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Can and should a Local Authority facilitate the use of sex workers for a vulnerable adult?


This is an issue that comes up from time to time, and it provokes a lot of contentious debate on either side. On the one hand, there’s the argument that sex work is exploitative and in this country subject to criminal laws.  On the other, there’s the argument that there are certain vulnerable adults who have appetites and needs and are not able to have those needs met any other way.   I’m taking no moral stand either way on this argument, just reporting what the High Court, in this particular case before Keehan J, decided.

 

In this case, the Local Authority went to the Court of Protection to say that they did not feel that facilitating P’s use of sex workers either in this country where it would be illegal, or by facilitating his travel to the Netherlands where it would be, was in his interests and that they did not wish to do it, and sought a declaration from the Court to that effect.

https://www.bailii.org/ew/cases/EWCOP/2019/43.html

 

Lincolnshire County Council v AB [2019] EWCOP 43 (08 May 2019)

 

1.These proceedings in the Court of Protection are brought by Lincolnshire County Council in relation to a man, AB, whom I shall refer to as ‘P’ in this judgment. He is a 51-year-old man with a diagnosis of moderate learning disabilities, autistic spectrum disorder, harmful use of alcohol and psychosis due to solvent abuse. He suffered, sadly, a chaotic childhood. He had difficulties engaging in mainstream education and spent much of his childhood in boarding schools, due to concerns about his behaviour, which are recorded as having been inappropriately sexualised from a young age.

2.He was first detained under the Mental Health Act 1983 in 1985. Thereafter, he was detained on a further 10 occasions between 1985 and 2003, generally as a result of interpersonal conflicts, alcohol abuse or withdrawal hallucinations and seizures. In 2000, P moved into his own property and began a relationship with a woman, who was noted to have exerted significant influence over him. The pair are recorded as falling into a pattern of drinking and engaging in antisocial behaviour in public. In July 2003, P was evicted from his flat, having caused significant and substantial structural damage.

3.In October 2003, he was admitted to hospital. Thereafter, he was detained under section 3 of the Mental Health Act and he remained in various psychiatric facilities for the next seven years. On his discharge in October 2010, P moved to another placement. It was here that he developed a friendship with a local prostitute and thereafter, began his fascination with female sex workers. He has since lived at a number of residential properties and during this time he has been facilitated to access sex workers, and then on occasions, to travel to the Netherlands to have sex with prostitutes there. In November 2008, he moved to his new supported placement. In April 2018, Lincolnshire County Council made an application for the court to determine P’s capacity and best interests, specifically with regard to contact with sex workers.

4.Evidence was sought from Dr Lisa Rippon, who concluded that P lacked capacity in all relevant domains, save the capacity to consent to sex. On the issue of contact, and particularly contact with sex workers, she said as follows:

“P has limited insight into the risks that others might pose to him, including sex workers, and overestimated his ability to keep himself safe. He could not think through the potential consequences of visiting sex workers, including the possibility of financial exploitation or involvement with the criminal justice system. I believe that P failed to both understand the information necessary to make decisions about contact and was unable to weigh up the benefits and risks. It is therefore my opinion, that P lacks capacity in this area and this is as a result of his learning disability and autism.”

5.The position now, is that the local authority do not intend to facilitate P’s access to sex workers, whether in this country or abroad, in particular in the Netherlands. They set out their reasons in a detailed and helpful position statement. P’s litigation friend has visited him on a number of occasions in the recent past to gain his views. P, it is said by his litigation friend, has a high sex drive and finds the lack of access to sex workers frustrating. He has stated that self-pleasuring using pornography, sex dolls and toys, is not the same as having physical contact with a woman. He would wish to continue his past conduct of having and being permitted to have sexual relations with sex workers, here and in the Netherlands.

 

 

That sets up the background and the judgment then moves onto the decision

 

Conclusion
6.I have due regard to P’s wishes and desires. But I have come to the clear conclusion that the local authority have adopted the right decision and approach, in not seeking to facilitate his contact with sex workers either here or abroad.

7.In coming to that conclusion, I have had regard to s.2 of the Mental Capacity Act 2005. There has been no change in the P’s circumstances, namely that he lacks capacity as I had set out above. I have also had regard to ss.3 and 4 of the 2005 Act. I note that a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence, pursuant to ss. 39,42 and 53A of the Sexual Offences Act 2003.

8.If care workers who look after and support P, were to facilitate such activity, they would be committing a criminal offence and any declaration by me, would not alleviate their liability to be prosecuted. In the Netherlands, of course, prostitution and payment for sexual services are not illegal. But in my judgment, there is a very real risk that if a care worker here, supporting P, made arrangements for him to travel to the Netherlands for the purposes of having sexual activity with a woman for payment, they would be at risk of being prosecuted for a breach of the Sexual Offences Act 2003.

9.Accordingly, I would not be minded to make any declaration permitting care workers or the local authority to arrange for P to have sexual activity in exchange for payment with a woman, either in this country or in the Netherlands. Secondly, and in any event, I consider it would be wholly contrary to public policy for this court and for this local authority, to endorse and sanction P having sexual relations with a woman for payment. Thirdly, and in any event, notwithstanding P’s clearly expressed wishes and his clear desires to continue to meet prostitutes for sexual activity, I do not consider it is in his best interests to do so. I have well in mind, his expressed views that he does not consider that he would otherwise be able to have a relationship with a woman and therefore, he sees no alternative but to seek to use the services of prostitutes.

10.I have regard to the fact that he finds self-pleasuring is not of the same enjoyment or satisfaction as having sexual relations with a woman. In light of the opinion of Dr Rippon, however, it is clear that P does not understand all of the implications of having sexual relations with a woman for payment. He puts himself at risk to his health, his welfare and his safety and he puts himself at risk of exploitation: none of which he accepts or understands. In those circumstances, I am entirely satisfied that it is wholly contrary to his best interests for him to have sexual relations with prostitutes. Still less, is it appropriate for this court to sanction the same. On behalf of P, his litigation friend through counsel, Miss Twist, acknowledged those factors, not least the impact of the criminal law and did not seek to pursue an application for the court to grant such declarations. In my judgment, that was an entirely right and appropriate decision.

11.I have been asked to give this short extempore judgment, so that it may be transcribed and a copy given to P, so that he may know why the court has come to the above conclusions. I entirely accept that P will be, to put it mildly, disappointed by and he will undoubtedly not agree with my decision. Nevertheless, I am satisfied that the conclusions I have reached are in his best interests.

 

Hounds of justice

 

 

 

I was momentarily tempted to headline this piece

 

Qui odoratus Isacus, de qua n eam

But then I remembered that I didn't do Latin at school, so I've no way of checking whether 
Google translate is right when it claims that this is the Latin for "He who smelt it, dealt it". And I knew the comments would be full of corrections to it.


This is a curious little case, involving a flawed ABE interview.  Not that unusual, it is more startling to find a judgment which commends the ABE for good practice than castigates it for bad.

This one though involves both anatomically correct dolls being used by the intermediary (The 1980s faxed and said "hi") and a dog being brought in. 

Yes, a dog. 

A real one. 

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B36.html

Re J and K (Flawed ABE interview) 2019

 I don't think His Honour Judge Hayes QC was too enamoured with this process. 


  1. As to the presence of B the dog in the interview room, I have never before seen a dog present during an ABE interview. There was no good reason to have a dog in the room and I find that it was misguided to have the dog present.  What took place during the video (summarised below) amply demonstrates why I say this.
  2. The purpose of the video was to speak to and elicit a free narrative from J.  And yet there were frequent times during the video when the dog took centre stage and attention / comments were directed to the dog rather than J. At one point, the dog took up a position on one of the chairs. The chair was there for child J, not the dog.
  3. On more than one occasion, the dog licked J on the face and on her hand.  J was distracted by this.  The adults were enamoured by it.  I was left asking myself why it was happening at all during an ABE interview of a young child


At one stage, after a vitally important (and pretty leading)question had been asked, the whole interview then forgets itself because of a certain doggy odour 

J Because he said, “Don’t ever tell anybody and we’ll do it, er, when mummy isn’t here and when mummy is here we’ll cover them up”
Officer Okay.  Do you smell a little smell in the room?  Do you think B has [done] a little trump?
J Yeah.
Intermediary Has she?
Officer I’m not sure.  I think so.
Intermediary Oh no.
Officer That’s okay.  She’s okay. Can you smell it or it is just me?
Intermediary I can’t smell anything.
J I can.
Intermediary Can you? Oh no, it’s probably going to reach me in a minute.
Officer That’s okay.
Intermediary Sometimes she gets a bit of wind.
Officer That’s okay.  That’s what animals do isn’t it?
J And we do.
Intermediary Yes, and we do.


So it was that what J said at the start of the above exchange about what her father had said to her (clearly a worrying account) was not developed any further.  The smell made by the dog distracted the attention of the officer, the intermediary and the child. The conversation turned from what J said to a discussion about the dog breaking wind.  It is simply unacceptable that that this happened.

 

[65]  As I have said, the observations that I have made do not, in the circumstances of this case, have any bearing on my findings of fact.  But the errors that were made could – in other circumstances – have had serious evidential consequences. A poorly conducted ABE interview has some parallels with a police officer (or some other person) trampling over a potential crime scene rather than adhering to essential forensic guidelines.

 

[66]  The video interview of J on 22 November 2016 regrettably strayed from its objective of “achieving best evidence” from the child.  It would be helpful for my observations to be fed back to the officer and the intermediary and, subject to considering any representations to the contrary by the parties, I will give permission for them to see this Judgment (or part thereof) for that purpose.  My observations are intended to be constructive criticism .  I hope that they are read in that spirit and that those involved will reflect on what went wrong and avoid making the same mistakes in the future.



Maybe I should have called it Never Work with Children AND animals...

All at sea

 

Hi everyone.  It turns out we are all dead.

I’m not sure in our current political climate whether that is a shock or a blessed relief to us all. It certainly explains a lot.

Hayden J was dealing with an application under section 33 (and the inherent jurisdiction) for a Local Authority who held an interim care order to register the child’s birth, the father strenuously objecting to the birth to be registered.

 

Why?

Because we are dead, obviously.

That’s not fair. Some people aren’t dead, but those people are under seven and not reading my blog.

If you are over seven, you are legally dead *

 

(*is the argument being put forward in this case. It is NOT my opinion, and anyone contacting Norwich Union in the hope of getting their life insurance payout may be out of luck. Not least because they are Aviva now)

 

T (A child), Re [2019] EWHC 1572 (Fam) (12 June 2019)

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1572.html

 

But before I even get into explaining why we are all legally dead, here’s a picture of Blue.  Which will also be skilfully woven into this delicious narrative.  Buckle up, buckaroo.

 

I rest my case

 

 

  1. F has strong beliefs surrounding the concept of “sovereignty”. This is a very particular concept for him. It has nothing at all to do with contemporary debate. It is essentially a personal ideology. F believes that central to the concept is the power and writ of the individual. ‘We are each…’, he says, ‘our own sovereign. We come from the Earth, we are the creations of the universe. We are governed by a Common Law but only to the extent that we depart from three principles. These three imperatives are: to do no harm; to cause no loss; to inflict no injury.’ In circumstances where they are proved to have occurred, to the criminal standard of proof, F asserts that what he calls the Common Law is then triggered.
  2. He places great emphasis on The Cestui Cue Vie Act 1666. In the 1666 Act Section 1, F tells me, there are provisions which state ‘that if a title or living being does not prove themselves alive after 7 years they are considered lost at sea. This is the means for government to take control of the dead entity’s property.’ F believes this to be the route by which the government ‘help themselves to money and property.’ We are in such circumstances considered ‘dead entity in the eyes of the law.’ In a graphic and powerful metaphor F states to me that we ‘come to life and are temporarily risen from the dead when summonsed to court’. The requirement to ‘all rise’ when the judge enters the court is symbolic of rising for the resurrection. These views may sound unusual and somewhat eccentric. They are, however, genuinely held and I have done my best to summarise them.
  3. It is in this context that when a birth is registered, F considers this to be the equivalent of an ‘entry into a ship’s manifest’, in which the child becomes ‘an asset to the country which has boarded a vessel to sail on the high seas.’ This facet of admiralty and maritime law is pervasive in F’s thinking. The essence of F’s objection is his belief that registration will cause his son to become controlled by a State which he perceives to be authoritarian and capricious.
  4. T has been given a name and surname but F strenuously resists registration. This is notwithstanding that a failure to do so is, in a variety of practical ways, likely to serve as an impediment to the promotion of T’s welfare as well as to have an adverse impact on F’s own legal status

 

And boy does researching The Cestui Cue Vie Act 1666 take you down some rabbit-holes.  It crops up quite a lot in the  ‘law only applies to me if I agree to it’ fallacy,  and my favourite bit was

 

“When a ship BERTHS, it is given a CERTIFICATE at a DOCK,  and the Government gives you a BIRTH CERTIFICATE from a DOC, so you’re just a ship owned by the Government”

That’s someone for whom rolls of  tin-foil (9)  is always in their Ocado basket.

 

Anyway, The Cestue Cue Vie Act 1666 does not assert that everyone is legally dead unless they prove every seven years that they are alive, of course not.  It says that if a person is missing without trace for seven years they can be pronounced legally dead without their creditors or heirs having to legally prove that they are dead.

 

The Judge kindly, but sadly for me, avoids getting into legal analysis of whether the father was right, and just decides that there are benefits for a child being registered as a citizen and getting those rights, and rules that the Local Authority can do it under section 33 of the Children Act 1989  (in doing so, considering one of my favourite cases where the mother tried to name her daughter Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/  )

 

The Judge also ruled that s33 was sufficient, and the inherent jurisdiction wouldn’t work here.

 

  1. It requires to be stated that such an order is inconsistent with my conclusion that Section 33 (3) CA 1989 is apt to address the requirement for registration. In London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) I made it clear that the inherent jurisdiction of the High Court is not, as I termed it there, ‘a lawless void’ permitting judges to do all that which we consider to be right and helpful. Its power is only available through the gateway of Section 100 CA 1989. It is perhaps helpful to reiterate what I said in London Borough of Redbridge v SNA (supra):
    1. “33. The concept of the ‘inherent jurisdiction’ is by its nature illusive to definition.  Certainly, it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’.  But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited.  Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way, that is faithful to its evolution.  It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.”

Disclosure

 

This is not a new topic, but it bears repeating.

 

Please don’t use the word ‘disclosure’ when the word ‘said’  or ‘alleged’ would do better.

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/532.html 

 

[33] … despite the fact that the use of the term ‘disclosure’ to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term ‘disclosure’ to describe what the children had said to them).

 

Disclose means to make known, to cause to appear, to allow to be seen.  It has the connotation of truth.  Whether you believe the allegation or not, until the Court has determined it, it is an allegation not a disclosure. I understand why social workers might feel uncomfortable about saying ‘alleged’ but ‘said’ or ‘told’ conveys perfectly well that the child SAID X, without giving a value judgment of ‘and X is true’

 

By way of concrete example, I can DISCLOSE to you that I think Natalie Portman is a fine looking woman.  If, however, I tell you that I had a relationship with Natalie Portman and that she initiated it, you can’t properly say that I DISCLOSED that to you.   That’s an allegation, not a disclosure.  It might be true, it might not be.  (It is not)

But if I tell you that, you’d be wrong to say I disclosed it to you.  Stick with ‘said’

 

Example pulled out of thin air.

 

If you want to do one small thing to improve your written work, a find/replace on disclose / disclosure is a good start.  Hint, if you are not using the word ‘disclosure’ in a Court document to mean ‘a bunch of documents provided by someone’ just find a replacement word.    This is not just social workers, a random trawl on Bailii found me a dozen examples of the very best and brightest of our judiciary using it in judgments. Old habits die hard.

 

For further reading, I recommend

 

Things children say – Disclosure, allegations and why language matters

 

 

and

 

https://dbfamilylaw.wordpress.com/2018/02/06/listening-to-children-and-disclosure/

a Hayden to nothing – or “has a Judge just decided that a man has a right to sex with his wife?”

 

There isn’t a judgment on this, because it is a case that has not yet been decided, but given that it was the number one article on most viewed on the Guardian this morning (and it is still top ten) and my twitter stream is full of very outraged people  (some of whom know why they are outraged and are right, and some don’t know why and are outraged for the wrong reasons), I thought I’d write about it.

https://www.theguardian.com/law/2019/apr/03/english-judge-says-man-having-sex-with-wife-is-fundamental-human-right

 

It involves a Court of Protection case in which a woman with learning difficulties is facing a deterioration in her ability to make decisions, and may have reached the stage where she can no longer consent to sex  (The legal test for an adult to consent to sex is whether they understand, or are capable of understanding, three things. 1. The mechanical process. 2. the risk of pregnancy and how to avoid that. 3 the risk of STDs and how to avoid that.  So it is a low bar, and if someone is as an adult a person who used to be able to consent and now there are doubts, that must be a horrendous situation for her and everyone who cares about her. Note that the Court have not YET decided whether she lacks capacity, from the Press report)

 

The husband said that he would agree not to have sex with his wife whilst all of this was looked at, and was willing to give an undertaking to the Court (a promise that he could be sent to prison for if he breached it). Social workers wanted there to be an order instead.

 

The Judge, with a Press Association journalist present, was considering the case. Mr Justice Hayden said “I cannot think of any more obviously fundamental human right than of a man to have sex with his wife – and the right of the State to monitor that. I think he is entitled to have it properly argued.”

 

Now, I personally would have said something like “It is important that a Judge, before allowing the State to control and monitor what goes on in the bedroom between two adults in a relationship, should carefully consider the evidence and hear proper argument about that”

And that wouldn’t, it seem to me to be controversial.

 

So, if you are annoyed because

 

A) A Judge has ruled that the old setting of ‘there’s no rape in marriage, men are entitled to sex from their wives regardless of the wife’s feelings’ has come back

 

then you can stop being annoyed about that, because that hasn’t happened. And also couldn’t happen, because the decision to overturn that barbaric proposition was in an Act of Parliament and the Courts have no power to overturn Acts of Parliament.

 

If, however, you are annoyed because

 

B) Language has power, words have power, ideas have power, and the old law that allowed wives to be raped under the guise that they were property of men and men were entitled to complete autonomy over their body is such a barbaric and not that old view that it is necessary to be very mindful of the sensibilities of language when thinking about any wording that implies that a man has rights over a woman’s body EVEN WHEN YOU DON’T MEAN THAT

 

then you are fully entitled to be annoyed about that, and it is a subject well worthy of debate.

 

I think the Judge could have expressed his thoughts much more clearly, and been alive to the landmine of ‘conjugal rights’ and women as chattels that was in his path, and been very very clear that he was talking about the rights of both men and women to have respect for their private life from the State and the State should only interfere where it is necessary and proportionate to safeguard others.

I fully accept that my view of his words has to be coloured by the fact that I am a man and not a woman and so I need to check my privilege – I’m sure that I would have a different perspective to bring to this issue if I were female. You might well end up thinking that there’s not a chasm of difference between A and B, and that to say B you must have thoughts in your mind that A is not that bad. I don’t know that I’d go that far, but I accept that others might.

 

I hope there’s going to be some judicial clarification published. My twitter feed is awash with people thinking A) or if not A) that this is a Judge who wishes he could do A) and is probably going to let some awful rapist off.

 

It is worth remembering that in all of this, there is a man and a woman, who are already going through a dreadful ordeal that you wouldn’t wish on anyone, and the Press coverage is probably making that even worse. If you are that man and you wanted to talk to a friend or colleague about what is happening to you, you probably can’t do that today.

 

Research by ALC on “Fire-eating Courts” (sorry, “Settlement Conferences”)

 

 

We are still waiting for the Ministry of Justice research on the settlement conference pilot.  I think we’re two years overdue on the publication of the research into the impact of the legal aid cuts, so I shall not hold my breath on that research.

 

The Association of Lawyers for Children, have done their own research, conducted by Dr Julia Brophy. To be fair, I will caveat the research with these three propositions

 

  1. The ALC were very clear as to their doubts about Settlement Conferences before the pilot was launched
  2. The research is what we call ‘qualitative’ – as in it is asking people for their experiences, rather than the mooted MOJ research which has access to Court statistics and can say how many Settlement Conferences happened, how many achieved an agreed outcome, what the cost savings of not going on to final hearing were and time savings for decisions for children versus the ones that didn’t, and just built in an extra hearing
  3. The sample size of 19 respondents is small (and as the research says, was self-selecting, in that it was people who responded to the ALC’s request for volunteers, so perhaps that tends to select those who are unhappy rather than those who were happy)

 

(The fire-eating Court, in the title, is a callback to my blog about the risible conference where The Powers That Might Be Giants tried to placate legitimate concerns about Settlement Conferences with fluffy responses telling us we were all just silly)

https://suesspiciousminds.com/2016/12/21/fire-eating-pilot/

 

I’ll give my own caveat for this post – I was extremely dubious about Settlement Conferences and my own Courts have been a pilot.  I remain very dubious that a national roll-out would be advisable – but I’ve had some positive experiences of Settlement Conferences, as well as one that was sadly ghastly and ended with people in tears. My own experiences would be more positive than the sample size in this research  (but even then, I’d say that just like FDAC it is the skill and approach of the individual Judge rather than the idea and philosophy itself that makes the difference between success and failure.)  I have certainly not observed the judicial pressure spoken of in the research, but have been told about it by lawyers in other parts of the country and I know it happens.

 

The ALC research, even with those caveats is damning.  In every regard

 

Click to access Settlement_Conference_Research_Report_.pdf

 

 

Some of the things that really struck me

 

The Protocol Principles (2016) were not applied consistently by judges. Variation in approaches

covered the delivery of a preamble, attention to consent during the procedure, pressure on

parties and advocates, and approaches to the involvement of advocates.

 

Very few judges made explicit their criteria for selecting cases; almost all respondents (17/19)

did not know how or why their case(s) had been selected. In one court all cases were selected,

in others, respondents thought selection was random or idiosyncratic.

 

Some respondents (8/19) had not observed imposition of the procedure on parties but there

were concerns that once a judge presented the procedure as ‘routine’/the ‘norm’, it becomes

very hard to resist.

Similar numbers (7/19) reported the procedure had been imposed on a party. Examples

included parents with limited capacity, some who did not really understand the proposal and

some reported as bewildered by the procedure

 

A small number of judges were variously described as brutal, harsh, blunt and insensitive with

parents, with the latter effectively backed into a corner.

 

A minority of judges were described as not exerting pressure on parents to concede an order;

most however applied some pressure: it could be direct and forceful – or it could be subtle but

potentially disarming – or it could be both.

 

Some parents were unhappy about the approach of some judges in trying to persuade them

to agree to an order; some left the court in distress, some reported feeling bullied, threatened,

intimidated and coerced.

 

Overall, 5/19 respondents experienced at least one procedure where it had not been possible

or it was difficult to give a client advice during the procedure

 

The picture is mixed; very few respondents (2/19) said unreservedly, the procedure was fair;

5/19 respondents said it had not been fair.

Many (8/19) had mixed experiences; it had been fair in some cases but not in others. A small

number (3/19) said while procedures were fair ‘in the main’, there were pockets of concern

and thus caveats.

 

Overall, most advocates said a properly conducted IRH could have reached the same result but

restrictions on the time allocated to the IRH mean it is now largely ‘administrative’ with little/

no time for judicially led discussion, negotiation and party reflection.

 

There has been little discussion or analysis of issues of power and due process implications29 when

a judge bypasses an advocate and negotiates directly with a vulnerable parent about complex and

difficult issues, some of which may be issues of evidence30. For some parents who are subject to public

law proceedings, issues of ‘learned helplessness’ may influence their responses to a judge31. They may

also not fully understand that having agreed to try the procedure, they nevertheless are free to leave at any point; they may lack courage/not know how to call a halt during what may be an intense, judge led discussion. They are likely to need special preparation where there is a potential for them to agree to an order that results in the permanent removal of a child and which order will not be open to future challenge or appeal.

8 There is little/no evidence of robust research – or proposed research about whether/how parents –

often with profound problems, are prepared for settlement conferences, whether they fully understand and are able to engage in the procedure on equal terms, whether they feel it was fair and what they understand about the benefits of a hearing and due process.

9 It would be naïve to suggest that the impact on parties and parents in particular, of judicial

utterances is negligible – that would be to deny the inherent power held by judges by virtue of their

role and status, and to ignore the profile of parents subject to care proceedings.

 

 

For example, one advocate discussed a settlement conference which started exactly like a hearing, the judge then asked the local authority and the guardian to leave the room, the mother and her advocate remaining. Seated beside the mother, the judge told her that her case was “totally unrealistic”. The mother broke down and ran out of court in tears. Her advocate followed to take further instructions.

 

[10/25] respondents raised concerns about the approach of judges. In one case a judge was described as blunt, insensitive and brutal with parents, conveying their prospects of success harshly, and in circumstances where the dispute was about the proposed adoption of the child. Another advocate compared two completely different approaches:

one judge talking very softly to the parents, explaining patiently and clearly what sort of order he

would make and why; another judge did not consider the parents’ feelings or difficult circumstances in

delivering his view as to likely outcome.

The first judge was described as no less child-focused than the second judge however his delivery was

of a different calibre: calm, patient and respectful, trying to get the parents to focus on the best interest

of the child – albeit his message as to the likely order was “clear and firm”. The second judge’s style

with parents was “quite blunt, and insensitive”. This respondent continued:

“where [a] case concerns placement for adoption, what parent is going to agree to adoption?

But my experience of [this settlement conference] was that it was quite brutal really. [The judge]

conveyed his view on their prospect of success, harshly – and the parent’s advocate wasn’t

impressed with that either. [He] also felt it was insensitive.” [R-2]

 

 

This respondent along with others said a lot of parents attending settlement conferences are likely to have learning difficulties or were otherwise highly vulnerable, and it was a cause for concern:

“It feels unfair that quite often they’re being encouraged to settle [although that is not their

instructions…] and if they don’t want to settle they have right to hearing …notwithstanding [any

advice as to] likely success. So, I find it difficult that a lot of the people going to these settlement

conferences and settling are parents who have learning difficulties [and who] would sometimes

benefit from having their case heard and getting their views, wishes, feelings across…I would say the majority of cases [I] have dealt [in settlement conferences] concern parents with learning difficulties”. [R-4]

The respondent was asked if he had any ideas for support to mitigate effects for vulnerable parents:

“The difficulty is, the whole process is quite overwhelming for them; a lot of them find meeting

judge, and judge sitting next to them also quite overwhelming. It seems that sometimes the

procedure results in [an agreed order] because the parent is sometimes just completely taken

aback by it.” [R-4]

 

A minority of respondents [4/19] said in their case(s) the settlement conference judge had not applied any pressure on parties

One respondent spoke of a case in which a mother had been strongly encouraged to accept the LA plan at a Settlement Conference, did not do so, and then at final hearing secured the child living with them. That’s just a horrible thought, that if the mother had been less able to stand firm, she would have lost her child when testing the evidence the right thing was for the child to be with her.

Overall, nine respondents reported settlement conferences where clients complained about the

approach and behaviour of a judge: some expressed it at the time, for example, by leaving the court, some complained to their advocates about feeling bullied, coerced, intimidated, cornered, and not listened to by the judge.

One parent said bullying by the judge was aimed at getting him to “cave in”. Some of these

experiences were confirmed by advocates. For example, in one case where a parent reported being

bullied by the judge, the respondent concurred with the client’s appraisal of the judge: ‘it had felt quite abusive at times’ [R-16].

 

About a third of advocates were not confident of continuous consent from their client; too

much pressure was exerted by judges and indications of distress and other signs of client

anxiety were not picked up by the judge as indicating, at least, a need to revisit ‘consent’ or

as indicating consent was effectively being withdrawn/the procedure should stop.

 

Just two respondents (2/19) had no concerns about fairness in the procedures they attended

 

 

As I said, even with all of the caveats, this is a damning report.

 

So I expect the MOJ report, when it arrives, to focus on savings and roll it out nationally.

No more ‘business as usual’

 

 

We have our first View from the President, from our new President.

 

Here it is

Click to access amcfview-1.pdf

 

A few working groups established, and due to report by Easter 2019 (Public Law, Private Law and Experts)

A lot of the speeches that the President has given are about work volumes and well-being, and that’s the focus for this post.

 

In the meantime, every professional engaged in work in the Family Courts must, I fear, continue to experience the adverse impact of the high volume of cases. I have, on every occasion that I have spoken about these issues, stressed my concern for the well‐being of social workers, lawyers, judges and court staff who are conscientiously continuing to deliver a professional service in a timely manner despite the increase in workload. Other than doing what I can to understand and address the underlying causes (which will obviously take time), there is little that I, as President, can do to relieve the current pressure. It is, however, I believe right for me to say publicly in this ・View・ something which I have said on some occasions to some gatherings in the past few weeks. In these highly pressured times, I think that it is neither necessary nor healthy for the courts and the professionals to attempt to undertake ・business as usual・. For the time being, some corners may have to be cut and some time‐limits exceeded; to attempt to do otherwise in a situation where the pressure is sustained, remorseless and relentless, is to risk the burn‐out of key and valued individuals in a system which is already sparely manned in terms of lawyers, court staff and judges.

I would encourage local dialogue between the legal profession and each DFJ on this topic so that some parameters may be agreed as to what is and is not sensible or acceptable in terms of working practices during the next 6 months or more. The following are no more than suggestions for what might be discussed and agreed:

‐The earliest time of day when the court can reasonably be expected to sit;

‐The latest time of day when the court can reasonably be expected to sit;

‐The latest time in the evening, and the earliest time in the morning, when it is

acceptable to send an email to another lawyer in a case or to the court;

‐Reducing the components to be expected in a ・Position Statement・ to the

minimum required (for example simply one side of A4 using bullet points) on the

basis that a fuller oral position can be outlined at court if required. Other possible topics for agreement may well present themselves to those of you who are regularly undertaking this work.

As family lawyers and judges it is, for me, a total ・given・ that you will go the extra mile for the sake of the child, the parties and the system when this is needed. You will, I am sure, continue to do so. My present purpose is to acknowledge publicly that we are currently in a situation that cannot be accommodated simply by working beyond what can reasonably be expected every now and again. As Sir James Munby rightly observed before 2016, when declining the encouragement of others to require the courts to make an extra effort to achieve the 26week deadline, the system then was working flat‐out. That was before the 2016/17 increase of 25% in workload. In terms of considering just what the system can sustain recalling Sir James・ words at this stage is timely. My aim in now saying what I have is to give each of you, as the psychologists would say, ・permission・ to have a sensible discussion with each other and establish a dialogue between local professionals and the local judiciary in order to develop sensible parameters and guidelines on what can, and what should not, be expected from those appearing before and working in the courts.

 

There will be some interesting discussions arising out of this.  (For my part, I would love to see an end to Position Statements that say the same as the statement filed two days before, or ‘instructions will be taken at Court’ or ‘my client has not yet provided instructions on this issue’  – as all of that adds nothing)

Can the genie of ‘always available by email’ be put back in the bottle? I’m not sure, but I think it would be a very healthy debate to have.  It savagely impacts on quality of life when people can never switch off from this work, which is emotionally draining and challenging in and of itself, without never having any down-time from it.  I applaud the President for moving away from font sizes, margins and the welfare of the bundle is paramount approach, and thinking about things other than process.

 

Walter White witness statement

 

 

This is from a big money divorce case before Mostyn J

 

Quan v Bray and Others 2018

 

http://www.bailii.org/ew/cases/EWHC/Fam/2018/3558.html

 

 

  1. The husband’s contemptuous and arrogant attitude is further illuminated by the following passages in his principal witness statement dated 21 September 2018. At paragraph 13, when speaking of his earning capacity, he stated:
    1. “I might be able to earn some money as a drug dealer. Before I changed my major to mathematics in my final year of college, I was a chemistry major. My senior organic chemistry project was the synthesis of cocaine, a synthesis that was, at that time, on the frontiers of organic chemistry due to problems related to controlling the chirality of the cocaine molecule. As I recall, only 1 of the 16 possible stereoisomers is psychoactive. The cocaine plant naturally produces only this stereoisomer but in the lab this is quite difficult. This is why cocaine is extracted from the plant for commercial use rather than synthesised as methamphetamine is. (Walter White’s particular expertise in Breaking Bad was controlling which enantiomer he produced but he only had to worry about 2 possibilities and both left and right-handed meth are psychoactive – dextromethamphetamine being the stronger drug.)”

A witness statement is made primarily for the court and to write this is not only childish and facetious but is directly and grossly disrespectful to the authority of the court.

  1. But it did not stop there. In the next paragraph he wrote:
    1. “A further possibility is that I might be able to pursue a career as a legal executive at Vardags [the wife’s solicitors]. I gather from Stephen Levitt’s economic research on crime, that I might well earn more extorting money for Vardags then I would earn in drug dealing (apparently, most drug dealers live with their mother because they cannot afford a place of their own). Despite the financial disadvantage, I think I would prefer drug dealing because it is considerably more ethical.”

This goes beyond childishness and facetiousness. It is grossly insulting and reflects the husband’s detestation of the wife’s advisers. It is completely unacceptable that he should use a witness statement written for the court as a platform to vent his spleen in this manner.

 

 

 

Merry Christmas everyone, and may none of 2019s witness statements be as problematic as that for you.

Social Services were like the SS of Nazi Germany

It won’t be the first time anyone in family cases has heard that comparison, but it is certainly the first time I’ve heard it from a Judge.

I’m very grateful to Ian from Forced Adoption for bringing this story to my attention. It arises from an appeal in Sheffield Crown Court from a criminal trial, where a father was convicted of harassing a school.

The conviction was upheld on appeal but the Judge was extremely sympathetic to the father and extremely critical of the social workers and social work that had put him in that position.

We don’t have a judgment in this case – you’d only really get a judgment in a criminal case if it was a criminal Court of Appeal decision, otherwise you just get judicial summing up and sentencing remarks, which are not generally published. I don’t know whether the Ministry of Justice will publish these judicial comments in full (which are a matter of public interest, if anonymised) .

So the quotations come from the Court reporters who were present, and we have to proceed on the basis that they are accurate. If the Local Authority involved want to respond to this, I’m more than happy to print their response, but I appreciate that for data protection and confidentiality issues they may not be able to.

Here’s the Press report. (I expect some of the nationals might well be in touch with the Barnsley Chronicle to run this story.)

https://www.barnsleychronicle.com/article/draconian-social-services-blasted-by-judge

From the story, four things seem to have happened

  1. A six year old whose mother had committed suicide ten weeks earlier told her school that she ‘wanted to be with her mummy’ and that was reported by the school to social workers
  2. A referral was received by social workers suggesting that the paternal grand- father had sexually abused the child, that allegation was not substantiated.
  3. The father was either asked or told, to agree to a child protection medical (or one took place without his consent – the article gives two conflicting accounts on this), where the child was intimately examined to see if there was any sexual abuse.
  4. The father became outraged at the school for putting the child through this, and started a campaign of harassment including derogatory leaflets about the school and headteacher.

The father was then convicted of harassment against the school. He appealed that, unsuccessfully, but the Judge attributed a lot of responsibility for the situation on the social workers.

However, he blasted social services for their handling of the case. They became involved after an unrelated allegation – which police said was unfounded – was levelled against his father. That led to social services investigating the youngster’s welfare and temporarily stopped her from seeing with her grandfather, contact which has now resumed.

“Social services were like the SS of Nazi Germany,” Judge Moore said. “They’re literally the SS in their name and their manner of working is somewhat draconian.

“But the facts are clear. I have sympathy for the appellant as I did at the beginning of this case, but what came afterwards was the harassment of a headteacher when really the school were only following their orders.

“Had the headteacher have argued against social service officers’ intervention, they would have found themselves before a disciplinary hearing.”

Generally speaking, either parental consent or a Court order should be obtained before conducting a medical examination of a child, particularly an intimate one.

It isn’t clear to me whether the father consented (but felt under duress to do so) or wasn’t asked.

The article opens with

A JUDGE likened Barnsley social services to the Nazi Party’s SS after a young girl who had expressed suicidal thoughts was subjected to a naked medical examination without her father’s consent.

which suggests no consent

But later, the father is quoted as saying

Speaking after the hearing, he told the Chronicle: “Despite previous investigations finding no evidence of any risk of sexual abuse, I was forced to allow Barnsley social services to take my daughter out of school and transport her to Barnsley Hospital where, without my consent, she was stripped naked and examined from head to foot.

Which suggests that he did allow the child to be taken for the medical, but did not know or agree to the medical being of the nature it ended up being. Obviously have no way of knowing whether or not he is right about that, because we don’t have a forensic judgment looking at all of the evidence and reaching a conclusion, but he was certainly left feeling considerably aggrieved after the investigation, and a Judge felt that there was considerable force in some of his complaints, to the point of using extremely strong language of condemnation.

What I don’t know in this case is whether it was the circumstances in which the medical came about that the Judge was appalled by, or whether he was just appalled that the child was medically examined at all (which rather depends on exactly what the original allegation about dad was about, and whether the medical examination was proportionate to the allegation). I don’t know whether this Judge also has a care ticket, but I’d expect even a Judge who exclusively does crime to be familiar with medical examinations for alleged sexual abuse. It might be that the allegation, on examination was so patently threadbare or malicious that the child should not have been put through a medical and wasn’t a credible allegation. I don’t know.

Copy that, copy cat

 

 

The only usual intersection between family lawyers and copyright is the wail of annoyance you get when you are drafting a document with bullet points (a)-(f) and you find that at the third point, the c wants to turn into a little copyright symbol.

 

Well, that and memories of doing your schoolwork and noting someone peeking over at your work you write a quick © on it to prevent someone copying it. Generally this is accompanied by the chant of ‘copycat, copycat, don’t know what you’re looking at’ (this is generally frowned upon in Court)

 

 

 

But I’ve seen a couple of judgments coming onto Bailli, where the rubric asserts Crown Copyright, for example this one (not singling this one out, it is happening quite a bit at the moment)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2018/2658.html

 

 

This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

 

(the judgment itself is interesting, and there are all sorts of things within it which would be worthy of discussion, but who wants to go off and get a licence to be able to quote from a Crown Copyright document? Not me, that’s for sure)

 

That sounds very much as though you are not allowed to quote from it unless you have a licence, or express consent to do so. That’s a bit of a problem for journalists, or bloggers, or any advocate who wants to quote it in a skeleton or case summary, or Judge who wants to quote it in a judgment, or litigant in person or MacKenzie Friend who wants to quote it in a case.

I think this is being wrongly added to judgments, and it should stop. I don’t know whether it is a conscious decision or just some cut and paste being done without thinking it through.

I’m afraid I’m just about to hit you with some Copyright law, but the tl;dr bit is that in this paragraph

 

This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

I think only the first four words are right.

 

So first, what is Crown Copyright?

Crown copyright is a form of copyright claim used by the governments of a number of Commonwealth realms. It provides special copyright rules for the Crown, i.e. government departments and (generally) state entities.”Copyright protects original expression in literary, dramatic, musical and artistic works”. Each and every single Commonwealth realm has its own distinct Crown copyright regulations….Crown copyright applies “where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties”. The Crown can also have copyrights assigned to it.

 

I think the document is CAPABLE of attracting Crown Copyright, being a work created by an officer of the Crown (a Judge) in the course of their duties. There is original expression, and a judgment is a literary work. Some of them might have more literary merit than others, but they are all literary works.

 

The legislation is the Copyright, Designs and Patents Act 2008

163 Crown copyright.

(1)Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties—

 

(a)the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and

(b)Her Majesty is the first owner of any copyright in the work.

 

(2)Copyright in such a work is referred to in this Part as “Crown copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3)Crown copyright in a literary, dramatic, musical or artistic work continues to subsist—

(a)until the end of the period of 125 years from the end of the calendar year in which the work was made, or

(b)if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(4)In the case of a work of joint authorship where one or more but not all of the authors are persons falling within subsection (1), this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

 

So the copyright provisions on a judgment published in 2018 last until 2143. I suppose there might still be an interest in a judgment 125 years from now (we do still cite very old cases from time to time) but that’s certainly no use for a topical blog. There’s absolutely no chance that readers in 2143 will be interested in my pop culture references of the 1980s and 1990s, even if I do get my brain preserved in a jar so that I can keep writing.

 

However, there are two valid exceptions in the copyright provisions, which mean that I think that applying for a licence or permission to quote from a published judgment is not necessary.

Section 30 of the Copyright, Designs and Patents Act 2008 says there’s no copyright in fair use for review or reporting

 

30 Criticism, review, quotation and news reporting.

 

(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [F2 (unless this would be impossible for reasons of practicality or otherwise)] [F3 and provided that the work has been made available to the public].

 

[F4 (1ZA)Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that—

(a)the work has been made available to the public,

(b)the use of the quotation is fair dealing with the work,

(c)the extent of the quotation is no more than is required by the specific purpose for which it is used, and

(d)the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).]

 

[F5(1A)

For the purposes of [F6subsections (1) and (1ZA)] a work has been made available to the public if it has been made available by any means, including—

(a)the issue of copies to the public;

(b)making the work available by means of an electronic retrieval system;

(c)the rental or lending of copies of the work to the public;

d)the performance, exhibition, playing or showing of the work in public;

(e)the communication to the public of the work,

 

but in determining generally for the purposes of [F7those subsections] whether a work has been made available to the public no account shall be taken of any unauthorised act.]

 

(2)Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.

 

 

(3)No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film [F8 or broadcast where this would be impossible for reasons of practicality or otherwise].

 

[F9(4)To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of subsection (1ZA), would not infringe copyright, that term is unenforceable.]

 

If you are writing about a judgment for the purpose of sharing news, critiquing it or reviewing it, you can quote from it, as long as you acknowledge who the author was, and your use of quotations is fair in conveying what you are discussing. (That’s what lets book reviewers put quotations from the book in the review, but stops them just printing large chunks of it unless the publication pays the author for the serialisation rights)

That doesn’t help with advocates wanting to cite the case and highlight certain passages though, so more importantly, it also seems to me that section 45 of the Copyright, Designs and Patents Act 2008 means that no such licence or express consent is needed

 

 

 

45 Parliamentary and judicial proceedings.

 

 

(1)Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.

 

 

(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.

 

For example, in the Dan Brown Da Vinci Code case where it was alleged that Dan Brown had stolen his ideas from another book, neither of the authors could claim that the Judge, in setting out quotations from the book was breaching their copyright. S45 (1), but for our purposes s45(2) means that reporting such a judgment is not infringing any copyright. And what you are doing when you cite a passage from a case is giving a report of the decision the Court made and the factors that influenced that decision. Hence, reporting.

The second part of s45(2) says in effect that if someone writes a dazzling analysis of a piece of judgment or a fabulous analogy about adoption law and passive aggressive post-it notes on a student fridge, and then someone else chooses to lift all of that dazzling analysis into their submissions or skeleton without crediting the original author, THAT can be a breach of copyright.   (For my part, I’m happy for people to steal any of my stuff, as long as they name-check me, and I’ve never come across any example of people not doing that)

 

So, you* can continue as you were, unless you are responsible for that Crown Copyright rubric being added, in which case I’d prefer that the practice stops, because I think it adds nothing and has the potential to make people who intend to use them for perfectly legitimate aims .

 

(* By ‘you’ there, I mean ‘me’, because I’m not giving you legal advice about copyright law and I would not claim for an instant that I was in a position to do so. I’m NEVER giving legal advice to any individual on this blog, but sometimes it is just worth reiterating that)