The role of the Court in assessing alternative medical treatment

Posted on January 15, 2013 by suesspiciousminds

 

 A discussion of  An  NHS Trust v SR 2012

 

 

This case made a lot of the national press over the last month, and I wanted to wait for the judgment before discussing it.  It involves a child who is seven years old and has cancer, and a mother who disagreed with the proposed medical treatment and removed him from hospital.  You may recall that the mother and child then went missing, and the High Court took the unusual step of identifying them in the press so that they could be located, and an interim care order was made to convey the child to hospital once the child was found. The mother was prepared to speak to the press and put forward her arguments as to why the proposed treatments were not in her child’s interests.

 

The Court were asked to resolve this dispute and made orders directing that the hospital could undertake the treatment they wished to. 

 

[That decision was made potentially more simple by the parents disagreeing about whether the medical treatment should or should not happen, so the Court were in a position to treat it as a dispute over the exercise of parental responsibility, rather than both parents being adamantly opposed to treatment]

 

[Caveat – although I might well know some of the people who were involved in this case, I have not discussed it with any of them, and the discussion here is purely my own thoughts arising from the judgment]

 

The case can be found here :-

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3842.html

 

 

Mr Justice Bodey sets out the factual background very succinctly, and I do not hesitate to steal his construction

 

  1. This is an application by an NHS Trust in respect of N a boy aged 7, who is suffering from a Medulloblastoma, a malignant brain tumour. The consultant paediatric oncologist “Dr A” and his multi-disciplinary team of child cancer experts at the hospital treating him (a recognised centre of excellence) are of the opinion that following surgery he now requires radiotherapy and chemotherapy. Generally speaking such a treatment package has about an 80% success rate, sometimes put at 86%.
  1. N’s father (whom I will call “the father”) agrees with the advice that radiotherapy and chemotherapy should now be delivered to N as soon as possible; as does N’s Guardian from CAFCASS who represents N in these proceedings. However, N’s mother (whom I will call “the mother”) does not consent, believing that there are alternative methods of treatment which should be used and which would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. Since a child is unable to give the necessary consent for medical treatment, such consent is usually given by one or both parents. In law, medical professionals can act on the consent of either parent. However, when the matter is a very serious one and the parents cannot agree, it is accepted that an application will or may need to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence this present application by the NHS Trust concerned to the High Court to determine the issue of N’s treatment following on from his brain surgery.

 

 

It is important to note that this is not a case where the mother was in denial that the child had an extraordinarily serious medical condition, nor one where she was flatly refusing that he should have any form of treatment, but rather that she felt that her reasons for opposing the radiotherapy and chemotherapy were compelling and persuasive, and that she was acting properly as a parent in objecting to them.

 

The Court had to deal with the mother’s reservations about the treatment and her alternative proposals. There was clearly an interesting day in Court where eminent cancer specialists were cross-examined by Queen’s Counsel about alternative therapies.   {The underlining for emphasis here is my own}

 

 

 

 

  1. Yesterday, Thursday 20th December 2012, the court sat again for further consideration and determination of the issue about radiotherapy. Early on, Mr Peddie QC handed up a report dated 19th December 2012 by a Dr D. Usually rules apply about expert evidence, such that the expert’s expertise is checked by the court in advance for its relevance and then his or her report, when prepared, is shared between all parties. Arrangements are made for the experts to meet or speak in advance, so to narrow the issues between them and thus their evidence is able to be dealt with in an orderly way. However, in proceedings of this nature and urgency, that is not always possible and in practice substantial latitude is allowed – although this may make, as here, for a somewhat disorganized hearing. Dr D’s statement makes clear that he is not a medical doctor and he does not purport to be so. His CV refers to him as ‘an internationally acclaimed expert in agricultural, environmental and health sustainability’. His work has focused on diverse issues including ‘the development of natural and sustainable approaches to health care’, and also to ‘the development of sustainable agricultural systems, the reduction of synthetic chemical load among urban and rural communities and the protection of natural ecosystems’. He sets out a number of alternative treatments and therapies which exist, but which I do not need to go through here, and he gives the names and addresses of a number of Harley Street doctors who practise complementary or alternative medicine. Mr Peddie cross-examined Dr A on these various alternative procedures referred to by Dr D, seeking to show that they are worth looking into further, as being actual or possible treatments suitable for N. Dr A dismissed the applicability of all of them here, explaining that they are either experimental, or else used with patients who are already in relapse, or who are otherwise unable to be treated with standard doses of radiotherapy and / or chemotherapy. None of the techniques put to him have, he said, been subjected to the rigorous clinical trials which would need to have been carried out before approving a course of treatment for a child. (The case of an adult is different, as he or she can weigh risks and take his or her own decision as to his or her preferred treatment).
  1. Late yesterday afternoon, Miss Butler-Cole asked the mother in cross-examination about her (the mother’s) folder of material on which she (the mother) was appearing to rely in the witness-box when referring to thousands of children who have survived cancers without mainstream treatment, including radiotherapy. It was arranged that overnight M would chose and produce the two papers or reports which she was putting forward and relying on as being the most supportive of her stated case about the existence of credible alternative treatments. That has been done this morning. Mr Peddie has cross- examined Dr A about her two chosen papers. To put it shortly, neither paper supports the suggestion that there should not be radiotherapy and chemotherapy for N. One of the reports is concerned with studies carried out as long ago as 1987 to 1994, which attempted reduced radiotherapy but which in fact turned out to be rather unsuccessful; and the other paper is actually one upon which Dr A is in any event basing the proposed treatment package for N. Nothing has been produced from the mother’s folder supporting the suggestion that there are Chinese or Russian or other reports which speak to thousands of children surviving cancers without mainstream treatment, including radiotherapy.
  1. The underlying issue is, as I said at the outset, whether radiotherapy and chemotherapy are in N’s best interests? The advantages have to be balanced against the disadvantages (of which there are several and to which I will come back). The “gold standard” orthodox approach contained in the CCLG guidance (the Childhood Cancer Leukaemia Group to which oncologists in this country belong) is that a package of radiotherapy and chemotherapy is necessary to produce optimum survival rates. Much research, investigation and deliberation by cancer experts over decades has determined the minimum dosages to produce maximum survival rates, with the minimum possible detrimental consequences as regards quality of life. Before radiotherapy was developed during the course of the last century, patients who had N’s cancer invariably or almost invariably died in spite of surgery.
  1. Various research papers have been placed before me and have been discussed in evidence. I do not need to descend to the detail of them, although I have read and carefully considered them. One particular statistic was extracted by Mr Tolson QC and is adopted by Mr Peddie QC. It is based on studies of infants (children under three years of age) who were treated by way of chemotherapy alone, that being reasonable treatment for that particular age group, since the detrimental side-effects of radiotherapy for children with developing brains are far worse than they are for children aged around 7, whose brains are that much more developed. Extrapolation from the studies concerned, being in respect of a different age group to N, is not therefore necessarily reliable in any event. The statistics relied upon on behalf of the mother are that with chemotherapy alone, 35% of the infants in the study achieved “event-free” survival at five years (i.e. survival without relapse) which compares with 80% of those who received both radiotherapy and chemotherapy. The statistic for “overall survival” at five years (i.e. the combined total of those infants who had not relapsed plus those who had relapsed) is tabulated as being 67.5%. That appears to compare quite well with the figure of 80% for those infants originally treated with both radiotherapy and chemotherapy (being only about 12.5% lower). However that figure of 67.5% for “overall survival” (set out under the heading ‘chemotherapy only’ in Mr Tolson’s table) in fact includes all those infants who had relapsed after treatment with chemotherapy alone and who had only survived to the five year point by being ‘rescued’ by subsequent radiotherapy and by further (and often more aggressive) chemotherapy. The disadvantages of radiotherapy are much the same whether it is administered as a first-line treatment or as a second-line ‘rescuing’ treatment after a relapse. Thus whatever the statistics may appear superficially to show, there is in fact a significant tested and reported difference regarding the survival rate of infants as between whether they are treated with chemotherapy only, or whether they have both radiotherapy and chemotherapy. Such tests do not exist in respect of children of N’s age because it has not been considered ethical, since radiotherapy began to be used, to treat them without it. There is another all-embracing series of studies which reports on the outcomes without radiotherapy, measured at 8 years on, as being lower still: 27% “event-free survival” and 42% “overall survival”. I add for completeness that the figures under discussion assume treatment starting without undue delay, which is not N’s situation now; his rate is likely to be or may be somewhat lower than it would have been, whether treated with radiotherapy followed by chemotherapy, or with chemotherapy only

 

 

It is fairly clear from that that the medical evidence was strongly in favour of the appropriate course of action for the child being that recommended by the hospital.   (Of course, as we know, today’s medical orthodoxy can become tomorrow’s discredited leech therapy, but the Court have to make decisions on the facts as best they know them)

 

That was one limb, the efficacy of the radiotherapy and chemotherapy as against alternative therapies. The second was comparing the negative consequences of the therapies, and here the mother made more headway

 

  1. I now turn to the disadvantages of the proposed treatment package, in particular radiotherapy. I put it that way because radiotherapy was the live issue when most of the evidence on the point was given on 7th December, 2012, since the mother was not then opposing chemotherapy. Dr A has from the outset acknowledged the existence of the detrimental side-effects on patients which the treatment package recommended by him and his colleagues has. As regards intellectual and cognitive impairment, his evidence was originally that one can expect to see about a 4 point per annum IQ loss over each of the four years after treatment, although it could be less or more. He thought there would be some intellectual detriment from radiotherapy, although said it could be minimal. Subsequent research by him has produced a later paper which suggests a very much less significant decline in IQ. He accepted that radiotherapy would decrease anyone’s chances of ‘growing up to be a lawyer or doctor’, but said that he has treated many patients with this disease using the standard treatment he recommends for N and that they even go to school with some additional help, play sports and do the normal sort of things which others do who have never had the disease. Generally, he said they cope pretty well with the side-effects. He expressed concern that the reduction in cognitive function attributable specifically to radiotherapy has been overstated. He did not consider that there would be any effect on the N’s personality.
  1. As regards hormonal detriment, Dr A accepted that there could be impact to the growth hormone, although he said the progress of the child is monitored and hormone replacement therapy is routinely given. Generally speaking, therefore, any loss of growth ‘…would not be noticed in the street’. As regards the thyroid, Dr A told me that a negative impact is much less common. It can make the patient more lethargic and cause a weight increase, but again this is monitored and is dealt with by tablets. As to fertility, Dr A accepted that there are risks of sub-fertility or infertility. He said that older patients are usually counselled to the effect that ‘…there is a risk of sub-fertility which, at its worst, could mean that you cannot have a child’. Nevertheless, he advises older patients to take contraceptive measures. Further, Dr A pointed out that chemotherapy (which, as I say, the mother was accepting) has a greater role to play in threatening fertility, roughly 60 to 70%, as compared with radiotherapy’s role of perhaps 30 to 40%. As regards the risks of secondary malignancy later on in life, Dr A accepted that such a risk exists. The most common such cancer is benign and therefore normally treatable by surgery. In ‘ballpark’ terms, he placed the risk of later-life cancer (of all types, benign and malignant) at a figure of some 2% to 4%, although the individual might have suffered such cancer in any event. There are one or two other downsides to the suggested treatment which I have well in mind, but do need to go into individually.
  1. I have heard Dr A give evidence at length. He has been a consultant paediatric oncologist for 10 years, with hands-on responsibility for child patients. His knowledge and experience of the subject matter is highly impressive, as would have been obvious to anyone in court. He and his team work at the cutting-edge of this discipline, anxious to keep up with the developing techniques as they are tested and reported on, both here and elsewhere. He told me how the team strives to strike the necessary balance in giving their children treatment which has the best possible rate of survival, but with the least possible detrimental side-effects. Having seen and heard Dr A, I find it hard to see that he and specialists like him would keep back or fail to explain the possible benefits of credible alternative therapies which work, or might work, for such very ill children. He told me of ongoing trials in the USA aimed at further reducing the standard dose of radiotherapy, but explained that these will not be reported upon until about 2016. For the moment, he regards the idea of using chemotherapy alone as ‘a big risk and a big gamble…reducing the prospects of survival by an experiment’. I accept Dr A’s evidence and I reject any suggestion that he has minimised the disadvantages of the recommended treatment package. I find that he has shown dedication to this case and therefore to N’s best interests, devoting much time to it, beyond the call of duty. He has been in court and available to assist throughout the hearings, except during the delivery of this Judgment. He has answered many questions both in court and outside court in writing, some inevitably rather repetitive (due to the change of legal representation) doing so clearly and with patience. I am satisfied that he has done his best to assist the court neutrally and fairly.
  1. The mother, having heard Dr A’s evidence and being asked whether it affected her view on radiotherapy replied that, following upon her many hours of research, she still feels there are other ways to treat N. She told me that to her mind the orthodox view of oncologists is the product of indoctrination. I cannot accept that. I find it on the evidence before me to be the best we have at the present time to deal with what the mother’s own expert, Dr X, described to Ward L J as ‘…a highly malignant disease’, and one which will very probably cause death if not conventionally treated. It may well be that some of the complementary techniques which the mother has in mind, for example as to diet and lifestyle, or as to oxygen therapy, can beneficially be used in conjunction with the mainstream therapy proposed. Dr A said he and his team have no problem with this and can work with parents along those lines, so long as the alternative suggestions do not conflict with or disrupt the primary treatment.
  1. The mother has been through a very stressful time. What the parents have suddenly had to confront over the past two or three months is every parent’s nightmare. I have every sympathy with them; and with the mother in not wishing to see N subjected to the risks and side-effects which conventional treatment carries with it. Her wishes and views as a parent are obviously an important part of the balancing exercise, both in their own right and because of their potential effect on N. But I am worried that her judgment has gone awry as to the extent of the seriousness of the threat which N currently faces. As I have said, she did originally agree to chemotherapy at the hearing on the 7th December, 2012; and, when Mr Peddie made his submissions at the end of this hearing, he spoke of her continued agreement to it, although in her evidence I noted her disagreeing to it, alongside her continuing objection to radiotherapy. During the course of Ward LJ’s judgment at the telephone hearing three nights ago, he observed that “… the mother is becoming increasingly implacable” and I too have the perception that her approach has hardened as these stressful days in court have gone on. It concerns me that she may have become somewhat overwhelmed by the process whilst this case has been in court, which is most unfortunate from N’s point of view. I express the hope that, when she has had time to stand back and reflect upon his best interests, she will come to terms with the court’s decision (as she told me at the first hearing she would) and support him through the very difficult times ahead. N clearly needs both his parents to be pulling together alongside the treating team and nothing could be worse than for him to pick up on any sense of maternal opposition to the treatment.

 

 

The Court had to make a decision, and the decision was fairly easy to predict

 

It will be obvious from the above what I have decided should happen. I accept the submissions of the father, the NHS Trust and the Guardian. The balance of advantage and disadvantage tilts well in favour of radiotherapy and chemotherapy, notwithstanding the detrimental side-effects. One cannot enjoy even a diminished quality of life if one is not alive. I shall therefore make a Declaration that the treatment package proposed by the NHS Trust is lawful.

 

 

 

There was then an issue about whether that should be a final decision, or whether the treatment should commence but be reviewed, with mother having an opportunity to fully assemble her evidence of the case both for her alternative therapy/treatment and against chemotherapy and radiotherapy  {Again, underlining for emphasis is my own}

 

 

  1. The question then arises as to whether this should be a final decision, or whether I should give the mother a further opportunity to marshal and call expert evidence on complementary or alternative treatments. The time for everyone to prepare for this case has been short and she clearly has her Article 6 right to a fair hearing. I am very conscious that she feels catapulted into this litigation, without proper time to get her case together. It is however the fact that the mother has been fully aware since early November 2012 about the opinions of the treating clinicians that N requires radiotherapy and chemotherapy. She herself mentioned today having ‘done a crash course on the issue over the last 6 weeks’ and she spoke earlier of having ‘numerous people working on it’. On both the 3rd December and 4th December 2012, Hogg J gave her permission to call expert evidence, although I accept that the mother’s having gone missing with N that week made it impossible in practice for her then legal team to do much about that. On the 13th December, 2012, by an e-mail order, I gave the mother further permission to call an oncologist. It is now clearer, with the emphasis at this hearing on entirely complementary therapies, that that may not have given the mother exactly what she may have wanted; but my order also gave her ‘liberty to apply urgently to seek further or other directions’. That was some eight days ago. The mother has had representation by and advice from Leading Counsel and solicitors since before the 3rd December 2012, as Mr Tolson QC prepared a robust Position Statement on her behalf for the hearing before Hogg J of that date. She changed her legal team during the hearing on Tuesday of this week (the 18th December 2012) and it follows that her current legal team has struggled to read into the case and to get very much together to support her position in the time available. She has referred several times to research from and treatments available in Russia and China and elsewhere, which research she has not been willing to pass across to the NHS team, although asked by them to do so, for fear (as Mr Peddie put it) that she might be seen as seeking support ‘from quacks’. Mr Peddie submitted today that the mother’s search has been hampered by the S.4 of the Cancer Act 1939, which prohibits the advertising of cancer services; but on her own case the mother has been able to carry out much research on the internet, which anyone can do without difficulty. Dr D set out in his report of 19th December, 2012 a list of Harley Street doctors who he says offer complementary medicines; but nothing has been heard from any of them.
  1. I have to keep firmly in mind what is required for there to be any realistic prospect of the court’s preferring some complementary alternative to the standard mainstream treatment for N’s condition. It is not just a question of demonstrating that there is research and experimentation going on out there; nor that there are ideas and possibilities being floated, nor even that there are reported success stories of cures occurring without the use of radiotherapy and / or chemotherapy. What is required is the identification of a clinician experienced in treating children aged about 7 having this kind of brain cancer; a clinician with the access to the necessary equipment and infrastructure to put the suggested treatment into effect and able and willing to take over the medical care of and responsibility for N. As Ward LJ said at paragraph 38 of AVS v NHS Foundation Trust [2011] COPR Con. VOL. 219: “… if there is no one available to undertake the necessary operation, the question of whether or not it would be in the patient’s best interests for that to happen is wholly academic…”. The treatment proposed by any such clinician would have to be (or should preferably be) properly studied, tested, reported on and peer-reviewed. To have any realistic prospect of becoming selected by the court (and I repeat that this is not a decision to be made by an adult for himself, but for a child) the proposed plan would have to have a prognosis as to probable survival rate not much less than (and preferably equal to) the sort of survival rate achievable through the use of the orthodox treatment universally applied at present by oncologists in this country.
  1. Giving the mother a review hearing date after Christmas, or just a “liberty to apply ” provision in my order, would also have an incidental downside to it. This is because everyone working at the hospital with N should ideally be able to go forward with as much certainty and confidence as possible that the necessary decisions have been taken. They need to be able to get on with making the necessary booking arrangements for the equipment, making the restraining mask and planning their commitments. They need to be able to prepare N with play-therapy which is able to be confidently delivered, and not in some half-hearted way because they are aware that the radiotherapy might never happen. It is not in N’s interests that everything should be ‘semi-on-hold’ awaiting notification after Christmas or in the New Year as to whether or not there is still to be further litigation. Whilst recognising therefore that the mother’s right to a fair trial is absolute, I am satisfied in all the circumstances (i) that she has had a sufficient opportunity overall to put forward a case for complementary treatment for N and (ii) that it is not unfair for this decision to be taken today, without there being any pre-ordained opportunity for her to apply at a further hearing after Christmas. Obviously, in any case involving the best interests of a child, a dramatic change of circumstances would enable a party to turn to the court, but that is not something for which I consider I should specifically plan.

 

 

I found these passages to actually be the most interesting in the judgment. The suggestion here is that it is appropriate for the Court to rule in favour of mainstream treatment unless a parent can show that the prognosis and survival rate in terms of the alternative treatment is “not much less than and preferably equal to the orthodox treatment universally applied by oncologists in this country”

 

The reasoning behind that is that the Court is looking not at the decision of an adult to make an informed decision about treatment for themselves, but on behalf of a child. Where the adult is aware that the treatment for themselves may not be as efficacious as the treatment they are rejecting, they are taking that decision for themselves and are entitled to more leeway in making a decision that other people might not make for themselves.

 

This does seem to me, to set the bar quite high, and perhaps does not fully take into account that there is more than simply the efficacy of treatment, there is also the negative impact of the treatment on quality of life, pain, discomfort etc, that a parent might legitimately want to shield the child from.

 

To put it this way

 

If  Treatment A has a score out of 100 (1 being bad, 100 being good) of

 

Prognosis  85     Patient comfort   20

 

 

And Treatment B has the scores

 

Prognosis  60  Patient comfort 65

 

 

And Treatment C has the scores

 

Prognosis 5  Patient Comfort 100

 

Well then a great many parents might well decide that the only factor that matters to them is prognosis, the survival chances of their child and Treatment A is obviously the right one. But others might well say that with both treatments, there is some chance that the child won’t survive and they don’t want the child to be in pain or distress during the treatment, so they would prefer Treatment B. 

 

It would seem fairly easy to reject Treatment C as simply not being good enough at treating the condition, and so there’s a point at which lower prognosis for higher patient comfort stops being a valid trade-off. I’d suggest that opting for Treatment C would be an unreasonable decision, if A and B were instead available for the child   [though it would be a viable decision for an adult to make for themselves].   Treatment C might for example, be sugar pills, which would have themselves no adverse impact on the child, but do very little for the actual condition itself.   [cough, homeopathy, cough, cough]

 

It might be that the average parent would go for Treatment A, but would a parent going for Treatment B be manifestly wrong, to the extent that a Court should intervene?

 

These numbers are of course plucked out of the air, I have no idea what evidentially the mother might have been able to produce that would show the prognosis on her proposed model of treatment, or the comparisons of pain, side effects, discomfort.

 

 

But I am a little troubled that this case, with those fictitious numbers above, would mean that a parent could not plump for Treatment B, because the prognosis is not  “not much less than and preferably equal to the orthodox treatment universally applied by doctors in this country”  

For the avoidance of doubt, I think the Court made the right decision in this case, and that there simply wasn’t the compelling evidence presented to them to diverge from the very clear and strong medical opinion that this child needed urgent and orthodox medical treatment;   and that the State has to have power to intervene where a parent ignores that medical advice and is seeking to provide treatment which is untested, or crackpot.  But is there some room in the middle where a parent can choose between two valid treatments, one of which is less efficacious than the orthodox one?

 

I always get worried, as a bleeding heart liberal, when parental autonomy is eroded. In this case with this evidence, choosing between what mum wanted and what dad wanted, was very straightforward, but that construction that a parent seeking to provide unorthodox or alternative therapy for a child has to show that the prognosis is as high as the orthodox treatment seems to me to set a very high bar, and to not fully take account of the other factors than prognosis that might properly influence a parent.

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Law society guidance to solicitors attending meetings with social services

Posted on January 15, 2013 by suesspiciousminds

 

Important reading for all lawyers involved in care, particularly local authority ones   (Thanks to @CelticKnot for putting this up on his twitter feed, which brought it to my attention)

 

http://www.lawsociety.org.uk/advice/practice-notes/attendance-of-solicitors-at-local-authority-children-act-meetings/

 

Clearly someone with a gripe has contacted them with a well-thumbed textbook, to suggest that a Local Authority lawyer being present at a meeting that the parents attend should have the consent of those representing the parent to be present, and the Law Society don’t go that far, but do give some clarification as to where care needs to be taken.

I think they chiefly mean case conferences, rather than Letter before action meetings, since they talk of giving advice during the meeting, but I think best to work on the basis that it applies to any meeting held outside of the Court building.

3. The role of lawyers in local authority Children Act meetings

3.1 If you are representing the local authority

If you are employed by a local authority, you will be called upon to advise as well as to act on behalf of their local authority ‘client’ in care proceedings. One particular function will be to advise the authority on whether the criteria for initiating proceedings under the Children Act 1989 have been met.

The local authority solicitor also has a particular function in relation to Child Protection Conferences. Paragraph 5.84 of Working Together to Safeguard Children, a guide to inter-agency working to safeguard and promote the welfare of children (2010) states that ‘those who have a relevant contribution to make may include local authority legal services (child care)’.

In this context, your attendance may be necessary to offer expert advice to the Conference on any legal issues which may arise, but not to be a full participant in the Conference.

You should not address substantive questions about the matter under consideration directly to parents for two reasons:

  • firstly, this could well mean asking questions of another solicitor’s client without his or her permission, and
  • secondly, you should not ask questions of a lay participant at a conference without his or her solicitor’s consent which should more appropriately be asked in court proceedings.

Questions directed to other participants in the Child Protection Conference will normally be limited to prompting an expansion or clarification of information or evidence already given (see 1.3 Professional conduct).

Further, legal advice to the local authority on their agency role in care planning and on initiating or pursuing court proceedings should be given outside the Child Protection Conference.

However, if the conference is considering making a recommendation to the local authority that care proceedings or other court action should be taken, you may give a view to the conference as to whether the evidence would support such a step being taken.

You may assist in the decision as to whether the criteria are fulfilled for making a child the subject of a child protection plan.

You may also suggest to the Local Authority that it consider initiating or pursuing court proceedings. However, any decision actually to initiate or pursue court proceedings should be made by the local authority outside the Child Protection Conference.

Care planning is essential to meet the child’s future needs, and your involvement could help to reach agreement as to the provision of services and support, which may either reduce the need to bring proceedings to court or alternatively to narrow the issues within care proceedings so as to avoid non-purposeful delay which is in itself harmful to the welfare of the child.

 

and at para 1.3 they make something explicit which most lawyers would have deemed implicit anyway

The Law Society’s guidance has been sought on the application to Local Authority Children Act meetings of Outcomes 11.01 and 11.04 of Chapter 11: Relations with Third Parties, in the Solicitors Regulation Authority Code of Conduct 2011.

  • Outcome 11.01 : ‘you do not take unfair advantage of third parties in either your professional or personal capacity’

It has been suggested that a l ocal authority solicitor attending a Local Authority Children Act meeting may fall foul of this rule if they were to listen to the discussion at the meeting in which parents are participating and then use the knowledge of that discussion to advantage in the cross-examination of a parent in any subsequent court proceedings.

It must be reiterated that the purpose of a Local Authority Children Act meeting is to share information about the care of the child, the child’s need for protection and to plan for future care.

It is outside the remit of the meeting to consider allegations of abuse against the parents except in so far as this may be relevant in formulating a care plan to meet the identified needs of the child.

In other words it is important to ensure that inappropriate investigations of abuse are avoided. If you are representing the local authority, you are responsible for advising the meeting to keep within its remit. It is then the responsibility of the chair of the meeting to ensure that the meeting does keep within its remit.

If it appears to you as the l ocal authority solicitor that, at a meeting where parents are in attendance without their solicitor, there is a need to discuss information which may be in conflict with the parents’ interests, you should consider advising the meeting that they must withdraw while this information is discussed.

It should not be assumed that there will always be a conflict of interest between parents and child, or parents and the local authority.

The concept of working in partnership should be pursued until the contrary is indicated. Equally, it should not be assumed that withdrawal from a local authority Children Act meeting should be routine – it should only occur in rare circumstances and in cases where prior warning of potentially damaging admissions is given and in order to prevent criticism at a later stage.

  • Outcome 11.04 : ‘ensuring that you do not communicate with another party when you are aware that the other party has retained a lawyer in a matter, except:
    • (a) to request the name and address of the other party’s lawyer; or
    • (b) the other party’s lawyer consents to you communicating with the client; or
    • (c) where there are exceptional circumstances’

It has been suggested that if parents have retained a solicitor who is not present at the local authority Children Act meeting, then the local authority solicitor can only attend with the parents’ solicitor’s consent. It is the Law Society’s view that this Outcome is not relevant in the context of local authority Children Act meetings and therefore should not be used to determine who should and should not attend such meetings.

 

I personally have always taken the view that Letter Before Action meetings aren’t about exploring factual matters or responses to allegations, and I would tend to not attend if the parent is either unrepresented, or has a solicitor and their solicitor doesn’t attend, but it is worth noting what the Law Society say.

There’s then some advice for solicitors representing parents at any meetings involving Social Services   (not just “for God’s sake take some billable work with you, or your firm will go bust doing this work for next to nothing”)

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3.4 If you are representing the parents or persons with parental responsibility

It is good practice for local authorities to invite you, or a representative of your firm, to accompany parents as a supporter to local authority Children Act meetings and that local authorities should be encouraged to adopt this approach.

This will facilitate a full exchange of information and also avoid the stressful situation of parents having to face a meeting of professionals without any professional assistance themselves.

If you cannot attend in person but instead send a representative of your firm, you must ensure that the representative is knowledgeable in child care law and procedures, and is fully informed of the circumstances of the case.

It is in any event, important to advise parents of the importance and benefits of their attendance at Local Authority Children Act meetings and to assist in preparing them for the meeting.

You should first discuss with the client who, if anyone, would be the most appropriate person to accompany them to the meeting (if it is appropriate and possible for someone to attend), and consider what the person’s role should be, subject to the agreement of the chair of the meeting.

If court proceedings are a possible outcome or these are already in existence, you should discuss with the client(s) the implications of giving information to the meeting, particularly if there is a possibility that they may later be cross-examined in court.

Where parents are unable to attend the meeting, you should encourage and assist the parents to prepare a statement to be read out at the meeting.

When you attend local authority Children Act meetings your role at the meeting should be outlined by the chair. In appropriate cases this might include clarifying whether or not you can ask questions or raise points on your clients’ behalf.

It is frequently the case that the chair of the meeting will meet parents (and their solicitors) before the meeting starts. Any queries over your role can therefore be dealt with at that stage.

There may be circumstances when it may be inappropriate for both child and parents to be present at the meeting at the same time. It will be for the chair to work out procedures to enable all parties to participate to the fullest and fairest extent.

However, where a young person decides to attend a meeting without being accompanied by a representative, but does not wish to disclose information in front of his or her parents, then it will usually be appropriate for the parents and their representative to withdraw from the meeting to enable the young person to participate.

In some cases, for example, where parents are separated, issues of conflict, competing interests and requests for confidentiality do arise as between parents or relatives attending at local authority Children Act meetings.

It may therefore not be appropriate for those persons and their solicitors to be present together during the meeting. Again, it will be for the chair of the meeting to determine appropriate procedures to enable the fullest and fairest possible participation of those concerned.

 

 

 

 

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Semantics, pedantics and Neuro-mantics

Posted on January 14, 2013 by suesspiciousminds

A discussion of the  fascinating “Blinded by neuroscience – social policy, the family and the infant brain”  paper by David Wastell and Sue White

I was sent this compelling and interesting paper by a colleague, and it makes an interesting companion piece to the official family justice research paper on neglect, which I blogged about here :-

Taking neglect seriously

The paper can be found here :  –    (you need to click on the PDF to read it, but it is free)

http://www.ingentaconnect.com/content/tpp/frs/2012/00000001/00000003/art00008?token=005015070f39b6e58654624315142576b7921766b3c252e5e4e2663433b393f6a333f256698c60b5

Now, why this is interesting generally, rather than just specifically because it is an interesting paper, is because the authors are positing that the Government is about to go in a direction based on scientific research that neglect :-

(a)   causes much more long-standing damage on children than previously understood

(b)   that poor quality of care in the early years of a child’s life causes damage to the structure of the brain which is hard to overcome

(c)   and that as a result, earlier intervention, and where necessary removal is the way to tackle this

And of course, the very first piece of research published by the Family Justice Review team is on these very issues, and although it doesn’t advance as far as (c) explicitly, it certainly comes up to the shoreline and says that speed of decision making is critical and that children under two can’t wait for decisions. It certainly endorses unequivocally the viewpoint that science has demonstrated (a) and (b)

What this article does, is question the scientific studies and research that lead to (a) and (b) and suggests that a careful analysis of the source material suggests that it is not so concrete as the FJR research suggests. And if (a) and (b) are not solid foundations, moving to (c) as the public policy seems to be doing at present may be even more risky than it appears.

[As a sidebar, this argument of if (a) and (b) are right, is (c) right, reminds me of Lewis Carroll’s dialogue between Achilles and the Tortoise, and you can find that here, and shows that you simply can’t prove anything at all with logic, if you are arguing with a smart-arse :-   ]

http://www.ditext.com/carroll/tortoise.html

achilles

In detail, the authors of this paper suggest that the thinking the Government are working on, that the infant brain is readily susceptible to permanent and irreversible damage from poor care, is wrong and that the truth is rather that the infant brain is resilient and has a plasticity  (by which they mean it is flexible and can adjust and will recover from early delays)

Initial caveat  –  I was concerned by the strident tone of this paper, and I was also concerned that neither of the authors (eminent and smart as they obviously are) are actually neuroscientists.   [That will teach me to judge by the titles that people give at the end, have been contacted by one of the authors, who very politely tells me that he is indeed a neuroscientist – ignore every other time I say that in the piece]

I would be terribly interested to learn whether this is a genuine schism in the field of neuroscience as it relates to children, neglect and brain development in infants, or whether one side or the other is cherrypicking data and quotes.  I simply don’t know. I’m not a neuroscientist, and though I can make sense of what is said by both sides, I am in no position to weigh up who is right.

Having critiqued the strident tone, I suppose that if the authors are right, and the Government is about to lurch into a public policy on neglect, child protection and quick adoptions based on ‘hard science’ when what they believe the ‘hard science’ says is wrong, I might be pretty forceful in my tone too.

Let’s have a look at some detail

We argue that the neuroscientific claims supporting current policy initiatives have receivedlittle critical commentary. They appear to be operating as powerful ‘trump cards’ in what is actually very contentious terrain, suppressing vital moral debate regarding the shape of state intervention in the lives of children and families.

 

In this article, we interrogate the nature of the scientific claims made in key documents and the ideological thrust of policy that they have engendered. We examine Allen’s first report in detail first, before developing a more general critique of what Tallis and others have dubbed neuromania: ‘the appeal to the brain, as revealed through the latest science, to explain our behaviour’ (Tallis, 2011: 5; Legrenzi and

Umilta, 2011). Bruer’s (1999) deconstruction of the ‘myth of the first three years’ will feature prominently in our argument, paving the way for a broader critical analysis of the ‘new’ brain science and its influence on policy. We contend that neuroscience is re-presenting an older ideological argument about the role of the state in family life in terms of a biologically privileged worldview. We suggest that there is a great

deal of difference between ‘early intervention’ as defined in the Allen report and what Munro (2011: 69) refers to as ‘early help’, which includes a much wider range of family support activities. Neuromania, we conclude, is the latest of modernity’s juggernauts reifying human relations into ‘technical objects’ to be fixed by the state (Smith, 2002), which always ‘asks nothing better than to intervene’ (Ellul, 1964: 228).

 

 

Strong words there, and the phrase at the end that the State generally seeks reasons to intervene is resonant.  I feel personally that the State has moved much more towards a paternalistic approach to the lives of its citizens and away from a broad principle that people are autonomous and best placed to make decisions for themselves save in very narrow circumstances, and that the law has done the same in recent years.  People’s freedom to make bad, foolish and downright idiotic decisions for themselves has to an extent been eroded.

Criticising Allen’s report, on which a lot of the foundation of the neglect causes irreversible damage in infants is based, the authors say   (their quotes from Allen are in italics)

The importance of secure attachment is invoked:

 

“Children develop in an environment of relationships.… From early infancy, they naturally reach out to create bonds, and they develop best when     caring adults respond in warm, stimulating and consistent ways. This secure attachment with those close to them leads to the development of empathy, trust and well-being. (2011a: 13)”

 

Predictive claims quickly follow regarding the long-term effects of such early attachment patterns, especially the beneficial effects of secure attachment and the dire impact of the failure to cement such bonds:

 

“Recent research also shows insecure attachment is linked to a higher risk for a number of health conditions, including strokes, heart attacks … people with secure attachment show more healthy behaviours such as taking exercise, not smoking, not using substances and alcohol, and driving at ordinary speed.

(2011a: 15)”

 

Two studies are cited as the basis for these ominous claims. But again the evidence cited is perplexing. These are not studies of children, but adults; both use ‘attachment style’ as a way of measuring the adult personality with self-report questionnaires. Neither study shows, nor purports to show, any link between early childhood experiences and

problems later in life. In subsequent paragraphs, damaged emotionality and damaged brains are soon united, and the perpetrator of all this devastation is unflinchingly denounced.

 

Parents are to blame:

 

“Parents who are neglectful or who are drunk, drugged or violent, will have impaired capacity to provide this social and emotional stability, and will create the likelihood that adverse experiences might have a negative impact on their children’s development … the worst and deepest damage is done to children when their brains are being formed during their earliest months

and years. (2011a: 15)”

 

 

If the authors here are right about the studies of attachment and impact on later life, and the flaws that they claim, my faith in the FJR research does wobble.  Again, I am not a neuroscientist, and neither are the authors, but if we are going to be taking the FJR research as agreed research on which the judiciary can base conclusions and decisions, we need to know whether the foundations are solid or built on sand.

Returning to Allen’s report, the following excerpt summarises the final

step of his neurobiological argument:

 

Different parts of the brain develop in different sensitive windows of time. The estimated prime window for emotional development is up to 18 months, by which time the foundation of this has been shaped by the way in which the prime carer interacts with the child…. Infants of severely depressed mothers show reduced left lobe activity (associated with being happy, joyful and interested) and increased right lobe activity (associated with negative feelings).

 

If the predominant early experience is fear and stress, the neurochemical responses to those experiences become the primary architects of the brain.

 

Trauma elevates stress hormones, such as cortisol. One result is significantly fewer synapses. Specialists viewing CAT scans of the brains of abused or neglected children have likened the experience to looking at a black hole.

 

In extreme cases the brains of abused children are significantly smaller than the norm. (Allen, 2011a: 16)

 

Those damaged brains again. For the claim of lasting damage from fear, stress and trauma, Allen cites no specific scientific support. A significant body of work does, however, exist on the possible damage caused by post-traumatic stress disorder, reviewed by Wang and Xiao (2010). Although there is evidence of reduced volume in one brainstem structure (the hippocampus), the seminal research involves war

veterans, not children; follow-up studies have not shown lasting hippocampal damage, and the scant imaging research on children has failed to find such impact. A recent authoritative review (McCrory et al, 2012) comes to much the same conclusion regarding the hippocampus, and another much-mentioned brainstem structure, the amygdala; only under conditions of prolonged rearing in orphanages is diminished

brain size evident (see below).

 

Digging into the specific (frontal) lobe evidence invoked by Allen, he cites a paper by Dawson et al (1994), which reviews psychophysiological studies of the children of depressed mothers. Dawson’s evidence, however, actually goes in the opposite

direction to that claimed in the Allen report. Referring to a study on the reactions of children when mothers left the room: ‘the infants of symptomatic mothers exhibited an unexpected pattern of greater left than right activation during the maternal separation condition’ (Dawson et al, 1994: 772). More ‘positive’ emotion it would seem. In truth, there is a vast gallimauphry of neuroscience research, but little settled knowledge. Evidence for policy making does not simply repose in journals ‘ready to be harvested’ (Greenhalgh and Russell, 2006: 36). Rather, it is ‘rhetorically constructed on the social stage so as to achieve particular ends’ (Greenhalgh and Russell, 2006: 37). This seems an apt enough description of Allen’s modus operandi.

 

Although ‘journal science’ is invoked, he seems not much interested in what it actually says. This is ‘prejudice masquerading as research’ (Furedi, 2001: 155), of science being enrolled to legitimate an a priori ideological position favouring a larger arena for public intervention in the lives of families.

 

(and later)

 

It should now be clear that neuroscientific knowledge is at an early and provisional stage. As Bruer (1999: 98) avers, after more than a century of research we are still ‘closer to the beginning than the end of this quest’.

 

This point was reinforced recently by Belsky and de Haan (2011: 409–10): although the brain ‘packs a punch’ for policy makers, they conclude that ‘the study of parenting and brain development is not even yet in its infancy; it would be more appropriate to conclude that it is still in the

embryonic stage’. Neuroscientists may know the limitations of their research, but such caveats are not what politicians and proselytisers wish to hear;

Again, I am in no position to judge whether what the author’s say of Allen’s report is accurate, fair comment, or a scurrilous attack. I simply don’t know and can’t say.  But what does seem clear to me is that simply ignoring the counter arguments and pressing ahead on the basis that there is clear research with firm conclusions on which future plans can be built is problematic unless that research addresses the criticisms of it head on.

We have much the same problem with the vexed issue of contact levels for infants in care.  I have blogged before about this being presented in the Family Justice Review research as being strong, almost overwhelming views about how high levels of contact are detrimental to infants, and this underpinned entirely the Government consultation on contact, and how there is a contrary view out there and criticism that the research just isn’t robust enough to bear the weight that is being placed upon its branches.  Particularly Dr Peter Dale’s critique of the original research

[See https://suesspiciousminds.com/2012/09/11/family-preservation-versus-child-rescue/                            ]

Again, I am not a scientist or researcher practising in this field, so I can’t resolve those debates and come to a firm conclusion about who is right. But that may well be the problem – neither are the politicians who are setting the course, or the Judges who will be deciding individual cases.

We need clarity as to whether the science on infant brain development is as claimed in the Family Justice Research, or as claimed here, or whether it is simply too early to tell, likewise with the impact of contact on children.

It also raises broader and deeper questions  – when, as the Family Justice Review intends, we collect research with a view to identifying the current state of play in a particular area and what that means for us, how are we, as lawyers, social workers, judges, politicians, in a position to assess whether that research actually shows what the headlines suggest ?   Do we have to get under the bonnet of the individual studies to realise that what was being tested was NOT the central hypothesis, but some ancillary matters from which large extrapolations are being drawn?

I don’t think it is controversial to say that neglect is harmful to children, but if we are working on the basis that science has proven that neglect is not only harmful to children but that such harm carries on into adult life and that harm caused by neglect in the first two years is irreparable, so decisions have to be made very quickly, then we had better be confident about that proof.

I’m not at all saying that the authors here have overturned the research – they are, as I have emphasised a lot, not neuroscientists. But what they have certainly done is gone up to the duvet and said “are you sure that’s someone asleep under there, rather than just some pillows?”

If you do happen to be a neuroscientist, I’d love to have a discussion about this, though it will need to be taken slowly – I’m strictly an amateur.

I’ll conclude with some wise philosophical words, from Descartes via 1980s Manchester

Does the body rule the mind, or does the mind rule the body? I dunno

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The Streisand effect and care proceedings

Posted on January 11, 2013 by suesspiciousminds

A discussion of Bristol City Council and Others 2012

This is the decision in the High Court that the Sun newspaper, and in due course no doubt many others, be permitted to report on a case (subject to restrictions about anonymity) whereby a girl who was in care made allegations that the foster carer had grabbed her by the throat, the allegations might not have been properly investigated, and that there was strong reason for suspicion that the foster carer had been viewing child pornography.  The LA had originally sought to restrict any reporting, but moved forward within the court proceedings to accepting that there was a legitimate public interest in reporting the broad facts, but wanted the details kept out.

As you may know, the Streisand Effect is the term given when an attempt to prevent publication makes the story even more delicious and juicy and gets ten times the attention it would have got. See also, the welsh footballer whose name you all know, but I still probably can’t say, save that you can find it if you search google for John Hemmings, plus footballer, as Mr Hemmings MP was legitimately able to name the footballer with the superinjunction in parliament – I am not an MP.

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3748.html

The reporting restriction order made here, applies to me, of course, so am going to only give the information which is in the judgment – in fact, lets stick to the background given in the magistrates facts and reasons, and the preamble that was in the order itself

    1. In their written reasons for making a care order, the Justices set out the evidence that had been placed before them about these matters and in their findings of fact added these observations:

 

“We have heard and read considerable evidence concerning the care provided to A whilst subject to an interim care order. This is extremely concerning and deserves to be examined fully within a different forum. This bench is, however, of the view that these events are not germane to its decision as to whether care and placement orders should be made. All references to these highly regrettable events are made for the sake of completeness.

This bench believes that the local authority did not follow child protection procedures. As soon as A disclosed the assault and the contact worker noted the injuries, she should have informed A’s social worker, Ms P, or the emergency duty team. No such report was made and it was left to B, A’s father, to make the referral via the police. The bench does not consider that the local authority has been involved in a cover up which has been suggested by B.

The contact worker should not have disclosed the allegation to the foster mother until A had been interviewed. The foster mother denied the allegation on R’s behalf immediately. Having already been aware of the difficulties in the placement and of A’s fear of R, the authorities should not have allowed A to return to the foster home whilst the allegation was unresolved and it is reasonable to suppose that this increased the risk to A. We believe an immediate strategy meeting should have been called and A’s guardian should have been involved. It is a matter of very great concern that Mr N, A’s guardian, was not told by Miss P of the allegation at an earlier stage.

We strongly believe that A should have been referred to a doctor. A grasp to the throat accompanied by red marks to the front of a young child’s neck could denote internal injuries. In any event, the injuries would have been properly documented and their cause commented upon. It appears to us that the explanation provided for the injury by R was inconsistent with the injury itself.

A’s allegation of being assaulted does not appear to have been taken seriously by the authority….

It concerns us greatly that the alleged assault by R occurred at 2 am when T was cuddling S apparently whilst the foster mother was downstairs and that information did not cause the authority to act immediately.

At the time of the allegation of physical abuse, the local authority were already aware of other allegations relating to child pornography at the address. Despite this, and having parental responsibility through the interim care order, they failed to remove A for a period of 14 days.

With hindsight, Miss P acknowledged the risk of sexual, physical and emotional harm to A during the authority’s care of A between 14th May and 28th May 2012. It is clear to this court that the local authority knew about these risks on 14th May and did not take protective action as it should have done.

These matters concern us greatly and we believe should be thoroughly and forensically investigated and reviewed in an independent forum.”

    1. An order restricting publicity was originally made in the following circumstances. A journalist from The Sun attended the hearing of this matter in the Magistrates Court at Bristol on 9 October 2012. On the afternoon of 10 October 2012 Mr Cusack, an agency journalist attending the Magistrates Court hearing in this case on behalf of News Group Newspapers, was told that none of the legal representatives in the case were present at court but were instead at Bristol Civil Justice Centre seeking an injunction against The Sun. Mr Cusack went to Bristol Civil Justice Centre and attempted to take contact details for the local authority lawyer and to urge her to contact the in house lawyer for NGN. However Mr Cusack was unable to speak to the local authority lawyer until the hearing had finished and the order had been granted.

 

    1. At around 4.30 on that day, 10 October, HHJ Barclay, sitting as a s.9 judge, made an order preventing any reporting of the case, and of the names of the parties including Bristol. During that hearing no one appears to have drawn the judge’s attention to the Practice Direction applying to such applications, nor to s.12 of the Human Rights Act 1998, nor to Article 10 of the ECHR. The judge did note, despite this, that the press had not been given notice of this hearing and “arguably they should have been“. He also noted that it was a ‘great pity‘ that the press had not been notified.

 

    1. Bristol City Council at the hearing sought an order for Bristol City Council’s identity, and the social workers’ identities, to be “kept undisclosed pending an investigation”. It is unclear what “investigation” was referred to.

 

    1. Bristol City Council subsequently contended that they had been “prevented” from providing notice to News Group by the “urgency of the position”, and maintained that Bristol City Council had been correct to take this course. This is not a tenable position, given the presence in court on 9 October and the morning of 10 October of journalists who the parties knew were attending on behalf of The Sun. There was in fact no excuse at all for not putting the Sun, at the very least, on notice of the application.

 

    1. On 12 October Bristol City Council completed the checklist for applications for a reporting restriction, with a view to a video link hearing taking place before Baker J on the afternoon of 15 October. The application included a draft order, which provided for prohibitions upon (amongst other things)

 

a. Publishing anything at all relating to the care proceedings;

b. Publishing anything which identified the local authority;

c. Seeking information about the case from any employee of the local authority.

    1. In the skeleton argument served in support of the application, the LA maintained:

 

a. That there could be no public interest for the ‘unproven’ allegations about the use of pornography by the foster carer to be publicised.

b. That there could be no public interest for ‘unsubstantiated allegations of negligent social work practice made by the parents’ to be publicised.

    1. Bristol City Council subsequently changed its position concerning the reporting of the proceedings, conceding that News Group should be free to publish certain matters which News Group identified as being in the public interest, including the identity of Bristol City Council as the applicant in these proceedings. Bristol City Council maintained that certain items of information which News Group wished to disclose from the proceedings were inaccurate and should not be publishable.

 

    1. Bristol continued to maintain however that certain allegations made during proceedings should not be reportable on the basis that complaints were “ properly investigated by the local authority” and found to be without substance.

 

    1. During the course of these proceedings for an injunction, it became apparent to News Group that there was in existence a document entitled ‘Facts and Reasons’ dated setting out the findings of the Magistrates on the care application. News Group applied for permission to see this document, and then for permission to publish its contents in anonymised form. News Group maintained that the Facts and Reasons raised issues of considerable and legitimate public interest concerning the manner in which Bristol City Council had sought to discharge its duties.

 

    1. Bristol initially resisted the application by News Group for permission to publish the contents of the Facts and Reasons, then, during a hearing, conceded that the contents of the Facts and Reasons should be publishable in anonymised form.

 

  1. News Group made further submissions in respect of whether particular points of detail within the Facts and Reasons should be publishable. News Group contended that all the information within the Facts and Reasons should all be publishable in anonymised form, together with a limited amount of additional information from the proceedings.

Although the Court allow the naming of the social worker, I have chosen not to do so.

The case obviously contains very useful information on the balancing exercise between article 8 right to privacy and article 10 freedom of the press, and is helpful for that.  I don’t think there’s anything particularly novel in the law here.

The LA were obviously in a tight spot – they clearly didn’t want the girl to be identified, and were worried that she might be. The problem is, of course, that once the Sun got the story, they were always going to want to run it, and LA loses attempt to stifle the Sun is an even bigger story.  A tough position to be in.

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Imaginary written submissions

Posted on January 9, 2013 by suesspiciousminds

[These are imaginary written submissions, in relation to an application for an Emergency Protection order  – in reality, one wouldn’t have the opportunity to make them, but they bear some resemblance to what the advocate representing the mother might have said in addressing the bench, though almost certainly in less florid and melodramatic terms.  I have been very careful, as any advocate would, not to misrepresent any facts]

  1. This application for an Emergency Protection Order is made by the Local Authority. The mother has had very limited notice of the hearing, and very limited opportunity to see the case put against her. She has had to defend her position and persuade the Court not to make this most draconian of orders without having the opportunity to see the Local Authority case in writing, or to put into writing her own account of events.

It is for those very reasons that the Courts have set down authorities that making an order of this kind is draconian, and requires “compelling evidence”,  particularly, the decision of RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

  1. I will come on to those matters in a moment; but the Court should have in mind the context that to remove a child from a parent at any stage requires cogent evidence that there are reasonable grounds to believe that the threshold is made out, but that beyond that, that the decision to remove is a proportionate one to make far in advance of assessments or a final hearing bearing in mind the alleged nature of the risk, and that to do so at an Emergency Protection Order stage requires extraordinarily compelling evidence that it is effectively the only thing to do, it is an order of last resort.  And that it should only be contemplated if imminent danger is actually established.
  1. The legal context is then set out in Re X, and the predecessor case, also Re X. In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005]1 FLR 341,  

      Quoting from the earlier case :-

An EPO, summarily removing a child from his parents, is a ‘draconian’ and

‘extremely harsh’ measure, requiring ‘exceptional justification’ and

‘extraordinarily compelling reasons’. Such an order should not be made   

unless the FPC is satisfied that it is both necessary and proportionate and that

no other less radical form of order will achieve the essential end of promoting

the welfare of the child. Separation is only to be contemplated if immediate 

separation is essential to secure the child’s safety: ‘imminent danger’ must be

‘actually established’.

 

 

The evidence in support of the application for an EPO must be full,

detailed, precise and compelling. Unparticularised generalities will not

suffice.

The sources of hearsay evidence must be identified. Expressions of opinion

must be supported by detailed evidence and properly articulated reasoning

  1. So there must be a serious emergency, to justify having such an important hearing in such a rush, and there must be compelling and detailed evidence that an EPO is the only real course of action, and the applicant has to establish imminent danger; the burden of proof is on them to prove that there IS, not on the parent to prove that there ISN’T.
  1. Let us look at what the Local Authority claim this “emergency” is.  The child is thirteen months old.  It is said by them that he has been known to Social Services throughout his life, and that is true. It is also said by them that he has spent a period of time in voluntary foster care, and that is also true. He was in voluntary foster care for around two months, but has been at home with mother for nearly six months since then.  There have been periods of his life where he has been on the child protection register – the same is of course true of many children.
  1. It is accepted that there are positive reports from the health visitor and childminder, and the social worker accepts that the mother’s presentation around the child, and the child around her, is illustrative of a loving relationship.
  1. They say that the ‘emergency’ triggering event, is that yesterday, the mother took the child to a hospital appointment, and that the child had visible bruises.  
  1. That is also true. But what is also true is that the doctor who examined him has said is that the child was unwell and miserable and probably had a viral infection, that he had a history of aggressive behaviour including head-butting the floor, and that there is nowhere within the medical report a conclusion that those bruises were non-accidental, or likely to be non-accidental, or could possibly be non-accidental.  
  1. The best evidence about these bruises comes from the paediatrician – she saw the bruises, she saw the child, she took the history, she is after all, the expert in these matters. That’s the evidence before the Court, and it concludes that the bruises were caused accidentally. We deal in evidence, not mere suspicion.  Where there is suspicion and it is relied upon, there must be evidence to support that suspicion.
  1. The Local Authority say that there is a history of previous bruising, and again, that is true. But it is not for them to put two and two together and make sixteen. The doctor examining him saw the child, took the history from mother, read the previous history, and if the doctor felt that there were reasonable grounds to believe that the bruises were non-accidental, then she would have said so when asked to prepare this report for Court.
  1. The case has been brought to Court, for what I have to remind the Court is the most draconian type of order, requiring compelling evidence, because the social worker has made her own diagnosis that the doctor, who is qualified to examine children and draw conclusions, has got this wrong.
  1. Well, in the spirit of generosity, perhaps the doctor has got this wrong. Perhaps, and this is not the mother’s case at all, there is a history here which needs looking at with a fresh pair of eyes. The mother is confident that another paediatrician will come to the same conclusions and that these lingering suspicions will be removed. 
  1. But to REMOVE this child from mother’s care, because the paediatrician might have got this wrong, cannot be the right thing to do. If the Local Authority consider that there is something here which needs to be investigated, then they can issue an application for a care order, set out their concerns and their evidence for those concerns on paper, and the Court can consider whether an independent paediatric assessment of the child is warranted.  That is an argument for another day.
  1. What these circumstances do not add up to, in any way shape or form, is the sort of compelling evidence that this child has been suffering significant harm or is likely to do so, and that he should be removed from his mother’s care and put in foster care, much less so on such short notice, with such a paucity of evidence before the Court.  
  1. The Local Authority point to some historical bruising – seven months ago, there was some bruising. The mother says that this was caused in play with some other children. A medical report at that time felt that it was suspicious and might be non-accidental.  The child came into foster care during a police investigation – the mother cooperated with that, and as we have heard, two months later the child came home.
  1. What they try to do now, is to add that, where they have a medical report which does give rise to some legitimate concern, to the situation today, where they have a medical report that raises no concerns at all, and try to force the two things together. As I said earlier, this is a case of trying to make two and two make five.
  1. Respectfully, they cannot do that. If we had been here seven months ago, with the report from the doctor saying there were suspicious bruises, then perhaps there would be a case to deal with. But something can’t be an emergency, if you wait for seven months to bring it up. Something can’t require the court to urgently intervene to protect the child if the LA had him in care and were happy to send him home five months ago.  And something that the paediatrician who saw the child yesterday already knew about and had read in the medical records, when they decided that the child was safe to go home from hospital with his mother, can’t now become evidence that the child is not safe at home and has to be removed. 
  1. If the previous bruises made the paediatrician yesterday look at the bruises with a more cynical and suspicious eye, then that is one thing, but that isn’t what happened. In the light of knowing about those previous bruises, the paediatrician was satisfied that what mum was saying, what her own eyes showed her – an aggressive hyperactive child with a temperature and a virus who was head-banging, had got those bruises by doing just that.  
  1. The Local Authority essentially say, “well, she should have done”, but that is neither here nor there. In terms of actual evidence, she didn’t. There is no medical opinion that those bruises seen yesterday were caused non-accidental.
  1.  This isn’t an emergency. The child is at home with mum, safe and well. The hospital didn’t feel the need yesterday to say “this is risky, we can’t send him home”.  
  1. The child doesn’t need protection. There is no evidence of significant harm here. The highest it can be put is that the Local Authority would want a fresh medical opinion looking at all the notes.
  1. There is no need for an order, particularly the most draconian order that can be made by a Court. 
  1. Is the evidence here “extraordinary compelling”?   Have the Local Authority actually established imminent danger?   In setting out why the evidence of the social worker, who has not seen these bruises, should be preferred to that of the independent expert paediatrician, who has, have the Local Authority provided evidence which is “full, detailed, precise and compelling”?  With “detailed evidence and properly articulated reasoning”?
  1. In my respectful submissions, they have come nowhere near, and the application should be refused.

 

 

Well, unless you have been under a rock for a few years, you will know that the name of the child in the case is Peter Connolly, and you probably twigged that very early on.   

 

You will also know that the Local Authority DID NOT issue an emergency court application, on either the day the paediatrician saw the child or the day after.

 

If they had, would it have saved Peter? Probably not, as you can see here, the case against making the EPO is overwhelming.   I have to be candid and say that if they had rung me, with the medical opinion being as it was, I would have advised that an EPO had no prospect of success. It wasn’t even finely balanced.

 

You may be thinking that I have stacked the deck here, by making it an Emergency Protection Order, where the bar is so much higher following the Re X decisions than the test for an ICO. 

 

Well, I haven’t stacked the deck, because there were just two days, and only 1 full working day between the paediatrician seeing Peter and him being killed. So an Emergency Protection Order was the only order that Haringey could have applied for that would have had him out of the home before he was killed.

 

If such an application had been made, it would have been resisted, along similar lines to this – the test for an EPO is very high, it needs extraordinarily compelling evidence, the Court need to be satisfied that there is actual evidence of imminent danger, and that the paediatrician who examined the child didn’t make a diagnosis of NAI.

 

That’s not to defend Haringey – there were clearly mistakes made, largely at the point when having got an earlier paediatric report saying non-accidental bruises, they didn’t issue. Nor did they issue at the point where they had the child in foster care and the point came where he was going home to mother unless they got a Court order.

 

Nor is it to castigate those who would represent a parent in this situation. Far from it, those are exactly the points that should have been made, and any barrister or solicitor representing a parent against those facts would have been pretty shabby if they hadn’t left the court room with their client going home with the child.

If I’d been representing Peter’s mother on that day, with those facts, I would have fought to make sure the EPO wasn’t made. And it would have been the right thing to do, regardless of how it later turned out. The Court have to decide cases on evidence, and in this case, the medical evidence to justify an EPO wasn’t there.

 

My point is that it would have been extraordinarily hard to save baby Peter’s life AT that critical point, the last chance to intervene to save him simply would not have worked. If the LA had flown in the face of the paediatric evidence and sought an EPO, they would not have got one. The best they could have hoped for would be that there would be an ICO hearing a week later. By which time it was too late.

 

From what information there was, at the last possible moment to save him, you would not have persuaded a Court that he needed to be taken into foster care there and then.  It is very easy to make all sorts of different decisions in hindsight, but I do believe that it is worth bearing that in mind  – the media portrayal is that this was an inevitable course of action that could have been averted at any time, but I would suggest that things often appear inevitable when you are working back from a known outcome.  If you had been there, at an EPO hearing on that day, with the facts that were known at the time, you would have been appalled if the Court had granted the EPO.  

 

[of course, had the paediatrician seen all that was there to be seen, then firstly Peter would have remained in hospital instead of going home, and secondly, there would have been compelling evidence of imminent danger, and the whole case is transformed]

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There’s a small boat made of china, going nowhere on my mantelpiece

Posted on January 8, 2013 by suesspiciousminds

 

Laplace, prediction, and why we might, everywhere we go, always take the weather with us in care proceedings

 

By the start of the nineteenth century, scientists had discovered a great many of the principles of physics and particularly how various forces acted on objects in predictable and mathematical ways.  This led some scientists to hubristically predict that there was nothing new to be found in the world of physics   (obviously not aware that radioactivity, splitting the atom and quantum physics were completely unknown to them at that point).

 

Anyway, once you discover the various mathematical principles about forces and objects and how forces act upon objects, one starts thinking about whether you could predict something with absolute certainty if you had enough information.

 

Being a previously sad geeky sciency Suesspiciousminds Junior, I had certainly wondered in my adolescence whether you could, if you had really fast computers and knew everything, no longer be guessing a toin coss, but knowing how it would end up.  

 

That’s something which has also exercised the minds of a great many gamblers, since Roulette is essentially just an exercise in predictable physics (speed of spin of the table, angle and speed at which the ball is dropped) – predictable, but extremely complex, and if you could actually predict which slot the ball would drop into, with certainty, you would be an extraordinarily rich person.

 

Well, someone else,  Pierre-Simon Laplace took that a stage further, and suggested that with a great enough intellect (computers weren’t really around at that stage, other than Babbage’s mechanical one which was more of a theoretical concept than something you could actually boot up and play Farmville on), you could calculate the entire future of the universe and the movement of every particle.

 

“We may regard the present state of the universe as the effect of its past and the cause of its future. An intellect which at a certain moment would know all forces that set nature in motion, and all positions of all items of which nature is composed, if this intellect were also vast enough to submit these data to analysis, it would embrace in a single formula the movements of the greatest bodies of the universe and those of the tiniest atom; for such an intellect nothing would be uncertain and the future just like the past would be present before its eyes.”

 

This is really the birth of determinism, the idea that you can, given enough information, accurately predict future outcomes, or more broadly, that given a set of conditions, the outcome which emerges from those conditions is the only one which COULD have emerged.  

 

[Sadly, I learned when doing a bit of quick research, that Laplace’s other claim, that Pope Callixtus had once excommunicated a comet, was fallacious. I have a later essay planned on how the law has treated animals and inanimate objects, and that would have fitted perfectly with the excommunication of beetles and the pig who was put on trial for murder]

 

I won’t get any further into whether Laplace’s grand conjecture is true or not (if only in a deeply theoretical sense), and it is still debated – Einstein firmly lined up with Laplace on believing that there were firm mathematical laws and principles underpinning all matter and physics and that it would therefore be possible to predict things with certainly, but that there were just things that were yet unknown to us that prevented such predictions being made. Many others think otherwise, and that there’s an element of randomness, particularly at the quantum level that makes that impossible.

 

Let’s move away from correctly predicting the motion, position and velocity of every particle in the universe and onto a smaller scale, and some predictions which are common to every one of us, and which enter our homes on a daily basis.

 

And that allows me to  yank it back to care proceedings – in one of the dominant cases of the 1990’s, Re H and R 1996, the House of Lords grappled with the issue of what ‘likely’ meant, when considering whether a child was ‘likely to suffer significant harm’  and this is one of the more memorable passages from Lord Nicholls of Birkenhead :-

 

 

In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am enquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?

 

 

And if you know the law, you will grasp that the latter is where we ended up at in terms of likelihood  – it does not mean something that is more likely than not to happen, but a risk that cannot sensibly be ignored.

 

But in a real sense now, I am going to talk about the science of predicting the weather – will it rain on Kinder Scout today or not?

 

As you will know, the field of predicting the weather has moved beyond hanging up pine-cones or (my standby) looking at whether cows are lying down in a field   (a belief I can’t shed, despite knowing how stupid it is, and one which gets me regularly mocked by Ms SuesspiciousMinds)

Meteorology instead uses a combination of :-

 

  1. Gathering lots of information about the current situation
  2. Applying mathematical principles and formula to predict how features in one part of the system will interact with another
  3. Calculating therefore what a particular part of the system is likely to do at a future point

 

 

And thus, is a system that would make Laplace very proud.

 

 

The principles that govern whether we get rain, or snow, or a nice bright sunny day, are pretty uncontroversial. There isn’t a band of quarrelling meteorologists bickering about whether isobars are of any significance at all or whether the warm fronts we see so much of on the television are merely illusory.  So, the principles are all there. The mathematical models for what these set of conditions will do over the next few hours are there (based largely on thermodynamics and fluid dynamics), and have been refined and improved, the collection of information about those conditions has vastly improved over the last thirty years, as has the quality of computers doing the calculations.

 

But what is your first answer, quickly, when I ask

 

“Do you think we can reliably forecast the weather?”

 

 

Making my own little forecast, your instant reaction was no, or that we are hopeless. You may, if you are a fair-minded person, have had a momentary recalibration and decided that we are better at it than we used to be, or even that we are not bad at it now.

 

But let’s go back to Lord Nicholls – it is March, you are about to go up Kinder Scout  and the weather forecast says that it is probably not going to rain. Do you take a coat, or not?

 

Is the risk that the weather forecast will be wrong when it says there won’t be rain, a risk that cannot be sensibly be ignored, if you find yourself up on a mountain without a coat?

 

You may have had nagging at the back of your mind, or the front of your mind if you are a science geek or liked Jeff Goldlum’s character in JurassicPark, the notion of chaos theory at this point. You may even have recalled the image of a butterfly flapping its wings and causing a hurricane on the other side of the world   [incidentally, probably the most misunderstood image in the history of science  – it doesn’t CAUSE the hurricane, it is about how small factors can amplify and make things harder to predict]

 

Essentially, small factors amplify with time, and the way they amplify is hard to predict, so even the very best computer forecasts become more and more unreliable with the passage of time. Forecasts are far more reliable about the next few hours than they are about next week, and break down almost entirely after sixteen days.  In numerical models, extremely small errors in initial values double roughly every five days for variables such as temperature and wind velocity

 

[So every time the newspapers tell you that there are predictions that this is going to be a “barbecue summer”  remember that the accuracy beyond 16 days is all to cock]

 

 

Okay, so predicting the weather, which is based on inanimate objects, which act under the influence of known forces, in known ways, and which the science of meteorology has been refining and checking against known outcomes to improve the prediction models, isn’t all that accurate and is not very accurate at all after 16 days.

 

Now, I will pull us back to law.

 

At the conclusion of a criminal trial, things are simple  – did this person do what they were accused of, and has that been proven. It’s similar with any other sort of legal dispute  – did one person prove that x happened, and what punishment / compensation should the Court give.   The Court doesn’t really have to predict the future – a burglar isn’t convicted of an offence of burglary only if the Court think he will do another burglary next week.

 

 

Care proceedings aren’t like that – whilst we may well spend some time arguing about precisely what happened in the past and the Court may have to decide that if we can’t hit on a form of words which everyone can agree, mostly what we are doing is predicting the future.

 

  • Have the improvements seen in the mother’s parenting at a mother and baby placement, or in contact, mean that she can now safely care for the child, or is she going to slip back into her old ways once she stops being watched all the time?
  • Is this father, who has been using heroin for 6 years but has been clean for 4 months, going to remain clean, or will he slip back? (What if he was clean for 6 months, but had one lapse?)
  • Will the mother, now that she has seen how risky an individual her new boyfriend is, stay away from him when the proceedings are over, or will he be back in her life and have the chance to hurt the child?
  • Will the parents who broke their four year old’s leg by handling him far too roughly, ever do anything like that again?

 

 

I have probably sledge-hammered this point, rather than making it in a subtle way, but if top scientists with huge computers can’t predict whether it will rain on Kinder Scout tomorrow, how can we possibly predict with certainty whether the mother will succumb to text messages from the dodgy boyfriend and keep seeing him in secret?

 

Professor Monroe touched on this in her first report –  there was for a long time a body of thought in social work, or social work management, that we could avoid the twin pitfalls of social work    – being too soft and letting children get hurt, or being too hard and breaking up families who could have stayed together (Baby P at one end, Cleveland and Orkney at the other) by having more information, more accurate models, and getting the decisions just right.

 

1.43

Professionals can make two types of error: they can over-estimate or underestimate the dangers facing a child or young person. Error cannot be eradicated and this review is conscious of how trying to reduce one type of error increases the other.

1.44

The public tend to learn of cases of abuse after a child or young person has died or suffered serious harm and then, with the benefit of hindsight, make judgments on how it was easy to see that the child or young person was in danger and would have been safer if removed. This is of course not the way the issue looks for the professionals who only have foresight. Removing a child or young person can protect them from immediate risk of significant harm, but is understandably traumatic for them. Maltreated children or young people who come into care often benefit in the long term,  but although the outcomes achieved by looked after children have improved, in too many cases, the potential of the care system to compensate for early harm is unrealised for reasons which are well documented.

 

Our society rightly values the birth family as the primary source of care for children and young people and disrupting that bond is seen as a serious step to take, requiring close scrutiny before the courts will grant the legal authority to do so.

The birth family equally presents a mixture of benefits and dangers. A good assessment involves weighing up these relative risks and benefits and deciding which option, on balance, carries the highest probability of the best outcomes for the child. Neither option carries zero risk of harm.

1.45

In assessing the value of leaving the child in the same situation, professionals have to consider a balance of possibilities: to estimate how harmful it will be, to consider whether it might escalate and cause very serious harm or death. They also need to consider whether resources are locally available so that families can be helped to provide safer care and estimate how effective such interventions are likely to be.

1.46

All of these areas of uncertainty make decisions about children and young people’s safety and well-being very challenging. A well thought out decision may conclude that the probability of significant harm in the birth family is low. However, low probability events happen and sometimes the child left in the birth family is a victim of extreme violence and dies or is seriously injured is therefore very important. Public understanding that the death of a child may follow even when the quality of professional practice is high is therefore very important.

 

 

She says, and as you can see, I agree, that you just can’t hope to get every case right, when you predict the future, your predictions have limitations to their accuracy.  If you try to move down the safety first side of the scale, you will take children away unnecessarily. If you try to move down the keeping families together side of the scale, some children will be badly harmed at home.  The aim to just make the right decisions at the right time, in all case is simply never going to happen.

If the weather forecasters can’t get it right, neither can we.

You are dealing with people, with all their uncertainties, capriciousness and emotions, and you can’t predict exactly what they will do. The cases where you get it ‘just right’ may well end up being few and far between, and may well be more by luck than judgment.

 

A mother who is utterly resolute about remaining separate from her dangerous  ex-boyfriend, who understands what is at stake and how bad he is from her, may on any given day fluctuate about just how resolute she is. Maybe someone handsome smiled at her at a bus stop and she feels good about herself when he sends the text message and she deletes it without reading it. Maybe just before the text message came in, she caught sight of herself in a mirror and felt fat and unloveable. It is utterly impossible to predict that.  It seems easier to predict that a mother that tried to separate from ex boyfriend six times and always went back to him, and was caught out two weeks ago, probably won’t stick to her claims that it is all over and she will never see him again. But we can’t be SURE, we can only predict whether the risk is one that cannot be sensibly ignored.

 

 

None of that means that we simply give up, and either leave all children at home with their parents, or take away every child where there is a sniff of danger, but we do have to be honest with ourselves, and honest with society as a whole.

 

 

And we have to constantly test where we find ourselves on the scale of child rescue and family preservation – are we lurching too far down one end or another?  Are we risk averse, fearful of a Baby P headline and ignoring that those actions break up a family which could have stayed together, or running with a rule of optimism that small changes mean a good future prognosis and not seeing the full picture?

 

We are attempting to predict what human beings, with human emotions, will do in the future – not just in the next few days, or 16 days, but over the course of their children’s childhood.  And the very sort of parents that we attempt to do that with tend,  not always, but more often than not, to be emotionally fragile, damaged people who are chaotic and unpredictable in their actions.

 

 

 

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Injustice, the death penalty and… Cloppa Castle?

Posted on January 4, 2013 by suesspiciousminds

This post is by way of being a book review, unsolicited, for a non-fiction book called “Injustice”  by Clive Stafford Smith.

 

I’ve popped you an amazon link here, not because I get any money for doing so, but because I thought it might be helpful

 

http://www.amazon.co.uk/Injustice-Life-Death-Courtrooms-America/dp/1846556252/ref=sr_1_1?ie=UTF8&qid=1357313233&sr=8-1

 

 

The book is written by a British lawyer who now practices criminal defence law in America, specifically death row appeals. 

 

It deals with one particular individual, who was convicted for the murder of two people, a man and his son, in cold blood in a hotel room. He knew the victim and had quarrelled with him, there was an eye witness who described everything, his prints were in the hotel room, and the ballistics expert testified that the bullets fired were compatible with the gun that the suspect had been found to possess by police officers who had stopped him months earlier. The defence called no witnesses, and even the suspect himself did not go into the witness box. He was duly convicted of the murders.

 

Chapter one sets all of that out, and you may, as I did, read all that and say “Well, none of this sounds like an injustice, he sounds bang to rights”

 

Mr Stafford Smith then picks up the case and the story at the point at which the defendant, found guilty and awaiting the death penalty, contacts him to launch an appeal, and the investigation he conducts.

 

More interesting though than the focus on the detail of the particular case (which is compelling in itself) is the analysis of each of the stages and participants in the process, and how Mr Stafford Smith shows that the system itself is inherently flawed.

 

For example, there’s the fact that the jury were told that the prosecution eye witness had passed a lie detector test showing that his testimony was true.  That’s not quite accurate, when full disclosure is obtained after the conviction, because it shows that :-

 

(a)   the eye witness passed some bits of a lie detector test

(b)   he failed other important bits in relation to the witness deposition he gave the prosecution

(c)   The prosecution (including the trial lawyers) knew this

(d)   The eye witness, with the help of the prosecution, then made further depositions, correcting the bits that he had obviously lied about, and to make his version of events fit better

 

 

It gets a lot worse than that, but that was the first bit where I dropped the book in horror and had to pick it back up and read it back to Ms SuesspiciousMinds.

 

 

The author looks at every part of the process – from the police officers who call Crime Hotlines to give ‘anonymous tips’ about people they are about to arrest so they can claim the reward, to the original defence attorney who had been given a flat fee and thus didn’t put sufficient hours into the case (and that if they actually do that on public defender rates the hourly rate they get works out to be about $2.50 per hour), to the jury, to the Judge (in this case, the trial Judge was arrested halfway through the trial for having taken bribes from other defendants in cases – this man’s defence lawyer knew that the defendant had been approached by another attorney who had suggested that if the defendant used them and paid them a large sum of money they would get a successful outcome from the Judge in question, but didn’t think that was worth raising), to the appeal process that essentially decides that you can win an appeal on a technicality but not on evidence that ought to have been put forward by your defence attorney  – i.e if you have a bad lawyer at trial, you get screwed both at trial and later at appeal if he just didn’t do his job.

 

He even shows why an innocent defendant can be the worst sort of client to have – this man knew he was innocent, so why spend money on your lawyer calling lots of witnesses to prove it, why give evidence and tell your side of the story, when of course you can’t be found guilty of murder if you didn’t do it?

 

The author explains that the jurors who get the long legal explanation about the arcane and complex tests don’t always understand them. After they have had the explanations of “aggravating factors and mitigating factors”  when tested, over 50% of jurors gave an explanation as to what mitigating factors were that showed that they thought that mitigating factors were the same thing as aggravating ones, when they are actually total opposites.

 

It is an excellent book and the structure of it makes me think that with the right case, one of the journalists who claim in hand-wringing style to be deeply worried about family justice (whilst their newspapers run pro Fast Adoption campaigns) could write.

 

It also seems to me that Al Alas Wray would be a good case to look at   – not that I am suggesting for a second that any of the professionals in that case were bent, or incompetent, or dumb in the way that some of them appear in “Injustice”  but rather looking at how the system can make well-intentioned, capable, reasonable and competent people get something badly wrong, and how Al Alas Wray might sadly represent the high waterline of British justice being able to get to the bottom of such a potential miscarriage of justice and fix it, whereas the changes coming our way seem to me to reduce the prospects of that in the future.

The bit that I found interesting was the chapter about prosecutors, and the suggestion that it is certain types of people, certain types of lawyer who choose to prosecute criminals.  They perhaps believe strongly in law and order, that the police are generally right, that justice prevails, that the system works, that the people who are convicted at trial were rightly convicted.

 

That did make me think, because of course, my job is sort of analogous to that – I do present cases to Court involving parents where part of my job is to present evidence as to the flaws of their parenting, and sometimes that involves persuading the Court that it is right that their children should no longer live with them.

 

I like to think, and maybe this is my own Prosecutor Bias, that my take on my job is to present the evidence fairly, to play with a straight bat, and that where such an awful decision is taken, it is because it is the right thing to do.  And ultimately, every decision that a child can’t be with his or her parents is a failure, of a kind. It is sometimes the least worst of all the options available on the picture at the time, but it is always a bad thing. I think that’s true of the colleagues I work with too.

 

Perhaps I am deceiving myself. I’m sure also that there are people who don’t approach the job that way. I know that because it wasn’t the way I approached the job when I started.

 

I was young, and idealistic, and believed that my job was child rescue and to protect children from wicked people who would mistreat them. When you come into the world of child protection, initially you do think that people who could abuse children must be wicked and dreadful – it is one of society’s great taboos, after all, the notion of parents harming their children.

 

As time goes on, and particularly with the benefit of having crossed the floor and represented parents against the State, you realise that most of those parents that initially seemed wicked are just scared, baffled, lonely, needy or damaged.

 

 

I used to think that my job was a bit like being on the battlements of a castle under siege, and that it was my job to keep the inside of the castle (the child) safe from the besiegers.

 

I now think that my job is much more like being outside the castle with the parents, and that it is my job to find an appropriate ladder that would be the right one to help them climb the walls and get over into good enough and safe parenting, so that they can be together with their children and the child will be safe and happy.  Sometimes it is also my job to help them up the first few rungs. Sometimes it is my job to realise that the ladder we thought would be right isn’t a good fit and to find another one.

 

Sometimes, sadly, it is my job to tell the Court that despite all of that, the parent got stuck halfway up the ladder and couldn’t get over the good enough or safe parenting wall. Sometimes that they got halfway up and climbed back down a few rungs. Sometimes that they looked at the ladder and decided they couldn’t do it at all, paralysed by vertigo, or influenced by people wanting them to stay on the ground with them.   Sometimes we argue about whether someone is halfway up, three quarters of the way up, or all the way up, or whether they should have another go with a different ladder. Sometimes we argue about whether the type of ladder they need can be found in time, or whether it costs far too much.

 

But it certainly isn’t my job to pour boiling oil on them as they try to climb up. I know some of the readers of the blog won’t believe that, and they are entitled to their belief.   They may well have had personal experience of Local Authority lawyers and social workers yanking the ladder away from under them, greasing the rungs, or pouring that boiling oil down.  That is something I feel bad about – I don’t deny that it happens, but I feel fervently that it shouldn’t.

 

I don’t think it harms any of us to reflect from time to time whether we have that balance right, are we defending the castle come what may, or are we trying to see if someone, given the right ladder can get over the wall and deserves to be inside the castle?

 

 

Anyway, here’s a picture from CloppaCastle, which the older readers may recall.  It had a very nice theme song, containing the words “Friendly enemy”  and maybe that is close to the role that my job comes down to.

 cloppa1

And here’s a link if you want to hear the theme song

 

http://www.youtube.com/watch?v=OK90sLowzGk

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The case I am most pleased about this year

Posted on December 31, 2012 by suesspiciousminds

 

I’ve been waiting for this one for a long time, the Court of Appeal decision that it is perfectly lawful for the Court to make a wardship order as an alternative to a Care Order, where the child’s accommodation can be dealt with by s20.

 

I blogged about the first instance decision on this case here :-

 

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

 

And the long and the short of it was that the child had a reactive attachment disorder and the placement with her adoptive parents had broken down as a result. The child had been accommodated, and all were agreed that rehabilitation was not possible, but an argument ensued about the nature of the order. The LA sought a Care Order, and the child’s parents sought wardship, arguing that the LA’s shabby conduct towards them meant that they could not be trusted to hold the lion’s share of PR.  It was very clear from the judgment that the original judge had a great deal sympathy with the parents case and resolved most of the factual disputes in their favour. He said that wardship would be the best order, but that he was prohibited in doing so by s100, specifcially the prohibition on making a child a ward of Court where that required the LA to accommodate the child, and made a Care Order.  

 

Following my blog post, I was contacted by the MacKenzie friend assisting the parents in their appeal, who was a thoroughly nice chap, and I gave a tiny bit of help on the skeleton, and together with Ms SuesspiciousMinds helped put them in touch with some barristers who were willing to take on their case pro bono  (The LSC having scandalously decided that they should not be funded for the appeal – which they WON, which surely suggests that it had some merit?)

I am delighted that justice triumphed in this case, I look forward to seeing the whole judgment, and the parents, who have been treated very badly by the LA here, have been extremely kind in their thanks.

 

I also understand that as a result, this child, who was in massive need of therapeutic support has finally started to receive some, which is far more important than the law.

 

When I started this blog I thought it might one day help a lawyer and save them a bit of research, or that it might stir a memory in Court and allow someone to recall that “There’s a case about this”,  but I never dreamt that it would actually help a real person in even a small way. So I am chuffed to bits.  

E (A CHILD) (2012)

 

 

CA (Civ Div) (Thorpe LJ, Rimer LJ, Baron J) 22/11/2012

FAMILY LAW – LOCAL GOVERNMENT

CARE ORDERS : CHILDREN : COURTS’ POWERS AND DUTIES : RESIDENTIAL ACCOMMODATION : WARDS OF COURT : WARDSHIP : CHILD ACCOMMODATED UNDER S.20 OF THE CHILDREN ACT 1989 : WHETHER S.100(2)(B) OF THE CHILDREN ACT 1989 PREVENTS CHILD BEING MADE WARD OF COURT : CHILDREN ACT 1989 s.100, s.20, s.100(3), s.100(2), s.100(2)(b), s.100(2)(a) : FPR PD 12D INHERENT JURISDICTION (INCLUDING WARDSHIP) PROCEEDINGS 2010

 

A court was not prevented by the Children Act 1989 s.100 from making a child a ward of court where that child was accommodated pursuant to s.20.

 

The court was required to determine whether it was prevented by the Children Act 1989 s.100 from making a child (E) a ward of court where E was accommodated under s.20.

E had been voluntarily accommodated by the local authority under s.20. The judge in the hearing below had to choose between making E the subject of a care order, as sought by the first respondent local authority, no order at all, or a wardship order. In making that decision the judge noted that s.100(3) prevented the local authority from making an application for wardship without the leave of the court, and that if E’s parents, the appellants, wished to issue wardship proceedings they would face the obstacle of s.100(2) . The judge concluded that for the same reasons in K (Children with Disabilities: Wardship), Re [2011] EWHC 4031 (Fam), [2012] 2 F.L.R. 745, a wardship order offered more than a care order, but that were it not for s.100(2) he would have made E a ward of the court. He also stated that notwithstanding Re K and Re F (Mental Health Act Guardianship) [2001] FLR 192, he did not have jurisdiction to make E a ward of court given that she was accommodated pursuant to s.20. In light of that, the judge made a care order ruling that no order at all would have been an even worse outcome.

The appellants submitted, in reliance on Re K and FPR PD 12D, that it could not be the case that s.100(2)(b) rendered it impossible for a wardship order to co-exist with the accommodation of a child pursuant to s.20. The local authority submitted that Re K was of little assistance as it could not be stated authoritatively that the accommodation of the children considered therein was voluntary accommodation; they might have been accommodated under another statutory provision. It further contended in reliance on note 3A-1930 in a handbook on the operation of the Children Act 1989, that FPR PD 12D was erroneous in law.

HELD: The local authority’s submissions were not as persuasive as those of the appellants. In respect of Re K, it was more likely that the accommodation of the children therein had been made under s.20, Re K considered. It was very unlikely that the court had not had proper regard to the statutory limitations stated within s.100. The suggestion that FPR PD 12D had been written in error was bold given the care taken in drafting such guidelines. The note referenced did not support the local authority’s argument, not least because it was directed at s.100(2)(a) and not s.100(2)(b). The effect of s.100 was to prevent a court from making any order which had the effect of requiring a child to be placed into care or under local authority supervision. That outcome could only be achieved by going through the court’s inherent jurisdiction. There was nothing either explicitly or implicitly stated within s.100 which prevented a wardhsip order being made where a child was not required to be accommodated but was voluntarily accommodated. If agreement for accommodation ceased, the court would not be taken to be in a position to require the local authority to accommodate or supervise a child. The judge had not been prevented from making the order that he thought was more likely to address E’s welfare needs. Accordingly, the care order was set aside and replaced with a wardship order.

Appeal allowed

Counsel:
For the appellant: Martin Downs (Pro bono)
For the first respondent local authority: Lorna Meyer QC, Elizabeth McGrath
For the Guardian: Elizabeth Walker

Solicitors:
For the first respondent local authority: In-house solicitor
For the Guardian: Lloyds

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If you must Hague, don’t be vague

Posted on December 27, 2012 by suesspiciousminds

 

The “too long, didn’t read” version – if you’re making an application in the High Court under the Child Abduction and Custody Act 1985, bring your chequebook. And if you’re doing that, and are listed before the Honourable Mr Justice Charles, ring your bank manager first.

 

 

A discussion of the decision in the High Court of B v A 2012

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3127.html

 

As readers of the blog will know, I often lavish praise on High Court Judges. I am fond of High Court Judges who have admirable qualities, such as clarity of thought, beautiful construction of sentences, being able to illuminate a difficult point with a clever analogy, or who are fundamentally kind and appreciate the human dynamics of the cases that appear before them.

 

I am not afraid of distributing praise in those circumstances – I would say fulsome praise, but I am mindful of the words of Inigo Montoya   (no, not, “my name is Inigo Montoya, you killed my father, prepare to die!”  – the other one)  “You keep using that word. I do not think it means what you think it means”

 

Don’t ever say fulsome if you mean generously complimentary….   Or at least, not to a word-geek.

 

 

Anyway, this judgment is by the Honourable Mr Justice Charles and is bloody important for anyone who deals with abduction cases, both solicitors and counsel.

 

 

It would be fair to say that he was irked during the course of this judgment. He considered that insufficient care had been given both to the very serious nature of the application for a location order and to involve the tipstaff, and moreover to the inherent risks of doing so where the initial application was made ex parte, and the facts laid out before the Court were both partial  and potentially partisan.

 

The Judge begins by setting out the reasons why making such orders is extremely serious

 

  • Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that: 

    i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival, 

    ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and

    iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.

     

  • The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young [2012] 2 FLR 470 at paragraph 26 (ii) to (v). That case related to a passport order in a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).

 

Nothing at all to disagree with there.

The Judge was perturbed that an application had been made that was not  constructed as well as it ought to have been. He reminded the applicant’s counsel of a valuable  previous authority B Borough Council v S & Anor [2006] EWHC 2584 (Fam)   dealing specificially with how inappropriate it was for these applications to be made without notice without a great deal of care.

 

  1. General comment on without notice applications


37. There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.

38. Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:

i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent’s case is, or is likely to be,

ii) where available and appropriate, independent evidence,

iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and

iv) in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted

39. As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.

40. Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders) [2001] 1 WLR 211, [2000] 3 FCR 706, W v H (ex parte injunctions) [2000] 3 FCR 481 (by analogy X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris [2005] 2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at [2006] 2 FLR 354).

41. Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners (a) too regularly do not follow and implement that guidance, and (b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.

42. As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when (a) the guidance has not been followed, and (b) the impact on the person against whom the relief is granted could be considerable.

43. I add that additionally there is a need (a) to comply strictly with undertakings given at the time the order is made, and (b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.

 

Having quoted those passages, the Judge then indicated that he fully agreed with them    and added to them

 

16. As well as endorsing the guidance set out above, there are three additional comments I would make:

(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.

(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant’s rights, quite apart from the court having been given misleading information.

(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.”

 

 

 

All very good points, I have been on the other end of a number of ex parte applications, and when you come to Court and outline what the other side of the story is, you often see the Judge’s expression become “Well, if I had known THAT…”  

 

And these applications are of course, an immensely serious interference with someone’s liberty and free movement, and it is therefore important that a great deal of care is taken, both by the advocate presenting the case and by the tribunal determining it.

 

 

The long and short of this case was that the applicant’s representatives ended up not just not getting the order, but with something far, far, far worse than that. Probably the worst outcome you can ever get if you send counsel off to Court to make an application.  

  1. As mentioned in B Borough Council v S, I recognise that there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable, and, I add, to find children who it is alleged have been abducted. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed. Naturally this applies to all without notice applications, but it can be said to have particular importance when Tipstaff orders are sought and granted because they can found a deprivation of liberty without further court involvement, and they do restrict freedom of movement.
  1. In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated.

 

AND

  1. It seems to me that if such failures are to be avoided in the future there is a need for judges:

i) to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this), and

ii) to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order.

  1. Sadly, the first course alone has not resulted in general improvement and it is to be hoped that when the second course is added it will. But, I acknowledge and confirm that this promotional effect is not a ground for making the order rather it is a potential product of making such an order applying the approach set out in Ridehalgh.

 

 

And more chillingly for advocates

 

  1. Generally, a litigant has to take the consequences of such behaviour and look to his advisers for recompense but I have concluded that the application for costs against him should be refused, because:

i) the point that the shortcomings in the presentation of his case by his advisers is a reflection of endemic failures of family practitioners and courts means that his conduct should not be categorised and reprehensible or beyond the band of what is reasonable (see paragraph 80 hereof), and

ii) the policy and merits arguments referred to in paragraphs 82 to 84 support no such order being made.

 

 

Thus it wasn’t the client who was going to be hit for costs, but rather his representatives

 

 

  1. Also, in my view:

i) the merits and policy arguments referred to in paragraphs 82 to 84 above, and

ii) the point that the father’s solicitors are unfortunate to be singled out when their failures to comply with the principles and procedures relating to without notice applications are widespread in the Family Division and were not picked up by a number of judges,  warrant reductions in the costs to be awarded as wasted costs.

  1. Taking the above into account, in respect of the costs schedule up to the hearing on 10 September 2012, I make a wasted costs order against the father’s solicitors in the sum of £18,000 (to include VAT).

 

The Judge had actually knocked quite a bit off the costs to reflect that this was a warning shot across the bows and that the particular advocates involved had not been worse in their failings than many other cases.  But implicit in that is “woe betide”

 

I suspect that there may well be some family barristers who are having gentle chats with their clerks about whether the cab rank rule means that they need to take cases where they are liable to be personally stung for costs of £18,000 plus, and frantic calls to the RCJ list office to determine tribunals might well be being made.

 

I do wonder also whether sufficient weight has been given here to the very nature of the applications – a parent believes their child has been abducted, the child is missing, information is sketchy and develops piecemeal, and often the most strikingly important details emerge during the course of the day and are not necessarily reduced to affidavit form in advance. I also wonder how much better such cases will be presented in the High Court when those advocates who are skilled and accomplished at presenting them no longer want to bear the personal risk of doing so…

 

 

 

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As clear as a bell (if the bell were made out of mud)

Posted on December 27, 2012 by suesspiciousminds

The High Court helps out yet again, on ordinary residence issues, between Local Authorities, with head-scratching results. I think I finally get it, though it took three reads of the judgment.  In the words of Bertie Wooster,  “the slight throbbing about the temples told me that this discussion had reached saturation point.”

 

Suesspicious Minds accepts no liability for any such throbbing about the temples in the reader who attempts this judgment. 

This happened in the case of  Cornwall Council v Secretary of State for Health and others 2012

 

http://www.bailii.org/ew/cases/EWHC/Admin/2012/3739.html

 

This time, it relates to an adult with profound difficulties, who was owed duties by the State under the National Assistance Act 1948 to provide him with accommodation and services to meet those complex needs. The issue was, which precise bit of the State, and more importantly, which local authorities local taxpayers were about to shell out a huge wedge of cash on a person who had very little whatsoever to do with them.

 

The duty of course, is owed by that Local Authority in which the person is ordinarily resident, but in adult cases, that test of ordinary residence comes with a settled intention on the person’s part to live or settle there.  Where the person lacks capacity to form such intention, problems arise.

 

The various local authorities involved went to the Secretary of State for a determination, under section 32 (3) of the National Assistance Act 1948.

 

The Secretary of State looked at the case, and determined that this adult, who was not physically living in Cornwall,  was not accommodated in Cornwall, had no home in Cornwall and visited his parents in Cornwall two or three times per year, was the responsibility of Cornwall. 

 

Unsurprisingly, Cornwall didn’t like that much, and challenged it by way of judicial review.  It does seem manifestly crackers that a council’s taxpayers can be obliged to fork out upkeep for an adult who has never lived in their area, is never going to live in their area and whose sole connection with it is that his parents live there.

 

Cornwall  felt, that Wiltshire, who had accommodated this adult in 1991, when he and his parents had been living in Wiltshire, and had been looking after him ever since, were the authority who had ordinary residence.  From 1991 to 2004, he had been living with foster parents in Wiltshire; but then when he became an adult was provided with residential care in a third local authority’s area, South Gloucestershire. By that time, the adults parents had moved to Cornwall.

 

Cornwall, Wilshire, South Gloucestershire and Somerset (who, I think) were the local authority whose area this adult might be moving to in the future, had different ideas about who was the local authority responsible for providing care for this adult for the remainder of his days.  Though I suspect they all expressed it in broadly the same way “Wherever this person is ordinarily resident, it isn’t in my area”

 

 

I am afraid that the discussion within the judgment is eye-wateringly complex, but shakes down to this, at its heart, deriving from R v Waltham Forest LBC, ex p. Vale, 25 February 1985.

 

Taylor J set out two approaches, which are referred to as “test 1” and “test 2” in the Departmental Guidance. “Test 1” applies where the person is so severely handicapped as to be totally dependent upon a parent or guardian. Taylor J stated that such a person (in that case it was a 28 year old woman) is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. The second approach, “test 2” considers the question as if the person is of normal mental capacity, taking account of all the facts of the person’s case, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person himself or herself to have adopted the residence voluntarily

 

 

So, if the person has capacity, one looks, in the traditional Shah sense, of whether they have made a settled intention to live somewhere (even if that is not where they are physically living), and it would not have been Cornwall.

 

But, where they don’t, even though they are an adult, the Court treats them as a small child, and ordinary residence is where the parent of that person lives.

 

(Even if the adult were 50 and the parents were 80, one assumes)

 

Using my traditional loophole lawyer mind, I’m troubled as to how the Court resolve the issue of ordinary residence here where an adult’s parents are deceased, or live separately to one another in two different local authorities.

 

 

 

For the purposes of the case, the important arguments were in the fourth ground for JR, that Vale was now overtaken by subsequent decisions and the Mental Capacity Act, and that it was no longer the right test for deciding cases of this kind.  And that physical presence, rather than the physical location of the parents of an adult with capacity issues, was a more important factor in determining ordinary residence.

 

If you don’t want to slog to the end of this very law-heavy paragraph, and I honestly could not blame you – the upshot is that the High Court think the Secretary of State is right, Vale remains good law, Cornwall got well and truly hosed.   The underlined passage is probably why.

 

 

 

  1. iv) Ground 4:
  1. I turn to ground 4, the challenge to the approach in Vale’s case based on the submissions that there is a conflict between the tests in that case and those set out by the House of Lords in Shah’s case and in Mohammed v Hammersmith and Fulham LBC and that the approach has been overtaken by the approach to mental incapacity in the Mental Health Act 2005. In his reply, Mr Lock also submitted that Vale’s case is not authority for the proposition that, after thirteen years first with foster parents and then in two care homes, PH’s “ordinary residence” at the relevant time was that of his parents and follows their ordinary residence because they continue to take an interest in his welfare.
  1. The starting point in considering Mr Lock’s submissions is the acknowledgment by Lord Scarman in Shah’s case (see [1983] 2 AC at 343G-H) that the statutory framework or the legal context in which the words “ordinary residence” are used may require a different meaning to that in his “canonical definition”. The context before the court in that case was entitlement to a mandatory grant for fees and maintenance for students pursuing a course of study leading to a first degree or comparable course of further education. To be so entitled, they had to be “ordinarily resident” in the United Kingdom throughout the three years preceding the first year of the course. The key concepts in Lord Scarman’s definition (set out at [6]) are that the residence must be “voluntarily” adopted and that it must be for “settled purposes”. Lord Scarman stated that these are the two ways in which the mind of the individual concerned is important in determining ordinary residence: see [1983] AC at 344. As Mr Harrop-Griffiths observed, in the light of the facts of Shah’s case, it was hardly surprising that Lord Scarman did not seek to explain how the test he stated could, if necessary, be adapted in the case of an incapacitated person. What is clear, however, is that a test which accords a central role to the intention of the person whose “ordinary residence” is to be determined cannot be applied without adaptation when considering the position of a person who does not have the capacity to decide where to live.
  1. The other case on which Mr Lock relied, Mohammed v Hammersmith and Fulham LBC was also not concerned with a person who lacked capacity. Moreover, it was not concerned with the term “ordinary residence” but with the term “normal residence” in sections 198, 199 and 202 of the Housing Act 1996. M was a homeless person who had lived as the guest of a friend in Hammersmith for two and a half months. After being reunited with his wife, the couple applied to the Hammersmith and Fulham Council for assistance with accommodation. In July 1998 the Council determined that neither the applicant nor his wife had any local connection with Hammersmith but, as the wife had a local connection with Ealing by reason of her several years of residence there, their application was referred to the local housing authority for Ealing.
  1. The question for the court was whether the Hammersmith and Fulham Council had erred in not taking into account the period spent by M when living in its area as the guest of his friend. It was held that it had. Interim accommodation within the area of the Council could constitute “normal residence” for the purpose of section 199(1)(a) and thus be evidence of a local connection. Lord Slynn of Hadley stated (at [17]) that where a person in fact has no “normal residence” at a particular time, the term is to be given the same meaning as “ordinarily resident” in Shah’s case, and (see ibid at [18]) that “the prima facie meaning of normal residence is a place where, at the relevant time, the person in fact resides”. He continued:

“That therefore is the question to be asked, and it is not appropriate to consider whether, in a general or abstract sense, such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else must not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is, for the relevant time, the place where he normally resides.”

  1. Mr Lock gains some support from Lord Slynn’s statement that the term “normal residence” is to be given the same meaning as “ordinarily residence”. But it is limited support. Apart from the differences of statutory context and terminology, Lord Slynn stated the term “normal residence” is only to be given the same meaning as “ordinarily residence” where, at the relevant time, the person in fact has no “normal residence”. The test is thus a surrogate because the person in fact had no “normal residence”. It is, indeed, a surrogate which accorded an important role to intention. Lord Slynn’s reference to the need for the person to “voluntarily accept” the place where he eats and sleeps, suggests that physical presence was used as an indication of what the person voluntarily wanted and it was that which could constitute a local link. Moreover, the factual circumstances included a number of features pointing to a strong attraction to the borough in which M was physically present. They included the presence of relatives in the borough and the need for medical treatment which was being provided by a hospital in the borough. It would appear that physical presence is insufficient in itself and that what is required is an underlying attachment.
  1. Mr Lock also relied on R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 and R (Sunderland CC) v South Tyneside C [2012] EWCA Civ 1232, two cases about the meaning of the term “resident” in section 117 of the Mental Health Act 1983. The Hertfordshire case is of limited assistance because there was no evidence that JM lacked capacity: see [2010] EWHC 562 (Admin) per Mitting J at [5] and [8] and [2011] EWCA Civ 77 per Carnwath LJ at [8]. In the Sunderland case Lloyd LJ stated (at [26]) that, in understanding the meaning of the term “resident” in the 1983 Act, he did not find it helpful to consider cases in which “ordinary residence” in other legislation has been construed. Similarly, I do not find the cases on the term “resident” of assistance in construing the term “ordinary residence” in the 1948 Act.
  1. I therefore turn to Vale‘s case. It was the first case in which the determination of the “ordinary residence” of an incapacitated person fell for decision. For the reasons I have given, I do not consider that the approaches set out by Taylor J in it are “inconsistent” with the approach in either Shah‘s case or Mohammed v Hammersmith and Fulham LBC. Is it, however, outdated or flawed in some other way?
  1. On examination, the facts and the judgment of Taylor J show that what are referred to as “Test 1” and “Test 2” in the Departmental Guidance are not rules of law but two approaches to the circumstances of a particular case. Both involve questions of fact and degree, although Test 2 may be thought to do so to a greater degree.
  1. Vale‘s case concerned Judith, a 28 year old woman who lacked the mental capacity to decide where to live. She was born in London but her parents moved to Dublin in 1961, when she was five. She was placed in residential care in the Republic of Ireland. In 1978, when she was 22, her parents moved back to England with their other children to an address in the area of Waltham Forest. Judith remained at a home for the mentally handicapped in Ireland, but visited her parents two or three times a year. In May 1984, she returned to England to her parents’ address. In anticipation of her return her parents, who wanted to place Judith in a suitable home, sought assistance from Waltham Forest LBC. After her arrival, a placement was found at a home in Stoke Poges, in Buckinghamshire. The DHSS agreed to meet the major part of the cost. Waltham Forest refused to make up the shortfall on the ground that Judith had not been a resident in the borough, but had transferred from a residential placement in Ireland where her need for residential accommodation arose.
  1. After considering Shah‘s case, Taylor J stated that, where a person’s learning difficulties were so severe as to render them totally dependent on a parent or guardian “the concept of her having an independent ordinary residence of her own which she has adopted voluntarily and for which she has a settled purpose does not arise”. He identified two alternative approaches to the determination of where such a person is ordinarily resident. Where a person is so severely handicapped as to be totally dependent upon a parent or guardian, he stated that she is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. This (see [24(8) – (9)] is referred to as Test 1 in the Departmental Guidance.
  1. Taylor J stated that the alternative approach (which the Departmental Guidance refers to as Test 2) is to consider the question as if the person is of normal mental capacity. He considered where the person was in fact residing and the purpose of such residence. He stated that Judith was residing “with her parents for the settled purpose of being looked after and having her affairs managed as part of the regular order of her life for the time being” and “until it was possible to obtain funding for her to go” to the home in Stoke Poges. He stated that there was no other address at which she could have been ordinarily resident, that Shah’s case required future intent to be left out of account, and that Judith could not be regarded as a squatter in her parents’ home. The Departmental Guidance (paragraph 34, summarised at [24(10)]) rationalised what he had said about this second alternative thus:- “all the facts of a person’s case should be considered, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person themselves to have adopted the residence voluntarily”.
  1. Vale‘s case was decided two months after the decision of the House of Lords in Shah‘s case. It was the first case in which the approach to the determination of the “ordinary residence” of an incapacitated person fell for decision. It was applied by Potts J in R v Redbridge LBC, ex p. East Sussex CC [1993] COD 256, and considered without disapproval by Charles J in R (Greenwich LBC) v Secretary of State [2006] EWHC 2576 (Admin) and the Court of Appeal in R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 at [41] (Carnwath LJ). Central government and local authorities have placed significant reliance on it in formulating guidance.
  1. In these circumstances there needs to be a good reason to replace it and a satisfactory alternative approach. Cornwall‘s case is that primacy should be given to physical presence. It is, however, important not to accord insufficient weight to the fact that Parliament chose the concept of “ordinary residence” as opposed to “residence”, to the difference between those concepts, and to the other factors which are of relevance in determining “ordinary residence”.
  1. It is clear from the cases, including Shah’s case and Mohammed v Hammersmith and Fulham LBC, that physical presence is not sufficient to constitute “ordinary residence” but the implication of Mr Lock’s submissions is that it is a necessary requirement. He relied on Holman J’s statement in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 333 that it is “wholly artificial to regard a child as continuing to be ordinarily resident in an area in which neither he nor his family continues actually to reside and to which neither expects to return”. In PH’s case that has been the position since May 2012, but it was not the position in December 2004. At that time PH’s parents lived in Cornwall, there was a physical presence by him in the county during his visits. Indeed, as it happened, PH was physically present in Cornwall on the day before his eighteenth birthday, although I disregard that fortuitous circumstance as of no significance to the determination of the question before me. However, his parents were much involved in the arrangements for his care and took an active and continuing interest in him, and that is a relevant factor.
  1. At this stage it is instructive to consider the two first instance cases in which Vale’s case has been considered. The first is R v Redbridge LBC, ex p. East Sussex CC , 21 December 1992, of which I only have the summary of the judgment in the Crown Office Digest: [1993] COD 168. The father of handicapped autistic twins, who lived in Haringey, placed them at a residential school in East Sussex. Four years later in 1986 the twins’ parents moved to the area of Redbridge LBC and sought assistance from the council. In 1987 Redbridge informed the father that, pending a statutory assessment, it would accept responsibility for the education of the twins, then aged fifteen. In January 1989 the residential school informed Redbridge that it would be closing on 17 March 1989.On 2 March Redbridge learned that the twins’ parents had sold their house in Redbridge and left this country to live in Nigeria in December 1988, and, on 10 March, Redbridge informed East Sussex of the impending closure of the school, the parents’ return to Nigeria, and that it considered that the statutory responsibility for the twins lay on East Sussex. As the twins were in urgent need of assistance and were in its area, East Sussex provided emergency respite care under the National Health Act 1977, but instituted judicial review proceedings contending that the duty to provide for the twins under the 1948 Act lay on Redbridge. There appears to have been no consideration of responsibility under the Children Act 1989.
  1. Potts J held that the duty under the 1948 Act fell on East Sussex. The summary in the Crown Office Digest states that he held that the twins were ordinarily resident in Redbridge until December 1988 because they were so mentally handicapped as to be totally dependent on their parents, and because Redbridge was their base. However, after their parents left and the family house was sold, they had no settled residence, were physically present in East Sussex, and were in urgent need of care. East Sussex was (see [23]) the “local authority of the moment” and, as such, the duty fell on it. The summary does not state whether the twins had ever visited their parents in Redbridge before the parents returned to Nigeria. It refers to Redbridge seeking to contact the parents in December 1988 about funding a holiday placement, and to the fact that the parents left for Nigeria without informing Redbridge. These factors suggest that there may have been only little contact between the parents and the twins, even in the school holidays, before that time. Nevertheless, their parents’ house in Redbridge was stated to be their base.
  1. The second case is R (Greenwich LBC) v Secretary of State[2006] EWHC 2576 (Admin). D, an elderly woman who lived in the area of Bexley LBC moved into a care home in Bexley. Her means were such that she and her family were responsible for the costs of her care, and her home was sold to provide funding for this. After about a year, it was decided that it was no longer appropriate for D to remain at that home because she needed to be in a EMI nursing home or in NHS care. She was placed in a nursing home in the area of Greenwich LBC. Four weeks and five days later, on 29 June 2002 her capital had fallen to the point that responsibility for her care fell on the appropriate local authority. There was a dispute between Greenwich and Bexley and they referred the matter to the Secretary of State. He determined that, although the move to the home in Greenwich was facilitated by Bexley, it was D’s family and not Bexley who placed her there. The question was where she was ordinarily resident on the date when her available capital fell below the relevant financial cap. The Secretary of State decided that it was Greenwich. After considering the authorities, including Vale‘s case, Charles J stated (at [72]):

“Habitual or ordinary residence is in each case a question of fact. The temptation to turn it into an abstract proposition should be resisted. Habitual or ordinary residence is not equivalent to physical presence. There can be ordinary or habitual residence without continuous presence, while physical presence is not necessarily equivalent to residence. Residence means living somewhere. The significance of ordinary or habitually is that it connotes residence adopted voluntarily and for settled purposes. That was the point emphasised before me and appears clearly from Shah. Although ordinary in one place can be lost immediately, acquisition of a new ordinary residence requires an appreciable period of time. The length of the appreciable period of time is not fixed, since it depends on the nature and quality of the connection with the new place. However, it may only be a few weeks, perhaps, in some circumstances, even days. In order to establish ordinary residence over a period of time a person must spend more than a token part of that period in the place in question. Ordinary residence is not broken by temporary or occasional absences of long or short duration. …”

  1. Charles J thus regarded “ordinary residence” as involving questions of fact and degree, and factors such as time, intention and continuity, each of which were to be given a different weight according to the context: see [73]. He also stated (see [74]) that the fact that the individual in that case did not have an existing right to reside at a place in Bexley on the relevant date is a significant factor to be taken into account, but “is not determinative of the issue”. Mr Lock’s submissions in effect suggested that PH could not be ordinarily resident in Cornwall because he did not have the “right” to reside at his natural parents’ home. Although certain passages in the Secretary of State’s determination in the Greenwich case might be understood to suggest that the Secretary of State regarded the absence of a place available in Bexley as determinative, Charles J stated (see [85]) that, on its true interpretation, the determination stated that, given all the factors that had to be taken into account, the key factor was that the individual did not in fact have anywhere to live in Bexley any longer, and was actually living in Greenwich, and that the factors that fell for consideration did not outweigh the force to be given to those points in determining her ordinary residence.
  1. Drawing the threads together, “ordinary residence” is a question of fact and degree, and if the Secretary of State gets the law right, the determination of a person’s ordinary residence is for the Secretary of State, subject only to Wednesbury unreasonableness. In the present case PH’s connections with Cornwall differed from Judith’s connections with Waltham Forest in Vale’s case. In one sense PH’s connections were more transitory because Judith had come to stay with her parents in Waltham Forest until appropriate arrangements were made for her whereas by December 2004 arrangements had been made for PH to be placed in a home in Somerset. But, in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 334 Holman J stated that “the court is entitled to take into account matters other than where [the person himself or] herself was living during the specified period, and Potts J in R v Redbridge LBC, ex p. East Sussex CC .did not appear to have placed any weight on whether there was a physical presence by the twins in Redbridge during the period in which the court found they were ordinarily resident there.
  1. In deciding whether PH’s base was at the home of his natural parents, the Secretary of State applied the Vale Test 1 in a fact-sensitive way. Although not determinative of the legality of his decision, he did so in a similar way to that presented in “scenario 2” in paragraph 158 of the Departmental Guidance: which is summarised in the Appendix to this judgment.
  1. The Secretary of State examined (see determination, paragraphs 23-24, set out at [46]) whether there was a real relationship between PH and his natural parents and whether they were in fact making relevant decisions. He was entitled to take account of that and (see determination, paragraph 25) of the “entirety of the relationship between [PH] and his parents”. As part of that, he was also entitled to take account of the time spent by PH with them in Cornwall.
  1. It is also clear that the Secretary of State took account of the approach in section 4 of the Mental Capacity Act 2005. In considering the approach of PH’s family, he concluded that they viewed contact with PH in terms of what was in his best interests.
  1. The process of determining that PH was ordinarily resident in Cornwall may appear artificial. There would, however, have been a similar artificiality in determining that he was ordinarily resident in any of the other counties under consideration. The Secretary of State gave reasons for concluding that PH could not be considered ordinarily resident in Wiltshire at the relevant time: see paragraph 22 of the determination, which is set out at [46] above. Those reasons and that approach are in line and consistent with the decision of the Court of Appeal in Re D (a child) (care order: designated local authority) [2012] EWCA Civ 627.
  1. In D‘s case it was held that the “disregard” principle in section 105(6) of the 1989 Act did not apply when the ordinary residence of a sixteen year old mother had to be determined for the purpose of determining the ordinary residence of her baby. Elias LJ stated:

“[the mother] is treated as though she has two hats; she is a mother whose ordinary residence must be determined by common law principles when that concept is relevant for the purpose of determining her child’s ordinary residence for any purpose under the 1989 Act; but she is a child whose ordinary residence is modified by section 105(6) when it comes to determining her own place of ordinary residence for any purpose under that Act”. (at [45]).

The reasoning summarised in paragraph 22 of the Secretary of State’s determination represents the application of those common law principles.

  1. As to South Gloucestershire, for the reasons I have given in [66], by the relevant date it was clear that PH was only in South Gloucestershire on a very temporary basis and the settled intention required to establish “ordinary residence” could not be imputed to him. Finally, as to Somerset, although it was planned that he would move there shortly afterwards, at the relevant date he had never lived in that county. Shah‘s case required future intent to be left out of account.
  1. For these reasons, I have concluded that the Secretary of State’s determination that PH had, as his “base” his parents’ home as at the date of his eighteenth birthday, and hence was ordinarily resident in Cornwall was one that was properly open to him. Accordingly this application is dismissed.

 

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