Another one of the cases where due to failures in completing the paperwork with IVF treatment, one of the parents did not acquire the legal parental responsibility that they should have acquired, leading to painful and possibly expensive Court proceedings. The failure in this particular case, leading to the parents to have to make an application in the High Court and get Deidre Fottrell QC to represent them, is that the Clinic failed to make sure that the form when completed had shown a tick in the right box to indicate consent.
So, in this case, whilst a tick in a box may be quite continental, double-checking is a mum’s best friend. I’m here all week, try the chicken.
The President identified these problems first in
A and Others (Human Fertilisation and Embryology Act 2008) 2015
The individual cases have kept rumbling on, and the High Court has been rather scathing from time to time of the mess that the Hospital management / legal department have been handling things.
Following IVF treatment provided by a clinic at Guy’s and St Thomas’ NHS Foundation Trust, which is and was regulated by the HFEA, Y gave birth to their child. X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that he is, in accordance with section 36 of the 2008 Act, the legal parent of the child. Y is wholeheartedly supportive of X’s application.
In this case, the failure was not a failure to use the right forms, or indeed to ensure that the parents had signed them, but here, that the parents had failed to put what the judgment calls a “v” (but I think must be a tick) in the right box.
The issue
Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y signed a Form WP. There is no problem with the Form PP. The problem arises because when Y signed the Form WP, which otherwise was properly completed, she omitted to place a v in the box in section 3 opposite the text “I consent to my partner (named in section two) being the legal parent of any child born from my treatment.” The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
I can take the matter quite shortly. This case is not unlike Case I where, as I said (para 21):
“a v was inserted in the wrong place and, as it were, against the wrong piece of text. It was, as [counsel] submits, a simple undetected clerical error. In the circumstances, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.”
That there has been a mistake in this case in the completion of the Form WP is obvious, for the very purpose of completing the form is to give the consent indicated by the placing of a v in the relevant box. And it is plain what was meant. After all, Form WP is headed “Your consent to your partner being the legal parent.” What didY think she was doing when she completed and signed the Form WP, if not to give her “consent to [her] partner being the legal parent”? The answer is obvious: by signing the Form WP she intended to and believed she was giving that consent. The only defect in the completed document is, as was the defect in Case I, a simple undetected clerical error. In the present case, as in Case I, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.
In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.
A final matter
On the same day as she signed the defective Form WP to which I have referred, Y, at the invitation of the clinic, also signed another Form WP to ‘correct’ an error which, she was told, had been made in the Form WP she had signed some years before in connection with earlier successful IVF treatment. The earlier Form WP had been wrongly dated. What ensued was quite remarkable, as the clinic committed itself to – blundered into – what, were these matters not so sensitive and grave, one might be tempted to call a comedy of errors. First, the suggested ‘error’ in the earlier Form WP was quite immaterial for, as I noted in In re A (para 78), “the precise date is not material; what is vital is that the form was signed … before the treatment.” Secondly, it is quite clear that a mistake in a Form WP (or for that matter a Form PP) cannot be corrected retrospectively after the treatment by the signing of a substitute form. Thirdly, precisely the same error (the omission of the v in the box in section 3) appears in each of the two Forms WP signed by Y on this occasion. Fourthly, one might have thought that the clinic, having, as it thought, detected an error in the earlier Form WP, would have been more than careful to ensure that each of the new Forms WP was correctly completed. Not a bit of it!
The lack of understanding of the critically important legal framework with which it had to comply, and its seemingly lackadaisical failure to ensure proper completion of the new Forms WP in the face of what it believed to be its previous error, cast a sadly revealing light on the managerial and administrative failings of a clinic which one really might have thought would have been able to do better.
Not for the first time I am left with the feeling that the medical staff in these clinics, who seem to have been given the responsible for ensuring that all the necessary medical and legal consent forms were properly completed, wholly failed to appreciate the critical need to ensure that the legal consent forms were properly, indeed meticulously, completed. I repeat what I said in In re A (para 111):
“the approach to checking that the Form WP and the Form PP have been fully and properly completed is surely just as important, and demands just as much care, attention and rigour, as would be demanded in the case of a legal document such as a contract for the sale of land, a conveyance or a will – indeed, in the context of parenthood, even more important.”
These administrative failures, which have been so characteristic a feature of every one of the cases I have had to consider, unhappily seem indicative of systemic failings both of management and of regulation across the sector. I can only hope that what all this litigation has revealed will by now have led to very significant improvements in understanding and practice.
Sadly, I suspect that it is only going to be when the Hospitals are hit with compensation claims or costs orders that things will improve.
I had to research this issue for a real case last week, and because it was quirky and hard to winkle out, I thought I’d share it.
It does happen from time to time that a party to Court proceedings is too ill to participate in a key hearing, perhaps even the final hearing, and seeks an adjournment. Sometimes they really are ill, sometimes they are pulling a Ferris Bueller.
“You fake a stomach cramp, and when you’re bent over moaning and wailing, you lick your palms. It’s a little childish and stupid, but so is the Family Court….”
What is needed is a doctor’s note. No doctor’s note, no adjournment. But what if there is a doctor’s note? How is the Court supposed to decide whether to grant the adjournment or not.
Oddly, I couldn’t find any reported family law cases saying how bad the illness has to be, or what test the Court has to apply. It turned out the relevant case law was a Probate case, and not a very old one either. Levy v Ellis-Carr and others 2012
We’ll come back to it. I’d like to share with you my story of the worst ever application for an adjournment I had to make. It was a private law case, my client was going down like the Hindenberg, and it was the final hearing. Two days before, my client rings me and says that he can’t come to the final hearing, it needs to be put off. For a few months. I explain that I’ll need a doctor’s note, and he gives me a sigh which is intended to convey to me how utterly unreasonable I am being.
I receive the doctor’s letter minutes before I need to set off to Court, so I slap it on the photocopier, do 3 copies and start walking down to Court with my bundle.
The first paragraph of the letter reads like this, in type
“I saw Mr J on 12th March 2009. He had a headache.”
[I’m thinking that this probably doesn’t cut it, but wait. In handwriting, familiar handwriting, the same handwriting as I’ve got in my bundle on the various threatening letters sent by my client to the children’s mother, there’s an annotation”]
“and a broken leg”
Next paragraph, in type :- I recommended aspirin for his headache.
Handwriting floating above the sentence, as though the doctor had forgotten this and added it afterwards, silly doctor.
Handwriting “And I put his leg in plaster”
Type :- As the headache was very minor, he would be perfectly able to attend Court.
Handwriting “But not with his broken leg, which means that he can’t come”
I had to hand this in to the other side, who had the decency to do all of their laughter in another room, and then later to the Judge.
I was not successful in my application. My client rang later that day to ask if his contact for the weekend was still on. He lived a four hour drive from the children.
“But Mr J, ” I said, “How will you drive all that way with your broken leg?”
In this case, the appellant wanted an adjournment of a hearing, and produced a doctor’s letter
First, there is a letter from a Doctor dated 24 May 2011 (the date of the hearing before Registrar Derrett) which says :
“The above named saw me today very distressed and upset with multiple problems. My diagnosis is that he is suffering from anxiety depression. And he is prescribed medication for it. If his problem persist or get worse I will refer him to a Consultant Psychiatrist.”
The Court refused the adjournment, and he appealed it.
The High Court, in the form of Norris J, dealt with this aspect of the appeal like this.
32. I will deal first with the ground of appeal which asserts that the Registrar erred in law in failing to grant an adjournment. This ground is directly related to the Appellant’s failure to attend the trial. The decision whether to grant or to refuse an adjournment is a case management decision. It is to be exercised having regard to the “overriding objective” in CPR 1. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task: see Khudados v Hayden [2007] EWCA Civ 1316. In Fitzroy Robinson v Mentmore Towers [2009] EWHC 3870 (TCC) Coulson J at paragraph [8] set out some of the factors that might be relevant to an 11th hour application to adjourn a trial. But each case must turn on its own facts (and in particular upon how late the application is made).
Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge. The decision must of course be a principled one. The judge will want to have in mind CPR1 and (to the degree appropriate) any relevant judicial guidance (such as that of Coulson J Fitzroy or Neuberger J in Fox v Graham (“Times” 3 Aug 2001 and Lexis). But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight. For my own part, bearing in mind the material upon which and the circumstances in which decisions about adjournments fall to be made (and in particular because the decision must be reached quickly lest it occupy the time listed for the hearing of the substantive matter and thereby in practice give a party relief to which he is not justly entitled) I do not think an appeal court should be overcritical of the language in which the decision about an adjournment has been expressed by a conscientious judge. An experienced judge may not always articulate all of the factors which have borne upon the decision. That is not an encouragement to laxity: it is intended as a recognition of the realities of busy lists.
In the instant case the Appellant has to demonstrate that on the material then before her the Registrar exercised her discretion wrongly as a matter of law, and he has also to demonstrate that in fact he had a good reason not to attend the trial.
In my judgment there were ample grounds upon which the Registrar could properly refuse the adjournment (whether she expressly referred to them or not). There was a history of making applications for adjournments at each stage. The hearing before her was itself a re-listed hearing. There was evident non-cooperation in preparing for the trial. Even on the Appellant’s own case he had made his application for an adjournment at the last possible moment. He adduced no medical evidence. His solicitor deliberately withdrew instructions from Counsel and told Counsel not to attend the hearing. The solicitor on the record made a conscious decision not to attend the hearing. The application was already a year old (partly because the Appellant had sought adjournments to put in evidence and had then not done so) and related to a bankruptcy that had commenced in 1994. The Court could if the hearing proceeded take into account such evidence as he had adduced (even if it did not have the benefit of the criticisms he wanted to make of the trustee’s case all the benefit of any argument he wanted to advance in support of his own). The Appellant would always have available the opportunity afforded by CPR 39.3.
Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.
The Appellant complains that the failure to grant the adjournment is a breach of his human rights. The complaint is misconceived. The Appellant’s right to a fair trial means that he must have a reasonable opportunity to put his case. He had that right on 9 February 2011 (but asked the Court to postpone it). He was urged to exercise that right by the trustee’s solicitors on 23rd May 2011: but he and his legal representatives chose not to avail themselves of it.
This ground of appeal fails.
The medical evidence which the person seeking an adjournment relies upon is to be treated as a piece of expert evidence. The Court does not HAVE to accept its conclusions. It has to contain with particularity (details) what the medical condition is, why that prevents participation in the court process, provide a future prognosis, and set out that the author of the report (a) has examined the person (b) has made the diagnosis of the medical condition and on what basis and (c) is qualified to do so.
If the medical evidence comes up to those standards, the Court will then consider the adjournment based on the over-riding objectives set out in the Family Procedure Rules
1.1.—(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable—
(a)ensuring that it is dealt with expeditiously and fairly;
(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c)ensuring that the parties are on an equal footing;
(d)saving expense; and
(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Obviously with a genuine medical complaint, there’s a tension between resolving the case ‘expeditiously’ and resolving it ‘fairly’ and it will be for the Judge to decide on which side of the scales the particular application for an adjournment falls.
In Care proceedings, an application for adjournment that would take the case beyond 26 weeks has the additional hurdle of the revised section 31 following the Children and Families Act 2014 which set the duration of care proceedings as 26 weeks, and that a party seeking to extend the proceedings beyond that has to show that it is NECESSARY
5)A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.
(6)When deciding whether to grant an extension under subsection (5), a court must in particular have regard to—
(a)the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and
(b)the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;
It’s been a pretty bad year for losing excellent people.
I had a pair of boxing gloves when I was a kid, and I often used to put on my dad’s dressing gown and those boxing gloves, and pretend to be Muhammed Ali. I had a book called Boxing for Boys, or something, which gave a good footwork exercise of placing glass bottles around the floor and whilst shadow boxing you’d be evading those and that would sharpen up your footwork. It certainly sharpened up my skills with a dustpan and brush.
When I was a kid, I never understood the things about Ali that make me admire him so much now, I just knew that he was The Greatest.
And you KNOW that he would have kicked Superman’s ass.
The Boy in Blue, Goes Down in Two
Of course, Superman claims that he was letting Ali win because the safety of the world depended on it. That’s a Roberto Martinez excuse, as far as I’m concerned. Ali won.
Yeah, right, Superman MEANT to lose the whole time. Sure he did.
I think my favourite Ali story I read in Norman Mailer’s “The Fight”, the account of the Rumble in the Jungle. And if you’ve never read it, you are in for a treat.
It relates to a meal where Ali was present, and doing his “I’m so tough, I’m the toughest man that ever lived, I’m so mean I make medicine sick” schtick. And ITV Boxing correspondent, Reg Gutteridge got tired of this eventually and told Ali that he wasn’t so tough. “You think you’re a tough guy? I’ll show you what tough is.”
Reg then picked up a steak knife from the table and thrust it hilt deep into his own left leg, not even flinching.
“Now,” said Reg, “Let’s see you do that”.
That shut Ali up, not knowing that Reg had a wooden leg.
I don’t know if it is a true story or an apocryphal one, but I love it anyway.
No, the Isle of Wight isn’t full of these blue-eyed fiends. Different sort of Wight
I don’t normally do Education law here, but this case was a major news item when it was decided, and it has taken quite a while to get the judgment to be able to see what the Court ACTUALLY said. [Also, as it relates to non school attendance, that’s something that does come up within care proceedings from time to time, so has relevance]
Mr Platt took his daughter on a holiday from 13th April 2015 to 21st April 2015. This was in school term times. He had asked the head teacher of the school for permission and the head teacher had refused. Head teachers have been advised as part of Government policy to only allow parents to take children out of school for holidays in exceptional cases.
The Government policy is based on the idea that children missing school is bad for their education, and disruptive for classes generally as missed lessons mean the teacher having to spend time in later classes bringing that child up to speed with what has been missed.
On the other side of the coin, many parents are unable to afford the hike in prices for holidays set by travel companies during school holidays. (That’s not just because travel companies are evil and exploitative, it is also economics – all prices are set by supply and demand – if supply is limited and demand is high prices will go up. With summer holidays, more people want to go on holiday in July and August, so the prices are more because demand has increased without the supply increasing)
The Isle of Wight Council sent Mr Platt a notice of the fine he would have to pay for unauthorised absence. (Some parents have found that the fine is less than the savings they make by going on holiday in term time, so again economically it makes sense to take the holiday and pay the fine)
Mr Platt decided that he did not want to pay the fine, so the Council took him to Court, prosecuting him for non school attendance
The relevant provisions of section 444, Education Act 1996 are as follows:
“(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.
(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—
(a) with leave,
(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or
(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.
…
(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
…
(9)In this section ‘leave’, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.”
With regard to the school’s power to give leave of absence, Regulation 2 of the Education (Pupil Registration) (England) (Amendment) Regulations 2013, SI 2013/756, amended Regulation 7 of the Education (Pupil Registration) (England) Regulations 2006, SI 2006/1751, so as to provide that leave must not be granted unless the school considers that leave of absence should be granted due to the exceptional circumstances relating to that application.
The legal argument hinged (as many legal arguments do) on interpretation of a single word
If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
The Council said that for the prosecution, the period of time covered is that in the indictment. I.e, between 13th April 2015 and 21st April 2015 had Mr Platt sent his child to school regularly? Well, no, because she hadn’t been at school at all during that period.
Mr Platt argued that ‘regularly’ should be taken to cover the school year as a whole. I.e that someone whose child was at school nearly all the time, but then missed a week, was still at school ‘regularly’
The Magistrates who originally heard the case decided in favour of Mr Platt and that he had not committed the offence. The case went to the High Court on appeal.
The High Court also agreed with Mr Platt, and refused the appeal.
Now, it is not quite as clear as the Press reports have said. This case is not authority for
You can’t be prosecuted for taking an unauthorised term-time holiday
It is okay to take an unauthorised term-time holiday
Those things are okay IF your child’s school attendance is above X amount
The Government Regulations about term-time holidays only being approved in exceptional circumstances are no more
or Anyone who has been refused permission to go on holiday can go
or Anyone who has been fined is okay to just tear it up
or Anyone who has paid a fine is entitled to their money back
All of those things are possible implications, but the High Court did not decide on any of them.
It is, however, authority for – when deciding whether a parent has failed to ensure that their child attended school, the Court is entitled and should consider the issue of regular attendance in light of overall attendance
In this case, the question whether attendance had been regular could not be ascertained solely by reference to the period of absence. It was necessary to have regard to the period of absence in a wider context of attendance. The magistrates were bound to consider whether there was regular school attendance in the light of all the evidence including the school’s record of attendance. In this case, I note that the education authority placed before the court M’s record of attendance from 1 September 2014 to 7 July 2015. I consider that the magistrates correctly had regard to that wider picture. Moreover in all the circumstances of this case I am unable to say that their conclusion was not one reasonably open to them.
It is also authority for, simple unauthorised absence during term time does not automatically mean that the offence is committed
I am unable to accept Mr Jackson’s submission that consideration of Regulation 2 of the 2013 Regulations makes the intention of Parliament clear. He submits that its effect is that parents cannot simply take their children out of school to take them on holiday or for any other unauthorised reason, and such application should only be granted by the school in exceptional circumstances. First, the regulation is, of course, secondary legislation. Secondly, the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).
The Court were invited to go down a path of “without a clear definition of what regular means, the offence is too vague and thus unfair to prosecute any parent for non school attendance” – presumably more with a view to the High Court attempting a definition of ‘regular’ rather than saying there’s no such thing as truancy any longer. The High Court did NOT fall into this trap, and made it clear that any Court contemplating such a thing would have to have representatives from the Department for Education in Court.
I should record that in his wider case, set out in his outline submissions, Mr Greatorex points to the absence of a definition of “regular” and submits that the provision is far too vague to be the basis of a criminal offence, let alone an offence of strict liability. He submits that section 444(1) is not sufficiently clear and certain for a parent to know before taking a child out of school whether he or she is committing a criminal offence, and in this regard he draws attention to the observations of Elias J, as he then was, in Barnfather v London Borough of Islington[2003] 1 WLR 2318, at paragraph 57:
“I recognise that the penalties are small, being only a fine, and that is a factor which can properly be considered when determining whether an offence of strict liability is justified. However, in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one’s children, or incompetence at parenting, which in the case of the blameless parent will be unwarranted.”
I draw attention to these submissions by Mr Greatorex without expressing any concluded view on them. It is not necessary for the court to consider these issues in order to dispose fairly of this case. Had the court considered it necessary to do so, in my view we should have had to consider whether the Department of Education should be served as an interested party in order that it might have the opportunity to make submissions on these wider issues. I would therefore answer the question posed by the magistrates in the case stated as follows:
The magistrates did not err in law in taking into account attendance outside the offence dates 13 April to 24 April 2015 as particularised in the summons when determining the percentage attendance of the child.
Where the unauthorised term time holiday falls against a backdrop of otherwise good or average school attendance, Platt certainly makes it HARDER for a Council to go to Court to prosecute a parent who refuses to pay a fine. [And if there’s less of a risk – there’s certainly not NO risk, then a parent may well be less inclined to pay the fine, and schools and Councils may be less inclined to send out fine notices not wanting to take their chances in Court if the fine isn’t paid]
But just because in this individual case, the Court were reasonable in deciding that there had been regular attendance because the overall school attendance was just above 90% does not mean that another Court could not decide that school attendance of 90.3% for the school year was NOT regular attendance.
That’s important. There isn’t some clear interpretation of ‘regular’ here that says “If the child has been absent less than X, then it is fine to have a term time holiday, if not then it would be a valid prosecution”
The High Court have not set parameters or definitions for what is, or is not regular attendance. They have just ruled that the Magistrates were right to take the whole context of school attendance into account, not just the unauthorised holiday period, and that it was then within their discretion to decide whether there was ‘regular’ school attendance or not. Another Magistrates Court could consider exactly the same facts and reach a different conclusion without Platt meaning that they were wrong (they would be wrong not to take ACCOUNT of school attendance overall, and I expect Platt would be waved under their nose and there would be heavy hints of an appeal if the Magistrates decided that 95% attendance wasn’t ‘regular’)
I suspect that we will see an amendment to s444 of the Education Act 1996, to put into statute the Government’s aim that holidays should not be taken within term time. (They could say for example that ‘regular school attendance for the purpose of the Act can mean either (i) ensuring that the child attends school regularly throughout the school year or (ii) does not have an unauthorised absence of longer than 5 school days in any period of 31 days without a medical certificate or (iii) both.’ )
That probably won’t happen before this summer holiday, however.
What is hard to fathom, of course, is why a parent living in the Isle of Wight would want to take their child away on holiday when the Isle of Wight is Earth’s greatest holiday destination anyway?
[This post sponsored by the Isle of Wight Slightly Overstated Tourist Board]
I feel that HMCTS could have spiced these up a bit, so here are my 15 reasons why divorce petitions might be rejected.
Jurisdiction section answered in a haiku. Whilst the petitioner carefully used the exact number of syllables, in the 5-7-5 format, a true haiku has to be about nature, and thus fails the test.
Instead of cheque or fee exemption form, petitioner had enclosed a note saying “I’m waiting for Wonga to get back to me”
Instead of cheque or fee exemption form, petitioner had offered to “pay it out of my winnings”
On the section that provides the details of the Respondent, it is unacceptable to write the words “Here be Dragons”
Petitioner claims to be married to Tony Blair. Petitioner is not Cherie Blair.
In the grounds section, Petitioner has written simply the word “BI-ATCH”
In motor oil
In the grounds section, Petitioner has submitted photograph of Respondent giving her a practical Christmas present (including, but not limited to – a pressure cooker, vileda supermop, colander, new ironing board, new ironing board cover, perfumed drawer liners)
Petitioner in the grounds section has pleaded adultery, but has named the Co-Respondent as Lilo Lil. Adding “THAT TART” did not remedy this deficiency.
Divorce petition submitted on what was originally believed to be vellum, but which has on the back page a tattoo that says “Margaret”
Petition too tear-stained to read (variant 9a – petition too Chardonnay/Stella Artois stained to read)
Marriage certificate, whilst the original, has a jewel-encrusted dagger piercing it.
Petition sent to one of the many divorce Courts that we have now closed down. Send it again, properly. Oh, we lost your cheque though. And your marriage certificate.
Petition when read aloud, opened portal to another dimension where skunks breathe green fire
Petition was simply Tammy Wynnette sent to the counter to sing the application.
Following the Supreme Court decision in Cheshire West, which greatly expanded the definition of restriction of liberty to the point where the system has almost entirely broken down due to the huge increase in volume, the Law Commission have published an interim report on Deprivation of Liberty.
Unsurprisingly, they say that there’s no hot-fix available for the current mess we are in, and their recommendation is for Parliament to produce a brand new Act to put things right.
Given that Deprivation of Liberty was brought about as a solution for the Bournwood gap when the ECHR finally dealt with that case and told us that there was a truck-sized plot hole in our legislation about restricting the liberty of people who were not criminals and not mentally ill, “for their own good”, it probably did well to last as long as it did before crumbling like, well like, Cheshire cheese.
1.4 We have concluded that legislative change is the only satisfactory solution to the problems we outline below. During the next phase, the Law Commission will
produce draft legislation and a final report. The process of developing draft legislation is likely to result in some changes of substance to the approach outlined here.
This statement should not be construed as necessarily representing our final position.
1.5 The final report and draft legislation will be published before the end of 2016. It will then be for the Government to decide how the recommendations will be taken
forward.
Why, Government, here is some convenient long grass
GO ON THEN!
The Law Commission had a healthy response to its consultation, and this bit was, I think, telling
Finally, a significant number of consultees argued that any system which is based on Cheshire West
will be unsustainable. It was argued that the acid test defies common sense, the most frequently quoted examples being end-of-
life care andintensive care units. Most concerns related to the practical implications of Cheshire West .
Local authorities reported significant increases in the numbers of referrals locally (often above the tenfold national figure), widespread
non-compliance with time-scales for assessments and many “low-level” or “community” cases being left unassessed. Many queried why the
Law Commission was not seeking to legislate away the acid test.
Onto some detail
1.37 Nevertheless, it is our view that the new scheme must demonstrably reduce the administrative burden and associated costs of complying with the DoLS by
providing the maximum benefit for the minimum cost. With this in mind, we have therefore concluded that the new scheme should focus solely on
ensuring that those deprived of their liberty have appropriate and proportionate safeguards,and should not seek to go as widely as the protective care scheme.
1.38 We propose to recommend a more straightforward, streamlined and flexible scheme for authorising a deprivation of liberty. The responsibility for establishing
the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or
treatment, and away from the care provider. This should provide greater clarity,since the body directly responsible for the proposed deprivation of liberty would
need to provide evidence to support its case. The required evidence would include a capacity assessment and objective medical evidence of
the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain
steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.
1.39 All those deprived of liberty would be eligible for safeguards to secure the protection of their rights under article 5 of the ECHR. For example, all those
deprived of their liberty (as well as others, such as family members and advocates) would have rights to seek reviews of their deprivation of liberty and
bring legal proceedings to challenge the deprivation of liberty. There will also be comprehensive rights to advocacy.
Sounds good, but the real test is going to be how possible it is going to be for a family member to challenge restrictive care arrangments and what help the State will provide them to do so. We know for example, that the Neary case showed up huge problems with the DoLs regime and had to be fought with tenacity by an exceptional human being to get the right outcome in the end. You could ask Mark Neary whether the protections that were in place and the mechanism for family members to be able to challenge were robust enough and simple to follow. I suspect I know what his answer would be. It shouldn’t require that a vulnerable person needs someone as remarkable as Mark to stand up for them, not every vulnerable person has that luxury.
The Law Commission touch on the Neary case here, and suggest some additional safeguards
1.41 By way of amendments to the rest of the Mental Capacity Act, we will also seek to maintain, as much as possible, the article 8 ECHR protections that were
contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services. These amendments will be aimed primarily
at ensuring that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing
them in institutional care in the name of their best interests.
The failures of public bodies in this regard have been evident in high-profile cases such as London Borough of Hillingdon v Neary and Essex County Council v RF
The amendments would also aim at giving greater priority to the person’s wishes and feelings when a best interests decision is being made, and qualifying the
immunity from legal action in respect of best interests decisions under section 5 of the Mental Capacity Act so as to provide additional procedural safeguards in
respect of certain key decisions by public authorities.
1.42 In addition we are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty
following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst
we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject
to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.
And it wouldn’t be a civil service consultation without an omphaloskepsis exercise of deciding what it should be called
1.47 At consultation we provisionally proposed that the First-tier Tribunal should review cases under our new scheme, thereby replacing the role of the Court of
Protection. This proposal was supported by a significant number of consultees.
We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels
of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal
jurisdiction was introduced. We have not yet reached a final decision and will be considering our position further over the coming months.
1.48 Finally, perhaps the issue that provoked most debate at consultation was the nomenclature associated with the DoLS. Most consultees felt that the term
“deprivation of liberty safeguards” was at best unhelpful and, at worst, meant that people were being denied access to legal rights. Some consultees were similarly
critical of our proposed new terminology, including the label “protective care”. A number of consultees suggested the name “liberty safeguards”, whilst the next
favourite was “capacity safeguards”. However, there was no consensus on the terminology that should be adopted. Therefore we invite further
views (by 23 June 2016) on the name that should be given to the new scheme.
Please send your suggestions to Olivia.Bird@lawcommission.gsi.gov.uk.
There are some legitimate issues here about how naming something creates a set of preconceptions about what the scheme is for and whether it is intended to be a rights-based or a patrician cotton wool scheme, or where on the scale it falls, but this sort of thing always does remind me of Douglas Adams, writing about a bunch of middle-managers and marketing execs who fled their own planet and find themselves living on Earth in the stone age, trying to rebuild society from the ground up.
Well, you’re obviously being totally naive of course“, said the girl, “When you’ve been in marketing as long as I have, you’ll know that before any new product can be developed it has to be properly researched. We’ve got to find out what people want from fire, how they relate to it, what sort of image it has for them.” The crowd were tense. They were expecting something wonderful from Ford. “Stick it up your nose,” he said. “Which is precisely the sort of thing we need to know,” insisted the girl, “Do people want fire that can be fitted nasally?“ “And the wheel,” said the Captain, “What about this wheel thingy? It sounds a terribly interesting project.” “Ah,” said the marketing girl, “Well, we’re having a little difficulty there.” “Difficulty?” exclaimed Ford. “Difficulty? What do you mean, difficulty? It’s the single simplest machine in the entire Universe!“ The marketing girl soured him with a look. “Alright, Mr. Wiseguy,” she said, “if you’re so clever, you tell us what colour it should be.“
Well, obviously, if the answer to this was “Yes, of course”, it wouldn’t be a very interesting case to write about. So the fact that the Judge in this case said no to a 16 year old giving evidence, twice, is worth reading about. It’s quite long, I’m afraid, but there’s some good stuff in here.
It involves five judgments, all of which were published today. Yes, five.
When this popped up on the feeds, it was nearly a Seven Brides for Seven Brothers moment, but we did eventually stop at five.
Kent CC v D and Others (1) (2) (3) (4) (5) 2015
The Court were dealing with care proceedings involving three families, which they linked together. When you read the list of counsel that were in the case, it must have been an absolute nightmare to coordinate hearings so that they could all do them, and how even the advocates meetings worked is beyond me.
They are always horrendous when you’ve only got four advocates to get together (one person always forgets whether it is 5 or half 5, or has a phone line that drops out, or has a hacking cough). Doing it with EIGHTEEN counsel…. Just doing the introductions must have felt like the “Goodnight ma, goodnight pa, goodnightJim Bob” schtick from the Waltons.
[It was practically mandatory at any camping trip or sleepover that someone had to start doing this when it was finally time to go to sleep. There would be a few moments of unsupressable giggles, then someone would take it far too far and you’d have to get out of your sleeping bag and give said person a dead arm to make them shut up. Apologies if I have rekindled that tradition]
By the time all 18 counsel had introduced themselves on day one of the final hearing, it was probably time to go to lunch.
Anyway, most of the broader interest in this case comes from one child, named Z. Z was at the time of the original hearings 16 years old, and was making allegations that various adults had sexually abused her and involved her in sexual exploitation, trafficking her and selling her for sex. Those allegations had an impact on all three cases (there were other allegations but these I think were the major ones).
Some of the parents in the linked care proceedings wanted Z to be called to give evidence.
Z was giving evidence in the criminal proceedings, so there was no issue about her CAPACITY to give evidence. However, she did not WANT to give evidence in the care proceedings.
Z was first informed about these family proceedings in early October by one of the police officers, who she is said to have a good relationship with. The officer explained to Z about these proceedings and the possibility of her giving oral evidence using an explanation that had been agreed by the parties in this case. Her response was to say ‘No way I’m not. That means I’d have to go two times and remembering about them makes me sick’. She asked whether the family case concerned her siblings, when she was told it didn’t she repeated her refusal to give evidence in more explicit terms. The police officer reports that she discussed with Z the special measures that could be put in place for her to give evidence, but she stated she could not put her mind to it. Z telephoned her mother to ask for her advice and was heard to say that she felt too much was being asked of her.
Shortly afterwards Z was assessed by a psychologist. One of the matters the psychologist was asked to assess was whether Z was able to give evidence in the family case and then again in the criminal case. The report describes Z as ‘an extremely suspicious person who attempts to gain control of situations’ and described her engagement with the assessment as ‘negative and variable’. It is clear from the assessment she is deeply distrustful of social services and sees them as the reason why she is separated from her parents against her wishes.
The psychologist was not able to complete the psychological tests she wished to undertake, due to Z’s refusal to answer the questions. From her assessment she stated ‘Psychologically Z presents as a person who has a limited ability to concentrate and attend within situations, especially in situations that she does not find rewarding or does not see the necessity of, and of course, situations that she wishes to avoid psychologically because of distress that the memories potentially cause to her. Z appears to be psychologically a person who does not necessarily comply easily with authority and there is a possibility that she could, in my opinion, present as angry and disinterested in a trial situation if she is faced with the recollection of trauma…..I consider that it is highly likely that when Z is distressed she is more likely to respond in an antagonistic way and it is likely that she would in such a situation withdraw or become aggressive or antagonistic, rather than cope with underlying distress and psychological difficulties. This psychological aspect of her functioning, in my opinion, would affect her ability to give evidence and deal with a Court situation. Furthermore, she does have a history of emotional and behavioural difficulties described within her records and if Z is under a situation of acute pressure or distress her behaviour may become inappropriate and disruptive. Such a situation would clearly be detrimental to Z psychological functioning and detrimental in terms of her ability to deal with the Court case.’
In answer to the question about whether Z is able to give evidence initially in the family court and then in the criminal court she states ‘This again is difficult to answer given the information that is available to me both from the background papers and from this assessment. However, I am of the opinion tentatively that Z, with support, is strong enough to give evidence in both courts, but close monitoring of her psychological stability will be needed. I am of this opinion because Z presents as extremely determined to see justice done in relation to her alleged abusers. In my opinion she needs to be enabled to keep her focus on the issue of her receiving a degree of justice in order to facilitate her continued co-operation.’ It is of note that she did not discuss giving evidence in both cases directly with Z during the assessment.
The social worker’s intention had been to meet with Z for two periods of 3 hours to assess her, however due to Z’s volatile behaviour she only managed to spend 1 hour in her company in total over the two sessions. She said ‘Although Z is sixteen years old, and can present as being a mature young lady, this behaviour is short lived and she will quickly display behaviour which is characteristic of a much younger child if she deems she is not getting her own way’. She said the second visit was more ‘successful’ in that she ‘had a full conversation about her role and what was being asked of her, this too quickly deteriorated and she refused to speak to me becoming rude and aggressive. I am not confident she fully understands the court process and what it means for her, nor am I confident that she will be able to withstand the rigours of cross examination.’
In her conclusions she states ‘Z is currently experiencing a high level of stress. She admits to being very angry and has stated, in no uncertain terms, that she will not give evidence in the family hearing….Z is vehemently opposed to giving evidence in the family case. If Z gives evidence in the family law hearing, prior to the criminal case, it is the view of the local authority with responsibility for Z, that this puts her in grave danger and at risk of significant harm, it is felt that the risk to Z and potentially others is extremely significant and could lead to her being seriously harmed or worse.’ She refers to the concerns about risk of Z absconding, particularly if there is some distance to travel to enable her to give evidence. She continues ‘Z is an emotionally traumatised young girl. Her level of volatility and challenging behaviour evidences this. She has previously received treatment for psychiatric difficulties and she is especially vulnerable in this area….In my professional opinion Z presents as one of the most severely abused children I have met within the area of Child Sexual Exploitation. The majority of the trauma which she has experienced is currently unknown to professionals and the potential for re-traumatising her by placing her as a witness is significantly high and could have lifelong emotional consequences for her…I am of the view that Z should not give evidence in the family hearing and that to call, her as a witness would place emotional stress upon her which would be significantly detrimental to her mental health and could potentially destabilise the current placement.’
The Judge, Theis J, in the first judgment in November 2014
decided that the child, Z, would not be called to give evidence.
In considering how I should exercise my discretion it is important that I remind myself that it is being considered against the backdrop of the court’s objective to achieve a fair trial of the issues in dispute between the parties as to the threshold criteria (see Lady Hale Re W (Children) UKSC 12 paragraph 23:
“The object of the proceedings is to achieve a fair trial in the determination of the rights of all of the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions; whether the threshold criteria justifying state intervention have been proved; if they have what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.”
Having undertaken the balancing exercise that I am required to do in accordance with the guidance laid down in Re W, I have reached the conclusion that Z should not be required to give oral evidence in these proceedings, as I consider it more likely than not the harm that such a course is likely to cause her outweighs the advantages of her giving oral evidence.
I have reached that conclusion for the following reasons:
(1) There is considerable evidence about Z’s vulnerability; emotionally, physically and psychologically. She has been receipt of psychiatric care in the past and has displayed severe emotional vulnerability about her current situation. She is considered to be at risk of absconding and that risk is said to increase if she was required to leave where she currently resides to join a link for video evidence against her wishes. Whilst it is likely the risk of absconding could be managed, the adverse risk to her emotional and psychological health is more likely than not to beconsiderable by requiring her on two occasions to recall the details of what she has said took place.
(2) I have evidence from a number of sources about her wishes about giving evidence in the family proceedings. Z has made it clear she does not want to give evidence in these proceedings, and it is more likely than not that she would refuse to co-operate with directions to do so by the court. I have carefully considered the context in which she has expressed her wishes; namely to the officer in the case and the social worker. She is reported to have a trusting relationship with the officer, but in their discussions was unable to countenance the prospect of giving oral evidence twice and an important feature from her perspective is that these proceedings did not concern her siblings. As regards the views she expressed to the social worker I have borne in mind her negative views about social services, but the social worker who went to see her was not her allocated social worker, she is an experienced social worker and she saw her on two occasions so was able to assess her views and reactions over a period of time. Her written and oral evidence was clear; Z is unwilling to give evidence in these proceedings. I have carefully considered whether when faced with a direction by this court to give evidence she would, in fact, actually comply. Whilst that is a possibility it is more likely that she would not and, in fact, such a direction is likely to cause her more distress and increase her level of anxiety.
(3) The ‘tentative’ view expressed by the psychologist of Z’s ability to give evidence in the family and the criminal case was done without the information this court has as to Z’s wishes about giving evidence in the family proceedings. In addition this was not an issue that was not discussed directly with Z by the psychologist. Therefore, whilst I take it into account I do not give it the same weight as the direct evidence I have about her wishes not to give evidence in these proceedings and her emotional vulnerability if required to do so.
(4) It goes without saying that providing her welfare needs could be properly safeguarded the Convention rights of all the parties in these family proceedings would be protected if Z could give oral evidence. In principle special measures could be put in place to ensure her evidence is given in a way to protect her welfare. However, that is only one aspect of the discretion the court has to exercise, albeit it is an important one.
(5) I have carefully considered whether any more steps can, or should, be taken to explain to Z the purpose of these proceedings and the need for her to give oral evidence. The LA in their oral submissions suggested that I could undertake that task. Whilst superficially attractive I cannot ignore the points made by the intermediary, who has probably had the most consistent involvement with Z. In her reports she is very clear of the need for there to be consistent support for Z. In the light of the experience of others (in particular the psychologist who could not be seen to be connected to social services) it seems very unlikely that Z will easily be able to comprehend the alternative view of something she is so vehemently against in just one meeting. It is only likely to be considered by her, if at all, if explained by someone with whom she has an established trusting relationship with over a period of time. That is likely to take some time and may not succeed. As the intermediary observed there is a real risk of overloading Z with demands if she is required to give evidence in these proceedings in the context of the situation she is in, namely in the build up to preparing to give evidence in the criminal proceedings. In my judgment the same applies, in the context of her situation now, to any further assessment of her understanding of the purpose of these family proceedings with a view to seeking her agreement to give evidence in these proceedings too.
(6) I have also factored into my considerations the fact that this is not a single issue case. There is a complex background, which even with sensitive oversight by the court would need to be explored in oral evidence.
(7) An important consideration is that it is accepted there is other material the court can consider, both to support and undermine what Z has said. The court will be able to observe the DVDs of Z and all parties will have the opportunity to challenge or support the accounts give by her on the other available evidence. The court will be able to direct itself in advance of making the appropriate factual conclusions. It is acknowledged in the skeleton argument on behalf of the mother in the D case that ‘this may be an increasingly attractive option in the light of the recent evidence filed by XLA.’
[I’ll pause for a moment – the Judge was clearly very mindful here that Z would not cooperate with giving evidence, and as we now know, whilst a Court CAN compel a child to give evidence and to issue a witness summons, they can’t actually do anything if the child doesn’t come to Court, won’t get in the box or won’t answer questions. They can’t lock the child up.
Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000.
Judgment number 2 is the fact finding hearing, where some findings were made – the Judge gave Z’s evidence less weight than if she had been able to be cross-examined and as a result not all of the allegations Z made were found to be proven.
That was compounded because there were flaws in the ABE video interviewing process. (Sounds depressingly familiar)
As has been made clear in a number of cases the ABE guidelines are important and should be followed. I have been referred to the relevant extracts and have those parts very much in mind. It is quite apparent the Guidelines have not been followed in this case in a number of important respects, in particular:
(1) Pre interview meetings being properly recorded (ABE Guidelines paragraph 2.6)
(2) Avoiding leading questions (ABE Guidelines paragraph 3.61)
(3) The importance of remaining neutral (ABE Guidelines paragraph 2.229)
The breach of these guidelines are serious, they have the effect of undermining the reliability of the account being given which I must carefully balance in my assessment of the evidence. This has made my task in this already complex case particularly difficult in the context where I have not heard Z give oral evidence.
Judgment number 3 is an application for a re-hearing. In large part, that was as a result of the criminal proceedings mentioned earlier. Z did give evidence, and her evidence was not good.
Following the conclusion of the fact finding hearing the parallel criminal proceedings started on 12 January. Two of the mothers in the care proceedings, AK and JE, were defendants in those proceedings together with 5 male defendants facing charges of sexual exploitation concerning Z. Z gave oral evidence in those proceedings over a period of 12 days. In addition prior to giving oral evidence she was able to view her ABE interviews and read her section 9 statements. The memory refreshing procedure was video recorded. The criminal proceedings concluded on 6 March 2015 when HHJ O’Mahony acceded to the application at the end of the prosecution case that there was insufficient evidence for the case to continue on the basis of the inherent unreliability of Z’s evidence.
Theis J considered that application for a re-hearing.
All parties agree the framework governing applications for re-hearing is set out by the President in ZZ and Others [2014] EWFC 9. At paragraph 33 he endorsed the words of Hale J in Re B [1997] 1 FLE 286 ‘Above all, the court is going to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasion reach different conclusions on the same evidence….the court will want to know….whether there is any new evidence or information casting doubt on the accuracy of the original finding.’ There must be what the President called ‘solid grounds for challenge’.
In considering such applications there are three stages: (1) Whether the court will permit any reconsideration or review or challenge to the earlier finding. (2) If it does, to consider the extent of the investigations and evidence concerning the review. (3) The review hearing where the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.
In summary, it is submitted that new evidence, not previously before the family court, requires this court to re-consider the findings founded in whole or part on the evidence of Z in the schedule dated 6 January. There is no serious opposition to this course by the Local Authority in the case of AK, JE, JC or LF; or by the respective Children’s Guardians or DF (who is now separately represented).
That was the legal background to the decision. The factual background was set out in this way.
New Material
The new material relied upon to re-open the findings can be summarised as follows:
(1) Z’s oral evidence in the criminal trial (together with the recorded memory refreshing sessions beforehand when she viewed the ABE interviews) which resulted in the conclusion by the trial judge not to allow the case to go before the jury on the basis of the second ground in Galbraith, due to what he considered were the ‘extreme flaws in the reliability and credibility of Z’s evidence’. Z gave oral evidence over 12 days with careful consideration having been given to appropriate safeguards and the use of an intermediary. HHJ O’Mahony’s conclusion was founded on a number of grounds, which included
(i) 8 men being wrongly put in the frame in allegations of rape and trafficking, 2 of whom were defendants in the criminal proceedings. HHJ O’Mahony stated when giving his ruling ‘it is clear from the cross examination based on sound and undisputed disclosure that by mistake, confusion or sheer lies, Z has implicated eight men of serious crime and then in evidence withdrawn the allegations or robustly rejected them as being wholly wrong’.The detailed analysis in the ruling in the criminal proceedings includes some evidence available at the family hearing, although the further inconsistencies, retractions and reasons for retractions in Z’s oral evidence in the criminal proceedings is clearly new.
(ii) The lack of corroborative evidence to support the two weeks Z had said she spent in hospital. That position was largely known at the family hearing although in the memory refreshing stage Z stated that the hospital stay was not true.
(iii) The different accounts Z had given of her return from Town C to Town A, 3 of which were known to the family court, but a further account was given in oral evidence.
(iv) The differing accounts of times she was taken to Town C, she gave a different account in her ABE interview (known about at the time of the family hearing) and in her oral evidence (both in her examination in chief (30 – 40 times) and her cross examination (‘I made a mistake’)). The accounts in the oral evidence are new.
(v) The events when Z was in town A. The documents disclosed Z had been seen by the police, told them her parents were selling her for sex and then Z denied to the police having said that (this was all known in the family proceedings). In her oral evidence she rejected any of the events disclosed in the town A documents had occurred and that all was well throughout her time in town A. In a lunch break during cross examination she was seen on the phone to her mother writing notes which she tried to tear up when the police tried to take them from her. She refused to answer any more questions about town A. When her mother gave oral evidence about the phone call she said Z had told her on the phone that she, Z, had lied about it in evidence before the jury. The account in Z’s oral evidence, and her mother’s evidence about the phone call are new.
(vi) Inconsistent accounts by Z as to whether she had taken drugs voluntarily or not, when the prosecution case was she was forced to take drugs. In her 13 February interview (which was known to the family court) she said she was addicted to drugs. In her oral evidence she said she did not know or remember if she brought drugs or was addicted to drugs. There is reference to a facebook conversation concerning drugs and a video of Z expertly rolling a joint. The oral evidence, facebook conversation and video are new.
(vii) Inconsistent accounts concerning sex with JDI, which were described by HHJ O’Mahony as ‘remarkable’; alleging that in the 6 March interview, denying it in the 24 October interview (both of which were known in the family proceedings) and in her examination in chief and cross examination stating that he had raped her. The content of her oral evidence is new.
(viii) False complaint by Z against her father, she admitted this in her oral evidence. This was not before the family court although her mother gave evidence in the family proceedings that she thought Z had done this as the father had stopped her going out to a nightclub.
(2) Further details emerged in the criminal proceedings about the evidence gathering of DC Verier that puts into question the neutrality of the investigation, which I had already been critical of. It emerged during the criminal trial that DC Verier had been instructed to pre-prepare a statement in section 9 form and turn up at the address with it and present it to Z. This was not disclosed in her evidence during the hearing before me, although it was raised as an issue in cross examination.
(3) The evidence available in the criminal proceedings (notably the evidence of DC Brightman in the voir dire) regarding the circumstances surrounding the ABE interview of CC such that HHJ O’Mahony excluded it under section 78 PACE as having been obtained in circumstances which he considered as oppressive bearing in mind the vulnerability of the witness. The full detail about the circumstances of this ABE interview appears to be new.
The courts overriding objective is to deal with cases justly having regard to the welfare issues involved. The factual and welfare issues in this case could not be more serious or complex. The threshold findings relied upon by the Local Authority are the only basis upon which they are justified, by law, in seeking to interfere with the Article 8 rights of each of the adults and children.
Although the Local Authority submits that the family court was aware of and alive to the significant emotional, psychological and intellectual difficulties of Z and the inconsistencies in her evidence at the time of the family hearing it acknowledges the procedural bind the court is in.
You will see that the criminal trial condemnation of the ABE interview went further than the Family Court, indeed excluding the ABE as evidence at all. [The “voir dire” reference is to a hearing or part of a hearing where argument took place in the absence of a jury as to whether certain evidence could be seen be a jury or had to be excluded. If the Prosecution loses the voir dire hearing to decide whether the jury can see the ABE interview, that would be a massive – if not fatal – blow to the Prosecution case. ]
Decision
I have reached the conclusion that in the somewhat unique circumstances of this case that justice requires the applications for a rehearing should be permitted on behalf of AK, JE, JC and LF in relation to the findings identified above. In reaching this decision I have taken into account the following considerations:
(i) The need to balance the public interest in finality in proceedings and minimising delay to a child against the importance of ensuring findings of fact have been correctly determined to ensure matters are justly determined.
(ii) Whilst any further delay is inevitably inimical to the welfare of each of these children in differentways, due to their varying ages and needs, the importance of the court’s findings in each of the cases as to any welfare decisions is clear, and weigh the balance in favour of ensuring the findings are correctly determined.
(iii) It is clearly important for each of these children to know the truth.
(iv) Any findings that involve Z will have an impact on the risk assessments that are undertaken and are likely in each of these cases play a key part in the welfare decisions made by the court, which include whether the children are rehabilitated and/or decisions as to contact.
(v) The credibility of Z was at the core of the Local Authority’s case. It is an issue that has already received careful consideration by this court but the new information from the evidence in the criminal proceedings provides a ‘solid ground’ upon which the findings I made should be reconsidered. It will be necessary for this court to consider again the reliability of Z’s evidence in the light of the new material that is now available.
(vi) Although the outcome of a further hearing cannot be predicted it is possible that the court may reach a different conclusion; a review of the new material may lead to different findings, it may not. The new material raises serious issues for the court to consider.
(vii) The findings that are sought to be re-considered are inextricably linked and should be considered together.
So there would be a re-hearing (there were some findings that would be untouched by the issues over Z’s credibility, and those matters would not be re-heard)
Judgment 4 (nearly there) was the decision as to whether Z should be called as a witness at the re-hearing of the fact finding in the care proceedings.
Understandably, the parents, given that litany of complaints about Z’s credibility arising from the criminal trial, were keen for Z to be compelled to give evidence and have the opportunity to demonstrate that her allegations were false.
Complicating things still further, Z had gone to live in another unconnected Local Authority in foster care, and had told them that she wanted to go back to live in Slovakia with her maternal family, which she duly did. So by the time Theis J was dealing with this, Z was not in the UK and her precise whereabouts were not known.
Submissions
An order is sought on behalf of AK and JE requiring Z to give oral evidence, although the difficulties that are presented to the court are acknowledged. They seek an order, in principle, that Z should be required to give oral evidence. They recognise there may be difficulties in effectively enforcing any order as Z is out of the jurisdiction. They submit the court should make that decision requiring her to give oral evidence for the following reasons:
(1) Z should not be permitted to pick and chose which proceedings she participates in. This is particularly so when considering the observations of HHJ O’Mahony regarding the false allegations she has made before and during the criminal proceedings.
(2) By not requiring Z to give evidence this court is depriving itself of the advantage the judge had in the criminal proceedings of being able to observe her oral evidence over a number of days.
(3) There are relevant issues that they seek to explore with Z that were not fully dealt with in the criminal proceedings.
(4) It is acknowledged Z would suffer emotional harm if she was required to give evidence, although the information available to the court is out of date, due to Z’s failure to co-operate with any Re W assessment. It is submitted that Z was able to give evidence over a number of days within the criminal proceedings, and there is no reason why she should not be able to do so if carefully and sensitively handled within these proceedings. It is submitted there is no evidence of grave harm suffered during the criminal process.
The LA does not support the Re W application. They submit
(1) There is no evidence that would indicate a change in Z’s vulnerability and ability to engage with the court to give evidence.
(2) The evidence the court has from Z LA sets out Z’s extreme stress during the criminal proceedings, exacerbated by her frequent attendance and the conclusion of the trial; her extreme stress regarding her previous experiences and her family leaving the country without her; her anger at being placed in secure accommodation and her reluctance to provide any evidence in relation to any more proceedings; her intention to kill herself if she was not allowed to join her family in Slovakia.
(3) In the updated statement dated 8.7.15 XLA state that since their previous statement on 22.5.15 Z has continued to experience high levels of stress in relation to her experiences of having to provide evidence in the previous proceedings and her family returning to Slovakia.
(4) The most recent statement from XLA details Z’s views were sought on three separate occasions in respect of giving evidence in the family proceedings. On each occasion she has been clear she did not want to participate in the proceedings or give evidence.
(5) Although Z has not engaged in an up to date assessment XLA report that in any event the psychological aspect of Z’s functioning would affect her ability to give evidence and deal with a court situation.
(6) The court has significant additional material to consider in its evaluation of Z’s accounts; video recording and notes from the memory refreshing exercise and transcripts of all of her evidence in the criminal proceedings.
The Judge decided not to make orders compelling Z’s attendance as a witness
Discussion and Decision
The inherent difficulties in dealing with family proceedings that involve vulnerable witnesses have, once again, come into sharp focus in this case. At each stage this court has had to conduct the difficult balancing exercise of seeking to ensure the court has the best evidence available, so that any decision reached is on a secure foundation, against the welfare considerations of the individual witness.
In November last year, faced with a similar application, I determined that the welfare considerations of the witness outweighed the other considerations, and Z should not be required to give oral evidence.
This court is reconsidering this issue in the light of the fact that Z was able to give oral evidence over a number of days in the criminal proceedings, the adverse conclusions reached regarding her credibility by HHJ O’Mahony and that this court has listed a re-hearing of the findings made previously, that were in large part founded on Z’s evidence.
Having now considered this issue again, in the light of the recent events and evidence, I have reached the conclusion on the information available to the court that Z should not be required to give oral evidence, as on analysis of that information such a course would be contrary to her welfare and this outweighs the benefits of her giving oral evidence. I have reached that decision for the following reasons:
(1) If Z were able to give oral evidence undoubtedly this court would have the best opportunity of assessing her evidence. It has rightly been referred to as the ‘gold standard’ and it fully protects the Article 6 and 8 rights of the parties, which include the adults and the children. Reliance is placed on what took place within the criminal proceedings where the reliability of Z’s evidence was tested through the forensic process.
(2) However this court cannot ignore the evidence it has concerning Z’s welfare. In November I concluded that a combination of her express wishes and the evidence the court had about her psychological vulnerability resulted in the court determining she should not be required to give oral evidence. Since Z concluded her oral evidence in the criminal proceedings her psychological position has deteriorated to the extent that XLA sought and obtained orders to place her in secure accommodation to protect her. In the two statements the court has from Z LA it is clear Z was suffering extreme stress through a combination of events. Her expressed wishes have not changed; on each occasion she was asked about giving evidence in these proceedings it was clear she did not want to participate in them.
(3) Whilst this court does not have detailed updated information regarding her psychological state it is clear from what is available that her current functioning would inevitably affect her ability to give evidence and deal with the court situation. Forcing her to give oral evidence, even if that was possible, would undoubtedly be contrary to her welfare.
(4) In conducting the re-hearing the court does have significant additional material to re-evaluate Z’s accounts by way of the video recorded memory refreshing exercise, together with the notes taken and full transcripts of her oral evidence within the criminal proceedings.
I have reached this conclusion on the information available to the court now.
Some criticism has been made of the fact that XLA took steps to facilitate Z leaving the jurisdiction without notifying this court or the LA of the steps they were taking. The effect of the Z leaving the jurisdiction has curtailed this court’s ability to take any further steps to assess Z’s ability to give oral evidence. XLA state that they were not formally aware of Z’s position until the morning of 9 June, the next hearing was two days later. It was a fast moving situation which they state did not give them sufficient opportunity to inform this court or the LA of the developing position. Whilst it is regrettable this court and the LA were not kept updated about the developing position regarding Z’s status here, the reality is there would have been limited, if any, steps this court could have taken to prevent Z leaving the jurisdiction.
I have directed the LA to continue its efforts through the Central Authority to get updated information about Z’s whereabouts and her current circumstances.
Finally then, part 5, was the judgment from the re-hearing, which took place without Z’s evidence.
I have to say, as a prelude to this, a key witness who had admitted to having made false allegations and whose evidence in the criminal Court led a Judge to conclude that the prosecution could not safely continue, who doesn’t want to give evidence in the family Court and who leaves the country, that’s evidence that it is hard to give any weight at all to. One can only speculate as to what view the Court would take of a parent’s evidence if those features applied.
There was fresh criticism of the police investigation
Criticisms regarding the police investigation
In the January judgment I made a number of criticisms of the police investigation (see in particular paras 432 – 435). In his ruling in March HHJ O’Mahony agreed with those concerns and expressed his own concerns about the investigation in trenchant terms. I hope that any review of the police investigation will take on board what has been said in both sets of proceedings about the investigation. Like HHJ O’Mahony I appreciate that this investigation was a difficult and challenging process for all those involved dealing with a young, vulnerable person as Z.
This hearing has done little to improve the position regarding the investigation. Whilst this court recognises the enormous sensitivities involved in this type of investigation, it is clear that some of the decision decisions taken have seriously undermined the evidence. For example, the decision made not to challenge Z in relation to possible inconsistencies, the methods used to put her at ease and gain her trust seriously risked being seen by her as encouragement, with the consequence of undermining the quality of her evidence. When looked at in the context of her low IQ and the information regarding her tendency to confabulate (which information was only available after all the interviews and discussions with her had concluded) made the task for this court challenging when evaluating the reliability of the evidence to support any of the findings sought in January. The events since January, has undoubtedly made that task significantly more challenging.
and later in the judgment here
Further criticisms of the police investigation
In addition to the criticism this court made in the January judgment and HHJ O’Mahony in his 6 March ruling, further matters have emerged to the forefront during this hearing. They can be summarised as follows:
(1) The failure to follow up any further enquiries relating to SA. He is the neighbour who lived next door to AK against whom cross allegations had been made. Z alleged AK sold her own daughter AD to him, which AK and AD deny. AK alleged that it was Z who used to visit him, have sex with him. In his oral evidence in this hearing DI Cooper said this man was interviewed, denied the allegations and it was not taken any further. Very recent disclosure from the CPS confirmed this man was seen by the police in August 2014. He denied having sex with any of the occupants of AKs address and described an isolated occasion when he smoked cannabis and was offered sex for money by a woman who visits AK who he described as being ‘in her late twenties, slim build, blond hair and who always wears sexy clothes’.
(2) The very recent disclosure of the s9 statements of LS. His existence was not known during the previous family hearing and was only noted as being referred to in the written submissions in the criminal proceedings. He is the former boyfriend of AD who described Z being a regular visitor to AK’s home, but makes no reference to Z being there against her will. This disclosure was made on the last day of this hearing; no party sought this witness to attend to give oral evidence.
(3) The failure to interview AD who would have been able to shed light on what was going on. This was raised in the previous hearing. Z had alleged that AK prostituted AD and that she and AD had spent the night in bed with a Pakistani man. It is submitted that this gap in the information available has to be seen in the context of the frequent meetings with AD’s much younger sister, KD. This, it is submitted, supports the lack of balance in the investigation.
(4) The failure to challenge Z (for example, in relation to the hospital stay), the deliberate departures from the best practice outlined in the ABE guidelines, the failure to properly record key events (in the drive round and the meetings with potential witnesses where there were incomplete records regarding the questions asked). Most of this was known at the previous hearing but need to re-evaluated in the context where this court has not had the advantage of Z giving oral evidence.
(5) KV’s evidence in the criminal proceedings about the pre-prepared s 9 statement she took to the meeting with Z on 7 May. This was not disclosed in the previous hearing before me, although it raised as an issue in cross examination by Mr Larizadeh. In her evidence in this hearing KV said she ‘forgot’ that was what happened when she previously gave evidence before me. She said she had more time to prepare for her evidence in the criminal proceedings. Although I accept at face value what KV says I do find it very surprising that such an important detail was forgotten when she gave evidence in the previous hearing. It was, as HHJ O’Mahony described, an usual step to take in such an investigation, especially with such a vulnerable witness. It was based on information given two months previously and KV accepted the way it was presented to Z risked limiting her ability to say what she disagreed with.
(6) There was much debate during this hearing about when the police were made aware of the information from Slovakia, which included information about Z’s tendency to confabulate. The evidence very recently disclosed now shows DI Cooper received this on 28 October 2014, considered it and circulated a note about it on 30 October 2014 attached to an email that was copied to KV. KV said in evidence at the previous hearing (which is now known to be after receipt of the email from DI Cooper) that she was seeing the information from the Slovakian psychiatrist for the first time. That was clearly not the complete position as in her very recent s 9 statement she states ‘I can confirm that looking back through my email records, I received an email on 30/10/2014 titled ‘CONCERNS REGARDING 3rd PARTY MATERIAL FROM SLOVAKIA.DOCZ’. This email contained a report ‘outlining’ the points made about Z by a Psychiatrist in Slovakia including as per DI COOPER’s statement on 24/09/15
• She has tendencies to distort reality
• has tendency to confabulation
Looking at DI COOPER’s statement and the email he sent to me on the 30/10/!4, I have only now remembered receiving this. I can state that I did read DI COOPER’s chronology on Z’s 3rd party records but did not read the translated Psychologist report itself as believed his chronology to contain all necessary points of concern.‘
(7) KJ was closely questioned about how the investigation proceeded. Although it was clear all decisions regarding the investigation were being led by the police, it appears that there was no effective contribution by the LA to the strategic decisions being taken (eg the conduct of ABE interviews, non compliance with ABE guidelines, meetings not fully recorded in writing or by video etc). KJ was questioned about leading questions in some of the ABE interviews and it became clear that she, like KV, believed what Z was saying and as a result risked remaining neutral in gathering the relevant information. As with the police, the LA in this type of situation should have early access to specialist legal advice to enable them to fulfil their statutory obligations, particularly in circumstances where there are likely to be care proceedings based on the evidence gathered during the police investigation.
There’s also an interesting nugget about “police intelligence” (insert your own joke here, if you like)
Police Intelligence reports
Much criticism has been made of these reports. They are, as Mr Storey puts it, as the bottom of the evidential food chain to such an extent that they are no more than ‘tittle tattle’ and should not be used to prop up an already weak case. He makes the obvious points that the reporter is not known, no attempt has been made by the LA to identify them, produce a statement from them and call them to give evidence. As a result, he submits, they barely amount to evidence.
Mr Feehan recognises they are hearsay accounts and the court should treat them with caution. However, he relies on the accuracy of many of the details given in them to lend support to other evidence, particularly that of Z, who was very unlikely to have known about the content of them.
The Judge dealt with Z’s evidence and the issues with it
Z’s evidence
The evidence from Z has been put under renewed scrutiny in this hearing.
It is right that the main reason why the re-hearing was sought was the collapse of the criminal trial and the reasons that underpinned that. Obviously this court is not bound by any conclusions reached by HHJ O’Mahony in his ruling, but the evidential position that brought about that conclusion is clearly very relevant.
The first matter is that prior to her first ABE interview on 6 March 2014 Z had made serious allegations against a number of individuals, including two people who were defendants in the criminal proceedings. In the meetings Z had with DC Verier (KV) and Kayleigh Jones (KJ) on 13 and 20 February Z implicated a number of people as causing sexual harm to her. In the first meeting JDI, MC, and A. In the second S, T, RK and RF. In her the memory refreshing exercise and her oral evidence in the criminal proceedings she withdrew her allegations against a number of men including A, S, RF, T and U.
Two of these men, RK and A, she had described in her oral evidence as having been very kind to her; RK was a former boyfriend. She went further in her oral evidence in that she denied she had ever said to KV in her meeting on 13 February anything unpleasant about A.
It is submitted that the importance of this is that it is now known that prior to the first ABE interview Z had already told untruths about a number of men regarding serious sexual offences. As Mr Storey submits, this was also at a time when those who were speaking to Z were ignorant of the information that subsequently became available about Z’s low IQ and suggestibility.
That is of course, a pretty major issue – if it was already known before the first ABE that Z had made up serious sexual allegations about a number of men that proved to be untrue, then surely the police investigation into the next batch of investigations had to bear that in mind. It didn’t automatically mean that she was lying this time, but you surely don’t go into the investigation assuming that what is emerging is automatically true. You have to bring some sort of sceptical eye to bear on what is being said. The police in this case would be pointing fingers at the villagers in the Boy Who Cried Wolf story, saying, “Well, I simply can’t understand why they didn’t evacuate the village the fifth time that he Cried Wolf, it was OBVIOUS that there was a wolf on the way”
[*Of course there might be a wolf, and you have to be alive to that possibility, but there’s another possibility to take into account, surely?]
It is submitted that this behaviour by Z supports the suggestion that Z has the capacity to make up allegations against people for little or no reason. Two of the people she had made up allegations about, RK and A, she subsequently described as having been very kind to her. In other instances, when she has given a reason it has been a slender one (such as the allegation of assault against her father when she stated she wanted him to be in prison, to then subsequently state she had made the allegation as he had refused to allow her to attend a disco). This behaviour, it is submitted, supports the evidence given by Z’s mother, ZM, in the previous family proceedings that Z was someone who would ‘make up stories, someone who made up allegations of sexual abuse against people’. ZM said something similar in her oral evidence in the criminal proceedings.
Feeding into this is the further inconsistent oral evidence given by Z about a number of other matters. For example, the times she was allegedly taken to Town C. In her ABE interview it was twice, in examination in chief in the criminal court it was 30 – 40 times and in cross examination she said it was a mistake. The rest are set out in HHJ O’Mahony’s ruling.
Another feature of Z’s evidence is the additional information regarding what occurred in City A. It is suggested to have been missed by all the parties in the family proceedings that buried within the papers was a separate reference by Z to her family selling her for sex. This arises from a question put in the criminal proceedings by Mr Saxby Q.C. (leading counsel for RB). At the time of the first family hearing it was thought this had only been said by her once (to PC Swift, which she subsequently denied). It now appears that the records show this was possibly done on two separate occasions, to two separate people. The second occasion was two days prior to the time with PC Swift to someone called N (although the records available do not specifically record her saying to this person she was sold for sex but that question was put in the criminal case without objection being raised). It is pointed out that this now lends more support to such behaviour by her own family, further supported by her reaction recorded in her meeting with KV on 26 March 2014 when asked if her parents had ever received money for her she ‘looked extremely sad and refused to provide an answer or make eye contact’. This additional information resulted in both KV and KJ agreeing with Mr Storey in cross examination in this hearing that if they had known about these reports from City A they would have considered removing Z from her parents care, both for her own protection and so she was in a neutral environment.
The Judge did eventually conclude that some of the matters of concern relating to Z were proven (it is very difficult, from the outside, having not seen the undoubtedly huge volumes of paper and detail or heard the evidence, to know whether that is a fair decision or not – the Judge must certainly have been very worried about placing any credence on accounts given by Z that could not be independently corroborated and evidenced by other sources)
Discussion and Findings
In considering these findings afresh I remind myself of a number of key matters:
(1) That the burden of proof remains on the LA throughout. The parents do not have to prove anything.
(2) It is critical that I keep an open mind when considering the evidence again, which I do.
(3) I have not had the benefit of hearing and observing the oral evidence of Z whose evidence is such an integral part of the LA’s case.
(4) In considering the Lucas direction and in the event the court concludes a witness has lied the court may factor in the circumstances of the witness (including social and cultural) in considering why that witness may have told untruths.
(5) Whilst hearsay evidence is admissible the court must be careful to assessing the relevant considerations as to what weight it should be given.
(6) I must be careful when considering the wide canvas of evidence that this court is required to do that the burden of proof not reversed.
Mr Storey was careful, in his well crafted submissions, not to make what was in effect a submission of no case to answer (recognising what is set out in cases such as Re Z [2009] 2 FLE 877). What he submits is that Z’s evidence is now so undermined and unreliable that it cannot be supported by what is, in effect, hearsay evidence that there has not been adequate or proper opportunity to challenge.
Mr Feehan on behalf of the LA recognises the difficulties there is with the reliability of the evidence from Z, but submits that when looked at in the context of the corroboration that is available, albeit from mainly hearsay evidence, demonstrates that some aspects of her account is in fact credible to the extent that it is more likely than not that it occurred. He fully recognises there is no burden on the Respondents, but submits the court is entitled, when considering the wide canvas, to take into account in evaluating the evidence the Respondents evidence too. That must be correct although the court must be alive to ensuring that a weak case is not bolstered by evidence other than that called by the LA with the result that the burden of proof is reversed.
This court in the previous hearing analysed and evaluated the evidence then available. On a fresh analysis and evaluation, in the light of the new material outlined above, I have reached the following conclusions in place of the findings set out at paragraph 4 above:
(1) AK, JE and JC had much more contact with and knowledge of Z than each of them has revealed in their evidence in these proceedings.
(2) They were each aware Z was being sold for sex and that she was under 16 years.
(3) LF knew Z was being sold for sex and that she was under 16 years.
I have reached those conclusions for the following reasons:
(1) Whilst I acknowledge that within the criminal proceedings Z did not back down in her allegations about AK, no one has suggested that I should revisit my earlier conclusions about the ABE interviews after 6 March. There is no basis to do so.
(2) The findings I made concerning AK’s involvement in the arrangements for Z being sold for sex and that she kept Z in her home against her will were founded in large part on the first part of the ABE interview on 6 March. That now has to be looked at in the light of the further retractions and inconsistencies made by Z within the memory refreshing exercise, her oral evidence in the criminal proceedings and the fact hat this court has not had the advantage of hearing her give oral evidence. Whilst I was aware of and took into account the retractions and inconsistencies known about before the previous hearing, they are now of such a scale and extent in relation to allegations of serious sexual abuse that her account of her allegations regarding AK’s involvement in her exploitation has been very seriously undermined. The schedule of inconsistencies and lies produced on behalf of JE accurately sets out the position. The withdrawal by Z of the allegations against the two defendants in the criminal proceedings, are clearly very important. As set out in para 253 of the January judgment Z’s credibility is a central issue; in the light of the new material her credibility is now even more seriously undermined.
(3) Another factor that has to be considered and re-evaluated are the significant criticisms about the way the investigation was conducted, the numerous breaches of the ABE guidelines, the failure to challenge inconsistencies and the worrying lack of neutrality in the way Z was dealt with and the lack of balance in evidence gathering (for example not speaking to AD). These failures further seriously hinder the reliance the court can place on Z’s evidence.
(4) I have had to re-evaluate the consideration of motive for Z to lie in relation to AK. In the light of the fresh information the submission that she lies for the sake of it cannot now be readily ignored. There can be little doubt that Z has had the most difficult background, and has been grossly let down by those adults who have had responsibility for her care. I agree with the analysis by the LA in their closing submissions ‘that everything we know about Z, her background and experiences lend support to the fact that she has been sexually exploited. These experiences left her with little chance that she would be able to fortify herself against it’. The involvement of her own family in her difficulties also has to be re-evaluated in the light of the evidence about what occurred in City A. Her wholesale denial of any difficulties in City A in her oral evidence, together with her subsequent admission to her mother that she told untruths in evidence about City A, illustrates the extent of her vulnerability and unreliability. She has made up serious allegations about her father as she was not allowed to go out and about a former boyfriend due to jealousy about his new relationship.
(5) I have carefully considered what the LA submits is the corroborative evidence to support such a finding against AK as to her direct involvement in Z being sold for sex. It consists of hearsay accounts, unattributable intelligence records or inferences to be drawn from such evidence. Whilst this evidence leaves the court very suspicious of AK’s role in Z’s exploitation, supported by the court’s assessment of AK’s lack of credibility (which this hearing has not changed), I agree with the submissions made by Mr Storey that none of the witnesses that have been called to give evidence have directly implicated AK. The burden of proof is on the LA which, in my judgment, they have not discharged. Mr Storey also makes the point that the intelligence reports could arguably support AK in that over this period (2012/2013) her accommodation was being watched and monitored by the police, there were two police raids in 2012 yet no direct evidence has been called to support her involvement in prostitution or exploitation.
(6) The conclusion I reached previously regarding the enmeshed nature of the relationships between AK, JE and JC and their contact with Z remains secure for the reasons I set out in the January judgment. It is more likely than not they were each aware Z was being sold for sex, and that she was under 16 years. That conclusion is not fatally undermined by the unreliability of Z’s allegations concerning AK. In her interviews Z was able to give details about AK, JE and JC that were consistent with her having had more contact with them than they suggest. For example, she was able to identify AK and JE’s addresses, their children and she attended JC’s address for a bath all of which supports far more contact between Z and each of these women. Mr Larizadeh places reliance on the inconsistency of Z’s descriptions of JE (e.g as being Albanian) but that has to be balanced with other evidence which supports JE’s contact with Z. Z’s account of her contact with them is supported by evidence from a number of different sources; for example the detail AK was able to give in her interview about what Z had alleged (i.e. injections in her back and gang rape allegations) and the meeting with KD on 3.7.14. Whilst I have carefully considered again the criticisms of this meeting and record, in my judgment it provides a coherent account to support the much closer relationship of these women to each other and Z than they have each accounted for. KD was able to give good descriptions and distinguish when she did not know anyone named. Further support is provided by the telephone records of contact between AK and Z, which AK had no explanation for other than a generalised suggestion that others used her phone. It is of note that this phone contact was during one of Z’s missing periods and AK’s number was noted to be stored on Z’s phone when she was seen at school. The evidence supports Z being closely associated with IE and SS, both of whom were respectively visitors to JC and AK’s homes and IE is JE’s daughter.
(7) I have carefully considered why AK, JE and JC would lie about their relationship with each other and Z and am satisfied that it is to seek to distance themselves from Z and their involvement with her in order to undermine Z’s reliability.
(8) It is clear it is more likely than not Z was sold for sex, even if the court cannot make a positive finding who sold her. In her interviews Z said she was sold. Whilst there are some references to Z selling herself I reject that. The weight of the evidence clearly points to her being sold by others. CC in her interviews gives a detailed account of what took place, which corroborates the core of what Z describes. Whilst it is right that there were breaches of the ABE guidelines in the interviews with CC (such as not dealing with truth and lies at the start of the interview and a lack of neutrality in some of the questions) she had the opportunity the day before she gave oral evidence to view her ABE interviews again. She did not detract from the detailed descriptions she gave in those interviews of Z being sold for sex, she maintained that evidence despite being pressed about allegations made by Z about her which she denied. This conclusion is further supported by what JC told the social worker on 11 April (when an interpreter was present). JC’s denials of this record were not credible. The reference in SS’s interview to ‘whoever was (Z’s) boss or like that..they was using her’ further supports Z being sold. It inconceivable bearing in mind my conclusions about the nature of the relationship and contact between AK, JE, JC and Z that they were not aware of Z’s age and that she was being sold for sex. It was something Z did not seek to hide and had clearly been reported by others (such as JC, IE and SS).
(9) I can’t reach any conclusion as to the extent, if at all, Z’s family may have been implicated in some way in her exploitation. There is evidence that points both ways. ZM appropriately reported Z missing and took steps to secure appropriate medical help for her. However there is also evidence of Z saying she was selling herself to help her family, she was picked up by men from the family home and her reaction when asked by social workers whether her family were involved in her abuse.
(10) The further evidence since January 2015 doesn’t in reality affect the finding under re-consideration regarding LF. All those in his household and with whom he had contact with knew of the sexual exploitation of Z by individuals. The evidence still supports the conclusion that she was being sold for sex and that LF knew that, although not specifically of Z being exploited by JE. Those around him and in his household knew or suspected that about Z, and it is inconceivable that he was not aware of that too. I reject his oral evidence that he remained ignorant of this.
Whilst the Court did not make all of the findings that it had made first time round, enough were made to have still crossed the threshold. So the parents of those three families were really no better off after all of this litigation.
The first is that the mother in the case had made threats to kill the social worker and was in fact arrested for doing so.
The matter was listed for final hearing before a District Judge sitting in Birmingham on 13 January 2016. Shortly prior thereto the mother was arrested for threatening to kill the current social worker. Ultimately the police did not proceed to charge her with any offence. At the hearing on 13 January the mother was extremely volatile and making threats of harm to the extent that the social workers and the advocates felt very vulnerable. The District Judge made contact with me and she allocated the case to me.
On 19 January 2016 I gave the mother due warning that her conduct would not be tolerated. I made injunctive orders against her and warned her of the consequences if she were found to have breached the same.
During the initial final hearing of this matter before me in February 2016 the mother made no threats to anyone but she was clearly agitated. On occasions she could not control her emotions, despite the best endeavours of her brother, G, who had moved to sit next to her in court. She left court in temper on a number of occasions.
Without my permission, the mother chose not to attend any of the three days of this hearing. I am satisfied that she did so because she would not have been able to contain her anger or her emotions or would have been likely to threaten people involved in this hearing.
I note when Mr Eyles visited the mother and X on 24 February 2016 the mother accepted she had threatened to kill the social worker but claimed she had not meant it. In the same conversation the mother said about the current social worker ‘I am going to get her’.
The second was that the Local Authority involved had conducted an assessment of family members, the child’s uncle and aunt. The Judge criticised that assessment and directed a fresh one
At the hearing before me on 4 February 2016 I heard evidence from the social worker, Claire Ashby and from a social worker who had undertaken an assessment of G and K. It quickly became apparent in the course of the evidence of the latter that that assessment was seriously and fundamentally flawed. It could not support the exclusion of G and K as potential carers for the children and most especially when the local authority’s plan was to place the children for adoption.
One of the most glaring omissions was that none of the identified criticisms, which led to a negative assessment, had been discussed with G and K. It followed that their responses or accounts in answer to the same were neither recorded nor taken into account when coming to a conclusion on the merits of their request to be considered as carers.
In light of the foregoing the parties agreed, and I approved, the instruction of Mr Gary Eyles to undertake an independent social work assessment of G and K. Mr Eyles is an immensely experienced and well qualified former social worker and children’s guardian. His report, dated 21 March 2016, is a thorough and comprehensive assessment.
As it turned out, the independent assessment reached the same conclusion, but had been done in a way that allowed the uncle and aunt to respond to the criticisms about them before reaching a conclusion. This may be a useful authority in other cases for that principle, which is simple fairness. Of course, from time to time, the time-constraints put upon the filing of an assessment might not allow this step to happen – in those case, this authority may also be useful for Local Authorities to explain why there are solid article 6 reasons for the report to be filed late, rather than filing it on time but without the potential carers having the chance to respond to any worries, criticisms or fears about them as carers. The same also applies to viability assessments.
Well, you write up one case about bugging, and then another one comes along. If I get a third, it is going to have to be entitled “Mind the bugs don’t bite” (which is what my parents used to say to me when I was a tiny tot before I went to sleep. I’m sure there weren’t actually bugs… They used to say ‘snug as a bug in a rug’ if I was tucked up in bed under the covers. Perhaps my father had been Gregor Samsa before changing his name)
“As Gregor SAMOSA awoke one morning from uneasy dreams, HE found that he was very delicious, but that his bedsheets were somewhat greasy”
You see, here you can get updates about the law, literary references, and information about tasty snacks. It is a one-stop shop for those things.
This case is actually the same Judge, who is probably being very careful about what he says on the telephone at the moment, but this time it is the police doing the bugging of parents, not a parent bugging their child.
In this case, the police were investigating the death of a baby. There were also care proceedings about the baby’s siblings, and the family Court had to consider how that baby had died and whether either of the parents were responsible and whether there were any risks to the siblings. Within the care proceedings, as is usual, there was an order that the police provide ALL of the material from their investigation.
The police provided material, confiming that they had sent everything. That hadn’t gone that smoothly, a witness summons was issued and a representative of the police had to come to Court and confirm that everything had been provided.
Within the care proceedings, a finding of fact hearing took place and the family Court ruled that the father was responsible. The police later charged the father with manslaughter. As part of the criminal proceedings, it emerged that the police had bugged the family home, hoping to hear conversations between father and mother which might incriminate either one of them.
When the Guardian learned of this, they went back to the family Court to inform the Court that there was potentially valuable evidence that had not been disclosed into the family Court case.
his is the second and final published judgment in these family proceedings. The first is reported at [2014] EWFC 18.
The proceedings, which concern child A, were thought to have ended in July 2014 when this court determined that her father was responsible for the death of her baby brother K. However, in January 2016, the matter was rightly restored for further consideration by A’s Children’s Guardian in the circumstances described below.
This was necessary because of the admitted failure of Cumbria Constabulary to comply fully with orders requiring the disclosure of all material arising from the police investigation into K’s death. A great deal of material was in fact supplied in late 2013 and early 2014, albeit the process was not as smooth as it ought to have been. On one occasion, the second most senior investigating officer attended a hearing before me with a legal adviser and on a later occasion a witness summons had to be issued to ensure that (so it was then thought) all information had been supplied.
However one piece of information had not been supplied and did not come to the attention of the parties to these proceedings until September 2015. This was a covert recording made by the police in the parents’ home on 27/28 September 2013, immediately after their release on bail following their arrest. The recording had been authorised under the Regulation of Investigatory Powers Act 2000. It is of poor quality but it includes a conversation involving the mother that on one interpretation might conceivably have been relevant to the accounts given by the parents about K’s death.
After the 2014 family court hearing, the police reinvestigated and the father was charged with manslaughter. It was only at an advanced stage in the criminal disclosure process that the Crown Prosecution Service, having itself become aware of the recording, advised that it should be disclosed to the defence. Prosecution counsel also appreciated that it should have been disclosed to this court in 2013 and so advised. At that point the parties to the family proceedings and the court were informed and in due course the Guardian made his application.
In November 2015, the father stood trial and, having exercised his right not to give evidence, was acquitted by the jury. In the meantime, the 2014 judgment had not been published so as to avoid prejudicing the criminal trial and, latterly, to await the resolution of the issues surrounding the recording.
The Guardian’s application has had three purposes: to make the court aware of what had occurred; to raise the possibility that this court’s findings may need to be reopened; and to establish whether there were any safeguarding issues affecting A.
Directions were given, joining the police as a party and directing the filing of evidence by it and by the local authority. In response the Constabulary has filed a full account of events from seven witnesses: two officers involved in the 2013 investigation (including the senior officer who appeared before me), two officers who were respectively concerned with the quality of the covert recording and with record-keeping, one very senior officer who was responsible for the reinvestigation, and two legal advisers.
There were two issues in the case – firstly, did anything from the tape recording within the home justify re-opening the finding of fact hearing or considering amending those findings? And secondly the practice issues of something so important having been kept back from the family Court despite assurances that EVERYTHING had been provided.
The first issue is whether the findings of the family court should be revisited in light of the disclosure of the recording. The threshold for reopening is that there is a real reason, based on solid grounds, for believing that a different outcome might result. Having studied the issue closely, none of the parties applies for this to happen. For my own part, I am independently satisfied that the further information falls far short of crossing the threshold for reopening the case. In particular, the confused and partially audible recording does not cast significant doubt upon the mother’s evidence or supply any plausible alternative explanation for K’s injuries. True it is that the father has not been convicted of any offence and continues to deny responsibility for K’s death, but that is no reason for this court to reconsider its conclusions.
There will therefore be no further hearing in this court in relation to these matters.
Practice issues
Turning to the non-disclosure, I find that the nub of the matter is as follows. The existence of the recording was known to the three investigating officers in 2013, but they did not consider that it had any evidential value. It should have been obvious, in particular to the officer who appeared before me just four weeks after the recording was made, that it had to be disclosed, but it was not. Because of its special status, it was not held on the case file. The Constabulary’s lawyers and the officers who were not involved in the investigation process were therefore not aware of its existence until a much later stage.
The efficient process of disclosure between the criminal and family jurisdictions is essential to the proper administration of justice. It is governed by protocols and on occasions reinforced by court orders. The criminal and family courts must be able to rely on assurances that all relevant material has been disclosed, though in some cases they may have to resolve claims of public interest immunity.
In this case, the process took place against a background where concerns had already been expressed about the investigation into K’s death. Moreover, there was an unusually drawn-out sequence of events surrounding police disclosure. In those circumstances, the failure of Cumbria Constabulary to disclose the recording was particularly regrettable. It has led to further anxiety for the mother and significant extra expense for the public.
However, it is important to record that there is no evidence to suggest that the recording was withheld from the court deliberately or that there was any bad faith on the part of the officers who were responsible. I also note the expression of regret made on behalf of the Chief Constable, reflected in the attendance of the Assistant Chief Constable at this hearing, and the assurances that lessons have been learned from this unhappy episode. In the circumstances, there is in my view nothing to be gained from any further action by the family court. These proceedings are accordingly concluded.
The lesson may be that simple acceptance of an assurance that all documentation has been provided might not be sufficient – there may be a need to go back with particularised questions “Do the police have X?” “Did the police carry out Y?”
This has been nibbling at me for a while, and there isn’t a clear answer, so I wanted to highlight the question.
Under section 20, it is really clear that if either parent with Parental Responsibility OBJECTS to the section 20 then it can’t happen – at least, not if they are able to provide accommodation for the child or arrange for it to be provided.
[Often that last bit is forgotten about. Of course, they also have the s20(8) power to simply remove the child, but I’m not sure what happens next if they’ve removed the child from s20 but aren’t actually offering the child accommodation themselves or arranging for it elsewhere. Do they just stand on the street with the child? Note that the objection in s20(7) doesn’t say that the accommodation must be ‘suitable’ or ‘appropriate’ or anything like that. If the LA think that it isn’t, their only remedy is care proceedings, not to say – ‘we’re going to continue s20 because your house is currently underwater/full of broken glass/has a staircase designed by Escher/ is occupied by rabid wolves and is thus not safe for a child’ ]
s20 (7)A local authority may not provide accommodation under this section for any child if any person who—
(a)has parental responsibility for him; and
(b)is willing and able to—
(i)provide accommodation for him; or
(ii)arrange for accommodation to be provided for him,
objects.
(8)Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
Now, under the Act itself, a parent giving CONSENT to s20 is not actually a thing. It is just an absence of that objection. But under the developing case-law, particularly the obiter parts of Re N from the Court of Appeal, the President is very clear that s20 should be done by consent, and with that consent in writing.
Now, my question is (and this does actually happen) – where a mother (say) wants some respite care and consents to s20, does the LA need the CONSENT of the father who is indicating that he won’t give it, because he doesn’t want the children to come into care? On the wording of the Act, UNLESS father is offering a home to the children himself, or arranging other accommodation for him, he can’t actually object to the s20.
But under the case-law, which suggests that you need more than an absence of objection, you need active consent, can he block mother’s respite without offering an alternative, by simply refusing to consent?
Can he spite mum’s respite?
[You can swap mum and dad over, if gender bias is troubling you here – it can and does work the other way too]
Now, if the child is disabled, then the respite is not provided under s20, it is provided as specifically respite care under different legislation and the non-resident parent CAN’T block it. But with a child who is not disabled, the only way the child can have respite care is through s20.
The Act allows a single parent to ask for it, as long as the other parent doesn’t say “I object, the child can stay with me / Auntie Beryl”
And there’s also
section 2 (7)Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.
Which makes it clear that each person with parental responsibility has a KEY. Either of them can use that KEY to open the lock to any door for an issue where parental consent is required. It is only where an ACT specifically says, this particular door needs TWO KEYS that the consent of both is required. [Passports, for example. Adoption, for another.]
So on the Act, I don’t think that a non-resident parent can block respite care UNLESS they are offering to care for the child themselves or to arrange for Auntie Beryl to do it. That’s when s20(7) kicks in.
But from the case-law, there’s a strong suggestion that the consent of everyone with PR is needed before s20 can take place, which does allow a parent to block respite care without coming up with any alternative suggestion.
The Act suggests that one parent can OPEN the door to s20 respite care with one key, their own PR (and the door can only be held shut if the other parent offers an alternative home for the child and objects under s20)
The case law suggests that one parent can HOLD THE DOOR shut, even though they aren’t able or willing to care for the child themselves or to help out.
Given that Re N is obiter, and has been successfully appealed (though not on the s20 point), my own view is that the Act prevails, particularly because s2(7) says “Enactment” meaning that it is only statute that can insist that any particular door is a two key door. Case-law can’t insist that a particular door is a two key door, only an Act of Parliament can. And s20 is not specified as a two key door.
I don’t think then, that a non-resident parent can HOLD THE DOOR shut, though I can’t be absolutely certain.
Anyway, much of the imagery in this case was just leading up to this picture.
Terrible grit in my eye for some reason. Not actually crying. Just grit. Honest.
suesspiciousminds 