SPLOOSH !

Posted on July 3, 2016 by suesspiciousminds

This is the Water Balloon Firing Squad promo video that I did for my book. In the video, I talk about one of the main characters, Robin, but I do so under a barrage of fire from water bombs, which hopefully makes the video more engaging to watch than if it was just me standing up and talking.  For one thing, will I make it to the end, can I keep my concentration and train of thought as I get splatted ?  And for another,  it turns out that water bombs if thrown very forcefully by a grown adult from point blank range explode with some considerable impact (and no, that will NOT be the way I conduct my advocacy from now on)

IMG_2691

 

 

What this is all in aid of is to promote and publicise my book, which if I get your support will be available to read in December.  I’m not sure that Graham Greene would have done it this way, but we live in different times now…

 

Hope you like the video – please share it, and please visit the Book’s website to support it.

 

https://unbound.co.uk/books/in-secure

 

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Surrogacy and exploitation and Facebook

Posted on July 1, 2016 by suesspiciousminds

This is a grubby and desperately sad case, which indicates that there urgently needs to be some proper system of regulation over commercial surrogacy  (which ought not to exist at all in this country but is doing so under the guise of ‘reasonable expenses’)   This case highlights how easily someone very vulnerable, whose financial circumstances were so stretched that she couldn’t afford phone top-ups might be persuaded by what in that context is a huge amount of money.   (Here £9,000. If you are on benefits, £9,000 is a LOT of money)

Z (Surrogacy agreements : Child Arrangement Orders) 2016

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/34.html

 

Here a baby boy Z, was born as a result of a surrogacy arrangement in 2015.  Z’s mother X, agreed to be a surrogate for a same-sex couple A and B.  The child was the biological child of A, but the eggs were provided through an anonymous egg donor. So X was the vessel for carrying the baby, but was not a biological or genetic mother to the baby.

The surrogacy arrangement was set up through a Facebook Group.

The applicants, who are a same sex couple, were introduced to X through a Facebook surrogacy site, which was run or administered by W and others, to provide a forum for the introduction of potential surrogates and commissioning parents. Although it is the applicants’ evidence was they were not members of the forum it was through that social media site that they were introduced to X. There is no screening of either surrogate or commissioning parents and no support available other than support from others involved with the forum. This court has heard, in this case and in others, that the surrogates were paid sums of money for their expenses at what was considered to be the “going rate”; which apparently varied from about £8,000 to £15,000. This unregulated form of surrogacy means that there are on the one side vulnerable surrogates, and on the other commissioning parents who are legally unprotected from unpredictable outcomes.

 

 

A and B had had Parental Orders granted in relation to twins, born in another surrogacy arrangement through a woman V.  Within 48 hours of the orders, they began making arrangements for another child through surrogacy.

 

Here are some of the things that the Judge said about V and the way that A and B had behaved towards her

 

  1. The applicants are a same sex couple who are in a civil partnership; they are both professionals, A an academic and B works for a charity as an advisor. Socially and economically they are in a much more secure position than X and much more affluent, although by no means wealthy. They are the parents of twin boys born in June 2013 by virtue of parental orders made in January 2014 by the Family Court. Within 48 hours of those orders being granted B started to make contact online to find another surrogate.
  3. The twins are the biological children of A and a known egg donor. They were conceived as a result of IVF treatment in the same clinic in Cyprus later used for the conception of Z. The twins were carried by V, a gestational surrogate. This first surrogacy agreement and the circumstances surrounding it are relevant as the applicants’ conduct was repeated in their agreement with X. Of particular note was their attitude towards the surrogate V which was mirrored later in their attitude towards X. The applicants ‘met’ V online or on Facebook in late September 2011, they knew very little about V relying instead on the views of L who was also involved in the surrogacy forum; what they did know was that V was in the process of what they called “matching” with another couple of commissioning parents but that that agreement was breaking down. There is no evidence before me that the reason for the breakdown was explored or that the applicants were concerned about it.
  5. Once introduced the applicants and V had become further acquainted online and arranged to meet in person. As was clear from the oral evidence of the applicants to this court the purpose and focus of that, their first meeting, was to sign the surrogacy agreement. A told the court in his oral evidence that the three had met in a services area in a “restaurant off the motorway in the West Midlands” and, that at the meeting which lasted 3-4 hours, they had discussed “the agreement and who we were”. They had signed an agreement at that meeting and that had constituted “matching”.
  7. It was abundantly clear from their evidence that A and B knew very little at all about V, her circumstances or her motivation for acting as their surrogate when they signed the agreement with her. L, who gave evidence before me, knew that V was in some financial difficulty because her phone had been cut off prior to the meeting or “match”. Money and payments were an issue between the applicants and V during the pregnancy and after it; as could be seen from electronic messages exchanged between them. L said, in her written statement, that V had “money trouble” throughout the pregnancy. It was known that V had separated from her partner at the time of the “match” so it would be fair to assume that she was, at the very least, more emotionally vulnerable than she otherwise might have been but neither of the applicants appear to have given this any thought and were firmly focussed on what she would be doing for them.
  9. In his oral evidence B, who told me that he had found V’s behaviour to be too demanding just after the twins’ birth, dismissed her need for his support at the time unsympathetically describing it as being “because of her hormones”. B was unable to demonstrate any understanding or empathy for a woman who had just given birth to twins, was in hospital alone and unsupported there or at home until he was pressed to do so. L was similarly dismissive and also gave a harsh unsympathetic description of V; who was described in a similar vein by all three witnesses; L, A and B.
  11. V was characterised by all three of them as “volatile” without any thought being given as to why she might be in an emotional, still less in a vulnerable, state. When considering their evidence about V in its totality I found the applicants to be dismissive of the considerable positive contribution to their lives she had made, at considerable physical risk to herself. She was unwell for the last three months of the pregnancy and required someone to live in at the end of the pregnancy to look after her own children. In their descriptions of V as a person they were largely negative and appeared almost wholly uninterested in her, rather, it seems, they saw her primarily as a service provider to whom they had paid £12,500.
  13. The applicants complained about V demanding too much attention from them after the twins were born and handed over to them. B said that she kept texting him when she and the twins were still in hospital after the birth, and that she kept wanting him to spend time with her. Both he and A saw this as unreasonable as they wanted to be with the twins who had to remain in hospital for some time for treatment. The applicants remained on speaking terms until after the parental orders were granted and it was part of the evidence before the court when the parental orders were made that they had an agreement with V that she would remain involved for the twins’ sake. By the time of this hearing they had “fallen out with her entirely“. The terminating event was, they claim, because she had failed properly to acknowledge the children’s first birthday. I find this evidence inherently contradictory as they also claimed they had found it necessary to limit V’s involvement as they found her to be both intrusive and demanding.

When the baby was born, X did not want to hand the child over to A and B (and you might get a sense of why later on) and that then led to private law proceedings to determine where the child should live.

 

The case was decided by Ms Justice Russell, who is very experienced with surrogacy and HFEA cases.

 

Firstly, and significantly, X was cognitively assessed and was found to have difficulties in understanding things and had to be helped during the hearing.

  1. X has been assessed by Dr Willemsen as having learning difficulties, which appeared to him to be congenital. Until she was seen by him and his report prepared, it would seem that neither her family nor her partner were aware of her difficulties although she had been perceived as different from her siblings and her peers at school, and her partner told me that while he was aware she was vulnerable he did not know just how vulnerable. X is aware of what she sees as her own short-comings and, as described by Dr Willemsen, will want to please people to hide her shame and embarrassment. X has difficulty in speaking up as observed by the guardian and confirmed by Dr Willemsen. Dr Willemsen told the court in his report that on growing up she has become more aware of her difficulties and this has been accompanied by self-doubt and insecurity; to deal with this she has sought isolation and did so from her partner during the pregnancy. Dr Willemsen, who gave oral evidence, reported that X “is a vulnerable young woman who is susceptible to influence and pressure from others. She gave a few examples where she felt she had not been able to speak out loud about her thoughts and feelings to the couple who asked her to be a surrogate.”
  3. Dr Willemsen emphasised that despite her difficulties she had been able to concentrate during their meetings (with half hour breaks) and that what was not affected was her “ability to be emotionally available. She was able to relay her frustrations, as well has her love for [her son with P] and [Z]. She was able to speak as openly as she could about her life and the course of events she had found herself in.”

 

If surrogacy were properly regulated, it is hard to believe that a person such as X could have been approved as someone who really knew what she was getting into or the emotional turmoil it might cause her.  It was not that her problems were so subtle that only an expert assessment could reveal them :-

 

  1. It is striking how the applicants did not seem able to see how vulnerable X was even at this stage. The guardian was almost immediately struck by it and on her behalf her counsel pointed out how many other people have commented on her vulnerability, over and above Dr Willemsen and the intermediary. The guardian said even on their first phone call she sensed that X was lacking in confidence and that by the time she had met X and spoken to her she believed she had learning difficulties. Everyone that the guardian had spoken to in August and September when she visited the area where X lives, to assess X’s support network, all commented on her vulnerability: they included the mid-wife; P’s mother who described the X as ‘naïve and gullible‘; P, himself, spoke about “how vulnerable [X] is”; X’s step-father described her as “gullible”; her own sister described X as “very naïve”; a family friend described X as lacking confidence.

 

Do we as a society, want someone who is vulnerable, naïve and gullible, being paid money to have a baby on behalf of someone she barely knows?  Let’s look at the circumstances in which the surrogacy agreement was signed

 

Although X had agreed to act as a gestational or “host” surrogate for the applicants, the circumstances in which agreement was reached and signed by X is a matter of some concern and one that I shall return to. The agreement was one found on-line and based on overseas commercial surrogacy agreements from the USA. The provisions and regulation of commercial surrogacy in the USA do not, in any real sense or detail, mirror the supposedly altruistic and non-commercial surrogacy in the United Kingdom. It was signed by X at a fast-food outlet at or near a railway station after a brief face to face meeting lasting less than two hours. X was accompanied by her young son and a young relative, no more than eighteen years old. X’s partner did not support the surrogacy although he did not object to it; as he later told me, he did not believe that it was for him to tell X what to do with her body.

 

By the time of the hearing, in considering whether a Parental Order could be made, the Judge had to look at whether X WAS consenting (she was not) and whether if she was consenting that she was doing so on an informed basis (she was not)

 

Legal framework

  1. The HFEA s56 (6) provides that a parental order can be made if the court is satisfied that the woman who carried the child (X) has freely, and with full understanding of what was involved, agreed unconditionally to the making of the order. I have to say that, in this case, even if X had given her consent I would not be satisfied that she had done so with a full understanding of what was involved. X does not consent freely or unconditionally so neither limb of s54 (6) has been met and there is no question of a parental order ever being made.

 

Looking at the pregnancy, it seemed that initially, there was a wave of enthusiasm from both sides about the arrangements

 

From the first few days the messages on Facebook, as described by Dr Willemsen, provide an illustration of the faux-intimacy that developed between the applicants and X. As he said “fairly soon an amicable, almost euphoric, atmosphere develops between people who hardly know each other. There is a shared excitement based, probably, on two very different realities. It is easy to read a great deal into Facebook (and email) messages.” It was his view, and one I share, that X was unable to put forward her opinions, just to say that she was “totally fine” when the applicants message that they are now “matched” and “totally fine” with an agreement that she had signed, although it is clear that she could not read or understand the contract she had signed. So little were they concerned about any protection for X’s position, moreover, that the applicants never even bothered to send her a signed copy. The applicants’ sole focus was on signing an agreement. There was little, if any, evidence in their messages of interest in X herself, just as there had been little interest in V.

 

But then look at how things soured  – and squirm as you read the attitude of A and B towards the woman who was carrying a child for them and her financial circumstances.

 

  1. The level of compensation or expenses which the applicants were willing to offer was, at £9,000, at the low end of the scale that is prevalent on the online websites and forums. From evidence I heard, and from the emails and electronic messages provided to the court, it would seem that this was the figure suggested to the applicants by W before it was suggested to X. In his oral evidence B (who was responsible for most of the communication) said that he assumed X was on benefits but admitted he was not sure, did not appear interested either way and certainly took no steps to find out. This presumption would seem to indicate that he expected financially vulnerable or impoverished women to be more likely to be putting themselves forward for surrogacy.
  3. In her messages X often referred to having problems using the phone and/or the internet because she had no credit, which should have revealed something of her straitened financial circumstances and economic vulnerability but this was not a matter ever taken up by the applicants. Nor is there any evidence that they considered, at any stage, whether a need for money might affect her ability to enter freely into any agreement. As commissioning parents entering into an agreement which can and does compromise the health of the surrogate they owed her a basic duty of care and did not carry out that duty or signal that they considered they had a responsibility for her well-being other than as a healthy surrogate for their off-spring.
  5. The applicants did not consider with X, or discuss with her, what she knew or understood about her rights or legal status in respect of any child or their legal rights and status. In his oral evidence B said he assumed she would know about such things from the Facebook forum. There is no evidence before this court that they had touched on the legal and ethical considerations that arise in surrogacy at all. They had not informed themselves of what professional support may be available to assist in successful surrogacy arrangements such as implications counselling; indeed when giving his oral evidence A did not know what it was. The sums offered, by way of compensation, for “contingencies,” such as £1,000 for a hysterectomy, were wholly inadequate and can only be taken as evidence of the low value that they placed on the physical and emotional well-being of the woman who acted as their surrogate. The language used by the applicants was unequivocally the language of the market-place; “the absolute maximum we could offer for each potentially happening would be £1000″. Their approach to X was, at the very least, potentially exploitative and they did little or nothing to ameliorate it

 

 

Neither applicant, in his evidence, was able to give more than a perfunctory account of their meeting with X in March 2014 or to recall anything of what she was like as a person. The meeting in the fast-fast-food outlet, near to the railway station they had all travelled to, was very brief. There were three children present, the twins and X’s little boy and a young man not much more than a child himself, who was X’s 18 year old nephew, and who acted as a witness. From their own evidence it was clear that the applicants discussed only those aspects of the agreement about which they were concerned. X did not, could not, read or properly understand the agreement and such was their self-absorption that neither applicant noticed, and in any case they did not see fit to go through the agreement with her to reassure X, or even themselves, that she understood it. Despite promising to send her a signed copy they only emailed the “agreement” to her several months later leaving her to try to read it on her phone – she does not have a computer. It is inexplicable how the applicants could have ever considered this meeting as an acceptable way to “get to know” the woman who would carry their children and consider that they had, even in the loosest sense, “matched”.  

 

 

Remember the twins commissioned from V ? And V being cut out of the twins life afterwards? Well, as V and X had both been members of the same facebook group, they were in communication with each other.

 

  1. In planning the trip to Cyprus the applicants were concerned with their own convenience, such as A going instead of B, who had had the bulk of the contact with X. B accepted in his oral evidence that they did not discuss between themselves or consider at all how X might experience the trip or how to make it comfortable for her. In his evidence A came across as seeming to believe that X should have been grateful for the trip, which, after all, they were financing. Their behaviour towards her was crass; they did not know that she had never been abroad before because they didn’t ask. They took no steps to ensure that she was comfortable or to find out from her what they could do to make her feel supported, and, above all appreciated.
  3. The trip was a very unpleasant one for X. In his evidence A spoke only of the symbolism for him of being present during transfer of the embryos and was either unwilling or unable to recognize how lonely or frightening the trip was for X. He came across as emotionally unavailable and entirely self-regarding.
  5. X was effectively excluded from discussions at the clinic; certainly she did not, on anyone’s account, actively participate in any conversation with the consultant in the clinic. It is understandable that X felt intimidated by A and his suggestion that he had helped her by holding her hand while the embryos were put inside her body is an example of the crass behaviour to which I have already referred. X, naturally, felt nervous throughout the trip and was not at ease with A. The food was strange and unpalatable to her and she felt even more isolated because she did not have credit on her phone. Why A did not see to it that she was able to contact her family and top up her phone is incomprehensible. To repeat what Dr Willemsen said, as fantasy met medical reality she felt used and deeply uncomfortable about the arrangement but she could not find a way of expressing her feelings because she was concerned that she might upset and displease the couple. She found herself caught in a conflict; in the words of Dr Willemsen “between maintaining the fantasy and facing up to reality. She must have felt very alone at times.”
  7. The procedure in Cyprus had a huge impact on X. She had never wanted to carry two embryos and later told W that she did not say anything to the applicants as she did not want to let them down. She was both scared and anxious about it but believed the applicants when they told her that “probably only one would work.” X’s relationship with the applicants deteriorated as the reality of the uncomfortable and intrusive IVF procedure and the pregnancy took hold and she began, increasingly, to see herself as being used. Her reaction at the time has been graphically described by Dr Willemsen; as her emotional state and responses are essentially subjective I accept his evidence, and, furthermore I consider that the way that X responded to her treatment by A and B was entirely predictable. The fact that her own difficulties made her more vulnerable to suggestion and pressure being put on her does not in any way detract from her reaction, but it made it more difficult for her to stand up to the applicants and tell them that she no longer wanted to proceed. She told Dr Willemsen that she had had doubts before the trip but her experience while she was there intensified her feelings of doubt and uncertainty and she felt used.
  9. It was from then that she had started to look for a way out of the agreement. It is clear from the messages that she sent in late October 2014 that she felt worried about having twins “how scairy twins lol xx” and … “my partners like its gunna damage your body blah blah…” to which L, who she was in touch with online, replied “no it wont [sic]”; a response, which while might have been meant as reassuring, was patently untrue. The applicants had not arranged life insurance as agreed despite the agreement stipulating it would be arranged before pregnancy and X became so worried, that this issue was revisited 4 days later, when, in early November 2014, W emailed the applicants about arranging a scan for X and X messaged A “I would like to get insurance starting today please, as it should have been done befor we [sic]got pregnant xx”.
  11. Then in mid-November V was told by L that X was the next surrogate for the applicants. When A became aware of this two days later he sent a message to W about V saying “she can turn really nasty” A sent a message to X telling her “to try not to get stressed and ignore nasty msgs we had such good news today with the heartbeats lets focus on the future”. He clearly had not thought about the effect that V might have on X when she would come to realise that they had deliberately withheld information from her about the poor relationship that had developed between V and the applicants during their “journey”. His messages are further evidence that the applicants had sought to ensure that V did not find out about the second pregnancy to stop her from putting any surrogate off entering into a surrogacy agreement with them, not, as they said in their evidence, to avoid confrontation with V.
  13. Over the next week in November X received several messages from V in which she complained that the applicants had not paid her fairly; that she had been ill during and after pregnancy with the twins; and that they had treated her badly. Unsurprisingly this increased the fears X already had about her agreement with the applicants. The standard response from the applicants and from L was to minimize the concerns by repeatedly blaming V and saying, amongst other similar epithets, that she was “bonkers”. A then sent X a message saying ‘its sad but I’m reconciled now to having no relationship’ with V which, far from reassuring her must have sent the unspoken message to X that she, too, could be cut out of any child’s life in the future.
  15. In their oral evidence both applicants showed limited if any real understanding of the various factors which had undermined X’s confidence in the agreement and led her to consider a termination. Instead I was left with the clear impression that they seemed to expect her to be grateful for acting as their surrogate rather than the other way around. From the messages filed in the court bundle it is clear that there were emotionally intense exchanges from V, W and others on the forum to X. Later in November 2014 B travelled to be there during a scan and saw X for the first time since March 2014 (when they met at the fast food outlet to sign the agreement). They do not appear to have discussed V or what had happened between them. X’s anxiety had increased and in late November she asked V to speak to or text her sister. It was around this time that she decided to seek a termination and turned to W for support.

 

 

 

In the event, she didn’t have a termination, but she did tell A and B that there had been a miscarriage. The woman running the Facebook group, W, doesn’t come out of this judgment terribly well.

 

Miscarriage, birth and the role of W

  1. Although there is no evidence before the court to establish that W is an agent or runs an agency it is clear that she has had a very strong interest in linking surrogates to commissioning parents and being involved in surrogacy. Precisely what her motivation for taking on this role is not something that this court is in a position to decide. As can be seen from the messages that passed between them W offered to “link” or introduce the applicants to X and repeatedly told them she had many other contacts and options for them should the “match” not work out. W’s influence over X can be seen in her successful attempt to persuade X not to have a termination and W accepted, in her evidence, that she was instrumental in that decision.
  3. Although W has tried to insist that she did not want to get involved in things which did not concern her, she actively and deliberately placed herself at the centre of the crisis that X was experiencing and which unfolded on the Facebook site over V in November 2014, and which, in turn, lead to X deceiving the applicants. When W gave oral evidence before me she was by turn defiant and defensive; she was unsympathetic to X and sided with the applicants who she referred to as “the boys“. W accepted that she had encouraged X to tell the applicants she had miscarried and gave as her own motivation for doing so her determination to ensure that there was no termination. She told me she was aware that the applicants’ relationship with V had ended badly and said that when X complained to her, for example about the life insurance not being in place, she had begun to believe that V might have been right about the applicants as there were now two surrogates with complaints about them.
  5. It remains unclear from W’s written statement or from her oral evidence why she later changed her mind, took against X and decided to inform the applicants that she and X had deceived them about the miscarriage. I accept the submission made on behalf of X that W seemed personally to invest in continuing the pregnancy and then disclosing that X was still pregnant to A and B; she had no reason to involve herself to this extent apart from her own personal gratification in a sense of power or exercise of a controlling influence over the lives of others with whom she was so singularly unconcerned. At first, as can be seen from the messages exchanged between them, W urged X to carry the child rather than terminate a pregnancy; she explained to X that she was the legal parent, as X had thought she would go to prison if she did not hand over the baby at birth (another example of how little X had understood her legal position and the effects of the agreement). There can be no doubt that W can be characterised as manipulative, just as there is no doubting that X was easily led. W’s messages were directive and it was she who suggested to X how she should lie to the applicants, going as far as to say “make sure you get paid first”.
  7. That W was duplicitous is obvious from her conduct; on the one hand she encouraged X to deceive the applicants, and some of the comments she made about A and B were vicious and unkind; and on the other having convinced X to keep the baby she then told the applicants about the pregnancy while pretending to X that she was supporting her. In what Ms Fottrell described as a particularly cruel exchange about X’s inability to afford a lawyer in any court proceedings she messaged A “lets hope she xant afford a solicitor if she cannot even afford credit on her phone! Xxx”. A’s response of “isn’t she a joke, [W]!” exposed the contempt in which he held the woman who had gone through a very difficult pregnancy at his behest, whether or not she had ended up trying to deceive him. This is in contrast to X, who has continued to seek to please the applicants, as evidenced in her readiness to agree to extended contact whenever it has been suggested to her and to ensure that Z has had an opportunity to develop a relationship with his biological father.

 

[The Judge doesn’t say that these messages were vile, but my personal view is that she would have been entitled to do so. You can all form your own personal views, I’m sure]

  2. While W’s manipulation of X was calculated and had a direct impact on her, the continued inability of A and B, in their evidence before this court, even to consider that their conduct may have had something to do with the manner in which X had reacted to them is noteworthy, and in keeping with the air of victimhood on the one hand and sense of entitlement on the other trailed throughout their written evidence. It was palpably evident that A seemed to feel he had ownership of Z and that X was merely a gestational surrogate, a mere vessel, with no rights over the child she was carrying and none over the child when he was born. Throughout these proceedings as can be seen from their reaction to the guardian’s recommendations about contact and other matters concerning Z’s care both the applicants struggled to accept X as Z’s mother; the woman who carried and gave birth to him. It was not until they gave oral evidence that there was, reluctantly, an emerging acceptance of the importance of that role in Z’s life.

 

 

Like me, you might well be very relieved that the view of the Court was that X, with help from her partner and support, should keep Z and that Z should not be moved to A and B.  Z will have contact with A and B one weekend every two months.

There are some massive lessons to be learned from this case – treating people with kindness and respect is much more likely to result in a workable surrogacy arrangement than treating them as merely a ‘vessel’ and the arrangement as a commercial transaction or purchase; that if surrogacy agreements go wrong they can take a great deal of time, heartache and money to unpick and put right, and that surely we need some proper form of protection so that someone like X who was naïve, gullible, easily led, vulnerable and sufficiently poor that she had difficulty in even keeping credit on her phone is not exploited or manipulated by others who don’t have those vulnerabilities.

 

 

 

 

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Ellie Butler drawing together some strands and discussion

Posted on July 1, 2016 by suesspiciousminds

This post is a collaboration between myself, Lucy Reed of Pink Tape, Sarah Philimore of Child Protection Resource and Louise Tickle who is a freelance journalist – you have probably seen her pieces on family Justice in the Guardian.

 

You can also read it here

Ellie Butler – drawing together some strands and discussion

 

Several family lawyers have been discussing this case on Twitter, and it was suggested to us that it might be helpful to draw together a document with some important questions and our answers. We won’t necessarily agree on everything, but even our disagreements might help with the debate.

This post is a collaborative post to which a number of people have contributed. We would welcome others responses to the specific questions we’ve set – email info@transparencyproject.org.uk with your replies.

We are Lucy Reed (barrister and author of the Pink Tape website www.pinktape.co.uk)  Sarah Phillimore (barrister and author of the Child Protection Resource website – for a discussion of the principles the courts must apply when trying to find out in family cases how a child has been hurt, see this post), Andrew Pack  (local authority lawyer and author of the Suesspicious Minds website www.suesspiciousminds.com) and Louise Tickle, freelance journalist writing for the Guardian newspaper.

On the evidence that Hogg J heard at the time, what do we think about the finding that the father didn’t cause the shaking injury to Ellie?

Andrew Pack:

When I read the judgment about the shaking injury at the time, it looked to me like a solid and fair analysis of very complicated medical evidence. What causes that sort of head injury in infants is very complex and very controversial, and medical science is moving on all the time. Doctors in this field are talking about it all the time – a decade ago, the medical consensus was that these injuries could NEVER be caused by birth trauma and now we now that birth causes these bleeds on the brain (albeit to a lesser extent) in 50% of births. Reading the Court of Appeal decision in the criminal case, where the conviction was overturned, they highlighted some really unusual aspects about this particular case which would have given more doubt than is usual even in this very controversial field – Hogg J then had added to that the fresh medical evidence about the cyst, and whether that would have been a causing or contributory factor.  I think that the Court had the benefit of the best experts around, arguing both sides, and all of the evidence, and making the finding that the LA had not proved that it was more likely than not that father shook the child was the only safe one to make.  One might argue that the Judge did not give sufficient weight to father’s criminal history of violent behaviour and whether that might have tipped the balance if it was very finely balanced. Reading her analysis, I don’t think that she viewed the evidence as that finely balanced.  She was, on the evidence, confident that father had not done this.

Sarah Phillimore:

I agree with this. I don’t think the Judge can be faulted for how she treated this evidence.

Lucy Reed:

I also agree. The judge heard a large number of the most eminent experts in their respective fields, in some cases several from a single discipline – ophthalmologist, ENT, paediatrician, radiology, neuro-radiology, neuro-surgery…She also heard the evidence of the parents, which she took a particular view on – she thought the father convincing. The law is : if, having heard all the evidence, she was unpersuaded that it was more likely than not that the injuries were inflicted she should determine the infliction not proved – and exonerate the father of those acts.

What do we think about the exoneration speech and letter?

Andrew Pack:

As a matter of law, once the Judge has found that the LA didn’t prove their case about the shaking injury the legal finding is that father did NOT do it. Professionals working with the family would have been told of that legal finding and that the father could not be treated as a risk as a result of the head injury/shaking injury. The Judge clearly felt that father HAD been exonerated and that he had NOT caused the head injury, and her language reflected, I think, her view that the removal of Ellie and his imprisonment had been a miscarriage of justice. From the Serious Case Review, I think you can see that the strength of language that she used made professionals feel that they were being given the message of ‘back off’ and the parents felt that they were bullet-proof. That may have made professionals feel that when they were encountering behaviour that they found concerning they were powerless to act. I think it was a bit too strong at the time but not wildly out of order, and of course with the benefit of hindsight, it was far too strong and could have been couched more carefully – that there were other residual issues about the father that still presented a risk.

Sarah Phillimore:

This is the issue that troubles me. Yes, if there was no evidence that he caused the injuries in 2007 on either the civil or the criminal standard of proof, then as a matter of fact, no one could say that he did. But this was a man with – as I understand it – a clearly documented history of violence, who had served a three year prison term? ( I think – I have not been able to re-read the 2012 judgment as I understand it was removed from publication on line and has not been returned.). I do not know how that history was presented or what weight the Judge put on it. But, in the light of that history, and that the LA were clearly justified in being worried about the initial injuries caused to Ellie when she was a baby, I do not understand why the Judge thought it was appropriate to remove the LA from further oversight of this case and require that a letter setting out Butler’s ‘exoneration’ was sent to other agencies. The Judge found he had NOT hurt Ellie when she was a baby. She did not make findings about his propensity for violence and his criminal history. It may not have been appropriate to do that, particularly if the LA had not relied on these issues to prove their case. BUT. They were clearly part of the background and should, in my view, have given pause for thought before going down any route of widely publicised ‘exoneration’.

This issue also brings into focus some more general concerns about the standard of proof in care proceedings being the ‘balance of probabilities’. I appreciate the arguments that it is not always compatible with the need to protect children, if we insist on proof beyond a reasonable doubt. However, my concerns arise about the subsequent status achieved by a ‘finding of fact’ on the balance of probabilities. The courts are clear that a binary system operates; something is true or it is not. Therefore a finding of fact against a parent can determine the whole course of the proceedings. Parents are required to ‘accept’ the findings with little time for reflection, or risk the LA – and the court – ruling them out entirely as lacking ‘insight’. On serious and life changing matters, I do not feel comfortable with ‘truth’ being established as 51% more likely than not. As the Judge was operating in Butler’s case on the ‘balance of probabilities’ this also should have given some pause for reflection before being keen to ‘exonerate’ him and establish him as an entirely safe and responsible parent.

Lucy Reed:

There is a question as to how the exoneration letter came to be drafted and how it came to be expressed more broadly than the judgment itself. I’ve raised this in my blog post on Pink Tape here. The main issue for me though is the interpretation / response to the exoneration. Ben Butler was exonerated of the physical injuries. The LA elected not to appeal or to argue that he was culpable in any other way. The suggestion in the SCR is that professionals were paralysed by the exoneration. Some time passed before the LA conceded the balance of the threshold, and decided not to pursue findings on any broader threshold risks – from the judgment it is easy to infer that the LA took the reasonable view that to pursue such findings would have served no purpose, partly because the subsequent assessment of the parents was positive and this made it unlikely that the judge would find the threshold crossed on the basis of behaviours that on one view were attributable to the parents being wrongly accused and unlikely (based on the assessment) to endure. The more I consider this point the more I think it would be very illuminating to see the assessment report itself.

I don’t fully understand why, after proceedings had concluded and Ellie returned home, the exoneration should have made professionals feel like the couldn’t / shouldn’t pursue matters of concern. In any event, it appears (based on the SCR) that that subsequent events and information were assessed as not being sufficient to cross the threshold to move into child protection / proceedings, so I’d query what ongoing impact the exoneration had.

Louise Tickle:

I agree with Sarah on this. The psychological impact on on professionals working with Ellie of that letter could not have been anything but one of profound reluctance and fear of stepping in, and being torn to shreds by their own managers and in court if Butler and Gray had protested – which of course they would have done, and I believe in the case of the school raising concerns, did. This was a very senior judge, the LA had fought very hard, and lost. Where, really, were they to go at that point, without fresh evidence of harm reaching a high threshold – and how were they to be able to make assessments given total lack of access, and fear of what would be forthcoming if they were to seek such access?

Were the other issues that could have amounted to threshold properly dealt with, or did the non finding on shaking dominate?

Andrew Pack:

I think this really is the million dollar question. In the first fact finding hearing before Hogg J, the case was all about the head injury, and all of the evidence called and 95% of the documents looked at would have been about that. Having failed to prove that, there was of course still the convictions for violence to consider. Those offences were not against children, so they would not automatically mean that father would have posed a risk to a child, but it was material which needed to be considered in detail in an assessment and could have satisfied threshold.  That, coupled with the child’s presentation around father and the grandparents evidence COULD, have led to a decision that despite the finding on the head injury, Ellie wasn’t going to be moved from grandparents.  I would like to see the threshold document with the findings sought, and to have more clarity about which ones the Judge was specifically asked to make findings on and heard evidence about, and which were simply not put to her as a result of her very clear finding on the head injury and the direction of travel.

Sarah Phillimore:

I agree with this. If this was presented as a ‘single issue’ case – i.e. did he hurt Ellie as a baby, that would seem – with hindsight – to be a mistake. But of course, Judges can only decide the cases before them.

Lucy Reed:

The press coverage at the time focused heavily on the physical injuries but other matters of concern were known about and before the court, but were not the subject of findings. It is arguable that the other matters could have potentially amounted to threshold but the fact and force of the exoneration may have affected decision making about whether it was going to be a good idea to pursue them. The critical question is whether the other matters were presented and pursued and if not why not – and whether any thought was given to reframing threshold after the exoneration. Following the ISW assessment the balance of threshold was crossed. Although we don’t have the threshold document itself it appears from the judgments that the fact of the fathers convictions was not pleaded as a threshold risk in itself. The question of suspected domestic violence / control in the parents relationship was raised and evidence was heard – but the judge made no ruling on this evidence and adjourned off for further assessment. By the time the matter returned to court the LA were not pursuing findings and nobody seems to have asked the judge to record or make findings in respect of this evidence. The first judgment records that evidence was heard but does not record its extent or cogency. It is reasonable to assume that if the evidence was compelling and of high concern this would not have been dropped and would have been the subject of judicial comment or findings. But we don’t actually know.

Was the decision to have Independent Social Workers (ISWs) deal with not just the assessment of whether Ellie should move from her grandparents but the actual social work of the move unusual, and did this make a difference?

Andrew Pack:

The Judge was clearly taking into account that during the earlier hearing, the parents had been substantially criticised by the Local Authority for not accepting that father had injured Ellie and the working relationship was very strained. Having made the finding that father was exonerated, it was put to her, and she agreed, that any assessment by the Council would be ‘doomed to failure’.  That’s strong, but I think it wasn’t unreasonable to ask for the assessment as to whether Ellie should go home to be done by Independent Social Workers. What is much harder to understand is why those ISWs were also charged with doing all of the direct social work with grandparents, Ellie and parents, to prepare Ellie for the move and do the social work visits. The Serious Case Review shows that that agency were not given clear background information and essentially just had the judgment exonerating father – was it clear enough to them that this man had a history of violent offending? Might that have made them more concerned about the visits where they now report that he had been angry and unable to calm down for 10-15 minutes for some of these visits? Or, in the absence of knowing about his convictions for violence, did they assume that this was justifiable frustration about the process from a man who on that judgment had lost his child and been wrongly sent to prison and was still not reunited with his child?  I think that consideration should have been given to a fresh social work team within London Borough of Sutton doing the social work (ISW to do the assessment is fine) or if that wasn’t possible, perhaps a neighbouring authority.  ISW assessment work and direct social work with a family are very different. I think that the Judge got that wrong. At the time, I’d score that decision a 4 out of 10 (it was unusual and a bit strange at the time) and obviously in retrospect it was a major factor to the Court not having the proper evidence about Ellie after the fact finding judgment.

Lucy Reed:

I agree with Andrew. There is a big difference between an independent social work assessment and an independent agency taking over social work responsibility. I’m not sure whether the court intended them to perform this broader role or whether this got mixed up in the process of instruction or at some later stage – perhaps the LA / professionals took the view that they were being ousted for all purposes. It’s unclear whether the ISWs considered themselves to hold this broader responsibility (I’d say doubtful). It’s concerning to learn that over this period the Guardian was off sick and no cover provided. This may well have had a significant impact on the way in which the assessment was carried out and monitored.

Why did grandparents have to pay £70k for legal costs, can anything be done?

Andrew Pack:

The grandparents had parental responsibility by virtue of the Special Guardianship Order, so if these had been care proceedings (the Local Authority wanting to take Ellie away from them) they would have had free legal representation. Because instead this started as a rehearing of a fact finding, and then proceedings primarily regarding a younger sibling not cared for by the grandparents, the grandparents didn’t get legal aid, had to pay their own costs and eventually ran out of money. Grandparents representing themselves, up against two of the best family law Silks around, and a Judge who was viewing Ellie’s case as a miscarriage of justice to be put right – it certainly wasn’t a level playing field. I would strenuously argue for reform of the law here – these grandparents had been caring for Ellie for a long time and doing it well, and if they were to lose her against their will and what their eyes and ears were telling them was right, then they should have had lawyers to fight the case.  A starting point would be for the Ministry of Justice to write the grandfather a cheque for the full amount of his costs – it is bad enough that he lost Ellie, he shouldn’t have lost his life savings too.

Sarah Phillimore:

I agree with this. Ellie had lived with them since she was a very small baby. It is simply wrong in a civilised society that they were left in this position. It wasn’t a level playing field.

Lucy Reed:

This is a problem for grandparents AND parents – even where a parent or other adult has care of a child, public funding is means and merits tested for anything other than the main care proceedings. So, applications to discharge care or placement orders, to appeal or to apply to revoke placement orders or oppose adoption orders, standalone applications about special guardianship or any other private law application – no matter how complex – are means and merits tested. The threshold to be ruled out on means grounds is low so it is easy to be ineligible whilst still being unable to pay.

Judicial accountability and unwillingness to participate in the serious case review (SCR).

Andrew Pack:

I don’t think that the judiciary should routinely participate in Serious Case Reviews. Judicial independence is very important, and the way that SCR’s are conducted, with all parties being very honest about what happened, what could have happened differently, what lessons can be learned, don’t sit entirely comfortably with the judicial role, and the need for them to be independent and to NOT be a part of the professional agencies charged with child protection. However, in a case like this, where the child dies in a placement that the Court have not only sanctioned, but sanctioned in the teeth of opposition from grandparents and social workers, I think that it was unwise for the Judge not to at the very least have spoken with the authors of the Serious Case Review. There needs to be some mechanism for the most exceptional cases of this kind. Likewise, the family judiciary knew of this case 2 years before the verdict – yet the Judge was still given difficult family cases to decide, and they had no press statement or comment. It gives the distinct impression that the judiciary aren’t scrutinising this decision and accepting any part in this tragedy, and that’s a bad impression to give to the Press and public.

Sarah Phillimore:

I agree with this.

Lucy Reed:

On a human level it would be immensely helpful to hear the judge’s view in hindsight, and an explanation of what was going through her mind. But I agree that there are sound constitutional reasons why that should not happen. It’s really important that a judgment is an authoritative and final explanation of a decision or a set of findings. That’s an important protection for adults and children and I think that if alongside a judgment there is a public rumination about what might have been wrong about a judgment then the judgment loses its specialness and the authority of the court is lost. I think it’s right that where a judgment is wrong it can be appealed, and where material new evidence arises a finding can be revisited. That happened in this case when new medical evidence pointed towards a miscarriage of justice against Ben Butler, and of course with hindsight many people are now reappraising the exoneration finding.

For me though the corollary of saying that a judge should not participate in an SCR is that there must be meaningful transparency in terms of the judgments and process. We don’t have that in this case because the judgments have been pulled and the public can’t appraise the judgments or case documents against the SCR. Having seen some of the judgments in this case it seems to me that there is some tension between some of the accounts given and views expressed in the SCR and in media reports and the content of the judgments themselves. I think that constitutionally the public need to have access to this material.

Louise Tickle:

I don’t agree with this. I cannot see why the judiciary should have zero accountability when every other actor in the case has had to answer for their decision making and judgement calls. I think, in response to Lucy’s point, that the authority of the court is only as good as the public’s confidence in it. I do not think public confidence in the judiciary has been increased by this case, but worse, I think it has been even further damaged by the position taken by the President that a judge simply will not enter into the processes of examination as to why she acted in ways that went, in some people’s view, far further than was required, on a standard of proof that can be hardly said to truly exonerate anyone. Particularly anyone with the previous, safe, criminal convictions for violence that Ben Butler had. Overall, I cannot see why any part of our society’s agencies should be above questioning and scrutiny. A child has died. The ‘specialness’ of the judiciary is an irrelevance and an abuse of privilege in this extreme circumstance, if there is something to be learnt by other judges and indeed the rest of us. It is not about demanding heads on plates – it about Hogg’s thought processes and levels of risk aversion and judgement relating to facts and evidence she was appraising that could, if it were to be known, be reflected upon, considered, discussed and learned from. We do not get better understanding of failures by refusing to look at what let up to them. And judges have vast powers. The more power you have, the more accountable you should be when something very terrible goes wrong.

What pieces of information are we still lacking? Should for example suitably anonymised medical reports be in the public domain so press and public can see how complex and difficult the medical evidence is?

Andrew Pack:

I think we need the judgments available to the public and put in one easily accessible place – the Court of Appeal criminal judgment, the fact finding judgment from Hogg J, the second judgment from Hogg J where she decided that Ellie would live with Jennie and  Ben, and very vitally the judgments from King J about Ellie’s sibling after Ellie had died. At the moment, we don’t know whether King J reconsidered Hogg J’s exoneration at all, or whether it proceeded just on the evidence about Ellie’s death. Nor do we know what the outcome was for Ellie’s sibling– of course we shouldn’t have name or details of the sibling’s address, but I think there’s public interest in whether the child was placed with the grandparents and if not why that was decided. I think that unusually in this case, there is justification for the entire court bundle to be available to be seen. Obviously one has to be careful about any photographs and we don’t want prurient rubber-necking, but there is such public unhappiness about this decision that seeing the medical reports would, I think be justified.

Sarah Phillimore:

I agree with this.

Lucy Reed:

I agree also. I would in particular like to see skeleton arguments or written opening / submissions presented to the court at the rehearing, threshold documents filed at particular times, position statements and orders.

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Pop down the pub for a pint and a Supervision Order

Posted on June 30, 2016 by suesspiciousminds

The Daily Mail are reporting that “Britain’s TOP Family Judge”  has given a speech suggesting that we will be moving away from specialised and dedicated Court buildings to Judges hearing cases and making decisions in “pop-up” Courts, and that this might include pubs.

Quick note – whilst this is an ACE story, I think it is one for the “EU bans bendy bananas” file.

 

http://www.dailymail.co.uk/news/article-3667375/Two-pints-lager-packet-justice-Pop-family-court-hearing-place-pub-says-family-judge.html

Sir James Munby, president of the High Court’s Family Division, said there was a need to move away from judges holding hearings in a ‘palais de justice, sitting on an enormous throne’.

The 67-year-old judge said that courtrooms in the future must be provided ‘where we need them’, and these makeshift courts could be held in buildings such as pubs or town halls.

According to The Times, Sir James said: ‘We must get away from a judge sitting in a palais de justice, sitting on an enormous throne with one or two people sitting on either side.’

The report by legal editor Frances Gibb told how Sir James suggested that litigants could even participate in power of attorney matters with online video links ‘from their kitchen tables’.

 

[I can’t see anywhere in their piece a quote from either Sir James or Frances Gibb that mentions the word ‘pub’  – the absence of speech marks around the  ‘in buildings such as pubs or town halls’  makes me suspicious]

Note of caution. I know some of you may find this hard to believe, but the Daily Mail has occasionally been known to exaggerate a little.  Their source seems to be the Times, which is behind a paywall, so I can’t check that.

The speech by Sir James Munby was given at a Conference for Solicitors for the Elderly.  I can’t find the text of this speech available on line, and it might well be that a grain has been expanded into a full-blown haystack.

 

Quite possibly, since I see that this EXACT same scare story was around in March, and was debunked. Just with a different Judge having been claimed to have said it.

http://www.solicitorsjournal.com/comment/pop-courts-%E2%80%98hearings-%E2%80%A8in-pubs%E2%80%99-story-was-storm-%E2%80%A8in-pint-glass

 

But it was an off-the-cuff comment by Lord Thomas that brought this proposal to wider public attention. During a meeting of the Commons justice committee, Conservative MP Victoria Prentis asked him: ‘Would it be possible to have court in other places, possibly that comes to us once a week or once a fortnight? Hold it in the local civic building, or the hotel, or the pub? Is that something you’re keen on?’

‘Yes,’ replied Lord Thomas. ‘I looked yesterday at reports and pictures of a judge who was experimenting doing family and civil cases and he was sitting behind trestle tables in a public room to which the public had access and his account of it was that it went very well. I think there are two problems: one is to make sure that wherever we sit there’s access to IT, but that shouldn’t be difficult these days, and the second is security…’

 

You will see here that the question puts pub in a list of possible venues, and the answer doesn’t mention pubs at all. (I personally would have answered with ‘absolutely NOT pubs, but civil buildings quite possibly’ and I bet that’s what is behind this story.  If it is not, and we ARE going to be doing care proceedings in the Dog and Duck, then as I am feeling supersonic, please give me gin and tonic)

Thanks to Richard Balchin for the sight gag, which I’ll now use…

 

A finely balanced weighing up exercise

A finely balanced weighing up exercise

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“So part of your position is that this court has no authority, i am a fraud and I and my colleagues should be executed?”

Posted on June 29, 2016 by suesspiciousminds

 

 

If you are unaware of the Indycamp story, it involves some litigants in Scotland who are asserting that Jesus is the rightful King of Scotland and thus they can’t legally be evicted from the grounds of the Scottish Parliament (which obviously has no jurisdiction)

 

There’s a great Lowering the Bar piece here

IndyCampers Not Allowed to Call Queen Elizabeth to Testify

 

about the Court’s refusal to allow the Indy Camp litigants to call Queen Elizabeth to be cross-examined. There’s also the lovely detail that they contacted 144 lawyers asking them to take the case and all of them ‘said they were busy’

 

Anyway, the headline of this piece is something that Lord Turnbull, hearing this case today actually said to the litigants in person during today’s hearing. There’s also a lovely exchange where Lord Turnbull says  “This witness statement is signed with the single word ‘Christ’ – can we talk about that for a moment?’

 

I strongly urge you to follow @BBCPhilipSim on Twitter, who is live tweeting from this hearing, no doubt with his fist stuffed in his mouth to stop himself crying with laughter.  It is a CRACKER. Right now. An antidote to all of the other bad news over the last few days.

 

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Court can EXTEND a Supervision Order after the original has run out

Posted on June 29, 2016 by suesspiciousminds

 

I disagree myself, but I’m not a High Court Judge, so my view doesn’t count.

For me, you extend something that currently exists, and if it no longer exists then you are applying for a new one not extending it.  You can extend the Victoria line, but you can’t extend Atlantis High Street.  You can extend Wayne Rooney’s contract at Manchester United, but you can’t extend Cristiano Ronaldo’s contract at Manchester United.  The word means ‘to add to something to make it bigger or longer’  or rather, it means that in plain English, but it doesn’t in law.

Anyway, I’m wrong about that, because the High Court has ruled on it.  If you let your Supervision Order lapse and no longer have one, you can still make an application to extend it.

 

A Local Authority v D and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1438.html

 

 

 

  • Having considered very carefully the very helpful skeleton argument of Mr. Lamb, which sets the case out, to my mind, conclusively, I am satisfied that the court’s power to extend a supervision order pursuant to Schedule 3, para.6(3) of the Children Act 1989 does not depend on the supervision order which is sought to be extended to be current or, for that matter, for an extension to have been made prior to the expiration of the existing supervision order.
  • In my judgment, an application to extend can be made properly after the supervision order has run out, so to speak, and there are, in my judgment, very good policy reasons why the statute should be interpreted in that way. These are set out in para.5.19 to 5.22 of Mr. Lamb’s skeleton argument. As he rightly says, supervision orders are entirely child-focused and will only be extended if it is in the child’s best interests. There are practical benefits, as he rightly says, to local authorities and to parents of an interpretation of the statutory words, which would enable the local authority to monitor the children’s progress whilst the supervision order has not run out without the need to rush back to court, and he rightly says, in para.5.21, the three-year limit to the extension of a Supervision Order prevents families having a sense of lingering uncertainty. So there are strong policy reasons for reading down of the words of the statute to permit the application to be made after the order has run out. Indeed, there is nothing in para 6(3) to suggest to the contrary.

 

 

So I am of the clear view, following the line taken by the President in Re X [2014] EWHC 3135, which was concerned with the seemingly unextendable term of six months referred to in s.51(1)(c) of the Human Fertilisation and Embryology Act 2008, that that should be read down in a way which is consistent with the interests of children as well as human rights. So following that line I reach the clear conclusion that I do and, in so doing, I am conscious that I am making a decision at variance with the obiter dictum of Lord Justice Thorpe in the decision of T v Wakefield Metropolitan District Council [2008] EWCA Civ 199, where, at para.20, he, in giving his guidance, was clearly of the view (although the point that I have to decide had not been argued before him in any depth) that the application for extension in fact had to be not only issued before the expiration of a current order but heard before the expiration of a current order. I have to say that I do not agree with that approach in the slightest.

 

(I am with Thorpe LJ on this, but as I’ve said, my view doesn’t matter a jot. Words now mean exactly what Judges choose that they mean neither more nor less, a la Humpty Dumpty. Apologies to those who have ever practised law in Birmingham, for whom the Humpty Dumpty metaphor might well bring about an episode of Post-Traumatic Stress, if they have had the ‘treatment’ )

 

Neither the King's Men nor the King's Horses are excluded from the pool of perpetrators

Neither the King’s Men nor the King’s Horses are excluded from the pool of perpetrators

 

I’m also grumpy because Mostyn J uses the same magic trick that the President used when he ‘interpreted’ s54(3) of the HFEA 2008 “the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”  to mean that they didn’t. Presumably rewriting the word ‘must’ in the statute to mean ‘can, but it’s not like they HAVE to, or anything’  and I didn’t like that decision either.

In the normal run of events, not much is going to turn on whether a Local Authority who want a new Supervision Order after the first one ran out have to apply for a fresh Supervision Order (though they have to reprove threshold there) or extend it (where they DON’T have to reprove threshold, the existence of the previous one is sufficient).  It saves the LA a few quid in the issue fee, the Order gets made or doesn’t get made, no big deal.

Although if a Local Authority obtain a Supervision Order on a 1 year old, and that lapses when the child is 2, Mostyn J’s decision here means that the LA CAN apply to extend that Supervision Order when the child is 11.  And they won’t have to demonstrate that threshold is proven, because you don’t need to do that for an extension. If they made a FRESH application, 10 years after the original threshold was found, they’d have to prove that threshold was met – they could point to the 10 year old threshold, but it wouldn’t be determinative.  Of course, the LA in EITHER scenario might have a hard job persuading the Court of the NEED for an order…

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Application to dismiss a Guardian for bias

Posted on June 29, 2016 by suesspiciousminds

Very rare application this, and one that should interest both professionals and parents alike.  It also raises important issues about the fine detail in the construction of a Position Statement at an interim hearing, particularly for lawyers representing the child.

 

QS v RS & Another 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1443.html

 

This was a case in the High Court before MacDonald J  involving international adoption – two people had adopted a child in Nepal, the girl now being ten years old and her ‘parents’ were British citizens. (I’ll drop the air-quotes from here on to keep it simple).  Her parents moved with her to Dubai, and applied for British Citizenship and obtained that for her.  The parents later split up and there was an argument as to whether the child should stay in Dubai with father, or be in England with mother. So it isn’t a run-of-the-mill care case, but some of the general principles applied by the Court and the issues it throws up are relevant.

The Court appointed a Guardian to make enquiries into the case and to represent the child in the proceedings.

As part of the process, the Court had directed the Guardian (who was a replacement for the initial Guardian who left the service) to file and serve a Position Statement commenting on the outcome of a meeting with T, the child.  This wasn’t the final hearing, nor the final Guardian’s report.

The Guardian’s position statement included the following :-

 

“The children’s guardian takes the view from talking to T and interpreting her wishes and feelings captured in her ‘How it looks to me’ submission annexed as MH1 that her family life is firmly rooted in Dubai and up until now this appears to have worked for her, even in the absence of M for three years”

Now, not all of the evidence had been received by that point, and it seems that some of the material which had also been directed to be produced by the parents and their representatives had not yet made its way to the Guardian.  In fact, looking at the end of the judgment, it seems that the Guardian’s Position Statement was drafted and filed BEFORE the due date, and thus ahead of the father’s evidence.  The Judge criticised that decision to file early and hence out of sequence.

The mother took the view that the Guardian, who would be in a powerful position to make final recommendations, had by giving that clear view of the case reached a decision and conclusion before seeing all of the evidence and that there was a perception of bias.

 

[I must briefly comment that in a EVERY set of private law proceedings I ever did for parents, my client always told me without fail having met the CAFCASS officer that the CAFCASS officer had taken against them and was siding with the other parent. Fifty per cent of times, when we got the report and it didn’t recommend what my client wanted, they would say “See, told you?” – the other fifty per cent they would say either “well, that surprised me” or “It just goes to show how strong my case is that even a biased CAFCASS officer didn’t dare go against me”.   Sometimes, there are valid reasons for being unhappy with a CAFCASS report – but actual evidence of bias is pretty rare.  When it is flawed, it is more likely to be as a result of shoddiness, lack of care, failure to double-check assertions or being rushed. Those things absolutely do happen, I’m afraid. ]

 

So mother applied to the Court to discharge the Guardian on the grounds of bias or apparent bias.

What’s the application in those circumstances?

 

  • FPR 2010 r 16.25 provides as follows in respect of the power of the court to terminate the appointment of a children’s guardian appointed under FPR 2010 r 16.4:

 

16.25 Court’s power to change children’s guardian and prevent person acting as children’s guardian

(1) The court may –

(a) direct that a person may not act as a children’s guardian;

(b) terminate the appointment of a children’s guardian;

(c) appoint a new children’s guardian in substitution for an existing one.

(2) An application for an order or direction under paragraph (1) must be supported by evidence.

(3) Subject to rule 16.24(6), the court may not appoint a children’s guardian under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 16.24(5).

 

  • FPR 2010 PD16A para 7.17 makes clear that where an application is made for an order under FPR 2010 r 16.25 the applicant must set out the reasons for seeking it and that the application must be supported by evidence.

 

 

The FPR (Family Procedure Rules) don’t go on to advise the Court on what criteria to apply when considering the application.

 

The Court therefore looked for guidance in the case law, to see what principles if any could be drawn from cases where Courts HAD removed Guardian’s or refused such an application.

 

When examining the almost identical provision in CPR 1998 r 21.7 dealing with the power to terminate the appointment of a litigation friend, Foskett J observed in Bradbury v Paterson [2015] COPLR 425 at [31] that the court’s discretion is a full one

 

[That’s a posh way of saying “It’s basically up to you Judge. Use the Force…”]

.

 

  • There are few authorities concerning the termination of the appointment of the children’s guardian. In Oxfordshire County Council v P [1995] 1 WLR 543, [1995] 1 FLR 552 Ward J (as he then was) allowed the application to terminate the appointment of the children’s guardian in circumstances where the mother had disclosed to the guardian that she had caused injuries to the child and the guardian was thereafter interviewed by the Police to obtain a witness statement from her to prove criminal charges arising out of the injuries, during which interview she disclosed the mother’s admissions without the leave of the court. Ward J concluded in respect of the guardian that “To encourage frankness on the part of the parents, she must be replaced even though her work in all other respects has been wholly admirable and my criticism of her is technical not substantial.”
  • In Re J (Adoption: Appointment of Guardian ad Litem) [1999] 2 FLR 86 the Court of Appeal refused an application to terminate a guardian’s appointment (made within the context of an application for permission to appeal an order appointing a guardian in adoption proceedings) notwithstanding that at a meeting following the cessation of her appointment in the care proceedings, but prior to her appointment in the adoption proceedings the guardian had expressed agreement to the proposal that the child be placed for adoption. In Re J Ward LJ held that it is untenable to assert that there is bias or the appearance of bias based simply on adverse views expressed in the course of long proceedings.
  • Further, in Re J Ward LJ agreed with the observation of the judge at first instance that, frequently, a children’s guardian holding a certain view can be persuaded under cross-examination to change their minds, that the “flexibility, rigidity, competence, balance, wisdom or other aspects of her conduct of the case are matters which the court will be invited to take into account when deciding whether to accept her evidence or recommendations” and that “Only in very rare circumstances can such factors disqualify a Guardian from acting at all“. Within this context I also note the observation of Sir Nicholas Wall in A County Council v K, C and T [2011] 2 FLR 817 at [117] that:

 

“The reasoning of the Cafcass guardian, whether given orally or in writing is always open to challenge in cross-examination, which can always go to method. Added to which, of course, where the report is in writing, good practice requires the investigative and reasoning processes to be set out. Once again, the decision is for the court, which is heavily dependent upon the quality of the advice it receives.”

 

  • Finally, in respect of Re J, at 88 Ward LJ agreed with the observations of the judge at first instance that the guardian’s function is not a judicial function. In short, and once again, the court and not the children’s guardian is the final arbiter of what is in the child’s best interests. Within the context of this latter point, it is important, once again, to note the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 at [32] that the children’s guardian is a witness subject to the same judicial scrutiny as any other witness and starts with no special advantage in proceedings as compared with other witnesses.
  • Finally, in relation to the authorities, in Re A (Conjoined Twins: Medical Treatment)(No 2) [2001] 1 FLR 267 Ward LJ held that the court can terminate the appointment of a Children’s Guardian where he or she has acted manifestly contrary to the best interests of the child, observing as follows:

 

“It was not necessary for the President, in order to dispose of the application, to attempt any comprehensive statement of the circumstances in which it might be expedient to remove a guardian ad litem, and the President wisely did not embark on that course. Neither r 4.10(9) of the Family Proceedings Rules 1991 nor the corresponding provision of the Civil Procedure Rules 1998 (r 21.7(1)) specifies any limit on the court’s power to terminate the appointment of a guardian ad litem or litigation friend. The President focused on the particular situation in which the court is asked to replace a guardian ad litem because the guardian has in the conduct of litigation taken a course of action (in which we include an omission), or is about to take a course of action, which is manifestly contrary to the best interests of the child whose interests it is the guardian’s duty to safeguard. If the guardian (or litigation friend) does act manifestly contrary to the child’s best interests, the court will remove him even though neither his good faith nor his diligence is in issue.”

 

  • Overall, it would appear that whilst the court’s discretion to terminate the appointment of a children’s guardian under FPR 2010 r 16.25(1)(b) is a full one, it is nonetheless a discretion that should be exercised sparingly, taking into account the imperative of the overriding objective in FPR 2010 r 1.1 to deal with the case justly having regard to the welfare issues involved. Within this context, where the grounds relied on in support of an application to terminate the appointment of the children’s guardian concern the methodology adopted by the guardian, the court may terminate the appointment where the guardian acts manifestly contrary to the child’s best interests or, but only in very rare circumstances, where the guardian has engaged in conduct that the court would ordinarily be invited simply to take into account when deciding whether to accept or reject the guardian’s evidence or recommendations.

 

The Court also considered the authorities on judicial bias  (our old friend Porter v Magill)

 

 

  • Where an allegation of apparent bias is made the test set out in Porter v McGill [2002] 2 AC 357 falls to be considered, namely “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased“. There is there is no difference between the common law test of bias and the requirement for impartiality contained in Art 6 of the ECHR (Lawal v Northern Spirit [2003] ICR 856).
  • As the terminology used in the test in Porter v McGill suggests, the question of apparent bias is ordinarily considered in the context of the conduct of a person or persons occupying a judicial or quasi-judicial role. Where the person whose conduct is in question is not acting in a judicial or quasi-judicial capacity it is inappropriate for the case to be approached in the same way as one would approach a person performing a normal judicial role or quasi-judicial role; a situation where the person is making a determination (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 35). In such circumstances, the position of the person whose conduct is the subject of criticism is better considered by reference to whether the person in question was under a duty to act fairly, the ambit of that duty, and whether they have acted with the requisite degree of fairness, rather than by reference to the concept of apparent bias (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 34). I pause to note that, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, a children’s guardian appointed pursuant to FPR 2010 r 16.4 is required to conduct the proceedings on behalf of child fairly.
  • Art 6 of the ECHR enshrines the right to a fair hearing. When considering whether a hearing has been fair, the court will look at the proceedings as a whole as well as any alleged individual deficiencies (Barberá, Messegué and Jarbado v Spain (1988) 11 EHRR 360 at [68]). The right to a fair trial guaranteed by Art 6 is not confined to the ‘purely judicial’ part of the proceedings. Unfairness at any stage of the litigation process may involve a breach of Art 6 (Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730).
  • Where it is said that biased or unfair conduct on the part of person under a duty to advise the court will lead to bias or unfairness in the proceedings, such a causal link must be demonstrated. In R v Gough [1993] AC 646 at 664C the House of Lords held that it must be shown that by reason of the adviser participating in the decision making process there is a real likelihood that he or she would impose his or her influence on the tribunal (see also R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts and Another [2012] EWCA Civ 472 at [132]).
  • In this case the children’s guardian has been appointed pursuant to FPR 2010 r 16.4. Within this context, the role and duties of the children’s guardian are set out in FPR 2010 PD 16A. As I have already noted, pursuant to paragraph 7.6 of that Practice Direction it is the duty of a children’s guardian appointed under FPR 2010 r 16.4 to “fairly and competently to conduct proceedings on behalf of the child”. Further, pursuant to FPR 2010 PD 16A paragraph 7.7 the children’s guardian must advise the court on, inter alia, the child’s wishes and feelings and the options available to the court in respect of the child and the suitability of each such option, including what order should be made in determining the application. Pursuant to FPR 2010 PD 16A paragraph 6.1 the children’s guardian must make such investigations as are necessary to carry out his or her duties.
  • Within this context, it is important to note the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 (a case in which the children’s guardian was appointed pursuant to FPR 2010 r 16.3) at [21] and [32] respectively that the children’s guardian is not a “neutral” party or participant in proceedings and that the children’s guardian does not have a “special” status within proceedings. Whilst the children’s guardian is required to proffer advice to the court, in doing so the guardian becomes a witness subject to the same judicial scrutiny as any other witness. The children’s guardian starts with no special advantage in proceedings as compared with other witnesses.
  • When the court is reaching its decision with respect to the welfare of a child it must consider all the evidence in the case including, but not limited to, the evidence of the children’s guardian. The court is the decision maker and must reach its decision by reference to the matters set out in the Children Act 1989 s 1 having regard to the totality of the evidence before the court.

 

I will pause there. MW v Hertfordshire 2014 says something very important – that the Guardian is just a witness like any other, and their evidence can be tested by cross-examination and they don’t start with any additional Brownie Points or judicial weight given to their evidence over and above any other witness. To which I would say that that’s a very fine notion, and I believe that it ought to be true, but it absolutely isn’t true in practice.  I’ll give you all a specific counter to that.

In the form given for Facts and Reasons, which is what Magistrates have to fill out when they are making a decision about a child, there is a specific section that says “Views of the Guardian and the reasons for the Court departing from those views if they do so”.   There isn’t a similar specific section asking the Court to specifically justify why they didn’t do what the mother asked, or the father, or even the Local Authority.  Every single social worker will tell you stories of how they got to the end of a case with a happy outcome where the child remains at home with parents and the Court were all over the Guardian  “I’d like to thank the Guardian for all of her hard work in this case” and the social worker doesn’t get a mention.  If Guardians who were previously social workers are honest, they will tell you how the experience of Court moved from being looked at as though you were something nasty on the sole of a shoe to being more or less the next living incarnation of the Dali Lama when they just move offices and become a Guardian.  This isn’t me having a go at Guardians – I think there are very good ones, and very bad ones and most of them fall on a spectrum well between those points, just as social workers. But MW v Hertfordshire’s lofty claim that a Guardian has no preferential treatment from the Court is a crock, I’m afraid.

 

I wrote about the Hertfordshire case at the time, here   (it was a Court of Appeal judgment that had LOADS of important stuff in it. It was like a selection box for law geeks. I’m afraid that I see the ‘no special treatment for Guardians’ being the bar of Turkish Delight in said selection box, that doesn’t get eaten or even taken out of the box because it looks inedible. Well, here, MacDonald J takes it out of the box and tucks into it, proclaiming it to be delicious.)

 

Guardians are not a ‘neutral party’ and don’t get brownie points

 

The Court’s decision on this issue, looking at the test for judicial bias and considering whether a Guardian is in the same sort of position or whether (as MW v Hertforshire suggests) they are just  a witness like any other and any issues of bias are simply to be taken up in cross-examination was this :-

 

DISCUSSION

 

  • I have decided that the mother’s oral application for an order terminating the appointment of Mr Power as T’s children’s guardian should be dismissed. My reasons for so deciding are as follows.
  • The mother’s allegation of “apparent bias” against the children’s guardian (as distinct from the court) as a ground for terminating the appointment of the guardian is in my judgment misconceived. The question of apparent bias falls to be considered in the context of the conduct of a person or persons occupying a judicial or quasi-judicial role. The role of the children’s guardian is not a judicial or quasi-judicial role. Whilst he is under a statutory duty to advise the court he is not the decision maker in these proceedings. In the circumstances, it is inappropriate for the mother to seek to approach actions of the children’s guardian in the same way as one would approach a person performing a normal judicial role or quasi-judicial role (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 35 A-C).
  • Notwithstanding that the mother’s primary contended ground of termination is, in my judgment, misconceived, in circumstances where, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, the children’s guardian must conduct the proceedings on behalf of T fairly when, inter alia, advising the court on the T’s wishes and feelings, the options available to the court in respect of the T and the suitability of each such option, including what order should be made in determining the application, it is nonetheless necessary in my judgment to consider whether the children’s guardian has failed to act with the requisite degree of fairness such that the termination of his appointment is justified in accordance with the legal principles I have outlined above.
  • Turning first to the specific passages of the Position Statement in issue, I am not able to accept Mr Perkins’ submission that the passage in the Position Statement lodged on behalf of the children’s guardian set out at Paragraph 11(i) above setting out his analysis of T’s wishes and feelings evidences a lack of impartiality on the part of the guardian. The views of the guardian are plainly grounded in statements made to him by T. The missing statement of the father could only have acted reinforce the conclusion reached by the guardian. The matters which Ms Hamade has been asked to consider do not go to interpreting the nature or significance of T’s wishes and feelings. The child’s guardian makes clear in his report that he spoke to T after she had met with her mother specifically to check whether her views had changed.
  • The position in respect of the passage in the Position Statement lodged on behalf of the children’s guardian set out at Paragraph 11(ii) above is, I accept, of greater concern. It is clear that in coming to his views the children’s guardian considered the position of the mother, both in terms of the quality of T’s attachment to her and her travel difficulties with respect to the United Arab Emirates and appreciated that the matter remained subject to final determination by the court. However, statement that “The children’s guardian takes the view that T has suffered enough change and suggests a formula of arrangements that add, expand and compliment the advantages that accrue to her living with F in Dubai” does have the appearance of a recommendation regarding the final outcome of this matter and both parents appear to have taken it as such. Further, it is beyond dispute that the guardian reached his conclusion without seeing the totality of the evidence he had been directed to consider. Whilst, once again, the missing evidence of the father may well only have reinforced this conclusion, the report of Ms Hamade was potentially relevant to it in circumstances where it bore on the question of how easy ongoing contact between mother and daughter would be to maintain in light of the nature and extent of any continuing issues regarding the mother’s ability to enter and leave the United Arab Emirates.
  • In circumstances where, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, the children’s guardian must conduct the proceedings on behalf of T fairly, it is unfortunate that the Position Statement lodged on behalf of the children’s guardian is expressed what appeared to be a settled recommendation prior to the children’s guardian having had sight of all of the evidence and without the Position Statement making clear on its face that the children’s guardian acknowledged that his “suggested formula of arrangements” had been arrived at in that context. Whilst I accept that the Position Statement is a document drafted on behalf of the children’s guardian and not by him and that the document evidences his understanding that the matter remained subject to final determination by the court, I also accept that concern as to the impartiality of the guardian and, accordingly, the fairness of the proceedings has been generated in the mother in circumstances where the children’s guardian reached his conclusion without considering all of the evidence he was directed to.
  • However, having considered the position carefully and acknowledging the concerns of the mother, I am not able to accept, having regard to the respective roles of the Guardian and the court, that there is a real likelihood that the approach of the children’s guardian will lead to unfairness in the proceedings as a whole such that the criticisms of the methodology of the children’s guardian require the termination of his appointment pursuant to FPR 2010 r 16.25(1)(b).
  • As I have already noted, it is the court that is the decision maker in this case and not the children’s guardian. The court is required to consider fully and fairly all of the evidence before it when reaching its final decision on the welfare of T, having regard to the matters set out in the Children Act 1989 s 1. Within the context of that process, two matters are of particular importance when considering the mother’s application to terminate the appointment of the children’s guardian.
  • First, during the course of that process the children’s guardian enjoys no special status relative to other witnesses before the court (MW v Hertfordshire County Council [2014] EWCA Civ 405 at [21] and [32]). The fact that the children’s guardian is under a duty to advise the court the options available to it to make recommend what order should be made does not mean that the advice and recommendation of the children’s guardian carries with it preferential, let alone determinative weight in the proceedings. The views of guardian, even when set out in a final analysis and recommendations report, are not binding on the court. At all times it is the application of the principles and factors set out in the Children Act 1989 s 1 to the totality of the evidence before the court that drives the court’s conclusion as to what is in the child’s best interests. There would be more force in mother’s application if the court was bound to follow recommendations of the children’s guardian or if the recommendations of the guardian carried preferential weight in the proceedings. However, neither of these propositions is sound.
  • Second, within the context of this legal framework the evidence of the children’s guardian falls to be evaluated by the court in the same way as any other witness having regard to factors including its credibility, internal consistency and fairness, with the results of that evaluation being applied in reaching a final determination. Specifically, the evidence of the children’s guardian will be the subject to forensic scrutiny by the court through the medium of cross-examination. Within this context the mother will be able to test the aspects of the guardian’s methodology that concern her and make submissions to the court on the consequences of any challenges she makes good. In particular, she will be able to put to the children’s guardian that he has pre-judged the issue of T’s living arrangements and the court can consider whether the guardian’s recommendation is thereby undermined. The court is well used to hearing and considering challenges mounted in cross examination by way of an allegation of prejudgment against social workers and children’s guardians.
  • In the foregoing circumstances, and with these procedural protections in place, in my judgment the matters recorded in the Position Statement of the guardian that cause the mother concern do not amount to grounds for terminating the appointment of that guardian on the basis of unfairness. Whilst it is unfortunate that this position has arisen, I am satisfied that the trial process as a whole will allow the mother a fair opportunity at the final hearing to challenge the methodology and reasoning process of the children’s guardian, which challenges will be taken into account by the court when deciding what weight to attach to his views. Within this context, I am satisfied that the parties can remain on an equal footing and that the court can deal with the case fairly notwithstanding the statements included in the Position Statement drafted on behalf of the children’s guardian.
  • I of course acknowledge the principle that it is not only important that justice is done but that it is seen to be done. However, once again, I am satisfied that the fact that it is the court who is the decision maker in this case, coupled with the opportunity the mother has to challenge the methodology and conclusions of the children’s guardian prior to the court reaching its decision, meets the requirements of this cardinal principle. I also bear in mind that the children’s guardian has yet to file and serve his final analysis and recommendations report and that he will do so having had sight of all of the evidence that has been placed before the court.
  • In reaching my decision I have also had regard to the delay that will be engendered in these proceedings if the appointment of the current children’s guardian were to be terminated and the matter adjourned for a new guardian to commence work. I have also borne in mind that such a course of action would necessitate T having another meeting with a different professional to talk once again about her wishes and feelings. Having regard to the statutory principle that delay is ordinarily inimical to the welfare of the child, and whilst not determinative, this in my judgment is a further reason for refusing the application to terminate the appointment of the current children’s guardian.
  • Finally, and again whilst not determinative of my decision on the mother’s application, as I have already observed the mother made her application to terminate the appointment of the children’s guardian pursuant to FPR 2010 r 16.25(1)(b) orally (without even having given notice of the intention to make such an application in her Position Statement) and absent any written or oral evidence in support of that application, contrary to the requirements of FPR 2010 r 16.25(2). In the circumstances, I also note that the court has not been taken to evidence in support of the mother’s application as mandated by the rules of court when pursuing an application to terminate the appointment of the children’s guardian.

 

 

I don’t think that this was the strongest application on bias, it was fairly clear that the Guardian’s views about the child’s wishes and future were as a result of the Guardian’s discussions with the child, who was ten years old. The position statement was somewhat clumsy in not making the position more explicit that there was no final decision but rather an interim view.

Finally the Court said this :-

 

CONCLUSION

 

  • There will, in very rare circumstances, be cases where the court accedes to an application to terminate the appointment of the children’s guardian where the guardian has adopted a methodology that the court would ordinarily be invited simply to take into account at a final hearing when deciding what weight to attach to the guardian’s evidence or recommendations. This, however, is not such a case. For the reasons given above I am satisfied that the mother’s application to terminate the appointment of Mr Power should be dismissed, and I so dismiss it.
  • As I have already observed, in Re J Ward LJ endeavoured to reassure the mother that the judge in that case was confident about the impartiality of the children’s guardian, was alive to the issues in the case, and that it was the judge who would have the very difficult task of resolving those issues. I reassure the mother in the same terms in this case.
  • Finally, the need for the court to consider the issues set out in this judgment stems, in large part, from the failure by CAFCASS Legal to adhere to the directions made by this court on 5 April 2016. Mr Hinchliffe’s decision to complete his Position Statement on 2 June 2016 ahead of the receipt of evidence due to be filed on 10 May 2016 in respect of the report of Ms Hamade and on 3 June 2016 in respect of the statement of the father, which evidence the court required the guardian to consider before the lodging of a Position Statement, together with the terms in which the Position Statement was drafted in those circumstances, have caused the mother unnecessary worry and concern and the court additional work. That worry and work could have been avoided had CAFCASS Legal complied with the directions made by the court or applied to vary the same. I hope that CAFCASS Legal will reflect on this.
  • That is my judgment.

 

 

 

 

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Four books that I’ve really enjoyed

Posted on June 27, 2016 by suesspiciousminds

I’ve been meaning to write a review of some of the books that have most impressed or moved me in the last few months, and at a time when the news is filled with a lot of dark and troubling stuff, it seemed like a good time to write something positive.

So here are the four

  1. My name is Leon by Kit de Waal
  2. This is London by Ben Judah
  3. The Essex Serpent by Sarah Perry
  4. The Trouble with Goats and Sheep by Joanna Cannon

 

All four of these authors have also been super-nice when I’ve contacted them by Twitter to say how much I liked their work, which is one of the things that I most love about Twitter, and on days when it is exploding with loathing and angst and over-reactions, I remind myself that you can tell an artist that you liked their work and why, and very often they can say something back in a matter of minutes or hours.  That is really astonishing. If YOU have read something that you like, and the author is on Twitter, please tell them. It’s a nice thing to do.

 

  1. My name is Leon  by Kit de Waal

 

 

Right. I am a TOUGH, TOUGH audience for this book. Firstly, it is set in a world that I know a lot about and spend my days in – that is the world of children who are not living with their parents and who are in care. That means if it isn’t accurate, if it makes short-cuts for dramatic licence, if it isn’t properly researched, I’ll smell it. It is like when I lived in a house with four nurses and had to stop watching Casualty because they’d just be shouting all the time “You wouldn’t put a line in like that” or  “I think you’ll find that’s FORTY FIVE CC of meta-Phenylcosine Glucosate”.  Secondly, I don’t really like sad books, and because this was telling the story of a child in care and him being split up from his little brother, there are bits that are really sad.

So, I’m a tough audience. And I absolutely loved this book. It absolutely GOT the world that I spend my days in. It got the detail right, the sequences of events right, the way that people act right, the dialogue right. It then took this world that I know so well and made me look at it in a completely different way, by placing the reader in the child’s point of view. The child isn’t the narrator, but all of the action, all of the dialogue, all of the emotions are told as though the reader is looking just over Leon’s shoulder.  He’s a fascinating character – he’s very angry and very troubled, and he has every right to be, but he’s also warm and funny and passionate and loyal to his brother.  Many of the adults in his life let him down, and sometimes they do it without even realising and sometimes they are trying very hard not to and sometimes they are oblivious, and once in a while one of them connects with him in a way that takes your breath away and it just crackles on the page. The scene where social workers come to Leon’s foster home and try to explain something utterly unexplainable to him, that though he loves his brother, because his brother is a baby and has white skin, there will be a forever family for him, but not for Leon, is told SO well,  and in a way where the pain and confusion just pours out of the sentences.  It is told, from a child’s perspective, in a way that is totally vivid, totally plausible and immensely powerful.

The book is also a beautiful object – there are sketch illustrations at the start of each chapter – of something important to Leon or something that will play a part in the chapter, and a little illustration of a bike by each page number.

Could not recommend this more highly.  It is NOT like a busman’s holiday, even if you do this work, and it isn’t the Angela’s Ashes type of misery memoir. There’s a lot of spirit and things to be uplifted about in this book, but the author hasn’t shied away from the rawness of pain when it is called for.

 

2. This is London – Ben Judah

This book isn’t fiction. It is journalism – of the type that George Orwell used to do. Ben Judah wanted to write about London, and the immigrants living in London, and not in a hand-wringing way or a demonising way. He just wanted to go out and spend time with people – from all sorts of nationalities, whether they are working in shops, dealing drugs, being Russian millionaires, Philippino housekeepers, down and outs. And that’s what he did. I don’t mean that he spent a few hours interviewing them – he tried to live, for a while, the lives they were living. He sleeps rough with Romanian gypsies, lives in bed and breakfasts with Polish electricians and builders, soaks himself into the lives that they are living. Then he tells their stories. It is a fascinating book – many parts of it are deeply shocking – some, like the Philippino housekeepers where he writes about the underground organisation that rescues the ones who are being abused by their employers has a fairytale ending that would make a wonderful Neil Gaiman story.  You will absolutely NEVER look at one of those handwash dispensers the same way again after you read this.

 

3. The Essex Serpent – Sarah Perry

Back to fiction. This is set in Victoria times (which is normally a major turn off for me in a novel) and involves a woman named Cora who has just been widowed from an abusive relationship and sets out to live the life of her choosing.  As part of this, she descends on a small town in Essex where the villagers are being plagued by what was thought to be a mythical creature known as the Essex Serpent. Cora wants to find it, others want to destroy it, still others want to deny its existence. Sadly, she leaves a wake of broken hearts in her path and is a force of nature in the book who at various times I loved and adored and other times I wanted someone to shake her.  I always like books where there’s a close knit group of characters and where the reader’s loyalties shift between them at various points and this really delivers that. It is a love story, where sometimes you are desperate for the potential lovers to stay the hell away from each other, sometimes you are yearning for them to conjoin. The story is told with immense richness of language and huge passion and it is impossible to read this without wanting to pull on a pair of boots and go out into the country and get spectacularly muddy. Sarah Perry makes the experience of trying to pull a sheep out of some mud sound as exciting and enriching as flying on a magic carpet over Istanbul. It’s an extraordinary piece of work. Read a chapter of it in a bookshop and I’ll be amazed if you don’t end up at the till with it in your hand, wondering if you can read it as you walk down the street without doing yourself a mischief.

 

4. The Trouble with Goats and Sheep – Joanna Cannon

 

 

I REALLY like Joanna Cannon. She was a blogger just like me, and honed her writing muscles doing that before writing this piece of fiction. It is set in a small street in sububia in the 1970s and is narrated by a young girl, Grace who is fierce and determined and ever so slightly selfish. One of the neighbour’s wives disappears, and Grace makes it her mission to find her, thinking that she is investigating a crime. Everyone else thinks that this woman has just left her husband. At least that’s what they start off by thinking.  In her investigations, she visits all of the other neighbours and piece by piece we are building up to understanding the real mystery of this street, which isn’t what Grace is investigating at all.  The book is really rich in language and detail, and Grace is really well observed as a character. Just as with Leon in the first book, seeing the story unfold from the perspective of the child means that there are things that Grace sees and hears that go over her head but mean something very different to the adult reader. There are some genuine rug-pull shocks towards the end but not shocks for the sake of it, the author has been carefully laying these foundations all the way through, and on a second read the story absolutely stands up and even improves (which isn’t usually the case with twists)

There are some really funny lines and scenes in it too. The sequence where an Indian family move in, and in desperate attempt to make small talk and ingratiate themselves and not appear racist or ignorant, one of the men tries to make a cultural connection by telling the new man that he “loves Demis Roussos”.

By page 6, the author has deployed this beautiful line “My mother had spent most of 1974 having a little lie-down” and you just know that you are in the hands of someone who can make words dance on the page. It’s a lovely book, and it has a powerful message about modern times, which I can’t raise because [SPOILERS].

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My book, and how to get it !

Posted on June 22, 2016 by suesspiciousminds

 

I have written a book. A fiction book, not dry law stuff.

It is Harry Potter and Scum and the Devil Rides Out and Porridge, all stuck into a blender with ice, sugar and rum and turned up to the max power setting.

 

Not EXACTLY the way the writing process went

Not EXACTLY the way the writing process went

 

 

More like this, but with ideas and words!

More like this, but with ideas and words!

 

It is finished, and if everything goes well [WHICH IT WILL!] , you will be able to have it in your trembling beautiful and tender hands by around Christmas.

The good folks at http://www.unbound.com  are looking after me.  Their model is a Crowdfunding one and there are authors like Raymond Briggs and Tibor Fischer using it, so LEGIT!

 

Here is the page all about the book.

https://unbound.co.uk/books/in-secure

 

If the book can get sufficient pre-orders, then it will be published and available to read on your Kindle, Ipad, Iphone or other electrical device  (not kettles, or irons) around Christmas time.

What that means is that I would like you to visit the site, and have a look at the description of the book (and the sample chapter!)  and you can look at my photograph and watch a video of me talking about the book and asking nicely for your support.

If you are interested in it, you can pre-order – if the book doesn’t get published, you’ll get your money back, but let’s not be negative – I am super-confident that we can get this done and have me invading your iphone. There are all sorts of different levels of pledges you can make and all sorts of different rewards that you’ll get in return.

The main reward of course is that you will become A PATRON OF THE ARTS!  How cool is that? And you’ll get to read my feverish prose.

Here’s the link again

 

https://unbound.co.uk/books/in-secure

 

Also, please RT this piece to people, put it on your Facebook, forward it to people you know, nail copies of it to trees and roll it up into bottles and toss it into the ocean, that sort of thing. The more people who see it, the better.

Help me realise this dream, and I will love you forever

 

I actually legit have the song “I’m so excited, and I just can’t hide it” playing in my mind right now….

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“Blood on her hands”

Posted on June 21, 2016 by suesspiciousminds

 

Ben Butler convicted of the murder of his girlfriend’s daughter Ellie, in the criminal Court.

Ellie had been removed from the care of Ben and Ellie’s mother (who was convicted of child cruelty and perverting the course of justice) in 2007 by the family Courts with findings made that they had caused her a serious injury  and placed with Ellie’s grandparents.

In 2012, Mrs Justice Hogg overturned the previous findings and returned Ellie to the care of Ben and Jennie Gray. The Judge had said that fresh medical evidence showed that the previous findings were wrong, and that Ben and Jennie were exonerated and that it had been a miscarriage of justice and that it was a joy to be able to return Ellie to their care.

 

The case was widely reported as a miscarriage of justice in the family Courts, put right by Mrs Justice Hogg and the unusual step was taken to name the family in the judgment, so that everyone could see that their names were cleared.

 

A tapestry of justice

 

Eleven months later, Ellie was dead.

 

At the hearing before Mrs Justice Hogg, we now learn that Ellie’s grandfather warned Mrs Justice Hogg that she would have ‘blood on her hands’ if she returned Ellie to Jennie and Ben.

 

You can read about the murder trial here, and the guilty verdict. It was a vicious attack, cynically covered up by the couple, including arranging for Ellie’s sibling to find Ellie’s body 2 hours after the death.

https://www.theguardian.com/uk-news/2016/jun/21/ben-butler-found-guilty-of-murdering-six-year-old-daughter-ellie

 

One shudders now in retrospect (knowing what we know about both parties) about the detail that Ben and Jennie employed Max Clifford to run a PR campaign for them in their fight to get Ellie back.

It is really important here not to be wise after the event. The judgment given by Mrs Justice Hogg (which sadly has been taken down from Bailii so as not to prejudice the criminal trial, but which ought in the public interest to go back up) was one that I read at the time, as so many others did, of a case involving very complex medical evidence in a field (shaking injury) which is very medically controversial and with fresh evidence emerging which showed an organic cause for the injury which meant Ben and Jennie were blameless.  The case involved multiple medical experts, whose evidence was pored over by extremely able Silks and lawyers, in front of a very experienced High Court Judge who has always been conscientious and dedicated.

The Local Authority fought very hard to stop Ellie being moved from her grandparents, and her grandparents also resisted it. That meant that all of the evidence was gathered and tested – as fiercely as everyone involved was able to. This was not a rubber-stamp, or a rushed decision. It was a judgment that had all of the safeguards and protections that our system can muster  (a range of experts, all the documents obtained, the evidence tested and tested hard, and a Judge who knew her stuff)

There was nothing within that judgment to make one feel AT THE TIME, that this was a terrible tragic mistake.

But it was.

Even with all the protections of the system, the Court system on this occasion got a decision wrong. And as a result, a child who was safe, is now dead.

That doesn’t mean that we get to apply hindsight and seek to pass blame. The persons responsible for Ellie’s death were Ben and Jennie. Not this Judge. Not the experts who thought there was an innocent explanation for the earlier injury. Not the lawyers who fought fearlessly and to the best of their ability for Ben and Jennie. Certainly not the Local Authority, who fought to prove that Ben and Jennie had hurt Ellie before and would do so again.

Even when you pore over every scrap of paper, hear every shred of evidence, hear all of the arguments and can be sure of your conclusions, predicting the future is an uncertain business. And from time to time, we need to be honest and acknowledge that.

The EVIDENCE that Mrs Justice Hogg heard pointed her to a conclusion that Ben and Jennie had been wrongly accused and had paid for it with the loss of their child, and the EVIDENCE drove her to wanting to put that right. The EVIDENCE that we now have is that this was the wrong decision. But how can a Court decide any other way than on the EVIDENCE that it has at the time?

The system got it wrong here, in deciding what had happened in the past and what would happen in the future, and with awful consequences. The system in the past has got it wrong the other way and removed children that could and should have stayed at home. The system will continue to make mistakes, no matter how hard we try, because human beings are not built to predict the future.  We make all efforts to ensure that we get it right, but we can’t always.

I am very sure how the Press would have handled this case if it had been a social worker who had taken the child away from grandparents and put her back with Ben and Jennie.  The headlines write themselves. The clamour for sackings and heads must roll, and this must never happen again.

Seeing that even a High Court Judge, seized with all of the evidence, with the luxury of seeing that evidence tested as hard as evidence ever can be, can make a mistake reminds us that human beings are beautifully and fearfully made, and all of us have fragility.

 

Mrs Justice Hogg has retired now, and I am sure that the consequences of her decision will weigh heavily on her.

Perhaps this story shows us that sometimes, in assessing the EVIDENCE that one has at the time decisions can be made by very bright, very capable, very conscientious people wanting nothing more than to get things right and to be fair, but still be wrong, and that our knee-jerk Witch-Hunt blame culture doesn’t take account of that, and the inherent difficulty that child protection involves.

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