Knock knock knocking on Judges’ doors

Posted on November 23, 2016 by suesspiciousminds

 

This is a case involving surrogacy – yet another private surrogacy arrangement which unravelled and left a huge wake of ugly disaster behind it.

Re X (a child) no 2 (private surrogacy) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/55.html

 

There’s a part 1 here

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/54.html

 

Where Holman J refuses the application of the birth mother to reopen the decision of Her Honour Judge Singleton that the child should remain with the commisioners of the surrogacy arrangement – permission to appeal already having been refused.

 

This case has interest for two reasons, really.  The first is that we hear bad things about MacKenzie Friends from time to time  (for example THIS guy, who acted as a MacKenzie Friend in family proceedings and got the partner in his business, who was also his girlfriend, to write a psychological assessment to benefit his client – said girlfriend was not actually a psychologist – not that it would have been okay if she was, but it compounded things. He’s now in prison.   https://www.lawgazette.co.uk/law/mckenzie-friend-jailed-for-deceit-in-family-court/5058352.article )

 

But I’ve met good, decent MacKenzie Friends, who work damn hard and give valuable assistance to parents who have nowhere else to turn, so it is nice when a High Court Judge gives a good news story about one

There was a strong objection on behalf of the father and mother to Mr Culshaw acting as McKenzie Friend since he, too, is undoubtedly a campaigner, who participated in several of the protests I have mentioned. But many people who are willing and motivated to act as McKenzie Friends are indeed campaigners, and if they were all prevented from doing so on that ground alone, many rather helpless litigants, like the sister in this case, might be left with no effective help or support at all. I wish to record that within the four walls of this courtroom, which is, of course, the extent of my observation of him, Mr Culshaw has acted impeccably and within the proper boundaries of a McKenzie Friend. He has shown respect and courtesy to the court. He has been a model of restraint. He has not sought to become an advocate and nor would I have permitted him to do so, but he has provided visible and obvious help and support to the sister, and he has helped her to formulate sensible and well judged questions.

 

 

The second point of interest is that the birth mother campaigned against Her Honour Judge Singleton’s decision, and did so in creative ways

 

 

  • In August 2015 Her Honour Judge Singleton decided that the child should move from living with the birth mother to living with the father and the mother, and she has done so ever since. The birth mother had changed her mind during the pregnancy and before the birth, and wished to keep and bring up the child herself. There is no doubt that she very bitterly opposed that decision and she has never, at least until this week, accepted that decision. She tried to appeal it. She very actively publicised and campaigned against it online and by protests at the homes of the former Prime Minister, David Cameron, the President of the Family Division, Sir James Munby, the Minister for Children, Edward Timpson, the previous guardian, Alexandra Sayer, and Her Honour Judge Singleton herself. She issued in May 2016 an application, which was before me this week, for the decision and order of August 2015 to be reversed so that the child returned to live with her. After hearing submissions from the birth mother, I summarily dismissed that application for reasons which I gave in my short judgment last Tuesday, 8 November 2016 at [2016] EWFC 54.

 

She was actually convicted of harassing the Judge, which shows the extent of her behaviour, since Judges don’t make complaints to the police lightly.

Mr Justice Holman discussed that the original Judge had wanted there to be some direct contact between the child and the birth mother, and that he wanted to open the door to that, despite the campaigning, which had clearly crossed the line

 

    2. Like Judge Singleton in August 2015, Mr Sanders does consider that it is in the best interests of the child to have some direct contact with her birth mother and her sister, provided that can be done without destabilising the child or destabilising the father and the mother. I agree with Mr Sanders. He has generously offered to engage in a very active way in this case for at least a year under the provisions of a family assistance order, and with his help the very detailed provisions of the order have been negotiated.
    3. The birth mother has repeatedly said during this hearing that she now absolutely accepts that the child will live with the father and the mother. She has said that she will stop the protesting and campaigning, and will abide by all the detailed provisions of the order.
    4. The father and mother clearly remain very sceptical about that. They both said in evidence yesterday that they remain very scared of what the birth mother may do. They say that if she can campaign with the intensity that she has, including by placing so much material online and by protesting at the homes of so many people, several of them quite unconnected with the case, they cannot have any confidence that she will not carry the campaign to their own home or into the course and content of any contact.
    5. I perfectly understand their position, but I do believe that this hearing has offered an opportunity – albeit only a start – for each side to this dispute to begin to have a greater appreciation and acceptance of the other. All parties have expressed their confidence in Mr Sanders, and said that they will engage with him and move contact forward in line with his recommendations and plan, and with his assistance. In my view it would do a great disservice to the longer term needs and welfare of the child to cut out now any further direct contact with her birth family, for the reason only of the events, however destabilising, of the last year or so.
    6. For these reasons I will make an order in the very detailed terms and conditions which have been drafted, which essentially provides for two occasions of supervised direct contact each year between the child and her birth mother and, on quite separate occasions, her sister, together with forms of indirect contact in the intervening periods.
    7. There are very detailed terms and conditions and “rules” which all parties clearly understand and must adhere to. The birth mother in particular must understand that this is a last chance. She is, of course, entitled in a free society to campaign and to protest, provided she does not break the criminal law. But if she does do so again, the pressure that that puts upon the father and mother will be just too great, and inevitably all the contact which I have so painstakingly striven to promote this week will be jeopardised, probably for ever. I sincerely hope that these long, painful and rather exhausting few days can represent a new beginning, from which all parties can move forward and begin to work together in the best interests of this child whom they all undoubtedly love very dearly.

 

 

I hope it works out for all of them.

 

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Judge making findings about a witness – fair trial

Posted on November 20, 2016 by suesspiciousminds

This is a very tricky one – I have to say that my eventual conclusion is that the Court of Appeal are entirely right about the principles and the decision that they came to, but it leaves me feeling uncomfortable and queasy that allegations as important as this about professional misconduct end up being dealt with on a technicality. What was alleged (and found by the Judge who heard all the evidence) was very serious stuff indeed.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1140.html

 

 

In this case, at the end of a 4 week hearing, the Judge delivered a judgment that said that the SW and Police Officer had embarked on a deliberate calculated exercise of getting ‘evidence’ to prove sexual abuse without any relation to whether or not the allegations were true, that they had drawn other professionals in, that both had lied to the Court and that the SW had caused considerable emotional harm to the child.  The Judge also directed that the judgment be sent to their employers.  The Judge delivered this judgment as a bullet point ‘draft’ and allowed the SW and PO to make representations about it before it was finalised, but it ended up in the same form.

 

  • Permission to appeal was granted by this court to the local authority, the named social worker (“SW”) and the named police officer (“PO”). Their appeal, if successful, will lead to the passages complained of being excised from the judgment, it is therefore plainly inappropriate to offer any more than a mere gist of those matters within this judgment. On that basis, and in short, the complaint relates to the judge’s finding that SW and PO, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her. In addition to the specific adverse findings made against the local authority, SW and PO also complain that there was no justification for the judge deploying the strong adjectives that he used in describing the scale of his findings in a judgment which, in due course, in its final form, will be made public.
  • It is necessary to stress that the issues canvassed in this appeal relate entirely to process. This court has not been asked to analyse the evidence underpinning the judge’s adverse findings nor to determine whether or not the judge was justified in criticising the professionals as he did. The central point raised by each of the three appellants is that the prospect of them being the subject of such adverse findings was made known to them, for the very first time, when the judge gave an oral “bullet point” judgment at the conclusion of the hearing. It is submitted that individual and collective adverse findings of the type that the judge went on to make in his judgment, did not feature at all in the presentation of the case of any of the parties and were not raised in any manner by the judge during the hearing. In short terms it is said that these highly adverse findings “came out of the blue” for the first time in the judgment. The findings both in nature and substance have the potential to impact adversely upon the standing of the local authority and/or the employment prospects and personal life of each of SW and PO, yet none of the three had been given any opportunity to know of or meet the allegations during the course of the trial process. They therefore seek a remedy from this court to prevent the inclusion of these adverse and extraneous findings in the final judgment that has yet to be handed down formally and published as the judge intended it to be.

 

 

As a result, the SW has been suspended ever since and the police officer had to be taken off all criminal investigations (a bit of a problem for a police officer) because this judgment would be discloseable to the defence in ANY case involving that officer.  If the process in making the findings was fair, then those consequences would be utterly justified by the findings. But what if the process was NOT fair?

 

  • In the context of potential “legal consequences”, Mr Brandon draws specific attention to the requirement, as he submits it is, for the judge’s findings with respect to PO, if they stand, being “disclosable” material in relation to any criminal proceedings in which PO may be involved as a police officer in the future on the basis of the approach described in R v Guney (Erkin Ramadan) (Disclosure) [1988] Cr. App. R. 242. It is also at least arguable that these findings would amount to “reprehensible behaviour” (R v O’Toole (Patrick Francis) [2006] EWCA Crim 951) and, he submits, they are also capable of being adduced as evidence of “bad character” pursuant to Criminal Justice Act 2003, s 100 by the defence in a criminal trial. Mr Brandon went on to explain that it is common practice amongst constabularies in England and Wales to remove officers who are the subject of adverse judicial findings from the “evidential chain” as their participation in the investigation and prosecution of offences may jeopardise the prospect of convicting those whom they are investigating. If this occurred, PO would not be permitted to be concerned in obtaining evidence in criminal investigation thereby compromising her ability to continue to work as a police officer.
  • For SW, Mr Zimran Samuel, who acts on a pro bono instruction and to whom the court is most grateful for taking on this substantial case, has informed the court that SW who, following these proceedings went to work for a different local authority, has been suspended as a consequence of the judge’s findings and has been unable to work for any other authority since that time. He argues that that circumstance alone is sufficient to amount to a legal consequence sufficient to bring her appeal within the boundaries established by Cie Noga. Mr Samuel adopted the submissions that had been made on behalf of the local authority and PO before making detailed submissions on behalf of SW focussed upon the specific findings of fact made against her. It is not necessary in this judgment to consider that level of detail, although the court fully understands the importance to SW of the points that have been made on her behalf.

 

 

Both of them appealed, so the Court of Appeal had to look at :-

 

  1. A) Can a witness appeal at all? (and the vexed question of whether you appeal against FINDINGS, or ORDERS – an issue that the Court of Appeal change their mind on just about every time the issue comes up)
  2. B) Does the Court as a public body owe article 6 and article 8 duties to WITNESSES ?
  3. C) Was the process adopted here fair?
  4. D) Is there guidance to Judges in similar situations?

 

The Court of Appeal held that in the circumstances of this case, where the witnesses lives were significantly and materially affected by the process, they could appeal, and that they could appeal against the findings. (Those bits are all quite legalistic and compex, so I’ve just given you the answer. The working out is at paras 19-65)

 

Process and fairness

Unfairness

 

  • It is plainly necessary to consider what elements of procedural fairness are required by Art 8 in this context. In my view, however, for the purposes of deciding this appeal, it is unnecessary to go beyond what must be an essential factor to be included on any list of the elements of procedural fairness, namely giving the party or witness who is to be the subject of a level of criticism that is sufficient to trigger protection under Art 8 (or Art 6) rights to procedural fairness proper notice of the case against them.
  • Mr Brandon submits that it is a basic element of fairness for a judge to ensure that criticisms of the nature that he came to find proved are put to the witness rather than appearing for the first time ‘out of the blue’ (to use Mr Brandon’s phrase) in the judgment. Reliance is this regard is placed upon the Court of Appeal decision in Markem Corp v Zipher Ltd [2005] EWCA Civ 267, which was a patent case that included an assertion of procedural unfairness. Lord Justice Jacob, giving the main judgment, drew attention to a 19th century House of Lords decision of Browne v Dunn (1894) 6 R 67. The case report of Browne v Dunn is sparse, but Jacob LJ sets out in full the relevant parts of their Lordships’ opinions at paragraph 59 of his own judgment in Markem. Of particular note is the following in the speech of Lord Herschell LC:

 

‘Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’

Other members of House of Lords gave speeches that expressly concurred with the Lord Chancellor on this point and the authority of Browne v Dunn was fully endorsed by this court in the course of its decision in the Markem case.

 

  • The statement of the law in Browne v Dunn must however be read alongside the authoritative description of the role of a judge given by Lawton LJ in Maxwell v Department of Trade and Industry [1974] QB 523 at page 541 B-D:

 

“The researches of counsel have not produced any other case which has suggested that at the end of an inquiry those likely to be criticised in a report should be given an opportunity of refuting the tentative conclusions of whoever is making it. Those who conduct inquiries have to base their decisions, findings, conclusions or opinions (whichever is the appropriate word to describe what they have a duty to do) on the evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more.”

 

  • During the detailed submissions made on behalf of PO by Mr Brandon and of SW by Mr Samuel, we were taken to the transcript of the oral evidence which demonstrated beyond doubt that the matters found by the judge were not current, even obliquely, within the hearing or wider process in any manner. None of the key findings that the judge went on to make were put by any of the parties, or the judge, to any of the witnesses and there is a very substantial gap between the cross examination, together with the parties’ pleaded lists of findings sought, and the criticisms made by the judge. In this respect this is not a matter that is finely balanced; the ground for the criticisms that the judge came to make of SW, PO and the local authority, was simply not covered at all during the hearing.
  • For my part it became clear from reading the transcript that the cross-examination of SW and PO had been entirely conventional in the sense that it dealt with ordinary challenges made to the process of enquiry into the allegations of sexual abuse and was conducted entirely, to use Mr Geekie’s phrase, within the four corners of the case. At the conclusion of the oral evidence, in closing submissions no party sought findings that went beyond those conventional challenges. At no stage did the judge give voice to the very substantial and professionally damning criticisms that surfaced for the first time in the bullet-point judgment.
  • It can properly be said that by keeping these matters to himself during the four week hearing, and failing to arrange for the witnesses to have any opportunity to know of the critical points and to offer any answer to them, the judge was conducting a process that was intrinsically unfair.
  • For my part, in terms of the decision in this appeal, it is not necessary to go further than holding that, unfortunately, this is a fundamental and extreme example of ‘the case’, as found by the judge, not being ‘put’ to SW and PO. However, out of respect for the thoughtful and more widely based submissions that have been made, and because the ramifications of this decision may need to be considered in other cases, I would offer the following short observations on other aspects of procedural fairness in the context of Art 8 in answer to the rhetorical question: ‘what should the judge have done?’.

 

 

To give you an illustration of this point, if I am cross-examining a witness, let’s say David Kessler, I may ask him questions as to whether his appetite for meat has increased in recent times, whether he has visited London Zoo recently, whether he is familiar with a pub called the Slaughtered Lamb.  But if I intend to ask the Judge at the end of the case to find that David Kessler is a werewolf, I have to actuallly put the allegation to him, and not just join up those dots. I have to ask him “Are you in fact a werewolf?” or words to that effect – SO THAT HE HAS THE CHANCE TO DENY IT and give an alternative explanation which might fit those other facts.

Similarly, if as in this case, nobody had actually asked the Judge to find that David Kessler is a werewolf, but the Judge is joining those dots for himself, it is not fair to David Kessler (whether he is a werewolf or not) that the first time he hears of the possibility is when the Judge delivers a judgment.

 

In a case like this, where the Judge was considering (and did) make a finding that the social worker had lied and entered into a conspiracy, that question has to actually be put. It isn’t sufficient to join the dots – the bald question has to be asked.

 

The SW and Police officer won the appeal, the process had not been fair.  (Note in particular that at no point did anyone in the case seek these findings or declarations and the first anyone knew of it was in the judgment).  The Court of Appeal also interestingly said that the Court owes an article 6 right to fair trial to the Local Authority   (the LA is not owed any art 8 rights, though the witnesses were)

 

By way of general guidance

95.Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

 

 

 

  1. a) Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence;

 

  1. b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;

 

  1. c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.

 

 

 

Article 8: Conclusions

97.In the light of the law relating to ECHR Art 8 as I have found it to be, it is clear that the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on whether or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of whether the judgment is given wider publication. In short terms, the reasons supporting this conclusion are as follows:

 

 

 

  1. a) In principle, the right to respect for private life, as established by Art 8, can extend to the professional lives of SW and PO (R (Wright) v Secretary of State for Health and R (L) v Commissioner of Police for the Metropolis);

 

  1. b) Art 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights (Turek v Slovakia and R (Tabbakh) v Staffordshire and West Midlands Probation Trust);

 

  1. c) The requirement of a fair process under Art 8 is of like manner to, if not on all-fours with, the entitlement to fairness under the common law (R (Tabbakh) referring to Lord Mustill in R v Secretary of State for the Home Department, Ex Pte Doody);

 

  1. d) At its core, fairness requires the individual who would be affected by a decision to have the right to know of and address the matters that might be held against him before the decision-maker makes his decision (R v Secretary of State for the Home Department, Ex Pte Hickey (No 2));

 

  1. e) On the facts of this case protection under Art 8 does extend to the ‘private life’ of both SW and PO for the reasons advanced by their respective counsel and which are summarised at paragraphs 61, 86 and 87;

 

  1. f) The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.

98.As will be apparent from this analysis of the issues in the context of ECHR Art 8, I regard the process adopted by the judge in the present case to have fallen short by a very wide margin of that which basic fairness requires in these circumstances. The occasions on which such circumstances may occur, or develop during proceedings, will, I anticipate, be rare. This judgment should be seen by the profession and the family judiciary to be a particular, bespoke, response to a highly unusual combination of the following factors:

 

 

 

  1. a) a judge considering himself or herself to be driven to make highly critical findings against professional witnesses, where

 

  1. b) such findings have played no part in the case presented by any party during the proceedings, and where

 

  1. c) the judge has chosen not to raise the matters of criticism him/herself at any stage prior to judgment.

 

99.The fact that, so far as can be identified, this is the first occasion that such circumstances have been brought on appeal may indicate that the situation that developed in the present case may be a vanishingly rare one. For my part, as the reader of very many judgments from family judges during the course of the past five years, I can detect no need whatsoever for there to be a change in the overall approach that is taken by judges.

 

 

100.The present case is, unfortunately, to be regarded as extreme in two different respects: firstly the degree by which the process adopted fell below the basic requirements of fairness and, secondly, the scale of the adverse findings that were made. This judgment is, therefore, certainly not a call for the development of ‘defensive judging’; on the contrary judges should remain not only free to, but also under a duty to, make such findings as may be justified by the evidence on the issues that are raised in each case before them.

 

 

 

All of the adverse findings were set aside and were to be removed from the judgment before it was published – so not mere redaction, but actual removal of them as legal findings.  [This is where I have the difficulty, since those original findings were grave, and I think to simply ignore them on a technicality is uncomfortable.  Of course, unless the Judge’s decision on the child was wrong and being appealed, it is hard to come up with a framework to have a re-hearing of the allegations about the professional witnesses, but it still doesn’t sit well with me. It looks like a whitewash]

 

Remedy on appeal

119.Where, as I have found to be the case here, the adverse findings complained of have been made as a result of a wholly unfair process and where, again as here, the consequences for those who are criticised in those findings are both real and significant, it is incumbent on this court to provide a remedy and, so far as may be possible, to correct the effect of the unfairness that has occurred. In the present case what is sought is the removal from the judgment of any reference to the matters that were found by the judge against SW, PO and the local authority that fell outside the parameters of the care proceedings and had not been raised properly, or at all, during the hearing.

 

 

120.Mr Feehan accepts, as I understand it, that if this court reaches the stage that, in my judgment, it has indeed reached, then redaction from the judgment must follow, subject to any submissions as to detail. I agree that that must be the case. So that there is no ambiguity as to words such as ‘removal’ or ‘redaction’ in this context, I make it plain that the effect of any change in the content of the judge’s judgment that is now made as a result of the decision of this court is not simply to remove words from a judgment that is to be published; the effect is to set aside the judge’s findings on those matters so that those findings no longer stand or have any validity for any purpose. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge.

 

 

 

 

 

And general guidance for other cases:-

 

 

108.Looking at this issue in general terms, it must, in some cases, be possible, where a court is contemplating making findings which may have arisen outside the original focus of the case, for the court to embark on a process which allows for those affected to make submissions and/or submit evidence in relation to those matters before final judgment is given. I have already described some of the basic elements in such a process at paragraph 95. For those additional steps to be an effective counter-balance to a process which might otherwise be seen as a whole to be unfair, they need, in my view, to be undertaken before the judge has reached a concluded decision on the controversial points. Whilst not impossible, it is difficult to conceive of circumstances where the overall fairness of the hearing could be rescued by any form of process after the judge has reached and announced his concluded decision. Where a court is considering making findings that have not, thus far, been foreshadowed in the proceedings I would suggest that, at the very least, the judge should alert the parties and, if necessary any affected witness, to the potential for such an outcome so that the steps in paragraph 95, and any other relevant additional matters, can be openly canvassed during the hearing and before any judgment is given.

 

 

The Court of Appeal went on to consider criticism of expert witnesses (and of course this year we have seen the very different approach to the radicalisation case where the Judge savaged the ISW in the judgment without her knowing in advance that this was possible, and the psychologist who made up quotes who had the chance to be represented by a Silk at a hearing where the declarations sought were all set out in advance)

“Fell far short of the promise foreshadowed in her CV” (radicalisation, Tower Hamlets)

 

Tape recording of an expert (a SHOCKING case)

 

Both of these experts had their reputation, and integrity, and livelihood put in doubt by these judgments – and the processes were wildly different.

 

Criticism of Expert witnesses

101.It is, unfortunately, sometimes the case that a judge in civil or family proceedings may be driven to criticise the professional practice or expertise of an expert witness in the case. Although what I have said with regard to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert witness, it will, I would suggest, be very rare that such a witness’ fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such a legal advice or representation during the hearing. That this is so is, I suspect, obvious. The expert witness should normally have had full disclosure of all relevant documents. Their evidence will only have been commissioned, in a family case, if it is ‘necessary’ for the court to ‘resolve the proceedings justly’ [Children and Families Act 2014, s 13(6)], as a result their evidence and their involvement in the case are likely to be entirely within the four corners of the case. If criticism is to be made, it is likely that the critical matters will have been fully canvassed by one or more of the parties in cross examination. I have raised the question of expert witnesses at this point as part of the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to witnesses in general, and expert witnesses in particular.

 

 

The Court of Appeal were trying to be as clear as possible that they weren’t asking Courts to approach the issue of assessment of witnesses and criticisms of witnesses differently or defensively, and that the issues in this case arose really because the specific allegations that led to the findings weren’t actually put to the witnesses, or sought by the parties. If the social worker and police officer had been asked the direct questions and known that such findings were sought, then the Judge’s findings could have been upheld.

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Cryogenics and the Courts

Posted on November 18, 2016 by suesspiciousminds

 

 

 

This case has attracted a lot of Press attention, and as ever, not all of it is terribly accurate reporting. Most of the headlines have been along the theme of “girl wins right to be frozen after death”

 

If you haven’t heard yet, this is a High Court case where a decision was taken about a girl who had terminal cancer and who wanted to be cryogenically frozen after her death so that if there was a chance in the future of her being cured that this could happen. And the conclusion of the Court was that steps could be taken after her death to comply with her wishes.

As this is a Justice Peter Jackson judgment, it is very clear and readable, and tells you lots of things that you didn’t previously know. So well worth a read.  Justice Peter Jackson is on the sort of roll that the Beatles were on between Rubber Soul and Sergeant Pepper, his entire output is extraordinary in its quality.

Re JS (Disposal of Body) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2859.html

 

I think I’ll start with the very simple steer he gave to the Press which they ignored

 

 

 

 

 

 

 

25.The first thing to note is that much of the current problem arises from the fact that JS is a child, albeit a legally competent one. If she was 18, she would be able to make a will, appointing her mother as her executor, and it would then be for the mother to make arrangements for the disposal of JS’s body, no doubt in accordance with her wishes. However, children cannot make wills. My approach is therefore to try to remove the disadvantage that JS is under as result of her age. I do not intend to go further than that, as JS cannot be in a better legal position than she would be if she was an adult.

 

 

 

26.Next, it is important to approach a problem of this kind on the basis of a real situation as opposed to theoretical possibilities. When the application first came before the court, it was not clear that JS’s wishes could be carried out, because there was no information from the hospital or from the US authorities. Now that this and other information has been gathered, there is a practical plan that can be considered.

 

 

 

27.Thirdly, the court is not making orders against third parties. The position of the various organisations and authorities has been set out above. All the court is doing is to provide a means of resolving the dispute between the parents.

 

 

 

28.Fourthly, this case does not set a precedent for other cases. If another health trust was ever to be faced with a similar situation, it would be entitled to make its own judgment about what was acceptable in respect of a patient in its care, and it might very well reach a different conclusion, as might another court. There are clearly a number of serious ethical issues, and I have received information about procedures performed on the body after death that would be disturbing to many people.

 

 

 

29.Fifthly, I am acutely aware that this case gives rise to a large number of issues that cannot be investigated in the course of a hearing of this kind. If regulation is required, there would need to be consultation with a wide range of interested parties. That is a matter for others. This court is faced with a situation that needs immediate determination on the basis of the best available information. For the future, I shall direct that the papers in this case shall be released to the HTA on the basis that the identity of the family and the hospital trust will remain confidential.

 

30.Lastly, I cannot emphasise enough what this case is not about. It is not about whether cryonic preservation has any scientific basis or whether it is right or wrong. The court is not approving or encouraging cryonics, still less ordering that JS’s body should be cryonically preserved.

 

31.Nor is this case about whether JS’s wishes are sensible or not. We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS’s position – what they must think.

 

32.All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.

 

 

It is also important to know that whilst JS was a pivotal part of the case and the way it was resolved, the actual legal structure here is a dispute between her parents.  When I was hearing the case reported on the radio and TV this morning, without having read the judgment, it made no sense to talk of the child winning this ‘right’ because of course someone has to pay for the cryogenic freezing. This was a dispute between the mother who was supporting JS’s wishes, and the father who was not.

The Court was therefore resolving which of the parents’ views should prevail.  {The father’s position was quite nuanced and it is overly simplistic to just say that he was against it – after a lot of thinking, the dispute really came down to a desire to see his daughter’s body after she died, which doesn’t sound that unreasonable – but in the context of their relationship having completely broken down, it is understandable that the case couldn’t quite come to a settlement by agreement, which is a shame}

 

6.Over recent months, JS has used the internet to investigate cryonics: the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future.

 

 

 

7.The scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications. On the other hand, cryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. Cryonics is cryopreservation taken to its extreme.

 

 

 

8.Since the first cryonic preservation in the 1960s, the process has been performed on very few individuals, numbering in the low hundreds. There are apparently two commercial organisations in the United States and one in Russia. The costs are high, or very high, depending on the level of research into the subject’s case that is promised. The most basic arrangement (which has been chosen here) simply involves the freezing of the body in perpetuity. Even that will cost in the region of £37,000, according to the evidence in this case – about ten times as much as an average funeral. Although JS’s family is not well-off, her maternal grandparents have raised the necessary funds.

 

 

 

9.There is no doubt that JS has the capacity to bring this application. She is described by her experienced solicitor as a bright, intelligent young person who is able to articulate strongly held views on her current situation. Her social worker says that she has pursued her investigations with determination, even though a number of people have tried to dissuade her, and that she has not been coerced or steered by her family or anyone else.

 

 

 

10.JS has written this: “I have been asked to explain why I want this unusual thing done. I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”

 

 

The Court had to look first at whether cryogenic freezing was actually legal in the UK, and as the storage would be in America, whether there were legal problems with shipping a frozen person to America.

 

 

 

 

 

16.I have also been taken to the old authorities on the unlawful treatment of dead bodies (see Archbold 2017 at 31.54 onwards) but it does not appear that an offence would be committed in this case; in other words, what JS wants does not seem to be illegal.

 

 

 

17.Enquiries have now been made of the United States authorities, who have confirmed that there is no prohibition on human remains being shipped to the US for cryonic preservation provided that the UK funeral director and the US commercial organisation are in communication to guarantee that local, state and federal requirements are complied with.

 

Having been quite interested in cryogenics in my younger days, I’m aware that there are considerable schools of thought that the process works better if the person undergoes the procedure whilst they are still alive, but I think that’s going to be a step too far for the Family Courts.

 

 

 

 

 

23.It is no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law. Faced with such a tragic combination of childhood illness and family conflict, the court must remember that hard cases make bad law, and that natural sympathy does not alter the need for the application to be decided in accordance with established principle, or with principle correctly established.

 

 

I’m disappointed that nobody took the Judge to a comparable, if opposite case from India in 2014, which is about whether a man who has been in a freezer for several years is in fact dead or whether he is instead in ‘deep meditation’  – because his family want his remains released so they can cremate them, but the followers of this guru say he is still alive. The fact that if he is alive, the followers retain control of his $170 million fortune plays no part in that, of course.

According to one of his aides, who asked not to be named, “Maharaj has been in deep meditation. He has spent many years meditating in sub-zero temperatures in the Himalayas, there is nothing unusual in it. He will return to life as soon as he feels [ready] and we will ensure his body is preserved until then,” he said.

 

Court to Decide Whether Guru Is Dead or Just “In Deep Meditation”

 

Frozen Guru Update II

 

Sorry, sidetracked.  I’m fairly sure there has been a case this century in English law involving parents who were in dispute as to whether their son’s remains should be kept in the UK or taken to the River Ganges to be scattered, but I can’t find it. I have a strong recollection of it. Maybe it will emerge and I can add it in.  No luck so far, though there’s this sticky piece of litigation where a man took Newcastle to Court for refusing to allow open air funeral pyres http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html

 

It turns out that a person cannot control what happens to their body after their death – because a dead body is not property, so you can’t state in a will what is to happen to it.  Williams v Williams 1882.  The wishes of the deceased may be relevant, but they don’t bind third parties.  So if you, like me, were thinking of putting in your will that you want your ashes blown into Bono’s eyes after your death, your Executors can just smile wryly and stick your ashes  in a cookie jar with a picture of Ian Rush on it, despite this being wholly against your wishes. It will be your Executors who make the arrangements for your burial/cremation/cryogenic/being shot into space like Ken Kesey.  Now, an adult can make a will and appoint someone they trust as Executor, and if JS was 18, that’s what she would have done, made a will and appointed her mother as Executor, leaving clear instructions. But as established earlier, a child can’t make a will (not even if they are Richie Rich or Mustafa Millions out of Cheeky), so that option was not available.

Thus, the mechanism here is that a person, such as a minor, who dies without a will, is that someone will apply for Letter of Administration, which then lets that person make decisions, including about arrangements for the body.

 

What the Judge did here (simplifying it as much as possible) is to make a Specific Issue Order that in relation to the dispute between the mother and father as to arrangements for JS that the mother can carry out her proposal, and that she is to have the Letters of Administration and that the father cannot apply for them, so that in effect means that JS’s wishes will happen.

 

There’s a rather sad and shabby postscript to the whole affair.

 

 

Postscript

 

65.On 7 October, the day after the hearing, I received a message from JS through her solicitor saying that she would like to meet the judge who had decided her case. I visited her in hospital that evening in the presence of her mother and we had a good discussion. I was moved by the valiant way in which she was facing her predicament.

 

 

 

66.On 17 October, JS died.

 

 

 

 

 

Part 3 – 10 November 2016

 

67.On 8 November, I received a detailed note from the solicitors for the hospital trust in which the events surrounding JS’s death are described from the point of view of the hospital. It records that JS died peacefully in the knowledge that her body would be preserved in the way she wished.

 

 

 

68.However, the note makes unhappy reading in other ways. The Trust expresses very real misgivings about what occurred on the day of JS’s death. In brief and understated summary:

 

 

 

 

(1) On JS’s last day, her mother is said to have been preoccupied with the post-mortem arrangements at the expense of being fully available to JS.

 

 

(2) The voluntary organisation is said to have been under-equipped and disorganised, resulting in pressure being placed on the hospital to allow procedures that had not been agreed. Although the preparation of JS’s body for cryogenic preservation was completed, the way in which the process was handled caused real concern to the medical and mortuary staff.

 

69.These proceedings have come to an end and I make no findings about the above matters, on which I have in any event not heard other views. I nonetheless approve the intention of the Trust to send a copy of the note and its accompanying documents to the Human Tissue Authority. It may be thought that the events in this case suggest the need for proper regulation of cryonic preservation in this country if it is to happen in future.

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Resident music (not a law post)

Posted on November 17, 2016 by suesspiciousminds

 

It is roughly a year since I stumbled into an independent record shop in Brighton. Something in the window caught my eye, and I’m thankful that it did. When I went in, as well as rows of records and the new releases, the shop had their ten albums of the year on display. And more than that, they had a write up about each of them, and an annual in which the people who staff the shop wrote with passion, style and charm about their favourite records that had been released that year.

That’s my sort of record shop. And I haven’t had that sort of relationship with a record shop in a long time, not since I left Lincoln and Radio City.  A shop where people don’t just sell music, they love it. And they want to help you find stuff you’re going to love too.

I bought the release that had caught my eye, and two other albums from the top ten. Artists I’d never heard of and they blew me away. Over the last six weeks of 2015 I bought everything from their top 20 choices in the annual, and didn’t regret any of them.

Every week Resident send me a newsletter by email about the new albums coming out on a Friday, and a little pen portrait of each.  I usually end up buying three or four a week, and put them on my ipod and listen to them on my way to work, on my way to Court, on my way to meetings, on my way home. It makes it a treat to be travelling, because I’m accompanied by music.

So since I found Resident Music in Brighton, I’ve bought about two hundred albums that they recommended – some very obviously right up my street and some that pushed me into new corners, different places. Of those two hundred, there have been two that I didn’t like  (and I didn’t HATE those, I just didn’t get that fast connection that I’ve had to anything else they recommended)

Resident are publishing their next annual tomorrow, and are having a little party to celebrate. If you like music, and feel like you’ve gotten a bit rusty, or a bit predictable in what you listen to, or you’ve lost touch with what’s going on out there, pick up the annual and read the little reviews, and take a chance on a couple that grab your attention.

If you don’t live in Brighton, you can still get in on the action by visiting their website http://www.resident-music.com  and you can order from them and sign up to the newsletter.

 

Here are a few of my favourite albums of this year. Whilst it has been an utterly terrible year for politics and losing talented humans (see below, which is NOT SAFE FOR WORK ) it has been a GREAT year for music

 

 

Not in any particular order, just albums that I really really liked.

 

Drive-by Truckers –  American Band

If what’s happening over in America at the moment is making you feel pretty down on the country, then this is a bit of an antidote – punchy, crunchy, full of hooks and ideas and damn political too.  It’s a great listen, and my best description is Springsteen and Michael Stipe getting drunk in a bar that is playing GOOD country music and decide to write songs about the state of the nation. It’s not bleak or worthy, it is medicine for the soul.

 

http://www.resident-music.com/productdetails&product_id=43498

 

The Avalanches – Wildflower

 

If you want an album to listen to whilst drinking beer or wine and lying in a field feeling like you’re in love and everything’s going to be fine with the world (or even just something that makes you FEEL that way, in the bleak midwinter) this is a fine choice. This is an album by a band who were throwing away more ideas than most ever come up with – don’t like this song? Don’t worry, the next one sounds nothing like it.

http://www.resident-music.com/productdetails&product_id=42647

 

Honeyblood – Babes Never Die

 

There are loads of ways to make a great album – one of them is to push the boundaries and stretch what the form is capable of. Another is to just write ten songs that are absolute bangers and put them in a good order.  You may already have heard “Ready for the Magic” as a car advert, particularly if you watch Sky, because that ad is on a LOT.  You know when you’re listening to an album and you say “Oh, turn it up, I love this one” ?   Well, that’s the whole album. You’re just going to want to keep turning it up. Resident’s description of a “Scottish take in Courtney Barnett” is a cracking one, and if Courtney Barnett doesn’t mean anything to you, then you’re in for another treat when you discover her.

http://www.resident-music.com/productdetails&product_id=43315

 

Car seat Headrest – Teens of Denial

As a big fan of Pavement and Flaming Lips but wanting a modern take on it, I was always going to like this – lo-fi pop about peculiar themes and people on the edges of society and the edges of their lives. Clever, full of ideas and funny as hell. Loads of tunes you’re going to really want to wig out to, and it is almost impossible to resist the “Friends are better with drugs are better with friends are better with drugs” hook that is the centrepiece. Love it love it love it

http://www.resident-music.com/productdetails&product_id=43315

 

Kate Tempest – Let them eat Chaos

I can’t think of anything I dislike much more than spoken word poetry, so when I read the description of this in the newsletter I had decided to give it a miss. Thankfully, when I went into the shop it was playing, and I stood rooted to the spot listening to it, heard three tracks, bought it, and it didn’t come off the playlist for a month.  And I listen to it at least once a week, in full.  It’s an album that made me feel okay about Southern Rail cancelling trains because I’d get to hear this again whilst I was waiting.

It is so sharp, and vivid and occasionally vicious, but it is shot through with kindness and decency of spirit and hope. The best storytelling I’ve heard on an album in years – the characters in the songs have distinctive voices and Kate changes her style around throughout and makes all of them real – flawed and battered but real.  In a year of sensational music, this one is my absolute favourite. It makes me grin like a wolf, it brings tears to my eyes, it makes me punch the air, it makes me laugh out loud.  The closest I can get is that it makes me feel the way I felt when I was first listening to the Streets Original Pirate Material – that this was bringing the streets to life in a fresh, funny,  interesting and occasionally challenging way.  You can’t get a taste less you’re taking a bite.   And it is damn funky. The beats in it really work and her voice is a delight. It’s a truly outstanding record, and I am really looking forward to seeing her do a live set next Wednesday.

 

http://www.resident-music.com/productdetails&path=12966&product_id=43810

 

 

(I don’t work for Resident, nor do I have anything to gain by this piece – it is just that if we want people to carry on making great music then we need to put money in the pockets of the artists making it – the internet has made us all think that content should always be free, but if you hear music and love it and want more of it, then it is cool to give the people who make it and bring it to the attention of listeners some money to help them keep doing it. Sermon over)

 

 

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When I’m sixty-four (bundles)

Posted on November 14, 2016 by suesspiciousminds

 

A permission to appeal hearing in the Court of Appeal. Where the parents did not have legal aid and

 

(A) There were Court orders that said that they couldn’t have a copy of the judgment ; and

(B) There were sixty four Court bundles  (and even whittling it down for the appeal there were still 27 just to decide the permission application)

 

Re A and B (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1101.html

 

 

 

The impact of confidentiality on the appeal process

 

  • For sound reasons, which are not challenged in the course of these two applications for permission to appeal, Theis J imposed a highly restrictive regime aimed at maintaining total confidentiality as to the content of her fact finding judgment and the subsequent welfare determinations that she made. In short terms mandatory orders are in place which prevent any of the lay parties from having a copy of the judgments, or any part of them, in their possession at any time. The solicitors acting for the various parties, and indeed the other professionals in the case, were required to retain any copies of the judgments securely in their possession and not to pass a copy of a judgment, or any part of it, to any of the lay parties.
  • The three applicants for permission to appeal no longer have the benefit of legal representation funded by Legal Aid. They appear before this court as litigants in person. The difficulties that they face as litigants in person attempting to challenge the judge’s highly detailed and sophisticated analysis of the factual evidence is, sadly, compounded by the fact that Mr A and Miss B in particular and, to a lesser extent, Mrs A are said to suffer from learning difficulties.
  • I considered the applicants’ applications for permission to appeal on paper soon after they had been issued. The difficulties facing each one of the three applicants was plain. The suggested “Grounds of Appeal” put forward with respect to each of the two applications was, understandably, in the most general and superficial terms. The challenge for this court and for the parties was to consider how each of these three individuals, with their limited intellectual resources and acting as litigants in person, could possibly present an effective application for permission in circumstances where they were denied personal access to copies of the judgment. The applications were therefore listed on notice to the local authority for hearing before me on 19th May 2016 so that attempts could be made to enable each of the applicants to present their proposed applications for permission through a process which was as fair and as effective as could be achieved within the parameters set by the confidentiality orders made by Theis J.

 

That would make it impossible for the appellants to run their case. For those reasons, the Court and the other parties helped the appellants to liaise with the Bar Pro Bono Unit.

However, the sheer volume involved made that difficult  – doing legal work for nothing is one thing, but reading 64 bundles of evidence  is quite another (that by the way amounts to reading 21 books as long as War and Peace or The Stand. Or reading the entire Harry Potter series SEVEN times. No, I wouldn’t do that for nothing either. They did eventually find someone, but given that they were doing all of this reading for free, in between their paid job it took a little longer)

 

 

 

28th July 2016 hearing

 

  • Unfortunately, the timetable leading to a hearing on 7th July slipped, despite the apparent best efforts of all concerned, and the matter was listed once again before me on 28th July. At that hearing a number of matters were apparent. Firstly, despite the genuine endeavours of the Bar Pro Bono Unit, to whom I am most grateful, it had not been possible to engage a barrister who was willing and able to take on the very substantial task of familiarising themselves with the details of this case. To put the matter in perspective, Theis J had no fewer than 64 lever arch files of documents for the fact finding hearing and this court has already been provided with 27 lever arch files of material simply to support the decision at the pre-permission stage.
  • It was also apparent that the limited time that had been available to the applicants at their respective solicitors’ offices had been insufficient for them to engage with the detail of the judge’s judgment so as to be able to identify potential grounds of appeal.
  • In the event the court was therefore obliged to adjourn the matter further on the basis that the applicants would have additional time to consider the judgment at the various solicitors’ offices and the hope was that they would be supported in that process by an advocate or other support service. On that basis the case was adjourned until September.

 

9th September 2016 hearing

 

  • The final hearing of the permission to appeal applications took place before me on 9th September 2016. By that time the paperwork submitted by the applicants indicated that they had each spent sufficient time with a copy of the judgment to enable them to draw up a list of grounds of appeal. That the applicants and the court were able to achieve that state of affairs is undoubtedly due to a good deal of hard work on their part and, at the same time, a good deal of support and goodwill shown to them by their former solicitors and the advocates who have assisted them. So far as the former solicitors are concerned, I do not anticipate that the facilities and staff that they have made available to the applicants will be remunerated in any way and I am therefore particularly grateful to them for their contribution to this process which, without their help, may well have failed to achieve its target of enabling the applicants to engage with the detailed substance of Theis J’s decision.
  • It is also right to record that throughout this process the court has been very significantly assisted by the thorough, calmly presented and well informed submissions of Miss Sally Stone, counsel for the local authority. Having undertaken the professionally taxing role of presenting the local authority’s case before Theis J, Miss Stone was well placed to assist this court in understanding the various issues raised by the applicants. I am also grateful to the legal services department of the local authority who have provided the court with very well prepared bundles to support this process. That the applications for permission to appeal have taken over six months to determine is, understandably and rightly, a source of great frustration to those who are required to focus upon the welfare of the children. Despite that high level of professional frustration, Miss Stone has presented the local authority’s case in careful and measured terms, as opposed to taking a confrontational stance towards the applicants, in a way which has displayed insightful professionalism of the highest order and which is in the best traditions of the family Bar. Both the local authority and the children’s guardian submit that there are no arguable grounds of appeal.
  • At the conclusion of the 9th September hearing I announced my decision which was to refuse permission to appeal to all three applicants on all grounds. I reserved this judgment in order, firstly, to explain the reasons for that decision and, secondly, to do so in the form of a judgment which will be publicly available so that the details of this process can be made known. In order for the judgment of this court to be public, but at the same time in order to protect the confidentiality of the content of the proceedings before Theis J, it is necessary for this judgment to do no more than refer to the detailed allegations and the circumstances of the family members in the most general of terms. In the event, as I shall explain, because my conclusion is that the potential grounds of appeal do not really engage with the scale of the findings made against these three applicants by Theis J, it is not necessary to descend to fine detail in explaining my reasons for determining the applications as I have done.

 

The appeal itself is not that absorbing – you can read about it in the linked judgment if you wish, but this case really does throw up in a very sharp way just how daunting the task of appealing is for litigants in person and how much fairness in our system is now depending on amounts of goodwill and charity that just wouldn’t be expected in any other line of work.

If you imagine that three bundles is about average (some High Court cases go more than that), then the barrister advising these parents did the equivalent in man hours of working twenty cases for free. Can you concieve of us expecting a heart surgeon to do twenty operations for free? The Pro Bono Bar Unit and the people who help out do remarkable and extraordinary work and it is worth thinking about someone giving up their free time to do the equivalent of twenty normal cases for absolutely no money. Worth thinking about that the next time you read a Daily Mail piece on fat cat legal aid lawyers.

 

 

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Human Rights claims and statutory charge – an answer? Sort of

Posted on November 14, 2016 by suesspiciousminds

In the words of Erik B and Rakim

 

It’s been a long time, I shouldn’ta left you, without a strong rhyme to step to

 

But now, to paraphrase the one-hit wonder gangster rapper from Leicester,  “Return of the Pack – oh my god, Return of the Pack, here I am, Return of the Pack, once again, Return of the Pack, Pump up the world”

 

Which is a more heavy rap-related intro than intended, but basically, now I’m back, to show you…

 

P v a Local Authority 2016

High Court y’all.  Keehan J in da House.

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html

This one is actually a Keehan J shout out to the old skool, if by old skool, you mean (and I do),  the return of a case from March 2016

Child in care wanting parents to have no information or involvement

 

That was the case where the young person did not want his adoptive parents to know anything about the process of gender reassignment, and the LA went to Court to ascertain whether that was in conflict with their duties under the Children Act 1989 to consult with parents when they are looking after a child.

Unfortunately, this happened

 

Background

 

  • In September 2015 P moved to a local authority unit for semi-independent living. Although there were concerns about his mental well being and general welfare, P settled in to this accommodation. He was and is a vulnerable young person with a history of repeated episodes of self harm, taking overdoses and extremely poor mental health.
  • On 11 January 2016 an employee of the local authority disclosed personal information about P, including his forename and transgender status, to third parties who are friends of P’s adoptive parents. P was originally told that the address of the unit where he was living had also been disclosed: this later appears not to have been the case.
  • The impact of this wrongful disclosure on P was immediate and dramatic. He felt unsafe at the unit and left. He first stayed with his girlfriend and then at a number of residential units provided by the local authority. P’s mental health was very severely compromised: he made a number of suicide attempts and there were several episodes of self harm.
  • In more recent months P’s mental health has stabilised. I was very pleased that he was well enough to attend the last court hearing on 26 August 2016.
  • Although the local authority promptly told P of the disclosure of his personal information, I regret that it was slow in (a) giving P a full account of what had happened and (b) giving P a full and unreserved apology. In February the then Director of Children and Family Services wrote a letter of apology to P and offered to meet with him to answer any questions he may have had. P did not take up the offer of a meeting.
  • The member of staff who made the wrongful disclosure was suspended by the local authority and a formal investigation was undertaken pursuant to the council’s disciplinary policy. I do not know the outcome of that process.
  • Regrettably, and notwithstanding that P is a ward of this court, the local authority did not bring this breach of P’s privacy to the attention of this court. The matter was raised with the court by P’s lawyers.
  • The local authority, very sensible and rightly, decided to concede it had, by the inexcusable actions of one of its employees, breached P’s Article 8 rights to respect for his family and private life. They agreed to pay P damages in the sum of £4750. I am satisfied that in light of the very considerable distress suffered by P and the immediate adverse impact on his mental health, this appears to be an appropriate level of damages to be awarded to P.

 

That all seems straightforward. The LA messed up, and they agreed a sum of compensation to pay to P and P was content with that sum, and the Judge felt it was the right amount.

So why is this even a thing?

Well, it is because the Legal Aid Agency (having by the way refused to give P funding to make a claim for damages) wanted to take that £4750 and use it to repay the legal aid that P had had in the original wardship proceedings. This is called the Statutory Charge, and it comes up most often in divorce cases about money. The point there is that if you get legal aid (or ‘free’ legal representation paid by the taxpayer and you win money out of the case, you have to pay the legal aid back out of that money. ) That makes sense with divorce. It doesn’t make a lot of sense here.

It was P’s legal rights that were breached, and the £4,750 is compensation for that breach. Obviously he should get the money.

 

But no, the statutory charge bites on the compensation and P would get nothing.

That’s because of our dear old friend LASPO, the Statute that keeps on giving (if by giving you mean stealing pennies from the eyes of corpses)

 

  • Its current statutory basis is set out in s. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which provides:

 

“Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

 

And the killer words her are “in connection with”  – basically the Legal Aid Agency position is that the statutory charge bites (and thus they can take the compensation and take all of the legal aid costs spent on other stuff and P just gets anything left over) if there’s a connection between the cases at all.

There’s one exception in the LASPO Act (none of which apply to compensation from Human Rights claims) and the Lord Chancellor has power to exempt the statutory charge in certain cases

 

 

  • The Lord Chancellor has authority to waive the statutory charge, in whole or in part, where she considers it equitable to do so and two conditions are met.

 

Those conditions are:

(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and

(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings:

see regulation 9 of the CLA(SC)R 2013.

 

  • The phrase ‘significant wider public interest’ is defined as being a case where the Director of the LAA is satisfied that the case is an appropriate case to realise real benefits to the public at large, other than those which normally flow from cases of the type in question, and benefits to an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family: see regulation 6 of the Civil Legal Aid (Merits Criteria) Regulation 2013 (the ‘LA(MC)R 2013’).
  • The LAA asserts that the two conditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the application for funding is made and the Director makes the determination that the application qualifies for funding. The purpose of the waiver is to allow legal aid to be granted for a single test case without disadvantaging the applicant should he or she fail to secure damages and/or all of their costs.

 

 

The Lord Chancellor and the Legal Aid Agency were both represented in these proceedings and were clear that Reg 9 had not been sought at the time the application for funding was made (of course it hadn’t, because the breach hadn’t happened at that point)  and so it couldn’t now be applied.

Their very reasonable solution was that P would get his damages, provided that his solicitors, silk and junior counsel agreed to waive all of their fees from the wardship case (i.e having represented P in a very complex and legally difficult case and got everything that he wanted and advanced the law in a way that will help others in similar circumstances, they should not get paid for any of it)

 

 

  • In taking a broad and pragmatic approach leading counsel for the local authority submits that the adverse consequence of the statutory charge, that P will receive not a penny in damages, is unfair and makes no sense. I have a very considerable degree of sympathy with those sentiments.
  • In this context I deprecate the stance taken by the LAA that the issue of P receiving any of the awarded HRA damages would be alleviated if his leading counsel, junior counsel and solicitor simply waived their professional fees for acting in this matter.

 

 

The Judge mooted the idea that if there was a break between the two cases (this is my solution so I’m interested in it)  i.e

  1. The solicitors and counsel deal with the wardship or care proceedings on legal aid

2. Separately and without charging for it, they write to the LA about human rights breach and ask for compensation

3. LA settles the HRA claim (and possibly pays the costs of step 2 into the bargain)

 

Then why is the money recovered as a result of step 2 ‘in connection with’ step 1?  And why should the LAA get their money back from step 1 if step 2 is nothing to do with it, and no legal aid money was spent in getting step 2 achieved?

I think this is a damn good point (immodestly, because I’ve been saying it for ages). The LAA unsurprisingly disagree

 

 

  • The principal supplementary submissions of the LAA may be distilled into the following 10 points:

 

(a) it was common ground between the parties at the hearing on 26 August 2016 that any damages recovered in relation to the breach of P’s Article 8 rights (the ‘HRA claim’) would be damages recovered in the wardship proceedings;(b) the creation of new proceedings avowedly for the purpose of avoiding the statutory charge would not be an appropriate use of the court’s powers. It would be wrong to seek to bring about the disapplication of the statutory charge by changing the previously contemplated approach to the scope of this judgment or disapplying certain rules of civil procedure.

(c) The issues raised by the court about the application of the statutory charge cannot be resolved in a factual vacuum.

(d) Even if P’s damages were awarded in freestanding proceedings which were not funded by the LAA, the statutory charge would still apply to those damages if they were recovered in “proceedings in connection with which the [civil legal] services were provided.” The language of ‘in connection with’ is obviously very wide. I was referred to the case of Cassidy v. Stephenson [2009] EWHC 1562 (QB) where Holman J. held that money recovered from the settlement of professional negligence proceedings brought as a result of a failed clinical negligence (which was funded) was not property recovered in a dispute “in connection with which” the legal services for the clinical negligence claims were provided.

(e) The propositions set out in paragraphs 7 to 10 of the email of 20 October 2016 are correct, save that the LAA is not privy to the full background to this case (eg the local authority’s response to P’s letter before action).

(f) The HRA claim cannot be said to be ‘wholly unconnected’ to the subject matter of the wardship proceedings. The LAA asserts that:

“As the LAA understands the position, the Court considered P’s circumstances and the extent to which information about him and his whereabouts should be disclosed in the inherent jurisdiction proceedings. The HRA Claim arose, as the LAA understands it, as a result of conduct by the LCC that was not consistent with the way in which that issue was resolved, with the Court’s assistance, in these proceedings. It was therefore reliant on matters determined in RA’s favour in the wardship proceedings, for which funding for civil legal services was provided.

…

Civil legal services were provided for the wardship proceedings, in which RA was made a ward of the Court, and restrictions were imposed on disclosure of information in relation to RA. It was the fact that LCC acted contrary to the resolved position that has given rise to the HRA Claim. The LAA funded the wardship proceedings, including for a declaration that there had been a breach of the injunction imposed by the Court. “

(g) It would be artificial to say than any recovery of damages was not made in the wardship proceedings.

(h) Even if the award of damages was made or approved outwith the wardship proceedings, the damages were still recovered in proceedings in connection with which “legal services were provided” (i.e. the wardship proceedings). The LAA relies on the assertion by P’s counsel that the authorities state that HRA claims should be brought within wardship proceedings viz. Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160.

(i) The answer to the question posed in paragraph 15 of the email of 20 October 2016 is “yes” there are reasons why the court should not permit the issue of a freestanding HRA claim. Such a device would be inappropriate and would not result in the disapplication of the statutory charge because, as asserted above, the damages would be recovered in (unfunded) proceedings which were “in connection with” the (funded) wardship proceedings.

 

 

The Judge decided otherwise and ruled that in this case steps 1 and 2 were not ‘connected with’ each other and the statutory charge did not arise on the compensation payable to P. Hooray!

 

 

 

  • It is appropriate for me to deal with each of those points in turn. First, the court is neither bound nor fettered in its determination of the legal issues or the factual matrix of a case by the submission of counsel. In any event counsel were afforded the opportunity to agree or disagree with the alternative analysis proposed by the court and to make submissions. P and the local authority have decided to agree with my propositions and questions. The LAA have had a full opportunity to respond and I can discern no procedural or substantive unfairness in the course I have adopted.
  • Second, to characterise the alternative analysis the court has suggested is ‘avowedly for the purpose of avoiding the statutory charge’ is quite wrong. Rather my objective is to secure, if at all possible, by any legitimate and lawful route P’s receipt of the damages he maybe awarded for the breach of his Article 8 Rights by an organ of the state.
  • Third the factual matrix of this case should be well known to all parties including the LAA. The same is comprehensively set out in the parties’ written submissions and in a detailed chronology prepared on behalf of P. I do not accept the court is considering the legal issues in this case in a factual vacuum.
  • Fourth, with reference to paragraph 64(d) above, I accept the phrase “in connection with which the [civil legal] services were provided” can be given a very wide interpretation. I was not referred to any authority to support a submission that I must give it a very wide interpretation.
  • Fifth, with reference to paragraph 64(e) above, I do not understand the submission that the “LAA is not privy to the full background to this case.” For the purposes of this judgment I have not taken account of nor have I been furnished with material not available to all counsel, save perhaps for one matter which I refer to in the next paragraph.
  • Sixth, with reference to paragraphs 64(f) and (g) above, the LAA appears to have proceeded and proceeds on the basis of a fundamental misunderstanding of the order I made in August 2015: see paragraph 46 above. I did not make an injunction or other order prohibiting the local authority from disclosing personal or private details about P to other persons, save against the local authority disclosing information to P’s adoptive parents: see paragraph 8 above. I made a declaratory order that the local authority was relieved of its statutory duty to give information about P to or to consult with P’s adoptive parents about P or his welfare. The LAA has proceeded and proceeds on the following assumptions:

 

(a) that I made an injunctive order against the local authority;(b) that the employee of the local authority breached the terms of that injunction;

(c) and that P’s claim against the local authority was based on a breach of that injunction.

None of the foregoing assumptions are factually correct. The LAA’s mistake does explain the funding decision of 8 February 2016, set out at paragraph 38 above, to permit P to bring a claim for a declaration for breach of an injunction.

 

  • P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings. This court was not notified of that alleged breach (now admitted) by an employee of the local authority which it should have been because P is a ward of this court and because of the adverse consequences of the wrongful disclosure on P. Furthermore the wrongful disclosure, insofar as it is relevant, was made to third parties and not to P’s adoptive parents. The local authority asserts that the third parties did not, in fact, pass on the disclosed information to P’s adoptive parents.
  • Seventh, with reference to paragraphs 64(h) and (i) above, in light of the correct factual matrix set out above I am not satisfied that the (unfunded) HRA claim in which damages are sought could be said to be “recovered in proceedings in connection with which legal services were provided” (i.e. the funded wardship proceedings). I go further, I am wholly satisfied that the damages resulting from the HRA claim are not “recovered in proceedings in connection with which legal services were provided”. There is no legal or factual connection between the wardship proceedings and P’s HRA claim.
  • The mere fact that P’s counsel in submission referred to the case of Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 which advises that HRA claims may or should be made in existing proceedings, does not require this court to conclude that P must or may only make a HRA claim in ongoing wardship proceedings. No claim form was issued. The HRA claim and the quantum of damages were settled before a claim was issued. As referred to in paragraphs 58 and 59 above, rr. 21.10 and 8 of the CPR set out the appropriate procedure when a settlement is reached concerning a child or young person prior to the issue of proceedings.
  • I can discern no legal impediment or other reason why I should not permit P by his solicitor to issue a claim form as required by r. 8.2 of the CPR and upon that basis, in due course, proceed to approve the agreed award of damages to P in respect of his HRA claim in those proceedings. The approval of damages can be submitted by email and be dealt on the papers without the need for a hearing. I am confident that the local authority would agree to pay the costs of that process incurred by P’s legal team.

 

Conclusions

 

  • I am bound to find that the Lord Chancellor, by the director of the LAA, has no discretion or power to waive the statutory charge, if applicable, in this case. The preconditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the determination of funding is made and a decision to waive the statutory charge must be made at the same time. That did not happen in this case and thus the preconditions are not satisfied.
  • I do not understand why the CLA(SC)R 2013 regulations placed that limitation on the time when a decision whether to waive the statutory charge must be made. I am not aware of any public interest or policy reasons for the same. It is regrettable that the discretion to waive the statutory charge is so fettered.
  • The manner in which the LAA has made determinations on public funding in these proceedings is extremely unfortunate. In some aspects the decisions are plainly wrong and/or unreasonable and in others the reasoning of the LAA is difficult to understand, if not incomprehensible.
  • In my view it would be extremely regrettable if P were to be denied the benefit of the damages awarded to him as a result of the considerable emotional distress and harm to his mental well being he has suffered as a result of the wrongful conduct of an organ of the state.
  • In light of the fact, however, that the LAA refused to fund a HRA claim for damages it appears me that the damages to be awarded to P under the Part 8 procedure were recovered in a claim that did not have the benefit of a public funding certificate. Further I am wholly satisfied that any damages awarded to P in Part 8 proceedings were not recovered “in proceedings in connection with which [civil legal] services were provided.” Accordingly, however erroneous or muddled the LAA’s decision making was on this issue, in my view, for the reasons I have given above the statutory charge is not and cannot be applicable to P’s award of damages.

 

 

Is this the end of it? Not really. Whilst the Judge here paints a route-map for others to follow, there are two major differences from other HRA cases notably the s20 damages cases.

 

  1. The HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all. P’s rights would have been breached by what the rogue member of staff did, whether or not there had been a Court hearing. (The Court hearing made it sharper and more vivid and allowed P to easily tap into legal advice from his legal team whom he already knew, but the breach was a breach regardless. It was  a breach of his article 8 rights, NOT as the LAA mistakenly thought a breach of a Court injunction)
  2. The LAA had been asked to fund a damages claim and had refused. That is a material factor in the Judge being able to rule that there was no connection between the two cases.

 

(On the plus side for children and parents, this case probably makes it more likely that the LAA will STOP refusing to fund such damages cases, since if they do, they leave the door open to not being able to recover their original costs out of any winnings, but that in turn means that they will argue that this case doesn’t have broader application)

 

I suspect this is an issue that only the Court of Appeal or Parliament can resolve. It simply can’t be right that where a child or parent has their human rights breached by the State and compensation is paid that they will not get a penny of it. Equally it can’t be right that where the HRA claim is accepted and settled swiftly, that the LA get hit with costs of care proceedings which would be massively more than the legal costs of dealing with the HRA claim itself (and that is a collision course with Supreme Court decisions in Re S and Re T about where costs orders can be made in care proceedings)

Not for the first or last time, the answer is that LASPO is badly drafted and poorly constructed and unfair to real people, and it needs to be reworked.

 

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Like Redbridge under troubled water (a Local Authority takes a kicking case)

Posted on October 25, 2016 by suesspiciousminds

 

I know that my readership tends to like a case where a Local Authority gets a good going over from the Judge – some of my readers don’t like social workers (and some with good cause), some are lawyers who represent parents and get exasperated by LA failings (some with good cause) and some are Local Authority lawyers and social workers who need to know what pitfalls might be awaiting them in Court – and some people just frankly enjoy a bit of “thank goodness that wasn’t me”.

If you are one of my readers who works for the London Borough of Redbridge, good morning, and thanks for your support, but you might want to skip this particular blog. It will spoil your coffee and possibly your day.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2627.html

 

London Borough of Redbridge v A B and E (Failure to comply with directions) 2016

 

This was a High Court case heard by MacDonald J.  (By way of context, the LA could have had many far worse High Court Judges for this case, there are some where I would have feared for their survival)

 

Also by way of context, this was going to be the re-hearing of a final hearing, because at the first hearing the LA had filed their placement order late/not at all, and the Recorder had messed it up. At the Court of Appeal hearing, Redbridge had been sternly admonished for their failure to comply with directions or to seek court leave where they were going out of time. So there had already been cock-ups in this case which the LA had been told off for by the Court of Appeal – specifically about late filing of evidence and very very specifically about filing an application for a Placement Order very late.

 

With that context in mind, at an early directions hearing in the re-hearing, MacDonald J made this direction

 

  1. The matter having been remitted to the Family Division, on 28 July 2016 I made a series of directions designed to case manage this matter to a further and third final hearing on 17 October 2016, including:
  1. i) Directions for the filing of (i) the minutes of the LAC Reviews held since March 2016 by 11 August 2016 and (ii) a witness statement from any Police officer who attended the alleged incident on 27 December 2015 by 4pm on 22 August 2016;
  2. ii) A direction that the local authority file and serve (i) a final care plan, (ii) a final witness statement, (iii) a Scott Schedule of facts the court is invited to find and (iv) Schedule of Issues by 4pm on 12 September 2016;

iii) A direction that the local authority issues any placement application by 4pm on 12 September 2016 together with directions consequent thereon;

  1. iv) A direction that the mother file and serve her final evidence and response to the Scott Schedule by 4pm on 26 September 2016;
  2. v) A direction that the Children’s Guardian file and serve her final analysis and recommendations by 4pm on 10 October 2016;
  3. vi) A direction listing the matter for a further Case Management Hearing on 1 September 2016.
  1. On the face of my order of 28 July 2016 I required a recital to be included to the effect that, in light of the history of this matter, it was vital that the local authority adhered to the letter of the regulations and procedural rules that govern its conduct as between the date of that order and the final hearing. A further recital recorded that “All parties are reminded that should any issue arise that may affect the timetabling of this case then they are under a duty to inform the court of the issue and, if necessary, make an application to bring the matter back to court.”
  1. Pursuant to my order of 28 July 2016, the matter again came before me on 1 September 2016 for a further Case Management Hearing. On that date it was apparent that the local authority had failed to comply with parts of the order of 28 July 2016. In particular, the local authority had failed to comply with a number of the case management directions, including a failure to file and serve the minutes of any LAC Reviews that had occurred since March 2016 and a witness statement from any Police officer who attended the alleged incident on 27 December 2015. A further feature of the local authority’s conduct brought to the Court’s attention on 1 September 2016 was the alleged persistent failure by the local authority solicitor with conduct of the case to reply to correspondence from the solicitors instructed by the mother.

 

Despite this litany of non-compliance, no application had been made by the local authority to amend the directions in respect of the above matters prior to the expiry of the time for complying with those directions. Beyond the failures of the local authority articulated in the foregoing paragraph, the trial bundle is in what can only be described as a state of disarray, with key documents missing.

 

There was a directions hearing where the Judge describes himself as ‘expressing himself in excoriating terms’ about the failings, the case came BACK to Court for an explanation and the LA counsel had received no instructions in advance of that hearing….

 

Even today, and after I had expressed myself in what, I have no doubt, can fairly be described as excoriating terms at the compliance hearing last Wednesday, Mr Pavlou attended court this morning without having been able to secure instructions from the local authority as to when the matter would be ready for an adjourned final hearing. In particular, he had been unable even to achieve instructions as to the timetable for a further decision by the ADM. This was notwithstanding the fact that on 1 September 2016 I had directed the local authority to file and serve by 4pm on 14 October 2016 a further decision of the ADM to be taken in light of additional evidence to be filed ahead of the final hearing and not available when the initial decision was made by the ADM

 

Mr Pavlou deserves a very good bottle of Scotch from this Local Authority, it must have been a brief that kept him up at night.

 

In relation to the LA solicitor’s actions, read this and wince.  (I have anonymised the solicitor’s name, the Judge did not)

 

Finally, with respect to the allegation that the local authority solicitor with conduct of this matter has failed to reply to correspondence from the solicitors representing the mother, at the compliance hearing last Wednesday Ms E instructed Mr Pavlou (in a manner audible to the court) that she had responded to each and every email sent and Mr Pavlou advised the court accordingly. However, the signed statement that I have this morning received from Ms E concedes that she has replied to only a little more than 50% of the correspondence sent to the local authority by the mother’s solicitor.

 

(Being fair to Ms E, both of those things are actually possible – if someone sends 2 chasing emails to you saying the same thing and you answer it, you have answered all the correspondence but you have also only responded to half of the individual emails. But still, ouch)

 

Compounding all of this, when the ADM decision WAS produced, it was apparent that the ADM had taken it upon themselves to make decisions about the truth of allegations when those allegations had not been the subject of findings or even sought as findings…

 

Further, and within this context, with respect to the proposed application for a placement order, Ms Maclachlan had little difficulty at the compliance hearing demonstrating that the initial decision of the Agency Decision Maker was flawed to the extent that any application issued on the basis of the ADM decision would readily be open to attack and the decision of the ADM will have to be re-taken. In short, the ADM had taken it upon herself to make findings about the cause and provenance of the aforementioned injuries notwithstanding that the same have not been the subject of forensic investigation or findings within these proceedings. The late service of the ADM’s decision had prevented this fundamental issue being identified earlier and at a time it was still capable of remedy without impacting on the final hearing.

 

{This aspect is a little tricky – as the Court of Appeal have almost banned fact finding hearings, there are many cases where the ADM is charged with making a decision about whether adoption is the plan for the child when there is no Court finding yet about threshold or allegations. The ADM has to take a view on whether they personally are satisfied about threshold, because obviously if they DON’T think threshold is crossed,  how could they possibly decide that adoption is the plan? They must, however, avoid in their analysis and decision making specific comments as to threshold. The best way to think of it, in my mind, is that the ADM is deciding on what the plan for the child should be IF the Court is satisfied that the child has suffered significant harm. Because if the Court don’t find threshold, adoption won’t be the plan anyway. My reading is that in this case, the ADM and the social worker had gone further than just making that assumption that threshold was capable of being proven and in to dealing with specific allegations which were in dispute}

 

It won’t surprise anyone to learn that a costs order hearing is pending, with Redbridge having to show cause why they should NOT pay the costs.

 

Additionally, however,

 

 

  1. Ms Tara Vindis on behalf of the E submitted that this case is one that requires to now be put into ‘special measures‘. That is an apt analogy. Within this context, it is my intention that the local authority will provide a written report to me each Friday morning at 10.00am by way of email to my Clerk confirming the continued compliance with the timetable the court intends to impose. In the event of default on the part of the local authority, the matter will be brought back into the list for a compliance hearing. It is my expectation that the local authority will comply with its heavy duty to obey the directions of the court.

 

 

The Court also made it clear that the parties are forbidden to agree their own timetable and simply notify the Court of it, they actively need permission of the Court to change the timetable. (this approach works if the Court in question are very responsive to communications, not always the case everywhere in the country.  This is not me having a go at Court staff, who would have found it next to impossible to cope with a 40% increase in demand over the last two years even at full staffing, and we know that as a result of austerity, Court staffing levels were cut to the bone way before this surge in demand.  However, you can’t get an application in to adjust the timetable unless you’ve got very speedy communication at every step of the chain. If LA’s actually did what the President suggested and applied for extensions when they thought they were going to be half an hour late in filing a document, they would BREAK THE COURT system. And as LA’s need the Court system NOT TO BE BROKEN – you know, so that the Court can do their job of listing emergency applications, most of them have not followed the ‘apply if half an hour late’ principle)

 

  1. The courts have repeatedly reminded local authorities and those representing them of the following cardinal principles applicable to complying with case management directions made by the court in public law cases:
  2. i) Case management orders are to be obeyed, to be complied with on time and to the letter and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see Re W (Children) [2015] 1 FLR 1092).
  3. ii) Agreements between the parties to amend the timetable set by the Family Court are forbidden by FPR 2010, r 4.5(3). The parties are categorically not permitted to amend the timetable fixed by the court without the court’s prior approval and every party is under a duty to inform the court of non-compliance with the timetable set (see Re W (Children) [2015] 1 FLR 1092). Within this context, writing to the court to inform the court that the timetable has been altered does not amount to seeking the court’s permission. A specific request for prior approval must be made.

iii) The burden of other work is not an excuse for non-compliance with the directions of the court. Whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187).

  1. iv) Casual non-compliance is not an option precisely because further harm will likely be caused to the child (see Re H (A Child)(Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406).
  2. v) Failure by a local authority to comply with court orders causing unnecessary and harmful delay may result in a breach of Arts 6 and 8 and in an award of damages being made against a local authority (see Northamptonshire County Council v AS, KS and DS [2015] EWHC 199(Fam)).

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Yet another fertility clinic paperwork error case

Posted on October 16, 2016 by suesspiciousminds

 

Readers may be aware of the ongoing litigation caused because fertility clinics had not properly ensured that their paperwork reflected the wishes and intentions of the adults involved that they would both wish to be legal parents to any child the clinic helped them conceive, very often this being just a failure to ensure that ticks were placed in each box or that the forms complied with what was required of them. This has led to a lot of human misery, where people who believed that they were a legal parent of a child were told, often years later, that they were not, and had to go through a court process to put that right. The last one I wrote about, the parents had had to adopt their own biological child and spoke in very moving terms about how awful that was.

This one is even worse, I think.

Here is how the President begins

Jefferies v BMI Healthcare Ltd (Human Fertilisation And Embryology) [2016] EWHC 2493 (Fam) (12 October 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2493.html

 

 

 

  • When he was 19 years old, Clive Jefferies, then in the Royal Army Medical Corps, served his country in the Falklands War. On 8 June 1982 he was with the Welsh Guards on RFA Sir Galahad when it was bombed and destroyed by the Argentinian Air Force at Bluff Cove. On that day the fates smiled at him. Minutes before the attack he had been in a part of the ship where the first bomb exploded, killing many men. In the aftermath of the bombing he saved the life of a comrade who was in difficulties in the water. At his funeral, 32 years later, his commanding officer described his conduct on that fateful day as magnificent.
  • Returning to civvy street in 1987, Clive served the community as a nurse and midwife. He and his wife, the claimant Samantha Jefferies, met in 1999, moved in together in 2002 and married in 2007. Their ambition to have a family was assisted by the Sussex Downs Fertility Centre, a clinic operated by the First Interested Party, BMI Healthcare Limited, and regulated by the Second Interested Party, the Human Fertilisation and Embryology Authority (HFEA).
  • Neither of the first two cycles of IVF treatment was successful. On 1 April 2014 they attended the clinic to plan a third cycle of treatment, using three embryos, created from Samantha’s eggs and Clive’s sperm, which had been frozen on 11 August 2013. It was not to be. Fate struck. On 19 April 2014, suddenly and unexpectedly, Clive collapsed and died of a brain haemorrhage, while at home with Samantha. He was only 51 years old. He had previously been fit and healthy. It came as an appalling and terrible shock to Samantha. She was devastated.

 

With that history, the very last thing anyone would want is for there to be a row about how long the frozen embryos, the only chance for Samantha to have the baby fathered by Clive that they had both wanted, could be stored for and whether as a result of a flaw in paperwork for there to be a suggestion that they should be destroyed.

But that is what happened.

To their credit (and no doubt just reading those three paragraphs above would have made this an easy decision)  the clinic indicated that it did not want to take any active role in the proceedings and did not try to stand in the way of Samantha’s application for a declaration that despite flaws in the paperwork the embryos could continue to be stored, which she duly got.

These cases are causing misery, suffering, anxiety and a great deal of expense and Court time. It would be nice if the Government produced some legislation which provided for an amnesty and blanket declarations that where the fault lies with the paperwork and not the adults commissioning the fertility clinic, the wishes of those adults should prevail and avoid the need for Courts. It’s not an easy bit of legislation to draft, but I hope someone takes up that challenge on behalf of all of these parents who are going through turbulent and miserable times (and sometimes as here when life has already dealt that person such a challenging hand).

 

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Nepal-ing behaviour (I’m sorry, I’ll just get my coat)

Posted on October 16, 2016 by suesspiciousminds

I wrote about part 1 of this curious case where a couple living in Dubai adopted a child in Nepal, then they separated and the Court was having to deal with (a) was this a lawful adoption and if not could it be made lawful and (b) where should the child live

 

Application to dismiss a Guardian for bias

And as you can see from the title, part 1 was chiefly about the mother’s application that the Guardian was biased (which did not succeed)

 

Part 2 doesn’t disappoint either.  It was heard by Mr Justice MacDonald, who does get interesting cases and does them well.

Re QS v RS & Anor 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2470.html

 

T, the girl adopted from Nepal is now 12 years old. She has been living with one or both of this couple since 2008 and within the 8 years of her time with them, SEVEN have been in profoundly acrimonious court proceedings. It is hard not to think that she might have been better off remaining in Nepal.

 

She was adopted in 2008 by the couple, who were at that time British citizens living in Britain. (Nepal at the time of the adoption was not one of those countries where the UK has an arrangement that makes adoptions from that country lawful if a process is correctly followed. It is now, however. )   The parents then lived for a time in Dubai and then they separated, with the adoptive mother moving back to the UK.

 

As MacDonald J explains, the history of litigation about this child has been horrendous and protracted

 

 

  • The background to this matter is in part contentious. Regrettably, the parents have now been engaged in one form of litigation or another since 2009. Within that context, I made clear to both parties at the outset of these proceedings that in determining the issues before the court I would not be assisted by a detailed forensic exploration of each and every allegation and counter-allegation levelled by the parents over the course of the past 8 years. It is within this context that I begin by examining the background that leads up to the present situation.

 

 

Curiously, although T is 12 years old, she was born (will be born?) in 2062.

 

Yes, you read that date right. 2062.

 

That’s because the Nepalese calendar works differently to ours

It has been possible to further refine the details of T’s early life from documentation that has become available since I gave my first judgment in this matter on 15 October 2015. By the Nepalese Bikram Samvat calendar, on 20 August 2062 T was found abandoned in a temple in Chitwan in the Federal Democratic Republic of Nepal (although I note that other documentation seen by the expert appears to suggest that T was discovered near a bridge in Kathmandu).

 

It does strike me as somewhat peculiar that in our financially challenged times  that the High Court is spending time and legal aid in litigating about a girl born in Nepal, who lives in Dubai and won’t be born for another 46 years….

 

Under the law of Nepal the adoption of T was lawful in Nepal. Following the adoption, the parents took her from Nepal to Dubai, and in Dubai T was granted British Citizenship. If you are thinking to yourself, hang on, what power has anyone in Dubai got to grant British citizenship on a girl from Nepal, you are not alone

 

  • Following their adoption of T the parents moved with her to live in Dubai. Following her arrival in Dubai T was granted British Citizenship. I have had sight of a Certificate of Registration dated the 16 September 2008, registering T as a British citizen. The precise circumstances in which T was granted British Citizenship remain, despite considerable efforts by the parties, unclear. However, the ‘Adoption Guarantee Letter’ dated 5 December 2006 to which I have already referred states the intention to grant British citizenship for T upon her adoption by the parents by way of the discretion afforded to the Home Secretary by s 3(1) of the British Nationality Act 1981. That letter was signed by the British Consul in Kathmandu. Within this context, and in accordance with the intent of the ‘Adoption Guarantee Letter’ T’s Certificate of Registration makes clear that she was registered as a British Citizen by the Home Secretary pursuant to the power conferred by s 3(1) of the 1981 Act on 16 September 2008.

 

 

 

After the parents split up and mother issued her petition for divorce in Guildford County Court, she moved to Sharjah with T. If you were not previously aware that Sharjah was all that close to Guildford, it was news to me also.

There then followed all sorts of peculiarities, culminating with the mother requiring a Royal Pardon AND a Court decision in Dubai that neither the mother nor the father were the legal parent of T, but custody (I use the term that’s in the judgment) was awarded to the father. The mother was then deported and came to England.  The mother in Dubai has no legal rights regarding T and no right to see her.  Also, given the difficulties that she had with the Royal Pardon, entering Dubai places her at risk of a complaint being made and her being detained and prevented from leaving.

 

The Judge remarks upon the mother’s Facebook campaign

 

 

  • One further matter of background requires mention. Following her deportation, the mother commenced a campaign on Facebook, with a Facebook page entitled “Rescue T“. Whilst the mother contends that this site evolved, ultimately, into a blog through which she seeks to assist people in a similar situation to her own, it is plain on the mother’s own evidence that over a significant period of time she placed into the public domain information that concerned matters intensely private to T. The mother also used the medium to address T publically. The father asserts, in evidence that was not challenged, that at Christmas 2014 the mother posted publically the following message to T “he even abandons you for a significant part of the Christmas holiday to go abroad leaving you alone with a maid for days on end. How utterly, incredibly selfish! Again, you best interests are being ignored. I would NEVER, NEVER do this to you!” The father had been compelled to travel abroad to see a dying relative. At the instigation of the mother the case also featured heavily in the press. The father contends he has been vilified on social media and that the mother has given a false account of him to the newspapers.
  • Within the context of the mother’s online activity, the father contends that his efforts to facilitate contact between the mother and T from June 2013 onwards, including the offer of shared holidays in a neutral country provided proper arrangements for T’s passport were put in place and offers to pay for the mother to visit T at Christmas 2013, were met with no response. The father states that he encouraged T to send emails to her mother on special occasions and there are examples of those messages in the bundle.
  • The mother concedes that she did not reply to emails from T wishing her mother a happy birthday in November 2014 and a happy Valentine’s day in February 2015. The mother asserted during her evidence that she could not be sure that the emails were from T although, significantly in my judgment, she later said that she did not reply because this form of communication did not “fit” with her (the mother’s) requests for contact. The mother further conceded that she did not respond to a request from the father that she provide him with T’s vaccination records, following which refusal T had to be re-vaccinated and suffered a dangerous reaction to one of the additional inoculations, leading to her admission to hospital.

 

 

 

 

The Judge carefully explains the process by which an adoption which is not currently lawful in English law can be recognised and legitimised by English law. Care has to be taken, because this child is ordinarily resident in Dubai where court proceedings have made a determination that the adoption is not lawful and that neither mother or father have any legal rights over T and are not her parents. So the Judge has to tread softly.

 

The statutory power is fairly simple

 

 

  • if the court is satisfied that it is appropriate to recognise the foreign adoption at common law the court may, if the requisite conditions are met, make a declaration pursuant to the Family Law Act 1986 s 57, which section provides as follows:

 

57 Declarations as to adoptions effected overseas.

E+W

(1) Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either—

(a) a Convention adoption, or an overseas adoption within the meaning of the Adoption and Children Act 2002, or

(b) an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands,

may apply to the High Court or a county court for one (or for one or, in the alternative, the other) of the declarations mentioned in subsection (2) below.

(2) The said declarations are—

(a) a declaration that the applicant is for the purposes of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 the adopted child of that person;

(b) a declaration that the applicant is not for the purposes of that section the adopted child of that person.

(3) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, the applicant—

(a) is domiciled in England and Wales on the date of the application, or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date.

 

 

A trusty barometer of whether things in law are going to get complicated is where the Judge has to begin their overview of the law with a Lord Denning case, particularly one itself that refers back to a case decided before electricity was something other than an amusing new phenomenon that made dead frogs’ legs twitch and so it proves to be here

 

 

  • The Adoption and Children Act 2002 s 66(1)(e) defines “adoption” as including “an adoption recognised by the law of England and Wales, and effected under the law of any other country”. It has long been established that the recognition of a foreign adoption may be achieved by recourse to the common law. In Re Valentine’s Settlement at 841, a case concerning the recognition of an adoption effected under the law of South Africa, Lord Denning endorsed the observation of James LJ in Re Goodman’s Trusts (1881) 17 Ch.D 266 at 297:

 

“I start with the proposition stated by James LJ in In re Goodman’s Trusts: ‘The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations’. That was a legitimation case, but the like principle applies to adoption. But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v. Holley [1953] P. 246, 257; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794 , C.A. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of country when the adopting parents are domiciled there and the child is resident there.”

Lord Denning concluded further as follows in relation to the circumstances in which a foreign adoption would be recognised at common law:

“Apart from international comity, we reach the same result on principle. When a court of any country makes an adoption order for an infant child, it does two things: (1) it destroys the legal relationship theretofore existing between the child and its natural parents, be it legitimate or illegitimate; (2) it creates the legal relationship of parent and child between the child and its adopting parents, making it their legitimate child. It creates a new status in both, namely, the status of parent and child. Now it has long been settled that questions affecting status are determined by the law of the domicile. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicile of the adopting parent. You do not look to the domicile of the child: for that has no separate domicile of its own. It takes its parents’ domicile. You look to the parents’ domicile only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents’ domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it. That general principle finds expression in the judgment of Scott L.J. in In re Luck’s Settlement Trusts, Walker v. Luck [1940] Ch. 864, 907-908; sub nom. In re Luck, Walker v. Luck, 56 T.L.R. 915; [1940] 3 All E.R. 307 C.A. I think it is correct, notwithstanding that the majority in that case created a dubious exception to it. But it is an essential feature of this principle that the parents should be domiciled in the country at the time: for no provision of the law of a foreign country will be regarded in the English courts as effective to create the status of a parent in a person not domiciled in that country at the time: see In re Grove, Vaucher v. Treasury Solicitor (1888) 40 Ch.D. 216; 4 T.L.R. 762 , C.A. (legitimation by subsequent marriage); In re Wilson, decd., Grace v. Lucas [1954] Ch. 733; [1954] 2 W.L.R. 1097; [1954] 1 All E.R. 997 (adoption). I ought to say, however, that in order for adoption to be recognised everywhere, it seems to me that, in addition to the adopting parents being domiciled in the country where the order is made, the child should be ordinarily resident there: for it is the courts of ordinary residence which have the pre-eminent jurisdiction over the child: see In re P. (G. E.) (An Infant) [1965] Ch. 568, 585; [1965] 2 W.L.R. 1, 11; [1964] 3 All E.R. 977, C.A. The child is under their protection and it would seem only right that those courts should be the courts to decide whether the child should be adopted or not.”

 

  • Within the context of the present case, I also pause to note the dissenting judgment of Salmon LJ in Re Valentine’s Settlement at 852:

 

“It has been suggested that according to the theory of our law no foreign adoption should be recognised unless, at the time it was made, both adopted child and adoptive parent were domiciled within the jurisdiction of the foreign country and that this appeal should be decided accordingly. Our law, however, develops in accordance with the changing needs of man. These have always been ascertained by experience rather than by the rigid application of abstract theory. Experience has shown that there are sound sociological reasons for recognising an adoption in circumstances such as these. Adoption – providing that there are proper safeguards – is greatly for the benefit of the adopted child and of the adoptive parents, and also, I think, of civilised society, since this is founded on the family relationship. It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents. The laws of adoption in South Africa are very nearly the same as our own. The principles underlying them are the same. The whole emphasis is upon the welfare of the child and elaborate precautions are laid down for assuring that the adoption order shall not be made unless it is for the benefit of the child; the consent of the natural parents is required. It is difficult to see why in these circumstances, unless compelled to do so, our courts should refuse to recognise these adoption orders made lawfully in South Africa which conferred nothing but benefits on all the parties concerned.”

and at 854:

“Mr. Templeman, in the course of an exceptionally able argument, emphasised what he described as the danger and absurdity of a childless man and wife being able to go abroad for a short holiday and return the mother and father of three children. It may or may not be absurd but the danger would exist only if the considerations for adoption in the foreign country concerned were quite alien to our own and our courts were obliged to recognise the adoption whatever the circumstances. This is not so, for it is always open to our courts on grounds of public policy to refuse to recognise a foreign adoption even when the domicile of the adoptive father is impeccable.”

 

  • I further note that it is clear that Dankwerts LJ came to his conclusion that he must concur with the judgment of Lord Denning with some reluctance (Re Valentine’s Settlement at 846) and that Lord Denning himself recognised that the observations of Salmon LJ cast doubt on his conclusion that the courts of this country will only recognise an adoption in another country if the adopting parents are domiciled there, stating at 843 that:

 

“I may, however, be wrong about this: because I recognise the force of the opinion which Salmon L.J. will express, namely, that the courts of this country should recognise an adoption in another country if it is effected by an order of the courts of that country, provided always that their courts apply the same safeguards as we do.”

 

 

  • Nonetheless, the common law rule established by Re Valentine’s Settlement is clear and has been applied consistently since 1965. Within this context, pursuant to the Adoption and Children Act 2002 s 49(2) domicile (or, in the alternative, habitual residence) is still a part of “the circumstances we claim for ourselves” when constituting a valid domestic adoption, a valid application for an adoption order under the Act requiring at least one of the couple (in the case of an application by a couple) or the applicant (in the case of an application by one person) be domiciled or habitually resident in a part of the British Islands.

 

 

 

In very broad terms, if another country has similar adoption provisions to ourselves, and we would be prepared to make an adoption order of say Nepalese parents who are domiciled here and who adopt a child, we should do the same if British parents adopt a child in Nepal. The difficulty here, however, is that when the British couple adopted T, they were NOT domiciled in Nepal – they were there purely to adopt a child and had no intentions whatsoever of residing or settling there.  That is not a scenario in which a Nepalese couple could adopt in Britain  (it is perfectly legal in Nepalese law, but their law does not have the domicile element – that the person has to be living in the country where they adopt)

 

 

  • Within the foregoing context, the criteria for determining whether the court should recognise an adoption made in any country outside Great Britain and valid by the law of that country at common law were articulated by Hedley J in Re T and M (Adoption) [2011] 1 FLR 1487 and Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487 as follows:

 

i) Were the status conditions required by English domestic adoption law replicated or fulfilled in the foreign jurisdiction, including the status conditions as to domicile or habitual residence;ii) Was the adoption obtained wholly lawfully in the foreign jurisdiction in question;

iii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept of adoption;

iv) If so, was there any public policy consideration that should mitigate against recognition of the foreign adoption.

 

You can immediately see that whilst the parents can answer yes to (ii) the answer to (i) is going to be no. The Court therefore have to consider how much the concept of adoption in Nepal marries u with the English concept.

 

This is becoming terribly niche, so suffice to say that if you are involved in a case where you need to know the law on a s57 Family Law Act 1986 application to legitimise an overseas adoption, this is the case to find it all in. The Judge DID legitimise the adoption in English law.

 

 

  • In this case I am satisfied that recognition would be manifestly in T’s best interests. Recognition of the adoption at common law would confirm the legal relationship of parent and child that T no doubt assumes exists between her parents and herself. In circumstances where Mr Power is clear that T, as a child adopted from a foreign country with parents who have separated, has an enhanced need for certainty as an adopted child in a trans-racial placement, recognition of her adoption will assist in providing this and will assist T developing and making sense of her identity as she grows older. Recognition will also provide T with greater legal certainty throughout her life with respect to such matters as inheritance rights. I agree with Mr Bagchi’s submission that the balance sheet in respect of recognition contains no entries in the debit column from T’s perspective.

 

 

The Judge then had to consider where T should live and with whom she should spend time. All of this is very fact specific, but there’s one issue of general principle.

If you are ever in the witness box and you are asked whether a parent loves their child, THIS is not necessarily the best way to answer that question

 

 

  • The mother was unable even to acknowledge the father’s love for T, saying that “in as much as he can love her, I imagine he does” and that “it is a domineering and controlling love done within certain conditions“. The mother’s concluded position in oral evidence appeared to be that T was “probably” physically safe in the care of her father but that she was not emotionally safe, claiming “it is damaging for her to remain with her father, in emotional terms“. These firmly held views of the father’s parenting and his physical and emotional care of T are entirely at odds with all of the other evidence before the court.

 

 

 

The Judge considered all of the issues relating to T and made an order that she should live with the father and have contact with the mother, either in the UAE or England.

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Disclosure to the security services

Posted on October 8, 2016 by suesspiciousminds

 

Well, applications for disclosure of care proceedings to the police is something that we are used to, but an application to disclose papers in care proceedings to the Security Services is something rather new – even if with radicalisation we should have seen it coming.

 

X, Y and Z (Disclosure to the Security Service) [2016]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2400.html

 

In this case which involved not only allegations of radicalisation but also allegations that one of the parents might have deliberately adminstered a harmful drug to the child by way of an intravenous cannula, the Security Services and the police were taking an interest.  There were materials within the care proceedings which were of interest to them and might have assisted in their investigations.

The complicating wrinkle is that whilst we know exactly what happens with documents that are disclosed to the police (the officers in the case read them, they are shared with the CPS and possibly with trial counsel to decide whether there needs to be an application to USE them in the criminal trial), we’re not at all sure what the internal processes of the Security Services are.

And understandably, the Security Services aren’t keen on walking us through their processes and what is involved, particularly to reveal those matters to people they are investigating under terrorism legislation.

The Security Services therefore wanted effective Cate Blanchett to have the documents and make such use of them as they saw fit including sharing them on a ‘need to know’ basis whereas the Court was being urged to not allow such unfettered access.

The compromise that was reached – and the judgment is very helpful on the detail for anyone in this position, was that the papers could be disclosed to the police, the CPS and the Security Services but any onward disclosure by those agencies would have to be with the Court’s permission following an application.

 

The Court set out the principles about how such an application by the Security Services might work (notably whether the parents would be served with it and allowed to attend and make representations)

 

 

  • My decision raises the possibility of the Security Service needing to make an application to this court for permission to disclose the material outside the Service. Whilst such applications are ordinarily straightforward, as set out above, given the nature of the Security Service and its manner of operation, an application in this context presents specific potential difficulties. In particular, the practice of neither confirming nor denying an interest or involvement means that it is unlikely that the Security Service will wish to give notice of such an application in circumstances where, in some situations, simply confirming or denying that an agency is interested in information or seeks information will result in risk that that agency will disclose its interest in, or alert suspects. In addition, the nature of the disclosure sought means that it is likely the Security Service will thereafter wish to adopt a closed procedure. Given the impact of these contentions on the Art 6 rights of the parties, they will need to be the subject of rigorous examination by the court. Within this context, I note that The President’s Guidance recognises that in cases in the family court concerning the issue of radicalisation the court may need to consider the use of closed hearings or special advocates. The Guidance further recognises the need to ensure that the Art 6 rights of all the parties are protected.
  • In seeking to ensure that the Art 6 rights that are engaged are properly protected, as well as fidelity to the common law principles of fairness and natural justice, I further note that both the domestic and European Courts have recognised that proceedings in relation to the intelligence services inevitably raise special problems and might not be capable of being dealt with in the same way as other claims (see Regina (A) v Director of Establishments of the Security Service [2010] 2 AC 1). In the case of R v Shayler [2003] 1 AC 247 Lord Bingham noted as follows in this respect:

 

“The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the court in relation to complaints made under article 10 and other articles under the Convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100–103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45–47; Esbester v United Kingdom (1994) 18 EHRR CD72, 74; Brind v United Kingdom (1994) 18 EHRR CD76, 83–-84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.”

 

  • There is in my judgment no need to set up any new or elaborate procedure to account for the particular difficulties raised by any permission application that may be made by the Security Service. Rather, it is a question of adapting the existing, well established procedure for such permission applications. The key adaptations will be the need to recognise the greater likelihood that the initial hearing will need to be without notice to the parties to the proceedings (although it will remain incumbent on the Security Service in each instance to justify a without notice application by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412) and the possible use thereafter of some species of closed procedure involving the deployment of special advocates when determining the application for permission.
  • As to the applicable principles for determining whether a closed procedure should be adopted (if requested), the Justice and Security Act 2013 s 6(11) provides for the making of a declaration in any proceedings (other than proceedings in a criminal cause or matter) before the High Court that the proceedings are proceedings in which a closed material application may be made to the court. No such provision is made however, in respect of proceedings in the Family Court. Further, the rules of court which govern the determination of an application for such a declaration, and any subsequent closed material application are those set out in the CPR Part 82. By CPR r 2.1(2), CPR Part 82 does not apply to family proceedings and CPR Part 82 is not otherwise incorporated into the FPR 2010.
  • In the circumstances, whilst it would appear possible to transfer family proceedings to the High Court in order to secure for the court a statutory jurisdiction to consider an application for a declaration pursuant to the Justice and Security Act 2013 s 6 that those family proceedings are proceedings in which a closed material application may be made, absent the incorporation of CPR Part 82 into the FPR 2010 there are at present no procedural rules for determining that application or any subsequent closed material application in the context of family proceedings.
  • Historically however, and notwithstanding it being seemingly well-established that the fundamental principle that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party can only be qualified or overridden by statute, and even then only expressly and not by implication (see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 132 and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at [45]), it is clear that special advocates have been utilised on a limited number of occasions in family proceedings to deal with issues of disclosure of sensitive material (see Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048 at [31]-[34] and [112] and BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974 at [13] to [48]). In A Chief Constable v YK and Others [2011] 1 FLR 1493 at [112], whilst declining the use of special advocates in that case, Sir Nicholas Wall observed that “there will be undoubtedly be circumstances in family proceedings in which they are appropriate”. The President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016 contemplates the use of closed hearings and special advocates in family proceedings.
  • In the circumstances (and whilst there may remain an argument to be had as to whether the use of some species of closed procedure in the Family Court is permissible absent express statutory provision for the same, or in family proceedings in the High Court pursuant to the Justice and Security Act 2013 absent any rules of procedure governing the same having been promulgated) at any initial hearing of an application by the Security Service for permission to disclose the court will need to consider, inter alia, the following matters:

 

i) Whether the application for permission is properly made without notice in the first instance. The application should contain brief reasons for seeking to pursue the application initially without notice to the parties by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412;

ii) Whether the Security Service invite the court to determine the application for permission on the basis of a closed procedure utilising special advocates;

iii) Whether the application is appropriate to be dealt with by means of the use of a closed procedure utilising special advocates having regard to the guidance set out in Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048, A Chief Constable v YK and Others [2011] 1 FLR 1493 BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974, the President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016.

iv) Any further directions for the hearing having regard to the court’s decision in respect of the foregoing matters, again having regard the guidance in the authorities and Practice Guidance enumerated at (iii).

 

 

And here’s a photo of Rupert Penry Jones for Spooks fans  (gratuitous, yes, but I’m sure that a Margot Robbie tenuous connection will come up soon enough to balance it out)

 

Richard Armitage was good, but Rupert was THE GUY

Richard Armitage was good, but Rupert was THE GUY

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