority was not supportive of Dr Asen’s involvement in this case or of the positive change he was seeking to achieve.
For the purposes of the hearing before HHJ Plunkett on 2nd December 2016 when he was hearing the maternal grandmother’s application for contact, the local authority filed and served a position statement which contained the following:
“The local authority’s position at the last hearing was that contact should not progress to direct contact at this stage and challenged Dr Asen’s assessment. Then local authority believes that there is significant use of emotive language in Dr Asen’s report, which unhelpful and can be taken out of context; this raises concerned over the impartiality of the report and the conclusions he has come to. The local authority believed that there should be some work undertaken to progress matters, but that this must be done at the children’s pace and taking into consideration their very strong wishes and feelings.”
“The local authority believes that it can progress contact via the LAC review process. The local authority has significant concerns around the impact of direct and indirect contact and the children at this time, which are set out in detail within the local authority evidence. The parents are against any contact taking place between the children and their extended family; this is supported by the local authority, who share parental responsibility at this time.”
“The local authority wishes to progress life story work, at a pace right for the children, and in line with their emotional needs. The local authority is committed to undertaking this work and sees this as a part of the social workers role, and not of a child psychiatrist. The local authority is committed to promoting contact between the children and the extended family, but this must be in line with their emotional needs.”

Two important points arise:
i) it is disgraceful that this local authority chose to impugn the professional integrity of a highly respected child psychiatrist on the flimsiest of evidence. There was no evidential basis upon which any reasonable person could or should have questioned Dr Asen’s impartiality; and

ii) life story work may well be within the ambit of the social worker rather than a child psychiatrist, but after a few months in early 2017 the local authority did no life story work with the children.

The Court, understandably, spent a lot of time dealing with the assessment of the foster carers which the Local Authority filed as a Special Guardianship assessment. The assessment was written by Kathryn Straughan. Her manager was Alison Foreshaw. Miss Cox is the Head of Service. Mr Baird is the Director of Children’s Services.

The body of the report had as was clear to any reader, an overall negative view of the foster carers becoming Special Guardians, yet the recommendation was that they should be Special Guardians.

Had pressure been applied?

145. Kathryn Straughan had been the interveners’ social worker but was reassigned in June 2019. After Child C’s death she was asked to update her May 2019 special guardianship assessment report by her team manager, Alison Forshaw. She had instructed her to undertake the update as a paper-based exercise and that she was not to visit the interveners.
Ms Straughan believed there were some positives about the children’s placement with the interveners: the children were settled and felt part of the family, the children, however, struggled with their sense of identity, with their views about their parents and wider family and with the issue of contact. These concerns and the concerns about the attitude and approach of the interveners towards the birth family escalated after Child C’s death. Ms Straughan did not consider that the interveners genuinely believed that contact with the parents and their wider family was in the best interests of the children.
She told me that she had real reservations about SGOs being made in favour of the interveners. She did not consider this order to be in the best interests of the children.
As foreshadowed in a supervision meeting with Ms Forshaw on 3rd October 2019, on 10th October Ms Straughan sent her updated assessment report to Ms Forshaw by email. The body of the report was largely negative about the interveners. She concluded with a recommendation that the children should remain the subject of care orders, not SGOs. She asked Ms Forshaw whether she could leave the alternative to the court of making SGOs on the basis of a comprehensive and detailed special guardianship support plan.
On 11th October 2019, Ms Forshaw emailed Ms Straughan in response and said she had to ‘make a recommendation’. Ms Straughan then resigned. Consequently, Ms Straughan, without materially changing the body of her first updating report, changed the recommendation of the report to one of supporting the making of SGOs. This was sent to Ms Forshaw on 28th October 2019.
She told me she had the clear impression that Ms Forshaw and Ms Cox supported the making of SGOs in favour of the interveners. She felt she had been directed to recommend SGOs to be the right solution and she had changed her recommendation so that it was aligned with the ‘local authority’s view’.
I note that when Ms Forshaw emailed the updated report on 23rd October to Ms Cox, she had replied that she was pleased that Ms Straughan had made a recommendation.
I further note that Ms Straughan told me that this was the first and only time she had been asked to prepare a paper-based special guardianship assessment report or an updated report.

(I note in passing that this was pre-Covid, so there were no public health reasons for not doing the assessment face to face)

153. Ms Forshaw stated that concerns about the children’s placement with the interveners were magnified after June 2019. In response to the question that these concerns were incompatible with an SGO she replied, ‘…it feels like that now!’ I do not understand why ‘it did not feel like that’ in October 2019.
She said she could not recall instructing Ms Straughan to confine her updating assessment report to a paper-based exercise. She continued that she had no view on what the ultimate recommendation should be and that she had not put pressure on Ms Straughan to make a recommendation in favour of SGOs. When pressed on this issue by Mr Goodwin QC, leading counsel for the mother, Ms Forshaw accepted that in her first updating report Ms Straughan had made a clear recommendation, namely that the children should remain the subject of care orders. So, Mr Goodwin QC asked why in her email of 11th October 2019 she had asked Ms Straughan to make a recommendation? The best Ms Forshaw could do was to say that now her request did not make sense, but she added she had not led Ms Straughan to make a recommendation in favour of the making of SGOs.
Ms Forshaw told me that she felt the first version of the updating report had been unfair to the children and the interveners. I struggled with understanding this answer because the only substantive change between the two versions was that the later supported the making of SGOs. When asked if she considered the second version fairer only because it supported the making of SGOs, Ms Forshaw could not give a satisfactory answer.
When it was suggested that save for the first updating report having been emailed to Ms Cox, Ms Forshaw had sought to suppress the first version, Ms Forshaw said she thought both the first and the second updated reports had been sent to the legal department. Only the second version was filed at court and served on the parties. I have not seen any evidence of the first version having been sent to the legal department. Indeed, the first the court and the other parties knew of the first version is when Ms Straughan’s statement of February 2021 was filed and served by the local authority.
When Ms Forshaw was asked if she had asked Ms Straughan how her visits to the interveners were progressing, she said she did not know if she had done so. When asked if she had raised with Ms Straughan why there was not a single reference to any visits to the interveners in either of the first or second versions of the report, she claimed she had. Unfortunately, she had not recorded a single one of these discussions.
Ms Forshaw agreed that on one view the first version was a really poor assessment report. When asked why then had she signed off the second version when it was not materially different to the first one save for its recommendation, she simply said she had been under pressure to file the report with the court.
Ms Forshaw was recalled to give evidence after Mr Baird had given evidence. She was asked again whether she had asked Ms Straughan about her visits to the interveners; she said she could not remember. When asked if she had asked about the interveners’ reactions to her visits, she first replied no and then said she could not remember.
She said she did not think that Ms Straughan had changed her recommendation to appease her or Ms Cox. She was asked why she had signed off the second version when the body of the report did not support the recommendation. Once again, the best Ms Forshaw could do was to reply that the report just had to go to the court.
Towards the end of her evidence Ms Forshaw was pressed again about whether she has spoken with Ms Straughan about her visits to the interveners. This time she said that maybe she just did not ask her.
Miss Cox could not recollect (an answer frequently used by this witness) whether she had seen the first version of the updating assessment report. She could not recollect whether Ms Forshaw had told her that this first updated report did not support the making of SGOs. She said she had not read the second version of report save for reading the recommendation. Having now read this report in full she did not invite the court to rely upon this report in support of making SGOs in favour of the interveners.
Ms Cox confirmed that prior to early 2017 no life story work had been undertaken in the preceding five years with any of the children. She said that after a few months the work of Janet Watkins, who undertook the work with the children, was paused to give the children a break. It never restarted.
No therapy was ever undertaken with the children. Ms Cox was asked what oversight she had given to this case. She replied that the case had fallen off her radar because of the breadth of her workload, although she conceded this was no excuse. I do not understand how this high profile and complex case which had caused serial concerns for many professionals working with the children and with the interveners could ‘fall off the radar’ of the Head of Service.
She conceded that the children, the mother and the interveners had been badly served by this local authority. She agreed that accordingly the children had suffered for which she had real regret.
Like Ms Forshaw, Ms Cox was recalled after Mr Baird had given evidence. She continued to assert that as the Head of Service, she had not needed to read either the first or second versions of the updated assessment reports because they had been signed off by the team manager. When Mr Baird’s dismay at this state of affairs was put to Ms Cox, she asserted that the director of children’s services did not know the usual practice adopted in Herefordshire.
When asked whether she should have read the entirety of both versions of the updated report she said that she wished she had. Ms Cox accepted that the ‘safety net’ oversight (i.e. the quality assurance check), which Ms Forshaw and herself should have provided, failed in this case.
In light of the observations of HHJ Plunkett recorded in the order of 2nd December 2016, Ms Cox was asked what consideration had been given to moving the children to an alternative foster placement. She gave the startling and deeply concerning one-word answer, ‘none’.

This is already painful reading, but it gets worse

177.If Ms Forshaw had not instructed Ms Straughan to undertake a paper-based updated assessment report, I cannot begin to understand why she did not ask Ms Straughan about how her sessions with the interveners were progressing. I cannot accept that Ms Forshaw had simply forgotten any of these alleged conversations.

Ms Forshaw’s evidence about why she had sent an email to Ms Straughan on 11th October 2019 asking her to make a recommendation when, as she accepted, Ms Straughan had made a very clear and strong recommendation in her first version of the updated report, was most unsatisfactory. Her evidence leads me to only one conclusion, namely that she was directing Ms Straughan to produce a report recommending the making of SGOs.

I am fortified in coming to that conclusion by the fact that despite knowing the substance of the body of the second version of the updating report which did not support the recommendation made, she submitted the report to the legal department for filing at the court. She did not raise this disjoint with Ms Straughan because she had the recommendation she wanted.

Likewise, the only credible reason for Ms Cox limiting her reading of the second version of the updating report to the recommendation is because she had got the answer she wanted, namely a recommendation in favour of the making of a SGO. Hence her subsequent email to Ms Forshaw that she was ‘pleased’ that Ms Straughan had been able to make a clear recommendation.

207. My findings of fact in relation to this issue are set out in paragraphs 177-180 above. In summary I found that:
i) Ms Straughan was instructed by Ms Forshaw to undertake a paper only exercise in order to update the special guardianship assessment report of May 2019;

ii) she was instructed by Ms Forshaw not to visit or contact the interveners and/or the children for the purposes of completing her updated report;

iii) Ms Straughan came under pressure from Ms Forshaw and Ms Cox to produce an update which recommended the making of a SGO in respect of the children in favour of the interveners;

iv) I do not find she was instructed to make such a recommendation, but she knew both of them supported the making of a SGO in favour of the interveners; and

v) Ms Forshaw signed off the 22nd October 2019 report and arranged for it to be filed at court and served on the parties when she knew that the observations, opinions and conclusions set out in section C of the report did not support or provide a rational basis for the recommendation in favour of the making of a SGO. Indeed, those matters of substance set out in section C only supported the dramatically opposite recommendation that a SGO should not be made.

The findings about the failure of the Local Authority to support the children and their foster placement and to properly and accurately reflect on the findings that were made and not made in the fact finding hearing (allowing the view to propagate that the children had been sexually abused when the Court had found that they had not) are set out in a detailed schedule of findings as an appendix to the judgment.

The children remained subject to Care Orders, with plans for therapy and reestablishing contact with the mother and very clear oversight by the Court of the next stages of the process.

Court of Appeal take stock of ‘domestic abuse’ cases

If I were a tabloid, my alternative heading might be ‘Top Judges blast Judge who treated attempted suffocation as a prank’

The Court of Appeal have just given a decision in four appeals linked by subject matter, all relating to private law cases where there was a dispute about whether one parent had been violent or abusive to the other, and the impact of this on contact.

The Court of Appeal are at pains to point out that the case establishes no new legal principles or new law, but of course it is an oversight as to how Practice Direction 12J about fact finding hearings in private family law is working and also an opportunity to look at how it is being applied on the ground.

As will be seen, our decisions on the various appeals very much turn on long-established principles of fairness or the ordinary approach to judicial fact-finding. None of the four appeal decisions purports to establish ‘new law’. They therefore do not establish any legally binding precedent.

Ten silks were involved in the case.

H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 (30 March 2021)

H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 (30 March 2021) (

It is valuable reading for anyone involved in these cases. The big picture is that the Court of Appeal consider that Practice Direction 12J as written, functions properly and does not need reworking but stresses the importance of it being followed and properly applied.

As readers will recall from a high-profile appeal from HHJ Tolson QC, there’s been some concern about whether the spirit of 12J is being properly recognised.

Two examples from the cases being appealed may illustrate the concerns :-

  1. This court has had an opportunity to listen to a recording of this hearing and it is undoubtedly the case that the judge was both frustrated and cross at the total ‘shambles’ in terms of case preparation. The judge said that he would deal with only three allegations ‘if I deal with anything’ and that he would ‘probably not deal with anything’. By reference to the schedule in which the father alleged that the mother drinks and took cocaine, the judge said that he would try that allegation, saying that ‘if both parties are taking drugs and that there was evidence that both parties took drugs’ he would make those findings. The judge accepted that the mother’s allegation of rape was one of the three allegations which may be tried.
  2. The judge went on to ask with whom ‘the child’ lives and was told that it was the mother. It was at this point that the judge said that ‘if this goes on the child will be taken into care and adopted’. Unsurprisingly, the mother became deeply distressed and can be heard crying on the tape.
  3. The judge asked if the mother accepted that she took drugs and asked whether she describes herself as an addict.
  4. In the subsequent exchanges counsel told the judge that the mother accepted taking drugs on only one occasion and then by coercion by the father. The mother can be heard in the background weeping and denying that she is an addict. The judge then said that it may be that he would have to report the matter to social services. The exchanges continued in similar vein with the judge saying that the parties were where they are ‘because of your own making’. He accepted that the matter would have to be adjourned as the father’s counsel had failed to attend.
  5. Counsel for the mother submitted to the judge that the case was not about drugs, but about the allegations made by the mother of abuse, to which the judge responded: ‘Well how’s that going to affect contact’. Further attempts by counsel to highlight aspects of the mother’s case were to no avail. The judge said that the parties should ‘sort it out’ and that ‘you should have had the riot act read to you months ago’. The parties were then sent out to see if they could reach an agreement as to contact.


  1. In November 2017 the allegation made by the mother was that the father ‘grabbed the mother by the throat and began strangling her’. The father, it was alleged, threatened the mother with death. The background to this incident was an argument during which the father began, allegedly, to choke the mother. The judge found that the: ‘mother asserted she was choking. However, in oral evidence she said that the strangulation lasted a few seconds, she coughed, and he let her go; there was no mention of any choking. Afterwards, there was no visible marks. The father denied the whole event.’
  2. The judge, whilst not satisfied that the father ever attempted to ‘strangle’ the mother, held that ‘the father probably held the mother in the vicinity of her neck’. She went on that he ‘may well have used words to the effect that he would kill the mother but, it seems to me, that these words are commonly used in anger which do not import any genuine threat to life’.
  3. A month or so later in December 2017, the ‘plastic bag’ incident occurred. The father came up behind the mother when she was sitting on the floor with T on her knee and, without warning, put a plastic bag over the mother’s head. The father said, ‘This is how you should die’. The father denied that any such incident took place.
  4. In contrast to her findings as to the mother’s evidence in relation to various of the other allegations, the judge said that, in relation to this incident, the mother spoke with ‘total clarity’ with ‘no inconsistencies’. The judge went on to find:

“52. I accept mother’s account of this incident…However, as there was no trigger to this event at all, I am not satisfied that it represented an attempt to kill, a threat to kill or that the mother felt threatened, given her oral evidence. It may be that it was some sort of prank by the father that he now denies because of the allegations made against him. Indeed, the mother told social workers that the father had called this incident a joke. That said, it was an unpleasant aggressive thing for the father to do and is not acceptable behaviour.”

  1. So far as to the cross allegations made by the father about the mother, the judge found that the mother had slapped the father in December 2017 and that the next day there was a further ‘unpleasant incident where there was pushing and slapping on both sides’. The judge did not accept that the mother had threatened the father’s elder daughter, but did find that the mother had been aggressive to the father and shouted at him and his daughter in a restaurant.
  2. The judge, having considered each allegation individually, concluded as follows:

“[59] While I have found that some of the mother’s allegations are true and some of the father’s allegations are true and I am satisfied that this was a mutually abusive relationship I am not satisfied that these represent anything more than the sad and bitter end of a relationship which met neither party’s expectations…… I am satisfied that this relationship was one of mutual verbal and minor physical abuse attributable to relationship conflict. … I am not satisfied that T would be at risk from her father….. I am not satisfied that the father is a violent man as portrayed by the mother. It seems to me more likely that he was, occasionally, driven to anger and loss of control in conflicts with the mother in situations where she was verbally and, occasionally, physically abusing him. This is not an excuse and I should not be taken as endorsing any abusive behaviour by either of the parties but, having separated, I cannot see that either poses a threat to the other or to T.”

Whilst recognising that the task of unpicking the truth about a serious allegation is a difficult one, and the Judge has the benefit of seeing and hearing the witnesses, it seems to the neutral observer difficult to conclude that putting a plastic bag over your partner’s head and telling them that this is how they will die is as characterised here. A prank or joke seems to be a strange way to categorise this conduct.

The Court of Appeal considered the same, that the findings that were made as to what had happened were not matched by the finding of the significance or otherwise of these.

The judge made three findings of physical violence against the father. In our view, the judge failed to acknowledge in particular the seriousness of the two incidents where the father made reference to dying or to killing. The judge did not acknowledge that whilst she, the judge, may have concluded that the father did not intend either to ‘strangle’ or to ‘suffocate’ the mother, that does not prevent the mother from having been the victim of two extremely frightening episodes. The judge failed to recognise the impact upon the mother and the child. For our part we do not accept that words which can be interpreted as threats to kill are words which are ‘commonly used in anger which do not import any genuine threat to life’. The impact on the mother was abundantly clear given that the judge accepted her evidence that when she was on the floor with the plastic bag over her head she was ‘feeling as though she wanted to die’. In short, the failure to stand back and to consider the impact of her findings prevented the judge from asking the key primary question, which was whether the evidence established a pattern of coercive and/or controlling behaviour.

We are particularly troubled by the ‘plastic bag’ incident. Looking at the background history and the state of the parties’ relationship by December 2017, with the ‘strangling’ incident having taken place only the month before, we cannot see on what basis the judge could conclude that coming up behind the mother (who was on the floor holding their baby), and putting a plastic bag over her head before saying that ‘this was the way she would die’ could be regarded as a ‘prank’. This was, in our judgment, the second of two intimidating and highly abusive incidents of a similar type carried out within a few weeks of each other. We say that conscious of the findings the judge made about the mother’s own aggressive behaviour towards the father on occasion.

More broadly, the Court of Appeal introduce the topic of the important task of the Court in taking allegations of domestic abuse seriously, and of taking seriously the need to get to the truth of the allegations and properly assess the impact they have on the issues of where children live and whom they spend time with

  1. The task of reviewing the approach to domestic abuse is a complicated one in respect of which the understanding of society, those who work with victims, and politicians and professionals, is developing all the time. At present the Ministry of Justice is moving to implement their report: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: (‘The Harm Panel Report’). At the same time, the Domestic Abuse Bill is before Parliament. In addition, those within the judiciary, Cafcass and the legal and social work professions have contributed to the recommendations of the President of the Family Division’s ‘Private Law Working Group’ (‘PLWG’) (2nd report published April 2020)[1] which are beginning to be piloted in the courts.
  2. The Harm Panel in its recommendations said that they regard the adversarial system by which contact disputes are presently determined as a barrier to the Family Court’s ability to respond ‘consistently and effectively to domestic abuse’. The Harm Panel is now looking to implement an approach to domestic abuse in the courts which is ‘investigative and problem solving based on open enquiry into what is happening for the child and their family’ (Chapter 11.2). Following the publication of The Harm Panel, the Ministry of Justice has started work on how the proposed new approach can be effected and, as part of its recommendations, pilots of Integrated Domestic Abuse Courts (IDAC) are being designed.
  3. These various endeavours could not be more important in the context of improving our collective approach to issues of domestic abuse. The scope of each is wide and the substantive content is complex. It would be both impossible and inappropriate for us, as judges in the Court of Appeal, following a short hearing of four appeals, to lay down comprehensive guidance in this judgment aimed at resolving (or even identifying) the many difficulties that are said to exist and which are the very subject of these other more extensive endeavours.
  4. Our focus must therefore necessarily be limited to offering guidance on those matters which are most directly relevant to the court process.
  5. Over the past 40 years there have been significant developments in the understanding of domestic abuse. The Domestic Violence and Matrimonial Homes Act 1976 (‘DVMA 1976’) introduced the concept of ‘domestic violence’; although ground breaking in its time, it is now wholly outdated and hard to comprehend an approach which required evidence of actual bodily harm to a victim before a power of arrest could be attached to an injunction (s 2 DVMA 1976).
  6. Obsolete too is the approach often seen in the 1980s where, although ‘domestic violence’ had been established and an injunction granted, judges regarded that violence as purely a matter as between the adults and not as a factor that would ordinarily be relevant to determining questions about the welfare of their children. Fortunately, there has been an ever-increasing understanding of the impact on children of living in an abusive environment. A seminal moment in the court’s approach to domestic violence (as it was still called) was the Court of Appeal judgment in four appeal cases that were, like the present appeals, heard together: Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FCR 404[2000] 2 FLR 334. The central conclusion from Re L, which was based on the Court of Appeal’s acceptance of authoritative expert child psychiatric evidence, was that there needed to be a heightened awareness of the existence of, and the consequences for children of, exposure to ‘domestic violence’ between parents and other partners. In CA 1989 applications, where an allegation of ‘domestic violence’ was made which might have an effect on the outcome, the Court of Appeal held that it was plain that it should be adjudicated upon and found to be proved or not. In its time, 20 years ago, the messages from Re L led to a significant change in the approach to domestic abuse allegations in the context of child welfare proceedings.
  7. As the present appeals illustrate, there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by (PD12J).
  8. PD12J paragraph 3 includes the following definitions each of which it should be noted, refer to a pattern of acts or incidents:
  9. The definition, which was expanded in 2017 and is the one currently to be used by judges in the Family Court, is plainly a far cry from the 1970s’ concept of ‘domestic violence’ with its focus on actual bodily harm. It is now accepted without reservation that it is possible to be a victim of controlling or coercive behaviour or threatening behaviour without ever sustaining a physical injury. Importantly it is now also understood that specific incidents, rather than being seen as free-standing matters, may be part of a wider pattern of abuse or controlling or coercive behaviour. It is of note that none of the submissions to this court suggested that the current definition of ‘domestic abuse’ in PD12J required substantial amendment. Although the structure of the definition of ‘domestic abuse’ in clause 1 of the Domestic Abuse Bill [‘DAB’] currently before Parliament differs from that in PD12J, the content is substantially the same. Thus, whilst PD12J will undoubtedly fall for review to ensure that it complies with the DAB once the Bill becomes an Act, it is unlikely that the substance of the core definitions will substantially change.
  10. We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse. The challenge relates to the proper implementation of PD12J.
  11. As can be seen at paragraph 27 above, central to the modern definitions of domestic abuse is the concept of coercive and/or controlling behaviour. Shortly before the hearing of these appeals, Mr Justice Hayden handed down judgment in F v M [2021] EWFC 4. The judgment followed a two-week fact-finding hearing of domestic abuse allegations centred on coercive and/or controlling behaviour. The arrival of Hayden J’s judgment was timely. All parties commended it to the court for its comprehensive and lucid analysis, and for the plea contained within it urging greater prominence to be given to coercive and controlling behaviour in Family Court proceedings. The parties’ endorsement of the judgment in F v M is, in our view, fully justified. It is helpful to set out one of the central paragraphs from Hayden J’s judgment here:
  12. Whilst the facts found in F v M may be towards the higher end of the spectrum of coercive or controlling behaviour, their essential character is not, and will be all too familiar to those who have been the victim of this form of domestic abuse, albeit to a lesser degree or for a shorter time. The judgment of Hayden J in F v M (which should be essential reading for the Family judiciary) is of value both because of the illustration that its facts provide of what is meant by coercive and controlling behaviour, but also because of the valuable exercise that the judge has undertaken in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. That guidance is relevant to the evaluation of evidence in the Family Court.
  13. The circumstances encompassed by the definition of ‘domestic abuse’ in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see ‘Scott Schedules’ at paragraph 42 -50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
  14. It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour. We would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61):
  15. Having considered what is controlling and coercive behaviour and emphasised the damage which it can cause to children living in a household in which it is a feature of the adult dynamics, it is necessary to move on to consider the approach of the court where the question of whether there has been a ‘pattern’ of ‘coercive’ and/or ‘controlling’ behaviour by one or more of the adults in a family is raised. Although the principal focus in this judgment has been on controlling and coercive behaviour, it should be noted that the definition of domestic abuse makes reference to patterns of behaviour not only in respect of domestic abuse refers to a ‘pattern of incidents’ not only in relation to coercive and/or controlling behaviour but to all forms of abuse including physical and sexual violence. Our observations therefore apply equally to all forms of abuse.
  16. In our judgment there are a number of important issues which arise out of the submissions made by the parties to these appeals in relation to the proper approach of the court to such cases namely:
  1. Whether there should be a finding of fact hearing
  2. The challenges presented by Scott Schedules as a means of pleading a case
  3. If a finding of fact hearing is necessary and proportionate how should an allegation of domestic abuse be approached
  4. the relevance of criminal court concepts

I’ll tackle the last point first, as it is fairly simple and builds on the Court of Appeal views about this. In essence :-

The family Court should focus on the details of the conduct alleged and not worry excessively about what label it would be given in a criminal court and the ingredients of the criminal offence and the defences to it. Consider what is alleged and determine whether on the evidence the person making the allegation has proved that it is more likely than not to have occurred.

  1. Hickinbottom LJ observed during the hearing in Re R, ‘what matters in a fact-finding hearing are the findings of fact’ [paragraph 67]. The Family court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of ‘rape’, ‘murder’, ‘manslaughter’ or other serious crimes. Behaviour which falls short of establishing ‘rape’, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context. For example in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the border line as between ‘consent’ and ‘submission’ may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault.
  2. That is not to say that the Family courts and the parties who appear in them should shy away from using the word ‘rape’ in the manner that it is used generally in ordinary speech to describe penetrative sex without consent. Judges are not required to avoid using the word ‘rape’ in their judgments as a general label for non-consensual penetrative sexual assault; to do otherwise would produce a wholly artificial approach. The point made in Re R and now in this judgment is different; it is that Family courts should avoid analysing evidence of behaviour by the direct application of the criminal law to determine whether an allegation is proved or not proved. A further example can be drawn where the domestic abuse involves violence. The Family Court may well make a finding as to what injury was caused, but need not spend time analysing whether in a criminal case the charge would allege actual bodily harm or grievous bodily harm.
  3. It follows therefore that a Family judge making a finding on the balance of probabilities is not required to decide, and does not decide, whether a criminal offence has been proved to the criminal standard. Any use of familiar terms should not give the impression that the abusive parent has been convicted by a criminal court. Equally where an abusive parent has in fact been convicted of a relevant offence (e.g. a sexual or violent offence against the other parent), the conviction is proof of the fact that he or she committed the offence ‘unless the contrary is proved’ (Civil Evidence Act 1968 s.11(1) and s11(2)). Where a party seeks to go behind a conviction, the burden of proof is on him to prove on the balance of probability that the conviction was erroneous (McCauley v Vine v Carryl [1999] 1 WLR 1977).
  4. The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, be clear cut. That is particularly so when the judge in the Family court must conduct their own analysis of issues such as consent, and must do so in the context of a fair hearing. In this regard the procedural manner in which the hearing is conducted and, in particular, the scope of cross-examination of an alleged victim as to their sexual history, past relationships or medical history, justify consideration separately from the general prohibition on family judges adopting criminal concepts in determining the substantive allegation. Nothing that is said in Re R, or endorsed in this judgment, should inhibit further consideration of such procedural matters. They are beyond the scope of this judgment and are more properly to be considered elsewhere.

Scott Schedules – a quick run-down. My understanding is that the term arose in building disputes, and were devised not by a Judge or a lawyer but by a surveyor, George Scott. The idea is that there is one document, in the form of a table that sets out each allegation with reference to where and when it was said to have occurred, with a column setting out what each party says about it, a column of where independent references and reports can be found and a column for judicial notes and conclusions.

The issue with them raised in this hearing is that obviously the more allegations that go into a Scott Schedule the more cumbersome and perhaps less useful it becomes. What has happened in effect piecemeal is that a practice has sprung up where the complainant is told to confine their allegations to ten or sometimes even three. The difficulty with that is in cases where the allegation is of coercive and controlling behaviour or a pattern of abuse which does not readily reduce to 3 clear allegations that on x date y happened.

  1. Concern about the utility of Scott Schedules was raised on two different bases: one of principle and the other more pragmatic. The principled concern arose from an asserted need for the court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents that are tied to a particular date and time. Abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims which would not be identified simply by separate and isolated consideration of individual incidents.
  2. The second, more pragmatic, criticism is not unrelated to the first. As an example in one of these four appeals, the parties were required to ‘limit’ the allegations to be tried to ten and the judge at trial further reduced the focus of the hearing by directing that only three would be tried. It was submitted that that very process of directed selection, produces a false portrayal of the couple’s relationship. If such an applicant succeeds in proving the three remaining allegations, there is a risk that the court will move forward on the basis that those three episodes are the only matters ‘proved’ and therefore the only facts upon which any adverse assessment of the perpetrator’s future risk falls to be made. By reducing and then further reducing its field of focus, the court is said to have robbed itself of a vantage point from which to view the quality of the alleged perpetrator’s behaviour as a whole and, importantly, removed consideration of whether there was a pattern of coercive and controlling behaviour from its assessment.
  3. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be. This is an important point. Everyone agrees.
  4. The Harm Panel has expressed a similar view and noted that ‘reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse’ (Chapter 5.4), and that by limiting the number of allegations the court is not exposed to ‘more subtle and persistent patterns of behaviour’ (Chapter 7.5.1). So too did Hayden J in F v M in his Post Script
  5. Quite how a move away from the use of Scott Schedules is to be achieved, and what form any replacement ‘pleading’ might take, does, however, raise difficult questions and was the subject of submissions to this court. A number of suggestions were made by the parties in submissions including; a ‘threshold’ type document, similar to that used in public law proceedings, formal pleadings by way of particulars of claim as seen in civil proceedings and a narrative statement in prescribed form. The particular advantage of a narrative statement was, it was submitted, that it would allow there to be a focus on the overall nature of the relationship and expressly whether a party says that she had been harmed as a result of the behaviour and, if so, in what manner. Such an approach would allow the court to identify at an early stage whether an allegation of controlling and coercive behaviour is in issue. Identifying the form of harm (which may be psychological) and only then looking back at the more granular detail, would, it was submitted, allow the court to determine what specific facts need to be determined at a fact-finding hearing.
  6. The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing. It will be for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes. In practice that work is likely, in the first instance, to be done through the Private Law Working Group together with The Harm Panel’s implementation group whose final recommendations may in turn lead to changes to the FPR or in the issuing of fresh guidance through the medium of a Practice Direction.

The Court of Appeal had this specific comment to make about coercive and controlling behaviour

Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD12J, paragraph 16, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).


A Court of Protection case about whether one of the litigants was able to make their own tape-recordings, and what happens when the Court have finally had enough of volume and timbre of email correspondence.

Re TA Recording of hearings 2021

TA, Re (Recording of hearings; Communication with Court office) [2021] EWCOP 3 (22 January 2021) (

Cobb J dealt with this case, which involved more broadly a woman with Alzheimers and decisions about her future, but specifically with her son, TA, whom it would be fair to say had a difference of opinion with the local authority about these matters.

TA wished to tape record the Court hearings and sought permission to do so. (also raising within his application that he did not consider it reasonable for the Court to record him in the hearings if he were not able to do the same, thus raising the issue in law as to whether an individual has any powers under data protection legislation to prevent that without his consent)

  1. By a COP9 application dated 17 November 2020, TA seeks permission to record the court hearings concerning GA. He justifies this on the basis that he has a need, following each hearing, to be able to revisit the issues discussed in court, and that he cannot be expected to take handwritten notes alongside making full representation before the court as a litigant in person. In a further COP9 application purportedly issued on the morning of the hearing (15 January 2021), TA requested further and specific permission to audio and visually record the hearing before me. In the accompanying e-mail (15 January 2021), he said this:

“… under NO circumstances shall I be entering the jurisdiction of the Court and presenting myself before Mr Justice Cobb without making a private recording of the event.
Therefore, either permission is granted or I be prevented from entering the Court’s jurisdiction. I am under no legal obligation to enter the jurisdiction of the Court, unrepresented as a litigant in person, and to then have my voice recorded without my express permission and at the same time prevented from procuring a copy of said recording in clear contravention of the Data Protection Act 2018, and then forced to pay for a transcription of said recording, without access to the actual audio recording itself.
I will no longer be compromised on this matter.”

TA further developed an argument at the hearing based on the hearing being remote – in effect, he was not in the physical Court building, he was in his own home, and thus (a) he should be allowed to do what he wanted in his own home and (b) that the Court were in effect recording him in his own home, thus interfering with his article 8 rights.

At the hearing, and pending my decision on his application, TA advised me that he was not recording the hearing. He expanded his arguments on this application at some length during the hearing. He made the following points:
i) It is in breach of his human rights to be denied the right (“as a free person”) to record conversations; that he has a right to make recordings of anyone entering his “jurisdiction”, by which I understood he meant his home;

ii) He challenges the contention (see 10 below) that he has published recorded information relating to these proceedings in the past, and that by posting material from, or related to, these proceedings on to a private ‘YouTube’ channel he is not “publishing” information and the video clips are not therefore in the public domain;

iii) The Local Authority employees are “pathological liars”, and he has suffered “discrimination” from many judges (“bullied, intimidated and victimised”), and he needs the recordings in order to evidence this;

iv) He has experienced unnecessary delay in obtaining transcripts in the past; the transcripts have been costly, and in any event transcripts “do not capture the whole intonation and the silences in the court”;

v) There is an incongruity between the practices of different courts;

vi) Opposition to his application for the right to record has been driven by a wish to “censor” TA;

vii) He would wish the recording “for my own protection and benefit”.

In developing these points orally, at times TA appeared to suggest that as he was not ‘in court’ and was “outside the jurisdiction of the court”, he could record conversations as he wished. I reminded him that although he was not physically in a court building, he was every bit as much ‘in a court’ on the video platform.

At this point, whilst I can predict what the eventual answer might be, I’m not quite sure how the Judge is going to get there, but as it is a Cobb J judgment you know that we will get an explanation which is clear, succinct and right. Here we go:-

I would like to make three points about this application. First, as to the recording itself, the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies. The 2020 Act introduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which:
i) empower the court to direct that a recording of the proceedings be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings;

ii) create a criminal offence for a person to make, or attempt to make an unauthorised recording, or an unauthorised transmission, of an image or sound which is being broadcast in accordance with the law.

Nonetheless, as Hayden J, as Vice President of the Court of Protection, made clear in his guidance to which I have earlier referred (‘Remote Access to the Court of Protection’: 31.3.2020), the terms of the statutory criminal prohibitions (as adapted) were to be included in every standard order thereafter, accompanied by a penal notice and punishable by contempt proceedings. I have reviewed the orders made in this case since that time, and am satisfied that such orders have indeed from time to time been made and repeated. Furthermore, consistent with this approach, the Court Associate who called the case on before me, on 15 January 2021, made clear in her introduction to the hearing, that “under no circumstances” could the hearing be privately recorded.

Secondly, and in any event, (and as TA himself acknowledged at the hearing), it would be a contempt of court, punishable by imprisonment, for any party to record a hearing without the permission of the judge: see section 9 of the Contempt of Court Act 1981 (‘Use of Tape Recorders’). While I have a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526), I would need to be satisfied that the applicant had a reasonable need to make such a recording. I am far from persuaded that TA can demonstrate such a need; indeed, by contrast, I am wholly satisfied that TA has a very good (I would suggest an extraordinary), grasp of the procedures, the documents and the issues engaged in these proceedings.
I therefore advise, or more accurately remind, TA that while it may not be a statutory criminal offence to record the proceedings or any part of them unless he is authorised to do so, this would nonetheless be a civil contempt, punishable by imprisonment.

The application for TA to conduct his own tape recording was refused.

The secondary matter which arose was the nature and volume of TA’s email correspondence with the Court of Protection court office.

In the latter part of last year, it had come to the attention of HHJ Anderson (one of the two Regional Lead Court of Protection Judges in the North East, and previously the allocated judge for this case) that TA’s conduct towards, and correspondence with, the Court of Protection court office in Leeds had become excessive and may warrant some proscription. On 10 December 2020 HHJ Anderson directed of the court’s own motion that the issue of TA’s communication with the court office be considered specifically by the Court; she invited me to deal with this. HHJ Anderson made an order directing the preparation of a witness statement from the Operations Manager at the Court of Protection court office, and gave TA the opportunity to reply.
The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.
The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation.
I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).
As mentioned above, since the hearing on 15 January 2021, TA has sent two further e-mails copied to the court (and again copying in significant number of others). The e-mail is addressed (as many of his e-mails are) to “Dear Coalition Of My Mother’s Persecutors (COMMP)”. In one, he states, and repeats a number of times, the following narrative:
“You can beat me to my knees, it only makes me stronger. I am unbreakable!! Did you hear me? DID YOU HEAR ME [Local Authority]! I am unbreakable. I am UNBREAKABLE, I AM UNBREAKABLE!!! The strength that lies in my heart is like no other. The determination that lives inside me is equal to no other. Every day, I wake up, I promise myself, I will make it, and I never break a promise I make to myself! I am unbreakable. I am Unbreakable.. I AM UNBREAKABLE!!!”
TA denies that his correspondence with the court has been excessive, inappropriate, or intemperate. He describes the Operations Manager’s written evidence as a “badly drafted pathetic attempt at a fraudulent witness statement”. He does not dispute the volume of his correspondence; he seeks to justify his correspondence, referring inter alia to the fact that there are five separate pieces of litigation in which he is involved, and specifically, further, that:
“HMCTS staff have deliberately destroyed my Court submitted evidence, of a year’s worth of unused medication is marginalised and ignored and refused to be addressed to date. This was a deliberate attempt by HMCTS staff to pervert the course of justice in collaboration with [the local authority] and the Official Solicitor and [the judge], and is a serious criminal offence in law of looking to pervert the course of justice, which no doubt [the Operations Manager] is looking to find ways to get out of by discredit my name in a scapegoating exercise”

It happens from time to time that a Local Authority reach a point with a lay person where the correspondence becomes of a volume or nature where the LA make a decision to stop engaging in it. I’ve never seen this happen with the Court, although of course there is the list of Vexatious Litigants, who are not allowed to commence Court proceedings where there’s some degree of overlap. Occasionally one sees a judgment where a High Court Judge makes polite but clearly wearied reference to the degree of correspondence that they are beseiged with from a particular party to the proceedings.

In my finding, there is no justification for the volume or indeed the tone of much of the e-mail correspondence from TA to the Court which has been presented to me. It is easy to see how those working in the Court of Proceedings court office could have felt easily overwhelmed by the communications from TA. His contact with the court office is and has been wholly disproportionate to the issues in the linked cases; the time taken for the hard-pressed staff to manage this correspondence (and his phone calls) will doubtless have materially distracted them from dealing with the many other Court of Protection cases which require their attention.
I have reminded myself of what King LJ said, albeit obiter, in Agarwala v Agarwala [2016] EWCA Civ 1252; in that case, she was concerned with a business dispute which had been running for almost seven years. In a postscript to her judgment ([71]/[72]), she said this:
“It has taken up countless court and judge hours as both parties, incapable of compromise, have bombarded the court with endless applications, such that [counsel for the appellant] now tells the court the judge has had to make orders that neither party may make an application without the leave of the court. The refusal of either party to accept any ruling or decision of the court has meant that the court staff and judge have been inundated with emails, which they have had to deal with as best they could, with limited time and even more limited resources. The inevitable consequence has been that matters have been dealt with “on the hoof” on occasion without formal applications or subsequent decisions being converted into formal rulings or orders.”
She added:

“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.” (emphasis added).
It seems to me that I can and should adopt here the approach suggested by King LJ, by making orders specifically designed to protect the administrative processes of the Court of Protection generally and to prevent its procedure from being abused. Support for this course is further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ made the following observations as to the scope of this jurisdiction at [35]:
“…the court’s supervisory role now extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court. It includes the regulation of the manner in which the court process may in general be utilised. It is of course well established that the High Court may, in appropriate circumstances, grant an injunction to restrain an anticipated interference with the administration of justice, amounting to a contempt (Attorney-General v Times Newspapers Ltd [1974] AC 273, 293G-294A, 306B). The advent of the Civil Procedure Rules only serves to bolster the principle that in the exercise of its inherent jurisdiction the court has the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in a completely obsessive pursuit of their own litigation, taking it forward by one unmeritorious application after another and insisting that they should be afforded priority over other litigants.”
Taking my cue from these judgments, and for the reasons set out above, I propose to make an injunction, in the terms set out at the foot of this judgment, to restrain TA hereafter from communicating with the court office by e-mail and telephone. While this is undoubtedly an exceptional order, it is in my judgment entirely justified by the facts of the case; there is a substantial risk that the process of the court will continue to be seriously abused, and that the proper administration of justice in the future will be seriously impeded by TA unless I intervene now with appropriate injunctive relief. In my judgment the order represents a proportionate restriction on TA’s ability to communicate with the court office; he may continue (should he have the need to do so) by sending letters to the court office through the agency of Royal Mail. TA should note, however, my direction that he cannot expect a response from anyone in the court office (which may in fact be by e-mail from the court office if they choose) to his correspondence, if his correspondence with the court office is abusive. While Brooke LJ contemplated that this jurisdiction could or would be exercised by the High Court deploying its inherent jurisdiction, I propose to use the power invested in me by section 47(1) Mental Capacity Act 2005, given that the order is made “in connection with” the exercise of my wider jurisdiction within the Court of Protection. I propose to attach a penal notice to that injunction, so that it may be enforced, if a breach is proved to the required standard, by committal to prison if necessary.

Mayweather with the jab

Well, we all knew that the Covid vaccine would end up being litigated in the family Court, but I wasn’t expecting a published judgment on the issue a week after the first jabs were being given.

M v H (Private law : Vaccination) 2020

M v H (Private Law: Vaccination) [2020] EWFC 93 (15 December 2020) (

It seems that there was already litigation about whether two children should or should not have the MMR vaccine, and the Covid vaccine issue just got tacked on to it. Father said they should, mother said they should not.

The mother asserted that she had done six years of ‘extensive research’ into vaccination. However…

  1. As I have noted, the mother filed and served two detailed statements setting out in clear terms her objection to the father’s application. It is clear that those statements represent, in part, the product of what the mother described in evidence as six years’ worth of extensive “research” into the question of vaccination. In circumstances where the mother readily conceded during cross-examination by Mr Hunt that she had no scientific qualifications beyond school level biology, it was also clear that the mother used the term “research” to describe the process of information gathering online that had provided her with the material which underpinned her arguments against the vaccination of the children.
  2. The material relied on by the mother in her statements comprised a newspaper article, a document that purported to be the factsheet from an MMR vaccine, a flyer entitled “The Babies Aborted for Vaccines”, a list of papers which, and doctors who maintain that there is a link between the MMR vaccine and autism, a list entitled “Historical Data on Vaccines and Outbreaks” and, as I have mentioned, material from an American paediatrician called Larry Palevsky, who the mother described as “world renowned” but who also appears, from the information contained in the mother’s evidence and the online material she invited me to consider, to be a very vocal advocate against vaccination engaged in advancing a very specific anti-vaccine agenda. In her second statement the mother cited a paper said to demonstrate that refined sugar reduces a child’s immunity for up to five hours, a paper said to demonstrate the health outcomes for unvaccinated children are better than for vaccinated children and a YouTube link to a video from Dr Suzanne Humphries, an American nephrologist. Once again, it is apparent from this material that Dr Humphries is also very vocal advocate against vaccination engaged in advancing a very specific anti-vaccine agenda.

So whilst the mother was massively overqualified, having studied biology at school, to be an opinion writer on Covid 19 for the Daily Telegraph or the Spectator, she was somewhat underqualified to be giving expert evidence in the Court. (To stop being catty for a moment, the Court were very complimentary about the way that she presented her case, the questions she posed and how on top of the detail she was)

The Judge made it clear at the outset that it was premature to make any specific issue order about vaccination for Covid-19, but that this should NOT be taken to be an indication that the Court considered the vaccine unsafe or unwise or not in children’s interests, but that it was at such an early stage of the vaccination programme that it was impossible even to speculate as to when the NHS might begin making the vaccine available to children (and that of course at present, there are three approved vaccines and who knows which particular one might be administered in due course) :-

 I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children. As I make clear at the conclusion of this judgment, having regard to the principles that I reiterate below it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidenced contraindication specific to that subject child. However, given a degree of uncertainty that remains as to the precise position of children with respect to one or more of the COVID-19 vaccines consequent upon the dispute in this case having arisen at a point very early in the COVID-19 vaccination programme, I am satisfied it would be premature to determine the dispute that has arisen in this case regarding that vaccine.

On the other vaccinations, the Court followed the authorities that are now clear , and helpfully set out and summarised for anyone who may need them.

  1. In all the circumstances, holding P and T’s best interests as my paramount consideration and having regard to the matters I am required to consider under s. 1(3) of the Children Act 1989, I am satisfied that best interests of both P and T to be vaccinated in accordance with the NHS vaccination schedule. It is now clearly established on the basis of credible, peer reviewed scientific evidence that it is generally in the best interests of otherwise healthy children to be vaccinated with those vaccines recommended for children by Public Health England and set out in the routine immunisation schedule which is found in the Green Book published in 2013 and updated as necessary since. It is equally well established that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects. The mother has placed no evidence before the court to gainsay these conclusions in respect of P and T, either by way of a medical contra-indication specific to either child or new, credible evidence regarding the safety and efficacy of the vaccines set out in the NHS schedule of vaccinations. I am satisfied on the evidence before the court that there are no other welfare considerations that are contra-indicative to P and T to receiving those vaccinations having regard to s. 1(3) of the Children Act 1989.
  2. Having regard to the reasons set out above, I make a specific issue order pursuant to s. 8 of the Children Act 1989 requiring each of the children to be given each of the childhood vaccines that are currently specified on the NHS vaccination schedule with the father to be responsible for arranging the same and ensuring T and P are taken to the GP for scheduled immunisations for the remainder of their childhood. A copy of the order in this regard will be sent to the children’s GP by the solicitor for the children and placed on each of the children’s medical records. I will reserve to myself in the first instance any future applications with respect to vaccinations against the virus responsible for causing COVID-19 and vaccinations for the purposes of travel.
  3. Finally, whilst the Court of Appeal did not reach a definitive conclusion on the question of whether, in private law proceedings, the question of vaccination should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, the observations of the Court of Appeal in in Re H (A Child: Parental Responsibility: Vaccination) summarised at paragraph [40] of this judgment, whilst strictly obiter, make it very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19, would not be endorsed by the court as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject child.

I’m sure this isn’t the last we will see of this sort of litigation and this case doesn’t provide a final answer, but it is a very helpful encapsulation of the key issues and the guidance provided by authorities.