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An utterly misconceived application

Hi everybody !

 

I always like when the President opens a judgment with

 

“1.This is another utterly misconceived application”

 

Because it lets me know that this one has potential. It is Re SW (no 2) 2018

http://www.bailii.org/ew/cases/EWCOP/2017/30.html

 

And Re SW was one of my favourite weird cases (an application in the Court of Protection to have a best interests decision that a woman, SW, should undertake surgery in order to give a bone marrow transplant to her adopted brother. The applicant was the son of SW, asking that the surgery be carried out by husband of SW, also coincidentally a surgeon, also coincidentally who had been stuck off as a surgeon, also coincidentally he also had a friend who would assist him, also coincidentally his friend had also been struck off. Link below.  Oh, they also failed to show that the brother needed the surgery, or that SW actually lacked capacity to agree to it or refuse it.  It is fantastic in every regard)

 

 

I dismissed a previous application on 12 April 2017: Re SW [2017] EWCOP 7. Of that application, I said this (para 33):

 

 

 

“As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.”

 

https://suesspiciousminds.com/2017/04/12/bone-marrow-transplants-and-struck-off-doctors/

 

 

 

This time around, SW’s son was applying to the Court of Protection for a best interests decision that the Inland Revenue be prohibited from coming into SW’s home or taking any action against her.

 

 

 

3.The present application was issued by the son on 15 September 2017, supported by his witness statement dated 6 September 2017. P was named as the applicant’s mother, who I shall continue to refer to as SW. The respondent was named as the Commissioners for Revenue and Customs (HMRC), who were described in the application as being “Competent Authority”. The relief sought was, and I quote:

 

 

 

“A Declaration from the Court, under its inherent jurisdiction, that it shall be unlawful for the Respondent to effect forced entry of the property of P or to restrict P’s liberty of movement without permission from the Court of Protection.”

4.The son’s witness statement and the various exhibits attached to it make clear that the complaint arises out of the execution on 29 September 2016 by officers of HMRC of search warrants under section 8 of the Police and Criminal Evidence Act 1984 authorising the search of two properties owned by SW and in one of which SW was living at the time. The searches were in connection with suspected VAT frauds relating to companies of which the son and his father, Dr Waghorn, were directors. The son was subsequently arrested on 27 October 2016, according to a witness statement of the arresting officer “on suspicion of submitting false documentation to HMRC in order to reclaim VAT repayments contrary to s 72(1) of the Value Added Tax Act 1994 and the subsequent money laundering offences under sections 327 and 329 of the Proceeds of Crime Act 2002.”

 

 

One might cynically think that this application benefits the son and his father more than SW, since they are the people under investigation for VAT fraud, and that they are just using the mother/wife SW as a shield or device to escape prosecution for VAT fraud. You dreadful cynic.

 

 

5.The son’s witness statement is explicit that he was not present at the events on 29 September 2016. Having set out extracts from various statements which, he says, were “given as evidence in prosecution at the Crown Court”, and exhibited documents relating to a complaint he made to HMRC and to a complaint made by Dr Waghorn to the Independent Police Complaints Commission in relation to the actions of HMRC, the son concluded his witness statement as follows:

 

 

 

“I am unaware that the Authority has obtained any authorisation, either urgent or standard, from the Court of Protection to control and manage the property of P nor to restrict P’s liberty of movement.”

6.On 22 September 2017 District Judge S Jackson struck out the application. The District Judge’s order read as follows:

 

 

 

“Upon considering an application for an order under the inherent jurisdiction of the Court of Protection and upon the court not having an inherent jurisdiction and upon the court considering that the application and statement in support is incomprehensible and therefore without merit.

 

IT IS ORDERED that:

 

  1. Application struck out

 

  1. This order was made without a hearing. Any person affected by it may apply (on form COP9), within 21 days of the date on which the order was served, to have the order set aside, pursuant to rule 89 of the Court of Protection Rules 2007.”

7.By an application dated 1 October 2017 and received by the court on 3 October 2017, the son sought an order that the District Judge’s order be set aside and that the court grant a declaration in the terms previously sought. His grounds were as follows:

 

 

 

“1) Parliament has granted jurisdiction to the Court of Protection in Deprivation of Liberty cases by introducing into the Mental Capacity Act 2005 safeguards through the Mental Health Act 2007 (which received Royal assent in July 2007), in order that those who lack capacity have the protection of law which will comply with Article 5(1) and 5(4) of the European Convention of Human Rights (“ECHR”).

 

2) P’s determination of her protected rights is envisaged in Article 6(1) of the ECHR and guaranteed in the EU Charter of Fundamental Rights (Article 47 – Right to an effective remedy and to a fair trial).”

 

He submitted no further evidence.

 

 

The President was able to deal with the appeal fairly simply

 

 

 

10.I can deal with the matter briefly. I agree entirely with both the decision and the reasoning of the District Judge. I add three points.

 

 

11.First, a ‘best interests court’, in which I include the Court of Protection, the Family Court and the Family Division of the High Court of Justice, has no power to regulate or adjudicate upon the decision of a public authority exercising its statutory and other powers: see, generally, A v Liverpool City Council and Another [1982] AC 363, (1981) 2 FLR 222, and, specifically in relation to the Court of Protection, Re MN (Adult) [2015] EWCA Civ 411, [2015] COPLR 505, appeal dismissed N v ACCG and Others [2017] UKSC 22, [2017] COPLR 200. But that is precisely what the son is seeking to persuade the Court of Protection to do here. He is seeking an order, albeit in declaratory form, to prevent HMRC exercising its powers “without permission from the Court of Protection.” The appropriate remedy, if one is needed, is by application to the criminal court, in a case such as this, or to the Administrative Court. I make clear that I am not to be understood as suggesting that, in the circumstances, any application the son might make to either court stands the slightest prospect of success; my view, for what it is worth, is that it would not.

 

 

12.Second, there is, in any event, no evidence before the court to demonstrate SW’s incapacity, which alone can give the Court of Protection jurisdiction.

 

 

13.Third, on the basis of the evidence which the son has put before the court, there is simply nothing to support any contention that HMCR has acted unlawfully or that it either has in the past done, or that it threatens in future to do, any of the things apparently alleged by the son: that is, to effect forced entry to SW’s property, to control and manage her property, or to restrict her liberty of movement. The son has placed before the court a number of witness statements prepared for the purpose of the criminal proceedings by officers of HMRC. He has not sought to challenge any of the facts asserted by those officers – indeed, he seeks to rely upon parts of their witness statements. And since, as I have said, he was not present, he is in any event hardly in a position to gainsay what they assert. The simple fact is that there is nothing in any of this material which even begins to suggest that what the son is asserting is even arguably right. On the contrary, what the material demonstrates is the seeming propriety with which HMRC obtained and executed the search warrants, the very proper concern which the HMRC officers involved had for the potential impact on SW of what was going on around her while the relevant search warrant was being executed, and the very proper steps which they appropriately took to protect and safeguard her welfare.

 

 

14.The son’s application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge’s order striking out the original application remains in place.

 

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Local Authority unlawfully caring for child for four years (section 20 abuse)

 

Herefordshire Council v AB 2018

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/10.html

 

This is the case referred to in my earlier blog posts, and in this news story in the Guardian

https://www.theguardian.com/society/2018/mar/16/council-kept-boy-9-in-care-for-whole-of-his-life-judge-reveals?CMP=share_btn_link

 

The Guardian piece is not overselling it.

 

  This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time.  Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.

May as well open with the key bit

 

In the case of one of the 42 children accommodated by the local authority referred to above, the mother withdrew her consent for her child to be accommodated in 2013.  The local authority not only did not return the child to her mother’s care, it effectively did nothing in terms of care planning for the child.  Thus, for four years the local authority unlawfully had care of this child. 

 

That wasn’t the only example.

 

On 28 March 2010 CD’s mother gave formal written notice to the council of the withdrawal of her consent to CD being accommodated.  In response, the local authority (1) did not return CD to her care, but (2) advised her to seek legal advice if she wished CD to be returned to her care.  The director has acknowledged that this was a misuse of the local authority’s powers and it should have made immediate arrangements to return CD to his mother’s care.  It is, however, far worse than being a misuse of powers.  The local authority acted unlawfully and unlawfully retained care of CD until at least February 2013 when it appears from the chronology that the mother was engaging with the local authority and agreeing to CD remaining in care. 

 

The Judge, Keehan J, made orders that the Director of Children’s Services file statements explaining what had gone wrong with these two children and to set out all of the children that were in section 20 accommodation with details.

 

  1. I required the Director of Children’s Services to file and serve (i) a statement explaining the events and lack of planning in respect of CD and GH, and (ii) a statement detailing the circumstances of each and every child accommodated by this local authority pursuant to the provisions of section 20.
  2. The latter document made very grim reading.  Excepting CD, GH and three other children who are now the subject of public law proceedings, the local authority is accommodating 42 children.  Of these 42 children, the local authority have now recognised that 14 have wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and/or should have been the subject of legal planning meetings and/or care proceedings at a much earlier time.

 

My mathematical skills are not perfect, but that’s about a third of the children that they were accommodating that were being wrongly and abusively accommodated.

 

Gulp.

 

  1. Mr Chris Baird was appointed the permanent Director for Children’s Wellbeing for this local authority (otherwise known as the Director of Children’s Services and hereafter referred to the as ‘the Director’) on 10 November 2017.  It is right that I record at an early stage in the judgment that he (a) has readily and timeously complied with all directions made by this court for the filing and serving of statements and letters (b) has been completely frank and open about the past failings of this local authority (c) has provided a ready explanation of the steps he has taken or will take to remedy past mistakes, and (d) has chosen to attend court hearings in person.
  2. Later in this judgment, I will be roundly critical of egregious failings of this local authority in relation to CD and GH but also in relation to the 14 children to whom I have referred above.  Nevertheless, it is important for me to recognise and acknowledge that Mr Baird and the new senior management team at this local authority have taken and will take steps to ensure that such dreadful failures in the care of and planning for children and young people in its care will not occur in the future.  I have every confidence in the sincerity and commitment of this director to improve very significantly the planning for and provision of services to the children and young people for whom it is responsible.

 

 

Very decent of Mr Baird not to throw his predecessor under the bus.

 

(I also note with pleasure the use of the word ‘timeously’ which I was naming to a friend as one of my favourite words just last week)

 

  1. In February 2017, I sent a letter to the Director of Children’s Services of each of the 22 local authorities on the Midlands circuit with the consent and approval of all of the circuits’ designated family judges and of the chairs of the circuits’ ten local family justice boards.  One of the principal topics addressed was the use of section 20 accommodation.  I offered the following guidance:

“The use of section 20 by a local authority to provide accommodation to children and young people is perfectly legitimate if deployed in appropriate circumstances.  It is a useful tool available to local authorities.  I offer the following as examples of the appropriate use of section 20 but I emphasise these are examples only and not an exhaustive list: (a) a young person where his or her parents have requested their child’s accommodation because of behavioural problems and where the parents and social care are working co-operatively together to resolve the issues and to secure a return home in early course; (b) children or young people where the parent or parents have suffered an unexpected domestic crisis and require support from social care to accommodate the children or young people for a short period of time; (c) an unaccompanied asylum-seeking child or young person requires accommodation in circumstances where there are no grounds to believe the threshold criteria of section 31 of the Children Act 1989 are satisfied; (d) the children or young people who suffer from a medical condition or disability and the parent or parents seek respite care for a short period of time; or (e) a shared care arrangement between the family and local authority where the threshold of section 31 care is not met yet, where supported, this intensive level is needed periodically throughout a childhood or part of a childhood. 

“In all of the foregoing, it is likely the threshold criteria of section 31 of the Children Act 1989 are not or will not be satisfied and/or it would be either disproportionate or unnecessary to issue public law proceedings.  It is wholly inappropriate and an abuse of section 20 to accommodate children or young people as an alternative to the issue of public law proceedings or to provide accommodation and to delay the issue of public law proceedings.  Where children and young people who are believed to be at risk of suffering significant harm are removed from the care of their parent or parents, whether under a police protection and emergency protection order or by consent pursuant to section 20, it is imperative that care proceedings are issued without any delay.”

 

  1. This guidance, which was given by me in my role as the Family Division Liaison Judge of  the Midland Circuit, has neither legal effect nor greater significance than, as was intended to be, helpful advice to the respective directors, their senior staff, their social workers and the local authority’s child care solicitors. 

 

 

We shall see whether the Supreme Court agree with that formulation – they might well do.

 

CD was accommodated on 14th October 2009.

 

On 28 March 2010, the mother wrote to the local authority formally to withdraw her consent to CD remaining accommodated by the local authority pursuant to the provisions of section 20.  The local authority did not act on this withdrawal of consent and, instead, advised the mother to seek legal advice if they wished CD to be returned to their care.  I shall return to this issue later in the judgment. 

 

 

To make it absolutely plain, once mother does that, the LA have to return the child to her care or obtain an order from the Court authorising them not to do so.  They can’t just pretend she didn’t say it.  It is particularly rich to suggest to the mother that she seeks legal advice, when the LA obviously weren’t doing that themselves, or at least weren’t following it.

 

If the LA had asked me at that point what the legal status of the child was, I would have sent them this image

 

And, if you want to make provision for the damages claim that’s about to follow, you may want to locate “Treasure Island”

 

  1. A further LAC review was held on 29 April 2010.  That review recommended that the local authority should take steps to address CD’s legal security and permanence.  A legal planning meeting was held on 4 August 2010.  The legal advice given was to issue care proceedings to gain greater clarity around the parties’ views and timescales to secure permanence for CD as early as possible and for CD to have a voice in the proceedings through his guardian and solicitor.  Nothing was done.
  2. A further LAC review held on 18 November 2010, during which CD’s independent reviewing officer raised concerns about the delay in achieving permanence for CD and reiterated that the legal advice given needed to be followed.  Nothing was done.
  3. Two further legal planning meetings were held on 16 February 2011 and, following the completion of an updated assessment of CD’s needs again, on 30 March 2011, there was agreement at that latter meeting to initiate care proceedings.  At a further LAC review on 6 April 2011, no further recommendations were made as a clear decision had been made on 30 March. 
  4. On 5 May 2011, the decision to initiate care proceedings was retracted by the then Assistant Director of Children’s Services who stated she was not, “agreeing to issuing proceedings and considered that seeking a care order would not make a significant difference to CD’s care given he had been accommodated for some time”. 
  5. This decision was fundamentally misconceived and fundamentally wrong.
  1. The next LAC review was held on 28 February 2013 where it was agreed that CD should remain looked after until his 18th birthday.  There had been a query about his legal status.  The decision was made that he remained accommodated pursuant to section 20, noting that CD’s mother was engaging well with the arrangements.  A further LAC review was held on 16 July 2013.  No changes were recommended to CD’s care plan.  The same approach was taken at the next LAC review on 9 December 2013 but there were discussions about the possibility of CD’s foster carers applying for a special guardianship order. 

 

There are a string of further LAC reviews, all thinking that the section 20 was okay  (basing that presumably on the Feb 2013 view that “Mother was engaging well with the arrangements”), then

 

There was a further LAC review on 3 April 2017.  On 5 September 2017, legal advice was sought at a legal gateway meeting.  It was recognised that CD had been accommodated under section 20 since 2009.  Somewhat surprisingly, the section 20 accommodation arrangement was deemed appropriate.  Thereafter, the decision was made to issue these public law proceedings. 

 

GH was accommodated on 9th July 2008 – the LA relying on the purported consent given by his mother, who was fourteen.

 

  1. At a LAC review held on 4 March 2014, there was a change of plan by the local authority.  The local authority decided to take GH’s case to a legal planning meeting.
  1. It was decided at the legal planning meeting that care proceedings should be instigated. The care plan of the same date stated that the local authority is considering the need to obtain a full care order. Nothing, however, was done

Well, at least they decided after nearly six years to issue care proceedings. Job done.

 

  1. In June 2016 a comprehensive review was undertaken of all section 20 accommodation cases by this local authority.  A LAC review was then held in respect of GH on 8 December 2016 where it was reported that legal advice regarding the continuing use of section 20 had been sought.  The decision was made that (i) an application for a care order needed to be initiated, and (ii) the local authority needed to gain parental responsibility due to GH’s complex health needs and the fact that he might need to move to a new placement in the near future. Nothing was done.

 

Okay, so having decided after six years that they needed to do something, they didn’t do anything for a further two years, then reviewed it and realised that they needed to do something. Then did nothing.

 

A further legal gateway meeting took place in March 2017.  The case was escalated by the independent reviewing officer to the Children with Disabilities Team at regular intervals between May and July 2017.  The independent reviewing officer then raised the matter with the Head of Service for Safeguarding and Review, who in turn escalated it to the relevant Head of Service in July.  It was not until 22 September 2017 that this application for a care order was in fact made. 

 

 

Oh boy.

 

  1. I have never before encountered two cases where a local authority has so seriously and serially failed to address the needs of the children in its care and so seriously misused, indeed abused, the provisions of section 20 of the Children Act 1989.  By happenchance alone, as it appears to me, both children have remained in the care of quite extraordinary and superlative carers who have met their respective needs extremely well.  I offer the warmest of thanks and congratulations to CD’s foster carers and to GH’s foster carer.  For periods of at least eight years they have each cared for the two boys without any parental responsibility for either of them.  Both sets of foster carers have in many ways been failed by this local authority, but their commitment to CD and GH respectively has been undaunted and unfailing. 
  2. Nevertheless, serious and long lasting damage has resulted.  Contact between CD and his mother had never properly been considered nor promoted.  The mother is not without blame on this issue.  It led however to an extremely unfortunate event recently where the mother and CD inadvertently came across each other in public and the mother did not recognise her son.  CD was dramatically affected.  What child could reasonably cope with their mother or father not recognising them?
  3. In respect of GH, his mother was so young when he was born that she needed the greatest possible advice, support and consideration.  She was not given any of the foregoing.  The local authority, as referred to above, did not even consider whether she was capable of consenting to GH’s accommodation.  Thereafter she was frankly side-lined.  As she grew older and matured, little, if any, consideration was given as to whether she could then care for GH or whether she could and should play a greater role in his life.  I have a very real sense that her role as his mother, albeit, or perhaps because, she was so very young, was simply overlooked and ignored.  Fortunately, with the issuing of these proceedings it has been possible to secure the placement of both children.  In respect of CD with his current carers as special guardians.  In respect of GH, to secure his placement with ZA but then to consider where his interests lie in a future long-term placement.  It has also enabled CD’s foster carers to be invested with parental responsibility for him.
  4. I have been seriously critical of the actions and inactions of this local authority.  I do not, despite the explanations offered, understand how or why this local authority failed these two children so very badly.  Nevertheless, I am satisfied that the appointment of a new director and a new management team, who are alive to the past failings in these and in other cases, will lead to an improved service for the children and young people who are now or hence forward will be placed in the care of this local authority.

 

 

The Local Authority argued that they should not be named in this judgment.  Given that the title of the case is Herefordshire Council v AB 2018,  how do you think that application went?

 

Publicity

  1. I have indicated to the parties at earlier hearings that I was minded to give a public judgment in respect of both cases.  It was submitted on behalf of the local authority that I should anonymise the names of all parties, including the local authority, because the adverse publicity would be damaging to the council.  I subsequently received a letter from the director bringing to my attention Hereford’s struggle to recruit solicitors and social workers and that “adverse publicity for the local authority does count in the minds of some prospective employees and it would be unfortunate if our historic failings were to turn people away.”  The contents of this letter, which had been disclosed to all of the other parties, caused me to consider once more whether it was necessary for me to name the local authority in this case.  After long and careful reflection I have concluded that it is.  I decided that a public judgment which named the local authority was necessary for the following reasons: (a) the President has repeatedly emphasised the importance of transparency and openness in the conduct of cases in the Family Division and in the Family Court; (b) the public have a real and legitimate interest in knowing what public bodies do, or, as in these cases, do not do in their name and on their behalf; (c) the failure to plan and take action in both of these cases is extremely serious.  There were repeated flagrant breaches of guidance from the judges of the division and of standard good practice; (d) it is evident that this case emanates from the Midlands Circuit.  Not to identify the relevant local authority would unfairly run the risk of other authorities on this circuit coming under suspicion; and (e) the President and the judges of the division have always previously taken a robust approach on the identification of local authorities, experts and professionals whose approach or working practices are found to be below an acceptable standard. 
  2. The director is understandably concerned about the potential adverse consequences of a public judgment.  I fully understand those concerns, but, for the reasons I have given above, I do not consider these concerns should lead me to anonymise the local authority.  In my view these concerns are addressed, or at least ameliorated, by the court making it clear, as I do in paragraphs 11 and 12 above and in the paragraphs below, that the criticisms set out in this judgment relate to the past actions of this local authority and that there is now a new director and leadership team in place who are committed to change and to improve the care and provision of services to the children and young people in its care.

 

To be fair, even as someone who practised law for ten years in the Midlands, I had no idea that Hereford was considered to be in the Midlands circuit, so it wouldn’t have been on my suspect list had the Court just said “a Local Authority in the Midlands”

Geography is not my strong suit.  I have yet to establish what my strong suit is, other than snark.

 

Hereford will now be waiting to see what the Supreme Court decide in Hackney about human rights claims arising from section 20 misuse.  These are very bad ones.  If HRA claims are still going after Hackney, expect this to break all records.

Use of Police Protection – a guide for social workers

 

 

 

 

 

This is intended to be a simple one page guide for social workers as to what to think about when Police Protection is being considered as a route of a child coming into care. It is not a substitute for legal advice on a particular case and the best thing to do is to contact legal for specific advice.

 

The police have powers to remove a child and place the child with the Local Authority, section 46 Police Protection in cases of emergency.

 

The Courts have clarified what ‘emergency’ does and does not mean in this context.

 

The starting point is this:-

 

The separation of a parent and child should usually be a decision for a Court. If it is possible to seek a Court hearing, that should be done.

 

The police should not be asked to use their section 46 powers to bypass the Court and the parent having a fair hearing about removal. Police protection should not be used because it is quicker, easier, less hassle, it is nearly the end of the working day.

 

If a decision is taken to remove a child under Police Protection rather than go to Court, there must be wholly exceptional reasons for this. Those involved would need to show not only that there was a need for separation, but that this need was that no reasonable steps could be taken to keep the child safe WHILST a Court hearing was arranged. The Local Authority have to try very hard to make alternative arrangements so that the decision can be made by the Court.

 

“there is an onerous burden upon a local authority to find alternative arrangements during the delay which would hold the balance of protection and which do not require separation.”

 

It is vital that full and detailed records of the decision-making process are kept, and that those involved set out clearly what efforts were made to obtain a Court hearing and why the risk could not be managed until that hearing.

 

Misuse of Police Protection to remove a child can result in unfairness and human rights breaches, and the Court may hold detailed enquiries as to why this has happened and may award compensation.

 

 

Also, there’s no “O” in Police Protection.   (okay, actually, there are two, but the use of  PPO  as shorthand for removal under Police Protection causes the death of tiny pixies every time it occurs. The “O” in PPO stands for Order, and the absolute thing to remember with Police Protection is that there IS no Order. The Court don’t sanction removal, a police officer does.  I know it is right next to EPO in the statute, and it just sort of feels right in the mouth to say EPO/PPO, but the O stands for Order.  So EPO is right, and Police Protection is right.  PPO is wrong.  Please avoid it!

Use of section 20 – a guide for social workers

 

There is a blog post coming about the Hereford case, discussed in this Guardian article

https://www.theguardian.com/society/2018/mar/16/council-kept-boy-9-in-care-for-whole-of-his-life-judge-reveals?CMP=share_btn_link

but following Twitter discussions, I thought it might be helpful to share the guidance I prepared for my own social work department with others.  Be warned that there’s a Supreme Court decision on section 20 coming soon, in the Hackney case, and all bets are off as to what they might say.  (I think Hackney’s spirits probably sank when they saw the Hereford case whilst waiting for their own judgment)

 

This is intended to be a simple short guide for social workers as to what to think about when section 20 is being considered as a route of a child coming into care. It is not a substitute for legal advice on a particular case and the best thing to do is to contact legal for specific advice.

 

Obtaining consent

 

Before using section 20, the social worker must be sure that :-

 

  1. The parent has the capacity to agree
  2. The parent understands what it is they are being asked to agree to
  3. The parent has been told that they are able to say no and their right to later object and seek return of the child AT ANY TIME
  4. The consent is given freely and not under duress
  5. The prospect of Court proceedings is not being used as a threat to compel a parent to agree to section 20 (you can inform them of the possibility, if it is a genuine one, but not in a way that is directly or indirectly threatening. Social workers should never talk about Court in a way that suggests that the order is inevitable or certain)
  6. AND REALLY IMPORTANTLY that even if the parent is consenting, that the Social worker specifically considers whether it is proportionate and necessary for the child to be placed in foster care AND whether the case should be before a Court rather than by agreement

 

 

All of this MUST be recorded in the social work case notes, which should be done contemporaneously – if for some reason they cannot be done contemporaneously they should be done at the shortest possible interval thereafter with a note made on the record as to when they were made and why they were not made at the time.

 

This recording element is vital.

 

The social worker should obtain this consent from each of the persons who have parental responsibility. IF one parent consents and the other cannot be contacted for good reason, a short period of s20 whilst efforts are made to locate and contact that other parent is probably satisfactory.   (Note that the Courts have not yet specifically decided this point). A careful note should be made as to the efforts made to contact the other parent and why they were not successful – a non-resident parent who is local and has active involvement in the child’s life will need very compelling reasons not to have had this conversation about consent.

 

The Court has also made it plain that the practice of having a police officer present or nearby during discussions about section 20, with the explicit or implied threat of “if you don’t agree, the police officer will remove the child” is completely unacceptable. Don’t do it, don’t do it, don’t do it.

Don’t.

 

On the issue of capacity to agree

 

  1. i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity;
  2. ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 *and in particular the parent’s capacity to use and weigh all the relevant information;

iii)         if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management.

 

If there is any doubt about a parent’s functioning, capacity to understand, mental health issues impairing their judgment, learning difficulties or disabilities, language issues, then section 20 should not be used without seeking legal advice.

 

If section 20 is used as a result of a child protection concern, very urgent consideration should be given to holding a swift Meeting Before Action in order that the parents can have the benefit of free legal advice and to avoid drift and delay.

 

 

*Section 3 of the Mental Capacity Act 2005

 

 

A person is unable to make a decision for himself on section 20 if he is unable to :-

 

Understand the information relevant to the decision   (that the child will not be with them, that the child will be in a foster placement, what foster care means, that they have the right to say yes or no, and that they have the right to change their mind, how long it would be for, what might happen next – what would happen if they say no, what would happen if they say yes)

To retain that information (for a long enough period to make the decision properly)

To use or weigh that information as part of the decision-making process   (a person can make a BAD decision or one that seems foolish, but they need to be having a process of deciding)

To communicate the decision

 

A person is entitled to have help and an explanation given in a way that is appropriate for them.

 

Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam)
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2729.html

 

sets out that the specific things that a parent has to understand in order to have capacity to agree section 20 are these:-

a) That the child will be staying with someone chosen by the local authority, probably a foster carer;

b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time;

c) That the parent will be able to see the child

 

Removal from section 20

 

 

A person who has Parental Responsibility is legally able to remove a child from section 20 accommodation at any time. They can be ASKED to give a notice period or a pause to allow a Court order to be obtained, but they do not HAVE to.

 

The social worker should be aware that the issue of whether a parent should give a notice period at the time of signing section 20 is contentious and that even if they agreed to give the notice period at the time, they are not bound by it at a later point. A parent agreeing to give seven days notice before removal is not a guarantee.

 

 

Section 20(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

 

The fact that the LA think that the child would come to harm if the child was removed does not block that power to remove – the LA would need, in that circumstance, to seek an urgent order from the Court which would give the LA a share of PR.  They cannot simply refuse to give the child back or ignore the request.  (see the Hereford judgment for how badly that can go wrong)

 

This power to remove does not apply if another person has an SGO or Child Arrangements Order and that person agrees to the s20 continuing, OR where the child is over 16 and agrees to accommodation continuing.

 

 

Objection to section 20

 

A parent is able to object to section 20 if THEY are able to provide the child with accommodation or arrange for someone else to do so.

 

The LA cannot ignore that objection just because they consider that the accommodation being put forward is unsuitable, lacking or even dangerous (that might be a trigger for an application to Court to obtain an order instead) but it does not block the objection.

 

What MIGHT block an objection is that the parent has bail conditions that prevent them caring for the child (if they are offering to provide accommodation themselves, not via a third party).  But I would not rely on that at the moment. The High Court said no, you’d still need consent. The Court of Appeal said you wouldn’t, and the Supreme Court are dealing with it at the moment – in the Hackney case. I would still go with valid section 20 consent or a Court order, and not rely on the bail conditions blocking an objection.

 

 

 

Section 20 drift

 

 

Social workers, managers and IROs must be very alive to the issue of drift within section 20 – consent having been given, the child remains accommodated without a clear and time-sensitive plan for the child’s longer term future being implemented. The questions should be asked, answered and recorded on the file :-

 

Should this child be going home or to other relatives?

What would need to happen in order to make that work?

What assessments / information are needed if we can’t make those decisions yet, how are we going to get them and when?

Is this a case that is suitable for section 20 or should it be before the Court?

 

Where a child is expressing strong views about being uncertain or fearful about their status, even more careful thought must be given to the final question above.

Just because a child has been in section 20 for a long time, doesn’t mean that you shouldn’t revisit and ask those questions again.  Failure to properly think about these things is what leads to drift.

 

Unaccompanied children

 

 

For many unaccompanied children, locating and communicating with their parents to conduct the consent exercise in this document will not always be possible or easy. Clear recording must be made of the efforts to do so.

 

A Local Authority can place a child in section 20 if the child is abandoned, which would generally be the case here. Reasonable efforts ought to be made to trace the parents and to communicate with them – that may not always be possible at all and may not be possible in a short period of time.

 

If, in considering the case, the social worker, manager or IRO are of the view that this perhaps ought to be a case which is put before the Court, a Legal Planning Meeting request should be made.

 

The High Court have now ruled that threshold can be satisfied for such children, as a result of them being abandoned (even though the parent has made efforts to move the child to a safer place/country), so the matter needs serious and careful thought as to whether section 20 or court proceedings are the correct route.

DAM (I wish I was your lover)

 

 

An appeal about the structure of a judgment and whether it was sufficiently deficient to warrant overturning the decision (I’m sure that combination of italicised words is already making David Burrows writhe in agony…. )

 

Re DAM (Children) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/386.html

 

(There are obvious alternative jokes about the way the case name sounds if you read it aloud, but you know me and pop music, I wasn’t going to be able to resist a Sophie B Hawkins reference)

 

But obviously, beware the eyes that paralyze

 

 

The decision being appealed was from HHJ Tolson QC.   The lead Judge in the Court of Appeal was Jackson LJ .   (If you ARE being appealed about the manner in which you construct your judgment, you probably would not elect Jackson LJ to be critiquing your judgment, in much the same way as you would not want Rodin turning up to your pottery class to tell you if your bodged-up clay ashtray is any good)

 

 

5.Judges hearing care cases in the Family Court are engaged in one of the most difficult of all judicial tasks. The decisions are of huge significance for children and their families. The evidence is often difficult and distressing, and the level of emotion high. Achieving good case management and timely decision-making, not just for the children in the individual case but for all the children who are awaiting decisions, is a demanding challenge for the specialist judges who undertake this work.

 

 

6.In every care case, the Children Act 1989 and the Human Rights Act 1998 require the court to address a series of questions. What are the facts? Has the threshold been crossed? If so, what order is in the child’s best interests? Is that outcome necessary and proportionate to the problem? There is much authority from the appeal courts about each of these questions but at its simplest every valid decision will answer them.

 

 

7.It is in the judgment that the judge’s reasoning is found. There is no one correct form of judgment. Every judge has his or her own means of expression. Different cases may call for different types of judgment. Some judgments will be given at the time and others will be reserved. What is necessary in every case is that the judgment should be adequately reasoned: Re B-S [2013] EWCA Civ 1146 at [46]. That is a matter of substance, not of structure or form: Re R [2014] EWCA Civ 1625 at [18]. The judgment must enable the reader, and above all the family itself, to know that the judge asked and answered the right questions.

 

 

8.This is not to say that the structure of a judgment is irrelevant. A judgment that lacks structure or is structured in a confusing way makes the judge’s reasoning harder to follow and may raise the possibility that the process by which the decision was reached was faulty. Inevitably, that increases the possibility of an appeal.

 

 

There was an educational psychologist instructed in the case who seems to have had an idiosyncratic approach to her role

 

Dr Rothermel’s approach: – The judge described this as the most bizarre aspect of the matter. Having filed her lengthy report, she was directed on 18 July to provide copies of her notes and correspondence. She said that would take six hours and sought payment for it, having already exceeded her budget. She was then directed to bring the documents to court on the first day of the hearing. They amounted to more than a hundred pages of, in particular, email exchanges with the mother. The other parties made extensive criticisms of Dr Rothermel, and the judge summarised the material as revealing her to be an expert who had strayed far beyond her limited brief, advising the mother on the presentation of her case, gathering evidence for her and, when giving evidence, being an advocate for home education and for the mother. She disposed of the key elements of her instruction in what the judge described as a few bland lines.

 

 

 

36.The grounds of appeal included the contention that the judge was wrong to reject the evidence of Dr Rothermel as worthless in its entirety, and to conclude that the children had not been educated at home. This argument was not developed by Mr Twomey. In my view, the judge’s verdict on Dr Rothermel’s contribution was fully justified, and his finding of fact about the children’s lack of education at home could not be disturbed in this court.

 

Fundamentally, the appeal was based on the assertion that the trial Judge had wrongly approached the case as one that was decided on threshold, that having found threshold met he swiftly ruled mother out and announced his decision on orders and AFTER that, dealt with welfare matters including the welfare checklist and briefly.

 

 

33.Mr Twomey QC and Mr Boyd start their submissions with an analysis of the way the judge structured his judgment as showing that he had fallen into substantive error. They make these undeniable observations:

 

 

 

 

(1) The judge stated that the key to the case lay in the threshold criteria. [48]

 

(2) Having found the threshold to be made out [61], he immediately eliminated the mother [62] and announced his conclusion, stating that there was no other realistic option but foster care for D and A [63, 65].

 

(3) He did not carry out any welfare assessment, by balancing the advantages and disadvantages of placements at home or in foster care. He did not refer to the welfare checklist until [73], long after he had stated his decisions, and in doing so, he stated, “I check my conclusions against the welfare checklist.”

 

(4) When identifying factors in the welfare checklist, he did not mention (g), the powers of the court, such as an interim or final care order with placement at home, or injunctions or undertakings to ensure schooling and medical care, perhaps as conditions to a supervision order under Schedules 2 or 3.

 

(5) He made no proportionality crosscheck.

34.As a matter of law, Mr Twomey submits that the use of the welfare checklist as an afterthought is not compliant with s.1(4), which requires the court to have regard to the matters in s.1(3) when it “is considering” whether to make a care order. It must, he argues, be considered before a decision is reached, not afterwards. He also draws attention to the encouragement given by Baroness Hale to judges to address each of the factors in the welfare checklist in any difficult or finely balanced case so as to ensure that no particular feature of the case is given more weight than it should properly bear: Re G (Children) [2006] UKHL 43 at [40].

 

 

35.In an ambitious submission, Mr Twomey argued that the court was not entitled to make a care order separating the children from their mother without being satisfied that “nothing else will do”.

 

[For those who are not fluent in Judge, ‘ambitious’ here is not a compliment]

 

The Court of Appeal don’t explicitly mention Re B 2013, and the words of Lord Neuberger, which are what sets that particular hare running (in my respectful view)

 

 

  1. It appears to me that, given that the Judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By “necessary”, I mean, to use Lady Hale’s phrase in para 198, “where nothing else will do”. I consider that this conclusion is clear under the 1989 Act, interpreted in the absence of the Convention, but it is put beyond doubt by article 8. The conclusion is also consistent with UNCRC.

 

  1. It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195-198 make it clear that such an order can only be made in “exceptional circumstances”, and that it could only be justified by “overriding requirements pertaining to the child’s welfare”, or, putting the same point in slightly different words, “by the overriding necessity of the interests of the child”. I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in Re C and B [2001] 1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore that point further

 

(Now of course in Re B, the care plan was adoption, and it might well be that those passages are intended to be read as ‘a care order where the care plan is adoption’, but the bare language is “should only have made a care order if satisfied that it was necessary to do so in order to protect the interests of the child and by necessary I mean ‘where nothing else will do’ “ )

 

I think there’s at least an argument to be had on that aspect. I have seen a Parker J case in which it was posited that this formulation applies to interim care orders as well, which I think goes too far.

 

The Court of Appeal don’t agree

 

 

 

(5) I reject the argument that a court considering whether to make a care order has to be satisfied that “nothing else will do”. A care order is a serious order that can only be made where the facts justify it, where it is in the child’s interests, and where it is necessary and proportionate. But the aphorism “nothing else will do” (which, as has been said, is not a substitute for a proper welfare evaluation and proportionality check) applies only to cases involving a plan for adoption. That is clear from the case in which it originated, In re M (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, which concerned an application for a care order with a care plan for adoption. It is clear, where it is not explicit, that all the justices were addressing a situation involving the severance of the parental relationship altogether, and not one involving physical separation under a care order, where the parent retains parental responsibility. That is confirmed by the summary given by the President in Re B-S:

 

“22. The language used in Re M is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “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 M paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.” [my emphasis]

 

I may be utterly wrong about the impact of Lord Neuberger’s words, but it is a shame that they weren’t considered explicitly, because that’s what gives rise to the suggestion that any order that permanently separates a child from birth parents has to be measured against that necessity and ‘nothing else will do’ yardstick.

 

 

On the other matters, the Court of Appeal decision is as follows:-

 

41.Despite the neat way in which the mother’s case has been presented, my clear conclusion is that the judge’s findings of fact, set out at paragraph 29 above, amply satisfy the threshold for making public law orders and adequately underpin the welfare decision. Taking full account of the matters that appear below, it has not been shown that the judge was wrong to conclude that the mother’s parenting falls so far short of what the children need, and that her approach is so ingrained and unchangeable, that care orders were necessary. He had an excellent opportunity to assess the mother’s personality and behaviour during the course of the proceedings. Nor is it irrelevant that there is now no challenge to the judge’s decision that M, who had grown up for 4½ years in her mother’s care, should remain with her father. The home circumstances that justified that decision were shared by the older children.

 

 

42.Dealing specifically with the criticisms of the judge’s approach, set out in paragraph 33 above:

 

 

 

(1) It was unwise of the judge to characterise the decision as one that turned on the threshold findings. The threshold is concerned only with harm, while the welfare checklist addresses a much wider range of factors. There are cases involving very serious abuse where the threshold definitively determines the outcome, but this was not one of them. Nonetheless, despite the way the judge expressed himself, his decision did not in fact rest on the threshold alone, but on all the welfare considerations mentioned in the judgment.

 

(2) The term “realistic options”, deriving from cases such as Re B-S [2013] EWCA Civ 1146, ensures that time is not wasted on outcomes that are merely theoretical, so that attention can be focused on the genuine possibilities. In this case, the realistic options for D and A were placement at home or placement in foster care. The fact that one was discarded in favour of the other made it a rejected option, not an unrealistic one, and the judgment, read as a whole, shows that this is how the judge in fact proceeded.

 

(3) In the almost 30 years since it was devised, the ‘welfare checklist’ has stood the test of time and its value to decision-makers, as described in Re G, cannot be overstated. It is obligatory to have regard to its contents when considering what order should be made. That obligation will be discharged if it is evident that in substance all the relevant, significant welfare factors have been taken into account. I do not accept that there is an obligation to articulate a checklist analysis before announcing a decision. However, to omit any reference to the substance of the checklist, or to relegate the exercise until after the court has stated its conclusion, carries risks of the kind seen in this appeal.

 

(4) The absence of a point in the judgment where the judge can be seen to have drawn together the welfare factors for comparative evaluation is an undoubted weakness. However, analysis of the judgment as a whole shows that the judge did evaluate all the significant welfare factors, although not in a methodical order that would have made his reasoning easier to appreciate.

 

 

(6) To continue, I do not accept Mr Twomey’s submission that the judge did not consider the powers of the court, as required by checklist factor (g). He dealt with that matter squarely at paragraph 51 (see 31 above).

 

(7) I accept that the judge did not explicitly return to the issue of proportionality, but he clearly had it in mind from his self-direction and in my view his decision is not undermined by that omission.

43.I therefore conclude that the submission that the judge’s decision was wrong must fail.

 

 

The Court of Appeal did, it seems to me, consider that there were failings in the structure and approach of the judgment; but these were not such as to fatally flaw the judgment. A considered reading of the judgment answered all of the questions posited in the opening remarks in the appeal judgment and this piece.

 

However,

 

 

 

44.I would also reject the submission that the decision was unjust because the form of the judgment amounted to a serious procedural irregularity. The judge gave a substantial judgment that, on close examination, adequately reasons his decision.

 

 

45.However, I am also in no doubt that permission to appeal was rightly granted. Had the judgment proceeded simply and methodically through the stages of the decision-making process, this might have been avoided. It should not be necessary for an appeal court to undertake a laborious explanatory exercise of the kind contained in this judgment. That can only affect the parties’ confidence in the decision. In the meantime, this family has been left in a state of uncertainty for a further four months and the costs of the appeal to the public purse have, we were told, amounted to some £37,000.

Radical mountaineering in Leicestershire

A family with their three adult children and three minor children were stopped at Harwich port, we don’t know the reasons  (but can probably guess).  The father’s home was searched as a result and some significant things found as a result.

(The LA involved is not named to assist in anonymity, so please don’t assume that it is Leicester or Leicestershire because of the title of the post. You will see why I gave it that title later, be patient!)

 

The family’s version of events was that all of them were travelling to Holland, with the intention of visiting a children’s play park for the day, to sleep in their rented car overnight and travel back the next day.  That made the authorities query why it was that the father had been to a camping store the day before, spending six hundred pounds.  This was not a wealthy family.

One of the adult siblings gave evidence that the camping and outdoors equipment was for a later trip planned to Scotland, where they would be climbing mountains.

 

  1. Then there is B’s evidence about the equipment. She told me that the planned trip was to Scotland at Easter. The father had talked about his pleasure in going to Aviemore as a teenager. She appeared never to have heard of the Cairngorms when she was asked but perhaps that is not absolutely fatal to her case. More importantly, Aviemore is a ski resort, is at elevation, and there was likely to be still snow up there. To suggest that this family planned to sleep in a tent in potentially harsh weather conditions is absolutely fanciful. The father has diabetes and other health conditions. He needs to relieve himself frequently. B told me it was planned that she and the other children would go for long walks and climb a mountain. There was no suggestion as to what was going to happen to the father, and how he was going to keep up, or how the younger children would cope if they were tired or wet or cold. I may be wrong in having detected an inconsistency in B’s evidence as to whether or not they were intending to sleep in different camp sites taking their equipment with them, or whether they were going to stay at the same (unidentified) campsite every night and go for walks during the day. It is inconceivable that the father either would have subjected himself to such conditions or that he would have been left shivering in a tent whilst the family went on without him.
  2. I asked B whether she had ever climbed a mountain and she said she thought she had in Wales. She then said she had climbed one in Leicester recently. It had been very high and very steep. Leicester is an extremely flat part of the country. It is obvious to me that B was making up her evidence as she went along and I am quite satisfied that the Aviemore trip was a smokescreen. The family cannot even agree for when it was planned.
  3. I am satisfied that I have been told a series of untruths by the adults about the background to the Holland trip, what was intended, and the surrounding circumstances, and that in itself is probably one of the most important features of my findings

 

Indeed, Leicestershire is not known for its  mountains. Taking my lead from the Hugh Grant movie, I have established that there is one summit in Leicestershire which squeaks into being classified as a mountain, being (just) over 2000 meters in height.  Preparation for the Cairgorms it is not.

 

Perhaps the family were misinformed

 

Humphrey Bogus, sorry Bogart

 

Re Y children (findings as to radicalisation) 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3826.html

 

  1. Radicalisation cases have only come to the forefront of the court’s attention during the last two and a half years, particularly since the escalation of troubles in the Middle East with the Syrian conflict and the rise of the Islamic State, called as well by various other different names. Radicalisation is not new.
  2. I stress that the courts see cases where religion is said to be harmfully impressed on children, or provides a harmful environment or lifestyle for them, as in cases of other religions as well. I have professional experience of childcare litigation concerning fundamentalist Christian sects and certain Hindu and Jewish groups, for example. I recognise also that the UK has not been immune from sectarian Christian violence both historically and recently.
  3. I repeat, as I have said to the parties, that not only do I realise how sensitive is this case, but how difficult are issues which concern freedom of thought, religion and expression; and personal autonomy. At the same time I have to look at s.31 of the Children Act in respect of care proceedings now presently in being in respect of the three index children. This case is about significant harm or the risk thereof and child welfare in respect of young people who cannot truly decide on their political and religious beliefs, and crucially, activities stemming therefrom.

 

The Judge heard evidence as to some of the matters found within the families purchases/packing, which was compared to the instruction list prepared by Isis and circulated to people who were intending to join up with them in Syria. In a peculiar set of circumstances, possession of this list is a criminal offence (don’t google the list, it will almost certainly flag you up with people / agencies you don’t want to be flagged up with), so even the Judge having temporary possession of it was potentially placing her in breach of the criminal law.

 

  1. There are a number of other matters which give rise to concern. They had an itinerary with them which Mr. Poole submits is written in stilted and unusual terms. It is not the kind of list of activities that one might expect to see, and has detail, particularly in relation to timings, which seems, objectively, unnecessary for this sort of trip. It is suggested that this is a kind of decoy document, intended to distract the authorities from the real purpose and to support the case that this was a weekend jaunt. Isis documentation online giving guidance about a planned journey to Syria via northern Europe suggests that such documentation might be useful and also suggests obtaining return tickets, so the existence of returns does not help. The father does not have very much money. The passports had been obtained in contemplation of this trip many months before, costing over £200. Yet the journey had not been booked. There are various other expenses, such as the ferry, which cost over £400. The suggestion is that this was a very unusually expensive trip to make for what was going to be just a day and a morning in Holland, for the purposes of a trip to the play park. The necessity or desirability of visiting that venue has not really been established.
  2. Further the father was unable to give a convincing reason for the presence of a Turkish phrase book in the property since the family had never been to Turkey. In the father’s house there was found a list signed with the signature of R and there was another list obtained made by B, headed “Things to get”. The day before the trip was made the father went to two branches of a camping shop, one in Area T and one in Area S, and spent over £600 on equipment. That equipment has considerable correspondence with a “suggested equipment list” in another document called “Hijrah (emigration) to the Islamic State”, emanating from supporters of Islamic State which is to be found online, the possession of which is a criminal offence. I have been given a copy of that document in the hope that I am not transgressing by its being in my possession. I have tried to protect the parties and they have accepted this by ensuring that the document’s copies are numbered and are retained, will be returned, and are viewed only within the courtroom.

 

 

For the same reasons, the Court has to be careful in stipulating the commonalities between the family’s camping shopping/packing for Holland and the Isis list.

The father was a member of a prescribed organisation, ALM and had involved the children in their activities

  1. I am satisfied on all the evidence that the father is closely associated with ALM. I accept that he was not charged along with those recently convicted. I accept that there is no evidence that he has spoken or written in public on its behalf. However he has supported it online, and it has a significant online presence which I accept is important for the promotion of its ideas. I do not know whether he is a member, I do not know whether one can be a member of an organisation such as ALM, I doubt very much whether it has a list of members, or whether it has a joining fee or anything of that kind. Z told me that the father is well known to the membership. He is not part of the management or governance insofar as there is one – the ‘inner echelons’ as it was termed in the hearing- and, therefore, not one of the decision makers, but he is intimately known within and loosely part of the organisation.
  2. Sub-question (b) is whether ALM is a proscribed organisation, which it is accepted it is.
  3. The next sub-question is “(c) Did the father take the children to inappropriate ALM demonstrations?” There were two particular demonstrations. He took J (then aged 9) and F (then aged 7) to one in 2009 in London attended by HA. The second was a demonstration outside the Pakistani Embassy after the Pakistan Army had become involved with students in “The Red Mosque” incident. I have seen photographs of the father standing next to HA, outside the Embassy with F and L. The two boys were holding a placard of which the father said he was not able to tell me the origin, which refers to the Pakistan Army as, essentially, “the devil”. There are other placards next to the boys. I note one, relevant to another issue, supporting the introduction of Sharia law for Pakistan, because, the father told me, the students in the Red Mosque had called for Sharia law in Pakistan.
  4. I recognise that some people take children on political demonstrations (although not usually to events where violence might be predicted) and persuade their children to carry placards. Sometimes children are too young even to take persuading, sometimes the placards are put in the child’s pram. It could be said that the children, who probably do not understand in the least the point of the demonstration, are being used in order to put over and support adult views, in a way which could be seen as manipulative and even abusive. I recognise that this is not in any way an activity which is limited to any particular social or religious group. What the father involved the boys in was not illegal, and as a one-off would have been unlikely to have led to any child welfare intervention. However, the demonstration was linked with ALM, and it was not appropriate, in my view, for the boys to be actively involved in such a demonstration or such an organisation, knowing the views expressed by members and the possible consequences of the expression of those views: a public disturbance over which the father had no control, or the expression of harmful views. The father said these were peaceful protests but he was not to know that they would be so. Most importantly it demonstrates the influences to which he has wished to or at least been prepared to expose the boys. It is part of the overall picture.
  5. The next sub -question therefore is (d),
    1. “Did the father expose the boys to harmful views at ALM- inspired talks and take them to talks given by individuals later convicted and/or charged with terrorism offences?”
  1. The father was an attendee at Da’wah (proselytization or outreach) stalls. These are booths displaying literature in public areas, and not confined to ALM. Z told me that from his knowledge someone who attended such a stall who showed a particular interest in extremist themes might, after several visits, be invited to attend an evening meeting, once a degree of familiarity and common ground had been established between the stall minder and the enquirer. That was how he had come to be invited to evening events. The father told me that all were welcome at the stalls, of whatever age or religion, men or women, and this demonstrated how innocuous they were. He also said that Z had been welcome when it was thought that he was genuine, but would not have been had it been known that he was an undercover policemen. The father could not explain why this would be, if there was nothing wrong with the stalls. Z told me, and I accept, that the Da’wah stall attended by the father, to which at one time he took the boys, linked with ALM. At one time he took the boys, but stopped doing so. Z does not know why he stopped taking the boys, but it was at about the time ALM had spread the news that supporters were at risk of care proceedings.
  2. I conclude that the stalls were used as recruitment tools where people were given literature supporting ALM’s aims, and tested out, from which they were drawn into the inner circle as and when it was thought appropriate.
  3. Photographs of the father with ALM affiliates have been recovered from telephones of those persons. I accept that the father attended other protests with London ALM affiliates with many senior associates.
  4. Z told me that the father had been to a number of meetings with the boys, probably about five, at a local church hall. These were small meetings, 30 people only, where theological matters were discussed. The father is devoutly religious and it seems to me to be well within the acceptable spectrum of behaviour for the children to go to meetings – even if they may not be terribly interested and may not actually understand what is going on – which may express views about religious practices, even though they may be of more interest to the adults than the children. Those attendances do not seem to me to be of serious significance in themselves, but ALM members, later convicted of terrorist offences were present, and the father could not have predicted exactly what views would be expressed. It is all part of a pattern.

 

The police also found a letter in the family home from Lee Rigby’s killer.  If there’s an innocent reason to be in correspondence with him, I can’t think of it.

 

  1. Related also to this evidence and the conclusions that I have drawn is another reference to the killer of Lee Rigby, Michael Adebolajo. When the father’s home was first searched a letter was found from this gentleman from prison; whether it was an original or whether it was a copy does not matter. I suspect that, in the circumstances, it may very well have been a document made available to a number of people within this circle. It is a letter which is covered by r.39 of the Prison Regulations, which is intended to go to the legal representative. It is, in fact, quite a strongly worded letter making various strong comments about religious matters. It is both assertive and rambling and is quite closely written. It makes reference to a number of religious concepts, using a number of Arabic words, and also it makes various aggressive comments as to the role of various people in English political life, generally, and those who are connected with the Islamic religion. The father accepts that it was found in his house. He told RX that he did not know how he had come by it. He at first told me the same thing. Then he said that he had been given it, but could not remember who by. When asked again, he said that it had been a man. He could not remember who or the circumstances, just that he had been told or encouraged to read it. He said that he had not read it himself. He could not remember any conversation with the donor, such as, “Why are you giving this to me; what this is about; what am I going to get from this; what is its importance?” and so on. He cannot say why he kept this document, although he says that he did not read it and never gave it any thought afterwards. I do not accept this explanation. He must have known about the contents of and welcomed this letter in order to both have and retain it.

 

The police inspected all of the family’s electronic devices.  (Which, by the way, is the common denominator between cases where the LA have been able to prove radicalisation and the ones where the electronic devices are not explored are the ones where findings don’t get made)

 

  1. Various photographs emerged from the search of the family devices. I have a number of separate photographs of the children and the father, dressed in what looks like Middle Eastern style red-and-white headgear, in the case of both the children and father, with their faces partly obscured by the cloth and holding what I am told are ornamental swords. The adult children said these had been purchased by the family as a set at a boot fair, or similar outlet, and to be ornamental only. The two younger children were very little when these photographs were taken and I suppose they may not have been aware of the significance, as it is asserted by Mr. Poole to be, of this style of dress. The father says also that this cannot be connected with Islamic State because it was not then in existence. Mr Poole submits that that this is a style of dress associated very much with Islamic fighters, and has been for some time, and that posing with weapons is very much a radicalised style. Mr. de Burgos accepts that this style of dress and presentation would be regarded, and rightly so, as extremely culturally offensive if worn at a fancy-dress show or party, as to many people’s eyes it will have very significant associations with terrorism and with politically and religiously motivated violence.
  2. I cannot go so far as to say that the photographs of the two younger children, in themselves, would have caused them harm at the time, but it is quite possible that viewing them online later as older children might have done so and have given them expectations as to how they are expected to behave, what beliefs they are supposed to have and how they are supposed to treat other people. There are pictures of the older children, including J, when much younger, also in similar poses, in similar attire and with similar weapons. There are pictures of A with a gun, which he says was taken when he was working on someone’s home and he simply asked whether he could pose with that particular gun, an air rifle, as a joke. There are photographs of the father with a BB gun, also in a very similar pose. These are strongly reminiscent of the poses in photographs of ALM members posted online, referred to above. There are photographs of other weapons, the significance of which, the family has not been able to explain. RX told me that he perceived a clear association with the graphic execution scenes online, and so, independently, do I.

  1. Some of the material found, particularly on R’s telephone, is very shocking and very disturbing indeed. It does not come from normal news sites. Father says that they might have come from Fox News, but I find it very difficult to imagine or to accept that heads in buckets, details of crucifixions, the process of execution, dead bodies and dead fighters showing, it is asserted, the joy with which they died, material relating to bombings, a man with a knife to his throat, execution quads, would be shown on normal news channels. It is not my experience of the mainstream press. I cannot say where this material came from, but the evidence that I had from RT, the technical expert relied on by the police, and his overall view, was that there had been a lot of internet searching for this kind of horrific image, particularly relating to the process of decapitation. There was particular footage, which has nothing to do with Islam or the Islamic State at all, which relates to horrors in South America. He told me that that was an indication of the kind of search that was going on and that someone in the home had had a pre-occupation with looking for this material. No-one in the family has been able to tell me who that might be. The father tells me, and I accept, of course, that, as a Muslim whose family emanates from South Asia, although via East Africa, he has an interest and a passionate commitment to finding out what is going on in the Islamic world and I quite understand that, but the material which has been downloaded does not fit with what the father told me about his focus of interest, or with the pre-occupation with terrorism, demonstrated also by books removed from the home.

 

(I mean, there’s a lot wrong with Fox News, but I don’t feel I can hold them responsible for this)

 

 

  1. I cannot say who in the family has downloaded this material, but it is most likely that it has been a number of them. There were images found not only on R’s phone and other material on other devices as well. There is a very strong theme of there being someone in this family, or perhaps more than one someone, who has an interest in painful things being done to other people. This is not just related to terrorism. I saw a video retrieved from one of the family phones of the youngest child, who must have been seven or eight, perhaps younger, it is difficult to see. It is footage, apparently, taken by J, the child who is now nearly 16, of her younger brother being made to eat a raw chilli by his older sister, R. The young people around him seem to be totally unconcerned about the pain which it is causing him and the distress that he is showing. Anyone who has inadvertently bitten into a piece of raw chilli in a meal knows that it causes intense pain to the mouth, a very sensitive area. There is laughing in the background. It is not just that this was done, and it is a wholly inappropriate form of punishment, but that it does not seem to have evoked any form of sympathy or empathy at all. RX suggested that this might have been a punishment for some kind of religious transgression, but I cannot say. I am, of course, conscious that children used to have their mouths washed out with soap for swearing in the old days and I appreciate that treatment of children, which we would regard now as barbaric, was considered to be appropriate in the past. Nonetheless, the combination of features, lack of feeling for the victim, group participation in this punishment and it being filmed, no doubt for some form of record or enjoyment, gives rise to a very uncomfortable feeling indeed. It chimes with my sensation that there a nastiness about some of the attitudes in this family.
  2. I am also very struck by the father’s reaction to the discovery of this material. According to the father he has scarcely asked R why she has had this material on the phone, and took some time to even state that he had. The point is made by Mr. de Burgos that she is an adult and is entitled to do what she wants, but I would have thought that the father would want to enquire as to why his daughter had such interests, particularly because he is a loving father and the children have always been closely tied to the home and also, obviously, feel a high degree of responsibility for him. He does not seem to have tackled this issue at all, and the most likely explanation is that access to these kinds of images and their sharing was part of the norm. Furthermore, he told me that his little son had never told him about the chilli incident. He had not spoken to R or, indeed, any of the other children about why the video had been taken or what had been going on, or why she had punished L in this way. If that is true, it shows at the least a remarkable derogation of parental responsibility and lack of interest in what has been happening. His lack of interest strongly suggests that this was a form of punishment that was part of the norm within this family.
  3. DS has told me that all the electronic devices in the family were open to all members of the family. The father said that they were password protected. RT told me that he overrode one password. I am not prepared to accept that the children did not have access to this kind of material. I cannot say for certain whether they had. There is no actual evidence that they did. It may be unlikely that they would try to break into password protected material, but it may have been very easily available.
  4. It is highly likely that the children were shown it. I say that in particular because, during the family’s Eid celebration, there is a video of the family in front of the cake and a particular film being shown on the television. There are photographs of the family living room decorated with the Black flag bearing the Arabic word ‘shahada’. The father says that this was just part of a continuous streaming through YouTube or music that he wanted to listen to. Whether that is so, I am not going to decide, but let us assume that it is. It showed the ISIS flag and a black-clad figure against a desert background. It is very similar to some of the photographs found online and a very obvious approbation of the ISIS regime. Pro-Caliphate speeches can be heard in the background. The flag, the father accepts, which pictures the seal of the Prophet, is, as far as he knows, and as any of us know, only used by ISIS and not by any other group. So although it may incorporate a perfectly acceptable and holy image, it has very obvious connotations if shown on the screen. The children seemed to me to be looking at the screen in the photograph. The father says they were interested in the cake, but this video was very obviously there, right in front of their faces, and available to be watched. The father says that he was not interested in the background; he was merely interested in the “Nasheed”, the religious songs which accompany it. I do not find that an acceptable explanation. At the very least, the father was extremely careless about what he exposed his children to, but it is far more likely that this was a form of entertainment which the family wanted to look at and was available to the younger children as well.

 

 

We learn even that during the care proceedings, the father was posting pro Islamic State material on his Twitter feed, which he claimed was in protest at the way the English Courts were treating him and his family.

 

In case you are wondering, the later judgment

 

Re Y Children Radicalisation 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3825.html

 

shows that all three of the younger children were made the subjects of Care Orders and placed in care.

The Impostress Rabbet

 

 

I haven’t done a completely non-law piece for a while, and this true story of deception, medical minds being baffled and the strange theory of maternal impression is one of my favourite things.

 

So if you read the blog purely for law, you may skip this one. If you enjoy the digressions more than the law bits, this may be right up your street.   (Someone more erudite than me might be able to develop an argument that this was an early example of what later became called Munchausen Syndrome and later FII, but I don’t know enough to claim that)

 

On 27th September 1726, a woman named Mary Toft went into labour. That was not terribly unusual. What was unusual is that she gave birth to a rabbit. Or in the parlance of the time, a rabbet.

Mary was not done there, however. The next day, a local obstetrician, Dr Howard, was called and Mary gave birth to another rabbet. Over the next month, she delivered nine more rabbets. All dead.

Dr Howard was much impressed by this, and more so once he heard Mary’s account that during her pregnancy, she had seen a rabbet in a field and desired to catch it and chased it but failed and that she had spent her pregnancy dreaming of rabbets.

In a theory that persisted at the time (and indeed wasn’t disproved until the early part of the 20th century), it was considered that things women were exposed to during pregnancy could account for characteristics or failings of their offspring – a timid child might be because the mother had been scared during pregnancy, a child with disabilities because mother had seen someone in the street with similar ailments and so forth. If you are thinking that sounds an awful lot like the Patriarchy just blaming the mother for things that were outside of her control, then, yes, it does.

The most famous example of this theory, maternal impression, was John Merrick, the Elephant Man, who told stories of how his mother had been startled by an elephant during her pregnancy and hence his unusual appearance.

Mary’s rabbets seemed conclusive proof of this theory, and Dr Howard wrote to a number of other doctors stressing the importance of this case and inviting them to come and observe. He even wrote to Nathaniel St. André, Swiss surgeon-anatomist to the King and Samuel Molyneux, secretary to the Prince of Wales. They both came to attend on Mary, who was still popping out rabbets.

They were much impressed with this peculiar medical condition and took some of the rabbets back to show the King.

The King was more sceptical, and sent another doctor down to Mary, who had been moved by then from Godalming to Guildford.

Cyriacus Ahlers was the doctor sent, a German surgeon. He dissected some of the rabbets that Mary had given birth to. He found pellets in the rabbit’s digestive tract. Pellets containing undigested straw and corn. Unless Mary’s womb was full of corn, it seemed very likely that these rabbits had been born elsewhere…

A William Hogarth print of the hare-raising affair

Members of the public were flocking to see Mary, and paying an admission fee to do so. Ahlers and others kept Mary under observation. The supply of rabbits dried up.

And then, the case broke. A hospital porter was caught trying to smuggle a dead rabbit into Mary’s room, having been paid to do so by Mary’s sister-in-law, who had asked him to purchase ‘the smallest rabbit he could find’

Enquiries then revealed that Mary’s husband had been buying a suspicious amount of small rabbits from local sources.

The great medical mystery was solved. Mary had just been (there’s no delicate way to put this), installing dead rabbits into her nether regions whilst nobody was around, and then delivering them in front of a crowd or host of medical gullible fools.

The King’s surgeon, Dr Richard Manningham, devised a plan to get Mary to confess this. He went to her and explained that because there were so many rabbits being born to her (I think the count was 15 at that point), that they would have to operate to remove her womb.

 

That wasn’t something Mary wanted anyway, and at that particular time the risk of death in surgery was extremely high (It is said that Dr Robert Liston once removed a patient’s leg in lightning fast surgery, working so fast that he accidentally cut off the patient’s testicles, his assistant’s fingers and nicked the abdomen of a member of the audience watching – all three died, making it a piece of surgery that had a 300% mortality rate.  This is possibly apocryphal, but it is a great story anyway.)

 

To avoid the surgery, Mary confessed. She was to stand trial, but the case was dropped due to the embarrassment it caused the medical profession and those who had swallowed the story of the miracles. When Mary died, her name was published in the great newspapers of the day along with dignitaries and Dukes, with the annotation “Impostress Rabbet”