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.
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.
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
The ALC were very clear as to their doubts about Settlement Conferences before the pilot was launched
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
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)
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
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.
We have our first View from the President, from our new President.
Here it is
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.
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:
“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.
But it did not stop there. In the next paragraph he wrote:
“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.
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.)
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
A referral was received by social workers suggesting that the paternal grand- father had sexually abused the child, that allegation was not substantiated.
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.
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.
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.
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).]
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)
It is well-established that in care proceedings, if a child is capable of instructing a solicitor and disagrees with the recommendations or conclusions of the Guardian that they can be separately represented, and have their own lawyer, who takes instructions directly from them.
You don’t get many cases which describe what happens where there is a disagreement about whether the child SHOULD be separately represented (in my experience, when the child’s solicitor says that the child has capacity and disagrees with the Guardian, it is accepted by everyone and the Court that the Child should be separately represented)
So this is a case where there was such a dispute, and the Court gave a decision, and also summed up some useful guidance. It is a CJ decision, so NOT BINDING, just informative.
Re Z (A Child – care proceedings – separate representation) 2018
First things first. It was VERY very clear that the child was extremely bright. He wrote a letter to the Court setting out a table of balancing factors in the case (a task which is beyond many of the other stakeholders in the family Courts…) and he absolutely had intellectual capacity to instruct a solicitor. One of the barristers instructed in the case described the child as having a ‘fierce, analytical intelligence’ and that seems to me absolutely on the nose.
To assist the experts, Z prepared a detailed ten-page statement setting out his account of what has happened in the past and his wishes and feelings so far as concerns his future.
The first point to make about this letter is that it bears eloquent testimony to this young man’s considerable intellect. The quality of his writing and of his arguments suggest a maturity beyond his years.
In his letter Z describes the years of abuse he suffered whilst in the care of his parents and the domestic abuse he observed between his parents. He talks about the impact all of this has had upon him, especially upon his emotional well-being. He says he finds it very difficult to understand his emotions and deal with them. He has self-harmed and explains why. He describes his mother’s mental health problems and the impact they have had on him. He says that he vividly remembers ‘trying to stop my mum from killing herself’.
In his letter, Z makes it clear that the outcome he seeks is to return to the care of his parents whom he forgives for the past. He does not believe there would be a risk of further abuse if he returns home. Adopting a balance sheet approach, he analyses what he considers to be the risks and benefits of returning home. He adopts the same approach to analyse the risks and benefits of remaining with his grandparents. Finally, again adopting the same balance sheet approach, he analyses the risks and positives of him remaining either in long-term foster care or in a residential placement. So far as this last option is concerned, he argues that there are no positives. On the contrary, such a placement would damage both his mental health and his education. That could make him suicidal. He says he would run away from home.
It was also very clear that he disagreed with the Guardian and had his own case to run.
Z has also written a much briefer letter to the guardian and to his solicitor, Kerry Boyes. He makes the same key points made in his letter to the experts. This, though, is a more emotional letter. He says,
‘I would like it to be known that I am going to do absolutely everything in my power to make sure that these recommendations do not happen and that I hopefully move back to my parents. If not then I stay with my grandparents…Because of the present situation, I am going to obtain proper legal advice as to what I should do next. I am going to fight to get back to my parents’ care, no matter what. Every child deserves the chance to get a proper education, feel safe and secure and feel loved and cared for. Therefore, I would think it is your duty to properly review these recommendations based upon this and really think about what is in my best interests. Is it really a good idea to take me kicking and screaming away from my grandparents’ house and into a house full of strangers.’
After these letters, on 5 th June Z wrote a letter to me. In his letter he pleads not to be ‘kidnapped’ into foster care. If the court approves a placement in foster care or residential care, Z says,
‘I would categorically refuse to go. I would not get into the car…I would run away back to my grandparents as many times as would be needed for people to listen to me. Foster care or residential care is not the right environment for me to be in.’
Z is particularly concerned about the possibility that a move into long-term foster care or residential care would mean that he would need to change school. He says that,
‘By moving my school, you would destroy my only support network. At school…I have the support of teachers, who at times have become like second parents, and what’s more, it is one of the only places that I can be truly happy…if you forced me to move school it would do catastrophic damage to me both emotionally, socially and developmentally.’
That seems, therefore, to meet the two criteria for separate representation.
The argument was whether Z had the emotional capacity to instruct a solicitor and be involved in the proceedings, and what caused particular anxiety was him having unfettered access to the court documents and papers. I haven’t seen this argument being run, so it is interesting to see how it plays out.
The Judge, His Honour Judge Bellamy, set out the principles that he had derived from statute and authorities. (Selfishly, I think it is a shame that they are not annotated to show where each principle is derived from, but you can’t have everything)
(I have put some particular interesting elements in red for emphasis)
In deciding whether Z has sufficient understanding to instruct his solicitor directly, the solicitor (or the judge if the issue is being decided by the court) will find guidance given by senior judges in previous cases. In particular, the solicitor must have in mind:
(1) that the child has the right to express his views freely in all matters affecting him and the right to be heard in any judicial proceedings affecting him;
(2) that the child has the right to respect for his private and family life;
(3) that the decision to be made relates to this child;
(4) that the fact that the child’s views are considered to be misguided in some way does not necessarily mean the child does not have sufficient understanding to instruct a solicitor;
(5) that the fact that the child is unwilling to accept findings already made by the court does not mean that he does not have sufficient understanding to instruct his solicitor;
(6) that the fact that a child disagrees with an independent professional assessment of what is good for him is not sufficient to lead to a conclusion that the child lacks sufficient understanding to instruct his solicitor;
(7) that whether the child has the capacity to instruct his solicitor will depend, in part, upon the issues involved and the child’s capacity to give reasonable and consistent instructions on those issues;
(8) that the child’s direct participation may pose a risk of harm to him and, if it does, the solicitor must consider whether the child is capable of understanding that risk;
(9) that a child’s understanding increases with the passage of time;
(10) that a child’s age is not the only relevant consideration;
(11) that not allowing the child to participate directly in the proceedings by instructing his solicitor may itself cause the child emotional harm;
If the solicitor decides that the child does not have sufficient understanding to instruct his solicitor direct, the court can be asked to review that decision. The judge will come to his own independent decision after taking into account the points just made.
Those bits in red are important – a person or young person can have capacity to instruct a solicitor and tell them what to fight for without having to be dispassionate or reasoned – you can make an emotional decision rather than a coldly logical one, as long as you have the capacity to understand the facts and that there are pros and cons to your decision. Just as a parent can decide not to follow their legal advice and to instruct their lawyer to present a different case (including one that their lawyer considers is foolish), so can a young person.
At the actual hearing, none of the parties were supporting Z being made a party. The LA and Guardian were against it, and the parents were essentially neutral – seeing that Z had capacity but being worried about the emotional impact on him.
The conclusions – red is mine for emphasis.
All three parties accept that if the test to be applied were based solely on intellectual capacity then Z should be given permission to instruct his own solicitor. All three parties express concern about Z’s emotional capacity to be able to instruct his own solicitor and about what they perceive to be the risks of allowing him to do so. All three raise a particular concern about the likely harmful impact on Z’s emotional well-being of him having access to the court documents.
Z clearly has the intellectual capacity necessary to give him the ‘understanding’ required by the rules, though I accept that intellectual capacity is not the only relevant factor the court must consider when deciding whether a child should be allowed to instruct his own solicitor.
Z well understands that the ultimate welfare decision which the court must make is a decision that may have a profound impact on the future direction of his life. However, the reality is that even with the help of the best professional guidance available (and that is the position I am in) neither the professionals who give that advice nor the court can be absolutely certain of the impact decision-making today will have on the future course of Z’s life. Making decisions about Z’s future involves an element of risk. Z is as aware of the reality of that as I am.
In making decisions the court will have in mind the approach required by the law that Z’s welfare must be the court’s paramount consideration. The court will also have in mind that Z has the right to respect for his private and family life
Concern has been expressed in the experts’ report that Z’s wish to instruct a solicitor direct ‘is part of his bid to regain control in a system populated by adults he does not fully trust to represent his needs’. In my judgment the fact that an intelligent, articulate teenager wishes to have some control of decision-making that could have a profound effect on the future course of his life is hardly surprising. Z is astute enough to realise that as matters stand at the moment, although his Children’s Guardian will faithfully represent his views to the court she will also set out her own assessment of what the appropriate welfare outcome should be. She will make it plain that she does not agree that Z’s clearly expressed wishes and feelings accord with his best interests. She is likely, therefore, to recommend to the court that Z’s wishes and feelings should not be followed. Currently, Z does not have an advocate who will not only inform the court of his wishes and feelings but will seek to persuade the court that an outcome that accords with his wishes and feelings will meet his best welfare interests.
One of the reasons why the experts do not agree that Z should be able to instruct his solicitor direct is because ‘it is our assessment that Z is profoundly confused about his own mind and about his best interest’. In my experience, that confusion and uncertainty is experienced by many adolescents who are the subject of care proceedings. I am doubtful that that is a factor which should be considered, of itself, to make it inappropriate for that young person to be given permission to instruct his own solicitor. In this case, I accept that Z himself has said that he finds it very difficult to understand his emotions and deal with them. In my judgment, that does not mean that he lacks the emotional ‘understanding’ to instruct his solicitor. On the contrary, it could be said that the fact that Z recognises his emotional challenges means that he would be able to engage in an open discussion with his solicitor about the case he wishes to put before the court.
All three parties express concern about Z having access to court papers in the event that he is allowed to instruct his own solicitor. In my judgment, that concern is misconceived. Z is already a party. The decision I am called upon to make has nothing to do with the issue of party status. As a party, the rules already give him a conditional right to have access to the papers. As I noted earlier, the rules require the guardian to advise the child of the contents of any document received so long as the guardian is satisfied that the child has ‘sufficient understanding’. Whether the child should be allowed to see a particular document or simply be given a summary of that document is, for understandable reasons, a matter that is left to the discretion of the guardian. The rules impose a similar duty on the solicitor. In my judgment, that duty arises whether the solicitor receives his instructions through the guardian or direct from the child. In each case the solicitor is not under a duty to allow the child to see documents that have been served upon him but, rather, ‘if the child is of sufficient understanding [to] advise the child of the contents of any documents’ received. It is for the solicitor to come to a judgment about whether the child has ‘sufficient understanding’. If the solicitor is uncertain whether the child has ‘sufficient understanding’ and whether the child should be allowed to read a document or simply be given a summary of the contents of that document, the solicitor should seek guidance from the court. The ultimate responsibility for deciding whether a child or young person should have access to the court papers is, always, that of the court.
As I noted earlier, in this case the experts have prepared for Z an excellent age-appropriate summary of its report. The authors are of the opinion that it would be detrimental to Z’s welfare for him to be allowed to read the full report. For the reasons I have already given, in my judgment, if the court were to allow Z to instruct his solicitor direct it does not follow, as a matter of law, that Z then becomes entitled to unfettered access to all of the documents placed before the court. Deciding precisely what Z should be allowed to see is a matter for the exercise of discretion and is a decision in which some regard must be had to his welfare.
Mr Johal expresses concern ‘about the risk of full participation’ by Z. He submits that Z lacks the insight to fully appreciate the risks of participation. The risks he refers to are the risk arising from access to the court papers (to which I have just referred) and the risk that participation ‘has the potential to significantly contribute to Z’s documented emotional and psychological difficulties and limit the future success of any therapeutic treatment.’ He does not set out in what way there is a risk to the future of any therapeutic treatment. Z has made it very clear that he is willing to engage in therapy. I do not read the experts’ report as highlighting such a risk.
Set against those risks, the decisions made by senior judges, to which I referred earlier, highlight the risk of emotional harm being caused to a young person by not allowing him to participate more fully by means of having his own solicitor. In this case, Z is very concerned indeed to ensure that his voice is heard and, in particular, to ensure that his wishes and feelings about his education are understood and respected. I am in no doubt that if he were not allowed to have his own solicitor there is a real risk that that decision would cause him emotional harm.
I have come to the conclusion that in this case Z does have the ‘understanding’ required by the rules to enable him to instruct his own solicitor. There are no sufficient welfare reasons why that should not happen. I shall therefore order that Z has permission to instruct his own solicitor. It is important that the solicitor appointed is appropriately experienced and skilled for the task in hand. That is an issue I will return to when judgment is formally handed down.
A lot of useful content there, particularly for Guardians and children’s Solicitors.
This isn’t an English case, but people were kind enough to send me the link yesterday, and it is a cracker, so I can’t resist.
Couple lose custody of their child after using a stuffed lion as their lawyer
(bad choice already. Why did they do that?)
They thought the lion was Jesus.
I’m not about to talk smack about Jesus, but he’s not known for his Court room skills. The guy had one trial, and that didn’t work out for him. He would not be my first call. Even if he does have a clear diary and now, a fluffy tail.
I’ve written this week about a press report based on a court case with a misleading headline (and I see that some people on my Twitter feed have got the BBC to change their headline), but this one isn’t.
There’s some quite nasty stuff in the body of the allegations, which I won’t repeat.
The parents certainly had strong views about religion
On April 28, 2017, A.J. sent an email to a social worker, Melanie Crowston, to schedule future access dates but also wrote the following:
God is doing a great work here. And believe me, you want the wicked and corrupt things addressed, because everyone suffers when evil is allowed to harm you and families. So we need Jesus to clean up the corruption and bring justice back to this place. How filthy and corrupt your job is and the people you work for. I am ashamed for you. It is evil. I’m sorry you work for such an ugly corrupted company too…
As evidenced by this email, the parents continued to have difficulty working cooperatively with others. The mother often demonized those seeking to help her. For example, the parents were asked to leave the parish they were attending. On April 29, 2017, the pastor, on the recommendation of the church leadership, called the police to see what steps were needed to get a restraining order against the appellants. The parents returned to the church on May 3, 2017 and caused another disturbance at a support group meeting. The pastor then sent the parents an email indicating that they were no longer welcome to attend the church.
On May 10, 2017, A.J. sent an email to [then] counsel for the Director stating the following:
Be prepared for your house to see a very large debt come across and bankruptcy due to the criminal charges against the court system and the ministry of children and youth and particularly the judicial system that has imposed the degradation of children and harm to the families. The Lord Jesus has now come in to judge and he has seen the demise of what He had set in place for good has now been corrupted and covered in greed and filth.
The trial judge stated that the email “could be perceived as threatening”. At this stage, correspondence was being directed through the office of the Director because the parents refused to communicate with the social worker.
I know, you all want to know about Jesus, Lawyer Lion. Hold on, it’s not far off
Jesus Lion Lawyer, how did you get the Sword of Omens through Court security? They made Cheetara take off her high heeled shoes.
At the October hearing, the trial judge heard that the parents continued to attend churches with the goal of cleansing them from demonic influences. The parents had also refused to participate in the parental capacity assessment.
At trial, A.J. testified that she had an application pending to change the name of the child. She wanted C.J. to have a hyphenated first name including Jesus and a middle name of JoyoftheLord. She was also applying for a change in her first name to the Risen Lord Jesus–A, a new middle name of Refinersfire–Deanne, and a change in her last name to add the name Christ.
One last issue in this case was the conduct of the appellants at trial. First, they refused legal aid assistance and maintained that their legal counsel was the Lord Jesus. Second, the parents verbalized words that were not discernible to the court; they appeared to be speaking in tongues. They spoke in tongues to their stuffed animal, a lion, and claimed that through this lion they were hearing directly from their counsel the Lord. Third, when cross-examining witnesses, the appellants advised each witness that it was their lawyer Jesus Christ asking the questions through the voice of the parent. Fourth, the trial judge found the parents not to be credible witnesses: see paras. 43, 72, 95 and 100.
I thought that the stuffed lion lawyer who was also Jesus was the best detail, until I read ‘the judge found the parents not to be credible witnesses’. What a beautiful bit of understatement.
The appeal was refused. There is no name of a lawyer representing the parents in the appeal, so I don’t know if they were in person, or if the Lawyer Lion padded up for the appeal too.
Obviously whilst there are amusing elements to this story, it is ultimately sad, and I hope the child is okay and that the parents get the help that they clearly need.
Some of you might be aware of the story that Coronation Street are currently running about Aidan and male mental health, with a view to starting an important dialogue.
I’m going to overshare now, hence the title, in that same spirit. So trigger warning for anyone who may not be in the right place to deal with this – I’m not going to go into any details and I hope that it might be inspiring rather than making people miserable. I’m not doing this for sympathy or because I want comfort or pity, but rather because being ashamed and not able to talk about it is one of the most powerful weapons that mental illness has over people, and I’m taking that weapon away from mine.
I have had problems with depression for my entire adult life. Before I had depression, I thought about it the same as everyone else ‘cheer up, pull yourself together, what have you got to be miserable about’
Which, as it is due to chemical deficiencies, is about as realistic as saying to someone with diabetes ‘just digest sugar better’
I’ve learned to cope with depression, but usually in very unhelpful ways. I’ve learned how to hide it, how to mask it from people, how to keep going and have nobody around me have a clue that inside my head my own thoughts are attacking me relentlessly.
The best description I can give you of the sort of depression I have is that my mind employs the very best ad agencies to come up with and play constant adverts to me, knowing me better than Facebook data mining ever could, to sell me the message that I am an awful human being, worthless and hateful in every way and that the whole world would be remarkably better off without me in it.
Now, this is drivel. And some days, some hours, I’m well aware that it is drivel. I’m a human being who has like everyone else some good qualities and some faults. But when that’s the soundtrack to your life, it’s corrosive.
And a large part of what’s corrosive about it is ‘dont tell anyone, it will just make them hate you’
Well, everyone that I’ve ever been brave enough to talk to has not hated me, or run away. They haven’t always understood and sometimes they’ve been shocked or frightened, but all of them without fail have done their absolute best to help, and it has been a huge help.
The stupid adverts don’t stop, but the more honest I am, the quieter they are and the more loudly I can reply ‘this is just an illness and i don’t have to believe that message’
Sorry everyone, I know you come here for law and 80s pop culture, but telling everyone in one go is the scariest thing I can imagine but now it is out there. Don’t worry about me, the darkest days of it are well behind me. I hope that sharing this might empower someone else to speak out, or helps you to start a difficult but vital conversation with someone you love and care about.
Talking helps. Honesty helps. Friends really do care about you, and you are not alone. If you are able to talk, just to one person, it is one of the most powerful and significant moments in your life and it will help.
I think during one of the many Writers Guild Strikes in America, the hit TV series Moonlighting, which was built around the ridiculous chemistry between its two leads, David Addison (played by a Bruce Willis so young that he had hair and had never got any shards of glass in his feet) and Madelyn Hayes (a never better Cybil Shepherd), instead ran with a whole season without those two in it, and trying to base the show around two minor cast members Herbert Viola and Agnes DiPesto.
It did not really fly. In the words of Douglas Adams ‘it hung in the air in the same way that bricks don’t’
It occasionally still makes me wince to think of that dreadful error of thinking.
That portion of Moonlighting, I would be prepared to give a declaration of incompatibility for.
All of which is a sprawling and ramshackle opening to Coulibaly v Coulibaly 2018 (which joyously has a “Rev no 1” in its full title, implying that there’s more to come, yes please!)
As far as one can tell, this case began as a private law dispute with the mother becoming very concerned that the father would abduct the children. It is not clear whether that has any basis (we know he DIDN’T, but not whether it was a rational fear that he MIGHT), or what it was that led to a Local Authority obtaining an interim care order and removing the child.
In any event, the bundles for the Court were delivered via wheelbarrow, if not actual dumper truck. (And yes, I did hover over google images of Big Trak for this moment… )
There was listed today, with one day allowed, a number of wide-ranging applications for declarations pursuant to section 4 of the Human Rights Act 1998 that a number of sections of the Children Act 1989, and also the whole of the Child Abduction Act 1984, are incompatible with the European Convention on Human Rights.
There were delivered to my room yesterday afternoon 7 lever arch files of material. I have not counted up the number of pages, but if one were to assume about 300 to 400 pages on average per bundle, then somewhere between about 2,100 and 2,500 pages are involved. Frankly, the bundles are not coherently arranged and presented, and I could not even readily identify the skeleton arguments for this hearing. In any event, the applicant’s series of written submissions themselves total about 70 pages.
A number of sections of the Children Act and the whole of the Child Abduction Act? Tell me more, tell me more
The proposition that certain provisions of the Children Act 1989 are incompatible with the European Convention on Human Rights was first formally raised in the High Court by an appellant’s notice issued by Mrs Coulibaly on 2 May 2017. Since then she has, at various times, filed a considerable number of supplementary documents and submissions, the most recent of which was earlier this week. That procedural history, of course, creates a somewhat confusing moving target, in particular for the Lord Chancellor, who has been named as the respondent to these applications, to meet. However during the oral submissions of Mr Duke this morning it was clarified and confirmed and agreed that, by a combination of her appellant’s notice dated 2 May 2017 and her various subsequent written skeleton arguments or written submissions to the court, and the oral submissions made today, the totality and scope of all the applications for declarations of incompatibility is as follows.
First, that section 2 of the Children Act 1989 is incompatible with Article 3 of the European Convention on Human Rights (ECHR); second, that section 8 of the Children Act 1989 is incompatible with Article 3 of the ECHR; third, that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the ECHR; fourth, that section 50 of the Children Act 1989 is incompatible with Article 3 of the ECHR; fifth, that section 97 of the Children Act 1989 is incompatible with Article 3, read with Article 10, and also with Article 6 of the ECHR; sixth, that section 1 of the Child Abduction Act 1984, and also the whole of that Act, are incompatible with Article 3 of the ECHR.
Well, if Mrs Coulibaly succeeds in this application and the High Court declare sections 2, 9, 38, 50 and 97 of the Children Act 1989 incompatible with the HRA, there will be champagne corks flying in the household of Ian from Forced Adoption. But perhaps let’s not get the ice buckets out just yet.
Let’s be honest, if I was writing up a law report that junked an entire Act and large chunks of another, I’m burying the lede under all that Moonlighting stuff….
Mrs Coulibaly was not represented and her brother Mr Duke spoke on her behalf as a McKenzie Friend.
We shall observe with interest how he develops this wide-ranging submissions.
I now come in turn to the sections of the Children Act 1989 which it is alleged are incompatible with one or more of those various rights under the European Convention on Human Rights, and I will briefly describe and address the arguments. It will emerge that some points and themes, particularly in relation to international child abduction, recur several times in relation to a number of the statutory provisions under challenge. The fundamental and essential point is an assertion by, and on behalf of, Mrs Coulibaly that the statutory provisions simply are not strong enough and effective enough to prevent international child abduction which, she submits, may amount to “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. Without so holding, may I make quite clear for the purposes of this case and this judgment that I fully accept that international child abduction, whether it takes the form of unlawful removal from this country, or unlawful retention of the child abroad after a lawful removal, does, or may, expose the child concerned to a form of inhuman or degrading treatment. So, insofar as child abduction is the fear of Mrs Coulibaly, and insofar as her argument focuses on child abduction, I readily accept, but need not keep on repeating, that Article 3 is engaged.
During the course of his submissions, Mr Duke said that “the Children Act is useless” and that “the entire Act needs to be rewritten.” Part of the context of his argument is that circumstances have changed in the almost 30 years since that Act was enacted. International child abduction has become more prevalent, and some of the safeguards such as strict border controls on exit have tended to be removed or relaxed. Another phrase used a number of times by Mr Duke during the course of his submissions is that “the Children Act is incomplete.” Those points and submissions indicate, to my mind, the flaw or fallacy in the whole, or much, of the argument on these applications. The issue for the court on an application under section 4 of the Human Rights Act is whether or not a provision of the primary, or any subordinate, legislation in point “is compatible” with a Convention right, or whether it “is incompatible” with a Convention right. That is a wholly different question from whether there are gaps in a particular statute, or the whole corpus of legislation generally, and whether or not an Act of Parliament is “incomplete”. I readily accept, for the purposes of this hearing and this judgment, that mechanisms for preventing the scourge of international child abduction may be able to be strengthened; but that is a world apart from saying that such provisions as there are in the legislation, whether specifically directed to child abduction or more generally, are themselves incompatible with Article 3.
I think the best argument (and I use best in fairly loose sense) is in relation to section 38 – which is interim care orders. Mr Duke argued that the power to remove a child under s38 is a restriction of the child’s liberty (in that the State in the form of the LA get to decide where the child lives), so unless any of the criteria in Article 5 are made out, that’s incompatible with Article 5
1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law
(a)the lawful detention of a person after conviction by a competent court;
(b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
I would agree with Mr Dukes that none of those criteria apply to an interim care order – but the problem in his argument is that Article 5 only applies if the Court agree with him that an interim care order is depriving a child of their liberty [Spoiler alert – the Court do not]
I turn, next, to the argument that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the Convention. Section 38 of the Children Act falls within Part IV of the Act, which deals with care and supervision. Section 31 of the Act makes provision for what I will call “full” care or supervision orders. Section 38 makes provision for the making of interim care or supervision orders. Again, it is not necessary to cite any of the express provisions of section 38, for much of the argument of Mr Duke is directed not to what section 38 does contain, but, rather, to what it fails to contain. There is, however, one overarching submission in relation to section 38, namely that it is incompatible with Article 5 of the Convention. I have already quoted the opening words of Article 5 above. The submission is that when an interim care order is made and implemented, it has the effect of depriving the child or young person concerned of his liberty. By Article 5 no one shall be deprived of their liberty save in the cases then listed at paragraphs (a) to (f), and in accordance with a procedure prescribed by law. Clearly, when an interim care order is made there is a procedure prescribed by law, namely the provisions of section 38 itself, but the thrust of the submission of Mr Duke is that the circumstances in which an interim care order is made do not fall within any of paragraphs (a) to (f). I do accept that most of those subparagraphs are clearly not in point at all, but, as Mr Neil Sheldon submits on behalf of the Lord Chancellor, one has to have regard to the content of the subparagraphs in order to understand what is contemplated by the words “deprived of his liberty”, which is proscribed by Article 5, save in the permitted circumstances.
I accept the submission of Mr Sheldon that when a child is taken into care pursuant to the making of an interim care order, he is not thereby “deprived of his liberty” in the manner which Article 5, read as a whole, contemplates. Further, I accept the submission of Mr Sheldon that if, in the particular circumstances of an individual case, there is a deprivation of liberty, then that deprivation of liberty can be the subject of case-specific challenge under the provisions of section 7 of the Human Rights Act. This indeed ties in with an important overarching point. The express effect of section 6 of the Human Rights Act 1998 is that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” That section is binding on all public authorities, including, indeed courts. The provisions of the Children Act 1989, wherever they confer a discretionary power, always have to be read and applied with regard to section 6 of the Human Rights Act 1998 and any relevant provision of the Convention. If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable.
Other reasons why it is said that section 38 is incompatible with a range of Articles of the Convention are the following. First, Mr Duke argues that there is nothing in section 38 itself which compels a local authority to provide medical assistance to a child whom they have taken into their care pursuant to an interim care order. This, he says, may involve a breach of Article 3 of the Convention. Just to understand the context in which the submission is made, I have been told (I stress that I have absolutely no independent evidence whatsoever with regard to this) that on 7 February 2018 Mrs Coulibaly’s son was “forcibly removed” from her care by the police. She says that her son later reported that the police had hurt his arms, and they were really painful. The complaint is that it was apparently not for 13 days that the local authority arranged for her son to be seen by a doctor. Mr Duke submits that there should be an added provision within section 38, or elsewhere in the Children Act 1989, to compel a local authority to undertake an immediate, or very early medical examination of every child whom they take into their interim care, both to check that he or she has not been harmed during the process of removal, if forcible, and also to check for such matters as allergies. He submits that the absence of some such express duty in section 38 or elsewhere in the Act infringes the positive obligation on a state to ensure that no one is subjected to inhuman or degrading treatment, as Article 3 of the Convention requires. Again, I make absolutely clear that I express no view whatsoever on whether or not it should be made mandatory for a local authority immediately to arrange a medical examination of a child taken into their care. That, again, is a matter for government and Parliament. But at its highest, in my view, this is another example of the Act being “incomplete”. There is nothing in this regard that renders the Act incompatible with the Convention.
Mr Duke argues also that section 38 of the Act is incompatible with Article 8 of the Convention. He says, in particular, that in order that the important rights under Article 8 of the Convention are respected (which is what Article 8 requires), there should be express statutory provision for what he calls “a transfer plan” before any child is taken into care. He submits that a local authority can at the moment “just come and grab a child, which disrupts the child’s private life” and that unless there is an express statutory requirement of “a transfer plan”, section 38 is incompatible with Article 8. He further says that often, when a child is taken into care, the child is not enabled immediately to take his own personal belongings with him, and that in order for the Act to be compatible with Article 8 there must be express statutory provision for a child to be able to do so. Again, in my view, these are, at best, matters of good practice, or examples of the legislation being “incomplete”, but the absence of express statutory provisions of the kind that Mr Duke contends for does not render section 38 itself incompatible.
I say, that ‘transfer plan’ is a good idea, I wonder if we could call it by a shorter name and have it be a mandatory requirement before the making of an interim care order. We could call it, oh, I don’t know – a care plan?
Let us just enjoy the fine work of Holman J once again
If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable.
As I’ve suggested above, the article 5 v s38 is very much Mr Duke’s best point. If you think that this dissection of his best point doesn’t augur well for his less good ones, you are correct.
Surprisingly, Holman J does not grasp the opportunity offered to him by Mr Duke to overturn huge chunks of statute that have been running for thirty odd years.
For the reasons I have given, I am crystal clear, even at this short summary hearing today, that none of these applications for declarations of incompatibility are, in the least, arguable. I will accordingly make an order which, first, recites by list all the applications that Mrs Coulibaly has made for declarations of incompatibility as I listed them at the outset of this judgment, and then orders that all the applications for declarations of incompatibility listed under that recital are summarily dismissed.
So the law remains intact. Well, at least until Coulibaly v Coulibaly Rev no 2, which I’m looking forward to. I shall be immensely disappointed if the Act of Union, Magna Carta and the Licensing Act 1872 (which makes it a criminal offence to be drunk in a pub)
I’m sorry if the raw charisma and chemistry of Hubert and Agnes has just burned a hole initially through your screen and now through your retinas.