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Request for support

Quick trigger warning – if you’ve been through painful experiences yourself recently, then this post may be too raw and painful, and as it is not my intention to make life harder for anyone who is working through such trauma, the warning is here to suggest that you close this one down, and come back to the next post, which will probably be about 80s pop, or Mary Mungo and Midge or whatever.

Some of you may have read @SurviveCourts blog, Surviving Safeguarding, where she talks about her experiences of being on the hard end of the social work experience, rather putting all our gripes of trolleys with knackered wheels, or endless frustration with laptops and workloads into perspective. Some of you may have had the pleasure of seeing her speak, which is truly an inspirational experience.

I find myself lucky enough to have got to know her a little, and I’m proud and honoured to think of her as a friend. Though she be but little, she is fierce.

So it was a huge shock to learn that she’d gone through a recent tragedy, and like most of those who have come to know her and hold her in high regard, I wanted to do something, even a tiny something, to help.

Louise Tickle (or as we should now all call her “The Mail on Sunday’s Louise Tickle” as apparently they now own her, in some sort of Jonathan Pryce East India Company style arrangement) got the ball rolling on this, and she says everything that I wanted to say, but better. Because she’s a proper grown up writer, and not a hack like me.

If you can visit the link and help out at all, even in a small way, it would mean a lot to us all.

https://www.justgiving.com/crowdfunding/survivingsafeguarding

Reid ’em and weep

The peculiar goings-on in the case of Westminster v Associated Newspapers Ltd

 http://www.bailii.org/ew/cases/EWHC/Fam/2017/1221.html

This was a specific hearing arising from a set of care proceedings in which both parents were asserting forcefully that their son H was very ill indeed. The Court, having heard a great deal of evidence and had that evidence tested by lawyers, including lawyers acting for the parents, decided otherwise

 

I found, firstly, that the parents had misreported and exaggerated H’s medical symptoms. I concluded that this had led not only to his emotional harm but to his physical harm. In consequence, particularly of the exaggerated gastrointestinal pain, there was the unnecessary insertion and thereafter the prolonged use of a Hickman line, which exposed H not merely to the risk of short-term infection, but to the risk of liver failure in the long term. It perhaps requires to be underlined that in consequence of his parents’ actions H’s life was placed in peril.

 

 

 

4.I went on to find that the mother, through bullying and bombastic behaviour, had intimidated medical professionals and others to the extent that she confused and undermined their confidence in their own professional judgement. In the hospital it generated a febrile atmosphere in which there was an elevated risk of clinical error, I found this compromised H’s safety.

 

 

 

5.In particular, and this requires perhaps to be emphasised too, in April 2016, on the most compelling of evidence, I found that both parents had, on separate occasions, tampered with H’s TPN pump. The effect of this, though it did not immediately threaten H’s health was, again, to cause confusion and alarm on the ward and jeopardise professional objectivity.

 

 

 

6.The father has both directly and passively acquiesced in the mother’s distorted perspective of H’s health and medical needs. The mother presented H to the world as dying, in extremely alarming e-mails. Moreover, on the evidence, she inculcated in H himself, a view that he was dying. The parents’ actions led to prolonged stays in hospital, the consequence of which was that H has been robbed of much of his childhood and teenage years.

 

 

 

 

7.This is of course a desperate situation made all the more depressing by the fact that H has an outstanding, lively, irrepressible intellect and a keen and zany sense of humour. It is a tragedy that these talents have not been allowed to flourish and grow as they ought to have been. I reiterate, in order that the point is not lost in the detail of my judgment, the harm caused to H by his parents, protracted over many years, exposed him to significant harm at the most serious end of the spectrum, ultimately risking his life.

 

 

The parents, not being in agreement with the judicial decision, sought to involve some crusading journalists to fight their case in the court of public opinion. The Telegraph and the Mail ran sympathetic pieces.

 

I wrote a long passage here, but actually I’m not going to bother with it. My readers already know whether they think Christopher Booker is a champion for justice or something else, and they are all entitled to their own views.

So instead of the long passage where I try to be balanced and reasonable and just annoy everyone on both sides of the argument, here’s a a photo of a young Cat Stevens tasting some food. I can’t tell if the food in the pan is fish, chicken or even pigs (the curly bits could be tails?).   If you are only familiar with beardy old Cat Stevens, DAMN he was a handsome young fellow.

 

My own recipe for rough emotional week – First Cut is the Deepest swiftly followed by Father and Son, get it out and move on

Anyway, this secondary decision was as a result of the child being visited in hospital by a journalist and interviewed by said journalist, who had not been open and transparent about who she was when making the visit.

 

 

 

15.I was informed during the course of the hearing, by the local authority, that it suspected that a reporter from The Daily Mail had visited H in ‘Unit A’ on 8th May. That reporter, I was told, was thought to be a Ms Sue Reid, though the visitor book bore an inscription that a Susan Odette Brown, recorded as ‘a friend’, had visited that day. I indicated to the local authority that they should make inquiries to establish such facts as they could. In pursuance of that, they drafted the following questions which were relayed to The Daily Mail. They are succinct questions and they are responded to with equal clarity. They require to be set out:

 

 

 

 

 

“Do you (i.e. The Daily Mail) employ or commission a journalist called Sue Reid or Susan Odette Brown? Answer: yes.”

 

 

 

 

“Did this journalist visit [the unit] on 8 May 2017 or at all? Answer: Yes.

 

 

 

 

What was the purpose of this visit? Answer: Miss Reid has confirmed that she visited in order to see H and see his social situation.

 

 

 

 

How was the visit arranged?”

 

 

The response was as follows:

 

 

“A campaign group alerted Miss Reid to H’s living arrangements and asked her to pay him a social visit. H’s parents also wanted Miss Reid to visit him and accordingly they passed on H’s mobile phone number. Miss Reid rang the number and spoke to H, who invited her to visit him and gave her a suitable time to do so.”

 

 

The final question was framed thus:

 

 

 

 

“Did you have permission to talk to H, a young person aged 15, and if so who gave you permission? Answer: Yes, H and his mother.”

 

16.These questions had in mind the protection afforded to young people and particularly to those who are vulnerable, by the Codes of Practice (2016), Independent Press Standards Organisation (IPSO). It is convenient that the relevant guidance be set out here:

 

 

 

 

 

“Clause 8 protects patients in hospitals and similar institutions from intrusion. It requires journalists to identify themselves and to obtain permission from a responsible executive to enter non-public areas. The clause applies to all editorial staff, including photographers.

 

 

The clause covers the newsgathering process, so the Code can be breached even if nothing is published. The clause also requires that, when making inquiries about individuals in hospitals and similar institutions, editors need to be mindful of the general restrictions in Clause 2 of the Code on intruding into privacy.

 

 

[Some readers may remember certain press scandals about Russell Harty, a celebrity whom certain sections of the Press believed was hospitalised because of AIDS and reporters donning medical gowns in order to gain access clandestinely to the hospital. ]

 

Of particular relevance is:

 

 

 

 

Identification and permission

 

 

 

 

Journalists must clearly identify themselves and seek permission from a responsible executive to comply with the Code. The use of the term “executive” implies that permission can be obtained only from a person of sufficient seniority. A journalist who attended a London hospital after the Canary Wharf terrorist bomb photographed an injured victim in the company of a relative and another person who he thought had obtained permission from hospital staff.

 

 

When medical staff complained, the PCC found the Code had been breached. It said: “The Commission was not persuaded the reporter in this particular case had followed the provisions of the Code: it was not enough to assume that his identity was known or to rely on the comment of an individual who was clearly not a responsible executive, although the reporter had done so in good faith.” Hutchison v News of the World: http://www.pcc.org.uk/cases/ adjudicated.html? article =MTkwMA

 

 

What the Code says

 

 

  1. i) Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries.

 

 

  1. ii) The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions. A public interest exemption may be available.

 

 

 

 

Non-public areas

 

 

In most cases, what constitutes a non-public area will be clear and will certainly include areas where patients are receiving treatment.

 

See: Stamp v Essex Chronicle

A man v Daily Mail

 

 

17.The code purposefully set a strong objective to safeguard children. The following requires emphasis :

 

Clause 6

 

Children

 

The Code goes to exceptional lengths to safeguard children by defining tightly the circumstances in which press coverage would be legitimate. For the most part, this applies up to the age of 16 – but the requirement that pupils should be free to complete their time at school without unnecessary intrusion provides a measure of protection into the sixth form. In the absence of a public interest justification, pupils cannot be approached at school, photographed or interviewed about their own or another child’s welfare, or offered payment, unless consent is given by the parent or guardian.

 

 

The welfare of the child includes the effect publication might have.

 

 

A complaint from an asylum seeker was upheld after a newspaper interviewed and identified some of his children. The PCC said the article was likely to provoke a strong reaction in readers, which might affect the children’s welfare.

 

 

Kenewa v Sunday Mercury

 

 

There is a public interest defence available to editors, but here again the bar is raised in favour of protecting children and the Code states that “an exceptional public interest” would need to be demonstrated.

 

 

 

 

What the code says

 

  1. i) All pupils should be free to complete their time at school without unnecessary intrusion.

 

 

  1. ii) They must not be approached or photographed at school without permission of the school authorities.

 

 

iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

 

 

  1. iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child’s interest.

 

 

  1. v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life.

 

 

A public interest exemption may be available. See Page 96.

 

Consent

 

 

The press has to establish which is the competent authority to grant consent in each case.

 

See: A woman v Derby Telegraph

Brecon High School v Brecon and Radnor Express

 

 

 

18.In order to advance their own explanations, the parents both filed statements in which the broad thrust of the answers given by The Daily Mail were or appeared to be disputed. It has been necessary for me today to inquire as to what in fact led to the visit, which all agreed took place, between Ms Reid and H at the unit on 8th May.

 

 

 

19.As the evidence has unfolded it has funnelled into a very narrow area of agreement and disagreement. Today there were filed, on behalf of Ms Reid, a number of e-mail communications, which have been helpfully set out by Mr Browne QC and Mr Wolanski, who represent her through Associated Newspapers Limited. A key communication is an e-mail sent at 18:30 on 6th May by H’s mother to a Miss Miray Kester, whom she describes as a friend. It is clear from that email and the earlier discourse that it was intended to provide a summary of H’s situation from the mother’s own perspective. It is, characteristically, a gross distortion of the facts. It presents H, in melodramatic terms, brutalised and neglected by the system. Yet again the mother describes H as suffering from serious illness. As those reading my earlier judgment will appreciate and as time has now borne out, H is not suffering from any serious illness. Those conditions which he does have are not seriously debilitating.

 

 

 

20.It is unnecessary for me further to burden this judgment with the details of the email communications because a number of factors are clear. Firstly, I am satisfied that, in the context of the email communication as a whole, the email I have referred to above was written by the mother as a briefing document for the press. The document, which I do not propose to read into this judgment, speaks for itself. Secondly, Ms Reid obtained H’s telephone number and spoke to him directly before she spoke to the mother. This she agreed in evidence. Thirdly, Ms Reid later spoke to the mother on the telephone and the conversation lasted some 40 or so minutes. In that conversation Ms Reid plainly formed the view that the mother was at her wits’ end, very distressed and agitated. Much of the content of the e-mail of 6th May seems to have been replicated in that conversation, which Ms Reid agrees took place.

 

 

 

21.The mother asserts that the move to the unit is a tragedy for her son. As she puts it, it is ‘a violation of his human rights’. She refers to his ‘being locked away’ and she caricatures it as a focus on ‘mental disorder’ rather than the contemplated across the board evaluation of his needs that I have described. This is all deep-seated, the mother has been hostile to Great Ormond Street now for many years. It was very much a feature of her evidence in January and February of this year. The mother denies giving Ms Reid permission to speak to her son. However, she says: had this journalist asked me directly if she could have permission to speak to my son, I would have said yes. But, she says, ‘it was never asked’.

 

 

 

22.It is plain, having listened to the mother’s evidence and Ms Reid’s evidence, that the mother not only was enthusiastic about H having an opportunity to meet a journalist but never at any point in the conversation gave Ms Reid even the slightest suspicion that she had the remotest anxiety about it. The mother is highly manipulative, as Ms Reid has now plainly found out. I think it unlikely that she gave her express permission but I am quite clear that she enthusiastically contrived with Ms Reid to facilitate the interview. Ms Reid told me, and I accept, that the mother gave her the address and details of the unit.

 

 

 

23.In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

 

24.The facts are now, as I see it, uncontroversial. Ms Reid went to Unit A. She did not make herself known to the staff. She did not identify herself as a journalist and she did not seek permission from a responsible executive to enter these non-public areas. It is also clear and again she accepts that she was aware that H was subject to a Care Order (in fact it is an Interim Care Order but that is of no consequence here).

 

 

I’m going to repeat paragraph 23, because I think it is significant

 

In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

Long carefully balanced paragraph removed, because it even made me throw up a little.

 

Instead, who would like to see a picture of Cat Stevens and some kittens? Of course you would.

 

 

There are dog photos too, but this blog has been dog-centric, and time for cat-rebalancing

 

 

Only click on the link if you’re comfortable with being a bit sad for a few minutes whilst simultaneously awestruck. (And see – handsome…)

 

 

A stain on the reputation of the family justice system

 

There’s been legal chatter for a while about the issue of alleged perpetrators of domestic violence being able to cross-examine alleged victims.  There was a big press campaign, and our beloved Lord Chancellor got knee-jerked into issuing a ‘something will be done’ statement without actually getting any funding for it, which then got kicked into the long grass in the quest for strong and stable Government by calling a snap election.

Lucy Reed over at Pink Tape has written about it quite a lot, and well worth checking out Pink Tape if you don’t already read it.

Anyway, here is Hayden J’s pretty savage commentary when it arose in a case before him

A (A Minor : Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam) (19 May 2017)

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1195.html

  1. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).
  2. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.
  3. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.
  4. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.
  5. The iniquity of the situation was first highlighted 11 years ago by Roderick Wood J in H v L & R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162. It was reiterated in Re B (a child) (private law fact finding-unrepresented father), DVK [2014] EWHC (Fam). Cross examination by a perpetrator is prohibited by statute in the Crown Court, in recognition of its impact on victims and in order to facilitate fairness to both prosecution and defence. In Wood J’s case he called for ‘urgent attention’ to be given to the issue. This call was volubly repeated by Sir James Munby, President of the Family Division in Q v Q; Re B (a child); Re C (a child) [2014] EWFC 31 and again in his ‘View from the President’s Chambers (2016): Children and Vulnerable Witnesses: where are we?
  6. In that document the President highlighted the Women’s Aid Publication: Nineteen Child Homicides. I too would wish to emphasise it:
    1. “Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control.”

Commenting on this, the President asked ‘who could possibly disagree?’ The proposition, in my view, is redundant of any coherent contrary argument.

  1. I understand that there is a real will to address this issue but it has taken too long. No victim of abuse should ever again be required to be cross examined by their abuser in any Court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos.

 

 

Damn…

 

For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

 

If Hayden J’s hat was in the ring for replacement of our current President at the end of his term, he may just have lined the brim with lead.  The MOJ tend to be squeamish about Judges getting too outspoken. Although I may be wrong and that only happens in Judge John Deed. ( I’m still quietly hoping for Mr Justice Peter Jackson as next El Presidente, although my chief preoccupation is worrying that we might be trading down for  [REDACTED REDACTED REDACTED] )

 

Ha ha, my hat will be easier to pick out of the ring than Hayden J’s… putative President Oddjob

 

 

Oh man, I’m now going to be thinking about Mr Justice Knick-Knack all day….  That and imagining Sir James Munby delivering his next Benmusa judgment with a large white Persian cat on his lap.

 

 

Failure to bury a child

 

 

 

Quick warning – this case is about a child who has died, and the issue in the case was disposal of the child’s cadaver. So it may be distressing or upsetting to some readers – I will do my best to treat the subject matter with gravity and sensitivity. There’s nothing intentionally detailed or gruesome within the piece, but obviously the central issue is upsetting.

 

Also, there’s a criminal trial pending, so please no speculation about the identity of the parents or what may or may not have happened to the child – nobody wants to run the risk of prejudicing a fair trial.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1083.html

Re K (A Child : deceased), Re [2017]

 

The child died in July 2016. The Coroner released the body in October 2016. In March 2017, the child had still not been buried and no arrangements had been made for a funeral. The child’s half-sibling had been involved in care proceedings and the Local Authority, having done all that they could to persuade the parents to make those funeral arrangements, sought permission from the Court to step in and arrange the funeral themselves.

 

 

 

 

 

 

 

 

5.It was common ground during the course of submissions that the starting point in establishing a jurisdictional basis for orders relating to the burial of a child is to be found in Buchanan v Milton [1999] 2 FLR 844 at 845/846 per Hale J, as she then was:

 

 

 

 

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson).”

 

 

  1. In Re JS (disposal of body) [2016] EWHC 2859 (Fam) Peter Jackson J observed:

 

 

 

 

“47. The law in relation to the disposition of a dead body emanates from the decision of Kay J in Williams v Williams [1882] LR 20 ChD 659, which establishes that a dead body is not property and therefore cannot be disposed of by will. The administrator or executor of the estate has the right to possession of (but no property in) the body and the duty to arrange for its proper disposal. The concept of ‘proper disposal’ is not defined, but it is to be noted that customs change over time. It was not until the end of the 19th century that cremation was recognised as lawful in the United Kingdom, and it was in due course regulated by the Cremation Act 1902. Nowadays cremation is chosen in about 3 out of 4 cases in this country.

 

 

  1. Thus, in English law, there is no right to dictate the treatment of one’s body after death. This is so regardless of testamentary capacity or religion. The wishes of the deceased are relevant, perhaps highly so, but are not determinative and cannot bind third parties. For discussion of the impact of the European Convention on Human Rights on the common law in this respect, see Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) and Ibuna v Arroyo [2012] EWHC 428 (Ch).”

 

 

[The Justice Peter Jackson case is one you might recall – where the teenaged child wanted to be cryogenically frozen after death, mum supported it and dad wasn’t keen. It was unusual.]

Whilst there is no legal ownership of a cadaver, the general principle is that the immediate family of the deceased have responsibility for arranging the funeral. What happens where, as here, the family do not take any action?

 

 

 

In Anstey v Mundle [2016] EWHC 1073 (Ch) Mr Jonathon Klein sitting as Deputy Judge of the Chancery Division concluded that the Court could not determine or direct where or how the deceased would be buried, but could declare who had the power and duty to bury the deceased, among the various contending parties. The judge adopted the reasoning of Ms Proudman QC, as she then was, in Hartshorne v Gardner [2008] EWHC 3675 (Ch).

 

“24. …In that case, Ms Sonia Proudman QC, sitting as a Deputy High Court Judge, was invited to exercise the court’s inherent jurisdiction to direct to whom the deceased’s body should be released for the purposes of its burial. The judge accepted, as Hart J had apparently done before her, that the court has such an inherent jurisdiction. In that case, the claimant and the defendant were equally entitled to a grant of representation. It is perhaps notable that the judge did not exercise any section 116 jurisdiction. In that case, the judge identified factors which were relevant to the exercise of the court’s jurisdiction, although she did not seek to limit the relevant factors to those she listed.

 

  1. The factors she identified were: one, the deceased’s wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment, “the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay”. I have concluded that in this case those are also the relevant factors which I should consider.”

10.Mr Sharp contends that the factors identified at points two and four above are plainly relevant here. I agree. I would also stress that I consider proper respect and decency is not presently being shown to K’s body. I would also emphasise that there has been wholly unacceptable delay. I note that the Births and Deaths Regulations 1987 Reg 51(2) provides that if the registrar learns (after a delay of 14 days from the date on which he should have received notification of the date, place and means of disposal of the body) that the body has not been disposed of he must, unless he is informed that the body is being held for the purposes of the Human Tissue Act 2004, report the matter to the officer responsible for matters of environmental health for the district in which the body is lying. This, to my mind, indicates that as a matter of public policy, a body should be disposed of with due dispatch.

 

 

This next statutory provision arises more often with deaths in the elderly community with those who have no relatives, and is for public health grounds

Section 46(1) of the Public Health (Control of Disease) Act 1984 provides:

 

 

 

 

“It shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority.”

 

 

 

Whilst this does not directly illuminate any of the issues that fall to be considered here it does indicate the general promotion of respect and decency for a body and the obligation for it to be disposed of with proper dispatch that is reflected in the case law that I have set out above

 

The Court here was asked whether under the inherent jurisdiction, the Court could authorise for the Local Authority to undertake the burial.

 

the concept of ‘a wise parent acting for the true interests of the [particular] child’ is integral to both the parens patriae and the inherent jurisdiction. It is, to my mind, axiomatic that a ‘wise parent’ would attend to the burial of a child. Thus having regard to the historical base and underlying philosophy of the inherent jurisdiction and the case law to which Mr Sharp has drawn my attention, I am satisfied that, pursuant to the inherent jurisdictional powers of the High court, I can authorise the Local Authority to make arrangements for the disposal of K’s body by way of burial or cremation, making the necessary funeral arrangements and if the body be cremated the disposal of the deceased remains. There are pressing practical reasons why this requires to be attended to expeditiously which are too distressing to incorporate within this judgment and need not be.

 

One of the obvious things that I wondered was whether there was some forensic reason connected with the criminal trial (i.e a second opinion autopsy or similar exercise) why the parents had been reluctant.

 

The Court was appraised of a letter from father’s counsel in criminal proceedings raising just that suggestion, but this is confused rather because there were representations from his criminal solicitor to a rather different effect. In any event, the Court was not satisfied that arranging a funeral would interfere with the parents right to a fair criminal trial.

In a postscript, the Court notes that the funeral took place and thankfully both parents attended

Forensic incontinence

 

At the present time, there are few smaller pockets of intense joy than visiting Bailii and seeing the name Benmusa appear in the new cases list.

If you’ve not been keeping up, Ms Benmusa believes (without the tiresome business of evidence or justification) that she is the secret illegitimate daughter of Princess Margaret and that opening up Princess Margaret’s will is the final (or indeed first) piece of the puzzle. The only way she can do that is to make an application to the increasingly exasperated and creatively irritated President of the Family Division. The last time, she produced a death certificate from someone she claimed to be her maternal aunt (who would thus be Princess Margaret’s older sister… do you see the inherent problem with that? And added to that, said maternal aunt was born at a time when Princess Margaret’s father would have been ten and more interested in whatever the turn of the twentieth century equivalent of Transformers were than procreation)

 

This time round, Ms Benmusa’s killer argument is that the sole piece of evidence that she herself produced was ‘a flake’  (which we assume to mean ‘fake’), which is an impressive trump card to pull out. It is the legal equivalent of tripping over your feet and falling flat on your face and trying to recover the situation by shouting loudly “I meant to do that”

This brilliant argument did not, needless to say, impress the President, who was somewhat mournful (yet comedically so) about the fact that the remainder of his, and indeed all succeeding Presidents, was going to be taken up with Benmusa applications and that there wasn’t even a Court fee to be paid. The Court staff HAD to issue the applications even if they had no merit and the President would have to consider them. There was no value in declaring Ms Benmusa a vexatious litigant as that would just lead to a string of leave applications.

How was the President to stop this ‘forensic incontinence’?    (and with that line, the President has set a high bar in my new Pithiest Judicial Remark of the Year contest.  You’ll all be stealing that.)

http://www.bailii.org/ew/cases/EWHC/Fam/2017/966.html

Ms Benmusa’s wasting of the court’s time – a phrase I use advisedly and deliberately – has been facilitated by the surprising fact that an application of the kind made by Ms Benmusa is, rara avis, one that can be made without payment of any court fee: see Tristram and Coote’s Probate Practice, ed 31, paras 25.234 and 25.265. I cannot help thinking that even someone like Ms Benmusa might be deterred from such forensic incontinence if she had to pay a fee.

What is to be done? As a matter of high constitutional principle (1) court staff cannot refuse to issue process – such a decision can be taken only by a judge – and (2) a judge cannot make an order absolutely barring access to the court; even a vexatious litigant so declared, or a litigant subject to a civil restraint order or a Grepe v Loam order (see Grepe v Loam (1887) 37 ChD 168) retains the right to apply to a judge for permission to bring proceedings. So, there is no kind of order I can properly make to prevent Ms Benmusa continuing to bombard the court with further nonsensical applications which will have to be put before a judge. What I can do, and this is what I propose to do, is to direct that if any further application is received from Ms Benmusa it is, before being issued, to be put before the President of the Family Division who can then either direct, if appropriate, that the application is, by order of the President of the Family Division, to be returned, unissued, to Ms Benmua, or direct, if appropriate, that the application is to be issued, whereupon it can then be considered by the President of the Family Division in the usual way.

 

Awesome – one individual has effectively just got their own Presidential Practice direction.

 

I shall be sad to see an end to the Benmusa litigation – the President clearly has greater control over his curiousity than I would have – I’d have opened up the will and had a peek and told the world that there was no secret confession about ANY secret illegitimate children in there. But I guess those who believe would have just written that off as part of the cover-up.

 

 

(*Also kudos to the President for using rara avis, one of the few Latin phrases that I know – it means ‘that rare bird’ or in this context ‘very unusually’ )

Bone marrow transplants and struck off doctors

 

 

 

 

This is a very peculiar Court of Protection case, decided by the President.  Very peculiar is a massive understatement, to be frank.

SW, Re [2017] EWCOP 7 (12 April 2017)

http://www.bailii.org/ew/cases/EWCOP/2017/7.html

 

As the acronyms are a bit confusing, I’ll give us a cast list

 

 

SAN – a man who has cancer. It is said that he needs a bone marrow transplant to save his life, as a result of this.

 

SW – SAN’s adopted sister, and a woman about whom it is alleged lacks capacity to make decisions in her own right.

 

Son – the son of SW, who does have capacity, and who applied to Court for a declaration to be made that SW undergo surgery in order to donate bone marrow to SAN and that the surgery be undertaken by the next two members of our cast.

Dr Waghorn – a surgeon, who coincidentally is the husband of SW and the father of Son. He has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

Dr Jooste – another surgeon – a family friend and colleague of Dr Waghorn. He too has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

 

The intention is that Dr Waghorn and/or Dr Jooste would carry out the transplant surgery.  By the way, don’t assume that SAN is keen on having this surgery. Or even that Son, Dr Waghorn or Dr Jooste have recently asked him if he wants it or consents to it.

 

 

Are you a dreadful cynical hard-bitten creature? Are your internal alarm bells going off loudly and causing dogs in your vicinity to bark furiously at the hellish clamour that was produced by the ‘relinquished his membership with the GMC’ bit?

 

 

This is the size of dog that is proportionate to how loudly my ‘WARNING’ alarm bell is ringing

 

(If Amazon suddenly get a spike in DVD orders for that film, I should get a cut. If you haven’t seen it,     ch-ch-ch-ch-check it out)

The Judge explored that a little further

 

6.In fact, both Dr Waghorn and Dr Jooste have had their names erased from the Medical Register following determinations by different Fitness to Practise Panels of the Medical Practitioners Tribunal Service, the one, in the case of Dr Waghorn, on 26 July 2013 and the other, in the case of Dr Jooste, on 17 February 2014. In each case the Panel’s findings make for very disturbing reading.

 

 

7.In relation to Dr Waghorn the Panel said this

 

“The Panel accepts that the matters before it relating to patient care arise from the treatment of one patient. However, they represent such a wide-ranging and serious set of clinical failings and such a cavalier and uncaring approach to patient safety that, even viewed in isolation, they demonstrate misconduct that is fundamentally incompatible with the practice of medicine. That misconduct is compounded by the fact that it occurred with foreknowledge of the wholly inadequate conditions under which Patient A was to be treated and it involved the criminal offence of carrying on a hospital without registration with the CQC. The misconduct is also exacerbated by Dr Waghorn’s breaches of the conditions that had been put in place to prevent any repetition and by his dishonesty in trying to disguise the extent of his subsequent work at the same clinic.”

 

In fact, as appears from the Panel’s determination, Dr Waghorn had been convicted at the City of Westminster Magistrates’ Court on 9 June 2011 of an offence contrary to section 11(1) of the Care Standards Act 2000 of carrying on an Independent Hospital without being registered in respect of it under Part II of the Act.

8.In relation to Dr Jooste the Panel said this:

 

 

 

“Dr Jooste is a risk to patient safety …

 

The Panel also considers that there is a risk to patient safety in Dr Jooste’s unwillingness to accept or comply with the authority of his regulator, in that he seems not to acknowledge any restriction or control on his practice and will not be called to account. Dr Jooste has behaved in an outrageous manner in his conduct towards the Interim Orders Panel and witnesses and in the entirely unmeritorious applications he has made to the High Court.

 

The Panel has received no evidence of any mitigating factors …

 

The panel has concluded that suspension would be wholly inadequate to mark the seriousness of Dr Jooste’s misconduct or to protect public confidence in the profession.

 

… The Panel has rarely encountered a doctor to whom so many of the indicative criteria for erasure apply. In short, Dr Jooste’s misconduct is fundamentally incompatible with his continued registration as a doctor.”

 

 

What is your prediction, at this point, as to whether the President is going to allow two doctors with this record to perform surgery on a woman with no capacity (who happens to be the wife of one of them…) ?

 

Yeah, me too.

 

To echo erstwhile comedian and labelled-welly-wearer Jimmy Cricket, come here, there’s more

 

9.As appears from his application form and the attached Annex E, the son made the application as SW’s attorney under a Lasting Power of Attorney (Health and Welfare) purportedly executed by SW on 18 October 2014 and registered on 9 January 2015. He had also been appointed SW’s attorney under a Lasting Power of Attorney (Property and Financial Affairs) purportedly executed by SW and registered on 17 June 2015. SW’s signature on the first of these documents had been witnessed by Dr Waghorn. The certificate declaring that SW understood what she was doing and was not being pressurised was given by Dr Jooste on 23 October 2014, who described himself as SW’s “friend for 10 years.” Both Dr Waghorn and Dr Jooste were described as “Dr” though each had by then been struck off.

 

There had also been litigation in the Court of Protection involving not SW as the vulnerable person but SAN

On 8 December 2014, Newton J gave judgment in the Court of Protection in proceedings (COP12599814) relating to SAN and the proposed treatment of his condition, in which Dr Waghorn appeared on behalf of SAN apparently pursuant to a lasting Power of Attorney (Health and Welfare) granted on 5 September 2013.

 

 

11.So far as material for present purposes, what Newton J said was this:

 

 

 

“… in order for the Court to exercise jurisdiction, in the Court of Protection, there has to be evidence that the patient does not have capacity …

 

The short [point] here is that all the evidence, in fact, points the other way. In fact there is absolutely no evidence that he lacks capacity at all, indeed quite the reverse. My attention has been drawn to the letter dated 16th October 2014 from Dr Bray which makes it clear that Dr Hunter, who is the consultant haematologist who is currently treating [SAN], is sure that he has full capacity regarding the decisions concerning his own health, but did not wish to pursue those other treatments.

 

Enquiries both of the insurers, and the legal advice by the medical group confirm that [SAN] has capacity, there is therefore no need for any best interests decision involving his power of attorney. In fact, Dr Bray spoke to [SAN] and he made it very clear that he did not wish for this matter to be pursued at that time and would like things left as they were. That point of view was reiterated by [SAN] himself as recently as Thursday of last week, when enquiries were made on behalf of NHS England. He made it plain that he was currently in remission, that he did not wish for the treatment to be pursued, and that he did not wish there to be court action.

 

Dr Waghorn feels that that very acutely, not least because of his expertise as a doctor, but also I have no doubt because of his concern and affection for his brother-in-law, he is deeply anxious that his brother-in-law simply does not grasp the full effect and indeed understanding of (A) his illness, and (B) what may be done to alleviate or assist him. And that is a point to which Dr Waghorn has repeatedly returned. But, counsel has pointed out, it seems to me correctly that that is for those are dealing with matters or treatment, and it is not for me in arrangement without first being able to establish lack of capacity …

 

It is a short point. As I explained to Dr Waghorn, in order for the Court to deal with the matter I have to have jurisdiction: there is no reason to believe, that he does not have capacity, as the lawyers or doctors understand it. His own treating clinician believes that he has capacity, she having treated him for some time. It is clear, as I understand the evidence, that he has consented to and understands his medical condition and the treatment options, as is plain from the papers. [SAN] himself does not agree that he lacks capacity: he believes that he has capacity to make decisions about his medical treatment and does not, in fact, agree with this application being made. The practitioner who spoke to him as recently as last week also considered, that he also did not lack capacity.

 

Therefore, whilst I understand the position in which Dr Waghorn has found himself, in my judgment I do not think, and indeed I am entirely satisfied that I do not have the jurisdiction to make any decisions in relation to [SAN’s] medical condition and treatment. I have no jurisdiction because there is no evidence that he does not have capacity, even on an interim basis (indeed quite the contrary).”

 

A company then sought to judicially review the NHS decision in this case not to allow surgery. Coincidentally, two directors of that company were Dr Waghorn and Dr Jooste. That application was dismissed on 9 June 2015 by Hayden J as being “totally without merit.” The judge observed that “The claim is at best vexatious, nor is it presented in any coherent or logical manner.”

The President remarks :-

13.There is a common thread to all three sets of proceedings, the purpose in each case being to obtain from the court relief facilitating or enabling Dr Waghorn and/or Dr Jooste to carry out an allogeneic bone marrow transplant from SW to SAN.

 

Dr Waghorn sought to involve the Anthony Nolan charity as interveners. Unsurprisingly, they declined. In much the same way that I would decline an invitation to “Tequilla-Fueled Sword Swallowing for Beginners, followed by candlelight dinner with Katie Hopkins and Eric Pickles”

 

 

 

15.Dr Waghorn sought to enlist the interest, and indeed involvement as intervenor in the present proceedings, of the well-known Anthony Nolan charity. On 28 February 2017 he received this stinging rebuff:

 

 

 

“… I would like to underline that we do not want to be involved in this case.

[Almost word for word what I said to Katie and Eric, btw. Well, actually, my response had certain rhyming qualities with the description of these two doctors in the title of the blog post…]

 

Anthony Nolan’s position is that allogeneic stem cell transplantation should be provided by registered specialist transplant physicians in an accredited NHS or accredited private transplant centre setting.

 

As such we do not want to be involved in this case in any way.

 

Please do not contact us again about this case.”

 

Dr Waghorn’s riposte was to threaten the writer of that letter with a subpoena to attend the hearing on 3 March 2017 – a threat which appears not to have been carried through.

 

 

The Judge then considers the position of SW, noting that the evidence as to her capacity or lack thereof was rather deficient. Her IQ was now around 78, having been previously about 90. That isn’t of itself, suggestive of a lack of capacity.

 

25.Quite apart from the issue of SW’s capacity, there are three particularly striking features of this application:

 

 

 

 

  1. i) First, there appears to have been, so far as I can see, and I pressed the son on this point, no discussion or consultation with SW about this application. I was told nothing about her wishes and feelings. What are they? More fundamentally, there seems to have been a wholesale failure to have regard to the fundamentally important principle in section 4(4) of the 2005 Act, requiring, “so far as reasonably practicable, [a decision-maker to] permit and encourage [SW] to participate, or to improve [her] ability to participate, as fully as possible in any act done for [her] and any decision affecting [her].”

 

  1. ii) Secondly, there appears likewise to have been no discussion or consultation with SAN about his wishes – a particularly egregious omission given everything Newton J had said as recently as December 2014. All the son could say, in answer to my probing, was words to the effect that ‘obviously he will agree because no-one wants to die.‘ Even as a general proposition this is not without its difficulties; in the present case it does not begin to address the obvious questions flowing from Newton J’s findings. This omission is also very significant for another reason for, according to the son’s skeleton argument, allogeneic bone marrow transplantation carries “a significant risk of mortality” for the donee.

 

iii) Thirdly, the application is put before me by the son explicitly on the basis that those with “clinical responsibility” for SW are two individuals who, although this was concealed from me, have in fact both been struck off the medical register, and that the relevant “treatment” is to be provided by one of these two struck off doctors. A prudent judge probably never says “never”, but I find it impossible to conceive of circumstances where the Court of Protection would ever contemplate authorising treatment of a kind referred to in PD9E (and this is such treatment: see PD9E, para 6(b), following Re Y, pages 116-117) where the treatment is to be given by a doctor who has been struck off.

26.A curious observation at the very end of the son’s skeleton argument, makes me wonder what, and who, are really driving this application. He is SW’s son, and puts himself forward as making the application as her attorney, yet he says of the declaration he seeks:

 

 

 

“If granted, such a Declaration will enable the public to obtain these life-saving, and curative treatments, from family members – not only for haematological cancers such as leukaemia, lymphoma and myeloma but also for solid tumours, with minimal residual disease, such as metastatic breast, colon & pancreas.”

 

Is there some wider agenda at work here, and, if so, whose agenda is it?

 

 

I like “a prudent Judge probably never says Never”

 

 

 

As we all suspected, the application was dismissed, leaving just issues of costs and anonymity in any published judgment

 

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.

 

 

34.The application must be struck out.

 

 

35.There remain two other matters I have to decide.

 

 

36.The first relates to costs. The HTA seeks costs which it invites me summarily to assess in the sum of £7,671.

 

 

37.As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. In saying this I make clear that I attribute no responsibility at all to the son for the previous litigation; but his conduct of the present proceedings is of itself more than adequate justification for ordering him to pay the costs. The amounts claimed are, in my judgment, plainly reasonable, and he has not sought to challenge any of the individual items or amounts. He says that he is “at this present moment” unable to afford the costs, praying in aid the fact that the Jobseekers Allowance he was previously receiving terminated in January 2017. That may be, but inability to pay is not, of itself, any answer to an otherwise appropriate order for costs and, in all the circumstances, I see no reason why he should not be ordered to pay the costs, and in the amount claimed. Impecuniosity does not provide immunity from the normal consequences of forensic folly.

 

 

38.As against Dr Waghorn and Dr Jooste, the question is not quite so simple because they, of course, were not applicants in the proceedings. But, and it is a very significant but, they each sought to be joined as a party and expressed themselves as consenting to the application; without any challenge on their part, they were put forward by the son as having clinical responsibility for SW; as I have already described, they seemed throughout the hearing to be making common cause with the son; and Dr Waghorn himself sought relief from the court. In these circumstances, and having regard to the principles expounded in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2004] 1 WLR 2807, and Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17, to which Ms Khalique referred me, both Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs.

 

 

39.I shall, therefore, order the son, Dr Waghorn and Dr Jooste to pay the costs, summarily assessed, in the sum of £7,671.

 

 

40.The remaining matter relates to the reporting restriction order. There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour. I appreciate that the effect of naming Dr Waghorn may make it a matter of simplicity for anyone minded to do so to put names to both SW and SAN, but for reasons which will be all too apparent they also need to be protected, for example if there were to be any further attempt to embroil them in litigation. The balance is properly held, in my judgment, by varying the reporting restriction order so as to permit the naming of Dr Waghorn and Dr Jooste while continuing to forbid the naming of SW, SAN and the son.

The gift that keeps on giving – Princess Margaret’s will

 

Ms Benmusa, not content with the hint dropped from the last judgment, which was as heavy as an anvil catapulted into the air by Wiley Coyote only to come crashing back down on his bonce, revived her application to see Princess Margaret’s will, which would prove that she, Ms Benmusa, was the illegitimate daughter of Princess Margaret.

She filed a statement, making reference to her aunt, who was born in 1904.

As the President carefully pointed out, this aunt is thus purportedly the elder sibling of Queen Elizabeth II. That is difficult to countenance, because (a) being the elder sibling of Queen Elizabeth II would have made this Aunt the Queen, and perhaps more importantly (b) the alleged father of this aunt was King George VI who was born in 1895. I know times were different then, but I do honestly believe that if King George had fathered a child when he was just nine years old, that would have been something of a sensation.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/785.html

 

The judgment is short enough, and cool enough, to print in full, so I’m going to…

 

  1. I have before me, as President of the Family Division, another application by Malika Benmusa. I struck out a previous application on 14 March 2017: Re Benmusa [2017] EWHC 494 (Fam). This application is dated 20 March 2017 and was received by the court on 23 March 2017.
  2. This application, like the previous one, seeks “To apply to unseal the will of the late Princess Margaret.” The only difference is that, on this occasion, the application which, like the previous one, I am invited to deal with “without a hearing” is accompanied by a closely-spaced one page statement by the applicant dated 20 March 2017 and a copy of a death certificate of a woman, who was born in 1904 and died in 1997 and who, according to the applicant, was “my late Aunt.”
  3. I do not propose to set out the entire contents of the applicant’s statement. Its flavour can be judged by the opening part (again I set it out as written):
    1. “I MISS MALIKA BENMUSA, am the last child of the late princess Margret … I was born in Scotland. My mother married my father a year before I was born, then separated, but never divorced. I do not wish to give out my father id as he is a very well know. […] My mother was very frightened of her so called family, and felt I needed protection. I am the heir to the throne of England. This is why so much trouble has been taken to cover up my identity. I believe between the age of three years old I was raised by my mother older sister, not known to the public, due to my grandparents’ not been married, and because of the war at the time. When I was three years old I believe my mother was frightened by her own family member to give me up for adoption, my mother did not consent to this. They frightened her saying that she was a drunk and my father was a drug addict. And my mother was told to remove me from the care of her older sister who real name was [name as on death certificate] […] Last address was before she passed [address as on death certificate]. The Kings Georges oldest daughter.”

In charity to the applicant I quote no more.

  1. The application is self-evidently complete nonsense It is a matter of public record, of which I can take judicial notice, that the father of her late Royal Highness Princess Margaret, Countess of Snowdon, was his late Majesty King George VI, who was born on 14 December 1895, and that her mother was her late Majesty Queen Elizabeth the Queen Mother, who was born on 4 August 1900. They married on 26 April 1923. Quite obviously a woman born in 1904 could not have been, as the applicant asserts, her mother’s elder sister if, as she also asserts, her mother was HRH Princess Margaret. I have no hesitation in concluding that I should strike out the applicant’s claim, as I do. It is a farrago of delusional nonsense.

 

I am ordering in popcorn and waiting for round 3.