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The TL;DR background on the history here.

Parliament created in s25 Children Act 1989 a statutory mechanism for Court oversight and sanction of situations in which children who are looked after by Local Authorities have their liberty restricted (generally but not exclusively by locked doors). These are called ‘secure accommodation orders’. Children can only be placed in a s25 secure accommodation in a children’s home specifically approved by Ofsted for that purpose.

There’s a national crisis in secure accommodation beds. Demand is massively outstripping supply, and has been for many years. That led to weird situations where children in Southampton were being put in children’s homes in Scotland… If there’s not an available secure accommodation bed for a child, section 25 doesn’t solve the problem. What you need is more secure beds. BUT if you don’t have them, what then?

This led to a workaround whereby the inherent jurisdiction of the High Court (what some oafish commentators label ‘magical sparkle powers’) were used to authorise a child being placed somewhere where their liberty was restricted but NOT in a children’s home approved by Ofsted for that purpose.

That was a sticking plaster and the High Court has been publishing judgments for at least four years saying that this needs a better solution and shouting it from the rafters.

The issue went up to the Supreme Court, who ruled that the use of inherent jurisdiction for that purpose was lawful.

The Government made some new Regulations – unfortunately, these weren’t ‘we’re building 20 new secure children’s homes’ but instead ‘we’re closing down the bit of the old regulations that allowed Local Authorities to place children in these creative placements, so rather than solving the problem, they instead said “we don’t like the bandaid that the High Court is using as a last resort, so we’re going to make it unlawful for Local Authorities to use band-aids”

There’s now litigation as to whether the High Court can use their inherent jurisdiction to say that THEY the High Court can say that they approve the bandaid (even whilst knowing that this doesn’t allow the Local Authority to use it) – which the High Court has said yes sort of on, and now this particular case grapples with that in more detail. (I think the hope had been that Ofsted would be invited to grant a temporary approval for individual placements)

BEDS NOT BANDAIDS and DOWN WITH THIS SORT OF THING

The TL;DR is so long it needs its own TL;DR

Not enough secure beds, the loophole the High Court worked around was closed, the loophole to work around the closing of the loophole is being litigated about here.

Sorry, this is pretty dull for non-lawyers. Hopefully there will be a less technical case to write about soon.

Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam) (03 November 2021)

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2931.html

This judgment concerns a further question that has now arisen in three cases, including FD21P00578, concerning the range of circumstances in which the jurisdiction I found subsists may be applied.  Namely, whether, given the central role accorded to the President’s Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance.  The spectrum of the submissions made to the court on this question has been bracketed at one end by the submission of each of the local authorities that the answer to this question is “yes”, and at the other by the submissions of the Secretary of State for Education and Ofsted that the answer to this question is “no”.  Whilst each of the cases before the court concerns a child under the age of 16, the answer to the question posed in this case is applicable to all cases in which the Practice Guidance applies

Do you know, I sort of agree with both sides here. Without an injection of fresh beds, the use of inherent jurisdiction is the only way to find the most vulnerable children that we deal with beds that they need, so yes. But the use of inherent jurisdiction to workaround a bed shortage and sidestep the clear provisions of s25 is wholly wrong in my opinion, so no. Of course, the vexing thing is that the High Court’s middle ground of using inherent jurisdiction whilst shouting for help is the best course of action but the cries for help were heard and not ignored. The High Court were basically saying, “we’re shipwrecked and it is of course wrong to eat the ship’s cat, but if it keeps the crew alive until rescue comes, it is the best of a bad situation’ and the Government are saying ‘we’ve seen your flares and we’ve sent you some leaflets from the RSPCA and PETA rather than a rescue ship’

Anyway, I should also tell you that much like the film Dune, this case does not conclude matters, and there’s going to be a part 2. This Part 1 looks at whether the Court has the legal power to sanction a placement of a child under the inherent jurisdiction where the placement would be unlawful under the new Regulations. Part 2 will look at the circumstances of the individual four cases that have been joined together and what should happen in relation to each.

63. Having regard to the comprehensive submissions made by leading and junior counsel, and the legal provisions set out above, I am satisfied that an unwillingness or inability to comply with the terms of the President’s Practice Guidance does not act per se to oust the inherent jurisdiction of the High Court to authorise the deprivation of a child’s liberty in an unregistered placement confirmed in Re T.

64.However, I am equally satisfied that compliance with the Practice Guidance is central to the safe deployment of that jurisdiction and to its deployment in a manner consistent with the imperatives of Art 5. Within this context, whilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply for registration. My reasons for deciding are as follows.

65. The first point that the court must acknowledge at the outset is that there remains no entirely satisfactory child-centred answer to the question before the court in the absence of a concerted effort by those responsible to remedy the current acute shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of registered placements. The Practice Guidance was promulgated by the President of the Family Division to assist in addressing an urgent and acute problem borne of this lack of resources. On the one hand, failure to follow the Practice Guidance will deprive children of the regulatory protection Parliament has deemed they should benefit from. But, in the context of the continuing and acute shortage of appropriate resources, following the Practice Guidance can risk a vulnerable looked after child having nowhere to go. The dilemma is eloquently described in the written submissions of Ms Morgan and Mr Paisley on behalf of QV:

“[37] There is a circularity which is, for the guardian as she contemplates the position for QV in this case and similarly placed young people in others, problematic. It is a circle which is impossible to square: the Guardian all things being equal would make the submission that the solution at which the Court should arrive if it concludes that the relevant body ‘won’t’ apply to register or is failing to comply or is dragging its corporate feet in relation to the President’s Guidance or is quite simply making use of the jurisdiction because it remains available to it and is the path of least resistance would be for the Court to say in effect ‘thus far and no further’ and to bring it to an end. That would be in all likelihood, a way in which the difficulties (which to return to the beginning are difficulties of resource above all else) move from the arena of the court where they should not be and into the province of others. Such an approach however comes at a cost; and the cost is paid by the cohort of vulnerable children and young people for whom there is then nothing in the way of a protective jurisdiction at all. So it is that the Guardian steps away from the otherwise obvious submission that the Court should stand firm; should pursue the reasoning at [62] in Wigan BC v Y to its logical conclusion; should refuse to sanction the jurisdiction. The welfare of this or another subject child is nowhere in that approach never mind paramount or primary.”

Compliance or non-compliance with Practice Guidance is not determinative of the existence of the court’s substantive jurisdiction. This is, I am satisfied, the plain position as a matter of law. The President’s Practice Guidance is non-statutory guidance. The Practice Guidance is not a Practice Direction, and even if it were, the authorities are clear that a Practice Direction cannot change the law. Further, as Lieven J made clear in Birmingham City Council v R & Ors at [19], the President cannot create law by way of issuing guidance. Within this context, I am satisfied that failure to comply with judicial practice guidance cannot oust the inherent jurisdiction of the High Court. The existence of the protective jurisdiction of the court does turn on conformity with a procedural requirement or requirements set out in practice guidance. The question for the court in such circumstances is whether that jurisdiction should be exercised where there has been non-compliance with the Practice Guidance.
It is important at this point to reiterate, as Mr Auburn sought to remind the court at a number of points during the course of his submissions on behalf of the Secretary of State, the question that is before the court. Namely, whether it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance. As I have already noted, I am satisfied for the following reasons that, ordinarily, the answer to this question should be ‘no’. There is of course a further question of what is meant by ‘will not or cannot’. I deal with that question in more detail below.

There’s a lot of text here, but the answer to the question

“where the placement proposed is one which will not or cannot comply with the Regulations, can the High Court use their inherent jurisdiction and place there?”

is “ORDINARILY NO”

There’s quite a bit of text on ‘will not or cannot’ – MacDonald J says that it turns on its own facts, but makes some general observations.

80. An unwillingness or inability to apply for registration in accordance with the Practice Guidance does not act to extinguish the court’s inherent jurisdiction. Rather, it borders and curtails the circumstances in which that jurisdiction can be deployed. Within this context, and having regard to the judgment of the Supreme Court in Re T and the matters to which I have referred above, I am satisfied that whilst an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, the court should not ordinarily countenance the exercise of the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration.
81. As noted above, my conclusion invites the question what does “cannot or will not” mean in this context? It is not helpful or appropriate in my judgment to set out an exhaustive list of cases that will fall into one or other of these categories. Each case will turn on its own facts. However, some general observations can be made.
82. A provider that will not apply for registration, in the sense of refusing to do so, notwithstanding the terms of the Practice Guidance is unlikely to be a viable option for meeting the subject child’s best interests. Such a refusal by a provider is, in reality, a statement of intent not to comply with the law put in place by Parliament to safeguard and promote the welfare of the subject child through the imposition of a comprehensive and wide ranging regulatory regime. Given the burden placed on providers by an application for registration, such a position on the part of the provider may be understandable if the provider does not ordinarily make such provision, for example a private landlord, the owner of a holiday park or other venue not ordinarily involved in social care. However, it is placements in this category that are most likely to result in a wholly unsuitable placement for obvious reasons. Within this context, a refusal by a provider to apply for registration immediately following a placement deprives the child for the duration of that placement of regulatory oversight where it is arguably most needed. In the context of the cases before the court, the local authority considers that the placement for QV, a holiday park, will not consent to an application being made to Ofsted for registration.
In the circumstances, and whilst each case falls to be considered on its own facts, it is unlikely in the context of a refusal by a provider to apply for registration that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child with that provider is in the child’s best interests. In such circumstances, the court may be required to make a very short order (measured in hours or days and not weeks) to hold the ring whilst alternative arrangements are put in place. This will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this (referred to as ‘in the moment cases’ in by Fordham J in R (on the application of Matthew Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) at [50]). The operational duty of the court in such circumstances is to keep the child safe, however any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
I accept that the Practice Guidance contemplates at [21] that registration may be refused following an application being made or that an application for registration may be withdrawn, and that the Guidance does not expressly prohibit the continuation of an unregistered placement in such circumstances. However, in my judgment, this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration.
A person carrying on or managing a children’s home must apply for registration as a matter of law. Within this context, there is in my judgment a stark difference between a provider who makes an application and fails in the first instance (the chances of which can be significantly reduced by working in partnership with and taking advice from Ofsted once the application has been submitted) and the provider who refuses to apply or cannot apply. In the former situation, an attempt has been made to bring the child back within the regulatory regime mandated by Parliament, albeit that attempt has been unsuccessful. In such circumstances, the regulator has had a chance to consider the placement and the court must factor in the result when determining for the purposes of the Practice Guidance whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests, and in particular whether, on the advice of the regulator, changes can be made to ensure a successful registration application in due course. In the latter situation, there has not even been an attempt to bring the child within the statutory regulatory regime, notwithstanding that that is what the law requires, with no opportunity for the independent regulator to consider the placement (because no application is made) and with the result that the child remains outside the statutory regulatory regime for the duration of the placement.
I also accept that, in light of the acute resource issues that have been the subject of other judgments handed down by this court and by other judges of the Family Division, cases may arise where an unregistered placement will not comply with the Practice Guidance with respect to an application for registration but no alternative placement is immediately available. Again, I am satisfied that this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration under the statutory regime.
Again, it is important to remember that a person carrying on or managing a children’s home must apply for registration as a matter of law. In such circumstances, not to insist on compliance with the Practice Guidance would be to permit the providers who are unwilling to comply with the law to benefit from the lack of resources. Further, a child’s best interests falls to be evaluated taking into account all relevant circumstances. Whilst the absence of a placement may place the child at risk, the court must also take account of the fact that it is likely to be antithetic to a child’s best interests to be deprived of the protections of the statutory regulatory regime mandated by Parliament. Within this context, in the experience of this court, the providers that are unwilling to apply for registration of those offering placements that are the most problematic for vulnerable children in respect of which the court most regularly encounters a refusal to apply for registration, examples including holiday parks, private Air B&B properties, caravans and canal boats. These expose the child to a double deficit in the form of a sub-optimal placement that is also outwith the statutory regulatory regime designed to safeguard him or her. In such circumstances, for the court to acquiesce in the face of a refusal of a provider even to seek registration is to heighten significantly the risk to the highly vulnerable subject child.
Again, whilst each case turns on its own facts, it is unlikely in such circumstances that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child in that placement is in the child’s best interests. Rather, in such cases and accepting the difficulties created by resource issues, after hearing the matter the court is likely to indicate its intention to refuse the application for authorisation and invite the local authority to present alternative proposals (as this court did in Wigan MBC v W, N & Y [2021] EWHC 1982 (Fam)). Again, in such circumstances, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place. Again, this will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this in an ‘in the moment’ case. Again, any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
With respect to providers that “cannot” apply for registration, on behalf of Ofsted Ms Clement submitted that Ofsted does not recognise such a category, any person carrying on or managing a children’s home being required to apply for registration and any other placement not requiring registration because it is not a children’s home. Within this context, Ofsted contend that there is no such category of placements that “cannot” apply for registration. There is considerable force in that submission. However, in so far as a provider determines not to apply for registration because it could, for example, never meet the requirements to successfully apply, the court will be left in a similar position to that it finds itself in in respect of providers that will not apply. Once again, the child would be left outside the statutory regulatory regime for the duration of the placement as an application to Ofsted would never be made. Once again, this is not likely to be in the subject child’s best interests for the reasons set out above. If there are no steps being taken to regularise the position by applying for registration contrary to the Practice Guidance, the placement cannot be brought back at any point within the regulatory regime that Parliament has determined is required to meet the child’s needs. The inherent jurisdiction should not be used in circumstances which lead to the perpetuation of such an outcome. Again, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place, particularly where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe.
Providers who are in the process of an application obviously fall into a different category. The Practice Guidance makes clear that it accommodates the process of seeking registration and the possibility that registration may be refused or the application withdrawn. But where there is a continued failure to prosecute an application for registration despite a stated intent to do so, once again the court may find itself in a position where it cannot extend the authorisation depriving the child of his or her liberty in circumstances where the placement continues to be outside the regulatory regime. That the Practice Guidance sets out timescales in respect of the application for registration (which timescales I shall return to in more detail below) indicates that the effort to secure registration, and thus an order authorising under the inherent jurisdiction the deprivation of the child’s liberty in an unregistered placement, cannot be open ended. The requirement to make an application for registration and the timescale for doing so serves to ensure that deployment of the inherent jurisdiction in association with unregistered placements departs from the statutory scheme’s requirement of a registration to the minimal extent necessary. Within this context, the greater the delay beyond the timescales set by the Practice Guidance the greater the risk that the statutory scheme ensuring the welfare of vulnerable child is undermined.

So it may be that where the home where the child is to be placed (or has been placed) is making an application to be approved by Ofsted under the President”s guidance, the Court might say that this is NOT a placement which WILL NOT OR CANNOT be approved under the Regulations, and thus the inherent jurisdiction MIGHT be used. But where the application has not been made in good time, or been refused, the inherent jurisdiction isn’t going to work.

Basically, we’re not eating the ship’s cat unless the cat itself asks the RSPCA whether it would be okay, but there’s no rations or rescue boat coming.

In practice what this means is that the supply increase that the High Court had jury-rigged as a solution to an out-of-control crisis in bed supply has been almost completely shut down, so now the bed supply which was already nowhere near enough has just got a whole lot smaller. Luckily for everyone, solving supply chain shortages is the number one success story of this Parliament, so no need to worry..

I don’t think that this reported judgment does anything earth-shattering or makes any vital new legal points, but I felt it was interesting to see what’s a known direction of travel regarding pressure on Court time play out in a real case, and one where I think the outcome would have been very different not long ago.

The case involves Lincolnshire County Council, who were the very wise / very foolish Local Authority who took a chance on a wet behind the ears young lad in 1994 and rescued him from being an office finance manager and turned him into a child protection lawyer… So I will always have fond thoughts of Lincolnshire.

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2813.html

Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) (21 October 2021)

The case involves the death of an 11 year old, and what is to happen with his three siblings, aged 10 1/2, 5 1/2 and 3 . At this stage of the proceedings, those three siblings were living with the grandparents.

The central issue, although there are others, is whether the death of the 11 year old XE was a tragic accident, or caused by a parent. The stakes could not be higher in a case of this kind.

There are four possibilities of truth and outcome (obviously everyone involved works very hard to help the Court be in the best possible position of getting to the truth and that the finding made by the Court about XE is what really happened. But the process is not perfect. So here are the four possibilities

a) This was a genuine accident and the Court find that it was – which reunites the family and is safe

b) This was a genuine accident, but the Court find that it was intentional, which keeps the family apart and is also wrong

c) That this was intentional and the Court find that it was – which probably keeps the family apart and keeps the children safe

d) That this was intentional, but the Court find that it was an accident – which probably reunites the family and puts the children in danger

Each of those are really important for everyone involved, particularly the children. The stakes are high.

The LA and Guardian in this case argued that the case should be listed for a 5 day final hearing, dealing with findings on XE and welfare decisions for the other children at the same hearing, the parents argued for a separate finding of fact hearing and that the time estimate for this was 20 days.

I’m not going to attempt here to analyse who I think was right or wrong – I don’t have enough material or knowledge to do that from just the judgment, but historically, I’d say that a case where the allegation was effectively murder of a child would generally take closer to the parents estimate than the LA estimate. It of course depends on what the evidence and disputed evidence is.

In very broad terms, we are nationally short of Judge time. That was the case pre Covid, and is even more pronounced now. There was a period of time in which it was very hard to conclude proceedings and have final hearings whilst all of the technical issues were happening, so delay in those cases had domino effects on the time other cases took. The Government and statute expects cases to conclude within 26 weeks. Pre Covid we were sort of around that figure, with some more complex cases taking longer. In December 2019, the average length of a case was 33 weeks. March 2021 was an average of 43 weeks.

So a 20 day case has two significant issues – One is that it takes a lot longer to find 20 days of Court time than 5 – for the obvious reason that you need to find a Judge who had nothing to do for a month, and there’s not a lot of that going around. The longer you wait for the hearing, the longer the children have to wait for a decision. The second is that if you allocate 20 days to one case, that’s probably 3 other cases that could possibly have used 5 of those days to conclude their own case, and that makes those 3 cases all need to wait longer. The other side of that coin, as I’ve already indicated is that the four possible outcomes in this case are all really serious for the children and rushing it might make some of the worst options (that the truth and the finding are not the same thing and the children are either kept away unnecessarily or returned to danger with optimism that they are safe) more likely.

So I don’t know which, in this case was the right call. I’d probably have gone for the classic compromise of 10 days.

I’ll instead set out the judicial conclusions, and let the readers come to their own views, particularly in the light of this sort of benchmark how difficult it may be to seek a final hearing time estimate of more than 5 days generally.

Conclusions

The Court’s consideration starts with the welfare of the children, but this is not paramount, see DP at [24]. The inevitable consequence of ordering a lengthy fact finding hearing is that there will be considerable delay in the case and that will be severely to the detriment of the children. I accept Ms Hunt’s submission that in very many public law family cases there will be an adverse impact on the children from delay, and that factor alone cannot lead to refusing a fact finding hearing. However, the importance of achieving an appropriately speedy outcome for the children remains an important consideration and that factor here is particularly weighty.
It is not merely that delay will mean longer without a permanent and stable placement, but also that the children, and especially A and B, will have to wait longer for the counselling to deal with the extreme trauma they have been through. This counselling cannot meaningfully commence until they are in a long term placement, whether with the Mother or elsewhere. I therefore consider that the delay to the children is a very weighty factor in this case.
It is apparent from Re H-D-H that the impact on court resources and on other cases is a relevant consideration when making a case management decision such as this, see [22]. The true question is whether the fact finding is truly “necessary” for the ultimate welfare decision that the Court has to make. If it is not necessary for that decision, then a fact finding hearing should not be undertaken. As the President of the Family Division set out in The Road Ahead (both 2020 and Addendum in 2021), in current circumstances the Family Courts do not have the resources to undertake hearings which do not meet the test of strict necessity. It is therefore essential that this test is properly applied, with appropriate scrutiny by the Court, even if the parties themselves do not argue against a fact finding hearing. The Court must be careful to ensure that there is a proportionate and effective use of court time. It is well known that the family justice system has come under very severe pressure during the Covid pandemic. Delays in the hearing of cases have become very much more lengthy and only through more rigorous case management will the delays be materially reduced.
The outcome in the present case is in my view clear cut. The factual dispute between the parents in relation to XE’s death is a very narrow one, namely what DE said in the kitchen to the Mother and who left the taps on. Only the parents were witnesses to these two events, save possibly for A, and none of the other witnesses who the parents seek to call can give direct evidence on the matters in dispute. There is body worn camera footage and recordings of the 999 calls so the Judge will have the direct, and thus best, evidence of the Mother and DE’s immediate responses at the time of the incident.
In any event, the demeanour of the parents, including what they said immediately after XE’s death, as seen by the other witnesses, carries relatively little forensic weight. It is well known that people react in very different ways to tragic events, and whether the Mother seemed extremely distressed or relatively unconcerned will be of little assistance to a judge seeking either to determine precisely what happened to XE or the quality of the Mother’s wider parenting of the children.
The evidence of the 20 or so other witnesses, whether police, ambulance service staff, or clinicians is therefore not necessary for the determination of facts by the Judge.
In respect to whether the Court orders a separate fact finding, such hearings will relatively rarely be necessary or proportionate. They necessarily build in a great deal of delay in the system and lead to a significant degree of frequently wasted resources. In a case such as this where the threshold findings sought go well beyond the area of factual dispute between the parents over what happened on the night of XE’s death, I consider it unnecessary to have a separate fact finding hearing. The LA will have to consider alternative scenarios and prepare its evidence on that basis. That may involve a more complicated situation than if there was a separate fact finding hearing, but it will save a large amount of delay and duplication of effort.
I also do not consider that the case warrants a listing of more than 5 days. Again, I refer to the President’s Guidance in The Road Ahead. It is essential that the Family Court uses the time available more effectively, and individual hearings take less time. In practice this means more focused cross examination, less repetition and careful scrutiny of witness templates in advance of hearings. This will put more pressure on advocates, and the Court, but that is the only way to achieve the President’s intention of individual cases taking less time. If that is done in the present case, I see no reason why the hearing cannot be completed in 5 days.

There’s been debate in the legal community and in the social work community for a long time about the desire of some parents to make recordings of their interactions with social workers.

There’s a feeling among some professionals that it feels like it should be illegal, but when you drill down into it, it’s hard to find an actual law that prohibits it. (The Human Rights Act, which would protect interference with private and family life works for individuals who are owed duties by the State, and not vice versa)

There’s very good guidance from the Transparency Project here

https://www.transparencyproject.org.uk/guidance-on-parents-recording-meetings-with-social-workers-2/

The grey area has been whether there might be arguments about whether the making and keeping of audio or video recordings might constitute data processing for the purposes of data protection legislation – and if it does, then all sorts of duties arise, including very strict restrictions on the purpose and transparency on the person processing that data. But data protection legislation makes an exemption where the information is being handled for ‘household use’ (understandably , if you are keeping a diary, your friends / neighbours don’t have the right to see any entries you’ve made about them in the same way they would if say an Electricity Company was keeping records about them)

s21 (3) Data Protection Act 2018 This Chapter does not apply to the processing of personal data by an individual in the course of a purely personal or household activity.

So, what’s household use and what’s not?

This case throws up some interesting new questions – and it t like the national press are quite interested in it, so I’ll share my early thoughts.

The national press for example, the Daily Mail doing their usual Betteridge’s Law headline

https://www.dailymail.co.uk/news/article-10087671/EVERY-Ring-doorbell-customer-face-100-000-fine-landmark-ruling.html

NO.

Spoiler – this case does not provide a definitive answer to our issue.

Two important things to note

1. This is a decision by a Circuit Judge so it is not an authority that would bind any other Courts – they might be referred to it as a matter of interest in how another Judge decided the issue but they are not obliged to follow it.
2. The behaviour complained of here is pretty exceptional, and it may be hard to draw parallels with cases that aren’t so extreme.

That being said, let’s dive into it.

Fairhurst -v- Woodard

In this case, Dr Fairhurst sued a neighbour, Mr Woodward, for harassment nuisance and breach of data protection legislation about security cameras that Mr Woodward had installed. One of which was one of those high-tech doorbell security cameras , the particular model being “Ring” (which is the angle that the National Press are super interested in, and hence the title of this post)

In tests done for the purposes of the litigation, the Ring doorbell camera would routinely trigger when a person passed within 17 feet of the front door, and begin recording. It would record video footage and also make audio recordings of anyone having conversations within that distance, which is longer than the boundaries of the property and covers the street outside. (I think from later entries, the audio recording operates at a higher distance – i.e you wouldn’t get video footage of someone standing 17 feet away but you would get audio recording)

131.The Claimant’s pleaded case is that: images and audio files of the Claimant
are personal data within the meaning of Article 4(1) of the General Data
Protection Regulation 2016/679 (“the Regulations”); that the Cameras
collected such personal data, that the transmission to the Defendant’s phone
or computer or other device, the retention of any such images or sound on
such a device and their onward transmission to others (whether neighbours,
the police, or the cloud for storage) are processing of personal data within
the meaning of Article 4(2) of the Regulations; that the Defendant as the
person determining the purpose and means of that personal data is, and was
at all material times a data controller within the meaning of Article 4(3) of
the Regulations, and accordingly must comply with the principles set out in
Article 5(1) of the Regulations.

132. I don’t think any of that analysis is disputed, and I so find. The question is
     whether the Defendant has processed such personal data lawfully and in
     accordance with the principles

133. I note that the Information Commissioner has provided Guidance on the
     meaning of ‘transparently’ in which she says that “Transparent processing
     is about being clear, open and honest with people from the start about who
     you are, and how and why you use their personal data”. Given the extensive
     findings that I have made relating to the manner in which the Defendant
     sought to actively mislead the Claimant about how and whether the
     Cameras operated and what they captured I am satisfied that the Defendant
     has breached: the first principle as he cannot be said to have processed data
     fairly or in a transparent manner

That would seem, subject to the caveats I started with, to be quite significant in terms of covert recording. The action of making and keeping the recordings was considered by the Court to be data processing, and doing so covertly would be in breach of the duty under the General Data Protection Regulations that the processing must be transparent.

What about the ‘household use’ element?

Annoyingly for my purposes, the judgment doesn’t really get stuck into s21 (3) and if it applies – although given that the Court found that there were breaches under the DPA 2018, it must be implicit that the Court did not consider that it did (although i always prefer it to be explicit)

Here’s as close as we get, which is more an argument about whether the processing was legitimate rather than s21(3). (Growls to himself – I really would have liked the s21(3) issue to be properly ventilated and ruled on, even though this isn’t a binding authority. I’ve looked carefully and done a couple of searches and I can’t find s21 (3) mentioned – it isn’t in the summary of the relevant DPA law or as a defence. Could it really have been overlooked by everyone???)

134…..I consider that the balance
between the legitimate interests of the Defendant and the right of the
Claimant to privacy and a home life are met in relation to the processing of
video personal data from the Ring Doorbell, and I am so satisfied. That is
because any video personal data of the Claimant is likely to be collected
only incidentally as she walks past, unless the Claimant stands on the
Defendant’s door and rings his doorbell, and I consider that his legitimate
interest in protecting his home whether he is there or not are not overridden
by her right to avoid such incidental collection on a public street, albeit in
the vicinity of her home. However I consider the processing of audio
personal data from the Ring Doorbell to be problematic and I will return to
that

So the video data from the doorbell was okay, because unless the Claimant was actively on his property ringing his doorbell or walking past his home, you wouldn’t get video footage, and the Defendant’s interest in protecting his home outweighs that of the Claimant’s wish not to be filmed.

The driveway camera footage to protect his car from damage or theft was not.

I135. I consider that such interests are overridden by the Claimant’s right to
privacy in her own home, to leave from and return to her house and
entertain visitors without her video personal data being captured. Again, the
audio personal data collected and processed by means of this Driveway
Camera is even more problematic and detrimental than video data in my
opinion. For those reasons I am satisfied that the Defendant’s processing of
the Claimant’s personal data by means of the Driveway Camera is not
lawful

On the Ring doorbell audio footage

138…I am satisfied that the processing of such audio
data by the Defendant as data controller is not lawful. The extent of the
range means that personal data may be captured from people who are not
even aware that the device is there, or that it records and processes audio
personal data, or that it can do so from such a distance away, in breach of
the first principle. The Claimant has fallen into each of these categories
during the relevant time. The living individuals whose conversation it
captures may well be identifiable from the data itself or from other
information which can be obtained from the data controller particularly in a
case such as this where the Defendant knows and is familiar with his
neighbours and can probably identify many of them by voice alone, and
certainly identify them with both the audio and video data that these
devices capture.

The Court made orders for the removal of the cameras and ring doorbell, though asked for enquiries to be made as to whether the Ring doorbell could be installed in such a way to prevent audio recording. Damages are yet to be determined.

So no definitive answer I’m afraid, but I am aware that more specialist GDPR lawyers are looking at this case and talking about it and if I learn more, I’ll let you know.

There are some other gems in this judgment

26.

I found the Defendant Mr Woodard to be a very poor witness. He admitted
that some of his evidence was incorrect. Different accounts given at
different times contradicted each other. Some of it he changed in oral
evidence as he went along, as difficulties with his evidence were revealed
by Mr Phipps’ questioning. Much of his evidence was exaggerated. Some
of it is contradicted by contemporaneous documentation or correspondence.
Some of it was simply unbelievable. In several ways, I found him to be
untruthful. I can believe almost nothing that he tells the Court unless it is
supported by other evidence which is both credible and reliable, or the
inherent probabilities. Where his evidence is in direct conflict with that of
the Claimant and Dr Franich, I prefer their evidence

and a beautiful typo

34…He eventually accepted in cross-examination that the Driveway
Camera was in wife range, which makes the story he told about draping a
wire from one house to the other for the purposes only of set up, in my
judgment, entirely concocted to attempt to support his position that it was
never a functioning camera

VERY GRATEFUL TO JOHN GOSS on Twitter, who explained to me very nicely that s21(3) has been repealed and the appropriate law on household usage is now Article 2(2) GDPR (UK)

2.
This Regulation does not apply to—
(a)
the processing of personal data by an individual in the course of a purely personal or household activity;

So the substance is the same, the reference I gave was wrong.

Once in a while, you read a case and think “well, I’ve never seen THAT before” and this is one of them.

It is an international family law case, which isn’t really my bag, but basically a family broke up in Poland, mum came to UK with the children, dad applied to Court here to ask for her to be made to return to Poland. There are some specific factors which the Court can apply to say “no, not in this case”

So the argument was whether Article 13 of the Convention applied

The Court is not bound to return of the child if the person, institution or other body which opposes its return establishes that –

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’

I’m being coy about the name of the case, because it rather gives away what is alleged to have happened. I’ll give it at the end.

There are all sorts of allegations of mistreatment and abuse within the case, but the stellar allegation is this one:-

On 28 July 2020 there was a serious incident in which the father crashed his car into an Opel Vivaro minibus in which the mother, the maternal grandmother and the children were travelling. His motive for acting in this way was, he says, to prevent the mother from removing the children from him without his consent.

Okay, you possibly weren’t expecting that. Let’s expand.

The mother’s case is that by the summer (when the twins were aged 4 and the older children will have been 10 and 8), against a background of abusive behaviour by the father, she realised that she needed to get out of the family home ‘for all our sakes’ even if just for a holiday. She sought help from her mother who hired a minibus with a driver and came to collect them while the father was at work. The mother says that she did not at that stage intend to leave permanently.
The father was alerted to the mother’s plans by his grandmother. He immediately left work and drove towards the home in his Audi car. While he was en route, he spotted the minibus and recognised that his family were inside it. Based upon an account given by him the day after the incident [F267], he then diverted his car via ‘a field closed to traffic’ (I assume this to be a grass area separating the two carriageways) and crashed his car into the minibus which was traveling in the opposite direction to him. In his account given on 29 July 2020 he maintained that his manoeuvre had been aimed at blocking the path of the minibus, not actually crashing into it (an explanation he continues to advance); he suggested that the driver of the minibus had increased his speed (an assertion not supported by any other evidence) and said that he had been acting under the influence of emotion and strong agitation as he feared losing contact with his children.
Included within the police disclosure is what appears to be a forensic analysis of the circumstances of the collision. It was estimated that at the time of the collision the father’s Audi was travelling at a speed of approximately 36 km/h (c.22.5 mph); the Opel minibus was travelling at a speed of approximately 54-58 km/h (c.34-36 mph). It was virtually a head-on collision. The front left part of the Audi (the driver’s side) collided with the front left part of the minibus. The minibus was caused to spin round to the right whereupon it crashed into a pillar on its other side. It sustained significant damage on both sides. The Audi, heavily damaged, spun round to the left following the collision.

Goodness. Well, after you crash your Audi into a minibus which your children were travelling in, you probably get a moment of clarity where the realisation of what you did comes into sharp focus.

Or not.

In the immediate aftermath of the crash, the father left his vehicle and made his way towards the minibus. After unsuccessfully attempting to open a damaged door on one side of the bus, he made his way to the other side and proceeded to open the opposite door. The mother recounts (and the father has not denied this) that the father then grabbed the mother by the arms and attempted to drag her out of the minibus. The occupants of the bus were all screaming, in a state of considerable distress as a result of the father’s actions.
According to the father, he opened the door in the immediate aftermath of the incident as he could hear one of the children shouting ‘Dad’ and wanted to check that he was ok. The father accepts that having opened the door he said to the mother words to the effect of ‘I will not let you steal my kids’. In a witness statement provided to the police, the driver of the minibus stated that the father was shouting at the two women in the bus; he could not hear what he was shouting as the children started to cry loudly. Another witness reported to the police that in the aftermath of the incident he spoke to the father who stated that ‘he had caused the traffic incident deliberately because his wife had once again tried to take his children’.

Insert gif of blonde-haired slowly blinking man here.

The minibus and the Audi both sustained serious damage in the incident.
The mother and the children suffered scratches and bruises from the crash. The mother’s arms were also bruised from the father’s attempts to drag her out. Z suffered a sore neck which was placed in a collar by the firefighters who attended the scene. One of the twins had bruises to his chest from the seatbelt. F had bruising under his eye and on his eye as a result of hitting the seat in front of him. The extent of F’s distress was such that, according to the mother, he had to see a psychologist for therapy. The maternal grandmother had a loss of feeling in a right arm caused by the airbag opening. None of the family, however, required hospital treatment. The mother recalls being so shaken that initially she could not speak. She was given pills by a doctor to help her calm down.
The results of a toxicology report later revealed that the father had been under the influence of amphetamines at the time of the crash.
The incident led to the father’s arrest and detention in prison. He was charged initially with an offence that did not include any reference to drug misuse. Following receipt of the toxicology report the charge was amended to include that as an ingredient of the offence. The full charge is set out at [F186] and is expressed in fairly lengthy terms. It includes that:
‘[the father], intentionally, foreseeing the possibility of a catastrophy (sic) in land traffic and consenting to its committing, brought about a catastrophy (sic) in land traffic endangering the life and health of numerous persons…’

The charge also refers to the father having ‘intentionally violated’ the traffic rules by driving under the influence of amphetamine, having caused an ‘intentional collision’ with minibus and having ‘intentionally damaged’ it.

The father remained in prison for approximately six months and was released on 21 January 2021. He did not challenge his conviction, only the sentence.

The father sought to persuade the Court that this was not a situation to which Article 13 applies, to which I can only say, it is somewhat difficult to imagine what would if this didn’t.

In my judgment, the July 2020 incident (and its aftermath) considered against the background of serious abuse which preceded it, results in the mother’s case satisfying Article 13(b) by some margin. I agree with Ms Jones’s submission that there are no protective measures which can be put in place which will sufficiently mitigate the risks.
In entirely endorse Ms Demery’s characterisation of the mother and the children having experienced a ‘terrifying ordeal’ as a result of the incident. As Ms Demery says, it is only through good fortune that the incident did not result in serious injuries to any of the passengers. The charge which the father faces (or, on Ms Guha’s case, of which he has been convicted) is that he acted intentionally, having forseen the possibility of a catastrophe, and that by his actions he endangered the life and health of his children. He continues to deny that he acted intentionally, but for these purposes I must assume that this was indeed the case. It is difficult, in my view, to fathom how any father could have acted with such reckless disregard for the safety of his own children knowing (as he did) that they were travelling in the minibus at the time; indeed, notwithstanding his use of amphetamines, it is difficult to understand how he could have overcome the ordinary human instinct to press on a brake pedal and/or steer away from danger, but instead use his vehicle as a battering ram against the oncoming minibus.
In my judgment (assuming that the charge he faces is established in full), the father’s actions in crashing into the minibus represent an act of coercive control at the top end of the scale. He was delivering a message to the mother that no matter what she attempted she could not leave his home with the children. If the father’s priority had been, as he asserts, to prevent the abduction of his children he could have turned his car around and followed the mother to her destination. A desire to prevent his children from being taken to stay with his mother-in-law does not, in my view, begin to explain his actions let alone justify them. His mindset at the time is demonstrated by his reaction to the crash: he expressed no remorse and no concern for the state of health of any of the occupants of the minibus; instead he proceeded to attempt to drag the mother from the vehicle, causing her further injury, shouting at her and making a remark which, in my view, was in the nature of a threat.
I entirely accept Ms Demery’s view that the incident has had a lasting impact upon the older children. In my judgment, it is likely also to have had a lasting impact upon the other occupants of the vehicle including the mother and the two younger children (one of whom sustained a seatbelt injury).

In addition to the risks that the father would perpetrate physical and psychological harm against the mother and the children (which I have described above), requiring the children to return to Poland at this juncture would, in my judgment, be highly destabilising for the family. I accept the mother’s description of the father as ‘a dangerous man who feels entitled to do just what he wants’, on the assumption that her account of events is true. I consider that the fears she expressed on 4 November 2020, prior to her departure from Poland, were justified and that were she now to return – in the run up to the December hearing – she would once again, be consumed by fear which she would be unable to conceal from the children. As Ms Demery has noted, for F, returning to Poland would mean “I would have to go back to the country where I have endured so much and experienced so much because of my stepfather”. Both of the older children have memories of the abuse they suffered in Poland; I agree with Ms Demery that F’s reasons for wanting to remain in England are ‘cogent’. The July incident, Ms Demery notes, has had a lasting impact upon the older children and in my view the same is likely to be true for the mother and the younger children. In my judgment it would be intolerable for the children to have to return to Poland in circumstances where the family would be living in a state of fear for their safety. The children are very vulnerable and have had disrupted upbringings in which they have been exposed to abuse on multiple occasions. They should not now be expected to tolerate being required to return to Poland in the circumstances I have described.
In all the circumstances, I have reached the conclusion that magnitude of the risks which the children would face upon a return coupled with the potential consequences for them were those risks to materialise are of such severity that they can be characterised as ‘grave’ within the meaning of Article 13(b). In my judgment, there is a grave risk that they would be exposed to both physical and psychological harm and that they would be placed in an intolerable situation.

I’m very grateful that nobody was more seriously harmed in the crash, and what a truly dreadful experience to have gone through.

The case is

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2688.html

K And M (Children), Re (Abduction: Grave Risk: Intentional Car Crash) [2021] EWHC 2688 (Fam) (14 September 2021)

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

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2593.html

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

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

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

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

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

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

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

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

Or “Snail mail”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and this one

CABINET / The Internet of Snails (cabinetmagazine.org)

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

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

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

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

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

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

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

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

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

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

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

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

HE IS TWELVE YEARS OLD.

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

I wrote about the Bristol case at the time.

Hair we go again – or blip versus tip | suesspiciousminds

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

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

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

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

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

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