All is not well with child protection in North Wales

Posted on January 23, 2018 by suesspiciousminds

That’s an intriguing hook for a judgment. It comes from a decision of His Honour Judge Jones, sitting in Prestatyn. (For the benefit of David B – not precedent, not binding )

There are two judgments. The first

Re E (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B101.html

discusses a scenario in which a Local Authority sought, and obtained, an Emergency Protection Order on the basis of a medical report that said that a baby had a rib fracture (and a bruise to the face – it being accepted by father that he caused the bruise). The child was removed into care (luckily placed with grandparents) and 13 weeks later a second opinion concluded that the rib fracture was the result of a birth trauma. The child was returned to the parents and the proceedings withdrawn. The judgment explores what went wrong and why the first medical report had not said that birth trauma was a possibility.

The second (annoyingly named) case

Is Re E (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B100.html

in which, because of the complaints made against third parties in the first judgment, those third parties were represented to make their own representations as to whether those complaints were fair.

So,let’s go to the first judgment and look at the full quotation from the headline

 

 

53. All is not well with child protection in North Wales. I believe there have been significant deficiencies in the joint agency working this case. Where the responsibility for each and every omission lies is a moot point, but there are systemic improvements which are required as a matter of urgency. A copy of this judgment should be made available at public expense to the parties (including the Guardian in this case) and the Local Authority should distribute the same to the local Safeguarding Board, to the appropriate agencies who have responded to potential criticism, and if necessary to the Welsh Government in Cardiff.

54. Practice requires improvement to try and avoid any repetition of the circumstances which led to the removal of E from parental care, with the understandable anguish this caused to his parents (for which I have apologised already) and I repeat the apology publicly at the conclusion of this judgment.

 

I would like to pause now, and just consider for a moment what you take “all is not well with child protection in North Wales” to mean. I know that I had a fairly immediate reaction to the sense of the scale of the problem that the Judge saying that was seeking to convey.

We’ll skip now to the second judgment, where this particular phrase was pecked at by lawyers and the Judge clarified it. The “Third Intervenor” is the hospital where the original doctors were based.

 

59. Accordingly, the first sentence of paragraph 53 is not an exclusive reference to the Third Intervenor. ‘All is not well with child protection in North Wales’ means no more than that. E’s case demonstrated that things could be better. Were it otherwise, no improvements would be required at all. ‘All is not well’ does not mean that ‘everything is bad’. It is not intended to lead to an unnecessary lack of public confidence, and I do not believe that any careful and intelligent member of the public would ascribe to this sentence such a meaning. I have no idea whether anyone will pay any attention whatsoever to the judgments delivered, despite my request in paragraph 53. However, I do not propose to withdraw that first sentence which, at the time it was delivered, was no more than an accurate and measured indication of my honest conclusion at the time.

 

 

My reading of the clarification is something more akin to “There has been a significant problem in this case which needs careful attention to be sure as to whether there is a systemic problem” whereas my original reading of “all is not well with child protection in North Wales” is much more serious.

If I was attributing a scale whereby 0 was perfection and 10 was utterly meltdown disaster, I would say that the “all is not well with child protection in North Wales” would be a 7 or 8, and the clarification would suggest it was more a 4 or 5. So I would, have ascribed to the original remark that the Judge had a lack of confidence in the system’s ability to act properly – I like to think of myself as a careful and intelligent member of the public.

Would be interested to see where readers would place the ‘all is not well with child protection in North Wales” on that 0-10 crisis scale – and where they place the facts of the case too.

 

On my crisis scale, for example,  3 is “I’m at Jurassic Park and the air conditioning doesn’t seem to be functioning as it should”  and 9 is “I’m at Jurassic Park and a beast that is intended to be able to eat a T-Rex has got loose and wants to eat me, also that volcano that I assumed was just a photogenic backdrop is exploding”.   If you don’t know this about me, I would TOTALLY go to a real Jurassic Park, even if there was a sign above the entrance that said  “Four hours since last fatal incident to a guest”.  If you’ve got to go, I want it to be via being impaled on the horns of a Triceratops.    So, is this a glitch in the air con, a gap in a fence, a velociraptor’s claw jiggling the doorhandle from the other side of the door, or the volcano getting jiggy with it?

 

 

The triceratops totally wins this fight. Also, Hammerhead can beat up Chewbacca. And Batman is way way way cooler than Superman (c) most of my childhood

 

Back to the facts.

Dr B,a consultant paediatrician

13. Dr B, in the Child Protection Report dated 21st September 2016, identified the bruising evident upon examination, and he noted also the history. Under the heading “opinion” he indicated:

“… it is possible that the bruise was caused by the father’s over-enthusiastic manipulation of the baby’s cheeks”

as explained by the father, and as noted from an early stage by Dr B in his report.

14. I am puzzled, however, by some aspects of this report. Under its heading it is stated:

“This report does not constitute a witness statement”

and it is described as being:

“Private and confidential – not to be disclosed without the permission of the author”.

It is perfectly true that this report does not comply with the requirements of the Family Procedure Rules for the preparation of witness statements. No permission under Part 25 of the Family Procedure Rules could be given at this early stage of the child protection investigation, because proceedings had not been commenced.

15. However, local authorities inevitably use (and are usually obliged to use) the reports of investigating clinicians, when children are routinely presented at the casualty department of a local general hospital. These reports are often used as the basis of applications for protective Orders at the initial stages of proceedings, under the Children Act 1989.

16. Such a report is not in these circumstances “private nor confidential”. While it may not be a witness statement, it is certainly relied upon by the Court as evidence which may be supportive of the Local Authority’s initial application, which may include an application for a removal of a child from parental care.

17. It may be necessary to clarify this position with the Third Intervenor and its clinicians as a matter of urgency. Child protection is a difficult task but it is a critically necessary task. Medical clinicians are required to provide the relevant medical evidence so that a child may be protected and avoid harm. This may involve the use of reports provided by examining clinicians in Court proceedings. Privacy and confidentiality simply cannot be guaranteed in these circumstances. If clinicians refuse to provide medical reports in these circumstances, then it is up to the Third Intervenor to make the necessary contractual modifications to ensure that this critical medical service is afforded to vulnerable children in North Wales.

 

There was then an internal second opinion, by Dr A, a paediatric radiologist (from a different hospital). Note the passage of time between the two reports – around 3 weeks. It SEEMS that this was intended to be an internal memo from Dr A to another doctor, Dr F, but it was the document produced to the Court at the EPO hearing.

 

18. Dr A’s second opinion, dated 13th October 2016, confirmed:

(i) a radiologically normal bone density;

(ii) a fracture between two to four weeks of age at the time of the skeletal survey;

(iii) that rib fractures resulted from abnormal, excessive squeezing/compressive forces applied to the chest;

(iv) “… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.

19. Dr A was subsequently asked to clarify this last opinion. She was “unsure as to what has caused confusion” on 26th October 2016 (see E9). She continued:

“If a satisfactory account of the mechanism of injury has not been offered and there is no evidence of an underlying medical cause for the fracture (as determined by the clinicians) this fracture may have been caused by inflicted or non-accidental injury (interchangeable terms) and this must be excluded by other investigations – not just imaging”.

20. By this stage, the possibility of a birth trauma was evident and had been raised. E was four weeks and four days old at the time of the skeletal survey. Whereas E’s age must have been known to Dr A as part of the background information supplied by Dr F for the review, (it is noted specifically at the head of her report under E’s name) there was no mention of this birth related causation in the initial report dated 13th October 2016. It was this report which led to the granting of the Emergency Protection Order on 19th October 2016.

 

So those were the reports from effectively the treating medics. The Court directed for court-appointed experts to consider the case and give a second opinion. Dr M, a paediatrician and Dr C a radiologist

 

21. Dr C in the report dated 12th December 2016, has confirmed:

(i) E was a heavy baby;

(ii) shoulder dystocia (obstruction by the shoulders) occurred during E’s delivery;

(iii) compression and distortion of the infant chest by the McRoberts manoeuvre ensued.

At paragraph 15:

“Thus the radiological evidence is consistent with a fracture three to five weeks old on a date when E was nearly five weeks old. From a radiological perspective alone it is not possible to exclude an injury sustained at birth”.

22. Dr M, from paragraph 49 of his report of 19th December 2016, stated:

“… there would be little doubt that there is potential for birth to have caused E’s fracture”.

In relation to the facial bruising at paragraph 76 Dr M indicated:

“… it would have been possible for (the father) to have caused bruising to E’s face but I would not imagine that this could have been done without E experiencing pain and becoming distressed if forces sufficient to cause bruising had been involved”.

23. The father has always admitted this injury, which would of itself probably not have merited the removal of E from parental care.

 

Having received those reports, the Local Authority accepted the medical consensus which emerged which was that the rib fracture was caused during birth, and thus was not the fault of either parent, and withdrew their application.

 

The Court identified several matters arising

Matters arising

(a) Photographic evidence

28. I shall provide a summary of Dr W’s reply, on behalf of the Third Intervenor, and then I shall provide my response thereto:

(i) The reply

29. Cameras are available for doctors to take photographs of injuries as “good practice”.

My response

30. I do not know whether these cameras are available at all Third Intervenor hospitals when child protection medicals take place. I have received no confirmation of this by the Third Intervenor.

(ii) The reply

31. Photographs taken by medical practitioners should not be relied upon for evidential purposes.

My response

32. Why not? In children’s cases this evidence would be potentially admissible and it would be relevant. It might be technically preferable for the Police forensic photographer to take good quality photographs, but where this has not occurred I do not understand the basis of Dr W’s assertion, at least in children’s proceedings before the Family Court.

(iii) The reply

33. Doctors need the consent of parents/from the holder of parental responsibility to take photographs. Where this is not forthcoming the Police should have insisted and the photographs should then be taken by the Scenes of Crime Police Officer.

My response

34. There is no indication in the Police chronology that in this instance (since there was a question mark over parental consent) that the Police were alerted, nor did they take photographs as part of their Police investigation. This should, in my judgment, be a matter of routine. Photographs of suspected inflicted child injuries should be taken at the hospital, either by the hospital itself, or alternatively with the assistance of X Police Authority, and if consent is not forthcoming Police involvement is required as a routine procedure. Evidentially these photographs (with any diagrammatic and written recording) is critical for both the Criminal and the Family Courts. The failure to provide this facility potentially compromises the safety of children.

(iv) The reply

35. Body/facial diagrams of relevant injuries must also be included as standard, and routine for the Court and for expert usage.

My response

36. I have no response to make with regard to that reply.

(b) The initial medical evidence

37. I shall summarise the reply given by the Medical Director of Y Hospital [hospital identified] and my response thereto:

38. The reply

(i) The second opinion/review provided by Dr A was a letter between clinicians and not an expert report for the Court;

(ii) The letter of request for this review did not include any clinical information;

(iii) The second opinion reporting service is offered in order to ensure that injuries are not missed by less experienced radiologists. The information provided is included in the patient’s notes, and is available to the parties in the proceedings;

(iv) Dr A was not asked about the possibility of birth trauma in the letter by social workers;

(v) It was acknowledged that while it might be helpful for Dr A to have mentioned the possibility of birth trauma, by giving a dating range for the fracture that included birth, it was expected that the clinicians (presumably locally and not at Y Hospital [hospital identified]) would consider birth trauma as a possible mechanism for injury.

My response

39. If Dr A’s report/review dated 13th October 2016, was intended to be used solely as an intra-medical document confirming the presence/absence of bony injury, then that should have been clarified at the outset. The document went further than merely confirming the existence or absence of a fracture, because it provided an opinion about causation.

40. Reviews sought in the context of an ongoing child protection investigation should be clearly identified as such, so that there is absolute clarity about:

(i) the purpose for which the review document is sought;

(ii) the potential usage (including Court usage) of the document seeking the review and the review document itself provided by the clinician concerned;

(iii) the background information which is provided for the review, and who is responsible for providing the same;

(iv) the precise information sought from the reviewing doctor, and who ultimately is responsible for “joining the dots” and reaching a conclusion about any possible different methods of causation; and

(v) why (since Dr A had been provided with E’s date of birth and it is included in her report) did she not herself consider birth trauma as a possibility, and mention that expressly to Dr F in her reply? Nothing surely could have been more straightforward.

(c) The wording of Dr A’s initial review

(i) The reply

41. Again it is asserted that the 13th October 2016, document was intended solely for a fellow clinician.

My response

42. Greater clarity about this aspect must be secured by the Third Intervenor, the Local Authorities of X region [geographical region identified] and Y Hospital [hospital identified].

43. In child protection terms these documents are of limited benefit if they are not intended for potential Court use, so that protective Orders can be sought in those cases where such Orders are required. A letter restricted to the use of a fellow medical clinician is of little forensic use to the Court in considering the statutory threshold. This issue needs to be resolved as speedily as possible by the relevant agencies. The Court needs to be able to rely upon the relevant medical expertise in order to safeguard vulnerable children.

44. I have referred already to Dr A’s statement in the second paragraph at page two of her report of 13th October 2016. I believe “excluded” to be a typographical error for “included”. The sentence makes no sense otherwise and is, I believe, the only reasonable interpretation of it.

45. In the reply by the Medical Director (on behalf of Dr A) an attempt is made to distinguish between the understanding of clinicians and “non-medics”. In this context I am afraid I do not understand the distinction. Clinicians and non-medics use the English language. The words used have an ordinary meaning, intelligible to both medics and non-medics alike. If Dr A wished to restrict the disclosure of her letter to clinicians only, then it might have been better not to have sought an opinion from her in a child protection investigation, which involved the possibility of proceedings in the Court arena, where inevitably her letter would be considered by “non-medics”.

46. If alternatively, Dr A understood the purpose of the enquiry and the potential use to which her reply might be put (namely as the basis of a Court Order which ultimately led to the removal of a child from parental care for thirteen weeks) then it was incumbent upon her to communicate her opinion in a manner which was capable of being understood clearly by those having recourse to her letter in those proceedings. If, as asserted, she had ten years’ experience as a Consultant Radiologist, and “expert witness” then I would not have expected this to have caused her any difficulty whatsoever.

The other matters raised and replied to by the appropriate agencies

(a) The delay in obtaining the review from 22nd September 2016 (the date of the skeletal survey) and 12th to 13th October 2016

The reply

47. “It is unclear why there was a delay of two weeks between the first and second internal review of the skeletal survey. It is also unclear why the skeletal survey was not routinely reported on (sic) by Y Hospital [hospital identified]”.

My response

48. This situation merits urgent improvement.

(b) The lack of skeletal survey

The reply

49. The Guidance for Radiological Investigation of Suspected Non-accidental Injury, published in 2008, suggests a full skeletal survey should be repeated, save for skull fractures. The risk of radiation to the child must also be considered. The above standards are being reviewed by the Third Intervenor in considering its own standard operating procedures. The Consultant involved in this case believed that a repeat skeletal survey should have been obtained.

My response

50. This situation again merits further urgent review and improvement.

 

I found the second judgment a bit hard-going, not least because the identities of the various Intervenors are not terribly clear – but I’ve linked to it if people want to read that. Nothing within it really alters the first judgment although the thrust of it seems to be that the radiologist, Dr B, had not written the report to be used in court proceedings and the intended recipient was another doctor, Dr F, not lawyers and social workers and Judges.

Under the heading ‘The Second Intervenor’s Involvement’, Mr Sheldon says that the Second Intervenor’ involvement in E’s case was limited to the sending of one letter and one email, in the context of a second opinion service. I have referred to these documents already. This refers to the document of 13th October and 26th October 2016, and the former was relevant to the hearing conducted by me for an application for an emergency protection order. The second was not relevant to a hearing conducted by me.

45. It is asserted: ‘There was no indication that the Second Intervenor’s second opinion would be put to any use, other than assisting Dr F in his assessment of the case’. This is referable of course to the 13th October report. Then, at paragraph 17 of the skeleton, the following appears:

‘On a date unknown to the Second Intervenor, her letter to Dr F was passed to the representatives of the Local Authority, who determined that it should be used as part of the material in support of an application for an emergency protection order. The Second Intervenor was not informed that this was to be done. She was not given an opportunity to consider the terms of her letter, for the purposes of determining whether she would wish to clarify or amplify its terms in light of the use to which it was now to be put, and she was not contacted by the Local Authority to obtain her assistance as to the correct interpretation of her letter, before the application was made. The Second Intervenor was not called as a witness at the application for the emergency protection order, and she has no idea what was said to the court on that occasion about her letter’.

Dr B says that she has learned from this of the need to be clearer in her use of language.

It appears that everyone at the initial hearing had taken the radiologist’s meaning to be that there was a diagnosis that the injury had occurred non-accidentally (or deliberately to use Ryder LJ’s preferred terminology) whereas the radiologist was intending to convey that there was investigation to be carried out to see if a deliberate / non-accidental cause could be EXCLUDED.

(just to refresh our memories, this is the line from the original report – the word ‘excluded’ was used and I believe people read it to be a typo to mean ‘not excluded’ or ‘included’ (hence the (sic).) It was not in fact a typo, and it was meaning excluded in more of a verb sense – ‘to carry out further investigations with a view to whether deliberate injury could be excluded’ – you can see why that was confusing. I lose my grip of understanding this every couple of seconds, it slips out like a bar of soap through wet hands.  Sidebar to this sidebar – that image reminded me of the Lewis Carroll lines

 

He thought he saw a Argument; That proved he was the Pope: He looked again, and found it was; A Bar of Mottled Soap. ‘A fact so dread,’ he faintly said,; ‘Extinguishes all hope!’ )

 

“… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.

 

Judgment 2 explanation

 

In paragraph 18(iv) of my March judgment, I quoted from a section of the Second Intervenor’s 13th October report. I am informed, and I accept, that she intended the word ‘excluded’ and that there was no error by her. What was intended to be conveyed was this: ‘If there is no satisfactory account of the mechanism of the injury, and if there is no underlying medical cause, the exclusion of these explanations then dictates the next stage, namely to exclude a non-accidental injury’. I am told, and I accept, that medical clinicians would perfectly well understand this comment by her. However, I repeat that the report of 13th October, whether rightly or wrongly, was being relied upon by the Local Authority as part of its application for removal, and legal requirements were under consideration as well as medical.

53. The Second Intervenor indicated in her 24th January reply “…this statement was included in a letter intended for a fellow clinician”. She is referring there, of course, to Dr F. Later, and I quote her: “However, I have reflected on this case, and I am sorry that my use of language has caused difficulties. In future, I intend to avoid the phrase “must be excluded”, and replace it with “must be considered”’.

54. I understood that Ms Cavanagh on behalf of the First Intervenor accepted, at paragraph 33(h) of her skeleton argument, “that the wording served to create ambiguity in the mind of the non‑clinical reader, and as such, given the use put to such documentation in early stages of court proceedings, clearer words will be used hereafter”.

55. Mr Sheldon, at paragraph 45 of his skeleton argument, indicated that the Second Intervenor ‘now ensures that she does not use the terminology of exclusion when drafting documents which may come to form part of court proceedings. She has also advised her colleagues to do the same’. With that assurance, I am content.

 

 

The Judge is clear that his judgments were not about apportioning individual blame or responsibility, but to explore the systemic problems.

Firstly, I have invited, and I have received, the further submissions after my 6th March judgment. Secondly, this judgment does provide clarification and amplification for that March judgment, which can be supplemented with the publication of any additional appendices. Thirdly, I would be exceeding my remit if I sought to give general guidance with regard to the provision of second opinion evidence in child protection cases. That is a matter either for the High Court or for the Court of Appeal, and for the president of the Family Division. I am only a foot soldier, the designated Family Judge for North Wales, without any further and wider responsibility than that. Cumulatively, these two judgments are designed to alert local agencies to what happened in E’s case, so as to improve practice, and to provide some explanation to E’s parents as well. Silence would not be an option in these unhappy circumstances, as I have said already.

 

  1. Fourthly, neither judgment is intended to attribute individual blame or responsibility. I make it clear I am not dealing with a case of professional negligence or misconduct. I make a plea for systemic improvements (as indicated in paragraph 50 of my original judgment). No more, and no less, than that. If the improvements have all taken place, so much the better. Time, of course, will tell. Fifthly, I will reserve the issue of extended anonymity until I have heard further argument in the light of the President’s Guidance. A combination of different things led to E’s removal from parental care. It was not exclusively referable to the Second Intervenor, as asserted in paragraph 26 of Mr Sheldon’s skeleton argument. Indeed, as I made the emergency protection order, I am ultimately responsible, and I acknowledged that in my apology to the parents, which I have made already. I do not shy away from my responsibility in the least.

 

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Runaway train, never going back

Posted on January 22, 2018 by suesspiciousminds

The British Association of Social Workers, BASW, commissioned an independent report to look at adoption. The report has just been published.

There’s a summary piece at the Guardian about it

https://www.theguardian.com/society/2018/jan/18/adoption-has-become-runaway-train-social-workers-cannot-stop

In summary of the summary, concerns about a lack of ethics and human rights approach, concerns that adoption has been politically pushed and dominates thinking, concerns about lack of support for families and adopters, concerns that there’s rigidity in thinking about contact (and the report compares the English approach of an assumption of no direct contact with Northern Ireland where the assumption is that there should be direct contact four to six times per year) and critically that there’s not enough attention being paid to poverty (and austerity) being the driving force behind children being removed from families.

The impact of austerity was raised by all respondents to different extents but was a particular
concern for social workers. Cuts to family support and social work services were a recurring
theme, with the decreasing availability of early help highlighted. Very costly resources are being
used in care proceedings. As a result, less is available for earlier interventions that could support
children to stay at home safely.
Most respondents wanted a better balance between support and assessment, with families
currently too often subject to repeated assessments rather than actually helped. A number felt
social work had become increasingly risk averse and fearful of blame, with the high rates of care
applications one key example given of the impact this has on practice.
A lack of resources once children had come into care or been adopted was similarly seen as
impacting on the effectiveness of services. There were many observations about decision-making
being impacted by the lack of resources and examples given of the results, such as siblings not
being placed together.

Having read the report, I think the summary is a fair one – the report does raise all of those issues. The report is careful to say that just as treating adoption as a perfect solution for all families is not realistic or helpful, demonising all social workers is not realistic or helpful either. Adoption is the right outcome for some children, and some adoptive families thrive and prosper. But there needs to be a genuine debate about whether it is being sought too frequently.

The report is here

Click to access basw_55841-1.pdf

I’m not going to attempt to critique it or deconstruct it – it’s a long and thoughtful piece, taking on board views of a wide variety of people involved in the process, notably hearing from both birth parents and adoptive parents who had very similar viewpoints on some issues. I have had the opportunity to read it twice, but I honestly feel I want more time with it and to reflect on it. So I don’t know whether I agree with it all, but it says things that I genuinely think needed to be said and need to be discussed and thought about. And I wanted to alert people to its existence and hopefully get people to read it and have those conversations.

Nothing in family justice ever exists in a vacuum though – for every person who reads the report and agrees with it, there will be ten who think it doesn’t go far enough and that adoption should be burned to the ground, and ten who think it is ridiculously anti-adoption and goes far too far. That polarisation about adoption is, itself, part of the problem. The stakes are so high, the emotional devastation caused to those on the wrong side of adoption so great, the political capital invested in it, that it is hard to have the conversations that need to be had.

A particular issue that comes up within the report is the self-labelling by the social work system of social workers being ‘the social worker for the child’ rather than a social worker for the family.

The definition of the social worker role as being ‘the social worker for the child’ was a source of
concern, as it often led to a lack of support for birth parents:
‘Children are part of families – a social worker cannot only be the child’s social worker.’ (birth mother)

A lot of the respondents talked about the importance of the relationship that existed between the social worker and the family – and how the quality of that relationship can transform cases (for good or ill)

Repeatedly, across the range of family members, the importance of the relationship that was
developed with a social worker was stressed.
Birth family members gave accounts of both poor and good relationships. They related experiences of feeling deceived by social workers who they considered had not been honest with them. They described not understanding or being helped to understand why their child(ren) were
permanently removed; being unfairly judged/ labelled (‘the report said I was ‘hostile’ so he could not stay, but I was not hostile – I am ‘loud’’ – birth grandmother from a traveller background); and
generally being treated in what they perceived were inhumane ways.
Birth family members emphasised the importance of social workers listening to their views, being
respectful and honest, recognising strengths and displaying acts of kindness. It was considered
that the nature of the relationship could influence what happened with the child. Examples were
given of differing outcomes for children in the same family (i.e. adoption or remaining with the
parents) and these were, at least in part, attributed to the quality of the relationship with the
individual social worker. It was considered vital that social workers have the time to get to know
and work with the family in non-judgmental ways.

Many of the responses from adoptive parents repeated the themes found in the birth parents’
accounts. The relationship between the social worker and adoptive parents was considered to be
key, with the importance of professional but caring social workers highlighted. Adoptive parents
and adopted people also spoke about the importance of good communication, honesty, being
listened to and treated as an individual human being.

The use and misuse of power was a key issue

Families stressed that social workers have a great deal of power in relation to assessment, the
provision of help and decision-making. There were many examples given by birth families,
adoptive parents and adopted people of how they had experienced the exercise of social workers’
power, both positive and negative.
Birth family members repeatedly mentioned the lack of attention by social workers to the social
contexts in which they lived. A number of respondents reported that housing, or the lack of it,
was used as evidence against them in assessments.
The importance of practical support was stressed; ‘a washing machine for example would have made a big difference’ (birth parent). One birth mother spoke of the lack of adequate interpreting facilities in her contact with social workers and legal professionals. Other birth family members also felt discriminated against because of their cultural practices (e.g. a traveller background) or for being working class or having a lack of secure immigration status.
There were many examples provided by birth parents of feeling powerless in a climate that was
seen as very risk averse. Risk of future emotional harm was described as being frequently used,
and was seen as a particularly unjust basis for permanent separation. Birth mothers reported high
levels of domestic abuse and suggested they were being punished for having a violent partner
and/or having experienced domestic abuse in childhood.
Fear of an unsympathetic and punitive response was seen as inhibiting families from asking for
help when it was needed. Parents with mental and physical health problems and learning
difficulties all reported concerns about asking for help because of the emphasis on risk. They
reported receiving an assessment rather than support and feeling they were being scrutinised
rather than helped.
Being judged and stigmatised simply for having a history of care and/or abuse was an issue. Care
proceedings, involving newborn babies, were identified as being particularly traumatic, with a
lack of attention, in particular, to the impact of having just given birth on the mother. Residential
settings were described as being too often focused on monitoring risk rather than providing help
or therapeutic support. Women with disabilities highlighted the disabling environments in which
assessments were carried out.


The report concludes with recommendations (I suggest reading them in detail, but I’ll just put the bullet points here, for reasons of space)

Recommendation 1: The use of adoption needs to be located and discussed in the context
of wider social policies relating to poverty and inequality
Recommendation 2: UK governments should collect and publish data on the economic
and social circumstances of families affected by adoption
Recommendation 3: The current model of adoption should be reviewed, and the
potential for a more open approach considered
Recommendation 4: There needs to be further debate about the status of adoption and
its relationship to other permanence options.
Recommendation 5: BASW should develop further work on the role of the social worker
in adoption and the human rights and ethics involved

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I saw the best minds of my generation utterly baffled by nothing else will do – developments

Posted on January 18, 2018 by suesspiciousminds

It has been fourteen months since we last had a perplexing piece of adoption case law which scrambled the brains – which in the context of what’s been going on in adoption law since 2013 represents an almost One Hundred Years of Solitude rest from mind-f**kery.

In the words of Ser Arthur Dayne, the Sword of the Morning “now it begins”

(we are not going to hear from young Ned Stark yet, saying “no, now it ends” – we may never hear that)

Clearly everything from Re B onwards is the fault of Bran Stark and his Three Eyed Raven powers. Great job, Bran.


Re B (A child) (Care Proceedings) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/20.html

I will stress at the outset that nothing in this case says “A Court should ALWAYS do this”, it says instead that the Court, if they give good reasons for it and a careful judgment “CAN do this”

Basically, little girl B, born in spring 2016. She has a biological brother, H who was born in 2015 and adopted in 2016. Birth parents ruled out in care proceedings on B. H’s adopters wanted to adopt B.

There were family members, paternal cousins I and R, who were a realistic and viable option to care for B.

I’ll make it clear that the judgment we have gives us ABSOLUTELY NO INFORMATION about why the parents were considered not suitable to care for B or why H was adopted. We don’t have any information that would allow us to even speculate about that. Mother and father were both represented, and they were both at the appeal supporting a placement with I and R, rather than seeking to care themselves for B.

The Court at first instance was grappling with the competing arguments

(a) It is better for B to grow up with her full biological sibling for life, even if that means adoption OR
(b) It is better for B to grow up within her biological extended family, even if that means not growing up with her sibling

The prospective adopters sought to be made parties to the proceedings, but that was refused. The Courts have given guidance on this, notably in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2017] 1 FLR 330
http://www.bailii.org/ew/cases/EWCA/Civ/2015/983.html

“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian … who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”
7.I went on to recognise (Re T, para 51) that there might be “an exceptional case justifying [a] departure from the general approach”, echoing in this respect what Wilson LJ had said in Re A, para 35:

“To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”

In effect, the Court isn’t carrying out a beauty contest between what prospective adopters can offer and what the alternatives are – the Court has to look at the issue of whether adoption is necessary without considering the particular merits that adopters bring to bear.

In this case, however, making it different to Re T, the prospective adopters were caring for a biological sibling H. So the issue wasn’t about what the qualities of the ADOPTERS were, but what the benefits to B might be of growing up with a sibling.

The relevant parts of the welfare checklist from the Adoption and Children Act 2002 are set out below

11.Those sections provide as follows:

“The court … must have regard to the following matters (among others) –

…

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

…

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court … considers the relationship to be relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

So the Court HAS to consider all of the family relationships that might continue for B and the value of them doing so – the parents, I and R AND H.

The Local Authority and the Guardian both urged the Court to consider that the benefits for B of growing up with a full sibling were considerable and tipped the balance towards this being a plan of adoption.

The Judge recognised the last seismic adoption authority, Re W

12.The judge next embarked upon a careful analysis of the evidence (judgment, paras 28-35). It requires to be read in full, but for present purposes I can concentrate on the evidence of the children’s guardian, which the judge described (para 34) as “very thoughtful”. She continued (paras 34-35):

“34 … She said that placement with [R] and [I] is a realistic option, they are an open and generous couple, but her professional judgment is that the advantages for [B] of a full sibling relationship outweigh the advantages of a placement with [R] and [I].

35 She was careful to point out that her recommendation did not turn on an assessment of [I] and [R], but the weight to be attached to the two competing factors set out in Sections 1(4)(c) and (f) of the 2002 Act. She had balanced on the one hand the effect of [B] having ceased to be a member of her original birth family mitigated in this case by the big plus of a lifelong relationship with her full sibling and closest relative and, on the other hand, the relationships she has with her relatives, the likelihood of those relationships continuing and the value to the child in them doing so. If [H] had not already been placed for adoption in a placement willing to take [B], the Guardian would support a placement with [I] and [R]. It would have been under a Care Order because currently the placement is untested. That would result in a period of uncertainty for [B]. Taking into account the research on the importance of the sibling bond and all the circumstances of this case she attached more weight to the sibling relationship, which led her to conclude that adoption was necessary.”
13.The judge thus correctly recognised (paras 26, 34) that a family placement with I and R was a viable and realistic option. In that context, it is important to appreciate the point made by McFarlane LJ in Re W (A Child) [2016] EWCA Civ 793, paras 70-71:

“70 With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.

71 The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.”

(The Court of Appeal judgment doesn’t get into the ‘fulcrum’ metaphor which permeated Re W, in particular where the balance falls in a case BEFORE placement order is made and child placed – remember that in Re W, the child by that stage had been placed with prospective adopters.
https://suesspiciousminds.com/2016/07/29/re-w-no-presumption-for-a-child-to-be-brought-up-by-a-member-of-the-natural-family/ )

The trial Judge decided that it was in B’s interests to make the Care Order and Placement Order, so that B could grow up with H.

15.The judge then set out (paras 56-62) her analysis of the “pros and cons of an adoptive placement.” She began with this (paras 56-57):


“56 One advantage of adoption is that [B] will be brought up with her nearest relative, a full sibling. This would mean that she would never be alone, she would have the shared experiences of being brought up in the same household, which will promote identity and self-esteem. The research which I have been referred to suggests that the sibling relationship is emotionally powerful and critically important, not only in childhood but over the course of a lifetime. People spend more time with their siblings than anyone else. Growing up with a sibling enables one to learn social skills, sharing and managing conflict and negotiating. The relationship can provide a significant source of continuity throughout a child’s lifetime and is likely to be the longest relationship most people experience.

57 For children going into care it is generally accepted that siblings should be placed together unless it is contrary to an individual child’s welfare needs. A shared history and experiences help self-identity and self-esteem because siblings provide support and companionship. An adoptive placement with her brother would mitigate against the loss of the relationship with her parents. This would be a lifelong relationship with her brother which would be promoted. The impact of becoming an adopted person, with the severance of legal and emotional ties with her parents and family, would also be mitigated by the shared experience of being with her brother.”
16.As against that (para 61):

“The disadvantages of an adoption placement include severance of the links with the biological family. This can mean a real sense of loss, particularly to children when they get older and realise that they have not brought up within their biological family. It can also have a negative impact on their sense of identity and belonging. It will result in a loss of [B]’s relationship with her parents because there would be no direct contact with them. There would be a probable loss of contact with the extended family because it is unlikely that [B] will have contact with her half-siblings or with [I] and [R] and their family.”
17.The judge concluded with a section (paras 63-69) headed “Decision.” She began (paras 63-64):

“63 In the final analysis the court must decide whether the advantages associated with the sibling relationship outweigh the relationship with other family members: the parents, half-siblings, [I] and the wider family. This is the balancing exercise between the factors set out in Sections 1(4)(c) and (f) of the 2002 Act. I have already set out the benefits of the sibling relationship. Although there is no existing relationship between the siblings once the children are living in the same household one is likely to develop rapidly, given their closeness in age. I acknowledge the argument that to prioritise the relationship with a brother will be at the expense of all other family relationships. They do not have an existing relationship which can currently be given weight to, but rather the potential for a unique relationship lasting throughout their lives which the Guardian and social worker say should be prioritised.

64 The reality and quality of a continuing relationship with other family members is very relevant here therefore. As I have identified already, the relationship with her parents is likely to be very limited. [Her father] is likely to be in [Africa], so contact will be indirect with possible occasional visits to [Africa] … Contact with the mother is likely to be either non-existent or problematic and potentially disruptive and unsettling. [B] has no existing relationship with her half-siblings, but only the potential for one. That is likely to be very limited. Those children are all quite a bit older than her and may or may not develop a bond.”
18.She continued (paras 66-67):

“66 When considering [B]’s welfare throughout her life the scales tip in favour of prioritising the relationship with her brother for all the positive advantages that will bring her set out above. What makes this case particularly difficult and finely balanced is the cultural dimension. However, a close examination of what benefits [B] would actually derive from a placement with [I] and [R] reveals that [and she then set out various matters which I do not propose to repeat as they might lead to the identification of the family. She went on:] The practicalities and financial cost of frequent visits to [Africa] may prove problematic.

67 Whilst a placement with [H] does not provide the cultural match which a placement with [I] could offer, the adopters have some cultural similarities and living with her brother would boost her identity because of growing up with her closest relative. His heritage and identity and early childhood experience of a foster placement at birth and then one stable placement afterwards, exactly mirrors her own. All this has led me to conclude that this is the over-riding requirement pertaining to [B]’s best interests throughout her life. Having reached that conclusion, I am satisfied that an adoption order is necessary to meet [B]’s needs and proportionate in all the circumstances of the case.”
19.The judge concluded as follows (paras 68-69):

“68 Whilst this is more interventionist than a placement with [I] and [R], it has the benefit of permanency now. There will be no further delay. It will avoid the testing out of a placement with [I] and [R] and reduce the risks and uncertainties for [B] all of which adds weight to the decision that I have come to.

The father and I and R appealed – understandably on the basis that the Court had not squared the case with the “nothing else will do” principle – but rather had decided that Placement Order was the better of two choices.

The Court of Appeal, lead judgment by the President, praised the careful and analytical approach of the trial Judge and upheld the decision. It was permissible for a Judge to give more weight to the option of B being placed with a sibling than B being placed within the family (even where there was a viable and realistic alternative family placement)

23.The central core of the father’s complaint relates to the judge’s application – in his counsel’s submissions, her misapplication – of the principles in Re T, the essence of the complaint being that the judge had, in conflict with those principles, treated the matter as a competition between the adopters and the kinship carers and, illegitimately, been drawn into an inquiry as to which would be the ‘better’ placement. As the passages from her judgment (judgment, paras 20, 21 and 25) which I have set out demonstrate, that is not what the judge said she was doing or what she thought she was doing. Nor, in my judgment, is that what she was in fact doing. On the contrary, she was carefully, conscientiously and, in my judgment, correctly applying the learning in Re T.

24.How else was the judge to proceed? She was confronted with the fact – the reality – that B’s only full sibling, H, a sibling close to her in age, had been adopted and that H’s adoptive parents were willing to adopt B. That was not something the judge could ignore, as it were put out of her mind, if she was to comply with her statutory duty under section 1(4) and in particular section 1(4)(f) of the 2002 Act. And in having regard to that objective, factual, reality, the judge was doing nothing inconsistent with the learning in Re T and the earlier authorities to which I have referred.

25.As Mr Tyler and Ms James pointedly observe, there is nothing in Re T to say that the court can ignore a crucial factor which is necessarily concomitant with a particular placement. The presence of H in B’s life must fall in the credit side of the balance sheet in relation to placement with H’s adopters, just as the loss of H must fall in the debit side in relation to the kinship placement; to ignore this would, they say, be a nonsense. I agree.

26.Complaint is also made, in particular by Ms Fottrell and Ms MacLynn, that the judge never grappled with the question of whether adoption per se was required for B and, in consequence, that she truncated the adoption process and, in effect, approached the case as if she was deciding an adoption application and on the assumption that, immediately following the making of the placement order, B would be placed for adoption by H’s adoptive parents. I do not agree. The judge was well aware that she was considering only the making (if appropriate) of care and placement orders as a prelude to the entirely separate adoption proceedings which, if she made those orders, would no doubt follow in due course. And, in circumstances where the fact and reality was that H had been adopted by those who were offering a similar placement for B, the distinction between adoption per se and adoption by H’s adoptive parents is more apparent than real.

27.The father complains that the process adopted by the judge meant that she ended up weighing the ‘known’ uncertainties in respect of the proposed kinship carers against the certainties of the adoptive placement. That, it is said, was an unfair half-way house; the judge, on this approach, should have embarked upon a full welfare evaluation and comparison of each prospective placement. I do not agree. The judge knew all that she needed to know about the possible placement with H’s adoptive parents to be able properly to carry out, and in a manner compatible with Re T, the task she was embarked upon. Indeed, to go further into that aspect of the matter than she did would have risked offending against the principle in Re T.

28.In relation to the other grounds of appeal I can be quite brief. The father complains that the judge erred in prioritising B’s relationship with H over her relationships with her wider family, in placing too much emphasis on the sibling relationship, and in attaching too little weight to ‘nothing else will do’. I do not agree. The judge did not prioritise either of these placements – both, it is to be noted, family placements – over the other. She treated each as being viable and realistic and carefully evaluated the competing evidence and arguments before coming to her conclusion. The fact that her conclusion favoured X rather than Y does not mean that the judge was prioritising X over Y. Her conclusion that, in all the circumstances, B’s future relationship with H throughout their lives tipped the balance and was determinative of the outcome, was, in my judgment, securely founded in the evidence the judge had heard and, as I have already said, was plainly open to her.

29.I can take the two remaining grounds – that the judge placed too much weight on the ‘untested’ nature of the placement with I and R while failing to acknowledge that the placement with H’s adopters was equally untested; and that she was too focused on avoiding the potential delay and failed to balance the purpose of such delay to B’s best interests – together. The judge, in my judgment, was entitled to have regard to these factors, and it was for her to determine how much weight to attach to them. In fact, as we have seen, she did not attribute determinative weight to other of them. As her judgment makes clear (judgment, para 68) their impact was merely to “add … weight to the decision that I have come to.”

This is a very difficult one. I have no doubt that prior to 2013, the decision to place B with her sibling (having ruled out her parents for reasons that we don’t know about) would have been an arguably correct decision both on the facts and the law. I don’t see how it does square with Re B.

Let’s remind ourselves what the test for making a Placement Order is, as set down by the Supreme Court

“only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

But also the apparent dilution of that by the Court of Appeal in Re W 2016 that welfare analysis and evaluation is actually the be-all and end-all

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons

I think that it is POSSIBLE for a Court to decide that, for B, her overriding requirement is to be placed with her sibling, and no other placement option is able to deliver that and therefore that nothing else but adoption will do. But neither the Trial Judge nor the Court of Appeal actually spell that out.

The case reads like a straight welfare shootout (a well-considered and thoughtful shootout, but one nonetheless which doesn’t really engage with the spirit or the letter of Re B)
And of course, there’s a counter argument to that. If the Courts are saying that placement with a sibling is such a powerful factor that it can override other factors, then what happens with all those cases where the LA care plan is to split a sibling group and the only way they can stay together is to be with a parent – even where the quality of care would fall below ‘good enough’

If having the sibling relationship endure is a reason to discount ‘viable and realistic’ family members on the one hand, then why is it not a reason for preferring a family placement to a placement in care where the family placement would keep them together?

OR, as happens frequently – one child is young enough to be adopted, but another is to be placed in foster care – and the parents understandably would want both children placed together. In those scenarios, unlike B and H, the sibling group will actually have met and have a relationship.

[These are all cases where the well-known authority of Sauce for Goose v Sauce4Ganda 1621 may be deployed]

(I’ll stress again that the Court of Appeal are not saying here that the sibling placement MUST triumph over family placement or that it MUST be given greater weight – they are saying that the Judge in this case was ABLE to decide this the way she did, because she had very carefully thought about the evidence and the law. Another Judge could decide the reverse in a similar set of facts, provided they very carefully think about the evidence and the law. It is NOT sibling rights beat family rights. It is NOT that. )

I think the treatment of ‘nothing else will do’ is a bit of a Jedi hand-wave here. We are getting closer and closer to the old state of play – which was ‘what decision is the best for the child’s welfare’ and farther away from what the Supreme Court were talking about with adoption and placement orders being a very high bar that the State have to meet.

In the meantime, expect any case where a sibling has previously been adopted to have urgent enquiries being prompted by the social worker or Guardian as to whether those adopters put themselves forward for this child. The Court CAN take account of it if there’s a definite commitment to do so (even though they might not be matched by Panel). What is the Court going to do if the adopters of the siblings say that they are ‘open to it’ or ‘thinking it over’? Can they give that any weight at all?

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Put paid to what you say, and put your money where your mouth is

Posted on January 16, 2018 by suesspiciousminds

That’s a line from one of my favourite Wonder Stuff songs, “Unbearable”, where the chorus goes “I didn’t like you very much when I met you / I didn’t like you very much when I met you / I didn’t like you very much when I met you / and now I like you even less”

And now, in a crunching change of gears, here’s a case in which every Local Authority Court of Protection lawyer has either said, or is about to say, “You know what, I’ve always loved Charles J”

Y’all don’t need to read this one unless you do Court of Protection work OR if you just enjoy watching a High Court Judge smack a Secretary of State upside the head, in a very respectful way of course.

Basically, as a result of the Supreme Court decision in Cheshire West (which I think was legally correct), there was an explosion in the number of Court cases coming before the Court of Protection to get legal authorisation for deprivation of liberty for P, which before Cheshire West were just being dealt with on the basis of ‘this isn’t really a detention, because that’s just what we do with people like P’.

That explosion in the number of cases was never accompanied by an explosion of additional resources, and the first major pressure point was the Official Solicitor, who had been able to give a voice for P in cases when there were about a hundred a year, but not in the thousands that were now coming at them. So a scheme was devised where the non-contentious authorisations could be done without P being represented – but then the Court of Appeal didn’t like that.

40.I repeat that I acknowledge that the decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. This goes well beyond the resource implications of cases of the type before me. But, as appears below, they have significant resource implications.

If you haven’t read a newspaper since 2008, we don’t actually have a spare £2 billion a year sloshing around just waiting for someone to come and make good use of it. Whatever magic money trees can be shaken, their branches are now bare.

So in Re JM, Charles J posed the question directly to the MOJ and DoH – what’s your solution for having P represented? And where is the funding coming from? And he stayed some test cases to get an answer to that.

In Re KT, Charles J examines the answers given by the MOJ and DoH and finds them wanting.

Re KT (and Others) 2018

http://www.bailii.org/ew/cases/EWCOP/2018/1.html

2.In JM, I concluded that applications made for welfare orders to authorise a deprivation of their liberty on the basis that they are not contentious should be stayed when no family member or friend is available for appointment as P’s Rule 3A representative. I also concluded that the Crown should be joined as a Respondent. This was because I concluded that central government, and in particular the Ministry of Justice (the MoJ), is primarily responsible for providing the resources needed to enable the Court of Protection (the COP) to adopt an Article 5 compliant and fair procedure. Also, that joinder enabled the MoJ (and the Department of Health – the DoH) to “put their money where their mouth was” by identifying professionals ready willing and able to act as Rule 3A representatives in the stayed cases and thereby establish the solution they had maintained local authority (and other) applicants could provide, but I had concluded was not practically available.

3.The number of stayed cases has grown steadily. There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P’s Rule 3A representative.

4.The JM judgment is dated 10 March 2016. Over a year later, in letters sent in late March and early April 2017 to applicants in stayed cases the Government Legal Department (the GLD) indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP.

5.Such letters prompted the applications in these four test cases to lift the stays imposed on the basis that a visitor was to report.

These bits are helpful to the LA, and arrive from documents filed by the Secretary of State early on in the proceedings

87 The answer in the note provided by Counsel for the Secretary of State at the beginning of that hearing was as follows (with my emphasis):

22. [The deponent] referred to the local authorities existing statutory duties in paragraph 4 of his second witness statement. This was a reference to local authorities’ statutory duties in respect of DoLs generally under the Mental Capacity Act 2005. For the avoidance of doubt, it is not suggested that there is any specific statutory obligation that requires a local authority to arrange or fund the appointment of rule 3A representatives.

23. The Department’s position is that rule 3A representation is one of the potential methods for the Court to consider, so as to ensure that the process meets the Article 5 minimum requirements in a particular case, but the Department does not seek to impose any new obligation on local authorities or any other bodies.

24. The Department does not say that the obligation to provide the resources to meet the minimal procedural requirements necessarily falls on local authorities. But that local authorities are public authorities who have responsibility for compliance with Article 5, in the same way as other public authorities have such responsibility. Which public authority is required to take steps to comply with Article 5 will depend on the facts of each case. For example, a local authority would not be obliged to provide resources if the Article 5 minimum procedural requirements were met by the appointment of a family member or friend as a rule 3A representative.

25. For the avoidance of doubt, it is not asserted that the local authorities responsible for funding the appointment of any litigation friend.

If you are thinking to yourself, that sounds good, then hello and welcome to the blog, dear first-time reader.

If you are instead thinking to yourself, I bet having given those assurances very clearly and cogently I bet the Secretary of State later filed documents completely and utterly resiling from that reasonable and proper concession and probably did so at the last possible minute and tried to sneak it in under the radar, then hello darkness my old friend, I’ve come to talk with you again. OF COURSE, that’s what the Secretary of State did, because that’s exactly what they always do.

If you are in Court with any Secretary of State and they offer in a document a perfectly sensible and appropriate concession that would spare everyone huge time and effort litigating a position that they would lose ultimately if they decided to fight it, don’t believe it unless the Minister is actually prepared to have the words tattooed on their face for all to see. And probably not even then.

[I’m reminded of Hoftstadter’s Politicians Syllogism – (a) Politicians lie (b) Cast Iron sinks therefore (c) Politicians lie in cast iron sinks]

14.The volte face is that for the first time, the Secretary of State asserts that local authority applicants owe a duty under section 6 of the Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary”. In the very last sentence it is then asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council”. This is a radical departure from the position taken by the Secretary of State in JM in connection with the New Burdens Doctrine (see paragraph 93 of JM cited above).

Charles J didn’t like that much, and ruled that EVEN if the Secretary of State was right (and he may not be), then the buck ultimately stops with the Secretary of State to provide FUNDING for LA’s in order that they can do that. Yay!

17.I agree with the submission made by counsel for the applicant authorities in his further submissions dated 27 October 2017 (the last of the exchanged evidence and submissions) that the introduction of an argument that the local authority applicants owe a HRA s. 6 duty, to circumvent:

i) the previously agreed position that they owed no such statutory duty, and

ii) the flaws in the earlier evidence and argument of the Secretary of State in these cases,

is potentially significant and would warrant oral argument if it is to be relied on as the basis for any part of my decision.
18.My preliminary view is that this new argument of the Secretary of State is wrong and runs counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.

19.However, I have concluded that it is not necessary for me to hear oral argument on whether local authority (and other) applicants owe any such duty because on the assumption (contrary to my provisional view) that they do then:

i) the Secretary of State for Justice remains the Minister responsible for the administration and resourcing of the COP and so the Minister with the statutory duty to take the necessary steps to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure,

ii) this statutory duty is not based on the HRA, rather is central to one of his functions, and so much more akin to the duties imposed on local authorities under the DoLS,

iii) as accepted in JM, he or the MoJ would inevitably be a defendant to any action for breach of Convention rights founded on a failure by the
COP to adopt an Article 5 compliant procedure even if applicants also owe an Article 6 duty as now asserted by the Secretary of State,

iv) this acceptance confirms the point that it is the Secretary of State who owes the relevant primary duty and so the COP can and should rely on him to take the necessary steps to ensure that the necessary resources to enable the COP to act lawfully, by applying a Convention compliant and fair procedure in the stayed cases, are provided by one or more public authorities in central or local government, and

v) if applicant authorities have an HRA duty it would be owed to individuals and not to the COP whereas in contrast, and as accepted in JM, the Secretary of State has a statutory duty to take steps to enable the COP to act lawfully as a public authority

That’s exactly the way to despatch the cheap shot from the Secretary of State – which was the equivalent in a game of tennis of the opponent saying “oh, hold on, can I just tie my shoelaces?” and responding “Sure, that’s fine” and THEN SERVING THE BALL anyway and trying to claim the point. (My friend Scott once broke his ankle during a tennis match and his opponent wandered over to peer down at him writhing in agony on the turf and just said quietly “I’m afraid that’s game, if you can’t continue”)

Conclusions on the evidence
45.The evidence in these cases shows that the budgetary battles referred to in JM continue. Naturally, I recognise that we live in times of austerity but, like the evidence in JM and NRA, this round of evidence makes depressing and annoying reading for anyone with any compassion and knowledge of the position of Ps, and their families and carers, who are in similar circumstances to those that exist in these test cases.

46.Sadly, the evidence and submissions put in and relied on by the Secretary of State are a continuation of the avoidant approach referred to in JM and they fail to properly address many of the issues raised in my directions.

47.The Secretary of State filed and relies on evidence from a civil servant employed at the MoJ as a policy manager with responsibility for the Mental Capacity Act. Much of her evidence is unconvincing. I do not seek to blame her for this because I recognise that all she is doing is reflecting the stance of the Secretary of State which I have concluded is driven by budgetary issues.

48.As in JM, the evidence filed by and the submissions of the applicant authorities is more helpful and constructive.

Stop all the clocks, cut off the telephone, prevent the dog from barking with a juicy bone. Yes, you read that correctly. A Judge just praised a Local Authority for helpful and constructive evidence. Let aeroplanes circle moaning overhead.

(You don’t often get Auden, Simon and Garfunkel and Miles Hunt in the same piece of legal writing. You’re welcome.)

The Secretary of State did not provide any information as to the volumes of people affected or the costs of any such scheme.

A startling omission from the evidence served by the Secretary of State is any estimate of the likely number of applications and reviews that will be or should be made of welfare orders to authorise a DoL of Ps who do not have a family member or friend who can act as their Rule 3A representative.

61.Such an estimate is obviously central to any sensible consideration of:

i) the number of professional Rule 3A representatives that would be needed to enable those or a significant number of those cases to proceed on the basis that they were appointed, and so whether or not this is a practical option,

ii) the number of those cases in which a visitor would need to be appointed for the same purpose, and

iii) how the COP will manage the stayed cases and others that are brought and need review, which involves a consideration of the judicial and administrative resources of the COP.
62.As appears below, any such estimate shows that the possibility that the existing backlog of stayed cases falls well short of the number of cases in which welfare orders should and would be sought if they could proceed cannot sensibly be ignored. And so, neither can a consideration of:

i) how significantly increased numbers of applications and reviews would be dealt with and funded, and so

ii) whether the potentially high total of fee income that these and other DoL applications would generate (and would be paid by applicant authorities) could or should be used to provide or assist in providing resources (judicial, administrative and through visitors) to enable the COP to adopt a Convention compliant and fair procedure.
63.The omission of any such estimate or consideration points to the conclusion, which I reach on the totality of the evidence, that the Secretary of State’s position is based on the following:

i) A failure to identify an evidential base for the existence of what the Secretary of State continues to assert to be the preferred and so available option to address the growing backlog of stayed cases (namely the appointment of a professional Rule 3A representative in a significant number of them).

ii) An approach focused on the existing backlog that excludes the need for reviews and the likelihood or possibility that the existence of a procedure that allows cases to proceed to an order will increase the number of applications made and reviews that are needed.

iii) A wish to end the practice of joining the Crown to cases of this type based on an assertion that the provision of unparticularised resources to provide visitors will be reviewed.
64. It is understandable that a commitment to an open-ended provision of resources to provide visitors cannot be given but:

i) the continued advancement of a solution that is not a practically available option, and in any event

ii) the advancement of a solution that contains no adequate assessment of the resources that are likely to be needed to enable the COP to deal with cases of this type other than in the short term,

coupled with the history of the approach taken by the Secretary of State, lead inexorably to the conclusion that it would be very unwise to proceed on the basis that as and when the present backlog, or part of it is cleared, and problems about the representation of P in new applications for or in reviews of welfare orders arise, that the Secretary of State will, through the promised review of the resources, address them promptly or constructively.
65.Rather, I am sorry that I have to conclude that the evidence in these cases shows that it can be expected that history will repeat itself and the Secretary of State will persist in taking an avoidant and unconvincing “pass the parcel” approach to the problems which he has a statutory duty to resolve alone or through a constructive approach with the local and other public authority applicants.

Foolish, because the LA’s did…

66.In contrast, the local authorities do address the likely need for resources to provide visitors. They submit and I accept that:

i) The four individuals involved in these proceedings are among the estimated 53,000 people deprived of liberty outside hospitals and care homes which, the Law Commission calculates, would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.

ii) It is not known how many of the 53,000 people would fall within the non-contentious class of cases identified in JM. But it is known that the number of deprivation of liberty applications to the COP has risen from 109 in 2013 to 3,143 in 2016, and

iii) Between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications. And according to the Court’s order of 26 May 2017, approximately 230 cases were stayed pursuant to Re JM. (There are now about 330).

Charles J looked at the sticking plaster solution that the DoH/ MoJ were proposing

71.However, in my view, the possibility that the existing backlog falls significantly short of the number of applications and reviews that should and would be made if they could proceed cannot sensibly be ignored and so the approach of the Secretary of State which:

i) is expressed to provide resources to fund an additional 200 reports a year (and so 200 cases a year) taken with the ability of the existing visitors to clear a backlog of 230 cases (the figure mentioned in the evidence served by the Secretary of State, which has now increased), and

ii) does not include any contingency planning for (or even any recognition of) significantly more applications and reviews

falls well short of an approach that properly addresses the problems.
72.Accordingly, the present resources that the Secretary of State has indicated will be provided is based on an inadequate assessment and it is highly likely that those resources:

i) will at best only provide a short-term fix,

ii) will not to provide an ongoing resource that will enable the COP, to apply a fair and Convention compliant procedure in the applications and reviews that should and would be made and reviewed each year in cases such as those that have been stayed pursuant to JM, and so

iii) absent further resources being provided, another backlog of these cases will build up or if that is avoided they will create significant delays in other types of applications to the COP
73.I repeat the warning that further judicial and administrative resources would be needed to enable the COP to deal with a significant increase in the number of such applications and reviews each year.

Charles J had to consider whether a professional independent Rule 3A representative would be better than a visitor doing their best. It isn’t a surprising analysis

81.In my view, the appointment of a professional who could act independently as a Rule 3A representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor.

82.As I have said the Secretary of State does not address the issues referred to in paragraphs 57 and 77 above and paragraph 150 of JM and so has not provided any evidence to support an argument that such a resource is likely to be available as a preferred option in a significant number of cases.

83.Also, I have concluded that even if applicant local authorities owe an HRA duty:

i) the COP should look to the Secretary of State to provide the relevant resources to enable it to act lawfully, and

ii) the appointment of professional Rule 3A representatives is still an option that is not practically available in significant numbers of cases.
84.The points made in the last four paragraphs mean that if I had to choose an order of preference as between the appointment of a professional Rule 3A representative and a visitor I would select that advanced by the local authorities.

85.However, this does not mean that the COP in exercising its best interests jurisdiction should not be informed about the availability of a professional Rule 3A representative in each case so that it can assess whether that person (who by definition agrees to act) would be a better option, for example, because of his continuing connection with P and the reliance the COP can place on his independence and expertise. Indeed, the need for this information arises from my preliminary observation that a presumptive approach is inappropriate.

86.The Secretary of State sensibly accepts in his evidence that generally the COP can and should accept an assertion from an applicant authority that a professional Rule 3A representative is not available for appointment at face value. I say sensibly because as recognised in the evidence of the Secretary of State (in different terms) it would be folly for the COP to require evidence about and to investigate such availability and so turn what is presented as an uncontroversial application into one that has a dispute which the COP probably could not resolve without hearing oral evidence and does not have the investigatory resources to conduct without having evidence called and cross examined.

87.This approach of the Secretary of State, like the letter dated 18 April 2017 referred to in my directions, supports the conclusion that in practice such professionals are not available for appointment in a significant number of cases and so the view that the disagreement about the order of preference is based on a wish to keep the budgetary issues, and so what central and local government should provide, alive.

88.The result of the COP proceeding on the basis that it will generally accept an assertion by an applicant authority that a professional Rule 3A representative is not available at face value is that in most cases the COP will appoint a visitor for so long as that remains a practically available option.

So, IF you can have a professional Rule 3A representative, you should have one, if the LA says there isn’t one the Court should accept their word for it rather than carrying out a long, painstaking and expensive enquiry into that, and if there isn’t one, we’ll have to make do with the COP appointing a visitor to do it.

The way ahead
94.I suggest that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. It seems to me that in cases in which local authorities in reaction to invitations made in the standard letter, or as a result of updates (see the quotes in paragraphs 7 and 9 above), or otherwise have not sought to lift the stay an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. But I acknowledge that a different approach may be more convenient and enable the COP to clear the backlog more efficiently having regard to its available judicial and administrative resources and the availability of visitors.

As Charles J indicated earlier, even this is just a sticking-plaster solution – just to be in place until something is properly worked out


37.As appears below, I have concluded that the present offer of resource is not likely to provide anything but a short-term solution. However, in my view this prospect and so a return to the present and very unfortunate situation that the COP has to stay applications that should be determined because it cannot determine them lawfully does not mean that it should not utilise this resource and the lawful procedure it provides for as long as it is available in practice.

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Learning disabilities – an interesting and sad judgment

Posted on January 15, 2018 by suesspiciousminds

This judgment is not binding upon anyone not directly involved in the case, being a decision of a Circuit Judge, His Honour Judge Dancey.

But I think that it provides a very accessible summary of the guidance on working with parents with learning disabilities and also it contains within in a judgment that is written directly for the parents, which I’ll set out below.

The central issues in the case were – were the assessments fair and did they properly take account of the guidance AND if the parents needed X hours of services a day (in this case said to be 12-16 hours per day) ought they be given that to keep the family together or is that an unrealistic expectation?
A Local Authority v G (Parent with Learning Disability) (Rev 1) [2017] EWFC B94
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B94.html

Speaking as a Local Authority lawyer, cases involving learning disabilities are the very hardest cases to deal with – you are dealing with parents who have absolutely no intention to harm or mistreat a child and are doing their absolute best – usually by the end of the case the parent could have done nothing more to show the Court their love and desire to parent. Yet so often they have unhappy endings, often this being more common than cases where parents have behaved selfishly, foolishly or abusively but have the ability and wherewithal to stop doing that. It feels like there should be something for these parents, who have done nothing wrong other than to demonstrate that they have limitations outside of their control. I don’t know what that something should be, and I have no idea what that something would cost, (as my friend Becca Carr-Hopkins is fond of saying to me “and what would that LOOK like?”) but they are the very worst hearings to do.

I would rather have four awful paedophile cases than a case where the parents have tried their best but their best is not enough because of the disability they were born with. People who have already had a difficult hand dealt to them in life, who have to be told that although they are not bad people and have all the love in the world the State is about to make their painful and difficult life still more painful and difficult. I wish central Government would make funding available so that there could be something to properly support parents of this kind.

Anyway, I’ll start with the portion of the judgment written directly for the parents – I have praised Jackson LJ in the past for doing this and it is nice to see his lead being followed

ANNEX A

1.C and D have two children, K aged just 3 years and T aged nearly 20 months. C also has an older child A whose father died when she was 3.

2.The local authority say that C and D cannot look after the children well enough.

3.Sadly C has a learning disability and is partly deaf. This means that she struggles to look after the children. D doesn’t have a disability. He is C’s carer. He has not really supported C to look after the children as he should have done.

4.A has already gone to live with Mr and Mrs N. They are now her special guardians. A is happy there and wants to stay. C and D accept that. They are not asking for A to come home.

5.The local authority ask me to make orders putting K and T in their care. They also ask to be allowed to place K and T for adoption. That would mean ending K and T’s ties and contact with C and D completely. They would become members of a new family.

6.C and D don’t agree. They say they could look after K and T if they were supported properly.

7.I accept that C and D couldn’t look after the children as well as they should. I am not going to write down here everything I have heard about. But K and T have not been looked after properly. C and D did not watch out for K and T well enough. Also they did not have good routines. Sometimes they were dirty and missed out on meals. But also C and D found it difficult to get in tune with K and T’s emotional needs. Sometimes they didn’t pay them much attention. K got frustrated. She banged her head and bit people. T didn’t cry much or demand much attention. This was because he wasn’t getting much attention.

8.A had to look after K and T more than she should have. It was like she became a parent to them. She also worried about C. These were things a child shouldn’t have to worry about. A thinks she has lost out on some of her childhood.

9.I know that C and D looked after A well enough. But I think she had to start looking after herself when K and T came along. C and D cannot look after two very young children. They have different needs which C and D struggle with.

10.The local authority tried to help C and D with support. C and D didn’t think all the support was of the right kind. I agree the local authority could have done this better. The people who worked with C and D needed more training about learning disability. D could have done with more help as C’s carer. He could have helped himself more too.

11.C and D both had depression. I think that was a lot to do with the stress of trying to look after three children. Their depression has got better since they have not had the children. They have made some improvements too. The flat looks very nice now. It used to be cluttered and wasn’t very clean.

12.The problem is that C can’t meet the needs of the children on her own. D doesn’t give her the support she needs. I don’t think C or D really understand how worried the local authority are. I know they want to work with people to make things better. But I don’t think C or D can really change things in a lasting way even with support. I think if the children come home things will get worse again. C and D will probably get too stressed. And that might mean they get depressed again.

13.I have decided that the children need care that C and D cannot give them. They would need so much support that other people would end up parenting K and T instead of C and D. K and T would not know who is their main carer. That would probably cause them problems in how they make relationships.

14.So I have decided I cannot let the children come home. It means that I must make an order putting K and T in the care of the local authority. I must also let them place K and T for adoption.

15.It is very sad to have to make this decision. I know how much C and D love their children. They have come to court every day. They have listened carefully and patiently. They have tried their very best to help me. I thank them very much indeed. The children will know that C and D did their very best to keep them.

16.But I have to decide what is best for the children. And I have decided that nothing else will do.

The judgment also provides a very clear and helpful summary of both the law and the practical guidance, and I think it is a really good source for this

Parents with learning disability/Parenting with support
35.Where a parent has a learning disability the court must make sure that parent is not being disadvantaged simply because of their disability. The essential question is whether the parenting that can be offered is good enough if support is provided. In Re D (A Child) (No 3) [2016] EWFC 1 Munby P endorsed and recommended what was said by Gillen J in Re Guardian and A (Care Order: Freeing Order: Parents with a Learning Disability) [2016] NIFam 8. Those cases establish a number of important points relevant in this case:

i) Parents with learning difficulties can often be ‘good enough’ parents when provided with the ongoing emotional and practical support they need.

ii) The concept of ‘parenting with support’ must underpin the way in which courts and professionals approach parents with learning difficulties.

iii) Courts must make sure that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against parents without such difficulties. To that end parents with learning disability should not be measured against parents without disability and the court should be alive to the risk of direct and indirect discrimination.

iv) Multi-agency working is critical if parents are to be supported effectively and the court has a duty to make sure that has been done effectively.

v) The court should not focus so narrowly on the child’s welfare that the needs of the parent arising from their disability, and impacting on their parenting capacity, are ignored.

vi) Courts should be careful to ensure that the supposed inability of the parents to change is not itself an artefact of professionals’ ineffectiveness in engaging with the parents in an appropriate way.
36.Ms Harman says there are some features of this case that distinguish it favourably from Re D – (a) these parents cared for A for some years without concerns about her care (so there is a history of childcare that did not exist in Re D) (b) there have been no concerns about the children’s development and they have met milestones and (c) these parents are keen to accept advice and support.

37.Ms Harman also refers me to Kent County Council v A Mother [2011] EWHC 402 recognising (a) that parents with learning disability need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice, (b) a wider acceptance that people with learning disability may in many cases, with assistance, be able to bring up children successfully, (c) the need for professionals working with families and children to be trained to recognise and deal with parents with learning disabilities and (d) the need for Government Guidance to be followed.

Good practice guidance on working with parents with a learning disability (updated September 2016) DoH/DfES
38.The Good Practice Guidance was issued to address a lack of evidence of effective joint working between adult and children’s services. I gratefully adopt and adapt the summary of the Guidance set out by Ms Harman in her written submissions:

i) Services need to help enable children live with their parents (as long as this is consistent with their welfare) by providing the support they and their families require. This accords with the general duty of local authorities under section 17(1) of the 1989 Act to provide a range and level of services to safeguard and promote the welfare of children in need and their upbringing by their families (insofar as it is consistent with their welfare).

ii) Good practice is also underpinned by an approach to parenting and learning disability which addresses needs relating to both impairment and the disabling barriers of unequal access and negative attitudes. Such an approach recognises that:

… If the problem is seen as entirely related to impairment and personal limitations, it is difficult to understand how to bring about positive changes for parents and their children.

… If the focus is, instead, on things that can be changed (such as inadequate housing) and support needs that can be met (such as equipment to help a parent measure baby feeds), there are many more possibilities for bringing about positive improvements. [p4]

iii) There are five key features of good practice in working with parents with learning disabilities: [pii]


• accessible information and communication

• clear and co-ordinated referral and assessment procedures and processes, eligibility criteria and care pathways

• support designed to meet the needs of parents and children based on assessments of their needs and strengths

• long-term support where necessary

• access to independent advocacy

iv) Adult and children’s services, and health and social care, should jointly agree local protocols for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children. [1.2.1, p8].

v) It is important that services understand who is to take the lead on assessments:

• where there are no welfare concerns but adults need assistance with routine tasks of looking after children, adult learning disability services should take the lead on assessment and care planning

• where parents need support in the medium to long term adult learning disability and children’s services jointly co-ordinate assessment and care planning

• where intervention is required to prevent children suffering impairment to their health or development or significant harm, children’s services lead assessment and planning with specialised input from adult learning disability services (1.2.5 p12).

vi) Services in contact with parents with learning disabilities should use appropriate assessment materials and resources and/or access specialist expertise. Failing to do so will result in the parent receiving an unfair and therefore invalid assessment, in breach of their legal rights. [1.2.6, p13].

vii) Where a parent has a learning disability it will be important not to make assumptions about their parental capacity. Having a learning disability does not mean that a person cannot learn new skills. [p13].

viii) In the case of parent support services, an assessment of a parent’s learning needs and circumstances should inform the support provided to develop parenting skills. Research indicates that – for parents with learning disabilities – the key elements of successful parenting skills support are:

… clear communication, and ensuring parents have understood what they are told

… use of role-play, modelling, and videoing parent and professional undertaking a task together, for discussion, comparison and reflection

… step by step pictures showing how to undertake a task

… repeating topics regularly and offering opportunities for frequent practice

… providing/developing personalised “props”: for example, finding a container which will hold the right amount of milk for the child so that the parent does not have to measure out the milk. [p16]

ix) A range of services is required. All families are different and at different stages of their life cycle families require different types of support. [1.3.3, p16]

x) A need for long-term support does not mean that parents cannot look after their children. [1.4.1, p20]

xi) Although a parent with learning disabilities can learn how to do things, their cognitive impairment will not go away. Just as someone with a physical impairment may need personal assistance for the rest of their life so a person with learning disabilities may need assistance with daily living, particularly as new situations arise. Secondly, children and their needs change. A parent may have learned to look after a baby and young child and be coping well. However, as the child enters adolescence other support needs may arise. [p21]

xii) Where a need for long-term support with parenting tasks is identified, it should form part of the community care and/or child in need plan. [1.4.2, p21]

xiii) Advocacy and self-advocacy should be made available to help parents access and engage with services. The Care Act 2014 imposes a duty on local authorities to provide an independent advocate where an individual would otherwise have substantial difficulties in being involved in processes such as their own assessment and care planning. [p22]

xiv) The Equality Act 2010 imposes a duty on local authorities to make reasonable adjustments so as to eliminate discrimination and to advadvance equality of opportunity; the provision of an independent advocate may assist with this. The Human Rights Act 1998 entitles a parent to participate fully in the process; this includes stages prior to any formal legal proceedings being initiated. [p22]

xv) It is particularly important to avoid the situation where poor standards of parental care, which do not, however, meet the threshold of being of significant harm to a child, subsequently deteriorate because of a lack of support provided to the parent. A failure to provide support in this type of situation can undermine a parent’s rights to a private and family life, and may also contravene an authority’s disability equality duty. [p25]

xvi) Families affected by parental learning disability are likely to have an on-going need for support. [p27]

xvii) When children are placed in foster care, parents should receive practical support to maximise their chances of improving their parenting capacity. Without this, parents will have little chance of reunification with children who have been removed from their care. [2.2.12, p29]

xviii) Both children’s and adult workers will need specific training in order to respond appropriately to the needs of families affected by parental learning disability. Child protection training strategies should include adult learning disability services. [p38]

xix) It is essential that assessments, training and support are both timely and appropriately tailored to the parent with a learning disability. Failure to build in, from the outset, the extra time that a parent with a learning disability needs in order to learn and understand, puts that parent at a significant disadvantage in child protection proceedings, compared to parents without a learning disability. [piii]

xx) There must also be joint working across all the agencies (in particular adult and children’s services) and appropriate and effective communication permitting parents to participate fully in the process. [piii]

Turning now to the case in question, the Judge did uphold several of the criticisms made by the parents of the assessments and support

Discussion and conclusion
215.There is in my judgement considerable force in the criticisms made by Ms Harman of the assessments of the parents and the support given to them. In particular:

◦the local authority does not have, as it should, a protocol for dealing with parents with learning disability (or not one that the professionals were able to tell me about, which amounts to the same thing) and that reflects in the approach in this case;

◦a protocol would focus on the Guidance which has not always been followed in this case – and to describe the Guidance as a ‘counsel of perfection’ is to give a charter to ignore it which should be robustly challenged;

◦those working with the mother should have been trained in dealing with parents with learning disability which would have given them better direct understanding during assessment and teaching how best to work with her and how to deliver the right support;

◦I do not consider it necessary to have had somebody from the ALDT present at every session; what was required was sufficient training of those that were there (and not just reliance on their experience of dealing with people with learning disability);

◦there has not been enough focus in this case on planned support and a positive strategy to try and keep this family together:

◦rather LW’s focus (see paragraph 193(h)(v) above) was on a solution for the children within their timescales rather than supporting the parents – the two are not necessarily inconsistent if support is provided in a timely and efficient manner;

◦in fact there were unacceptable delays in carrying out assessments and establishing what support was needed, creating a conflict with the children’s timescales;

◦JT said that the parents had not put forward proposals as to the actual support the various agencies could offer – this ignores that it is the local authority which should be making an assessment of the support that can be offered and that should include what is available from outside agencies as well as inhouse support;

◦there could and should have been more focus on repetitive teaching using role-modelling and example as recommended by Dr K (I accept the health visitor used these techniques but there was little hard evidence of it in the FAST work);

◦a more co-ordinated response to the father’s evident need as a carer of the mother should have been put into effect earlier with a support package rather than leaving him to his own devices;

◦work with the parents should have continued after the children were removed not least to assess whether they were making necessary changes;

◦it was unfortunate that, as in many cases, these parents have had to deal with a number of different social workers, five in this case – that has an impact both on the need for vulnerable parents to re-build new relationships with professionals before and during stressful proceedings and professionals’ continuity of knowledge and experience of the family.

216.Having accepted those criticisms I also accept the following points:

◦all the professionals did their best;

◦the Guidance was followed to the extent that Children’s Services took the lead and consulted with the ALDT as the specialist service;

◦the FAST workers and social workers sought to follow the advice given by the ALDT about how best to work with the mother;

◦the materials they used – picture books and charts – were not in themselves inappropriate, particularly given the presence in the home of the father and his supposed ability to support the mother – it is just that more was needed by way of direct example and repetition;

◦lots of support has in fact been given to the family as set out by Mr Howard, I just question whether it might have been more structured and planned had the Guidance been followed and a protocol been in place;

217.I do not see that the criticisms are met simply by saying that one of the parents did not have disability. The fact is, as this case shows, that whenever working with a parent with a learning disability, the Guidance should be followed.

There’s only one part of the judgment that I don’t quite agree with, and that’s here

248.I do not read Re D or the Guidance as requiring local authorities to provide support to the extent that it amounts to substitute parenting. If a parent had such a physical disability as to require substitute parenting then I would expect the result to be the same, so I would not accept that this conclusion is discriminatory of parents with learning disability.

The first bit, I think is absolutely right – I don’t think Re D or the Guidance says that a Local Authority has to provide the sort of support that means that really a parent is not providing any real parenting but the parenting is being done by professionals and support agencies with the parents just being present. It is the comparator with physical disabilities I am not sure about.

If a parent had such a physical disability as to require substitute parenting then I would expect the result to be the same, so I would not accept that this conclusion is discriminatory of parents with learning disability

I don’t know. If a parent was blind, and needed another adult in the home to ensure that the child wasn’t putting themselves in harms way, would a Local Authority be issuing care proceedings because the blind parent doesn’t have another adult in the home? Would threshold even be met on that basis? I think it is wrong, repugnant even that there is a two-tier approach between physical disability and learning disability, but I do think that there is one.

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Medication, ooh, medication, medication – that’s what you need

Posted on January 8, 2018 by suesspiciousminds

An interesting case decided by Recorder Howe QC, which touches on a number of important legal principles (and also to boot contains a lot of masterful understatement like this :- “Unfortunately, T was not proficient with the use of the toaster”)
T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B1.html

The key legal questions in this case were :-

1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?

2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?

3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?

4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?

These are all really good questions, and I’m pleased to see so many of the cases that I’ve blogged about coming into this judgment.

T was undoubtedly a very challenging child. He is now 13 years old and has autism. Dr Singh described his behaviour at the residential unit


67. As explained by Dr Singh in his report, T exposes himself to the likelihood of significant harm by:

(a) pulling out his hair from his head and pubic area;

(b) dismantling appliances and furniture;

(c) ripping off and tearing his clothes;

(d) smearing faeces and

(e) kicking-in doors when angry.
68. When angry and upset, Dr Singh describes that T will:

(a) bite;

(b) gouge at the faces of staff members;

(c) pull hair;

(d) spit;

(e) pull staff by the arms;

(f) hit and scratch.

Within the mother’s care, T was doing many of these things and I give this as a particular example

The behaviour did escalate and T then began digging holes in the walls, which was an activity M was unable to prevent and exposed T to the risk of significant harm as he would expose electrical wiring when digging into the walls within the house. I was told about 1 very large area on one wall that T had dug into that measured some 2 meters or so across and as far up the wall as T could reach

Let us look at the first question

1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?

The Recorder analyses the law in this regard with precision and brevity. I can’t improve on that, so I’ll just quote him in full

In describing the background to the current applications, I will address some matters upon which the parties do not agree. I will give my findings on these disputed matters when setting out my narrative of the history and when doing so I apply the following principles:

(i) The burden of proving an allegation rests with the party who is making it;

(ii) The standard of proof is the simple balance of probabilities;

(iii) Findings must be based on evidence and on inferences that can properly be drawn from the evidence but cannot be based on mere suspicion or speculation;

(iv) Evidence cannot be evaluated and assessed in separate compartments. A judge in these cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to a conclusion.
12. In her closing submissions, Ms Wordsworth relies upon the judgment of the President in Darlington Borough Council v M and Others [2015] EWFC 11, as endorsed by the Court of Appeal in J (A Child) [2015] EWCA Civ 222, where at §56 Aitkens LJ said:

“Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.”
13. It is M’s case that she has provided her response to a number of matters in the witness box and, where her oral evidence is in conflict with a recording put to her, it is submitted that I should prefer M’s oral evidence where the author of the recording has not appeared before me.

14. Hearsay evidence is admissible in these proceedings concerning a child but I must carefully assess the weight to be given to any hearsay evidence, particularly where that hearsay evidence is disputed by M. When undertaking this task, I have reminded myself of the views expressed by Hayden J in Westminster City Council V M, F and H [2017] EWHC 518 (Fam), where at §25 he said:

“The Local Authority must, ultimately, assess the manner in which it considers it can most efficiently, fairly and proportionately establish its case. The weight to be given to records, which may be disputed by the parents, will depend, along with other factors, on the Court’s assessment of their credibility generally. Here, the reliability of the hearsay material may be tested in many ways e.g. do similar issues arise in the records of a variety of unconnected individuals? If so, that will plainly enhance their reliability. Is it likely that a particular professional e.g. nurse or doctor would not merely have inaccurately recorded what a parent said but noted the exact opposite of what it is contended was said? The reaction of witnesses (not just the parents), during the course of oral evidence, to recorded material which conflicts with their own account will also form a crucial aspect of this multifaceted evaluative exercise. At the conclusion of this forensic process, evidence can emerge and frequently does, which readily complies with the qualitative criterion emphasised in Re A (supra)…

I would add to my analysis above the observations of Dame Elizabeth Butler Sloss in Re T [2004] EWCA Civ 558 at §33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

The LA have to take stock as to whether to call witnesses where the documents are disputed – it is going to depend on the nature of the evidence and the presentation of the witness who disputes the documents. There’s obviously a risk in not calling the witness, but it has to be weighed up how to efficiently fairly and proportionately establish the LA case.

2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?

The law on this is annoyingly fuzzy.

In Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, His Honour Judge Bellamy, sitting as a Judge of the High Court (this is the ‘forensic ferret’ case) considered that it was NOT necessary to prove or for the Court to find that the parents were culpable or responsible for the child being beyond parental control – it was sufficient to prove that the child WAS suffering significant harm and that the child was beyond parental control with the fact that he or she was beyond parental control being a contributory cause to the harm. A contributory causal relationship between the harm and the child being beyond parental control suffices. (i.e Re K says that you can find threshold met on beyond parental control WITHOUT the parents having to be to blame for this)

BUT

In Re P [2016] EWFC B2 (26th January 2016), Her Honour Judge Redgrave gives a judgment in which she expressly disagrees with the decision of HHJ Bellamy in Re K. The facts of the case were similar in many ways. The child P had suffered significantly disrupted early attachments that had caused her to develop serious mental health problems. P was adopted but that adoption broke down as a result of the behaviour displayed by P. The local authority did not attribute any culpability to the parents for P suffering harm as a result of her behaviour but attributed the significant harm to P being beyond parental control. Upon the local authority applying to withdraw the proceedings, HHJ Redgrave was invited by the parents to determine whether threshold would have been met had the proceedings continued; the central issue being whether the section 31(2)(b)(ii) requirements were met on the facts as alleged by the local authority. It was argued by the parents that as P was exposing herself to significant harm as a result of her mental health problems, there was no evidence that this was in any way attributable to the fact that she was beyond parental control and, therefore, threshold was not satisfied.

80. At §15 of her judgment, HHJ Redgrave says:

“Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy’s judgment in Re K (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.

There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued.”

I will be very candid – I don’t like the decision in Re P – I think it is important, and indeed fundamental to the construction of the threshold criteria that there are some situations in which a child can be suffering significant harm as a result of their behaviour being uncontrollable where the Court can make the orders needed to manage the child WITHOUT the parents being blamed. It crops up a lot on adoption breakdown cases, but also happens with parents as here who are dealing with incredibly challenging behaviour. So I have a horse in this race – I think Re K is right, and Re P (respectfully) is wrong.

So this part of the judgment had me on the edge of my seat (I’m easily intrigued)


86. If I was to follow the reasoning adopted by HHJ Redgrave, a child who was suffering significant harm by reason of being beyond the control of the parent, but due to the characteristics of the child’s illness or impairment and not for any lack of parental effort or ability, the child could not, if the parent objected, be removed to safe care as threshold would not be met.

87. The facts of T’s case demonstrate the difficulty. M does not recognize that T is beyond her control. M has not been able to prevent T from exposing electrical wires, removing pipes from the boiler so as to cause the leakage of carbon monoxide or eating and smearing his own faeces. M has been unable to prevent T from removing his own clothes or been able to require him to dress when in company. T was, in my finding, beyond M’s control. When undertaking all of these activities T has, in my finding, suffered significant harm or been likely to suffer significant harm.

88. I have found that M has minimized the difficulties that she has experienced in providing care for T. His actions arise as a result of his ASD and learning difficulty and Dr Singh has advised that any home carer would be unlikely to be able to meet his needs. If I was to accept that section 31(2)(b)(ii) was only activated if a child was beyond parental control by reason of some want of effort or ability by a parent rather than as a consequence of T’s impairments, that would undermine the ability of any local authority to protect children without embarking on a finding of fault exercise that will, in many cases such as this, be an enquiry that the local authority will wish to avoid.

89. I have said repeatedly, during the course of this hearing, that caring for T must have been hugely challenging for M. It is impossible not to have sympathy and compassion for her given how T’s behaviours developed in ways that M could not have predicted. I have made findings that M did not always accept and act on advice and those findings do, in my judgment, satisfy section 31(2)(b)(i) and I so find. However, in my judgment, it is important to recognize that section 31(1)(b)(ii) was intended to be a true ‘no fault’ limb of the threshold criteria. A child can expose itself to harm by reason of its own behaviour, whatever the cause for that behaviour, and the state needs to have the ability to intervene and protect such children from the harm they cause to themselves if they do not respond, or are unable to respond, to the attempts of their parents or carers to protect them. Therefore, it is necessary in my judgment to interpret the wording of section 31(2)(b)(ii) “in the manner which best gives effect to the purposes the legislation was enacted to achieve”.

90. In my judgment it is immaterial whether a child is beyond parental control due to illness, impairment or for any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied, the court then has to determine if the child is suffering or is likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that 2nd question is ‘yes’, then section 31(2)(b)(ii) threshold is, in my judgment satisfied.

91. I find, on the basis of the factual determinations I have made in the paragraphs above, as summarized in §87, that the threshold criteria under section 31(2)(b)(ii) are satisfied.

It isn’t a settled or binding answer, but it is certainly weight to put into the scales when deciding whether the Re K (no fault needed) or Re P (parental fault is needed) line is to be followed. I agree with these conclusions. I hope that it gets properly cleaned up in precedent soon.

3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?

I’m pleased to say that Recorder Howe QC and I are in accord on this. (I’m not sure that I ever quite grasped WHY Re AB reached that decision, but we both agree that it remains the law, having been only mentioned en passant by the Court of Appeal in Re D)

136. I have been referred to the decision of the Honourable Mr Justice Keehan in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam).

137. I have also considered the judgment of the President in Re D (A Child) [2017] EWCA Civ 1695. At §109, Munby P says:

“I should, for the sake of completeness, refer to [Keehan J’s] intervening judgment in In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160. This concerned a 14-year old boy, subject to an interim care order, who had been placed in a residential children’s home in circumstances which Keehan J found met Storck component (a). The question was whether, given the existence of the interim care order, either the parents or the local authority was entitled to consent for the purposes of Storck component (b). Keehan J held that they were not. That, as will be appreciated, is not an issue before us on this appeal. ”
138. Given that appeal decision in Re D did not affect the judgment given in Re AB, that decision remains good law. At § 29 of his judgment in Re AB, Keehan J stated:

“Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic “no”. In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57)”.
139. No party has sought to argue before me that the local authority can give consent to T’s deprivation of liberty at X unit and there is no dispute between the parties that, in the event that I approve the care plan and make a care order, a declaration authorizing the deprivation of T’s liberty is required. In the absence of such a declaration, T’s continued placement at X unit would be unlawful and in breach of article 5 ECHR. As set out by Keehan J at §34 of Re AB “The local authority, as a public body is required by s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right”.

And that leaves, finally, the medication question

4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?

Although in this case there had been a lot of discussion about risperidone (an anti-psychotic medication) and melatonin (a drug which promotes sleep) the actual prescription by a GP/Psychiatrist had not yet happened. It was plain that mother objected to her son being given this medication and therefore the Court was asked to give a decision as to whether IF such medication were prescribed the LA could use its powers under a Care Order (section 33 Children Act 1989) to overrule mother’s objection or whether a Court would have to be asked to decide.

(So the Court isn’t DECIDING here whether T should be given the medication, just whether if doctors said he should take the medication and mum says no, can the LA consent to it or does there need to be a Court order?)

There isn’t a direct answer to this question in the law, or clear understanding of how far section 33 extends or what its limits are.

Recorder Howe QC answers the question by looking at two areas where the Courts have ruled that section 33 is not enough to overrule a parent and a Court order is needed instead.

One is vaccination, following MacDonald J in Re SL (Permission to Vaccinate) [2017] EWHC 125 (fam), it is not appropriate for the local authority to override M’s wishes by giving its consent under section 33(3) Children Act 1989

And the other is parent’s choice of names (our old friends Preacher and Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/ )

In the case of C (Children) [2016] EWCA Civ 374,
http://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html

178. “In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court”.

180. Having considered in some detail the authorities referred to above, this local authority does, in my judgment, require the authorization of the court for Risperidone and Melatonin to be administered to T. I find this for 3 main reasons:

(a) each drug, whilst commonly used with autistic children, has recognized and serious side effects;

(b) T’s impairments are such that I am satisfied that he would have more difficulty in expressing that he was suffering side effects, were they to arise;

(c) If the administration of vaccinations and the change of a child’s first name are such serious interferences with the article 8 rights of a parent, so as to require an order under the inherent jurisdiction of the High Court to override the will of a parent, however unreasonable that parent may appear to be, it would be a nonsense for the reasonable concerns of this mother not to be of sufficient gravity to justify similar protections.
181. I appreciate that my decision undermines the power the local authority thought it had available to it under section 33(3) CA 1989. During the hearing of submissions, I raised myself the proposition that the administration of medication over a period of time, that is not a one-off or a short course, such as is the case with vaccinations and, indeed is the case with a change of name decision, might need to be seen differently. Dosages of medications can change. Frequency of administration of the drug can require alteration and it is simply not practicable for alterations in drug regimes to be managed by the court. However, having set that particular hare running, I have reached the conclusion that the administration of these medications, and especially the risperidone, involves such an interference with the article 8 rights of M, that any decision as to whether administration is to be started must be made by the court. Whether it is then necessary for the court to remain involved once that initial decision has been made, is a matter upon which I will hear argument at the next hearing.

So there you have it – some reported cases don’t tackle any questions of wider import beyond the case in question, some deal with one or two, but this one deals with four – the last one being potentially very significant for cases where a Local Authority is caring for children who need medication.

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High Court admonishes Guardian, psychiatrist and (to a lesser and interesting extent) Child’s Solicitor

Posted on December 28, 2017 by suesspiciousminds

Re F v H and Another 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/3358.html

This was a knotty and horrendous private law case in which parents separated and mother made a series of grave and utterly unfounded allegations that the father had sexually abused the child. She persuaded a series of doctors to undertake intimate examinations of the child and later left the country with the child when the Court hearings were going against her. The Family Court then placed the child with the father and directed that there should be a psychiatric evaluation of the mother to see if there was any prospect of contact taking place.

The judge said that “the court cannot envisage a situation whereby it could be considering looking at direct contact again other than where she has received extensive psychological therapeutic help.” The decision of the judge in respect of the need for the 1st Respondent to receive treatment prior to contact taking place or to any reintroduction of her mother was based on the welfare of B and the evidence of the 1st Respondent’s behaviour. It was wholly justified.

During the period where mother was awaiting criminal trial for the child abduction, she continued to make a series of allegations about father to professional agencies, all unfounded. Mother received a four month sentence for the child abduction offence, suspended for six months.

When the psychiatric report finally emerged, it wasn’t terribly useful, since the psychiatrist had decided to do the report without reading the judgment from the family Court about her behaviour that had led to the need for the report… And he believed everything that the mother said and recommended strongly that the FATHER was the one who needed a psychiatric assessment.

Safe to say that Ms Justice Russell was unimpressed by that approach.

28.There was no psychiatric assessment of the 1st Respondent so that on the 20th March 2017 when there is a further hearing before the judge this issue remained outstanding as the reports ordered by the court on 29th February 2016 and 25th May 2016 have not been produced. In March 2017, the Court again “made it clear” that this is 1st Respondent’s last opportunity to cooperate with a psychiatric assessment and she did not attend the next appointment arranged for her, her application would be dismissed and a s91(14) (CA) order would be made for a period of two years.

29.Finally, on 25th May 2017 the 1st Respondent was seen by a psychiatrist, Dr Oyebode, who filed a report on 5th June 2017. For reason that are far from clear to this court and to the court below Dr Oyebode conducted his assessment of the 1st Respondent without reading the court documents provided to him, including the judgments; instead he read and relied on the documents given to him by the 1st Respondent and the report of Dr Beider (who had not seen the documents or had access to them at all). Thus, his assessment was partisan, based on the 1st Respondents version of the history of events and on psychiatric evidence obtained outside the family court proceedings and without the permission of the judge.

30.Moreover, not only had Dr Oyebode had not challenged the 1st Respondent on the basis of the court documents or judgement (because he had failed to read them) he also accepted her assertion that the 1st Respondent had made no further allegations since 2014; this was patently untrue as she had made allegations in 2016 and sought to defend the criminal case on the basis of duress and necessity. He neither referred to or considered the 1st Respondent’s behaviour which led the court to make non-molestation injunctions against her. In direct contradiction of the judgment of the court he reached the conclusion that the 1st Respondent was a capable mother who had genuine concerns for her daughter’s welfare. He suggested that the Appellant undergo psychiatric treatment, having accepted the 1st Respondent’s version of events. Quite rightly the judge, at the hearing on the 9th August 2017, described Dr Oyebode’s report as offering the court no assistance and as being “completely flawed”.

That psychiatric assessment being worthless, the case then took a significantly wrong turn.

31.At a further hearing before the judge on 21st June 2017 B was joined as a party to the proceedings and on 5th July 2017 Catherine Callaghan (a Cafcass officer) was appointed as her guardian. Ms Callaghan was provided with some limited papers, consisting of parents’ last statements and Dr Oyebode’s report on 7th July 2017. She met the Appellant and B briefly on 19th July 2017. The guardian spent some two hours with the 1st Respondent on 26th July 2017. She did not receive the court papers, which include the judgments, until 28th July 2017. She could not have been, and was not in, a position to challenge the 1st Respondent’s version of events when she met her; and her views at the time would have be based on what she knew then, which included the flawed and inadequate report of Dr Oyebode. The Guardian did not see the parties or the child again. Although she had had sight of the case papers before preparation of her position statement this was not until after she had seen the parties and her meetings with them to place in ignorance of the circumstances of this case.

32.At six o’clock in the evening of 8th August 2017 the guardian’s solicitor sent her position statement to parties which included the recommendation that there should be direct supervised contact for the 1st Respondent with B. I shall return to her position below; but she had not prepared any analysis or report for the court, which considered the welfare of the child with reference to the statutory provisions contained in s1 of the CA 1989; nor did she explain to the court what form the contact would take; any details of the explanation of what was to happen, and by whom, would be given to the child. She did not proffer any advice to the court as to what would happen if, on the receipt of competent psychiatric assessment of the 1st Respondent, it was found that the risks to B of further harm was considered to be high, without some prior professional intervention. The judge did not hear any oral evidence.

33.The next day on 9th August 2017 the judge, in what she described as a finely balanced decision, which from her judgment, was a decision based largely on the oral submissions made on behalf of the guardian, acceded to the application made on the instructions of Ms Callaghan and made an order which provides for direct contact between B and the 1st Respondent supervised by the guardian herself. The judge stayed the order for direct contact until 30th August to allow for the application for permission to appeal to go before the High Court. In her short judgement, the judge set out her reasons for reaching the decision that some supervised contact should go ahead which, as previously observed were based largely, if not wholly, on the guardian’s recommendations.

34.The precondition for any reintroduction of contact, which the judge had repeatedly reiterated, was not only that the 1st Respondent’s mental health had to be assessed, but also that there should be some treatment with her commenced to avoid repetition of her previous harmful behaviour towards B. Following the oral submission of the guardian (who is not qualified to assess the 1st Respondent’s likely psychiatric or psychological response to any reintroduction to B) the judge reversed the decisions she had made previously. The decisions she had previously made were properly based on the evidence before the court that there should be prior assessment and treatment (as set out above) there was no evidence before the court which supported a reversal of that decision. Moreover, as a result of the inadequacies of the psychiatric report, on 10th August 2017 an agreed letter of instruction was sent to Dr Datta to carry out a further assessment of the 1st Respondent. This letter, agreed by the parties, contained the instruction that the “Mother continues to be of the view that [B] is not safe in her father’s care.”

Ms Justice Russell sets out in detail why the Judge was wrong to have resiled from her earlier position that contact could not be countenanced until there had been a proper psychiatric evaluation of the mother, and largely blames the Guardian for persuading the Judge to do so, and moreover, to have fallen into much the same trap as the psychiatrist – in conducting investigations and reaching conclusions without having properly engaged with the source material.

The father, obviously, appealed and that is how the case came before Ms Justice Russell.

37.The history of this case has been set out at some length as it forms the background to the decision the judge made on 9th August 2017. When viewed as a whole the harm caused to this child by her mother was significant. Not only was she found to have repeatedly subjected to intimate examinations, solely at the behest of her mother, she was prevented from having uninhibited relationship with her father as an infant. On any view, the repeated invasive intimate examination, as found by the judge and set out in her judgment, were in themselves abusive and any long-term effects on B, along with any emotional trauma that may have been at the time, has never been investigated or assessed.

38.The guardian has seen this child on one occasion for a brief period yet she has seen fit to reach conclusions as to the child’s resilience and current psychological and emotional status and ability to deal not only with the re-introduction of her mother but also with the possible, if not probable, cessation of contact should that prove to be necessary. There is no analysis of how she reaches these conclusions, no details of her qualifications to do so and no application of the welfare checklist in reaching her conclusions. Consequently, the judge was wrong to rely on them and to effectively reverse her previous decisions on what amounts to flimsy evidence.

39.The emphasis and assumptions of the guardian are apparently based on the need to reintroduce contact with the child’s mother. If so this is a misinterpretation of the law; although that the amendments to section 8 of the CA and section 1(2A), introduced by the Children and Families Act 2014 emphasised the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further the child’s welfare, this presumption is subject to the requirement that the parent concerned may be involved in the child’s life in a way that does not put the child at risk of suffering harm. This case includes findings of abusive behaviour towards B by her mother, which, if repeated would compromise the child’s safety and reintroduce the possibility of further harm, both physical and emotional.

40.B is a young and vulnerable child whose first few years of life were blighted by her mother’s irrational, abusive and harmful behaviour culminating in an B’s unlawful abduction. The courts can and should consider ordering no contact when the child’s welfare and safety demand it

(illuminating to compare and contrast with the Court of Appeal stance on the transgender father v ultra-Orthodox jewish community case earlier this month…)

Get ready for the pain

Conclusions
47.While it is understandable that the judge acceded to the guardian’s application, it is the decision of this court that she was wrong to do so. The guardian was quite simply not qualified or equipped to reach the conclusions that she did in respect of this child’s psychological and emotional resilience. She was even less qualified to assess the 1st Respondent’s mental state and her ability to conduct herself appropriately when B spent time with her. She had carried out anything other than a cursory consideration of the history, evidence and court documents before she briefly met the child with her father; little wonder failed adequately to explain the basis of her conclusions.

48.In a case such as this with a protracted, complex and convoluted history it is incumbent on the professionals who are called on to proffer advice and recommendations to the court, be they Cafcass officers or others concerned with child welfare, to fully inform themselves about the case and, at the very least, read through the judgments before they commence their investigations. Nor should they consider experimenting or trying out with contact for the child or children concerned against a background of previous harmful behaviour and abduction; in this case the guardian even accepted that contact may prove to be unsuccessful and be terminated or suspended again. Any contact that took place would have provided little or no useful evidence for the court as the guardian is unqualified properly to assess this mother’s ability to deal with and contain her behaviour. For that reason, and for those set out above this appeal will be allowed.

That’s a serious burn. Is it fair and justified? Well, I will leave that to the reader to decide.

The bit that interested me was this, however.

In relation to the position statement filed on behalf of the Child’s Solicitor (bear in mind that the child in question is 4 1/2, so absolutely no prospect of the child being competent to give instructions or even to give their views to the solicitor independently) the Court said :-

There was and are no submissions on behalf of the guardian as to why and on what basis she purported to have reached this conclusion on behalf of this child. A child who as, on any view, be subjected to repeated intimate physical intrusion, flight to Israel and had been fed misinformation about her father throughout her infancy. The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement.

I’ll give you the last bit again

The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement

I suspect there are many solicitors for children saying to themselves, well of course the solicitor acted solely on the instructions of the guardian. The child was 4 1/2.

Is it the place of the solicitor for the child to disagree with the instructions of her professional client (where the lay client is not in a position to give instructions?) – is it the place of the solicitor for the child to lay out in a position statement a case wholly in the alternative to that the Guardian is instructing should be pursued?

That seems a stretch to me. I think it is acceptable that the solicitor for the child ask the Guardian to address some of the consequences of the course recommended and provide analysis as to why, despite any adverse consequences it is the preferred option. But if the Guardian sticks by her course, I don’t think the solicitor for the child can advance in a position statement an argument contrary to her instructions.

(Of course, if the Guardian is making a mistake in law, or there is authority contrary to the position being advanced the solicitor for the child has to draw this to the Court’s attention, but I’m not sure that’s the case here. That possibility is raised earlier, so I may be misreading. It seems to me though that this is an issue not as to law and principle but a welfare and risk analysis by the Guardian. If the child’s solicitor and the Guardian disagree about welfare and risk analysis then they should thrash it out in discussions, sure, but ultimately it is the view of the Guardian that goes into the position statement and is advanced at Court, not the view of the child’s solicitor. )

I shall keep an eye out as to whether this theme recurs.

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He Pooles all his resources

Posted on December 27, 2017 by suesspiciousminds

This case is a Court of Appeal decision on something that I’ve never even contemplated before.

If a family are getting bullied or harassed by other local residents, and the Housing authority won’t rehouse the family – can the family SUE the local authority for failing to remove their children into care? (And by inference therefore, DO Local Authorities HAVE to remove children who are being bullied on their local estates if the Housing Department won’t evict the bullies or rehouse the family)

It’s a question that immediately made me go “what the eff? Of course not. And why on earth is a parent trying to sue a local authority for NOT taking their kids off them?”

They were though, see

8.Causation is pleaded in the following terms:

“6.3 On the balance of probabilities competent investigation at any stage would have led to the removal of the Claimants from home. A child in need assessment should with competent care have been carried out in respect of each Claimant by September 2006 at the latest. By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. [Emphasis added] With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at lest respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”

(Bearing in mind that the parents have the power to accommodate their child under s20 by simply asking, this really is the parents suing the local authority for failing to remove their children against their will….)

But it turns out that the answer given to the question first time around was, yes absolutely. And the answer given was in the High Court, which meant it was binding precedent for CJs and below (which fortunately we all missed because Housing lawyers, tort lawyers and care lawyers don’t talk to each other)

Hence there being an appeal. And if the answer stays yes, brace yourselves for a HUGE spike in care proceedings – which is JUST what we all want at this moment, amiright? #sorrytobreakyoursarcasmfilters

CN and another v Poole Borough Council 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/2185.html

Before we start, the title is obviously a play on Poole, and is drawn from my favourite ever Flaming Lips song, which means that it is close to being one of my favourite songs period, because the Flaming Lips are just great.

The song is about Wayne Coyne’s brother, who got high on drugs and decided to go to a convenience store, only when he got there he couldn’t really walk or talk and freaked out the people at the store who called the cops. That’s too simple for a Flaming Lips song, so Wayne adds in that his brother develops a superpower to summon up a host of waterbugs to attack authority figures who are hassling him. And despite the weirdness of the subject matter, it ends up being a song that feels poignant and delicate and beautiful. Enjoy.

But obviously

It was a pretty rotten situation for this family. Their child had severe physical and learning difficulties. There was another family on the estate, known for anti-social behaviour, who as the Court of Appeal say ‘predictably’ started to bully and behave dreadfully towards CN. CN attempted suicide.

You are already wondering why the family are suing the Children’s department of the LA (what we all still call Social Services) rather than Housing – since obviously what they wanted was to be rehoused.

That’s because there’s a firm and clear case called Mitchell, in which the House of Lords held that a person can’t sue the Housing department for this sort of thing.

58.Mr Mitchell was a secure tenant of the local authority, as was a neighbour named Drummond. After a long course of aggression and threats from Drummond, of which the council were fully aware, Drummond killed Mitchell. His widow sued, claiming that the council owed her husband a duty of care and should have intervened, at least by warning about a forthcoming meeting likely further to agitate Drummond. The council’s case was that they owed no duty of care to protect Mr Mitchell from criminal acts by Drummond.

So suing the Housing Department was out, and the lawyers acting for the family instead tried to construct a case on failure of the social services department to safeguard a child in their area from harm arising from the behaviour of people outside the family.

They were relying on a Court of Appeal authority called D v East Berkshire, which removed the previous blanket immunity of local authority social services departments against negligence claims (which had previously been a matter of public policy).

The Court of Appeal were somewhat critical of the failure of the legal representatives of the family to fail to properly grasp the nature of care proceedings. (They obviously weren’t family lawyers, and their understanding of care proceedings is probably on a par with my understanding of tort – I know the broad gist, but not the nuance)


108.Irwin LJ set out at paragraphs 6 – 8 above, the way in which this claim was pleaded namely that the children should have been ‘removed from the care of their mother’. Causation was pleaded as follows:

“6.3 …By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”
109.I readily acknowledge that lawyers drafting pleadings in a case of this type may not necessarily have specific expertise in relation to care proceedings. In my view however, it is unacceptable that there appears to have been no understanding of, or reference to, the statutory basis upon which the draconian order sought, (resulting in the unilateral removal of these children from their mother) could have taken place.

110.The pleadings baldly assert that “on application to the Court the Defendant (ie the local authority) would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant”. Such a statement fails to acknowledge that where, as here, a mother does not consent to the removal of her children from her care under an interim care order, the local authority must satisfy the court (pursuant to section 38(2) Children Act 1989) that there are reasonable grounds for believing that “circumstances with respect to the child are as mentioned in section 31(2)”.

111.Section 31(2) provides the ‘threshold criteria’ for state intervention in the care of a child:

“(2) A court may only make a care order or supervision order if it is satisfied-

(a) that the child concerned is suffering, or likely to suffer, significant harm; and

(b) that harm, or likelihood of harm, is attributable to-

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.”
112.On the facts of the case put before the court, it seems highly unlikely that it could be shown that there were reasonable grounds to conclude that the threshold criteria could be satisfied. Further, numerous Court of Appeal decisions have made it clear that satisfaction of the threshold criteria should not be equated with satisfaction of the case for the removal of a child from its parent. A care plan for the immediate removal of a child from its parent should only be approved by the court if the child’s safety demands immediate separation; see for example Re G (Interim Care Order) [2011] 2 FLR 955, CA. I note, for completeness, that there is no such order as a ‘respite care order,’ let alone as some sort of half way house to an interim care order.

113.In my judgment, the pleadings should have particularised the broad basis upon which it was said the threshold criteria was capable of being satisfied, and, having done so, why it was thereafter averred that the local authority would have been permitted to remove the children from the care of their mother absent her consent. Had that been done, it would have been apparent that not only was the proposal that these Claimant children should have been removed from their mother ‘utterly heartless’ and ‘utterly wrong,’ as characterised by Davis LJ, but legally unsustainable.

Davis LJ went further, and also threw in the word ‘legerdemain’ which is a particular favourite of mine.

116.In any event, I found the formulated claim, by reference to a duty of care asserted to arise from the availability of asserted remedies under the provisions of the Children Act 1989, most disconcerting. The true complaint in reality was about the failure of the housing authorities to re-house the entire family in the light of the activities of the neighbouring family. (Previous proceedings commenced by the claimants and their mother in 2012 against, among others, the Chief Constable of Police and PHP had, I note, not been pursued and were struck out in 2013.) That, as is now accepted, gave rise to no viable cause of action against the relevant housing authorities. To seek then to re-cast the claim for damages against the local authority by reference to an alleged duty to seek and obtain a care order under the Children Act 1989 seems to me little more than legalistic legerdemain, designed to overcome the insuperable obstacles to formulating a viable claim in attacking the housing authorities in the exercise, (or, rather, non-exercise) of their housing functions. The courts should not be prepared to entertain such a step.

117.It was never said that the mother was an unfit mother. She loved and cared for her (vulnerable) children. They loved and needed her. Nothing she did or did not do caused them any harm: it was the harassment of the neighbours which did. True she failed, in spite of all her efforts, to achieve the cessation of that harassment or relocation of her family. But that was not her fault. On the contrary, it was the various agencies which, rightly or wrongly, have been blamed. But why or how could seeking a care order with regard to the children be justified in such circumstances?

118.In the present case, it seems to me that seeking a care order from the Family Court, which potentially would split the family, would not simply have been utterly heartless: it seems to me that such a step would have been utterly wrong. In the circumstances of this case, there was no justification for potentially separating, without the mother’s consent, mother from children, children from mother by use of care proceedings. To countenance care proceedings in the Family Court in order to overcome (or provide a subsequent remedy for) the problems caused by the neighbours on the estate would be, I would have thought, tantamount to an abuse of the process of that court

The Court of Appeal held that there was nothing within this case, sad as it was, that met the very specific and narrow set of circumstances in which Person or Body A (the local authority) was legally responsible for the actions of a third party (the anti-social family living on the state). And thus the application was struck out.

Everyone can breathe now, we haven’t just had an entirely new basis for issuing care proceedings dumped on us. Thank goodness.

The Court of Appeal also suggest very strongly that D v East Berkshire is no longer good law and should not be followed, but as I don’t practice in tort, I’m not going to make the mistake of trying to tell anyone what significance that should have (or whether it just means that it isn’t authority for making a local authority responsible for the actions of a third party outside its control)

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Sin is not valid legal currency

Posted on December 20, 2017 by suesspiciousminds

A mind-blowingly tricky case, involving hot-button issues on either side.

A mother and father have five children, ranging in ages from 3 to 13. The family are all part of the ultra-orthodox North Manchester Charedi Jewish community. The father left the family home in 2015 and became transgender, he now lives as a woman.

The ultra-orthodox Charedi Jewish community view the father’s actions as ones of choice, and as a sin, and he would be ostracised from the community. If the children were to spend time with their father, they also would be marginalised by their community.

The Judge at first instance, Peter Jackson J (as he then was), concluded that the children would not be upset or traumatised by their father’s transgender status and would cope with it, but that they would be harmed by being ostracised within their religious community. It was a difficult balance expressed eloquently :-

8.Peter Jackson J identified (judgment, para 166) fifteen arguments in favour of direct contact which he described as “formidable”. He could identify (para 168) only two factors that spoke against direct contact. Of the first, relating to the father’s “dependability”, he found (para 172) that “if it were the only obstacle to direct contact, it could probably be overcome.” That left only one factor, which he described (para 173) as “the central question”, namely “the reaction of the community if the children were to have direct contact with the father.”

9.On this, his findings were as clear as they were bleak. He found (para 156) that:

“The children will suffer serious harm if they are deprived of a relationship with their father.”
10.Nonetheless he decided, as we have seen, that there should be no direct contact. He explained why. First (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father.”

Then (para 181):

“I … reject the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father. The truth is that for the children to see their father would be too much for the adults.”

And then this (para 187):

“So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact (emphasis added).”
11.We suspect that many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?

The case went to the Court of Appeal.

Re M (Children) 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/2164.html

2.This is an appeal from a judgment and order of Peter Jackson J, as he then was, made in private law proceedings between the father and the mother of five children, whose ages now range from 13 to 3 years old. His judgment was handed down on 30 January 2017: J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, [2017] WLR(D) 142. The judgment, which was necessarily lengthy, is freely available to all on the BAILII website, so we can be more limited in quoting from it than might otherwise be appropriate. We do, however, urge anyone who has occasion to read our judgment to read Peter Jackson J’s judgment first.

3.The order was made on 2 February 2017. It was expressed as being a final order. The judge dismissed the father’s application for direct contact (the children live with the mother). The order contained a child arrangements order providing for limited indirect contact, a specific issue order directing that the children were to be provided with “staged narratives” in age-appropriate terms, and a family assistance order under section 16 of the Children Act 1989, naming the children’s guardian as the relevant officer, to remain in force until 1 February 2018. The father sought permission to appeal; the perfected grounds of appeal are dated 17 March 2017. Permission to appeal was given by King LJ on 16 June 2017. On 27 October 2017, McFarlane LJ gave both Stonewall Equality Limited (“Stonewall”) and Keshet Diversity UK (“KeshetUK”) permission to intervene in the appeal, limited to making written submissions. On 10 November 2017, the father applied for permission to admit further evidence, which we admitted de bene esse.

4.The appeal came on for hearing before us on 15 November 2017. Ms Alison Ball QC and Mr Hassan Khan appeared for the father, Mr Peter Buckley for the mother, and Ms Frances Heaton QC and Ms Jane Walker for the children’s guardian. Ms Karon Monaghan QC and Ms Sarah Hannett filed written submissions on behalf of Stonewall and Ms Jane Rayson and Mr Andrew Powell filed written submissions on behalf of KeshetUK. At the end of the hearing we reserved judgment, which we now hand down.

The case in outline
5.The outcome of this appeal is of very great importance to the father, to the mother and the children, and to the ultra-orthodox North Manchester Charedi Jewish community in which the children have always been brought up. But in its potential implications this appeal is of profound significance for the law in general and family law in particular. For on one view it raises the question of how, in evaluating a child’s welfare, the court is to respond to the impact on the child of behaviour, or the fear of behaviour, which is or may be unlawfully discriminatory as involving breaches of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of the Equality Act 2010.

I suspect most readers have already formed a firm view as to what is the right outcome here – but I also suspect that not everyone will have the same firm view. It is decidedly tricky. For my part, I struggle to see how the views of an intolerant religious community should deprive the children of their relationship with their father (until such time as the children can make up their own mind about where their preferences lie), but I am mindful that I come to this as a wholly secular person who does not hold religious beliefs. Might I think differently about it if faith was a major part of MY life, as it clearly is for this family?

The judgment
12.Having thus introduced the issues which confront us, we turn to a more detailed analysis of Peter Jackson J’s judgment. After an Introduction (judgment, paras 1-11) and a section dealing with Terminology (paras 12-16), he set out a Narrative of events (paras 17-36), to which we refer the reader. For present purposes, there are only two matters we need to refer to. The first, (para 33) relates to the minutes of a “Team around the children meeting” held within the community in April 2016. Of these minutes, the judge made this observation (para 34):

“These Minutes are of interest. Not having been prepared with these proceedings in mind, they illustrate the prevailing mindset. There is at least as much concern for the community as for the children. The father was entirely ignored.”

The other matter relates to something which the judge referred to (para 36) as an example of the high level of tension surrounding the proceedings:

“In November [2016], on the first morning of the hearing, an unidentified member of the community posted this WhatsApp message:

“HELP! SAVE!

Family [name]’s (A Mother & her 5 Children) fate is in court this morning (for the next 10 days). Please Daven [pray] for them. We can’t afford to lose this case. The Rabbonim [rabbis] have asked for this message to be sent. The family know and want it to be sent. Pls forward this message. The koach of tefilloh [power of prayer] can achieve everything.””
13.The judge then turned to the law (paras 37-56). There has been no challenge to his analysis.

14.Then in a long section (paras 57-142) the judge rehearsed the evidence. For present purposes we can be selective. In the course of setting out the mother’s evidence (paras 69-77), the judge said this (paras 73-74):

“73 The mother described the father as having been “severely ostracised” by the community. She had no other experience of the reaction of the community to transgender or homosexual people, but described the problems for a neighbour’s children when their mother wanted to leave the religion and the consequences when one of her female cousins began to deviate in her style of dress. She said that she was very aware that the schools must uphold British values, but that “the parent body are the school”. Respect must be shown for people, no matter who they are, but at the same time the ethos of the school must be upheld, no matter what. Transgender is extremely alien to the community and against religious law. As for homosexuality, young children are not faced with it. As she put it: “I uphold the British law within our faith.” If there is a conflict between law and faith, she would follow her faith, though she would not commit a crime. The present circumstances put her in a very difficult position.

74 The mother said that there is no way that direct contact will work out for the children, for their identity, for their culture and for their whole environment. She said this, even though she knew that she and the children are entitled to legal protection against victimization. The schools would probably not throw out the children, but the environment would become hostile. The parent body would not allow their children to play with the children, and no one can tell others how to bring up their own children. “They will protect their children from contact. They wouldn’t want my children to suffer and will have every sympathy, but their own children will come first.” The children’s next schools would not have to take them, and could just say they were full. “Are we going to get the whole community to tell them off?” The mother can see the children being rarely invited to family events and festivities because people would be nervous about what they would say. There would be extreme supervision and the children’s participation would be kept at a very basic level. Already, A is being asked questions and is reluctant to commit himself fully within his peer group. This, said the mother, is “the reality – it’s who we are”.”
15.Particularly striking in this context, was the evidence of Mrs S, a very experienced foster carer who identifies herself as an observant modern Orthodox Jew, of whom the judge said this (paras 108-111):

“108 Mrs S, who clearly has a close knowledge of the workings of the community, described its unhappiness at children being fostered outside the community, though it acknowledged that she was a preferable carer to any of the available alternatives.

109 Mrs S provided two striking instances of the way in which children exposed to ‘outside influences’ will be ostracised. In 2015 Child A, a 15-year-old girl who had been sexually abused in the community was placed in her care. The girl was not invited to Hanukkah gatherings by her classmates. When Mrs S challenged the mother of one of the girl’s close friends about this, she explained that she could not risk her daughter hearing about “things” as children in the community were kept innocent and sheltered. When Mrs S described the distress that these actions were causing, the mother did invite the girl to her house, but only under strict supervision. The child lost her best friend and all her childhood friends. She now attends a different school and has absolutely no association with her former social circle.

110 Mrs S spoke of Child B, whom she had fostered from another ultra-Orthodox community. The child, aged 14, had been sexually and emotionally abused within her family and the wider community since the age of 11. She had made statements to her school about her abuse. The response had been to put her on a plane out of the country and invent a story to explain her absence. When she was returned to the country and placed in foster care, “all hell broke loose”. Mrs S said that she personally had a broad set of shoulders but that it had been a struggle to protect the child at the beginning. She was rejected by her family and no longer allowed to talk to friends. As Mrs S put it, “It’s the knowledge that is the issue.”

111 Mrs S freely described these as “awful case studies”, which she related to assist the court to understand that this response was the norm where religious culture, identity and laws are breached. She said that they were not “standout cases”. At the beginning of her fostering career, they would have had her “up in arms”, but she now saw this behaviour as being unchangeable – by local authorities, foster carers, courts and the law. “They will find a way around it.””

Of the cases described by Mrs S, the judge said this (para 178(3)-(4)):

“The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people … They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).”
16.Also of importance, as we shall see, in influencing the judge’s thinking, was the evidence of Rabbi Andrew Oppenheimer (paras 90-102). This part of the judgment requires to be read in full. Here we merely quote the salient passages. First (paras 91-92):

“91 Rabbi Oppenheimer describes Charedi communities as “warm, close-knit and supportive communities for which the teachings of Torah Judaism guide all aspects of their lives … The teachings of the Torah also highlight integrity, respect for others, peace and justice (including respect for the law of the country) and place the family and its welfare at the heart of life … Allegiance to the lifestyle … means of necessity that members have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society.”

92 Rabbi Oppenheimer was clear that transgender and procedures to achieve sex change violate a number of basic principles in Torah Law, including the prohibition against castration (Leviticus 22.24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22.5).”
17.Next (paras 95-96):

“95 In regard to the attitude of the community, Rabbi Oppenheimer writes:

“Where a person decides to take action likely to be irreversible to transgender, Ultra-Orthodox community members will invariably take the view that, by embarking on that course, the transgender person has breached the contract which they entered into when they married their wife to observe the Torah and to establish and bring up a family in accordance with its laws. Furthermore, members of the community will naturally wish to protect themselves and their families from any discussion of the painful issues involved, especially bearing in mind the sheltered position of the community from the standpoint of open society. Knowledge of transgender amongst children in the Ultra-Orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media. There is no known precedent in the UK of a transgender person being accepted living in an Ultra-Orthodox community.

The result will be that community members will expect the family of the transgender person to limit their contact with him or her as far as possible. If the family of the transgender person nevertheless seeks, or indeed is forced, to maintain contact with that person, they will open themselves up to very serious consequences indeed. The families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family’s children. The impact on the family in such circumstances in terms of social isolation will be devastating.

In considering the best interests of the children the obvious conclusion from the discussion above is that the children of an Ultra-Orthodox union cannot and should not be expected to have any direct contact with the father in such circumstances. It will no doubt be argued against this approach that it is cruel, lacking in tolerance, unnecessary and denies the rights of the father. But Torah law (Halacha) has the same approach to English Family Law in this type of situation, regarding issues of residence and contact, that the interests of the children are paramount. In other words the father is expected to give precedence to the needs of the children over his own needs.”

96 In his oral evidence, Rabbi Oppenheimer remarked that “ostracise” was perhaps not the best word to use for a process that would not be organised but more subtle and inevitable – “it would be so much more”.”
18.Then this (para 97):

“He … asserted that under the Torah and in reality a person is considered to have a choice, albeit a difficult one, as to whether they become transgender. If they do, they choose to place themselves outside the embrace of the community. In Torah law, to be gay or transgender is to be a sinner. Even though it may be looked on with compassion, and some people may extend the hand of friendship, that does not alter its unacceptability. The mother could not remain married to a person who made that decision. She should still seek in a constrained way to promote respect for the father but at the same time to protect the children from the consequences until they are old enough to deal with them. Young people cannot deal with these issues without undermining their faith. There is too much of a conflict to understand. There is therefore an obligation to protect the children from finding things out that are likely to damage them and cause them pain and suffering, likely to damage their growth and spiritual well-being. By educating children in the way of the Torah, they are brought up as upright people.”
19.And then, finally for present purposes, this (paras 99-101):

“99 Rabbi Oppenheimer explained that excluding ideas that might damage the development of children is “the price we pay – we limit ordinary social contact so that we transmit our spiritual ethos to the next generation”.

100 When pressed about the impact of ultra-Orthodox custom and practice in a case such as the present, Rabbi Oppenheimer replied with some warmth that this had nothing to do with emotions or feelings – it was contrary to Torah law for the children to be exposed to transgender. Further pressed as to the basis for this assertion, the Rabbi fell back upon the overriding consideration in Leviticus to be holy and to separate oneself from anything contrary to the Torah.

101 Indirect contact, on the other hand, would not, he thought, give rise to such a risk of ostracism, as it would not enable the children to have “a living relationship”.”
20.Pausing at this point there are two points which require emphasis.

21.The first is the community’s determination – what Rabbi Oppenheimer described as its “obligation to protect the children from finding things out that are likely to damage … their growth and spiritual well-being” – to shield its children from knowledge of and exposure to such matters as sexual abuse, homosexuality and transgenderism and, more generally, what Rabbi Oppenheimer called the “excesses of modern open society”; and to restrict its children from coming into contact with children who have such knowledge or have been so exposed.

22.The second is Rabbi Oppenheimer’s chilling explanation as to why indirect contact would not give rise to a risk of ostracism: “it would not enable the children to have “a living relationship”.”

23.Peter Jackson J’s response to this was brisk (paras 179-180):

“179 In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land. Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences. The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

180 It has also been said that transgenderism is a sin. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion. Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children.”
24.In striking contrast with Rabbi Oppenheimer’s evidence was that of Rabbi Ariel Abel (paras 78-83), who described himself as mainstream Orthodox and falling under the authority of the Chief Rabbi. He grew up in the North Manchester Charedi community and has experience of communities in London, Liverpool and Manchester at various levels of orthodoxy. The judgment (paras 80-81) summarised his evidence:


“Rabbi Abel emphasised the central importance of honouring one’s parents within Jewish law and tradition. He said that there is scarcely any circumstance in which the obligation to honour one’s father does not apply. Even if the father is an outright sinner, which is not in his view a consideration in this case, the obligation persists. He considered this aspect of the matter to have been left untreated by Rabbi Oppenheimer.

In relation to transgender, Rabbi Abel considered that there is a plurality of opinion and that the biblical position may be qualified. He contends that there is no valid reason why any person should plead ultra-Orthodox faith as a reason to disenfranchise a person in the position of the father. “There is no legitimate reason to maintain that children who are transgender-parented cannot experience in the ultra-Orthodox community a full and satisfying Orthodox Jewish life, physically, spiritually, emotionally and communally.” On the contrary, there is every reason to reunite parent and child as it is the well-being of the nuclear family and not the social preferences of the wider community that truly matter. He points to commentary by the noted encyclopaedist, the late Rabbi Waldenberg, in support of his contention that Orthodox Judaism, correctly understood, recognises the existence of, and to a certain extent accommodates, a number of non-binary identities, including transgender. He argues that the transgender issue cannot be ignored and that parents’ relationships with their children are inalienable.”
25.The judgment continues (paras 82-83):

“Rabbi Abel objected to the concept (introduced by Rabbi Oppenheimer) of the faith as a club from which people could be ejected, though he observed that this evidently happens. An approach of this kind, practically amounting to a belief, raises itself to the surface, usually in worst-case scenarios. This is a social cultural reality, not a valid Orthodox reason for separating children from parents. There is a lamentable habit of censoring. Children of divorced parents can be seated separately from other children and he had experience of this, something he described as beggaring belief. In his view, this should not be accommodated or excused in Jewish or English law. On the other hand, he had never heard of total ostracism in practice, provided the contentious matter was treated privately within the family, and not paraded before the community. However, he accepted that ostracism for these children could very possibly happen if the situation was not managed correctly with professional help. What was needed was psychological support: religious teachers should be kept out of it.

The Rabbi accepted that the present circumstances would be a challenge to the insular North Manchester community. He argued that when it comes to matters of life and death, you have to break free and seek to work with the unfamiliar problem. He gave as an example creative arrangements that might be made to allow the father to participate in A’s bar mitzvah. There are ways, and it can happen if there is a will. The issues are significant, but not insurmountable. The community is not monolithic, but multifarious. It will step back if proper arrangements are made by both parents. If the situation is unregulated, the community will take matters into its own hands. If direct contact was ordered, and the law laid down, he did not think that the community would “go to the wire” fighting an unwinnable battle.”
26.We have set this important evidence out in full because it seems to us to hold out hope of a change. Rabbi Abel demonstrates that there exists what we imagine is a lively debate, perhaps within this thoughtful, law-abiding and intellectual community and probably Orthodox Judaism generally, of the issues to which transgenderism gives rise. Does it not provide some support for a conclusion in this case that the views which drove the judge are not universally inflexible?

So even within the religious community there was a deep schism about what the Torah says and what in practice might happen if the children were to see their father. Of course, the Judge dealing with the case didn’t have to deal with what position the ultra-Orthodox community SHOULD take, but what position they realistically WOULD take

30.The judge then turned (paras 143-161) to consider the welfare checklist. For present purposes, we need refer only to this (paras 156-157), which really encapsulates the dilemma confronting him:

“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”
31.Finally (paras 162-191) the judge set out his Assessment and conclusion. He began as follows (paras 162-165):

“162 I find this a very troubling case. These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment. It is painful to find these vulnerable groups in conflict.

163 A great deal of time has been spent at this hearing on consideration of the laws and customs of the ultra-Orthodox community. This is natural, given that it is the community within which the children live. However, Ms Ball QC and Ms Mann for the father argue that one must not look only through an ultra-Orthodox lens. I agree. Despite its antiquity, Jewish law is no more than 3,500 years old, while gender dysphoria will doubtless have existed throughout the 120,000 years that Homo sapiens has been on earth. Both sides of the question must therefore receive careful attention.

164 Faced with this intractable problem, it is not for the court to judge the way of life of the ultra-Orthodox Jew or of the transgender person. The court applies the law, and in this case its task is to identify the outcome that best upholds the children’s welfare while minimising so far as possible the degree of interference with the rights of all family members.

165 Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the court would instead bring about the worst.”
32.He then (para 166) listed the fifteen “formidable” arguments in favour of direct contact to which we have already referred. In relation to the second factor identified by the guardian (see paragraph 28 above) he said this (para 172):

“… the father’s approach to contact would not be a reliable, static factor. It would be a variable amongst other variables. I share the view of the Anna Freud Centre and the Guardian that this must be taken into account when considering children’s welfare. It speaks for caution, but no more than that, and if it were the only obstacle to direct contact, it could probably be overcome.”
33.Turning to the “the central question of the reaction of the community if the children were to have direct contact with their father,” the judge (paras 174-176) summarised counsel’s competing submissions before expressing his conclusion as follows (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father. I say “driven” because I began the hearing with a strong disposition to find that a community described by Rabbi Oppenheimer as “warm, close and supportive” and living under a religious law that “highlights integrity, respect for others, justice and peace” could tolerate (albeit without approval) these children’s right to and need for a relationship with their father. The evidence that was available before the hearing contained dire predictions, but no actual examples of ostracism. I pointed this out, and this led to a number of new statements being gathered, including significant evidence from the foster carer, Mrs S.”
34.He explained his conclusion (para 178) in twelve sub-paragraphs of which we quote the following:

“(1) It does not depend upon any view of what Jewish law is in relation to transgender, but upon what the community is likely to think it is and act upon. It may be that the humane and progressive views of Rabbi Abel and Mr Bernard will one day gain acceptance in the ultra-Orthodox communities, but I consider that in the present day the community in which the children live and go to school will, rightly or wrongly, defer to the stance described by Rabbi Oppenheimer and the authorities he cites.

…

(3) The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people (emphasis added).

(4) I cannot distinguish these cases in the way suggested by Ms Ball. They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).

(5) There is a consistent account from all those within the community of how it will behave …

(6) The father [and his witnesses] all accept to a substantial degree that this is what the community is like. Their thesis is that it can be managed or made to change.

(7) There is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status (emphasis added). However, the fact that the practices may be unlawful does not mean that they do not exist.

(8) I was particularly impressed by the evidence of Mrs S, an informed outsider, who compellingly described the reaction of the community to situations of which it disapproves.

(9) I was also struck by Rabbi Oppenheimer’s unyielding defence of the religious and social position as illustrating the stance that can be taken by educated persons.

…

(11) There is no evidence that any person in a position of authority or influence within the community wishes to challenge the behaviour of its members, still less that significant change could be expected within these children’s timescale.

(12) In these circumstances, I do not consider that there is any real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this will be a bleak conclusion. However, these considerations cannot deflect the court’s focus from the welfare of these five children.”
35.He continued (paras 182-183):

“182 And here we come to the sad reality. I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father. In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – is too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards. The mother, a religiously observant person, would be required to sustain something that she has been taught is religiously wrong. A, aged only 12, is already extremely anxious about contact and now feels protective towards his mother and younger siblings. Embarking on contact would place him under extreme pressure, which would inevitably have a detrimental effect on his development.

183 The children, and the mother on whom they depend, would have no effective support to deal with any of this: on the contrary, they would face suspicion or outright opposition from every quarter. The likely result is that their individual and collective well-being would be undermined to the point where their ability to remain in the community would be put at risk, or at the very least placed under permanent and severe strain, with … “a negative impact on how they function in the widest possible sense both now and in the future”.”
36.He added (para 185):

“These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children. Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.”

The Court of Appeal had some very difficult issues to consider


42.It is important at the outset to be clear as to why the court – the State – is involved in the present case. It is because the parents have been unable to resolve their family difficulties themselves, whether with or without the assistance, formal or informal, of the community, and because one of the parents, in this case the father, has sought the assistance of the court. The court cannot decline jurisdiction. And, as judges sitting in a secular court, we must necessarily determine the case according to law, in this instance the law as laid down by Parliament in section 1(1)(a) of the Children Act 1989: see Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, paras 92-93.

They conclude that the case had to be sent back for re-hearing (note that they do not say that the father MUST have contact, just that the case needs to be re-heard )

Our reasons for disagreeing with the analysis of the judge
76.In our judgment, Peter Jackson J’s judgment is vulnerable on a number of grounds, all interlinked but which, for purposes of clarity and analysis, it is appropriate to keep distinct.

77.First, the judge, having arrived at his conclusion (judgment, paras 182-188), did not at that point step back and ask himself what, we think, were a number of highly pertinent questions. We have already touched on much of this, but it bears further elaboration. For example, he should, we respectfully suggest, have asked himself: how do I, indeed, how can I, properly accommodate this conclusion with my role as the judicial reasonable parent applying the standards of reasonable men and women today? Can I properly come to a conclusion dictated, as I have found (judgment, paras 34, 178, 181), by the practices of a community which involve discrimination and victimisation and where the community’s focus is as much on itself and the adults as on concern for the children or child welfare? Is it enough simply to proceed on the basis (para 185) that “These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this (emphasis added)”? Should I not directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court may have to consider drastic steps such as removing the children from the mother’s care, making the children wards of court or even removing the children into public care? Should I not directly and explicitly confront the mother and the community, which professes to be law abiding, with the fact that its behaviour is or may be unlawfully discriminatory? And, not least, how can this outcome meet even the medium let alone the long-term needs and interests of the children? How can this order give proper effect to the reality, whether the community likes it or not, that the father, whether transgender or not, is and always will be the children’s father and, as such, inescapably part of their lives, now, tomorrow and as long as they live? The judge’s omission to address these questions seriously undermines, indeed, in our judgment vitiates, his ultimate conclusion.

78.Secondly, and in saying this we are very conscious of the forensic reality that this part of the case was not much explored before him, and he did not, of course, have the benefit of the submissions we have had from Stonewall and KeshetUK, we are bound to say it is very unfortunate that the judge did not address head on the human rights issues and issues of discrimination which plainly arose. His judgment recites though largely without analysing (judgment, paras 44-51, 53-56) various Convention and statutory provisions to which the father in particular had referred. But apart from the passages we have already set out, the judgment says virtually nothing else about these vitally important issues – no doubt, in this respect, reflecting the limitations of the arguments that had been addressed to the judge. This is a matter we return to below.

79.Thirdly, there is much force in the argument that the judge did not sufficiently explain why, given the basis of the mother’s and the community’s objection to direct contact, it was nonetheless feasible to contemplate indirect contact. Indeed, there is little discussion of the issue in the judgment. The judge recorded the mother’s position as being (judgment, para 9):

“The mother had been opposed to any contact but, having seen the professional advice, now accepts that the children should have indirect contact with their father three times a year. She opposes direct contact of any kind during their childhoods as that, she claims, will lead to the children and herself being ostracised by the community to the extent that they may have to leave it.”

We have already recorded (paragraph 22 above) Rabbi Oppenheimer’s views on the subject. The judge was pressed in argument (judgment, para 174) with what we think was the well-founded point, “It is not clear why indirect contact is said to be acceptable, while direct contact is not.” After all, as we have observed (paragraph 21 above), the concern of the community is to shield its children from knowledge of and exposure to such matters as transgender, and to restrict its children from coming into contact with children who have such knowledge or have been so exposed. Surely, from that point of view, indirect contact must carry with it precisely the same kinds of risk as direct contact. The judge did not address the point, merely saying (judgment, para 188) that, having refused an order for direct contact, “I will instead make an order for indirect contact. I see no reason why this should not take place four times a year.” We emphasise that this is not an argument against indirect contact; on the contrary, it is, it might be thought, an argument in favour of direct contact.
80.Fourthly, we think there is considerable substance in the complaint that, as Ms Ball puts it, the judge “gave up too easily” and decided the question of direct contact then and there and without directing even a single attempt to try and make it work. The judge recognised, by making the specific issue order directing preparation of “staged narratives”, that there was further work to be done by the guardian and the Anna Freud Centre. As Ms Ball asks rhetorically, and in our judgment there is substance in the point, why not defer a final decision on direct contact pending the outcome of that, and perhaps further, work, including work by the GesherEU Support Network about which the judge (judgment, paras 84-89) had heard evidence? Moreover, as we have already observed, why not first directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court might have to consider the drastic steps we have referred to? Why not directly and explicitly confront the mother and the community with the fact that its behaviour is or may be unlawfully discriminatory? And why not attempt, even if the prospects may have seemed forlorn, the kind of step by step process adopted by Her Honour Judge Rowe QC in Re X (Number 1: Religious Differences: Schools) [2014] EWFC B230, Re X (Number 2: Orthodox Schools) [2015] EWFC B237, and Re X (Number 3: Division of Religious Festivals) [2016] EWFC B91. In our judgment, the decision which judge came to was indeed premature.

81.It follows that, in substance, the father makes good all three grounds of appeal.

82.The parties were rightly agreed that if this was our decision it would not be appropriate for us to determine what the outcome should be. The matter will have to go back for a further hearing which, in the circumstances, will be before Hayden J. Precisely what the scope of that hearing should be will be a matter for the judge. We do not anticipate a rehearing of the very full evidence on the religious views which Peter Jackson J heard but otherwise leave the scope of the evidence at the rehearing to the judge. That said, we need to make explicit what ought to be clear enough already. What we say about the community is based on the evidence adduced by the parties to these proceedings and on the findings of the judge. The community are not parties and have had no opportunity to make representations. Our observations about the community should be read on that basis.

83.In view of the fact that, for the reasons set out earlier, we propose to allow this appeal and remit the case to the family court for reconsideration, it is unnecessary for us to address at length either the issues of equality law which may arise or the issues under Article 9 of the Convention. However, we hope that it will assist the family court in its reconsideration of the case if we set out some of the issues that may have to be addressed, dealing first with equality law and then with Article 9.

The Court of Appeal then did address the equality issues

95.It is well-established on authority that discrimination which is motivated by a religious belief (however sincerely held and even if the discrimination is mandated by that religious belief) does not make discrimination under the Equality Act lawful: see Regina (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15, [2010] 2 AC 728, para 35 (Lord Phillips of Worth Matravers PSC) and para 65 (Lady Hale JSC). See also Regina (Williamson and Others) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246, para 58, where Lord Walker of Gestingthorpe cited with approval what had been said by Mason ACJ and Brennan J in the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, at 136:

“Religious conviction is not a solvent of legal obligation.”
96.In the present case we are anxious that no assumption should wrongly or unfairly be made that any school attended by the children concerned has acted unlawfully or will do so in the future. As we have already mentioned, if a school were to ostracise a pupil on the ground of his or her father’s transgender status, that would be likely to amount at least to the imposition of a “detriment” on that child which is unlawful under the Equality Act. The courts of this country expect schools to comply with their legal duties under that Act as well as generally.

97.Nevertheless, we are equally concerned that, should there be action by a school which is unlawful under the Equality Act, the courts of this country should not, as a matter of public policy, simply treat it as a factor to be weighed against permitting direct contact between the father and children. To do so would, in our view, be contrary to the rule of law.

98.Accordingly, when this case returns to the family court, we would expect the judge to consider very carefully:

i) whether there would in fact be unlawful conduct even in the face of an order of the court granting the father direct contact with her children; and

ii) to what extent such unlawful conduct should be given weight in the balance to be conducted in assessing what are the best interests of those children
….


115.When the present case returns to the family court we anticipate that the court will wish to scrutinise with care the suggested justification for the apparent discrimination which the father faces on the ground of her transgender status, not least to ensure that the court itself does not breach its duty under section 6 of the HRA.

What about the issues about religious discrimination? What guidance do the Court of Appeal give in that regard?

130.In the absence of any further finding by the judge about the nature of the debate on transgender in the Charedi community, we must proceed on the basis that the views which Rabbi Oppenheimer attributed to the Charedi community are the community’s views and that their actions to exclude the children would be an expression of those beliefs. That approach then puts their religious beliefs at their highest.

131.If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball’s submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 (see paragraphs 119 and following above). In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children.

132.The mother and children also have their rights under Article 9, but they are outside the discussion in these paragraphs. Clearly, the courts must likewise not restrict their rights to any greater extent than that permitted by Article 9(2). The courts have a statutory obligation under section 6 of the HRA to act compatibly with the Convention.

133.We can, therefore, return to the question whether, if this court were ultimately to make an order for direct contact, that would violate the rights of the community under Article 9.

134.It is not appropriate for us to give any final view in answer to this question as that stage has not yet been reached. Provisionally, however, it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being. As the President held in Re G, para 43:

“In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.”
135.In making that decision, the restriction under consideration would meet the requirements of being prescribed by law. It is part of the court’s jurisdiction to make orders regulating parents’ access to their children. It would be proportionate because it would not be made immediately on the father’s application, but only after a period of further reflection in which the court has had time to consider further evidence if it wished so to do.

So whilst the Court of Appeal say that they have not reached a conclusion about the merits of the case other than that it should be re-heard, they drop the heaviest of hints that if the trial Judge finds himself in this dilemma


“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”

Then the religious community are going to be the ones to lose out.

Very difficult case. Just in case the first hint was not over enough, the Court of Appeal hire a very large crane and use it to lower a heavier hint into position

Concluding observations
136.It may very well be when the matter has been further considered that there is room for some compromise position. As we have made clear, we consider that, under Strasbourg jurisprudence, each side has to be prepared to compromise. That means that it must be ready to make some concession, and the compromise must be one which is appropriate in a plural, democratic society governed by the rule of law.

137.Moreover, by the time any direct contact takes place, subject to the further directions given in these proceedings, these children are likely (as mentioned) to have had assistance of the highest standard in coming to terms with their father’s decision. We envisage that the assistance will make them aware of the need to be sensitive to the views of others, including (as at present) their own community, which is unable as we understand it to accommodate changes of identity within their own interpretation of their religious laws. These are difficult areas for the holders of faith, which underscores the need for broadmindedness and tolerance in our diverse society.

138.In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must, with respect to the learned judge, persevere. As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in their lives.

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Little end of year quiz (it doesn’t have a legal, or a Xmas theme)

Posted on December 19, 2017 by suesspiciousminds

Here are some photographs of famous people, in two batches. I want you to work out the connection between the answers in each batch (i.e what connects all the answers in group one, and what connects all the answers in group two). Hint time – you may be looking for the name of the actress OR the character they are well-known for portraying. Hint two – it may help, when you have your answers, to play around with different orders, because the order might be significant.

Please don’t guess in comments or on Twitter, as it will spoil it for others who are still working it out. You can slide into the DMs if you want. @suesspiciousmin

Batch 1

1.

Are we out of Curly Wurlies again Norris?

2.

Rollin’… rollin’… rollin’
(no, it isn’t Fred Durst out of Limp Bizkit)

3.

Apparently relationships based on really traumatic events never work out

4.

She’s not bad, she’s just drawn that way

5.

Hope you don’t bear a Grudge for my inclusion of this one. Became world famous because of dry cleaning

BATCH 2

1.

This one might be tricky. She trod the same path as Schofield, Peters and Crane (and was the first woman I ever used the word ‘fit’ to describe, back in the day)

2.

Frightfully posh English tennis player (also flew about in helicopters for channel 4). And also on my Crush list with the last one…

3.

Famous Dragon. And NOT on my Crush list. Though, that photo….

4.

Don’t be fooled by the rocks that she got. (and yes, girl rewrote the damn Crush list)

5.

And this one time at Band Camp…

6.

Used to make cake-based double entendres, now tells you how to win a Volvo on Sky Atlantic.

That’s your lot. Good luck.

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