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Alleged contempt, whilst in prison for contempt

 

This is a curious case, including the giving of evidence by the solicitor representing the person complaining of the contempt.

 

 

 

Egeneonu v Egeneonu & Anor [2018] EWHC 1392 (Fam)

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1392.html

 

Mr Egeneonu is a father of 3 children, who at present appear to be in Nigeria. Various Court orders have been made and the father was in prison for contempt of Court.

 

(I wrote about THAT contempt here

https://suesspiciousminds.com/2017/01/18/rock-bands-impenetrable-vocabulary-and-peers-of-the-realm-making-off-with-wards-of-court/

 

and as you can see from the title, it is a blogpost which covers some ground. Also, I see that I use a Bravo Two Zero reference within the post, which has made me smile.  It gets better with every read, Lynn. )

 

It is alleged that whilst in prison, the father made a series of telephone calls to Victor Egenonu (V) who is either his brother or his son, with a view to perverting the course of justice.

 

It is alleged that he failed to cause the children’s return from Nigeria in accordance with Court orders, that he caused false letters to be written purporting to be from the children giving their wishes and feelings and produced false statements from third parties.

 

The Court has not yet established either way whether those allegations are proven – the prima facie evidence for them is said to be telephone calls between the father and V, which were recorded by the prison and are said to set out the detailed plan for these actions between father and V. This hearing was to decide whether leave would be given to invite the Attorney General to consider whether to bring a prosecution (under Family Procedure Rules 37.13(2) – the copy of the FPR I have on legislation.gov.uk stops at 36, so I can’t tell you what that provision actually says, how curious. Because the allegations relate to perversion of the course of justice – the Court has to consider whether to approve release of the case to the Attorney General, who then decides whether to prosecute)

 

The father declined legal representation, despite being told that he was entitled to free legal representation and the possible consequences for him of not doing so.

 

 

 

Amongst the documents filed by the father was –

 

 

  1. v) A statement from Chief Ted Ofoduru, a traditional chief in Nigeria which pointed out that this court has no power or right to tell ‘us’ what to do.

 

Which might explain why the father is not following the well-known maxim of Abraham Lincoln about a man who represents himself.

 

That’s all quite interesting, but where it gets more interesting, is the discussion of how Mother’s team HAD the prison phone call transcripts

 

  1. i) On 11 August 2017 Roberts J made an order in the following terms

 

HM Prison Thameside/HM Prison Service shall…. Provide the following information and documents

 

 

 

(a) Provide the itemised call records in relation to all telephone calls made and recived by [F} from hs incarceration

 

 

 

(b) Confirm whether or not the telephone calls are recorded

 

 

 

(c) Confirm whether or not they would object to an order being made by this Honourable Court that audio copies should be released and/or a transcript of the calls should be disclosed…..

 

There’s nothing in there to say that the Prison should provide the transcripts. It is an exercise to establish whether any recordings exist, and what the Prison’s view would be if an order were to be made for their release.  It rather appears as though the Prison thought they were supposed to hand over the transcripts, and so did the mother’s solicitors, so when the Prison wrote saying ‘let us know which tapes you want’, the solicitors wrote back and said ‘these ones I’ve marked, thanks’ and the Prison then sent the tapes/transcripts and the solicitors got them translated from Igbo to English. None of which was in the Court order.

 

 

 

 

  1. ii) It is immediately apparent that the order did not require the Prison Service to disclose the recordings or the transcripts.

 

iii) The sealed order was sent out by the court on 23 August.

 

  1. iv) Ms Bennett said she had not been at the court hearing as she was on leave. When the order came in she said she did not have a memory of reading it but assumed she would have done.

 

  1. v) On 23 August 2017 Ms Bennett’s para-legal drafted and sent a letter to HMP Thameside enclosing the Court order and accurately setting out the terms of the order in the body of the letter.

 

  1. vi) On 11 September 2017 HMP Thameside responded providing a list of all calls made and received by F and confirmed that they were recorded. The letter said ‘…please.. provide me with a list of numbers which you would like the telephone recordings for, I will then ask the Security staff to review these calls and burn them to disc’. It is clear from this response that the author thought the court order required or authorised the release of the recordings of the calls themselves rather than just the details of the calls.

 

vii) On 15 September 2017 Bindmans responded saying ‘We have highlighted the calls we want recordings from. Please see attached.’ The author of the e-mail was a para-legal. Ms Bennetts evidence was that when she discussed the response with the para-legal she was working on the assumption that the order authorised the release of the transcripts. She said she did not go back to the order to check its precise wording but assumed because the prison had said they could have the recordings that that was what the order authorised. She accepted in evidence that she was mistaken in her belief about what the order provided for. She said she did not realise the transcripts had been provided not in compliance with the order until F’s solicitors pointed it out on 13 December 2017.

 

viii) She was pressed hard by F and by me on how it can be that an officer of the court could have authorised the sending of an e-mail which furthered the release of material which was not in compliance with the terms of a High Court order which plainly envisaged a further application would be made to this court to seek an order that the transcripts or recordings be provided. Ms Bennett accepted that it was a failure on her part. She appeared, rightly, somewhat embarrassed that this had happened on her watch. F put it to her that it was a deliberate attempt to mislead the prison and to get evidence by improper means. She denied this and pointed out that there was nothing to be gained in doing so as the court would almost certainly have approved the obtaining of the recordings that had been sought.

 

  1. ix) Having regard to all the circumstances I accept that this was a mistake rather than a deliberate act. The letters sent between Bindmans and the prison, her explanations and the absence of any motive to have deliberately mislead the court persuade me that a combination of matters led to a situation where both the prison service and Bindmans mistakenly assumed the order provided for the release of the recordings themselves.

 

  1. x) Given the context of these applications, namely contempt of court and in particular interference with the administration of justice this is regrettable but it is not malign.

 

  1. xi) Ms Bennett also explained how the recordings came to be interpreted and transcribed. It is clear that the following is the case

 

  1. a) The transcripts were prepared by an NRPSI (National Register of Public Service Interpreters, an independent voluntary regulator) interpreter in Igbo/English, Charles Chinedu Mottoh.

 

  1. b) In a series of witness statements dating from 24 October 2017 to 11 January 2018 he produces the transcripts of 222 clips of recordings which he identifies by Exhibit No and by their File Name.

 

  1. c) The clips themselves are identifiable by a code (File Name) which appears on the list provided by HMP Thamside. Thus 146203 01 07 2017 10_38_18 refers to a call recorded on 1st July 2017 at 10.38 and 18 seconds in the morning. The first 6 digits seems to be a code applied by the prison service to the individual.

 

  1. d) Each transcript produced by Mr Mottoh bears the File name and so each is readily identifiable by date and time.

 

  1. e) Each transcript contains only the English translation of what was said not the Igbo original.

 

xii) I am satisfied that the transcripts are readily identifiable as relating to F, that their dates and times are ascertainable and that the contents are a bona fide interpretation of what Mr Mottoh heard. It may be that F or V would be able to identify errors or mistakes in the transcripts but I am satisfied they represent a sufficiently reliable record of what passed between F and V for the purposes of this application. If F or V produce alternative transcripts then the interpreters may need to give evidence but that is a matter for another day. F says Mr Mottoh’s interpretation of certain Igbo phrases is either wrong or too definitive and that some words can bear more than one meaning. F will no doubt identify any errors in the critical transcripts M relies on.

 

That evidence having been obtained improperly (though by mistake rather than by malice) are they admissible?

 

The law

 

 

 

 

12.In the criminal field the courts have considered the application of section 78 PACE in relation to improperly obtained evidence in a number of cases

 

 

 

 

  1. i) Regina-v-Khan (Sultan) [1997] AC 558

 

  1. ii) Regina-v-P [2002] 1 AC 146

 

iii) Regina -v-SL and Others [2001] EWCA Crim 1829

 

13.The following principles emerge from these authorities.

 

 

 

 

  1. i) The power to exclude evidence under s.78 PACE is at least as wide as the common law power to exclude evidence in the interests of a fair trial.

 

  1. ii) The principle test for admissibility of evidence is relevance.

 

iii) Relevant evidence is not excluded simply because it has been unlawfully or improperly obtained, this includes evidence obtained in breach of a persons Article 8 ECHR rights. Illegally or improperly obtained evidence does not amount to a breach of a person’s Article 6 ECHR rights.

 

  1. iv) Unlawfully or improperly obtained relevant evidence may be excluded if it would have such an adverse effect on the fairness of the proceedings.

 

  1. v) Fairness includes fairness to the prosecution and to the defendant. Trial by ambush may be unfair.

 

  1. vi) Evidence obtained by flagrant non-use or misuse of authorised procedures may well provide grounds for exclusion because it will affect the fairness of the trial. In extreme cases where the abuse of process is of such gravity the prosecution may be halted.

 

vii) The court must consider all the circumstances in determining whether a trial will be fair or unfair.

 

 

14.In the civil arena the Court of Appeal considered the admissibility of illegally or improperly obtained evidence in Jones-v-University of Warwick [2003] 1 WLR 954. The Court of Appeal referred to some of the above cases and principles concluding that the approach must be dictated by the over-riding objective of dealing with a case justly. The court must balance all the circumstances including the relevance of the evidence and the effect of its exclusion. There may be cases where the behaviour of the person obtaining the evidence was so outrageous that the case based on it should be struck out. It may be that improper behaviour should have costs consequences whilst the evidence is admitted.

 

 

15.It will be apparent from the foregoing that whether I apply the s.78 PACE criteria or the CPR 1 and 32 approach the approach is broadly the same. There is no automatic exclusion unless the circumstances reach such a high level or impropriety as to offend the courts conscience or sense of justice. The court must consider all the circumstances and decide whether relevant evidence should be excluded so as to ensure a fair hearing.

 

20.My conclusions on the admissibility point are that the transcripts are not to be excluded for the following reasons;

 

 

 

The facts

 

  1. i) The transcripts appear to be a proper interpretation into English of Igbo conversations between F and V. The interpreter is qualified and has provided statements of truth with appropriate records evidencing the recordings he has interpreted.

 

  1. ii) The evidence is relevant to the Grounds of Committal against F and V. As I will explain below, in respect of F (I have not looked in detail at V’s position) it is strong evidence and without it the Grounds could not be pursued. That would be unfair to M.

 

iii) It was not obtained illegally or dishonestly or as a result of behaviour that might qualify as a gross misuse of process or abuse so as to fall into a category where the court might contemplate its exclusion on the basis that its obtaining and deployment was itself an abuse of process and offensive to justice.

 

  1. iv) F will have the opportunity to challenge the contents of the conversations in his own evidence; there is no ambush.

 

  1. v) It would be to ignore reality to exclude the evidence.

 

 

The Court approved the release of the information to the Attorney General to consider whether to bring a prosecution

 

 

24.I consider it appropriate to grant permission

 

 

 

 

  1. i) The evidence is strong both that the acts were committed and they were done knowingly. As examples

 

  1. a) The transcript at Exhibit 28 (p.491) appears to show F dictating to V the words of a letter purporting to be from the children which appears in almost identical words at Exhibit 29(p.524) and which was submitted to the court.

 

  1. b) The transcript at Exhibit 32 (p.539) appears to show a conversation between F and V on 25 August 2018 about creating a witness statement from Ola Ajibola which subsequently was produced to the court dated 24 August 2018.

 

  1. c) The transcript of 27 July 2017 at Exhibit 22 (p.354) and 28 July 2017 at 360 appear to show conversations between F and V in which the whereabouts of the children are discussed as are arrangements for moving them around. The subsequent statements in which F denies any control or knowledge over their whereabouts are plainly inconsistent. I disbelieved his evidence but the transcripts arguably provide a very clear and different reality.

 

  1. ii) I am unable to ascertain the children’s best interests. I have appointed Cafcass as their guardian in an attempt to make some progress in looking at ways in which their current best interests might be ascertained.

 

iii) I do not accept that the committal proceedings are counter-productive. F did not secure the return of the children during the 3 years he was at liberty in Nigeria. I do not know whether what F says about the position of the family and community in Nigeria are correct. I am not able to rely without independent verification on material produced by F. He has still not produced the later order he asserts has been made by a Nigerian court.

 

  1. iv) M is pursuing committals for breaches of orders and it is more proportionate for these proceedings to be dealt with at the same time rather than a public authority pursuing them

 

  1. v) The nature of the contempts if proved are very serious indeed and would represent a concerted effort to create false evidence to deliberately mislead the court.

 

  1. vi) It is in the public interest to determine these serious allegations. I do not consider it appropriate to make a request to the Attorney-General given the other aspects of committal which would be proceedings in this court in any event.
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Lions and lawyers and Jesus, oh my

 

 

This isn’t an English case, but people were kind enough to send me the link yesterday, and it is a cracker, so I can’t resist.

 

Couple lose custody of their child after using a stuffed lion as their lawyer

 

(bad choice already. Why did they do that?)

 

They thought the lion was Jesus.

 

(ah)

 

I’m not about to talk smack about Jesus, but he’s not known for his Court room skills. The guy had one trial, and that didn’t work out for him. He would not be my first call. Even if he does have a clear diary and now, a fluffy tail.

 

Couple lose custody of child after using toy lion they thought was Jesus as their lawyer

 

I’ve written this week about a press report based on a court case with a misleading headline (and I see that some people on my Twitter feed have got the BBC to change their headline), but this one isn’t.

 

In the Supreme Court of British Columbia

AJ v British Columbia 2018

http://www.courts.gov.bc.ca/jdb-txt/sc/18/09/2018BCSC0903.htm

There’s some quite nasty stuff in the body of the allegations, which I won’t repeat.

 

The parents certainly had strong views about religion

 

[34]        On April 28, 2017, A.J. sent an email to a social worker, Melanie Crowston, to schedule future access dates but also wrote the following:

God is doing a great work here. And believe me, you want the wicked and corrupt things addressed, because everyone suffers when evil is allowed to harm you and families. So we need Jesus to clean up the corruption and bring justice back to this place. How filthy and corrupt your job is and the people you work for. I am ashamed for you. It is evil. I’m sorry you work for such an ugly corrupted company too…

[35]        As evidenced by this email, the parents continued to have difficulty working cooperatively with others. The mother often demonized those seeking to help her. For example, the parents were asked to leave the parish they were attending. On April 29, 2017, the pastor, on the recommendation of the church leadership, called the police to see what steps were needed to get a restraining order against the appellants. The parents returned to the church on May 3, 2017 and caused another disturbance at a support group meeting. The pastor then sent the parents an email indicating that they were no longer welcome to attend the church.

[36]        On May 10, 2017, A.J. sent an email to [then] counsel for the Director stating the following:

Be prepared for your house to see a very large debt come across and bankruptcy due to the criminal charges against the court system and the ministry of children and youth and particularly the judicial system that has imposed the degradation of children and harm to the families. The Lord Jesus has now come in to judge and he has seen the demise of what He had set in place for good has now been corrupted and covered in greed and filth.

[37]        The trial judge stated that the email “could be perceived as threatening”. At this stage, correspondence was being directed through the office of the Director because the parents refused to communicate with the social worker.

 

 

I know, you all want to know about Jesus, Lawyer Lion.  Hold on, it’s not far off

 

Jesus Lion Lawyer, how did you get the Sword of Omens through Court security? They made Cheetara take off her high heeled shoes.

 

[41]        At the October hearing, the trial judge heard that the parents continued to attend churches with the goal of cleansing them from demonic influences. The parents had also refused to participate in the parental capacity assessment.

[42]        At trial, A.J. testified that she had an application pending to change the name of the child. She wanted C.J. to have a hyphenated first name including Jesus and a middle name of JoyoftheLord. She was also applying for a change in her first name to the Risen Lord Jesus–A, a new middle name of Refinersfire–Deanne, and a change in her last name to add the name Christ.

[43]        One last issue in this case was the conduct of the appellants at trial. First, they refused legal aid assistance and maintained that their legal counsel was the Lord Jesus. Second, the parents verbalized words that were not discernible to the court; they appeared to be speaking in tongues. They spoke in tongues to their stuffed animal, a lion, and claimed that through this lion they were hearing directly from their counsel the Lord. Third, when cross-examining witnesses, the appellants advised each witness that it was their lawyer Jesus Christ asking the questions through the voice of the parent. Fourth, the trial judge found the parents not to be credible witnesses: see paras. 43, 72, 95 and 100.

 

 

I thought that the stuffed lion lawyer who was also Jesus was the best detail, until I read  ‘the judge found the parents not to be credible witnesses’.  What a beautiful bit of understatement.

The appeal was refused. There is no name of a lawyer representing the parents in the appeal, so I don’t know if they were in person, or if the Lawyer Lion padded up for the appeal too.

Obviously whilst there are amusing elements to this story, it is ultimately sad, and I hope the child is okay and that the parents get the help that they clearly need.

 

Is, Was and Ever Will Be

 

 

This is a Court of Appeal decision in relation to significant harm in care proceedings, where the harm was said to be emotional harm. And this is always a hot-button topic.

 

Re S & H-S Children 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1282.html

 

It also deals with the grammatical weirdness that is in the Children Act at section 31, which we all tend to forget to an extent. The Act never talks about whether the child  ‘has suffered’ significant harm, although that’s the language that we all use.  Instead it says “Is suffering” and the law has subsequently developed to say that you are looking at the past, to when protective measures were taken as the relevant date.   (That was a solution derived because care proceedings were being issued where a child had suffered significant harm and then gone into foster care or been placed with a relative – so on the day of issue, it would be inaccurate to say that the child ‘is suffering’ significant harm. So we routinely use the present tense of the Act to talk about the past tense of the relevant date)

 

In these proceedings, they were initiated on the basis of allegations about the children being physically harmed by father, and the LA accepted freely that at the time the proceedings started, they had no intention of issuing proceedings in relation to mother’s care.  The allegations about father fell away – the Court found that he had physically chastised them, but left no marks, and that they had not suffered significant harm as a result of his chastisement and it was not over-chastisement.

However, within the proceedings, the assessments that took place highlighted emotional harm, and in particular the children’s poor attachment to their mother.  The Court found that the children had suffered emotional harm.

The appeal was brought on the following points

  1. The mother’s grounds for appeal represent a root and branch challenge to the judge’s conclusion with respect to the threshold criteria relating to the child L. In summary, the following points are made:
    1. a) The proceedings were commenced in response to allegations of physical harm to the older two children perpetrated by their father. Those allegations were, in the event, not found proved in the terms of the threshold. The stress of the proceedings, however, triggered a marked deterioration in the mother’s mental well-being to the extent that, by the end of the proceedings, she conceded that she could not at that time provide a home for any of the children. The judge is criticised for failing to distinguish between the mother’s presentation and her parenting prior to the relevant threshold date of 9th March 2015, and the compromised state that she descended into thereafter during the proceedings.

b) Evidence from social workers, community support workers and health visitors prior to 9 March, insofar as it mentioned the mother and L, was positive and gave no cause for concern.

c) It was conceded by the local authority that no social worker was contemplating issuing care proceedings with respect to the mother’s care of the children as at 9 March 2017.

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

e) A failure to follow the guidance given by the Supreme Court in Re B to the effect that it is necessary for a judge to identify a precisely as possible the nature of the harm that L was suffering or likely to suffer as at 9 March 2017.

 

So you can see that timing is important. At the time proceedings were issued, one could not now say that the children ‘is suffering significant harm’ (I know, the tenses make me feel queasy too. I wish the Act just said ‘has suffered’ but it doesn’t.)  Any harm actually occurred within the proceedings. So the first limb isn’t met, and the LA would have to rely on the second limb, that there’s a likelihood of harm in the future.

 

The other bit I’m interested in is

d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

 

We hear a lot about attachment in care proceedings, and an awful lot of what we hear is misusing terminology and confusing quality of relationship or emotional closeness with attachment, which is not something you can assess by reading some contact notes or watching mum play with a toddler.  We also hear a lot about  attachment problems without ever giving the context of how prevalent poor attachment is in the general population. Trust me, I’m not saying that flawed attachment has no impact on a child’s childhood and later life (seriously, trust me, I’m well aware of how many of my own problems are due to exactly this issue), but one needs to be careful if pathologising something which is not that unusual.  Remember, the wording of the Act says that the harm has to be attributable to the parent not providing care which it would be reasonable for a parent to provide – if a third of parents in the general population have difficult attachment styles, whilst that may be harming the child, is the parent culpable and behaving unreasonably?

 

The Court of Appeal said this :-

 

  1. Before this court Mr Taylor has advanced the mother’s case with force and clarity both in his skeleton argument and at the oral hearing. He seeks to establish five basic submissions:
      1. i) The lack of clear and bright reasoning within the judgment falls so far short of what is required so as to amount to an unfair process.

ii) The judgment confuses evidence as to the state of affairs prior to 9 March with evidence of what consequently occurred as a result of the mother’s mental collapse during the proceedings.

iii) The necessary process of evaluation of the threshold criteria, as required by Re B, has not been undertaken.

iv) The findings made by the judge as to the mother’s character are insufficient of themselves to support a finding on the threshold criteria.

v) Various findings made by the judge with respect to other aspects of the case are insufficient to support a finding of threshold with respect to L.

  1. The appeal is opposed by the local authority and the children’s guardian. L’s father takes a neutral stance.
  2. Looking at the mother’s appeal in more detail, it is, unfortunately, correct that both the judgment and the court order lack clarity with respect to the judge’s findings as to threshold relating to L. The following points are, in my view, established in the appellant’s favour:
    1. a) The judgment makes no reference to the judge’s previous findings as to the mother’s psychological well being set out in her judgments of 11 November 2015 and 4 July 2016.

b) The judge’s finding (paragraph 106) that “the attachment difficulties seen in the children…are evidence of emotional harm” does not expressly amount to a finding of “significant” harm as required by s 31.

c) Paragraph 107, which is lengthy, includes reference to material arising both prior to 9 March and, thereafter, during the proceedings. Again, the finding in that paragraph relates to “emotional harm” and not “significant harm”.

d) Although the phrase “significant harm” appears in paragraph 109, the judge there refers to “the other factor relevant to whether the children have suffered significant harm as a result of the mother’s presentation” and describes the emotional impact on the children of the mother raising the allegations of physical chastisement which, in turn, led to the institution of proceedings. Paragraph 109 does not make a finding that the children did suffer “significant harm” in this respect. The finding is that the mother’s past behaviour “cause(s) me to think she will continue to have anxieties about the care of her children and therefore potentially undermine any placement of the children away from her care”.

e) Paragraph 110 does include a finding that the mother’s emotional stability and her presentation are such that “the children have suffered from significant emotional harm”. The finding is not, in that paragraph, tied to the period prior to 9 March and there is no finding with respect to likely future significant harm.

f) As Miss Gillian Irving QC and Mr Zimran Samuel for the local authority before this court who did not appear below, reluctantly concede, the judge’s statement of “threshold findings” posted at the end of the judgment cannot, as a matter of law, be said to satisfy the requirements of s 31. The paragraph is confined to a summary of the judge’s findings as to the mother’s mental well being both now and in the future. The paragraph does not contain any explanation for the judge’s finding that as a result of the mother’s condition the children have suffered significant harm.

g) The court order, which simply records the making of care orders, fails to include any recital as to the court’s findings with respect to the threshold criteria.

The Court of Appeal were critical of the Judge’s failings in the judgment, particularly the conflation of emotional harm and significant harm, and linking the comments on harm to the wording of the Act.

However

  1. As the extracts that I have set out from Dr Hall’s written and oral evidence demonstrate, the attachment that these children, including L, had with their mother was compromised to a significant degree so that it was on the borderline of being characterised as disordered. Dr Hall’s opinion was that without secure attachment the children would suffer significant detriment, not only to their emotional and psychological functioning, but to the very development of their brain during infancy.
  2. The attachment, or lack of it, formed between L and her mother must relate to the period when L was in her mother’s care prior to 9 March 2017. It arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health. Dr Hall’s description of the mother being unable to control her emotional reaction to relationships and events with unpredictable and regular oscillation between the extremes of hyper-arousal and hypo-arousal, accords entirely, as she herself said it did, with the mother’s presentation as recorded by the previous expert in 2014.
  3. It is clear that the evidence upon which the judge relied, and her findings, relate to the mother’s long-standing condition and its impact on the children, rather than any deterioration that occurred during the proceedings.
  4. This material amply supports a finding that L was suffering significant emotional harm as at 9 March 2017 and would be likely to suffer significant emotional harm in the future as a result of the care provided by her mother were she to return to the mother’s home. Although, for the reasons that I have given, the judge’s judgment lacks precision and clarity, there is in my view, sufficient in paragraphs 106 to 110 of the judgment to identify the threshold findings made by the judge in this regard.

 

 

  1. In the circumstances, whilst accepting, as I do, the validity of the criticisms that Mr Taylor makes as to the lack of clarity and focus in the judge’s analysis, Dr Hall’s evidence and the judge’s previous findings as to the mother’s behaviour provided a very solid basis for finding the threshold established and it is plain that the judge adopted that analysis, which was in part based upon her own findings made two years earlier, in concluding that the threshold was crossed with respect to L in this case.
  2. For the reasons I have given, I would, therefore, dismiss this appeal and uphold the judge’s finding that the threshold criteria in CA 1989 s 31 was established as at 9 March 2017 with respect to L as a result of the care given by her mother on the basis that, at that date, L was suffering significant emotional harm and was likely to suffer significant emotional harm.

Note that even though the Court of Appeal are telling the Judge off for not using ‘is suffering’ as the test, they themselves slip readily into the language ‘was suffering’.  It is almost impossible not to do it.

 

(I was somewhat surprised that this appeal didn’t succeed – on my reading there were enough failings in the judgment to overturn it, but the Court of Appeal felt that there was sufficient cogency to the judgment in full that they could apply a little bit of Polyfilla to the cracks, rather than declaring that it was so flawed it had to be reheard. I can see that they considered that it was slightly loose use of language rather than a failure to identify whether the children met the s31 test)

 

The Court of Appeal gave a coda of lessons to be learned (whilst not noting that they’d not followed their own lessons in the very same judgment, cough)

 

Lessons for the Future?

  1. Before leaving this case, and with Lady Hale’s more detailed judgment in Re B in mind, I hope it is helpful to make the following observations as to how the difficulties that have led to this appeal could have been avoided in practice.
  2. In the course of a necessarily long judgment covering a range of issues and a substantial body of evidence, where the threshold criteria are in issue, it is good practice to distil the findings that may have been made in previous paragraphs into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
  3. When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.
  4. A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.
  5. Where findings have been made in previous proceedings, either before the same judge or a different tribunal, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.
  6. At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.
  7. The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established. In the present case, during the oral appeal hearing, counsel for the guardian explained that, following the judgment, she had submitted a detailed draft order to the court by email for the judge’s approval. We were shown the draft which, whilst in need of fine tuning, does provide a template account of the court’s threshold findings. It is most unfortunate that counsel’s email, which may not have been seen by the judge, did not result in further consideration of the form of the order and statement of threshold findings. Had it done so, the need for the present appeal may not have arisen.

 

 

Application to not disclose a CAFCASS report

 

This is a bit of a weird set of circumstances, although the nature of the facts behind it are not that uncommon.

Basically, in private law proceedings, a CAFCASS officer was about to share their report.  A final hearing was listed for 3 weeks time, so everyone understandably wants to know what the CAFCASS report is going to say.

However, before the CAFCASS officer finished the report, they became aware via the police that there was a child protection investigation taking place about the father, the investigation being done by both English police  in Dorset and New Zealand police – that’s obviously quite a logistical challenge, because of both the time zones and the accents.  The police weren’t ready to as the Judge described ‘go over the parapet and confront the father and interview him’ and didn’t want him tipped off as to the nature of the allegations before doing so.

Obviously the CAFCASS officer can’t simply ignore that they’re now aware of an allegation that father has committed sexual offences against a child and that there’s a police investigation, but doesn’t want to jeopardise that investigation by tipping father off.

 

So, an application was made to Court for the report not to be shared, yet.

 

I don’t actually know what CAFCASS are supposed to say when they are chased up by the parents solicitors, since I don’t think they can actually say ‘there’s a court order that says we don’t have to share it yet’ because the obvious next question will be ‘why?’

 

(I did immediately wonder why the parents wouldn’t twig that ‘hey, I live in Dorset and father lives in New Zealand, and we’ve got a private law hearing at the end of May, is this about us?’, but the judgment was published AFTER the CAFCASS report was ordered to be disclosed)

This particular set of circs is unusual, but the whole ‘police know something but they don’t want it shared yet’ is not that unusual.

 

So, here’s a High Court authority if you want it.

 

G v G and Another 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1100.html

 

And obviously you should buy my book, which is out now, and being reviewed (over charitably as ‘more enjoyable than Harry Potter’  and ‘From Dusk till Dawn meets Tracy Beaker’ – fair, I think)

 

 

BUT if you want a chance at winning a copy, come up with a good Suesspicious Minds type headline for this piece. I sat down assuming something with Kiwi or Dorset would come to me readily, but it didn’t happen.  A signed copy to the answer I like best.  Poor puns, pop culture references are the way to my heart.  Or frankly, just tweet me at @suesspiciousmin with really good pictures of Natalie Dormer.

 

If you’ve read the book, please take five minutes to pop a review on Amazon. Because of the way their robot algorithms work, the more reviews I get, the more the book pops up on other people’s “Hey you might like this” bit. Also, I genuinely want to know what people think of it.

Oversharing

Some of you might be aware of the story that Coronation Street are currently running about Aidan and male mental health, with a view to starting an important dialogue.

I’m going to overshare now, hence the title, in that same spirit. So trigger warning for anyone who may not be in the right place to deal with this – I’m not going to go into any details and I hope that it might be inspiring rather than making people miserable. I’m not doing this for sympathy or because I want comfort or pity, but rather because being ashamed and not able to talk about it is one of the most powerful weapons that mental illness has over people, and I’m taking that weapon away from mine.

I have had problems with depression for my entire adult life. Before I had depression, I thought about it the same as everyone else ‘cheer up, pull yourself together, what have you got to be miserable about’

Which, as it is due to chemical deficiencies, is about as realistic as saying to someone with diabetes ‘just digest sugar better’

I’ve learned to cope with depression, but usually in very unhelpful ways. I’ve learned how to hide it, how to mask it from people, how to keep going and have nobody around me have a clue that inside my head my own thoughts are attacking me relentlessly.

The best description I can give you of the sort of depression I have is that my mind employs the very best ad agencies to come up with and play constant adverts to me, knowing me better than Facebook data mining ever could, to sell me the message that I am an awful human being, worthless and hateful in every way and that the whole world would be remarkably better off without me in it.

Now, this is drivel. And some days, some hours, I’m well aware that it is drivel. I’m a human being who has like everyone else some good qualities and some faults. But when that’s the soundtrack to your life, it’s corrosive.

And a large part of what’s corrosive about it is ‘dont tell anyone, it will just make them hate you’

Well, everyone that I’ve ever been brave enough to talk to has not hated me, or run away. They haven’t always understood and sometimes they’ve been shocked or frightened, but all of them without fail have done their absolute best to help, and it has been a huge help.

The stupid adverts don’t stop, but the more honest I am, the quieter they are and the more loudly I can reply ‘this is just an illness and i don’t have to believe that message’

Sorry everyone, I know you come here for law and 80s pop culture, but telling everyone in one go is the scariest thing I can imagine but now it is out there. Don’t worry about me, the darkest days of it are well behind me. I hope that sharing this might empower someone else to speak out, or helps you to start a difficult but vital conversation with someone you love and care about.

Talking helps. Honesty helps. Friends really do care about you, and you are not alone. If you are able to talk, just to one person, it is one of the most powerful and significant moments in your life and it will help.

Take care

Andrew

Incompatible

 

I think during one of the many Writers Guild Strikes in America, the hit TV series Moonlighting, which was built around the ridiculous chemistry between its two leads, David Addison (played by a Bruce Willis so young that he had hair and had never got any shards of glass in his feet) and Madelyn Hayes (a never better Cybil Shepherd), instead ran with a whole season without those two in it, and trying to base the show around two minor cast members Herbert Viola and Agnes DiPesto.

 

It did not really fly.  In the words of Douglas Adams ‘it hung in the air in the same way that bricks don’t’

 

It occasionally still makes me wince to think of that dreadful error of thinking.

That portion of Moonlighting, I would be prepared to give a declaration of incompatibility for.

 

All of which is a sprawling and ramshackle opening to Coulibaly v Coulibaly 2018  (which joyously has a “Rev no 1” in its full title, implying that there’s more to come, yes please!)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2018/936.html

 

As far as one can tell, this case began as a private law dispute with the mother becoming very concerned that the father would abduct the children. It is not clear whether that has any basis (we know he DIDN’T, but not whether it was a rational fear that he MIGHT), or what it was that led to a Local Authority obtaining an interim care order and removing the child.

In any event, the bundles for the Court were delivered via wheelbarrow, if not actual dumper truck.  (And yes, I did hover over google images of Big Trak for this moment… )

 

  1. There was listed today, with one day allowed, a number of wide-ranging applications for declarations pursuant to section 4 of the Human Rights Act 1998 that a number of sections of the Children Act 1989, and also the whole of the Child Abduction Act 1984, are incompatible with the European Convention on Human Rights.
  2. There were delivered to my room yesterday afternoon 7 lever arch files of material. I have not counted up the number of pages, but if one were to assume about 300 to 400 pages on average per bundle, then somewhere between about 2,100 and 2,500 pages are involved. Frankly, the bundles are not coherently arranged and presented, and I could not even readily identify the skeleton arguments for this hearing. In any event, the applicant’s series of written submissions themselves total about 70 pages.

 

A number of sections of the Children Act and the whole of the Child Abduction Act? Tell me more, tell me more

 

 

  1. The proposition that certain provisions of the Children Act 1989 are incompatible with the European Convention on Human Rights was first formally raised in the High Court by an appellant’s notice issued by Mrs Coulibaly on 2 May 2017. Since then she has, at various times, filed a considerable number of supplementary documents and submissions, the most recent of which was earlier this week. That procedural history, of course, creates a somewhat confusing moving target, in particular for the Lord Chancellor, who has been named as the respondent to these applications, to meet. However during the oral submissions of Mr Duke this morning it was clarified and confirmed and agreed that, by a combination of her appellant’s notice dated 2 May 2017 and her various subsequent written skeleton arguments or written submissions to the court, and the oral submissions made today, the totality and scope of all the applications for declarations of incompatibility is as follows.
  2. First, that section 2 of the Children Act 1989 is incompatible with Article 3 of the European Convention on Human Rights (ECHR); second, that section 8 of the Children Act 1989 is incompatible with Article 3 of the ECHR; third, that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the ECHR; fourth, that section 50 of the Children Act 1989 is incompatible with Article 3 of the ECHR; fifth, that section 97 of the Children Act 1989 is incompatible with Article 3, read with Article 10, and also with Article 6 of the ECHR; sixth, that section 1 of the Child Abduction Act 1984, and also the whole of that Act, are incompatible with Article 3 of the ECHR.

 

 

Well, if Mrs Coulibaly succeeds in this application and the High Court declare sections 2, 9, 38, 50 and 97 of the Children Act 1989 incompatible with the HRA, there will be champagne corks flying in the household of Ian from Forced Adoption.  But perhaps let’s not get the ice buckets out just yet.

 

Let’s be honest, if I was writing up a law report that junked an entire Act and large chunks of another, I’m burying the lede under all that Moonlighting stuff….

Mrs Coulibaly was not represented and her brother Mr Duke spoke on her behalf as a McKenzie Friend.

We shall observe with interest how he develops this wide-ranging submissions.

 

  1. I now come in turn to the sections of the Children Act 1989 which it is alleged are incompatible with one or more of those various rights under the European Convention on Human Rights, and I will briefly describe and address the arguments. It will emerge that some points and themes, particularly in relation to international child abduction, recur several times in relation to a number of the statutory provisions under challenge. The fundamental and essential point is an assertion by, and on behalf of, Mrs Coulibaly that the statutory provisions simply are not strong enough and effective enough to prevent international child abduction which, she submits, may amount to “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. Without so holding, may I make quite clear for the purposes of this case and this judgment that I fully accept that international child abduction, whether it takes the form of unlawful removal from this country, or unlawful retention of the child abroad after a lawful removal, does, or may, expose the child concerned to a form of inhuman or degrading treatment. So, insofar as child abduction is the fear of Mrs Coulibaly, and insofar as her argument focuses on child abduction, I readily accept, but need not keep on repeating, that Article 3 is engaged.
  2. During the course of his submissions, Mr Duke said that “the Children Act is useless” and that “the entire Act needs to be rewritten.” Part of the context of his argument is that circumstances have changed in the almost 30 years since that Act was enacted. International child abduction has become more prevalent, and some of the safeguards such as strict border controls on exit have tended to be removed or relaxed. Another phrase used a number of times by Mr Duke during the course of his submissions is that “the Children Act is incomplete.” Those points and submissions indicate, to my mind, the flaw or fallacy in the whole, or much, of the argument on these applications. The issue for the court on an application under section 4 of the Human Rights Act is whether or not a provision of the primary, or any subordinate, legislation in point “is compatible” with a Convention right, or whether it “is incompatible” with a Convention right. That is a wholly different question from whether there are gaps in a particular statute, or the whole corpus of legislation generally, and whether or not an Act of Parliament is “incomplete”. I readily accept, for the purposes of this hearing and this judgment, that mechanisms for preventing the scourge of international child abduction may be able to be strengthened; but that is a world apart from saying that such provisions as there are in the legislation, whether specifically directed to child abduction or more generally, are themselves incompatible with Article 3.

 

 

I think the best argument (and I use best in fairly loose sense) is in relation to section 38 – which is interim care orders. Mr Duke argued that the power to remove a child under s38 is a restriction of the child’s liberty (in that the State in the form of the LA get to decide where the child lives), so unless any of the criteria in Article 5 are made out, that’s incompatible with Article 5

 

1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

(a)the lawful detention of a person after conviction by a competent court;

(b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

 

I would agree with Mr Dukes that none of those criteria apply to an interim care order – but the problem in his argument is that Article 5 only applies if the Court agree with him that an interim care order is depriving a child of their liberty  [Spoiler alert – the Court do not]

 

  1. I turn, next, to the argument that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the Convention. Section 38 of the Children Act falls within Part IV of the Act, which deals with care and supervision. Section 31 of the Act makes provision for what I will call “full” care or supervision orders. Section 38 makes provision for the making of interim care or supervision orders. Again, it is not necessary to cite any of the express provisions of section 38, for much of the argument of Mr Duke is directed not to what section 38 does contain, but, rather, to what it fails to contain. There is, however, one overarching submission in relation to section 38, namely that it is incompatible with Article 5 of the Convention. I have already quoted the opening words of Article 5 above. The submission is that when an interim care order is made and implemented, it has the effect of depriving the child or young person concerned of his liberty. By Article 5 no one shall be deprived of their liberty save in the cases then listed at paragraphs (a) to (f), and in accordance with a procedure prescribed by law. Clearly, when an interim care order is made there is a procedure prescribed by law, namely the provisions of section 38 itself, but the thrust of the submission of Mr Duke is that the circumstances in which an interim care order is made do not fall within any of paragraphs (a) to (f). I do accept that most of those subparagraphs are clearly not in point at all, but, as Mr Neil Sheldon submits on behalf of the Lord Chancellor, one has to have regard to the content of the subparagraphs in order to understand what is contemplated by the words “deprived of his liberty”, which is proscribed by Article 5, save in the permitted circumstances.
  2. I accept the submission of Mr Sheldon that when a child is taken into care pursuant to the making of an interim care order, he is not thereby “deprived of his liberty” in the manner which Article 5, read as a whole, contemplates. Further, I accept the submission of Mr Sheldon that if, in the particular circumstances of an individual case, there is a deprivation of liberty, then that deprivation of liberty can be the subject of case-specific challenge under the provisions of section 7 of the Human Rights Act. This indeed ties in with an important overarching point. The express effect of section 6 of the Human Rights Act 1998 is that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” That section is binding on all public authorities, including, indeed courts. The provisions of the Children Act 1989, wherever they confer a discretionary power, always have to be read and applied with regard to section 6 of the Human Rights Act 1998 and any relevant provision of the Convention. If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable.
  3. Other reasons why it is said that section 38 is incompatible with a range of Articles of the Convention are the following. First, Mr Duke argues that there is nothing in section 38 itself which compels a local authority to provide medical assistance to a child whom they have taken into their care pursuant to an interim care order. This, he says, may involve a breach of Article 3 of the Convention. Just to understand the context in which the submission is made, I have been told (I stress that I have absolutely no independent evidence whatsoever with regard to this) that on 7 February 2018 Mrs Coulibaly’s son was “forcibly removed” from her care by the police. She says that her son later reported that the police had hurt his arms, and they were really painful. The complaint is that it was apparently not for 13 days that the local authority arranged for her son to be seen by a doctor. Mr Duke submits that there should be an added provision within section 38, or elsewhere in the Children Act 1989, to compel a local authority to undertake an immediate, or very early medical examination of every child whom they take into their interim care, both to check that he or she has not been harmed during the process of removal, if forcible, and also to check for such matters as allergies. He submits that the absence of some such express duty in section 38 or elsewhere in the Act infringes the positive obligation on a state to ensure that no one is subjected to inhuman or degrading treatment, as Article 3 of the Convention requires. Again, I make absolutely clear that I express no view whatsoever on whether or not it should be made mandatory for a local authority immediately to arrange a medical examination of a child taken into their care. That, again, is a matter for government and Parliament. But at its highest, in my view, this is another example of the Act being “incomplete”. There is nothing in this regard that renders the Act incompatible with the Convention.
  4. Mr Duke argues also that section 38 of the Act is incompatible with Article 8 of the Convention.  He says, in particular, that in order that the important rights under Article 8 of the Convention are respected (which is what Article 8 requires), there should be express statutory provision for what he calls “a transfer plan” before any child is taken into care. He submits that a local authority can at the moment “just come and grab a child, which disrupts the child’s private life” and that unless there is an express statutory requirement of “a transfer plan”, section 38 is incompatible with Article 8. He further says that often, when a child is taken into care, the child is not enabled immediately to take his own personal belongings with him, and that in order for the Act to be compatible with Article 8 there must be express statutory provision for a child to be able to do so. Again, in my view, these are, at best, matters of good practice, or examples of the legislation being “incomplete”, but the absence of express statutory provisions of the kind that Mr Duke contends for does not render section 38 itself incompatible.

 

I say, that ‘transfer plan’ is a good idea, I wonder if we could call it by a shorter name and have it be a mandatory requirement before the making of an interim care order. We could call it, oh, I don’t know – a care plan?

 

Let us just enjoy the fine work of Holman J once again

 

If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a “full” care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable. 

 

As I’ve suggested above, the article 5 v s38 is very much Mr Duke’s best point.  If you think that this dissection of his best point doesn’t augur well for his less good ones, you are correct.

Surprisingly, Holman J does not grasp the opportunity offered to him by Mr Duke to overturn huge chunks of statute that have been running for thirty odd years.

 

  1. For the reasons I have given, I am crystal clear, even at this short summary hearing today, that none of these applications for declarations of incompatibility are, in the least, arguable. I will accordingly make an order which, first, recites by list all the applications that Mrs Coulibaly has made for declarations of incompatibility as I listed them at the outset of this judgment, and then orders that all the applications for declarations of incompatibility listed under that recital are summarily dismissed.

 

So the law remains intact.  Well, at least until Coulibaly v Coulibaly Rev no 2, which I’m looking forward to. I shall be immensely disappointed if the Act of Union, Magna Carta and  the Licensing Act 1872 (which makes it a criminal offence to be drunk in a pub)

 

 

I’m sorry if the raw charisma and chemistry  of Hubert and Agnes has just burned a hole initially through your screen and now through your retinas.

 

Care proceedings and diplomatic immunity

This photo has NO relevance to the case being discussed. I know sometimes I’m tenuous, but this time there’s literally no connection. It may as well be a picture of the Frog Brothers. (“We trashed the one who looked like Twisted Sister!”)

 

 

Sadly, my gut instincts that I’d used the Lethal Weapon 2 gag about diplomatic immunity proved correct, and I’ve got nothing else. Believe me, I’ve tried…. I have utterly no reason to believe that Balki from Perfect Strangers was a diplomat, but at least I’ve made you think about Perfect Strangers again. Goodness, that was an awful show.  Was it as bad as Small Wonder, a show involving a precocious child who also happened to be a robot? They are both about as relevant to this case.

 

 

 

But this is a case in which a woman who worked for the High Commission of X country (we never get to learn which) became involved in care proceedings – it being alleged that she had hit her children 4o times with a belt and shaved the head of one of the children as a punishment.

 

This is what the Judge found proved

 

  1. My judgment in October 2017 recorded the basis upon which the threshold criteria were satisfied. To summarise, the children had suffered significant physical and emotional harm as a result of the mother having smacked and slapped all of them; having hit all of the children with a belt using up two or three strikes; having thrown a shoe at D’s head causing injury; having shouted at D and threatening to send him to X if he did not behave and thereby scaring him; and having threatened to cut D’s hair as a punishment. That abusive behaviour towards the children was to be addressed by the mother engaging in therapeutic work, a detailed programme of which had been endorsed by me in my judgment. At that time, the mother had expressed a willingness to commit herself to the therapeutic work required. It is important to bear the above in mind when assessing the situation now.

 

The Court had to hear legal argument about whether :-

 

(a) She had diplomatic immunity at the time that the allegations had occurred and

(b) Whether her diplomatic immunity was a shield against care proceedings

 

A Local Authority v X and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/874.html

 

A lot of the judgment is quite dense, so I’m just going to give you the whistlestop highlights – if you’ve got a diplomatic immunity / care proceedings crossover case or when you get one in the future, you’ll want to read the whole case.

Just by way of context, by the time of this hearing, the LA plan was to rehabilitate all of the children to mother’s care, she would be moving back to X and the LA sought no orders. The Guardian vehemently opposed that plan.  The older children wanted to go back to mother’s care, but in England, not in X country.

In terms of whether diplomatic immunity applied, as the mother had left the employment of the High Commission of X, a notice had been given. The diplomatic immunity ends 31 days after that notice.  (So if you have diplomatic immunity and leave the job that attracts it, you still keep the immunity for 31 days after your last day. Who knew?)

 

  1. It is the FCO’s policy that, pursuant to Article 39(2) of the VCDR, individuals who enjoy privileges and immunities by reason of their diplomatic functions shall cease to enjoy them when they leave the country, or alternatively shall normally be considered to have ceased to enjoy them 31 days after their functions (or those of the person from whom that individual derives their privileges and immunities, in the case of a family member) come to an end.

 

The FCO certificate and the 31 days of grace had ended before the allegations were said to have happened, so diplomatic immunity would not have applied. However, the Court went on to consider and determine whether it would have been a shield in any event.

 

  1. Re B (Care Proceedings: Diplomatic Immunity) [2002] EWHC 1751 (Fam), [2003] 1 FLR 241 considered the making of an interim care order in respect of a 13-year-old child of a member of the administrative and technical staff of a foreign mission who was found to have suffered serious non-accidental injuries consistent with repeated and severe hitting. The father and his family were accepted as having no immunity from care proceedings, which were civil proceedings, provided that they related to acts performed outside the course of the duties of the father. It was not suggested the beating and bruising of the child came within the scope of the duties of the father, and on this basis the court found the father, mother, and the child had no immunity from family proceedings and so continued the interim care order with the child being placed in foster care. Nothing in that decision suggested that the child lost her diplomatic rights and privileges by reason either of being the subject of an interim care order and/or being placed with foster parents [see paragraph 17].

 

 

Under diplomatic immunity, the person cannot be imprisoned or arrested. Neither is it possible to bring  a civil lawsuit for actions that relate to the functions the person was carrying out as part of their duties.  It is, however, possible to bring  a civil case for behaviour or alleged behaviour which was outside of the duties of the diplomat.  (It obviously isn’t part of your duties as a diplomat to hit your children with a belt)

 

The Effect of Diplomatic Immunity on the Court’s Jurisdiction

  1. Given the conclusions I have reached, neither the mother nor the children retained their diplomatic privileges and immunities which were lost on 31 January 2018.
  2. That conclusion does necessarily permit the court to make final care orders. Both Mr Newton QC and Miss McKenna QC sought to persuade me that the court had no jurisdiction to do so if the children retained their diplomatic privileges and immunities. Even if they do not, as I have found, there may be other obstacles to the court’s jurisdiction.
  3. The decision of the then President of the Family Division, Lady Justice Butler-Sloss, in Re B [see above] suggested that there might be limits to the court’s power to enforce either interim or final care orders. Arguments that the court had no jurisdiction to make care orders were rejected in that case. The President considered Article 29, Article 30, Article 31 and Article 37(2) in coming to the following conclusion:
  4. “17. The father is within the group of administrative and technical staff of the embassy. Consequently, he and his wife and children enjoy, as I understand it, the following privileges under the 1964 Act which are relevant to these proceedings. His person is inviolable. His private residence is inviolable. He has immunity from criminal proceedings and is not obliged to give evidence in any proceedings. No measures of execution can be taken against him. He and his family are not, however, immune from civil proceedings in the case of acts performed outside the course of his duties. It has not been suggested to me that the beating and bruising of B come within the scope of the duties of the father. Prima facie, it would therefore appear on the written evidence before me that the father has no immunity from family proceedings, including care proceedings which are civil proceedings. This loss of immunity would also seem to apply to the mother and to B, who derive their immunity from the father.”

The President went on to consider whether she was able to make orders which could not ultimately be enforced. She did not find this to be an impediment and concluded that the making of an interim care order fell within the exception to Article 37(2) of the 1964 Act. She went on to consider whether the child was being detained under the interim care order and concluded that the child’s present situation did not breach her rights under Article 29 of the VCDR [paragraphs 32 and 35].

  1. Having come to those conclusions, the President recognised that there were limits to the power of the court to enforce any orders which might be flouted by either of the parents [paragraph 37]. Though it was not strictly necessary for her to consider the impact of the European Convention on Human Rights on the 1964 Act, she expressed the opinion that the European Convention Article 3 rights of the child had been breached. In those circumstances, the court as a public authority had a positive obligation to protect a child who had been exposed to abusive treatment which appeared to fall within article 3. Her final conclusion on the court’s jurisdiction reads as follows:
  2. “40. … if I were wrong in the view I have taken of the Diplomatic Privileges Act 1964, leaving this court with jurisdiction to entertain the local authority’s application, I would find myself satisfied that such a result is necessary in order to read the 1964 Act in a way that is compatible with the Human Rights Act 1998.”

I respectfully adopt that analysis which also applies to the making of final care orders.

  1. In this case I am being asked to make final care orders in respect of S, E and SL. That course is opposed by the local authority and by the children’s mother. I have concluded that I do have the jurisdiction to make final care orders in respect of these children in circumstances where they have lost their diplomatic privileges and immunities. Though I was not required to do so, I would have come to the same decision if the children had retained their diplomatic privileges and immunities. My reasoning is as follows.
  2. The President in Re B held that any limitation on the power to enforce orders should not prevent orders being made. In that case there was little argument regarding enforcement and, in consequence, I do not regard the remarks made about the power of enforcement as determinative of the issue. It would be surprising in my view if the provisions of Article 37(2) permitted proceedings to be brought but did not also permit consequent orders to be enforced. It would also be contrary to the rule of law for a court to determine a person’s legal rights and then not enforce them. Principles such as the rule of law are well recognised in international law and are relevant, in my view, when interpreting the provisions of Article 37(2). In Jelicic v Bosnia (2008) 47 EHRR 13, European Court of Human Rights held that there had been a breach of Article 6(1) for the failure to enforce a final judgement in respect of the contents of a bank savings account. The Court declared in paragraph 38 as follows:
  3. “The Court reiterates that Art.6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a contracting state’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Art.6(1) should describe in detail the procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions. To construe Art.6 as being concerned exclusively with access to a court and the conduct of proceedings would indeed be likely to lead to situations incompatible with the principle of the rule of law which the contracting states undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Art.6.”
  4. In this context I note that Article 31(3) of the VCDR contains no prohibition on enforcement for diplomatic agents in proceedings under the civil and administrative jurisdiction of the receiving state in respect of actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions [Article 31(1)(c)]. That Article also extends to members of the administrative and technical staff of a mission who do not enjoy immunity for acts performed outside the course of their duties. It is plain in this case that the mother’s behaviour towards her children was not within the course of her duties as a member of the administrative and technical staff of X High Commission. There was nothing in Article 31(1)(c) which prevented the enforcement of care orders in public law proceedings and the enforcement of such orders would, in my analysis, also be compatible with Article 29 which provides for the inviolability of the person of the diplomatic agent who shall not be liable to any form of arrest or detention.
  5. The local authority, supported by the mother, sought to argue that the provision of foster care for the children comprised an element of detention contrary to Article 29. I do not accept that submission and neither did the President in Re B. The children presently placed in foster care were not locked in or prevented from leaving the home and therefore their present situation fell very far short of a breach of any rights they might have under Article 29 of the VCDR. That conclusion was supported by the judgment of the current President of the Family Division in in Re A-F (Children) [2018] EWHC 138 (Fam) [see paragraphs 37-44]. There was nothing in the children’s circumstances in foster care which amounted to a deprivation of their liberty or an infringement of any rights they might have pursuant to Article 29 of the VCDR.
  6. Did the mother retain any residual rights and privileges which might prevent the making a final care orders in this case? Article 39(2) provides that, when the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country or an expiry of a reasonable period in which to do so but shall subsist until that time even in case of armed conflict. However, with respect to acts performed by such person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. Here, it is clear that the mother’s residual immunity did not extend to acts performed outside the course of her duties such as are engaged in these proceedings.
  7. In conclusion I find that, should I consider the children’s welfare so requires, I have the jurisdiction to make final care orders in respect of these children, all of whom have lost their entitlement to diplomatic privileges and immunities as has their mother.

 

 

In short then

 

  1. Diplomatic immunity ends 31 days after the position ends
  2. If there is diplomatic immunity, it means that there can’t be an arrest or prosecution
  3. But if the behaviour is outside of the diplomats professional functions, a civil case (such as care proceedings can be brought)
  4. Making of an ICO is not a breach of the child’s diplomatic immunity in relation to detention
  5. It isn’t possible, however, to commit a parent with diplomatic immunity to prison for breach of a Court order

 

In the case in question, there was criticism of the Guardian’s position and the amount of work done. (This was the LA and mother’s position about that, rather than the judicial conclusion)

 

  1. I record that the Children’s Guardian has been criticised by the mother and the local authority. These criticisms were in effect (a) that she failed to meet with the children’s mother until August 2017 at which time the proceedings had been ongoing for many months; (b) in consequence, she had an inadequate understanding of the mother; (c) further, she had an inadequate understanding of the home circumstances and any change in those by not meeting with C, the children’s older sister, until 3 February 2018; (d) she entertained an unrealistic doubt in the mother’s obligation to return to X; and (e) she had a belief that X was a dangerous country per se where any children should not be required to live regardless of the quality of parenting they might receive. It was asserted that, for those reasons, I should approach her evidence with a considerable degree of caution.

 

 

The Court’s take was

 

  1. Although the Children’s Guardian’s recommendation was based on welfare considerations, with any impact of the children’s immigration status being consequential, the making of a final care order in relation to S on the basis that, should the mother be required to return to X, he would return to long-term foster care for the remainder of his childhood was a wholly disproportionate outcome. It was founded on an evidential basis about the risks in X which was not established to the relevant standard of proof and it represented, on one view, the making of an order which had the impermissible effect of depriving the Secretary of State for the Home Department of her power to remove S from the UK. As contended for by the Children’s Guardian, final care orders with a contingency plan for long-term foster care which precluded the return of all three children to X were also, in my view, impermissible for the same reasons.
  2. Though I understand the concerns expressed by the Children’s Guardian in this difficult and finely balanced case, I have concluded that she sought to protect the children from both their mother and their homeland and, in so doing, lost sight of the children’s welfare in the short, medium and long-term. Her evidence focused on the negatives in the relationship between the mother and children rather than attempting to balance these against the positive changes achieved by the mother during the entirety of the legal process. In coming to this conclusion, I do not accept all of the criticisms made of the Children’s Guardian by Miss McKenna though I was persuaded by her overall submission that I should be circumspect about accepting the recommendations made by the Children’s Guardian.

 

The children would be returning to the mother under a rehabilitation plan, and going back to X in due course, under no statutory orders.