Bullish but not bullying? UNDER PRESSURE

Posted on February 7, 2019 by suesspiciousminds

Couldn’t decide between my two titles here, so you get a job lot.

 

I do like a case name that tells you something about the nature of the case, so G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019) told me it was probably going to be worth a read.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/126.html

 

It involves an appeal from Sheffield Family Court about the decision to make Interim Care Orders involving two children (both said to be young, and one specified as being four). The children had been removed into Police Protection following an alleged fracas where mother had gone to the father’s house after father had reportedly kept the four year old for longer after his week’s holiday contact than had been agreed. The police had arrested mother and members of her family.

 

There was said to have been some history of domestic abuse between the parents, both making allegations against the other.

 

The interim threshold statement referred to the incident on 21 January, the children having been taken into police protection, the reports of past violence between the parents, the father’s lack of cooperation with previous assessments, alleged violence between the mother and her present partner, and a school referral to social services arising from M’s poor attendance. The papers consisted of a statement from the social worker, who had no previous knowledge of the family, and the police protection authorisation record, which described the events of 21 January

 

The case was listed for an Interim Care Order hearing, against the backdrop of the Police Protection period ending that day and thus a decision needing to be made. The Court called the case in, asked for people’s positions, gave some views, allowed a brief period for instructions to be taken, and the mother did not contest the making of the Interim Care Orders.

 

[In fact, she consented, but it is now permissible to appeal against a consent order – that did not used to be the case, but the law changed following some high profile big money ancillary relief cases – ie  CS v ACS 2015  ]

 

My summary above doesn’t quite capture what happened though, hence the appeal. The appeal was on the basis that the views expressed by the Court went beyond robust case management and into undue pressure and that the mother’s decision not to contest the making of Interim Care Orders was as a result of feeling that she would not get a fair hearing.

 

(I note that mother’s counsel, Mr C,  is said to be 2016 call, which means that he was relatively junior and might also mean that he was in his early twenties, although of course some people join the Bar later in life.  Part of the argument at appeal was whether he was in any way to blame, which he was not. I point those things out merely because they MAY wrongly have given the impression that he could be steam-rolled in a way that a barrister with 20 years call would not have been. )

 

Here is a flavour of it – the judgment gives a pretty thorough blow by blow account if people want to read it

 

JUDGE: Yes. Mr [C], what evidence do you what to hear?

 

Mr C: Certainly the – the social worker as a – is a starting-point, depending if the application is to be heard today or on a – on a different day.

 

JUDGE: Oh, it’s got to be heard today. As you know, the PPO runs out.

 

Mr C: Well —

 

JUDGE: — and if it is heard today I shall certainly make findings that your client will be stuck with.

 

 

And

 

 

JUDGE: I should ask, but it’s bound to be supported by the Guardian. If I go ahead and make findings – which inevitably I will, because something happened at the house on the 21st of January – she is stuck with those, and it could impact on how the police look at it and everything. Potentially, the situation is – is very risky for her and I – I say that so that no-one’s left in any doubt that if I hear the evidence, which I’m more than willing to do – my list is empty for this afternoon – I shall make findings and she’ll be stuck with them.

 

Mr C: Well, in light of that indication, your Honour, I will probably have a further word.

 

JUDGE: Well, you can turn your back and just check if she wants to. She is in a very very precarious position because she undoubtedly went to the house that belongs to the father, she undoubtedly retrieved, late at night, her daughter. It may well be that [he] kept the child when he shouldn’t have done. but I don’t know about that yet. It may be something I have to make a finding about – that – what caused her to act in this manner, but this is a case where, inevitably, I’m going to make findings, and it doesn’t take rocket science to realise that if you grab a child in the – late at night when that child should have been in bed asleep – that that is significant harm. I don’t think there’s any question about it.

 

Mr C: Well, your Honour, mother’s position would be that it was a – a choice between two difficult decisions that evening —

 

JUDGE: Oh, nonsense.

 

Mr C: — and that she had to take steps to safeguard the welfare of her daughter.

 

JUDGE: No, that’s not the way that you go around it, Mr [C], If that is the preposterous proposition you’re putting to me, it’ll fall on deaf ears.

 

 

And

 

JUDGE: Yes. Mr [C], I’m doing this to try and assist your client, not for any other reason, so it’s up to her.

 

Mr C: Well, I do ask your Honour for the matter to be stood down so that I can take proper instructions rather than rushing the mother into a – into a decision on that.

 

JUDGE: Yes. Well, I must say, father’s taken the only decision, in my view, that he should take, particularly now I know the girls are placed together. I would have had quite a lot to say if they weren’t and it would have impacted on my decision, but father’s taken the only standpoint – obviously I’m not making any findings against him because he’s accepted the inevitable.

 

It’s quarter-past now. I’m very willing to hear this but I want your client to be very much aware that I shall probably send my findings, if I make any, to the police and require it goes to CPS and – and see what happens. This is not the sort of situation that it seems to me, Mr [C], should be permitted to happen without some consequences.

 

MR [C]: Yes, your Honour.

 

JUDGE: Right, it’s quarter-past now, I’ll give you – no later than 25 past.

 

I don’t know if mum could possibly have persuaded the Court that her actions in going round to father’s house to get her child back late at night were justified and that in any event, it would not be proportionate to put two children in foster carer as a result of that, but it is an argument that she was strongly pressured into not making.

 

At the appeal, the mother’s case was

 

 

14.Ms Helen Compton’s distilled submission to us is that the mother was deprived of a meaningful opportunity to oppose the making of the orders. The judge gave the impression of having prejudged the threshold and the outcome and she exerted undue influence on the mother in a number of ways, including by repeatedly warning her that she would be ‘stuck’ with adverse findings and by threatening to refer the matter to the police and the CPS, something that was bound to place the mother under extreme pressure. Overall, the judge’s approach overbore the mother’s will.

 

 

At the appeal, the Local Authority put the case in this way

 

“Following her discretionary case management powers and with a clear view on the Overriding Objective the learned judge informed the Mother and her Counsel that there was time for the Court to hear the matter as a contested hearing that afternoon and of the possibility of threshold findings being made against her.

 

However firm the learned judge may have been, it did not amount to duress and it was incumbent upon the Mother’s legal representatives to raise these issues with the judge. In the event that judge refused to hear the case at all a judgment should have been requested. In the event that there had been a contested hearing, the Court would have provided a judgment (probably ex tempore) and clarification could and hopefully would have been requested. This matter was agreed and no judgment requested.

 

The learned Judge did state a view on the initial application but this was within her discretion to do. The Learned Judge also provided the Mother with time over lunch to take instructions, further time when Mr C asked for it and stressed that she was willing to hear the case that afternoon. No application was made by the Appellant Mother to seek an adjournment or agree an Interim Order pending listing this matter for a contested interim hearing. This exercising of the Judge’s case management powers did not amount to a breach of the Mother’s Article 6 and 8 Rights.

 

Both parents attended at court represented, the Mother by both Counsel and instructing solicitor. It is perhaps surprising that neither of the Mother’s fully qualified legal team sought to challenge the Judge in the event that they felt the Judge was being intimidating or exerting duress and express their views to that effect at the time.”

17.In her submissions to us, Ms Ford accepts that the transcript shows the judge to have been bullish, but distinguishes this from bullying. She does not accept that the mother was under duress. Professionals are used to judges expressing firm views and they should be able to deal with it, and where necessary stand up to pressure from the bench. There is nothing improper in a judge advising a party of the consequences for them of adverse findings being made at an interim hearing. Ms Ford accepted that one interpretation of the transcript supported the complaints now made; in the end she was not able to suggest any other possible interpretation.

 

The Court of Appeal weren’t very taken with the Guardian’s stance on appeal

 

 

20.Written submissions on behalf of the Guardian merely observe that the mother consented to the order. They do not attempt to address the criticisms of the conduct of the hearing. I find that surprising, as one of the functions of a Children’s Guardian is to take an interest in whether the process that leads to orders affecting the children is a fair and valid one

 

 

 

 

 

Conclusions

 

 

 

 

22.The overriding objective in family proceedings is to deal with cases justly, having regard to any welfare issues involved. The court is under a duty to deal with cases expeditiously and fairly and to manage them actively in ways that include “helping the parties to settle the whole or part of a case”. See FPR 2010 1.1(1), 1.1(2)(a) and 1.4(2)(g).

 

 

23.Judges can, and frequently do, indicate a provisional view to the parties. This is entirely proper and may lead to parties changing their positions. Provided they do so freely (even if reluctantly), there is nothing objectionable about this. However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter. As Stuart-Smith LJ said in Re R (above) at 130:

 

 

 

“A judge may often have a laudable desire that the parties should resolve disputes, particularly family disputes, by agreement. I would not wish to say anything to discourage a court from doing so, but great care must be taken not to exert improper or undue pressure on a party to settle when they are unwilling to do so.”

24.Measured against these principles, and making every allowance for the realities of practice in a busy family court, I regret that what occurred in this case fell well outside the proper exercise of the court’s powers.

 

 

25.This was an urgent application, which the judge rightly appreciated had to be decided that day. As she said, she had time available. It was a matter for her, given the practical constraints, as to whether to hear oral evidence: if she had been considering making a short-term holding order I would not have criticised her for not doing so, with any evidence needed to justify a longer-term order being taken on a later date.

 

 

26.However, that is not what happened. The judge was hearing an application issued that day, with the parents arriving at court for the first time, the social worker and the Guardian knowing little of the fraught family history, and the mother being represented by inexperienced counsel. Before Mr C could even manage to tell the judge that his instructions were to contest the order she told him that “… if it is heard today I shall certainly make findings that your client will be stuck with.” The only conclusion that the mother and her advisers could draw from this and similar statements (“very risky for her”; “a very very precarious position”; “inevitably, I’m going to make findings… – that that is significant harm. I don’t think there’s any question about it.”; “not… without some consequences.”) is that the judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run. The judge then isolated the mother by saying, before learning the position of the Guardian, that “this application is bound to be supported by the Guardian”. When Mr C attempted to put a small part of his client’s factual case, he was met with derision: “Oh, nonsense”; “preposterous proposition you’re putting to me, it’ll fall on deaf ears.” Counsel for the local authority then intervened to say that her social worker couldn’t be questioned about events before she was allocated and that she would question the mother about why she waited until 36 hours after reporting matters to the police before going to the father’s house. Before adjourning at Mr C’s request, the judge further isolated the mother by saying that “the father’s taken the only decision, in my view, that he should take, … obviously I’m not making any findings against him because he’s accepted the inevitable.” Finally, she made an entirely gratuitous statement that “I shall probably send my findings, if I make any, to the police and require it goes to CPS and – see what happens.” Whether or not that was an empty threat is beside the point.

 

 

27.This material amply substantiates the appellant’s case that her consent or non-opposition to the interim care order was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements. Regardless of the fact that the mother was legally represented, she did not get a fair hearing. There has been a serious procedural irregularity. This ground of appeal succeeds. It is unnecessary to go on to consider the other grounds.

 

 

28.I also regret that the submissions made by the local authority, either supported or not challenged by the other respondents, show a failure to understand the nature of the overriding objective or the requirements of a fair hearing. The judge’s approach went far beyond “firmness” and cannot possibly be described as “assisting” the mother. Similarly, I would reject the suggestion that the fundamental unfairness of the hearing could have been cured by a more assertive response by the mother’s legal representatives. After what happened in the first part of the hearing, it is difficult to see how a fair hearing could have taken place even if the mother had maintained her opposition. The submissions we have received from the respondents show why the appeal needed to be heard. The consequence will be that the local authority’s application for interim care orders will be heard afresh, and not as an application by the mother for the discharge of existing orders.

 

 

29.A further matter, which arose during submissions, requires comment. The judge’s repeated references to the mother being ‘stuck’ with findings is to my mind one of the causes of concern. However, both Ms Compton and Ms Ford told us that this was a warning that in their experience is often given by judges at interim hearings. Neither sought to argue that there is anything improper about this. I do not share that view and I agree with the observations of Moor J on this point.

 

 

Mr Justice Moor, the second Court of Appeal Judge, reminded us that judicial decisions about matters at interim care order stage are not findings of fact, but decisions that on the section 38 standard that there are reasonable grounds to believe (at that stage) that such and such has occurred. That argument of course cuts both ways – it is a lower standard of proof that the Local Authority have to reach (on the balance of probabilities are there reasonable grounds to believe that this happened versus on the balance of probabilities is it more likely than not that this happened) but on the other hand such judicial decisions and views are not set in stone and should not be used in this way to discourage a parent from testing the evidence.

 

Mr Justice Moor:

31.I agree, and add the following in relation to one aspect of the matter.

 

 

32.During the course of the hearing, we were told that it was commonplace in certain courts to warn parents that, if the application for an interim care order was opposed, the court may have to make findings as to facts in dispute. The implication was that these findings would then stand for all time. Indeed, Ms Ford, on behalf of the Local Authority told us that this would be done “to prevent the need to go over the same ground again” later in the proceedings.

 

 

33.It is important to remember that there is a fundamental difference between sections 31 and 38 of the Children Act 1989. Section 31 sets out what needs to be established before a court can make a full care order. Section 38(2) is in very different terms:-

 

 

 

“A court shall not make an interim care order or supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)”.

34.Section 38(2) does not require the court to make findings of fact to the civil standard, nor to be satisfied that the main threshold document is proved. Instead, the section requires the court to be satisfied that “there are reasonable grounds” for believing that the threshold in section 31 is made out. It follows that, at an interim hearing, rarely, if ever, will findings of fact be made that will have the effect of establishing the threshold at a final hearing. Accordingly, we consider that courts, if they do it at all, should be very cautious before making reference to the significance of conclusions drawn at the interim stage as such comments may appear to the parents to be a form of pressure.

 

 

35.If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it will say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.

 

 

[If I recall correctly, the Courts have confirmed that this is the case even at a finding of fact hearing, that the findings made are effectively a section 38 finding and that it is vital at the conclusion of the case for the Court to actively consider and determine whether to make the same findings to the section 31 standard. Don’t quote me on that though, because I can’t locate the source authority – I just remember having been surprised to read it at the time. Fact findings always FEEL like a section 31 exercise, not an ‘are there reasonable grounds to believe this?’ exercise]

 

The Court of Appeal continued the interim care orders pending the case being reheard by a different Judge.

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The right tool for the job

Posted on February 1, 2019 by suesspiciousminds

 

Immigration law is complex. It involves knowledge of multiple jurisdictions and the political and cultural circumstances of those countries, the statutes, regulations and case law providing interpretations of those statutes and regulations, and it requires confidence and knowledge in advocacy as to what the tribunal you are appearing before is looking for.

I wouldn’t do a contested immigration final hearing. I’d be very out of my depth. Just having skill as a lawyer, and experience of being in Court isn’t enough.

 

The post-script to this family law case, involving an allegation that a child of just seven weeks old was admitted to hospital with serious burns and a mother who alleged that the injury was caused by a friend of hers, Y, who had spilled tea on the child, but Y could not be located to give evidence  (it appears that Y may have been an overstayer, so there’s some immigration angle) , really says all that needs to be said.

 

K & C (Children: Finding of Fact), Re [2018] EWFC B85

https://www.bailii.org/ew/cases/EWFC/OJ/2018/B85.html

 

Families are the building blocks of our society and in Public Law Proceedings, the Courts deal with some of the most vulnerable families. Professionals who work in the Family Justice System are highly skilled specialists who often work on complex cases involving serious intricate forensic issues. Their skill set and professional standards are essential for those who represent the parties in Public Law Proceedings. It is incumbent on those representing the parties facing serious allegations to ensure they have seen, read and understood all the evidence in the case and to ensure that the party who they represent has been able to participate meaningfully in the court process.

I note that in this case, neither the parents nor their Counsel were aware that there were coloured photographs of the injuries that were commented upon in detail in the written report of the jointly instructed expert. Until she was partway through giving oral evidence, the Mother had never seen the transcript of her police interview. Despite being in possession of Y’s photograph, the mother’s solicitors failed to mention this to the local authority or their own private investigator, resulting in much embarrassment when the wrong person was witness summonsed and attended Court. Counsel for the parents have both informed me that they are immigration specialists, consequently the other professionals have had to work very hard to make sure that the hearing could be fair and effective. The mother’s evidence has taken much longer than necessary, which can only have made it more stressful than it needed to be. There is no room in the Family Court for such a lack of care and lackadaisical approach to case preparation.

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

Posted on February 1, 2019 by suesspiciousminds

 

 

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

 

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

 

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

 

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

Fire-eating pilot

 

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

 

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

 

Click to access Settlement_Conference_Research_Report_.pdf

 

 

Some of the things that really struck me

 

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

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

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

 

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

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

in others, respondents thought selection was random or idiosyncratic.

 

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

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

very hard to resist.

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

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

some reported as bewildered by the procedure

 

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

parents, with the latter effectively backed into a corner.

 

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

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

potentially disarming – or it could be both.

 

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

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

intimidated and coerced.

 

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

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

 

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

5/19 respondents said it had not been fair.

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

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

and thus caveats.

 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

 

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

 

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

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

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

delivering his view as to likely outcome.

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

aback by it.” [R-4]

 

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

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

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

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

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

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

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

 

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

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

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

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

 

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

 

 

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

 

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

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No more ‘business as usual’

Posted on January 25, 2019 by suesspiciousminds

 

 

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

 

Here it is

Click to access amcfview-1.pdf

 

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

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

 

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

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

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

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

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

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

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

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

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

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

 

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

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

 

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Separating twins

Posted on January 4, 2019 by suesspiciousminds

 

 

There’s a notorious study from the 1960s, in which an American organisation, the Louise Wise Adoption Agency under the request of a child psychologist, Peter Neubauer, placed twins in separate adoption placements, with a number of different twin pairs, so they could be followed up by psychologists in later life to see whether they, as adults, had similarities (which would give credence to nature / genetic factors being the most dominant) or differences (which would give credence to nurture/environmental factors being the bigger influence on children). It’s the sort of thing that makes us shudder now.  And rightly makes us think that separation of twins is a huge, huge life-changing decision, never to be made lightly.

 

This case isn’t as bad as that, because the separation came about more by a combination of incompetence, lack of thought and dogma that adoption is the best thing always even if it means splitting twins, rather than just carelessly using children as unwitting experiments, but it is still bad.

 

Readers may remember Keehan J opening a can of judicial whup-ass on Herefordshire just before Christmas. After I finished writing THAT post, I found this judgment, which….well. You’ll see.

BT & GT (Children : twins – adoption) [2018] EWFC 76 (29 November 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/76.html

 

1.I am concerned with two children, BT and GT who are twins who were born in 2010. It is almost impossible to imagine the circumstances in which it would be considered appropriate to separate twins and place them for adoption by different prospective adopters. This is, however, what occurred in this case and I have before me an application by a couple, whom I shall refer to as A and B, to adopt BT and an application by a single carer whom I shall refer to as C, to adopt GT.

 

 

2.As I shall set out in some detail, I am satisfied and find that the court is in the position of considering applications to adopt the twins in two separate homes because of the incompetence and serial failings of the local authority, Herefordshire Council, and the egregious behaviour of some of its former staff.

 

  1. The failings of this local authority have been utterly appalling. Whilst I accept the assurances of the director of children’s services and of the assistant director that significant and substantial reforms will be made and effected, no child should ever again be cared for in the manner BT and GT have had to endure at the hands of this local authority nor suffer the woeful lack of rational care planning. Further no prospective adopter should ever again have to endure the treatment meted out to A, B and C in this case.

 

This was a case in which twins born in 2010, were made the subject of Care Orders and Placement Orders (authorising them to be placed for adoption) in 2015 – the plan approved by the Court at that stage being that the Local Authority would search for an adoptive placement for the twins together for nine months, and if one was not found to search for a long term foster placement for them together.

 

 

 

 

22.On 19th March 2015 HHJ Hooper QC made all five children the subject of care orders and made placement orders in respect of BT and GT. Their court approved care plans provided for them to be placed together with a search being made for nine months for an adoptive placement and if the search was unsuccessful the following three months would be devoted to seeking a long-term foster placement for them together. There was no question of the local authority proposing, still less the court approving, a plan for the twins to be separated and placed separately whether in adoptive placements or long-term foster care.

 

 

23.On 10th April 2016, however, a team manager made the decision to place the twins separately for adoption. This plan was endorsed by a LAC Review held the following day. I shall return to consider these decisions in greater detail later in this judgment.

 

We aren’t given a huge amount of background as to the decision to make Care Orders in 2015. We know that the twins father was convicted of multiple sexual offences against children and that he is also serving a 21 year prison sentence. (para 5) and we know that 5 children were removed from the mother and made the subjects of Care Orders and that there were issues of neglect, domestic abuse and alcohol abuse.(paras 17-22)

 

The Judge, Keehan J, was faced at this hearing, with applications by two different adopters to adopt one of the twins each. By the time of the hearing, the children had been in those placements for over a year. The Judge had to decide whether to grant the adoption orders, meaning that the two children would permanently live apart, or to refuse them and move the children from those separate placements into presumably a foster placement together. Understandably the Court was more than vexed at being placed in this position after the event, when it would have been very unlikely to have sanctioned separation of the twins in the first place.

 

Let’s look at why that happened.

 

As we know, the social work team manager took the decision on 10th April 2016 that the children should be placed separately for adoption. Their foster placement, a joint one, broke down on 28th April 2016.

 

 

 

26.The allocated social worker undertook a sibling attachment assessment. The report, approved by the then team manager, is dated 7th July 2016: some three months after the decision had been made to place the twins separately for adoption. It is asserted by the local authority that the social worker, whom I shall refer to as D, gave an oral report on this issue but I do not know when nor to whom this oral report was given. Quite astonishingly and wholly contrary to good social work practice, there is no note or minute of the manager’s decision made on 10th April. Therefore, I do not know what material he considered when making his decision and I do not know the reasons or basis for the same. Thus, I do not know whether he considered the oral report of D. Moreover, I have had no explanation as to why it took D three months to write up her assessment.

 

 

27.I will return to this so-called assessment later in this judgment, but I note in the summary of her report D asserted:

 

 

 

“Having considered the legal, policy, moral and best practice guidance, it is essential that GT and BT have the opportunity of an adoptive family.

 

GT and BT’s care plans have remained to be one of adoption (jointly placed) for a considerable period of time. Over the period of 12 months, family finding attempts have not been successful.”

 

This does not reflect the court’s approved care plan which was for a 9-month search for an adoptive placement together to be followed, if unsuccessful, a by three-month search for a long-term foster placement together. I have been given no explanation as to why or how D in her assessment completely misrepresented the care plan: whether it was deliberate or just an error I do not know.

28.I am satisfied that the prospective adopters were unaware of the flawed decision making process relating to the separation of the twins until these proceedings seeking adoption orders in respect of BT and GT had been commenced.

 

GT was placed with prospective adopters in March 2017, BT in May 2017. The Local Authority ended contact between them, there being just two sessions of contact for twins (aged at that time seven) in a YEAR.

 

 

 

35.They did not then see each other again for seven and a half months until there was a contact visit on 27th October 2017 and then no contact for over four months until a visit took place on 4th March 2018. I do not understand how, why or when the hugely important decision was taken to so severely curtail, indeed deny, the children an ongoing relationship once they had been placed for adoption. For the avoidance of any doubt, it was the local authority which determined this level of contact. I make and intend no criticism of the prospective adopters.

 

 

The Local Authority accepted a large catalogue of failings at the Court hearing

The Local Authority: Actions and Failings

44.The admitted failings of the local authority which led to breaches of BT and GT’s human rights and those of the prospective adopters are set out in Annexe 1 to this judgment. These admitted failings are supplemented by further admissions of failings by the local authority, together with notes of the actions taken by or to be taken by the local authority to prevent, or at least, ameliorate the future risk of such failures of the system and of social work practice occurring. This schedule was prepared by Liz Elgar, the assistant director of children’s services and is set out in Annexe 2 to this judgment.

 

 

45.The admitted breaches of human rights and the schedule of failings of the local authority are extensive and grave. They relate to the whole operation of children’s services in Herefordshire. They are both systematic and the fault of individual social workers, team managers and line managers.

 

 

46.This said I commend the approach taken in this case by the new management team of children’s services, including in particular the Director, Chris Baird, and the Assistant Director, Liz Elgar, for the open and forthright manner in which they have responded to the divers criticisms made. I am reassured by their expressed commitment to a root and branch reform of children’s services in Herefordshire and a commitment to ensure that far more robust systems are in place to ensure compliance with good social work practice.

 

 

 

  1. The breaches of human rights may be summarised:

 

  1. i) a failure to undertake a thorough analysis of the need to change the care plans for the children and a failure to consider appropriately the consequences of separating the twins;

 

  1. ii) a failure to disclose in full detail the needs of, the challenging behaviours of and the past life experiences of BT or GT to their prospective adopters;

 

iii) a member of the social work team deleting references to the children’s challenging violent behaviours from the Child Permanence Reports (‘CPR’) and the Adoption Support Plans;

 

  1. iv) the wholly unmeritorious decision and issuing of a s.35(2) notice to remove BT from his placement with A and B;

 

  1. v) the undue stresses and strains caused to the prospective adopters by:

 

  1. a) the local authority’s flawed decisions; and

 

  1. b) as a result, these prolonged court proceedings which have had an adverse impact on BT and GT’s experience of family life;

 

  1. vi) the failure to consider properly the alternative plan for placing BT or GT in long term foster placements and to adhere to the court approved care plans;

 

vii) the failure to hold adoption reviews rather than LAC reviews (adoption reviews have an entirely different mandatory criteria to consider than LAC reviews: see Adoption Agencies Regulations 2005, regulation 36); and

 

viii) the failure of the Independent Reviewing Officer system to take any steps to secure any cogent care planning for the children and/or to protect them from the consequences of flawed and/or ill-considered decisions.

48.The schedule of supplemental failings set out in Annexe 2 may be summarised as follows:

 

 

 

  1. i) a failure in the original care plans to set out what the local authority would do if a placement together could not be found after 12 months;

 

  1. ii) a lack of management oversight;

 

iii) a failure to follow the court approved care plan to a correct conclusion;

 

  1. iv) a failure in the decision-making process to place the twins separately for adoption;

 

  1. v) the failure to acknowledge the significance of maintaining the legal sibling relationship of the twins;

 

  1. vi) the failure to acknowledge the legal relationship between BT and GT and their older siblings;

 

vii) the failure to record the reasons why a manager made the decision to place the twins separately for adoption on 10th April 2016;

 

viii) the failure of the LAC review on 11th April 2016 to consider pursuing a plan of long term foster care or commissioning further expert report(s) on the issue of placing the twins separately;

 

  1. ix) the failure to promote contact between the twins once they had been placed for adoption;

 

  1. x) the failure in applying full and accurate information in the CPRs and Adoption Support Plans including the adoption team manager wrongly and inappropriately deleting information about the twins challenging behaviours;

 

  1. xi) the failures of the IROs to take any steps to oversee and/or challenge the local authority’s decisions;

 

xii) the failure of the ADM decision making process, namely to fail to consider the impact on the children throughout the whole of their lives of separating them; and

 

xiii) the failure of the local authority, as a result of poor record keeping, to provide accurate evidence to the court.

49.Most regrettably all these admitted failures were not the end of this long litany of errors and misrepresentations. On the second day of the final hearing the local authority discovered there were documents and records, which contrary to previous orders and/or the local authority’s general duty of disclosure, had not been disclosed to the court or to the parties. When the disclosure was made it amounted to some 200 pages. I gave the parties the whole of the following day to read and digest the documents disclosed and to take instructions.

 

 

50.It caused the prospective adopters considerable distress to discover that within this disclosed material were matters relating to the children which had not previously been communicated to them by the local authority nor had it been communicated to the adoption agencies supporting the two sets of prospective adopters. [REDACTED TO PRESERVE CONFIDENTIALITY].

 

 

51.The emotional pressure on the prospective adopters was great enough without the added burden of having to receive and cope with the new information revealed. I do not understand the explanation offered as to why this material had not been disclosed earlier, other than it resulted from yet another error by an employee of the local authority. I received no explanation as to why the information revealed had not been previously communicated to the prospective adopters or their supporting adoption agencies.

 

 

However, over and above that, emerged the actions of the social worker who had written the sibling assessment (after the conclusion of proceedings) that formed the basis of the decision to separate these twins

 

 

 

52.It then emerged that the then social worker, D, the author of the sibling assessment had misquoted the opinions of Dr Mair Edwards, a consultant psychologist, who had prepared a report on the children for the purposes of the original care proceedings. The extract contained in the sibling assessment of July 2016 reads as follows:

 

 

 

“Dr Edwards concluded, “If GT and BT were not twins, I would be recommending separate placements for them as GT’s challenging and bossy behaviours do impact on BT’s abilities to express himself and he therefore tends to focus in on his love of mechanical objects and machinery, and withdraws from social interactions…Both GT and BT have significant learning difficulties and developmental delay and will have significant needs throughout their childhoods. Their long-term placement would therefore need to be fully aware of the high level of commitment that will be required, and the ongoing support that the children are likely to require from agencies and services throughout their lives””

 

It will be noted three dots appear about halfway down the extract indicating some material had been omitted

 

One hopes, of course, that the three dots are just indicating that there was extraneous and irrelevant information contained which has been snipped out to provide an accurate and thorough summary of what Dr Edwards had said.

 

Oh, dear.

 

Counsel for the children’s guardian, Mr Kingerley referred me to Dr Mair Edwards 2014 report. The passage omitted from the above extract reads as follows:

 

“When observing them together there was very limited interaction (other than GT telling BT to “no talk”), and no real sense of a sibling relationship. However, they are twins, and the sense of loss in later years at being separated would almost certainly be more detrimental to their welfare than placing them together.”

53.The words omitted completely change the import and meaning of the quoted section of Dr Mair Edwards’ report. The social worker was not called to give evidence before me nor has she been given the opportunity to give an explanation. Therefore, I will not name her in this judgment. The prospects of this being an innocent omission are unlikely in the extreme. It is not an opening or concluding sentence that has been missed. It is a passage in the middle of the quoted passage from the report and the deliberate omission of some words was marked by three dots. Given also that the omitted section of Dr Mair Edwards’ report sets out an opinion wholly contrary to the ultimate recommendation of the sibling assessment, the only credible explanation for this omission is a deliberate act to mislead a reader of the assessment to conclude that the recommendation of separate placements for adoption was consistent with the opinion of Dr Mair Edwards. It manifestly was not.

 

 

54.I was informed by counsel for the children’s guardian that in another case, some years ago, the self-same social worker was alleged to have tampered with a document. I asked for the issue of the social worker’s role in drafting the sibling assessment to be referred to the Director of Children’s Services and to the Chief Executive of Herefordshire Council. The social worker had left the local authority in March 2018 but had later been re-engaged in some role on a zero hours contract. It was proposed, in the Adoption Support Plans, that this social worker would be carrying out life story work for the twins. The following day I was told by counsel for the local authority that her contract had been terminated with immediate effect.

 

 

The Judge went on to explore the other expert advice that the Local Authority had (quite properly) obtained when deciding whether to separate twins and if so, how to best manage this so that the damage could at least be reduced (but sadly had largely ignored)

55.The issue of separating the twins was considered by a child and adolescent therapist with the adoption team, in her report of 12th April 2016. On the issues of separation and future contact between the twins if the decision was made to place them separately she said:

 

 

 

“Making the decision that twins should be separated is problematic. Although each child’s needs may be better met in separate families, they have been constant companions to date, and will find separation confusing and stressful. In addition they share a common heritage and history. The complexities of these children’s circumstances and individual needs should be considered at length and in detail, so that a decision can be made which will be of most benefit to both the children.

 

If they are to be separated, it would seem vital that there is ongoing contact between them. Both children would find the separation difficult in the short term especially, and would need the reassurance of frequent contact.

 

Ongoing contact would rely on two adoptive families both being willing to commit to this. If one child is adopted and one remains in foster care, then contact with the adopted sibling needs to be carefully considered, due to the link to the birth family.

 

Separation would obviously need to be done with a carefully constructed programme that takes both children’s needs into account.”

56.In light of this clear recommendation I am at a loss to understand why the local authority did the exact opposite. Prior to placement with the prospective adopters the twins had a ‘see you later’ contact session and that over the succeeding eleven months they had contact on just two occasions. The local authority was unable to explain who had made this decision for there to be very limited contact between the twins post placement or why this decision had been made.

 

If, like me, you are waiting to see what the reasons given by the Local Authority for the need to separate the twins in the first place was then you, I and the Judge were all equally frustrated that the reasoning just never materialised

 

 

 

 

57.The catalogue of the local authority’s errors and failings in this case is troubling and hugely lamentable. I do not minimise any of the admitted breaches of human rights and/or the other admitted failures by highlighting what I consider to be the most egregious failures, namely:

 

 

 

  1. i) the deletion of important and highly relevant information from the CPRs and Adoption Support Plans by the adoption team manager. This could only have been done to mislead the prospective adopters about BT and GT’s respective behaviours and needs with a view to increasing the prospects of them agreeing to a placement of BT or GT with them;

 

  1. ii) the deliberate and misleading selective quote from the report of Dr Mair Edwards in the so-called ‘sibling assessment’. I am satisfied that the social worker began this apparent assessment with the end result, that of separating the twins, already decided and wrote an assessment to support that conclusion. I do not understand why this assessment was written up three months after the decision had been taken on 10th April 2016 to place the twins separately for adoption or why this decision was not stayed pending the completion of a sibling assessment;

 

iii) the failure to give full and frank information about the twins to their prospective adopters and their respective supporting adoption agencies;

 

  1. iv) the complete and utter failure of the IRO service to satisfy any of its statutory duties in respect of BT and GT. The IROs and the IRO service did absolutely nothing to protect and promote the welfare best interests of the children and did nothing to challenge the local authority’s dreadful and, at times, irrational decision making and care planning; and

 

  1. v) the failure for there to be any note or record of the matters considered, the documents read or the reasons for taking the life changing decision to place the twins separately for adoption taken on 10th April 2016. It is astonishing given the highly unusual and momentous nature of the decision.

 

70.Ms Elgar, the assistant director of children’s services, and Ms Leader, the team manager, gave relatively brief evidence. Ms Elgar had been in post from June 2018 and Ms Leader became the team manager in July 2017. They both offered profuse apologies to the prospective adopters for the actions and failings of the local authority.

 

 

71.Ms Elgar could not explain how or why the material which had been disclosed at this hearing had not been disclosed at an earlier time or had been ‘lost’ by the local authority. She recognised the local authority’s serious shortcomings and sought to assure the court that action had been, and would continue to be, taken to resolve the identified and admitted failings of the local authority. She accepted the deletions from the CPRs and Adoption Support Plans resulted from a deliberate and wrongful act by an employee of the local authority.

 

 

72.It was Ms Leader who, having heard certain observations by me, checked the electronic records and discovered a considerable amount of material had not been disclosed. She readily accepted the decision to terminate BT’s adoptive placement in late 2017 had been wrong and the whole episode had been badly dealt with by the local authority. Mr Noble had noted that some of the documents disclosed in the hearing related to events some months or even up to two years before but had only appeared on the local authority’s computer system within days of each other in February or March 2018. When asked why this was, Ms Leader said that the previous social worker, D, had got seriously behind with her administration and had thus spent the last few days of her employment uploading two years worth of notes, records and other documents onto the system. When asked how this could have been allowed to happen, she could give no answer other than to say it was not good practice. This ranks as a masterful understatement and was a completely inadequate response. For the last seven or eight months of the social worker’s employment in children’s services, Ms Leader had been her line manager and had taken no effective steps to remedy this extraordinary state of affairs.

 

 

73.Finally, Ms Leader confirmed that no note, record or document had been found relating to the decision made on 10th April 2016 that BT and GT should be placed separately for adoption

 

The Court then was faced with what to do for these twins in the future, it having become abundantly clear that they ought not to have been separated, but that the independent expert analysis was now that they had settled with their prospective adopters and moving them would be profoundly damaging to them.

 

88.I have struggled with the concept that a court could find that it was in the welfare best interests of twins to place them separately for adoption. From the time the case first came before me up to and during the course of this final hearing I was keen to find a route by which BT and GT could be reunited in a single placement. If this proved impossible to achieve, I was keen to find a legal framework, short of adoption, which could afford them the degree of permanence, stability and security which I entirely accept they both so desperately require.

 

 

89.For the avoidance of any doubt, as I observed in the course of the hearing, in expressing these views I did not for one moment doubt the love, commitment and care which A, B and C have afford to BT and GT: quite the reverse. I wholeheartedly commend both sets of prospective adopters for the enormous great love and devotion they have shown to BT and GT, for their unswerving commitment to them and for the superlative care they have given BT and GT. It is plain that, notwithstanding the grave harm and damage they suffered in their past lives, they are thriving beyond expectations in the care of A and B and C. The stoicism each of these adults have displayed in the course of these lengthy proceedings has been admirable.

 

 

90.Nevertheless, BT and GT are not just simply siblings they are twins. In making adoption orders in favour of two separate sets of prospective adopters, I would sever the legal relationship of BT and GT as brother and sister. Further I would sever their legal relationship with their elder siblings. Whilst the latter is very important, it is the former consequence of adoption that principally troubles me.

 

 

91.There is no question of it being a realistic option in the welfare best interests of the children for either of them to return to the care of either parent. The mother manifestly is not capable of caring for them and neither is the father. In any event, he is serving a very substantial custodial sentence and is convicted of offences of child abuse.

 

 

92.Is there any other realistic placement together or apart? On the basis of the powerful and compelling evidence presented by the Anna Freud Centre and the most impressive and persuasive oral evidence of Dr Morris and Ms Mautner, supported by the children’s guardian and the local authority’s assistant director, and the compelling evidence of the prospective adopters, the answer is a resounding no.

 

93.I am of the view that if this local authority had exercised good social work practice and exercised a modicum of child focused judgment in its decision-making processes, there was, in my judgment, a real possibility that the children could have been placed and lived together for a substantial period of their childhoods. They had, I note, lived together in their foster placement for nearly three years albeit not without presenting their foster carers with immense challenges from time to time. Whatever the possibilities of being placed together, I am completely satisfied that the actions of this local authority denied them the opportunity of this option being properly explored which is, to put it mildly, deeply regrettable and will have an impact, great or slight, for the whole of BT and GT’s lives.

 

 

94.I am satisfied on the totality of the evidence before me that I cannot now contemplate moving either BT or GT, or both of them, from their placements without causing them serious harm and, potentially, lifelong grave harm. They are well settled with their prospective adopters and are plainly well integrated into what they consider to be their respective families. They are, for the first time in their lives, allowing themselves to believe they have their forever family. If one or other of them or both of them were to be moved, I accept the evidence of the Anna Freud Centre, that one or both of them would be devastated. They would suffer a sense of considerable loss, their behaviour would undoubtedly regress and they are likely never to allow themselves to trust a future carer or others involved in their lives: even if not likely, there is a substantial risk this would be the consequence of a removal.

 

 

95.To embark on the removal of the children with all the attendant serious adverse consequences cannot, in my judgment, be in the welfare best interests of either BT or GT. Accordingly, I am now persuaded and satisfied that both BT and GT must remain in the care of their respective prospective adopters.

 

The Court was driven to make the adoption orders, though not without a great deal of anguish.

 

Damages claims were agreed and settled.  (I think they seem very low for the twins, but that’s a personal view and opinion rather than a legal one, as damages is not my field)

 

  1. The damages agreed in satisfaction of A and B’s HRA claim were £5,000.00. The same sum was accepted by C in respect of her HRA claim.
  3. When considering the infant settlement approval of BT and GT’s respective claims for breaches of their human rights I had the benefit of advice on quantum by Mr Kingerley dated 16th November 2018. The local authority offered in settlement of the children’s claims the sum advised by counsel, namely £20,000.00 each. I was satisfied in all the circumstances of this case and having regard to recent authorities on the issue of HRA damages, that these were entirely reasonable damages to offer just satisfaction to both children. Accordingly, I approved the settlement achieved for BT and for GT. Further I made the declarations of the breaches of human rights of BT, GT, A & B and C in the terms agreed and set out in Annexes 1, 3 and 4 to this judgment.

 

 

 

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Walter White witness statement

Posted on December 21, 2018 by suesspiciousminds

 

 

This is from a big money divorce case before Mostyn J

 

Quan v Bray and Others 2018

 

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

 

 

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

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

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

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

 

 

 

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

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Multiple failings, IRO and whistleblowing

Posted on December 10, 2018 by suesspiciousminds

 

It is part of the Christmas tradition of Suesspicious Minds that some Local Authority takes an almighty judicial kicking in a published judgment,  and this year I’m afraid it is Herefordshire behind the door on the advent calendar.  This is a damning judgment by Keehan J

 

 

 

2.The care of and care planning for both these young people by Herefordshire Council has, over the last ten years or so, been woeful.

A & B (care orders and placement orders – failures) [2018] EWFC 72 (30 November 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/72.html

 

Herefordshire County Council obtained Care and Placement Orders on two children, A and B in May 2008. At that time, A was 11 and B was 10 (that sounds immediately to me like a highly optimistic order…)

 

Neither were placed for adoption, and the plan of adoption was abandoned by the Local Authority in September 2009. No applications were made to revoke the placement orders for A, and it discharged on her 18th birthday. An application was finally made to revoke the placement order for B, when she was 17 ½, it being revoked the day before her 18th birthday.

The girls were separated in 2013, and nobody was really able to explain to the Judge why that was

 

This was followed by a LAC Review held on 13th December 2013 at which it was decided to place A and B in separate foster placements. I do not know the reasons why this important decision was made nor the evidence on which it was made. A and B were never again placed together. I have no explanation as to why not.

 

 

 

 

22.On 19th November 2016 A and B had their first face to face contact since 2014. This has been requested by A who was pregnant.

 

 

23.On 12th March 2017 A gave birth to her first child, F. She had no secure or stable accommodation. A whilst pregnant and after F was born had been living in an annexe at her former foster carer’s home. In May 2018 A reported to the local authority that she and F had been evicted by her former foster carer and that she had nowhere to go. The local authority’s response to the plight of this young mother and care leaver was wholly inadequate. The response was so poor that, the Head of Service, Gillian Cox, accepted that the local authority had failed A and her daughter.

 

 

 

 

26.Between December 2013 and 1st September 2017, when she had attained her majority, A had had at least 5 changes of placement in various different areas of the country. There is no doubt that the instability in A’s life during these formative years, including the numerous changes of placement, have caused her significant emotional and psychological harm.

 

 

27.Between February 2016 and 6th March 2018 B endured 7 changes of placement in various different areas of the country. The harm suffered by B as a result of these changes in placement in terms of her emotional and psychological wellbeing are incalculable.

 

 

28.Between November 2008 and May 2018 A has had 6 different social workers allocated to her case. Between June 2014 and August 2018 B has had 8 different social workers allocated to her case. I accept the reallocation of case in October 2016 to a social worker in the 16+ Team was inevitable. There is, however, no good or cogent explanation for the high turnover of the other social workers which, to put it mildly, must have been unsettling and unhelpful.

 

 

29.From the time the children were made the subject of care orders and placement orders in February 2008 until October 2018 this local authority has had eight different independent reviewing officers (IRO) responsible for the oversight of their care plans.

 

 

(In 25 years of practicing family law, in various different local authorities, I don’t think I’ve MET 8 different IROs, but these girls had 8 different ones allocated to them at various points…)

The Head of Service filed a statement setting out the admissions that the LA made as to their failings in this case

 

 

30.I was so concerned at the failures of the local authority in respect of A and B that I ordered Ms Cox, the Head of Service, to file a statement setting out an explanation for the same. Her statement is dated 1st November 2018.

 

 

31.In respect of A, Ms Cox said as follows:

 

 

 

“In my view our service has failed to support [A] as I would expect since she first became homeless and in particular I would identify the following:

 

 

  1. In May when [A] first contacted our team to say that she was homeless we should have offered her supported lodgings accommodation in Herefordshire with [F] on a temporary basis whilst a longer term solution was identified. We should also have pro-actively supported [A] to search for private rented options in Birmingham and made it clear to her that we would financially support her with a bond and act as a guarantor if required.

 

 

  1. As time progressed and [A] continued to ask us for help and was not able to obtain suitable accommodation for herself in Birmingham we should have revisited these options and again offered her short-term solutions in Herefordshire and proactively supported her to find private rented accommodation. On the 15th June [A] specifically requested to return to Herefordshire but I can find no evidence of this being responded to which is unacceptable.

 

 

  1. The situation should have been escalated through Heads of Service to our Assistant Director and Director who have all asked to be kept informed of any young person who is placed in Bed and Breakfast accommodation. In the turnover of team managers and Heads of Service this expectation was not understood.

 

 

  1. On the 18th June [A] was informed that the local authority decision was that we would not pay a bond for her to secure private rented accommodation for her. This was not the case as this was agreed by the Head of Service when she was made aware of the situation. It is concerning that the team lack clarity about the support they are able to offer and did not escalate the situation earlier.

 

 

  1. There was a delay of almost a month in authorising a placement request made in July and this is unacceptable. The delay was due to further information not being provided to the Head of Service but in the circumstances the Head of Service should have been more pro-active in gaining the information she required.

 

 

  1. On the 11th October the personal advisor supported [A] and [F] to move from the Travel lodge to Northbrook hostel but did not look around the shared facilities. She described the accommodation as “basic” but did not raise concerns about the suitability of it for [A] and [F]. Having seen the photographs that [A] sent via her legal representative I was appalled by the state of the accommodation she was living in and was very clear that this was unsuitable and she should not have been left there.

 

  1. [A] is currently living in a supported lodging placement in Herefordshire with her daughter, [F]. She moved there on Tuesday 23rd October as an interim arrangement whilst suitable private rented accommodation for [A] and [F] is sourced in Birmingham. I received photographs and an email that [A] had sent her legal representative on the 23rd October and I was appalled at the state of the accommodation that she was living in. I telephoned [A] directly myself and asked if she would be willing to move to a supported lodging placement in Herefordshire if I could arrange that whilst we sorted out a suitable place for her to live in Birmingham. [A] was concerned about moving away from Birmingham but I was able to reassure her that this would be for just a short time. [A] agreed and so I made arrangements for our fostering team to find a placement for her and [F] and for her personal advisor to go to Birmingham to collect her that day.

 

  1. [A] was supported by her personal advisor to view flats in Birmingham on Thursday, 25th October and found a flat that she liked in an area that she is happy to live in. Herefordshire Council has paid 6 months’ rent up front and all relevant administrative fees to enable [A] to move into the accommodation. [A] will pay the housing benefit that she receives to the local authority as she receives it. At the time of writing this statement the plan is that [A] and [F] will move into their new home on Friday, 2nd November.

 

  1. [A] will continue to receive the support of her personal advisor. She is being referred for “floating support” and the most suitable provider for this is being investigated. The local authority will fund this support if [A] is not entitled to receive the support at no cost.”

32.In respect of B, Ms Cox observed in respect of the current placement that:

 

 

 

“[B] continues to live in a supported lodging placement with her boyfriend and his mother. She has lived there since March 2018. She is reported as happy living there although understands it is unusual to be living in the same home as her boyfriend at such a young age and is keen to move to live independently soon after she turns 18. She has been supported to register for housing and in the meantime can remain where she is. [B] will continue to receive the support of her personal advisor.”

33.I was told by Ms Cox that substantial steps have now been taken by the local authority to ensure:

 

 

 

  1. i) the mistakes and serious errors made in respect of A and B are not suffered nor endured by any other child or young person in the care of Herefordshire; and

 

  1. ii) far more robust procedures are now in place to ensure issues are escalated to more senior managers and, where appropriate, to the assistant director and/or the director of children’s services.

 

 

The Judge was concerned that the IRO system, which should have tackled these failings and drift, and got the LA to apply to revoke the placement orders and tighten up their planning for these girls (including ensuring that they had contact with one another) had not done so. He ordered a report from the Head of the IRO team

 

 

35.Accordingly I ordered the Head of Service, Safeguarding and Review (i.e. the head of the IRO service for this local authority), Cath Thomas, to file a statement. I am grateful to Ms Thomas, as I am to Ms Cox, for providing the court with a statement dated 1st November 2018. I regret to note that the statement contained a number of matters which caused me very profound and grave concern.

 

 

36.The statement of Ms Thomas concluded with the final paragraph:

 

 

 

“It is very clear that the issue of revoking [B]’s placement order continued without resolution for a significantly long period of time, both prior to and since the data error was realised in early 2016. This length of delay is absolutely unacceptable and I apologise unreservedly to [B] and her sister. The IRO service failed to fulfil its statutory responsibilities to [B]. I failed to robustly challenge the views of my assistant director at the time, which I recognise I should have done and as head of service I take full responsibility for these failings and apologise unreservedly to the court.”

 

This is a frank acceptance of a proper degree of responsibility by Ms Thomas. I accept her apology without reservation. Some of her actions or more properly her lack of action may be explained or, at least, put into context by a number of events set out in her statement which I shall now turn to consider.

37.In the autumn of 2008 Children’s services in Herefordshire moved from paper files to electronic records. It was not discovered until January 2016 that the placement orders made in respect of both children had not been recorded on their electronic records. This may explain why subsequent IROs did not raise the issue of revocation of these orders, but it does not explain why the IRO at the time the care plan was changed in early 2009 from one of adoption to long term fostering did not do so.

 

 

38.Ms Thomas asserted that in an unrelated case an IRO had concerns about a child’s case and wished to obtain independent legal advice and/or refer the matter to Cafcass. She said she raised this issue with the then senior lawyer and the then assistant director in January 2017. The response from the assistant director to Ms Thomas was that she was not to seek independent legal advice nor to refer the matter to Cafcass. She was further told that if she did not comply with this ‘advice’, disciplinary procedures would be invoked. Ms Thomas asserted that this assistant director did not recognise the independent nature of the IRO service.

 

 

39.It is not for me to determine the truth of these assertions, not least because I have not heard from the former assistant director. The council’s legal department did, however, immediately upon receipt of Ms Thomas’ statement invoke a whistleblowing investigation which has been reported to the Chief Executive of the local authority and members of the council. I note that the then deputy county solicitor agreed with Ms Thomas’ recollection of events.

 

 

40.Ms Thomas asserted that it was because of the ‘advice’ given by the former assistant director that she did not escalate the case of A and B beyond the Head of Service level, did not seek to obtain independent legal advice and/or refer the matter to Cafcass. As Ms Thomas readily acknowledged this was, to say the least, deeply regrettable.

 

 

41.The former assistant director left this local authority in March 2018.

 

 

Obviously the Judge did not hear from the former assistant director who allegedly told an IRO that escalating a complaint about a child’s case would be treated as a disciplinary matter, so there is not a finding as to whether or not that happened. (He notes, however, that the Deputy County Solicitor agreed with what Ms Thomas was alleging)

 

So we can’t say that this actually definitively happened, but if it DID, then there’s a complete failure to understand the role of the IRO and how vital their independence is. The Judge set out the framework and the importance of independence and the ability for IROs to obtain independent legal advice in detail, concluding this

 

 

 

 

50.I am appalled at the manner in which and the serial occasions on which the social workers and their managers have failed these two young people. The fact that I have chosen in this judgment to focus on the role and actions of the various IRO’s should not be taken in any way to diminish the failures of the social workers and/or their mangers in this case. Rather the failings of the IROs has been so stark and grave that, in my judgment, it was appropriate to focus on the failings of the IROs and the IRO service in this case.

 

 

51.Once a court makes a care order it entrusts, as by statute it must, the future care of the child to the local authority. The essential safeguard the court and the public at large have that a local authority will be a good corporate parent is the function and role of the IRO. Any obstruction of an IRO performing their statutory role or any diminution in an IRO, or their manager, feeling empowered to do so, is a matter of the utmost consequence. For otherwise a looked after child is subject to the vagaries of social work practice and the local authority’s different pressures and priorities. The IRO is, or should be, the child’s protector or advocate. If the IRO is silenced or pressured not to act as the child’s interests demand and require, it is the child who will suffer – just as these children, A and B have suffered.

 

 

 

Conclusions

52.This local authority, as it has accepted, failed both young people in the errors made by its social workers and their managers over a very prolonged period of time.

 

 

53.The IROs failed them on a serious and serial basis.

 

 

54.I entirely accept and acknowledge that in these straitened financial times all local authorities are stretched. Furthermore I recognise that this local authority, like very many around the country, have difficulties recruiting and retaining social workers. As a consequence many social workers have to carry very heavy case loads, may not have sufficient experience to deal with the more complex cases and/or have limited time to work on a particular case.

 

 

55.These difficulties, however, do not begin to explain the wholesale failure of this local authority, in its role as a corporate parent to plan adequately or appropriately for the care of these children. I simply do not know or do not understand why the care plan was changed from adoption to long term fostering in 2009. The explanation given in B’s 2018 Care Plan is plainly false or, at best, inaccurate.

 

 

56.This means that neither A nor B can now be given a clear and cogent explanation of why they suffered such instability when in the care of this local authority. I find this to be profoundly regrettable.

 

 

57.The fact that the local authorities are under financial pressures, and there too few social workers who carry too many cases, increases the importance of the role performed by the IROs. When it is known deadlines may be missed, visits not undertaken, assessments not completed or other actions in furtherance of a child’s care plan not addressed, the IROs must take active steps to ensure a child’s welfare and future care is not disadvantaged by these omissions.

 

 

58.Whatever opposition or obstruction the IRO or Head of Service faced from a local authority, the IROs and their managers must remember that their first and foremost duty is to the children and young people that they serve. If this is ignored or obstructed, it is only the children or young people, who are our future, who will be harmed.

 

 

59.The clear message must go out that IROs serve a vital and essential function to ensure that a child’s or a young person’s interests are met post the making of a care order or other orders. If those functions and roles are not exercised in a clear, robust and untrammelled fashion, the children or young people will suffer.

 

 

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Miss Demeanour and her concertina

Posted on December 1, 2018 by suesspiciousminds

 

 

 

This is a Circuit Judge decision about whether a vulnerable witness (the children’s aunt) should give evidence in a way that would prevent the father (about whom she was making very serious allegations of abuse when she was a child) from seeing her. By either screens blocking his view, or by video link.

 

The father argued that this would not be fair

 

 

 

 

5.The father’s position turns on the relevance of demeanour in assessing the credibility of a witness. The father says that the court’s ability to assess the credibility of the witness will be compromised if the court is unable to assess the witness’s demeanour when giving evidence. The father goes further to say that it is necessary that he should be able to assess the witness’s demeanour when she is giving evidence.

 

The Judge, His Honour Judge Greensmith, gave a judgment, and set out the history of judicial views of demeanour and the current position.  (Drawn from the Court of Appeal decision this year in an immigration case called Singh)

 

The history began with Judges thinking that the demeanour of a witness was vital in deciding whether they were telling the truth, and now is very cautious about the value of demeanour in deciding this. It’s an excellent summary of the law, and is, to my mind, very interesting about the shift in views.

 

The whole issue of how good people are at detecting when another person is lying is fascinating. Every study since 1986 has revealed that people are essentially no better in deciding whether a person is lying or telling the truth than pure luck – if you decided not to try to determine it by skill and just flipped a coin and said ‘head they’re honest, tails they’re a liar’ most people would get better results than using all of their finely honed instincts. Most of the behavioural markers we think indicate dishonesty simply aren’t reliable. And indeed, there’s some empirical evidence that using impressions of demeanour (tone of voice, position of eyes, body language) makes the assessor even worse at establishing whether someone is telling the truth than if they paid such things no regard at all and just decided honesty based on the content of what was said.

 

Professional lie-catchers (such as police officers and customs officers) have been found in studies to be no better at determining whether an individual is being honest or telling the truth than a random member of the public (Vrij 2000)

 

 

https://www.researchgate.net/publication/248925175_How_people_really_detect_lies

 

 

 

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B69.html

M & Ors v Liverpool City Council [2018] EWFC B69 (12 November 2018)

 

 

 

 

6.The relevance of demeanour as an indicator of credibility is questionable. It is the current teaching of the Judicial College during courses on “judge-craft” to the judiciary across all jurisdictions, including newly appointed Deputy High Court Judges, that judges should be very circumspect about the value of demeanour in assessing credibility.

 

 

7.This principle is emphasised in the case which I brought the parties’ attention to which is Sri Lanka v. the Secretary of State for the Home Department [2018] England and Wales Court of Appeal Civ 1391 and in particular paragraphs 33 onwards. I set this out on full to inform how the current approach to demeanour is developed by Leggatt LJ:

 

 

 

Demeanour

 

  1. The term “demeanour” is used as a legal shorthand to refer to the appearance and behaviour of a witness in giving oral evidence as opposed to the content of the evidence. The concept is, in the words of Lord Shaw in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36, that:

 

 

 

“witnesses … may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.”

 

  1. The opportunity of a trial judge or other finder of fact to observe the demeanour of witnesses when they testify and to take this into account in assessing the credibility of their testimony used to be regarded as a peculiar advantage over an appellate court which insulated findings of fact based on such observation from challenge on appeal. This approach was encapsulated by Lord Sumner in Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1947] AC 37, 47, when he said that:

 

 

 

“… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”

 

  1. Nowadays the reluctance of an appellate court to interfere with findings of fact made after a trial or similar hearing is generally justified on other grounds: in particular, the greater opportunity afforded to the first instance court or tribunal to absorb the detail and nuances of the evidence, considerations of cost and the efficient use of judicial resources and the expectation of the parties that, as Lewison LJ put it in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, para 114(ii):

 

 

 

“The trial is not a dress rehearsal. It is the first and last night of the show.”

 

  1. Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges “in a permanent position of disadvantage as against the trial judge”. That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth. The reasons for this were explained by MacKenna J in words which Lord Devlin later adopted in their entirety and Lord Bingham quoted with approval:

 

 

 

“I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.”

 

 

“Discretion” (1973) 9 Irish Jurist (New Series) 1, 10, quoted in Devlin, The Judge (1979) p63 and Bingham, “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging p9).

 

  1. The reasons for distrusting reliance on demeanour are magnified where the witness is of a different nationality from the judge and is either speaking English as a foreign language or is giving evidence through an interpreter. Scrutton LJ once said that he had “never yet seen a witness giving evidence through an interpreter as to whom I could decide whether he was telling the truth or not”: see Compania Naviera Martiartu v Royal Exchange Assurance Corp (1922) 13 Ll L Rep 83, 97. In his seminal essay on “The Judge as Juror” Lord Bingham observed:

 

 

 

“If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in deceit or the reaction of an honest man to an insult? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear the truth of what he has said on the lives of his children, what (if any) significance should be attached to that? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not? I can only ask these questions. I cannot answer them. And if the answer is given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.” (emphasis added)

 

 

See Bingham, “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging at p11).

 

  1. Ms Jegarajah emphasised that immigration judges acquire considerable experience of observing persons of different nationalities and ethnicities giving oral evidence and suggested that this makes those judges expert in evaluating the credibility of testimony given by such persons based on their demeanour. I have no doubt that immigration judges do learn much in the course of their work about different cultural attitudes and customs and that such knowledge can help to inform their decision-making in beneficial ways. But it would hubristic for any judge to suppose that because he or she has, for example, seen a number of individuals of Tamil origin giving oral evidence this gives him or her a privileged insight into whether a particular witness of that ethnicity is telling the truth. That would be to assume that there are typical characteristics shared by members of an ethnic group (or by human beings generally) which can be relied on to differentiate a person who is lying from someone who is telling what they believe to be the truth. I know of no evidence to suggest that any such characteristics exist or that demeanour provides any reliable indication of how likely it is that a witness is giving honest testimony.

 

  1. To the contrary, empirical studies confirm that the distinguished judges from whom I have quoted were right to distrust inferences based on demeanour. The consistent findings of psychological research have been summarised in an American law journal as follows:

 

 

 

“Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments.”

 

 

OG Wellborn, “Demeanor” (1991) 76 Cornell LR 1075. See further Law Commission Report No 245 (1997) “Evidence in Criminal Proceedings”, paras 3.9–3.12. While the studies mentioned involved ordinary people, there is no reason to suppose that judges have any extraordinary power of perception which other people lack in this respect.

 

  1. This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, “Detecting Lies Using Demeanor, Bias and Context” (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories.

 

41 No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.

 

  1. This was the approach which the FTT judge adopted in the present case. It appears that the FTT judge did in fact recall when writing the determination the manner in which the appellant gave evidence at the hearing, as he commented (at para 59):

 

 

 

“When [the appellant] gave evidence before me, some of his answers were inconsistent and variable but there was no suggestion that he could not remember things.”

 

 

This suggests that the way in which the appellant answered questions did not create a favourable impression. Quite rightly, however, the FTT judge did not attach weight to that impression in assessing the credibility of the appellant’s account. Instead, he focussed on whether the facts alleged by the appellant were plausible, consistent with objectively verifiable information and consistent with what the appellant had said on other occasions (in particular, at his asylum interview and in recounting his history to the medical experts). Applying those standards, the FTT judge found numerous significant inconsistencies and improbable features in the appellant’s account which he set out in detail in the determination. As the FTT judge explained, it was “the cumulative effect of the implausible and inconsistent evidence” given by the appellant which led him to conclude that the core of the appellant’s account was not credible.

 

  1. Accordingly, even if the appellant had through his demeanour when answering questions given the FTT judge the impression that he looked and sounded believable, the suggestion that the FTT judge should have given significant weight to that impression, let alone that he could properly have treated it as compensating for the many inconsistencies and improbabilities in the content of the appellant’s account, cannot be accepted.

 

 

  1. Applying the approach of the Court of Appeal, I am compelled to make it clear to the parties that I am and will be very circumspect about the reliability of demeanour of any witness in these proceedings, including the father’s sister. It follows that if the court takes that approach to demeanour, so should the father in his assessment of the credibility of the sister.

 

 

Very useful summary for anyone in a case where these issues arise.  Or for practitioners generally.  Many of us like to think that we are brilliant at gauging whether someone is lying, but the reality is that we’re nowhere near as good as we think and the best of us are slightly better than chance.  It is the content and the correlation of the content with the other evidence that lets us decide on veracity, not whether someone makes eye contact or rubs their nose, or speaks confidently.

 

In the case in question, the Judge decided that the witness could give evidence by video link.

 

(In case you are pondering the title, Miss Demeanour was a Viz character, in the Beryl the Peril mode, who had a series of (chiefly violent) adventures with her concertina)

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Contested divorce

Posted on November 29, 2018 by suesspiciousminds

 

Contested divorce was much in the headlines this year, because of the Owens v Owens case that went up to the Supreme Court. It is still pretty rare for someone to actually contest a divorce, rather than just grumble, tear up the letters or argue about the precise wording, there are about twenty full on contested divorces each year. (I used to do divorce law for a little while – not terribly well, and I only had one person want to actually contest a divorce – until I set out what it would cost and what the prospects of success were)

I don’t write about divorce cases much (unless they are very entertaining) so this is an extraordinary contested divorce case.

To give you the flavour, Ms W (Wife) was told by Mr H (the Husband) on 8th May 2017 that he had been having an adulterous affair with her best friend for the last 25 years, though he had ended that now, and started with another woman.

Ms W filed for divorce on the grounds of adultery. Mr H disputed that (although admitted the adultery) and cross-petitioned for unreasonable behaviour.

 

 

2.This has been an extraordinary case in very many respects as I shall return to in some detail later. The two most obviously unusual features should, however, be set out at the start. First, that this has been a three-day contested divorce trial. I understand that there are only about twenty contested divorce trials a year in this whole country. Secondly, that the respondent in these proceedings, Mr H, has contested the divorce which Ms W has brought because of his adultery despite admitting to having committed adultery for some twenty-two years of their marriage.

 

 

There was a contested hearing over the course of 3 days. Mr H required all of the witnesses to attend and they all gave oral evidence. That included his sister-in-law, his daughter-in-law, three sons of his former mistress, his former mistress, his daughter, the husband and wife themselves, and a man who bought a car from the husband in 2013….

 

In case you think this isn’t yet weird enough, the original trial was adjourned.

 

 

 

 

12.Pursuant to those directions, the trial was meant to take place on 5 to 7 September but Mr H did not attend on the first day as he was in hospital. He contacted Ms Y who told the court staff that he had told her that he was attacked during the night. The information was that he had been stabbed. I have now seen the police records for that night and they are also extraordinary. Mr H has reported that he got up at 3 a.m. on what was listed as the first day of this trial and drove to his yard (which I understand is in an isolated location) where he was attacked by a man or men. Some two to two-and-a-half hours later he rang for an ambulance and was taken to hospital. He has not cooperated subsequently with the police investigation. The court had to adjourn the hearing until 1 November as Mr H was not here and he was self-representing and had been so since 24 July 2018.

 

The Husband was directed to file medical evidence about this incident and instead filed

 

a poorly written letter from a consultant neurologist whom he was seeing privately. The letter did not say Mr H was unable to come to court. It did not say he was unable to conduct these proceedings. Mr H told me he had been suffering from headaches, blurred vision, loss of memory and had the feeling of little explosions in his head since the alleged incident on 5 September. He told me he believed he had post-concussion syndrome. He told me he believed he had been attacked because of the weight of evidence he had recently delivered to his wife’s solicitors in order to prevent him from attending this hearing.

 

The Judge was not, it is fair to say, convinced by the Husband’s account, which does seem to the impartial observer to share a certain quality with Swiss Cheese.

 

 

 

 

17.I refused the adjournment and gave, as I have said, a judgment about it. There was no medical evidence, just the inadequate letter from the doctor who did not attend court although should have done. Mr H admitted to me he was still driving and had been shooting which I considered incompatible with the symptoms he was telling me about which included blurred vision. I was not satisfied that Mr H had been attacked as he said. I do not know. I do not know if he was attacked at all or whether he arranged an attack. I thought the idea he put forward that his wife had in some way sought to have him attacked was ridiculous, not a line the police were pursuing and, in any event, was counter to Ms W’s interests. The so-called evidence which Mr H referred to is not admissible in any event, as Ms W’s legal team would have been well aware of.

 

 

To cite Alexander Pope, “A little learning is a dangerous thing; Drink deep, or taste not the Pierian spring’

The Husband’s difficulties seem to have largely arisen because he became aware of the provisions of section 1 (2) (b) of the Matrimonial Causes Act 1973

 

 

 

“Where in any proceedings for divorce the [respondent] alleges that the [petitioner] has behaved in such a way that the [respondent] cannot reasonably be expected to live with [her], but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the [respondent] and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of section 1(2)(b) above whether the [respondent] cannot reasonably be expected to live with the [petitioner] if the length of that period or of those periods together was six months or less.”

And having admitted twenty five years of adultery, decided to run the argument that the Wife had known about it and put up with it for more than 6 months, so could not rely on it now.

Which is correct, if you can prove that she knew, but it seems a very pointless argument to have.

 

105.Two things in particular puzzled me when I read the papers in this case. Why was Mr H contesting the divorce proceedings when he agreed that the marriage was over and accepted that he had been sleeping with his wife’s best friend for something over twenty-two years? Even if Mr H considered that he had a technical defence to her petition, why would he be so determined that the divorce had to be on his terms? Secondly, why did Mr H, and indeed Ms Y, blame Ms W for the destruction of their family lives and attribute this to what they term Ms W’s lie rather than to their affair and all the deception of so many people that such an affair involves? I am still unclear as to the explanations.

 

84.His statement is dated 28 March 2018. His statement is lengthy, and most is irrelevant. He has taken diaries prepared over the years Ms W and used them to give detail to his statement and that of Ms Y and to give some semblance of authenticity by giving dates. I will only deal with matters which relate to the issues before me. Mr H says he had no intention to perjure himself in his acknowledgement of service form when he denied committing adultery, and says:

 

“I am accused of having another adulterous relationship which again is not true. In my answer I then elaborated that although I had been in an adulterous relationship, which V knew about, crucially that relationship had ended after her knowledge of it. As I understand it, as we had been living together for a full six months after knowledge, she cannot rely on the past adultery as a basis for the divorce.”

 

I won’t get into all of the evidence given (it is well worth reading, because every paragraph of this judgment contains a gem), but here’s some judicial remarks on Husband’s evidence

 

 

 

98.Mr McCourt cross-examined Mr H at length but also kept to the most relevant parts of his excessively lengthy statement. Mr H emerged from the cross-examination, and indeed from his own cross-examination of Ms W’s witnesses, as a deeply dishonest man. I do not believe him about any of the matters in issue in this case. His attitudes displayed in these proceedings are those which were common forty years ago, not today. He has a minimal respect for women who are there to please him and to do his bidding. In his view of the world, marriage does not entitle a woman to anything other than what her husband chooses to give her.

 

 

 

99.He is clearly proud of his excessive drinking and thought everyone occasionally gets so drunk they have no memory of what has happened. He told me that he had not told the police responsible for fire arms and shotguns about his diagnosis of post-concussion syndrome. He told me his current certificates were under review and that he had no guns in his possession, though he had access to them. He told me he was still shooting. He told me that when applying for his certificates he had lied when answering the questions about being in a happy marriage and about how much he drank, he told me everyone did that. I do not think so. I shall be writing to Essex Police about his certificates as he admitted to committing offences under section 26 and/or 29 of the Firearms Act 1968.

101.In answer to questions from Mr McCourt, he denied he had spoken to Ms W, as alleged by her, on 8 May and could not explain the coincidence of it being that very day that Ms Y insisted all her boys came to her home so that Mr H could speak to them. He blamed his solicitor for the lie in his acknowledgment of service form. He told me all the witnesses I had heard had lied except for him.

102.He described himself as a man of integrity and truth. He told me that Ms W had lied when calling Ms Y her best friend and said that was only the case until about 2005 or 2006. He said that in this case it was Ms W who was the big liar and she wanted to destroy Ms Y’s life. He described the business as his business, not the family business, and agreed that he had increased Ms Y and Ms N’s pay exponentially after the separation. He accepted that Ms W had said to KH that she had suspicions about Mr H and Ms Y in 2010 but could not explain why she would have said that if she had caught them red-handed in 1998 and 2007. He confirmed he did not tell Ms W when he was having sex with Ms Y, so I conclude that she would not know of any specific occasion.

 

(I note in passing that Mr H had apparently acquired an STI from Ms Y and had subsequently passed it on to his wife. Just to remind you all, this man was trying to divorce his wife for her unreasonable behaviour towards him…)

 

Can’t skip over one of the four allegations in his divorce petition, which was that Ms W had ridiculed the bird-feeders he had put up for his mother-in-law, who had been unwell.   (which he, a man who had been having a 25 year affair with his wife’s best friend, described as ‘the final straw’)

 

97.He said the final straw in his relationship with Ms W was when she started to ridicule bird feeders he had put up to please her mother who was very unwell.

 

Well, that certainly changes everything.

I was mildly unsympathetic towards this man, but now I learn of the wife mocking bird feeders, and the boot is clearly on the other foot.

 

134.She did not, I find, belittle his belated efforts to provide his mother-in-law with comfort by putting up bird feeders

 

Oops.

On the mistress’ evidence

114.Sadly, when Ms Y started her oral evidence, she did so by lying. I had told Mr H on Friday afternoon that as he was part-way through his evidence, he could not talk to anyone about the case over the weekend. Mr McCourt was rightly concerned to make sure that that guidance had been followed. Mr H told the court this morning from the witness box that he had seen Ms Y three times over the weekend. She had driven him home from court on Friday and he had seen her twice on Sunday but said that nothing significant had been said about the case.

 

 

 

115.Mr McCourt started his cross-examination of Ms Y by asking her if she had seen Mr H over the weekend which he specified as being from Friday afternoon until Monday morning, and she said, “Once, briefly, on Sunday”. I assume that Mr H was being accurate about the three meetings on the weekend which it appears had been observed. I therefore must conclude that Ms Y started her oral evidence by lying to the court having just taken the oath.

 

(It is hard to beat the impression that you make as a witness by lying the moment you finish taking the oath…)

 

116.I conclude also that Ms Y would say whatever she thinks would assist Mr H in this case. It is obvious to me that Ms Y does, and to a certain extent thinks, what Mr H wants her to. I found it most surprising that she thinks it is a fact that Ms W knew about her affair with Mr H in 2007 because Mr H told her he had told her. She said she had no reason to doubt him. She seemed to think that because there were rumours about her and Mr H in their community, that meant everyone knew. She struck me as a naive woman who has made some very odd choices.

 

 

 

117.She told me each of her sons had lied in their evidence, but I am not sure what she thinks they have lied about. She told me how upset E had been before and after giving evidence and that he had suggested to her that he had not been truthful in court. However, she does not seem to be able to grasp that the unfortunate young man may be trying to salvage his important family relationships even now. She seems to be unaware that none of this case was necessary, that her children need not have been put through any of this if Mr H and she had taken a reasonable stance. I reject her evidence. She is not an honest witness nor an honest person, having clearly acted in a deceptive way for twenty-two years to those close to her and lied in her sworn evidence today. I am still puzzled as to why she thinks she is the injured party in all this.

 

118.I find there is overwhelming evidence to satisfy me that Mr H was committing adultery with Ms Y for over twenty years, but that Ms W did not know this was taking place until Mr H told her this on 8 May 2017. There were occasions when Ms W had suspicions, but these were always allayed by Mr H or by others who did not believe that Ms Y would behave in such a way. Mr H said on 11 June 2007, when Ms W asked him if he was having an affair with Ms Y, that he denied it to her.

 

All of the allegations of unreasonable behaviour by the Husband were found to be untrue (I mean, if you don’t get home on the bird-feeder allegation, everything else pales by comparison), his petition thrown out, and the Wife’s granted on the basis of adultery. The Husband was also ordered to pay all of his Wife’s costs – on an indemnity basis (which means that on any particular expense where there is any doubt, the Wife gets the benefit of any doubt)

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B68.html

VW v BH (Contested Divorce Proceedings) [2018] EWFC B68 (05 November 2018)

 

 

 

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When is immediate not immediate?

Posted on November 14, 2018 by suesspiciousminds

 

Removal of a child subject to a Care Order from a parent – if you are a parent, or parent’s lawyer this case gives information and advice about how you might stop that, and if you are a social worker or Local Authority lawyer this case tells you that it is FAR LESS simple than you might imagine, and you’d better be ready to show your working.

 

The High Court in 2014 in Re DE 2014 told everyone that their previous thinking that under a Care Order a Local Authority had the power and authority to remove a child if they wished and the remedy of the parents would be to apply to discharge the Care Order if they disagreed was WRONG.

 

A Care Order gives the Local Authority the legal POWER to remove a child without a further Court hearing. The case law says rather differently though – that just because you have that POWER doesn’t mean you are free to exercise it as you see fit. There are hoops to jump through.

https://suesspiciousminds.com/2014/06/04/an-answer-to-an-important-question-you-didnt-know-you-had/

 

And that effectively, unless a situation arose that was the equivalent of a situation that would allow a Court to make an Interim Care Order (the child’s safety requires IMMEDIATE SEPARATION) then there was instead a long and careful process to go through before the Local Authority could trigger a removal under a Care Order.

 

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

 

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

 

The Court of Appeal have just considered, for the first time, a scenario post Re DE 2014 where a Local Authority removed under a Care Order, saying that it was an emergency, a situation akin to an ICO triggering event.

The parents disputed this, and an application to discharge the Care Order (and somewhat oddly an inherent jurisdiction application) was lodged. The Court at first instance decided that the LA were entitled to remove in the interim and arguments and decisions about whether that would be permanent would have to wait for the final hearing of the application to discharge

The parents appealed

Re K (A child) 2018

https://www.bailii.org/ew/cases/EWCA/Civ/2018/2512.html

 

I think there are three points of interest in this case

 

  • The emergency/non-emergency point, and how hard the LA has to work to show their full consideration of interim removal under a Care Order
  • Whether the inherent jurisdiction is the right route (hint, no)
  • And finally, the position where a Local Authority had, and declined, the opportunity to cross-examine father about allegations against him and a Judge went on to in effect make findings against the father.

 

 

I’ll deal with those in reverse order.

 

 

 

Failure to cross-examine father

 

44.The judge made findings against the mother to the effect that she was in breach of the written agreement. In particular, the judge accepted (as he was entitled to do) the evidence of PC Tonse, that the mother had told her she had been the victim of two previous assaults at the hands of the father. That she had said this was denied by the mother, who gave evidence and was cross-examined.

 

 

45.At the hearing, counsel (Mr Richardson for the father) offered to call the father in order for him to be cross-examined about the events of 30 December and, no doubt, in relation to the two earlier alleged incidents. No party required him to be called.

 

 

46.Having heard and seen both the mother and PC Tonse give oral evidence, in my judgement, the judge was undoubtedly entitled to conclude that the mother was not being honest and to accept the police officer’s account of what the mother had said to her in the flat in the early hours of the morning. The judge, however, went on (without having heard evidence from the father) to conclude at paragraph 13:

 

 

 

“So we have three assaults in three weeks. [The mother] is, unfortunately for her, telling the truth when she said that the police officer and therefore 30 December is not an isolated incident in the relationship between her and [the father]… So there was that; there was direct contact on at least, to my mind, three known occasions during which [the mother] was assaulted.”

47.And At 23:

 

 

 

“I have already found that there has been at least three incidents when he has assaulted her. There may have been, and I do not know, other occasions when he has come to the property.”

 

The Court of Appeal decided

 

 

 

71.The judge necessarily had to make findings as to what occurred on the night of 30 December. He found that the mother had seen and been assaulted by the father on three separate occasions. It follows from that finding, that the mother had not told either the police or the local authority about the two earlier occasions of violence. The judge further found that the mother’s written and oral evidence to the court was untrue and the product of her realisation of the consequences of her account of the events given by her that evening to the police.

 

 

72.In order for the judge to reach these damning findings of fact, he was required to consider all the available evidence. In my judgment, a serious error was made by the local authority in failing to cross-examine the father. It is not enough, metaphorically, to shrug the shoulders and say: “He would say that wouldn’t he?” of the father’s statement in support of the mother’s account. The father’s evidence was directly relevant. More serious still is that the judge made specific findings of assault against the father, a man who was both a party and a witness, without hearing his evidence, in circumstances when he was available and willing to give evidence and to be cross-examined. In my judgment, this was clearly unfair and a serious procedural irregularity.

 

 

73.Almost by a side wind, there is now a finding of fact that this father assaulted the mother on three separate occasions, all within a matter of weeks of each other, when a non-molestation injunction was in place, and at a time when his wife was being given (on the local authority’s case) one last chance to bring up their child. It is rightly difficult for a party to go behind a finding of fact made against them by a judge after a trial where a party has been represented. But as a consequence of the findings, all future assessments of this father, and any decisions made in respect of either K (and indeed any child this father may have in the future) will have these serious findings as their starting point. Mr Richardson submitted that, in some way, the findings carried less weight because this was an interim hearing and could be, therefore, reviewed at a final hearing; I am afraid I cannot accept that to be the case.

 

 

74.Having read and reread the judgment, it is abundantly clear that this judge was making positive findings that this father had assaulted the mother on three separate occasions, and indeed all the evidence available makes it absolutely clear that, from 7 March onwards, the local authority has proceeded on precisely that basis. These findings were made, without the father having an opportunity to give evidence in circumstances where he was present in court and willing to go into the witness box and expose himself to cross examination.

 

 

(Being old-school, I always operate on the basis that if you are offered the opportunity to cross-examine a witness and decline to do so, you are accepting the account they give. You can’t call someone a liar in submissions if you didn’t have the decency to call them a liar to their face and give them the opportunity to deny it)

 

The inherent jurisdiction

 

33.As already recorded, K was the subject of the full care order. In those circumstances, the court was bound by the jurisdictional principles which relate to care orders and care planning. That means that the inherent jurisdiction cannot be used as a means of diluting, or circumnavigating, a local authority’s right to exercise parental responsibility following the making of a care order under section 33 and subject to section 34(4) of the Children Act 1989.

 

 

34.That this is the case could not have been stated more clearly than was done by Lord Nicholls of Birkenhead in Re: S (Minors) Care Order Implementation of Care Planning; Re: W (Minors) Care Order Adequacy of Care Planning [2002] UKHL 10; [2002] 2 AC 291; [2002] 1 FLR 815 at 23:

 

 

 

“While a care order is in force the court’s powers, under its inherent jurisdiction, are expressly excluded: section 100(2)(c) and (d). Further, the court may not make a contact order, a prohibited steps order or a specific issue order: section 9(1).”

35.Also, more recently in Re: W (Care Proceedings Functions of Court and Local Authority) [2013] EWCA Civ 1237; [2014] 2 FLR 431 Ryder LJ said:

 

 

 

“71. It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued.”

36.Whilst the court has jurisdiction under its inherent jurisdiction to prevent the removal of a child (subject to a care order), the House of Lords made it clear in Re: S that an injunction under the Human Rights Act 1998 (HRA 998) can be utilised in order to achieve a similar outcome.

 

(I think there’s a missing ‘no’ between has and jurisdiction in para 36….)

 

37.From paragraph 22 onwards of Re: DE, Baker J traced the jurisdictional route to an application for an injunction under HRA 1998. Baker J noted that other potential remedies (for example, judicial review) do not ordinarily provide adequate protection for a family when a local authority is planning to remove a child, and that, as a consequence, the appropriate route will be for an application to be made under section 7 of the HRA1998.

 

 

Now, the emergency issue

 

When the Judge made a Care Order, placing K at home with the mother, the Judge said this

 

9.The judge concluded at 73:

 

 

 

“For all those reasons, I consider that the welfare of [K] demands that, if at all possible, he stay in the care of his mother and the wider family. If at all possible, it requires his parents to stay away from alcohol and it requires his parents to stay away from each other. That is not an easy thing to ask of anyone. 74. You have gone a long way down that road. It has been said that your motivation is caused by compulsion. This is arguable but I know many psychiatrists who would say that it does not matter what causes the motivation, motivation is important and the important thing is that it sticks. I am going to be making a Care Order subject to many conditions, subject to written agreements, subject to court orders and subject to you being honest not only with yourselves but with each other, with [K], with [H] and with the local authority. I believe you can do it but if you do not there is only one place where this matter will go and you will have both lost your son.”

 

This raising three issues of significance – being abstinent from alcohol, the parents staying away from each other, and the mother being honest with professionals.

 

 

What happened was that the child, K, became unwell and was admitted to hospital. The father became aware of it and went to mother’s home at about 2.00am on 30th December. There was an allegation of an altercation and a claim that father assaulted mother, knocking her unconscious. The police attended and took a statement. The mother told the officer that she had consumed three beers.

 

 

20.During the course of all this, and whilst still at the mother’s house (according to PC Tonse’s notes), the mother told her that the father had assaulted her 2 weeks previously and then again a week later, on which occasion he had punched her nose causing it to bleed. These two instances had not been reported to the police. The mother, as recorded by PC Tonse, had said “that she would not have called for the police tonight had it not been for her son, who she felt was at risk due to the father’s aggressive behaviour.” The officer’s focus, not unreasonably given the view of the paramedics, was on the assault. The mother’s focus, also not unreasonably, was on her baby. Eventually, it was agreed that the mother and K would go by ambulance to hospital.

 

 

21.When K was examined in hospital he was diagnosed as suffering from meningitis. He was admitted and remained in hospital for 10 days. The mother stayed with him day and night for the whole period of his stay in hospital.

 

 

22.A note of the doctor is recorded in the judge’s judgment:

 

 

 

“Talked to mother. Had two beers last night. First time for a long time. Father came to her house as worried about son. Mother said she asked him to leave but he hit her and she called the police.”

23.On 2 January 2018, the local authority was informed (by what means is unclear) that the mother and K were in hospital. The mother that same day was handed a letter entitled “Notice of intention to remove [K] from your care on or after 5 January 2018”. The letter referred to District Judge Alderson’s judgment (referred to above) and the written agreement, before going on to say:

 

 

 

“Due to the significant risk posed to [K] by you not being abstinent from alcohol and from other domestic violence perpetrated on you by [the father] and any contact between [the father] and you, in relation to your failure to inform the Local Authority or the police of at least two occasions in December 2017 when you subsequently alleged to the police on 30th December 2017 that you had been subjected to domestic violence from [the father], the Local Authority has determined that it is necessary to remove [K] from your care to foster care and that there is no other means of safeguarding him.”

24.According to a statement, filed upon the direction of this court on 7 June 2018, the local authority say that they first became aware that K had been admitted to the Whittington Hospital on 2 January. At about 13.30 that day, the mother was spoken to by the duty social worker, and was told at the hospital that same afternoon that K would be taken into foster care upon his discharge.

 

Without labouring the point, the triggering incident happened on 30th December (the day before New Years Eve) and the Local Authority found out about it on 2nd January, the next working day, and issued notice that they would be taking K into foster care when he was medically fit for discharge from hospital.

The LA took the view that they had learned of the mother drinking alcohol, of father coming to the home and assaulting mother perhaps on three occasions, and of a lack of honesty in mother telling them about the earlier incidents, and given what had been said by the Judge, considered that this was an immediate safety risk (if the child were to go back to mum after discharge from hospital)

 

The parents argued otherwise.

 

40.The local authority and the child’s guardian each submit that the appeal should be dismissed. The local authority submits that the issue at the hearing was to decide whether K’s welfare demanded “immediate separation”. They submit that, given their view that instant removal was required, the guidelines contained in Re: DE had not been engaged. For example, whilst they submitted that the 10 days’ notice period provided for in the written agreement had not been complied with, that was acceptable given that the local authority considered the case to be an emergency.

 

At the hearing to consider whether the child should be returned to mother in the interim (in effect whether the LA were wrong to have removed in the interim)

 

48.The judge concluded that K was at serious and immediate risk of harm as, he said, nothing could be put in place which would protect him from his father’s behaviour. At the request of counsel for the father, the judge went on, in the briefest of terms, to consider the welfare checklist. In relation to any change in circumstances, the judge noted that this was “a big change in the circumstances for [K]” but that it was a “proportionate approach”.

 

 

49.With respect to the judge, in my judgment, such a bland recording, insufficiently reflected the reality of what was happening to K. K had never been apart from his mother. All those involved throughout his life to date accepted unreservedly that the mother’s care of K was excellent, as was their attachment. At no stage had the local authority sought to limit the mother’s care of K whilst he was in hospital, which was at all times wholly unsupervised. Nowhere, in either the judgment or the local authority material, have I seen any indication of anyone considering the effect on this baby of removal from the care of his mother. K had been dangerously ill and was only starting to convalesce and to recover; then was discharged, not home to his mother and all his familiar surroundings, but to a strange place with only strangers around him. I say this to highlight why the protocol set out in Re: DE exists and should be applied in all cases.

 

 

50.In giving permission in this case, I directed the local authority to provide a statement setting out the manner in which they complied with the Re: DE protocol and, in particular, to provide full details of the involvement of the applicant in the decision-making process, and the details of the process by which the local authority – to use the words of Baker J in Re: DE – “rigorously analysed all the realistic options; considering the arguments for and against each option” prior to removing K from care of his mother. The local authority was further directed to exhibit all minutes and written recordings in relation to the decision not to return K upon his discharge from hospital, including the written records required under the Re: DE protocol.

 

 

51.The statement supplied by the local authority in response to that direction makes no mention of the case of Re: DE at all. It does not exhibit any minutes or written recordings in relation to its decision to remove; it does not explain how the mother was consulted, save to detail (by way of chronology) how the previously made decision was conveyed to her at hospital by the duty social worker.

 

 

52.Mr Parker, who has only recently been instructed on behalf of the local authority, acknowledged this to be the case and apologised to the court. The local authority could offer no explanation for the failure to follow the Re DE protocol other than to say that the local authority regarded the case as an emergency. Further, the local authority suggests that in granting permission to appeal and referencing “what is likely to be permanent removal” in respect of K, demonstrated an incorrect approach and incorrect analysis of the judgment on my part. The hearing was, they submitted, focused solely on K’s safety which required immediate removal, and the long-term plan was a matter for the application to discharge the care order. The local authority submit that it would have been premature for them to have engaged in any sort of Re: BS analysis as required by Re: DE, or indeed to “rigorously consider other options”. That, they say, could be done later.

 

 

53.I do not accept that to be the case. I would have found such a submission more convincing if it had not been patently clear from the papers that, from as early as 2nd January, the local authority had no intention of rehabilitating K to his mother once he had been removed.

 

 

54.The position as recorded on the order and confirmed orally to the judge at the hearing was that, far from consideration being given to K returning to the care of his mother, the local authority was forthwith considering placing him with a family member in Australia. This was confirmed only two weeks later in the care plan dated 21 March 2018. In addition, it is absolutely clear, by reference to the fact that the decision to remove K from his mother’s care was made the very day the local authority was informed of the crisis, that no consideration was given as to whether anything could be done to salvage the situation rather than the knee-jerk reaction of immediate removal.

 

 

55.During the course of the trial, those representing the mother sought to call and adduce evidence in respect of the quality of her care of K on a day-to-day basis, and particularly in relation to her exemplary care of him whilst he was in hospital.

 

 

56.The judge declined to hear any evidence to this effect. The judge said he was working on the assumption that the mother was able, in principle, to “look after the child”. It is because, he said:

 

 

 

“She allegedly had failed to keep to the written agreement and that she has put the child at risk. That is the issue. It is simple as that. It is a very easy, very short and very small issue.”

57.I do not agree.

 

 

The thrust is this – even if the LA assert that the circumstances are such that it is an emergency interim care order style scenario, they need to be able to evidence their decision-making process as to why this is the case, what steps they considered to manage the risk in another way, what efforts they made to communicate with the parents and if not, why not. They had to avoid a knee-jerk decision, and they had to avoid making a final decision that having removed in the interim, that was that.   (It was rather brave to claim that they hadn’t made any final decisions when it was said at the initial hearing that their plan was to consider placing the child with relatives in Australia…)

 

 

 

63.In my judgment, the absence of the availability of the guidance in Re: DE resulted in the judge having too narrow a focus and led to him failing properly to consider the wider issues. I note from Mr Richardson’s position statement at first instance that, without referring to Re: DE specifically, he urged the court to consider all possible options, an invitation declined by the court.

 

 

64.I am conscious of the submission made by both the local authority and the guardian that the court will approach “slow burn” or “gradual deterioration” cases somewhat differently from crisis cases. That is undoubtedly right. But that does not mean, where a child has been living successfully at home under a care order, that following a crisis that child can be unilaterally removed by the local authority without any of the protective processes enumerated in Re: DE having been carried out.

 

 

65.In the case of a true emergency, once the child in question has been removed there should, thereafter, be a rapid and thorough implementation of the applicable parts of the Re: DE protocol without having to wait for an application to discharge the care order being made. This is with a view to seeing whether the child can be returned home with different or further support or supervision pending a final hearing. It remains of considerable concern to me that, notwithstanding my order, no evidence has been produced in relation to the decision-making process in this case. I can, therefore, only conclude that the decision was made rapidly and has not been reconsidered since.

 

 

66.One of the things that went wrong in the present case was the delay in the matter coming to court – some 7 weeks. In my judgment, applications such as the present, properly brought under the HRA 1998, should be brought before the court with the same speed and urgency as an initial application for an interim care order where removal of a child is sought. Each application involves the proposed removal of a child from his or her home and (it is accepted by the local authority) the test for immediate removal is the same in both cases, namely: “does the child’s safety demand immediate separation?”

 

 

67.All attempts should be made to adhere to this, although I fear this may be a counsel of perfection given that a parent’s only route to court (once a full care order is made) is via an application to discharge that care order, coupled with an application under the HRA1998. Unlike care proceedings, there is no automatic right to legal aid in discharge proceedings and inevitably there is, therefore, a delay as the application for legal aid for the parents is processed. It is to the immense credit of the mother’s solicitor that he managed to obtain legal aid for her application at the speed he did.

 

 

68.Further, when making a removal order in respect of a very young child and where it is inevitable that the final hearing will not take place for several months, the court must balance the effect of long-term removal of the child from its parents with the risk of short-term harm if he or she remains with him: Re: M (Interim care order removal) [2016] 1 FLR 1043.

 

The appeal was granted and the case sent for re-hearing. That does, of course mean that K has been separated from his mother since 2nd January and a decision still has not actually been reached about interim removal.

 

(I think… I couldn’t find any reference in the judgment to the child having been returned, just that the application for discharge is still proceeding and that there’s a directions hearing coming up about it.  It does seem that if you’ve appealed the judicial endorsement of interim removal successfully, the child ought to be at home whilst that discharge hearing takes place, but I can’t see from the judgment whether that’s what actually happened)

 

 

 

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