Court supplies of “whoop-ass” show no signs of running out

Posted on March 7, 2016 by suesspiciousminds

 

I noticed the other day when following some of the Brexit/Bremain debate, that we never hear about the European Wine-Lakes or Butter Mountains any more. You used to always hear that due to weird things in the Common Market, there was a huge oversupply of produce that was being added to faster than it was ever being consumed.  I wonder, idly, whether the European Community has addressed this problem, or whether it never really existed, or whether there are still Wine-Lakes and Butter Mountains but the Press has just got bored of talking about them.

Anyway, one thing that is certainly being added to faster than it could ever be consumed is Her Majesty’s Court Service supply of cans of “whoop-ass”.  Judges continue to try to use it as fast and heavily as they can, but there’s always more to spare.   Use more, behind the scenes memos must be saying, whoop even more ass. Plaintive Court managers are protesting that fresh cases of  cans of “whoop-ass”  are arriving every day, and they are blocking fire exits and that the cleaners can no longer get to their mops and tins of Vim.

Long story short – yet another bout of judicial displeasure.  (Rather more deserved than the last one)

 

D v E 2016

http://www.familylawweek.co.uk/site.aspx?i=ed159351

This was a case in the High Court, a private law dispute between a father and an aunt, with international elements, disputed allegations of physical abuse and domestic violence, a child with multiple problems. So of course, the ideal person to undertake the section 7 report to assist the Court was a newly qualified social worker who knew nothing about Court proceedings or what a section 7 report was.

 

34. On 25 February 2015 His Honour Judge Millon directed the London Borough of Newham to prepare a report pursuant to the Children Act 1989 s 7 (by reason of the local authority having had prior involvement as a result of the section 47 investigation detailed above) considering the issue of whether C should live with the aunt or the father. On 9 July 2015 Newton J directed the social worker to prepare an addendum section 7 report in circumstances where the allocated social worker had not spoken to the partners of each of the parties seeking care of C, to C’s teacher nor to the SENCO worker allocated to C nor secured Police checks in respect of the adults involved. On 21 September 2015 I was required to repeat the direction of Newton J in circumstances where the social worker had still not undertaken these tasks. The social worker had at that date also yet to speak to C alone. I also made clear that the addendum report must include a parallel welfare analysis of the three options available to the court in relation to C’s care.

35. It transpired in oral evidence that the social worker is newly qualified and has never before authored a section 7 report. Her current position with Newham is her first. The social worker told me that her academic studies (a BSc in social work) did not cover the preparation of section 7 reports. She further made clear that the training afforded to her by Newham in preparation for completing what was to be her first section 7 report, comprised a ninety minute discussion with her supervisor.

36. Within this context, it became apparent that the social worker appeared to lack even a basic understanding of the nature of the proceedings in which she was being asked to provide a report, she describing these proceedings as being “private care proceedings” on 12 August 2015 when making enquiries of the hospital at which C was born.

37. Further, it was apparent from the evidence of the social worker (and the late filing of her section 7 report) that there was a substantial delay in the legal department at Newham communicating His Honour Judge Millon’s direction for a section 7 report to the social services department. This delay on the part of the legal department meant that a newly qualified social worker who was already prejudiced by her lack of experience in preparing a section 7 report was further challenged by having limited time in which to prepare what constituted a complex piece of work in respect of a child with complex needs in a complicated family situation spanning two continents.

38. Finally, it is important, and indeed concerning, to note that each of the social worker’s reports were signed off by her supervising Practice Manager as meeting the standards required by the court following a discussion between them. In the circumstances, the mistaken view of the social worker that she was doing that which was required of her was further amplified and reinforced by her supervising Practice Manager. This, perhaps and in part, explains the social worker’s repeated failures to comply with the express directions of the court.

39. Having listened to the evidence of the social worker I was left with the clear impression that her academic social work qualification and such training, administrative support and supervision as was provided to her by her employer left this newly qualified professional poorly equipped to undertake a competent report pursuant to section 7 of the Children Act 1989 in what is a complex and demanding private law case. Such criticisms of the social worker’s work as I feel compelled to make in this judgment must be seen in this context. 

 

[Not quite sure it is as apparent to me that the delay was with Newham Legal Department as it was to this Judge. I have for many many years, at many many different Local Authorities, regularly received Court orders from the Court asking for a section 7 report to be undertaken within 8 weeks of the order, but receiving said order a week after the report was due. I suspect, as a result of cuts – and of course the boxes of Whoop-Ass obscuring the printer, that this is happening more and more.  With Newham Legal not being present to set out to the Court when the section 7 order was received by them, I’m inclined to give them the benefit of the doubt. Not that the Courts ever do anything wrong, ever.]

 

I think that it was decent of MacDonald J to set out the context that these failings were not the social worker’s fault, but the fault of a system that allocates a case that was apparently complex and difficult to a brand new worker.  (Even if you knew nothing at all about the case, the word “High Court” ought to have been sufficient to make the people allocating a section 7 think again)

Within that context, the failings of the report were considerable :-

 

40. The substantive section 7 report contains a significant number of factual errors, contradictions and omissions. These include the periods of time that C has been in the care of the aunt. Of even greater concern, and quite inexplicably, the social worker did not speak to the mother of C, or make any attempt to speak to her, before reaching her conclusions and filing her substantive report. Indeed, the account of the family set out at the beginning of the report simply makes no mention of the mother at all. In addition to being extremely poor practice this had significant forensic consequences. In particular, it meant that the report did not consider the significance of the mother’s allegations of domestic violence and relied solely on the father’s account of the history of the parents’ relationship. Further, when pressed in cross examination by Mr Woolley, the social worker had to concede that even now that she is aware of the issue of domestic violence she has not sought to investigate that issue further with the parties. She likewise conceded that she had not discussed with the father his motivation for making his application nor had she discussed with him his removal of C from the aunt’s care in February 2015.

41. The social worker’s substantive report contains only the most cursory examination of the factors set out in the welfare checklist. Whilst C’s wishes and feelings as expressed to the social worker are set out (about which I will say more below) they are not analysed in anyway by reference to C’s age and understanding or in the context of his ADHD or family situation. C’s health needs are summarised as being “ADHD” with “no other concerns”. There is no mention of C’s global developmental delay, the consequences of his medical conditions or the nature and level of support in place in respect of the same. In relation to the effect of a change of circumstances on C the social worker simply concludes that “if given time to prepare for a change in circumstances C will be able to prepare and adapt” but offers no explanation of why she reaches such conclusion. In respect of the capability of those seeking to care for C in respect of the father the social worker’s conclusions are limited to noting that the father and his partner are “aware” of C’s health and education needs, have identified a school for C and “report that they have routines and boundaries in place when C visits and these would be in place if he lived with them permanently”.

42. Within this context, and as I have already alluded to, the substantive section 7 report contains no parallel welfare analysis of the competing options for C’s care. Indeed, during the course of cross examination by Mr Woolley, the social worker was forced, properly, to concede that her substantive report contains no analysis of C’s best interests. The report is simply a list of facts and statements by the parties followed by a bald conclusion that C should move to live with his father. The social worker simply dismisses out of hand the aunt’s application for a special guardianship (seemingly on the ground that social worker believed such an application to be “irrelevant” in circumstances where the mother had left C with the aunt under a private arrangement). The report recommends that C have direct contact twice per year with the aunt without explaining the welfare rationale for this recommendation.

43. With respect to her first addendum section 7 report dated 30 October 2015 the picture is, regrettably, no better. The social worker had been provided with a wealth of new information from the mother concerning allegations of domestic violence and the contents of the special guardianship report. The social worker had further been provided with information from C’s SENCO, further information from the partners of each parent and the aunt and the disclosure of the relevant Police records relating to allegations of domestic violence and the mother’s medical records. The social worker had also spoken to C alone.

44. Again, notwithstanding that the social worker had been provided with this new information, some of it directly contradicting previous statements made by the father, the addendum report contains no analysis. Further, despite the order of Newton J of 9 July 2015 the social worker had not sought PNC checks in relation to the adults involved. Despite my direction there is no parallel welfare analysis, the report, once again, constituting simply a list of facts and statements with a bald conclusion that C should live with his father. The only welfare factor examined is that of C’s wishes and feelings although, once again, there is no attempt to analyse them by reference to C’s age and understanding or in the context of his ADHD or family situation. I agree with Mr Woolley’s submission that the addendum report gives every impression of the social worker having placed determinative weight on C’s wishes and feelings (an impression reinforced during the social worker’s oral evidence when she stated that C’s wishes and feelings are “paramount”). This time the addendum report recommends, again without explaining the welfare rationale, that C have direct contact four times per year with the aunt.

45. The social worker’s final, undated, addendum report is subject of the same flaws. Again, notwithstanding that she had been provided with new information, and in particular the details of the father’s conviction for violence, and the fact that she had been told by C during a home visit on 18 November 2015 that he was now unsure about what he wanted, the addendum report again contains no analysis. The social worker conceded that she had undertaken no analysis of the significance for or impact of the father’s conviction on her recommendation. Again the addendum report constitutes simply a list of facts and statements with a bald conclusion that the father “has made the necessary changes in his life to enable him the care for C” (although what those changes might be is not specified) and that C should live with his father.

46. I have of course borne in mind that a social worker’s day to day role and knowledge of the court process differs from that of a Child and Family Court Reporter (see Re W (Welfare Reports) [2995] 2 FLR 142 at 146). I have also borne in mind the evidence I have heard from the social worker at this hearing regarding her lack of experience and training. However, for the reasons set out above the substantive and addendum section 7 reports prepared by the social worker nonetheless fall well below the standard expected by the court.

47. In the circumstances summarised above, and where neither the substantive section 7 report or the addendum reports contain any welfare analysis whatsoever of the issues engaged in this case nor a welfare analysis of the competing options available for C, and where the social worker was, despite being given every opportunity, entirely unable in her oral evidence to articulate the analysis and reasons underpinning her recommendation, I have felt unable to attach any weight to the recommendation of the social worker.

48. In addition to constituting a disservice to C and his family, the failure of the social worker, under the supervision of her Practice Manager, to complete her work competently leaves the court in the invidious position of not having before it part of the information the court decided, at the case management stage, was required to determine this matter. I have however concluded that, notwithstanding difficulties with the section 7 reports, I have sufficient information to undertake the forensic analysis I am required to in order to determine the applications before me.

49. In the case of Re K (Special Guardianship Order) [2012] 1 FLR 1265 the Court of Appeal held that where work is incomplete at the date of the final hearing the court must look at the information that is available and determine whether further work is required having regard, inter alia, to developments since the work was directed, the impact of delay and the totality of the evidence available. The Court of Appeal noted that having undertaken such a review it may transpire that evidence is available that covers the ground that the missing work would have covered. In my judgment, having regard to the totality of the evidence before the court, I am satisfied that that is indeed the position in this case.

50. The London Borough of Newham should note that had I been forced to adjourn this hearing due to the deficiencies in the section 7 reports this would have been a case in which, having regard to the decision of Cobb J in Re HB, PB, OB and Croydon London Borough Council [2013] EWHC 1956 (Fam), I would inevitably have had to consider whether a non-party costs order should be made against the local authority.

Section 7 reports are always very tricky. They are vitally important documents to the Court and the parties, but they often come across to Local Authorities as a demand for a report without any covering information as to what the issues are, where the child lives, what is being alleged by the parties, and the questions that the Court specifically want assistance in answering. That is compounded by the fact that (a) They often arrive late from the Court (b) Local Authorities do sometimes sit on them before allocating them (c) They often get allocated to a social worker with very little Court experience such as here and (d) almost all Local Authorities do not operate a scheme where the reports are checked by a lawyer.

 

[Given that my experience of private law cases is that they are a sponge for time, and dealing with a single private law case can easily absorb hours of scarce lawyer time, I can see why that is and please don’t read this in any way as a request or desire for me to become more involved in private law cases than I already am. A single private law case can easily take up the same amount of my time and volume of emails as a dozen care cases…]

 

It was quite tempting to suggest that Courts and parties label particularly complex section 7 reports as such, to make it plain to the Local Authority that this case needs urgent and experienced attention. But in my days as a photocopier-monkey, I used to have a photocopier machine that had a green Turbo button on it, and if you held it down, the machine would go faster. Of course, I held it down all the time. The machine broke. A lot. By the same token, everyone would put “Complex” on all of their requests….

 

[It would, however, be worth Local Authorities assuming that a section 7 request from the High Court is going to need some careful handling]

 

 

On entirely separate matters, the FDAC analysis is out today.

http://www.familylaw.co.uk/news_and_comment/new-findings-show-that-fdacs-save-taxpayers-money#.Vt1xqfmLRaQ

I myself have done some impressive calculations that show that if I eat a jammy dodger today, not only will I have saved money by eating a jammy dodger rather than some beluga caviar, but that the additional sugar content of the jammy dodger will mean that I have a reduced life expectancy, which means that I won’t need to set aside money for my retirement, an impressive saving. Additionally, eating the jammy dodger has a 5% chance of assisting me not to take up smoking, and as I might otherwise smoke for the next twenty years, that’s a cost saving that I need to factor in. The time I spend eating the jammy dodger might be time that I otherwise spend on my Playstation on the Hitman Beta, and thus there is a chance that there might be medical savings to be recouped from the potential in years to come of carpal tunnel syndrome. My dog might benefit from any crumbs I have dropped, meaning a saving on dog biscuits.  I do have to offset for the additional electricity that the Roomba will consume to pick up any crumbs that the dog misses (but knowing my dog, that is quite unlikely). It is also quite plausible that if I had not had the momentary high of the chewy jamminess of the biscuit that I might eventually end up trying to compensate for this by taking up an expensive hobby such as hang-gliding with associated start up costs – the NHS could save substantially by not having to treat the broken leg that I could notionally sustain.

All in all, it emerges that every pound I spend on Jammy Dodgers results in a saving to me of £2.30.

Imagine how much I could save if I decided to eat “Pie in the Sky” instead.

/sarcasm

 

 

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Wasted costs orders against everyone!

Posted on March 5, 2016 by suesspiciousminds

I don’t think I’ve ever seen anything quite like this. It raises some massive points of financial implications for solicitors, particularly when agreeing to take on a case involving medical or police disclosure.  It places on them a financial risk that might very well not be worth taking, given the narrow margins on which businesses are currently operating. The Judge did not, it seems to me, take proper account of the public policy implications of this decision.

A public law case was listed for a 2 day finding of fact hearing. The Local Authority had been ordered to obtain police and medical disclosure. It appeared that some things which clearly by close reading of other documents were known to exist within the police possession had not found their way into police disclosure. When this came to light, the hearing had to be adjourned.

The Court then embarked on an exercise to see who was responsible and considered the making of costs orders.

Re L (Case Management : Wasted Costs) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B8.html

 

What makes it quite remarkable is that in most wasted costs cases what happens is that one side is assessed to be responsible for the mix-up or failure, and the other parties get their costs paid by them. Here, the Judge determined that whilst the Local Authority was chiefly to blame, all of the parties had to bear some of the blame.

 

Non-compliance with case management directions – who is at fault?

 

  • In this case,[2015] 1 FLR 1092 case management orders were made promptly (on day 14) for the disclosure of medical records and police records. The medical records were disclosed promptly save for the photographs. The failure to disclose the medical photographs was not identified by any party until 20th January 2016.
  • The police responded promptly to the disclosure order but failed to disclose the audio recordings of the parents’ police interviews. The first approach to the police for ‘further disclosure’ was made by the local authority on 14th October. The first time the lack of this material was raised by any other party was in an e-mail from the mother’s solicitor to the local authority on 2nd November.
  • Who is responsible for these failings? Is the failure to disclose the medical photographs the responsibility of the hospital or of the local authority for not going back to the hospital to ask where the photographs were, or of the other parties for not raising this issue either with the local authority or with the court? Is the failure to disclose the audio recordings of the parents’ police interviews the responsibility of Leicestershire Police (who were ordered by the court to disclose ‘witness statements, interviews, photographs and medical reports in respect of the injuries’), or of the local authority (to whom the police were ordered to make disclosure and upon whom was laid the obligation of disclosing the police material to the other parties), or of the other parties for their delay in raising this issue either with the local authority or with the court?
  • Leicestershire police were ordered to make disclosure to the local authority. The local authority was ordered to disclose to the other parties the material received from the police. It was also ordered to obtain and disclose medical records. Is the scope of the local authority’s duty limited to forwarding on to the other parties the material received from the police and the hospital? In my judgment, it is not so limited. The local authority is not providing a postal service. It is under a duty not only to disclose what it receives but also,

 

(a) to consider with care the material received from the police and hospital;

(b) to satisfy itself that the disclosure complies with the terms of the relevant case management direction; if it does not comply then,

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to contact the police/hospital promptly seeking immediate disclosure of the missing documents; and if disclosure of the missing documents is not made promptly then,

(e) to inform the court and seek urgent directions; and

(f) to keep the other parties informed.

 

  • Whilst the primary duty for obtaining and disclosing police and medical records rests with the local authority, it is clear from the rules to which I have referred that the other parties also have a responsibility. They, too, are under a duty to assist the court in the process of active case management and to inform the court of any non-compliance. With respect to police and medical disclosure there is a duty,

 

(a) to consider with care the material disclosed by the local authority;

(b) to satisfy itself that the disclosure complies with the terms of any case management direction relating to that disclosure;

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to inform the local authority promptly with respect to any gaps in the disclosure; and, if the missing documents are not provided promptly,

(e) to inform the court and seek urgent directions.

 

  • In my judgment it is clear from the rules and authorities to which I have referred that these duties exist. They are a necessary part of the process of enabling and assisting the court to comply with its duties to further the overriding objective and to complete care cases within 26 weeks.
  • In the circumstances of this case I am satisfied that the responsibility for the failure identified rests primarily with the local authority. However, I am equally satisfied that the solicitors for the parents and the guardian also bear some responsibility.

 

Well, that’s all lovely in an ideal world, but do solicitors have the time to inspect each and every document with a fine-toothed comb, particularly in a case where counsel are instructed? They certainly don’t get paid for such a task.

So what happens then? Well, one sensible approach would be for the LA to pay some of the costs but not all of them, given that there were failings on the part of the other parties. That’s not what happened here.

 

The Court was actually considering punishing the solicitors involved by disallowing a share of their costs. The Legal Aid Agency were strongly suggesting that this was not a power open to the Court unless they were carrying out their function of assessing the public funding certificates by way of taxation (which would come at the end of the case)

 

Disallowing costs payable to a legally aided solicitor

 

  • Navigating one’s way around the labyrinthine complexities of the current legal aid scheme is a significant challenge. For present purposes it is necessary to have regard to the Legal Aid Agency’s Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), to the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment), to the Civil Legal Aid (Remuneration) Regulations 2013 and to the Civil Legal Aid (Remuneration) (Amendment) (No2) Regulations 2014.
  • The solicitors for the legally aided parties contend that disallowing part of a standard fee payable to a legally aided solicitor pursuant to the provisions of s.51(6) is not simply inappropriate but that it is not possible. The basis of that submission is that the standard fee for legal representation is a fixed fee payable irrespective of the amount of work undertaken (subject to the right to ‘escape’ from the standard fee to which I referred earlier). It follows, therefore, as a matter both of logic and of law, that so far as concerns the costs of any solicitor entitled only to the standard fee there cannot have been any ‘wasted costs’. In this case, even if a solicitor entitled only to the standard fee undertook work on 20th, 21st and 22nd January which would not have been necessary had the failure of police disclosure been identified at the time it arose, that solicitor will receive no extra payment for that work but will simply receive the fixed fee to which he or she would in any event have been entitled. A letter to the court from the LAA supports that argument,
  • The position would appear to be different so far as concerns the costs of a solicitor who ‘escapes’ the standard fee. As I noted earlier, that solicitor is entitled to be paid for the work undertaken on an hourly rate basis (the hourly rate being that prescribed in the Civil Legal Aid (Remuneration) Regulations 2013 as amended). In those circumstances it is clear that the argument set out in the previous paragraph does not apply. Even if the court does not have the power to make a wasted costs order against a solicitor entitled only to the standard fee (a proposition about which I am doubtful) there would seem to be no reason why the court could not make a wasted costs order against a solicitor who ‘escapes’ the standard fee.
  • However, the LAA raises a second issue and that relates to its power to act on an order made by the court under s.51(6) disallowing all or part of a legally aided solicitor’s entitlement to remuneration. In its letter to the court, the LAA asserts that,

 

‘The court could only disallow a solicitor’s costs under their contract with the LAA where the court is performing a detailed assessment pursuant to that contract (see paragraphs 6.37 – 6.38 of the Standard Contract Specification…) However, you could make observations to help the assessing authority (whether that is the LAA or the Court) in its assessment.

‘Where legally aided work falls under one of the Standard Fee Schemes, the LAA usually would have no choice but to pay the standard fees, unless the claim is not true, accurate and reasonable. The nature of the standard fee scheme is that in some circumstances a legal aid provider may receive a relatively high payment for not necessarily doing a large amount of work, whilst in the circumstances of a different case, the same standard fee may be considered to be relatively low. However, if you do make any observations on the amount of costs claimed and suggest that some costs should be disallowed, the possibilities, within the fixed fee scheme would be as follows:

1. Claims can ‘escape’ the fixed fee where, if paid at hourly rates the solicitors would be paid more (i.e. for Legal Representation, where costs on an Hourly Rate basis would exceed twice the Standard Fee, the solicitors would be paid at hourly rates). If in the circumstances of this case the solicitors have escaped the fixed fee and are to be paid at hourly rates, any disallowance (or recommended disallowance) of costs on assessment could reduce the amount payable to the solicitors;

2. The costs of the case can be disallowed in full, which would lead to a nil payment to the provider irrespective of the fixed fee scheme;

3. If the solicitors have breached some term of the contract, such as the requirement to carry out all contract work in a timely manner and with all skill and care, and as a result caused the LAA a loss (for example if a further hearing were required because of the solicitor’s default which has led the LAA to make further payments), then the LAA could set off the loss it has been caused against any payment due to the solicitors (i.e. the fixed fee they would be due to receive)’

 

  • Paragraphs 6.37 and 6.38 of the Standard Contact Specification provide that:

 

Court assessment

6.37 Except where:

(a) it is or may be necessary for the court to carry out a detailed assessment of costs payable to the Client by another party to the proceedings; or

(b) having regard to interests of the Client and public funds, the weight or complexity of the case and all the other circumstances, we consider it appropriate to direct that the costs be subject to detailed assessment,

your Claim for payment for Licensed Work will be assessed by us.

6.38 A direction under Paragraph 6.37(b) may relate to an individual case or to any class of case, identified by the level of costs to be assessed or otherwise. In cases where costs are to be subject to assessment by the court, detailed assessment proceedings must be commenced within the time specified in the Civil Procedure Rules.

 

  • If the LAA’s submissions are correct then that would seem to represent a significant narrowing of the scope of s.51(6) in a case involving a legally aided solicitor. It would mean that although under s.51(6) the court could order a legally aided party’s solicitor to pay another party’s wasted costs, the court would have no power to disallow any wasted costs incurred by that same solicitor.
  • I note that neither the Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), or the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment) refer to the court’s powers under s.51(6). With all due respect to the LAA, it seems to me that the key to understanding paragraphs 6.37 and 6.38 of the Standard Contract Specification is to be found in the heading: ‘Court assessment’. Those paragraphs deal with the question ‘who should assess my costs’. Section 51(6) addresses a completely different issue. Section 51(6) provides a power to penalise a solicitor as a result of whose conduct ‘wasted costs’ are incurred (whether another party’s costs or his/her own costs).
  • It is my preliminary view that the court’s power to make a wasted costs order is not confined in the way suggested by the legally aided solicitors and by the LAA. However, I am satisfied that in this case it is possible to dispose of the wasted costs issue without determining those points. That said, in my judgment the LAA’s arguments do raise important issues which need to be authoritatively addressed.

 

This disallowing of costs to a publicly funded solicitor can easily move a case from barely profitable to making a loss for the firm. Not to mention the absolute headache with the Legal Aid Agency in recovering the money. Does anyone actually benefit from this at all? Haven’t we just spent a huge amount of money arguing about this issue? Not to mention any costs of a potential appeal, given the wider implications for solicitors across the country?

In a concluding paragraph, the Judge bemoans the increase in demand by additional care proceedings on the Court service and that no additional resources have been provided, whilst ignoring that the very same thing applies to all of the other parties to the case.

 

Conclusion

 

  • Statistics show that in recent months, nationally there has been a significant increase in the number of new care proceedings issued. Cafcass statistics show that over the ten months from 1st April 2015 to 31st January 2016 the number of new care proceedings issued was up by almost 13% on the previous year. During that same period The Family Court in Leicester experienced a 39% increase in new care cases – three times the national average. That increase in workload has not been matched by any increase in court resources. I make that point simply to underline the fact that court time is a precious resource. The court can ill-afford contested hearings being vacated because of the failure of one or more of the parties to comply adequately with the obligations placed upon them by the rules and by case management orders made by the court.
  • In this case I am satisfied that the solicitors for all four parties are responsible for the errors identified. All four were responsible for the wasting of court time and for the wasting of costs. I have identified wasted advocacy costs incurred by the legally aided parties amounting to £5000. I shall make a wasted costs order against the local authority requiring it to pay 50% of that sum, £2,500. I have also identified that the local authority has incurred wasted advocacy costs of £1950. I shall make wasted costs orders against the solicitors for the legally aided parties jointly to pay 50% of those costs (£975 i.e. £325 per solicitor).

 

Of course there were failings here, and it would have been markedly better had the Local Authority involved raised with the Court and the parties their concerns that the police disclosure was incomplete and missing important documents. Was this, however, a proportionate response to the difficulty? I am sure that all lawyers have experience of arriving at Court for a final hearing with time and money spent in preparing a case only to find that the case is double-listed or insufficient time is available – the parties in those cases – of which there were very very many, did not attempt to demand that the Court Service pay their wasted costs.

 

I note that the Judge here refers to the Norgrove report on Family Justice.  Perhaps it is useful to bear in mind this passage of the report.

 

Our recommendations are intended to restore the respective responsibilities of courts and local authorities. But to change the law does not tackle the root cause
of the difficulties. This stems we believe from a deep rooted distrust of local authorities and unbalanced criticism of public care, as discussed in paragraphs
3.21 – 3.26 above. This in turn fuels dissatisfaction on the part of local authorities with the courts, further damaging relationships.
3.46.The result is that the relationship between local authorities and courts can verge on the dysfunctional. For the system to work better it is not acceptable for each
group to sit on the sidelines and criticise the other. A failure in one part of the system must be seen to be a failure of all. Courts and local authorities, and other
professionals, should work together to tackle this at a national and local level.
The report was published in 2011.  When one reads the judgments over the last few years, 2011 starts to look like a golden era of co-operation and trust between the different stakeholders in Family Justice. I would gladly roll the clock back to 2011 in that regard.

[I would also deprecate the habit in this judgment of the use of (sic) for what are clearly utterly minor typographical errors in emails sent by the Local Authority – emails are documents which are typed in haste, particularly when trying urgently and desperately to resolve a pressing problem and (sic) is an uncalled for dig. I also note that the Judge did not apply the same (sic) standard to emails received from counsel, which had similar minor typographical errors.  I also note that this case was listed for a fact finding hearing despite the allegations being substantially short of the Court of Appeal guidance as to when a separate fact finding hearing should be heard…]

 

 

 

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An answer on relinquished babies and Re B-S

Posted on March 3, 2016 by suesspiciousminds

 

FINALLY! An answer to whether Re B-S and Re B apply to relinquished babies. Also an answer to mind-blowingly tricky stuff about whether a foreign parent who has a baby in England can relinquish without their home country being told, and how the heck to do a foreign placement with a relinquished baby. It is all here.

 

 

  • Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents’ wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate. It follows, therefore, that approval of adoption in such cases does not depend on the local authority or court reaching the conclusion that nothing else will do. Instead, they must approach the case by applying s.1 of the 2002 Act as set out above, making sure that they give paramount consideration to the child’s welfare throughout his or her life and allocating such weight as they consider appropriate to the comprehensive list of factors in s.1(4) In such cases, the local authority and the court must consider the parents’ wishes that their child be adopted in the context of all of those factors, including the child’s background, the likely effect on the child of having ceased to be a member of the original family and the ability and willingness of any of the child’s relatives to meet the child’s needs. As in the case of step-parent adoptions, the manner in which the statutory provisions are applied will depend upon the facts of each case and the assessment of proportionality.
  • It follows therefore that in all adoption cases – non-consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S. Indeed, a thorough analysis of all the realistic options should surely be carried out in all cases where a local authority is making plans for a child’s future.

 

The analysis of the realistic options applies, but the test of “nothing else will do” does not. Just in case it wasn’t clear enough up there, the Judge says it again.

 

(2) The decision of the Supreme Court in Re B [2013] UKSC 33 concerned non-consensual adoptions. Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents’ wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate. It follows, therefore, that approval of adoption in such cases does not depend on the local authority or court reaching the conclusion that nothing else will do. But the parents’ wishes, although important, are not decisive. They must be evaluated along with all the other factors in the welfare checklist in s.1(4) of the 2002 Act. In all adoption cases – non-consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S [2013] EWCA Civ 1146.

 

[Also, the Court ruled that with a child of foreign nationals who are relinquishing their baby for adoption, there is NO duty on the Local Authority – or the Court when later considering an adoption application to notify the foreign consulate in accordance with the Vienna Convention. ALTHOUGH, you now need to make sure that the Court doesn’t appoint a Guardian at the adoption hearing, or the Vienna Convention duties do arise. Damn.]

 

(3) Article 36 of the Vienna Convention on Consular Relations 1963 does not apply in cases where a child has been relinquished for adoption because the child in those circumstances is not being “detained”. Following the decisions in Re E [2014] EWHC 6 (Fam) and Re CB [2015] EWCA Civ 888, Article 37 of the Convention applies where a guardian is appointed in placement order or adoption proceedings.

 

 

Baker J in Re JL (2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/440.html

 

He goes on to outline the five options that a Local Authority has when parents relinquish their baby for adoption  (agree to have their baby adopted, in plain English)

 

 

  • Having carried out its assessment, the local authority will reach one of the following conclusions.

 

(1) It may conclude that adoption in this country is in the best interests of the child. In such circumstances, it can proceed formally to obtain the parents’ consent. If consent is given in the prescribed way, the local authority becomes “authorised” to place the child for adoption under s.19. As I read s. 22, if the local authority is authorised under s.19, it is not obliged under s.22(1) to apply for a placement order as the condition in s.22(1)(b) is not satisfied and, unless the child is subject to a care order or of ongoing care proceedings, it has no power to apply for an order under s.22(2) or (3). In such circumstances, therefore, it is neither necessary nor possible for the local authority to apply for a placement order.

(2) It may conclude that the child should be placed with family members or fostered in this country. In such circumstances, it may place the child under s.20 provided that the provisions of that section, and the other provisions of Part III of the Children Act 1989 and the associated regulations, are satisfied. In particular, under s.20(7) it may not arrange such accommodation if a parent with parental responsibility is able and willing to accommodate or arrange accommodation for the child themselves objects to the local authority’s proposal and in the absence of consent must apply for a care order. S. 20 has been considered in a number of cases, most recently by the Court of Appeal in Re N, supra, (see in particular the judgment of Sir James Munby P at paragraphs 157 to 171). Although both JL and AO are at present accommodated under s.20, that jurisprudence does not impinge on the issues in either of the cases before me and need not be considered further in this judgment.

(3) It may decide to place the child with family members in the country of origin. If the parents give their consent, it may proceed to arrange the placement without court approval. If the child is subject to a care order, however, it may only do so with the approval of the court: Children Act 1989, Schedule 2 para 19(1) and (2).

(4) It may decide that the child should be placed with prospective adopters that have been identified in the country of origin. In those circumstances, the procedure under s.84 may be available, and if so schedule 2 para 19 does not apply: schedule 2 para 19(9).

(5) It may decide to send the child to the foreign country so that the authorities there can arrange the adoption. This last course is the option which the local authority considers to be best in AO’s case. In those circumstances, s.85 will prevent the local authority sending the child to the foreign country unless the child is subject to a care order and the court makes an order under Schedule 2 para 19.

Number 3 is obviously the important one with relinquished babies.  In care proceedings, parents get to put forward family members who they wish to be assessed as potential parents. What happens with parents of a relinquished baby if the Local Authority WANT to assess family members, or need to rule them out, but the parents want privacy and don’t want them approached?

Well, the Court of Appeal had previously ruled  in Re C  v XYZ Local Authority 2007  http://www.familylawweek.co.uk/site.aspx?i=ed1147  that :-

3. In my judgment, for the reasons given below, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child’s background: they must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life. The objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. That did not happen in this case. The judge consequently directed himself according to the wrong principle and his exercise of discretion must be set aside. This court must exercise the discretion afresh.

It has been a bit ambiguous as to whether this still stands, and it would not if the Court rule that relinquished adoptions are subject to the “nothing else will do” test of Re B. Baker J has cleared up that they aren’t, so Re C v XYZ 2007 remains the law for relinquished children and assessing wider family – only if the enquiries genuinely further the prospect of finding a long-term carer without delay.  The LA aren’t obliged to rule out individual members of the family, just to explore those who would satisfy that test.  Re C v XYZ seems to me to be completely compatible with Baker J’s strictures here that the LA must consider the ‘realistic options’ for the child, even where the parents have agreed or requested adoption.

 

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In the Court of Protection no-one can hear you scream (about the Case Management Pilot)

Posted on March 3, 2016 by suesspiciousminds

 

Those who are about to headdesk, salute you Caesar.

Yes, given their rip-roaring success in public law Children Act cases and their tour-de-force in private law Children Act cases  – where they managed to introduce at exactly the same time as all the lawyers were taken out of the system a process so complex and convoluted that it creates a key hearing with a name that literally cannot be pronounced…

The Court of Protection are proud to announce their very own labryinthine set of rules and processes.

You’re welcome.

 

Oh, and joyfully, they’ve called them Pathways. Because absolutely every single thing that has ever been labelled a Pathway has been an unqualified success and we absolutely want to build on THAT particular reputation.

 

http://www.familylaw.co.uk/news_and_comment/court-of-protection-draft-case-management-pilot-published#.VtiU-ObzOud

 

Would you like a little taste?  Well, obviously, they start off using very simple ideas and philosophies and plain English, because they’re bearing in mind that the Court of Protection is used by lay people who are there concerned about members of their family but don’t get free legal representation.

 

Plain English like:-

2.1 Where this pilot applies —
(a) Parts 1 to 5 and 13, and rules 84, 85 and 86 in Part 12 (but not the practice directions supplementing them), are disapplied;
(b) Pilot Parts 1- 5 as set out in Annex A to this Practice Direction (which contains modified versions of those Parts in a new arrangement) will apply in
their place, together with the practice directions supplementing the disapplied rules (renumbered as appropriate to supplement Pilot Parts 1-5); and
(c) rule 72(5) and (7) will not apply where a case is allocated to a case management pathway.

 

And thank heavens that’s all cleared up.

I would have provided you all with a simple overview of the Pilot, but I realised at page seven that the thudding noise in my ears was my brain forcibly trying to get out of my head so that it could stop reading this stuff.

 

By way of simple flowchart

  1. Were you thinking of entering into Court of Protection Work?    (If No, then YAY!  If Yes, then Reconsider)
  2. Are you already doing Court of Protection Work?  (If No, then high-five dude, you’re scott-free.  If Yes, then make a new plan Stan)

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And the office boy kicked the cat

Posted on March 3, 2016 by suesspiciousminds

You don’t often get law reports of Interim Care Order hearings, especially now that the senior Courts have finally stopped tinkering with the wording/putting a gloss on the statute / clarifying and refining the law. This one was a High Court decision, and the Judge (Keehan J) was investigating delay in issuing.

Big practice note for everyone – because this is High Court and we all need to follow it :-

 

The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.

 

[If I may suggest – draft the bloody statement before the birth, and add to it, rather than start writing it after the baby is born. I know nobody wants to do that, just in case they win the lottery and are able to quit their job and avoid writing the statement, but seriously – have it ready in draft in advance. Babies have a nasty habit of arriving at a time that is least convenient]

 

Nottingham City Council v LW and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/11.html

You can get the tone of how this case is going to go from this very early paragraph.

A birth plan was prepared. It is not, however, worth the paper it is written on because, as it now transpires, it was ignored by everyone connected with the local authority

 

The mother had had a previous child who had been the subject of care proceedings. In fact, it looks as though those proceedings might have been ongoing into at least the late stages of pregnancy, because those proceedings were issued in May 2015. The judgment doesn’t say that the proceedings had actually ended by the time that the new baby was born in January 2016.  (It ought to have ended, on the 26 week rule, but to quote Neil Gaiman “Intent and outcome are rarely coincident”

 

 

  • The hospital, where LW was born on 16 January, notified the social workers of her birth on Monday 18 January.
  • It then took the social workers until 21 January to place the papers before the local authority’s solicitors for consideration of the issue of care proceedings. It took a local authority solicitor until 28 January to issue care proceedings and to apply for an ‘urgent’ interim care order.
  • The local authority’s application, interim threshold criteria and social work statements in support were not served on the parents’ respective solicitors nor on the children’s guardian and her solicitor until about 12.30pm on 28 January. The case was called on before me at 3pm, there being no justices, district judge or circuit judge available to hear the matter at such short notice.

 

It is hard to see an excuse for a hearing taking place in a rush on 2 1/2 hours notice when the baby had actually been born 12 days earlier.

It is not therefore a shock that the Judge wanted to hear from the Director of Children’s Services and the Head of the Legal Department as to why this had happened.  [For my part, I can’t say I’m happy that the legal department tried to throw one of the secretaries under the bus. I would NEVER EVER do that to any of the hard working people in my office who do so much to make things run smoothly and well.]

 

 

The Director of Children’s Services said this:-

 

 

“….I would like to offer my sincere apologies to the court for the delay in issuing proceedings. I understand this caused a number of challenges for those responsible for allocating court time and to all the parties involved who represent the parents and others involved in this case.

In this particular case, I understand however that there had been ongoing communication with the parties legal representatives about the Local Authority’s intention to issue proceedings.

I believe all parties worked on the premise that issuing should take place once all the paperwork including statements from health colleagues had been submitted and the social worker statement had been amended to include the new information from the hospital in relation to father’s alleged overdose, the withdrawal symptoms of baby and the anonymous referral received following LW’s birth. This contributed to the delay in issuing.

I fully accept that the ideal course of action would have been to issue proceedings as soon as possible after the first working day following the birth, namely the 18th January and the Local Authority could have filed a statement making it explicit that further information had come to light which required immediate investigation and seek the court’s permission to submit an updated statement once these investigations had taken place. Again, the social worker statement could have included information reported by health colleagues, making it clear that health colleagues would be required to submit statements as soon as possible following the lodging of the care application.

Furthermore, the Local Authority will ensure that team secure emails are checked on a frequent basis by the team’s Business Support Officer or the team’s duty social worker so they can alert managers when important documents have been received. This will prevent documents “sitting in the inbox” when social workers/ case holders are absent from work due to sickness or annual leave.

Again, please accept my apologies for this delay. The staff involved in this matter take their roles very seriously and did work hard to produce all the materials required by the court, as expeditiously as possible. However, we have all learnt from this experience and will ensure that issuing is done in a timely manner. The staff involved also offer their sincere apologies for the delay and did not wish to cause the court and parties any offence. They were working hard to gather all the necessary evidence and ensure all parties had full and up to date records of recent events. Again the team recognises the need to issue proceedings as soon as possible following the birth of the baby and will ensure this message is shared across their team…..

….LW’s half-brother is currently subject to care proceedings on the basis of concerns arising from domestic violence. The pre-birth assessment of LW concluded that the risks remained as the mother had not changed or accepted the concerns, but instead minimised the domestic abuse and impact this would have on her as yet unborn child’s development and safety.

A Legal Planning meeting was held on the 16th December 2015 chaired by a Children’s Social care service Manager with legal advice and support from the Team leader of the Local Authority’s Children and Adults Legal Team. The decision to issue proceedings was then ratified by me as Head of Service for Children’s Social Care.

It would be usual practice to issue proceedings on the day of birth and I have investigated this matter to try and ascertain why in this case, proceedings were not issued until the 27th January, 8 working days following LW’s birth. I met with the Team Manager, SD, and her covering Service Manager on Friday 29th January and with the Children and Adults Legal Team Leader on Monday 1st February in order to review events and determine reasons for this delay. I set out below the key events as they unfolded and which contributed to the delay in issuing proceedings….”

It isn’t great that the social work team took five days (less working days, obviously) to produce their statement, given that all concerned knew that the intention was to issue proceedings and that a baby would be born in January. Having said that though, having the statement ready on 21st January would still have allowed for a hearing on notice, and the delay of seven days to get the application issued once the statement was prepared is hard to understand.   [The longest and toughest part of issuing an application is of course the social worker writing the statement. The actual application is a horrible soul-crushing bout of tedium, but it really doesn’t take that long. In one dreadful day in December, I did three of these in a morning]

So what did the legal department have to say?  Well, as indicated earlier, they threw the lowest paid person in the room under the bus.

“On 19th January 2016, Legal Services were updated by the social worker following her hospital visit to see mother, father and the baby. The social worker advised there had also been an anonymous referral to the hospital made the previous evening stating that the mother had used opiates throughout her pregnancy. The hospital had also expressed concerns about the baby’s health and they would be undertaking a Rivers chart assessment as they were concerned the baby was experience withdrawal symptoms. I refer to the statement of TN for an explanation regarding what the Rivers Chart assessment is.

In light of the recent information, the social worker needed to update her statement and this was sent to Legal Services on 21st January 2016. By this point there were and had been some difficulties between the social worker and hospital in obtaining medical information regarding LW’s withdrawal and also the father’s overdose. Legal services confirmed that they would assist in seeking this information from the hospital.

On Friday 22 January the hospital emailed over a midwife’s report to the social worker’s team secure email. Unfortunately as the social worker was off sick on Monday 25th January, this statement was not picked up by the social worker until Tuesday 26th January, when it was forwarded on to Legal Services. Unfortunately the allocated solicitor was not in work on the 26th as she works part-time so the first that the solicitor saw of both the midwife’s report and the final paperwork from the Social Worker (the chronology) was on Wednesday 27th January, when the matter was issued. As the hospital was not pressing for discharge until the end of the week the Court were notified with the application that the matter could wait until Friday 29th January for listing if that would assist the Court…..

…the final updated social worker documents were received by Legal on 26th January and the case was issued with the court during the afternoon of 27th January and the court was advised that a hearing the following day was not necessarily needed and the matter could wait until the day afterwards, namely Friday 29 January if that would assist the Court. In the meantime the hospital emailed over further health evidence, a second midwife report and chronology, once again to the chronology, once again to the social worker until the morning of 28th January and then passed on to Legal Services.

The court duly issued the matter during the afternoon of 27th January and listed the case to be heard before a District Judge at 2pm on Thursday 28th January2016. The allocated solicitor left instructions with the team legal secretary to inform CAFCASS and also provide them with copies of the local authority application and also to counsel who would be representing the Local Authority on 28th January.

Unfortunately, the team secretary did not file and serve the Local Authority’s application on the Parent’s solicitors at the same time. I apologise on behalf of the Local Authority for their regrettable oversight. To give this error some context, due to an unexpected absence and vacancies within the secretarial team, the secretary was working on her own that day in a secretarial team which usually consists of four secretaries and was inundated with work. She is very sorry for the problems her oversight caused.

It is also further regrettable that it was not noted that the parents’ solicitors had not been served with the Local Authority’s application until late in the morning on 28th January. It was immediately rectified but unfortunately this was less than two hours before the hearing. Once again I apologise on behalf of the Local Authority for this delay. The Local Authority has been made fully aware of the dissatisfaction expressed by Mr Justice Keehan who heard the matter on 28th January and has not taken this matter lightly. There has been a full review into the circumstances surrounding the issue of this matter both by legal Services and also Children’s Services.

It is accepted that there has been a delay in the issuing of this matter and no disrespect was intended to the court and parties. It is hoped by providing a chronology in respect of what has happened in the conduct of the matter since the birth of LW that Mr Justice Keehan and the court can be reassured that this matter was continually worked and as a result of the critical new information and concerns around events that took place around the birth of LW involving the father’s suspected overdose and also the anonymous referral that the mother possibly had been using opiates through pregnancy that such concerns had to be rigorously investigated and also further evidence adduced in order for the Local Authority to rely on this, particularly, as the Local Authority’s Care Plan was to seek an Interim Care Order with removal of LW from her parents’ care.

In addition, the Parties solicitors were updated as regards progress with the matter. Sadly for LW the hospital had concerns that she maybe experiencing withdrawal symptoms and the hospital were obviously keen to keep her in hospital for monitoring. LW also suffered a seizure on 25th January. Therefore, any delay in the matter being heard before the court had thankfully not caused any inconvenience to the hospital.

Nevertheless in reviewing this matter I accept that should this scenario happen again in the future the appropriate course of action would be for the matter to be issued at the earliest possible opportunity following the baby’s birth. There would then be liaison with the court around further evidence being sought by the Local Authority to assist the court as to how urgently the matter needed to be listed, particularly as in this scenario the Local Authority were seeking an interim Care Order and removal which was and is still to be contested by the parents. The Team Leader for the Children and Adults legal team will ensure that the team is fully aware of the need to take this approach in future cases….”

Hmmm. I’m struggling with the Judge’s opening summary, where he says that the social work documents were with legal by 21st January, because the legal chronology here says 26th January.

The Judge accepted the apologies, but still felt that there was some egregiously poor practice here – and indicated that as there were some failings here which were not unique to this authority but things that happened too often in cases, it was worth highlighting them. In particular, he was concerned at the practice of delaying issuing an Interim Care Order application because a hospital was willing to keep a child for a longer period than would usually take place.  (It is fairly usual to seek an ICO in 4 or 5 days after birth, to allow the notice period and the hospital be asked to keep mother and baby together in the hospital with mother’s agreement.  The Court can’t always accommodate that, and this is particularly an issue where those 4 or 5 days would encompass a weekend, or worst still a Bank Holiday weekend)

I also note that having accepted the Local Authority apologies, the Judge did still take them to task for being a serial offender in late applications, and also ordered them to pay the costs.

[I can’t help but note that Keehan J was a lot harder on this authority than he was on the one in last week’s case who sought an injunction effectively labelling a man as a sexual exploiter of children having got the wrong man…]

Local Authority – Failings and Poor Practice

 

  • In my experience the errors made in this case are not an isolated example nor is the factual matrix of this case either unique nor even exceptional: on the contrary this case is fairly typical of the type of case in which local authorities propose or plan to seek the removal of a baby at birth. Thus, what principally concerns me is that such fundamental and egregious errors should be made in, what may colloquially be termed, ‘a run of the mill case’. In paragraph33 below, I consider what steps should be taken by a local authority when it plans to seek the removal of an unborn child immediately or shortly after his/her birth.
  • Before I do so, I wish to make certain observations on the flawed approach apparently endorsed by both the senior children’s services manager and the local authority’s senior lawyer in this case. First, both made reference to the willingness of the hospital to keep the baby as an in patient pending the issue of care proceedings. Plainly the period of time for which a hospital is prepared to keep a new born baby as an in-patient, either on medical or welfare grounds, maybe a material consideration for a local authority on the timing of the making of an application for an interim care order, but must not place too great a reliance on these indications or assurances. The fact that a hospital is prepared to keep a baby as an in-patient is not a reason to delay making an application for an interim care order. The following should always be borne in mind:

 

a) a hospital may not detain a baby in hospital against the wishes of the mother or a father with parental responsibility;

b) the capability of a maternity unit or a hospital to accommodate a healthy new born child may change within hours, whatever the good intentions of the unit or hospital, depending upon the challenging demands it may be presented with;

c) the ability to invite the police to exercise a Police Protection Order, pursuant to s 48 of the 1989 Act or for a local authority to apply for an Emergency Protection Order, pursuant to s.36 of the 1989, are, of course, available as emergency remedies,

d) but such procedures do not afford the parents nor, most importantly, the child, with the degree of participation, representation and protection as an on notice interim care order application;

e) the indication of a maternity unit as to the date of discharge of a new born baby should never, save in the most extraordinary of circumstances, set or lead the time for an application for an interim care order in respect of a new born child.

 

  • Second, where the pre birth plan provides for an application to be made for the removal of a child at or shortly after birth, it is neither “usual” nor “ideal” practice for an application for an interim care order to be made on the day of the child’s birth, rather it is essential and best practice for this to occur.
  • Third, once it is determined by a local authority that sufficient evidence is available to make an application for an interim care order, on the basis of the removal of a new born child, the availability of additional evidence from the maternity unit or elsewhere, must not then cause a delay in the issue of care proceedings; the provision of additional evidence may be envisaged in the application and/or provided subsequently.
  • The local authority should have adopted good practice and the following basic, but fundamental, steps should have been taken:

 

a) The birth plan should have been rigorously adhered to by all social work practitioners and managers and by the local authority’s legal department;

b) A risk assessment of the mother and the father should have been commenced immediately upon the social workers being made aware of the mother’s pregnancy. The assessment should have been completed at least 4 weeks before the mother’s expected date for delivery. The assessment should then have been updated to take account of relevant events immediately pre and post delivery which could potentially affect the initial conclusions on risk and care planning for the unborn child;

c) The assessment should have been disclosed, forthwith upon initial completion, to the parents and, if instructed, to their solicitors to give them an opportunity, if necessary, to challenge the assessment of risk and the proposed care plan;

d) The social work team should have provided all relevant documentation, necessary for the legal department to issue care proceedings and the application for an interim care order, no less than 7 days before the expected date of delivery. The legal department must issue the application on the day of birth and, in any event, no later than 24 hours after birth (or as the case may be, the date on which the local authority is notified of the birth);

e) Immediately upon issue, if not before, the local authority’s solicitors should have served the applications and supporting documents on the parents and, if instructed, upon their respective solicitors.

f) Immediately upon issue, the local authority should have sought from the court an initial hearing date, on the best time estimate that its solicitors could have provided.

 

  • If these steps had been followed in this case, unnecessary delay and procedural unfairness would have been avoided.

 

Conclusions

 

  • The local authority was inexcusably late in making an application for an interim care order. The consequences of this contumelious failure were that:

 

i) The parents’ legal representatives were served with the application and supporting, albeit deficient, documentation only some 2-3 hours before the hearing;

ii) The court was unable to accommodate a 1 day contested hearing for an interim care order before a circuit judge, a recorder or a district judge until some days hence;

iii) The parents legitimately wished to have a fully contested interim hearing with the benefit of oral evidence to cross examine the social worker and the guardian and to enable the parents to give oral evidence;

iv) The hospital was ready to discharge the child and, for wholly understandable reasons was unwilling and unable to care for the baby for a further prolonged period;

v) The stance of the hospital and the principal, but unchallenged, evidence of the local authority was that the baby would be at risk of suffering significant harm if she were discharged into the care of either the mother and/or the father;

vi) Accordingly and acting in the best welfare interests of the baby, as advised by the children’s guardian, the court had no choice but to make an interim care order in favour of the local authority on the basis of a plan to place the baby with foster carers; but

vii) On the basis that the local authority, at whatever cost and inconvenience to itself, would arrange contact to take place five times per week between the child and her parents.

 

  • I am in no doubt that the parents in this case have been done a great dis-service by this local authority. It may well be that the outcome would have been the same whatever the length of notice that they and their respective legal advisors had had of this application; that is not the point. It is all a question of perceived and procedural fairness.
  • The actions of this local authority, in issuing an application for an interim care order so late in the day, have resulted in an initial hearing before the court which, I very much regret, is procedurally unfair to the parents. Of equal importance, it is unfair to the children’s guardian who was only appointed on the morning of the issue of this application. The fault for this unfairness lies squarely at the door of this local authority.
  • I am in no doubt that if this application for an interim care order had been issued timeously by the local authority then the hearing before me on 28 January 2016 could have been an effective contested hearing.
  • In the premises I have no hesitation in concluding that the costs of this abortive hearing should be borne by the local authority. Accordingly I shall order the local authority to pay the costs of all of the respondents to be assessed if not agreed.
  • This local authority is, I am told and accept, a ‘serial offender’ in issuing late and ‘urgent’ applications for care proceedings and/or interim care orders in respect of new born babies. Save in respect of clandestine pregnancies and/or births, I simply do not understand why this local authority issues proceedings so late and so urgently. In this case it was a most spectacular and contumelious failure.
  • The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.
  • Given that in the vast majority of cases a local authority will be actively involved with the family and/or aware of the pregnancy and the estimated date of delivery, I cannot conceive how such a requirement places an unreasonable and/or disproportionate duty upon a local authority. Further it is likely that a local authority’s failure to act fairly and/or timeously will be condemned in an order for costs.
  • In this case the local authority wholly and unreasonably failed the child, her parents and the children’s guardian.

 

 

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In the soup

Posted on March 2, 2016 by suesspiciousminds

This is a set of care proceedings dealt with by His Honour Judge Wood in Newcastle – so not binding or exciting case law, but sad and interesting and with some unusual quirks.  So far as I am aware, it is the first set of care proceedings in which a tin of tomato soup plays a key role.

 

[The very unfortunately named Lancashire County Council v A (Burned Child) 2015 mentions soup tangentially, but it does not specify tomato…   http://www.bailii.org/ew/cases/EWHC/Fam/2015/1156.html

 

Oh, and of course the Hampstead Hoax case Re P and Q 2015 involves a finding that the mother and her partner made Hemp Soup and fed it to the children       http://www.bailii.org/ew/cases/EWFC/HCJ/2015/26.html   

 

Turns out soup crops up more than you’d think. Spaghetti hoops, however, have never turned up in a published family judgment on bailii, just in one horrendously complex case about tanks used to store polymers – a case apparently worth £40 million…

Baked beans feature in no published  family law judgments at all.  Lots of other weird stuff, including the wonderfully named

Baron Uno Carl Samuel Akerhielm and another v Rolf De Mare and others (Eastern Africa) [1959] UKPC 11 

Quite hard to imagine the Baron, or Rolf De Mare eating baked beans 

My dear old friend Shepherd’s Pie just comes up in a criminal case, where the plan was to add death’s head mushrooms to the Shepherd’s Pie to poison someone.     http://www.bailii.org/ew/cases/Misc/2011/13.html

I have digressed into foodstuffs versus the law. Sorry! ]

 

 

 

Re S 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B7.html

The case involved two very ill children, and parents who were from India, and who in the midst of care proceedings went back to India and who were saying that they would only return to collect the children and take them to India. Thus not participating any further in the care proceedings. That is a shame, because certainly from the judgment it seems that mother was potentially a perfectly suitable carer for the children and the issues were really around father. Additionally that father’s issues were potentially of a mental health nature and thus potentially treatable.  If the parents had engaged with the process, the outcome could easily have been very different.

 

This being an international case, efforts were made to contact the Indian authorities. With the exception of what used to be called the Slavic countries, this response is pretty typical of what we tend to get when contacting foreign authorities.

I should mention at the outset that as these children are Indian nationals it is only right and proper that the Indian authorities should have been notified of this action being taken by the local authority in respect of Indian subjects. They were duly notified via their Embassy in November 2015 with full details as to the nature of the action being taken, as well as the contact details of all relevant family members, receipt of which was apparently acknowledged, with an indication that the Embassy would contact F, but nothing has been heard since.

 

The two children were, as I have said, very unwell.

 

  1. The background is significant. Each of these children suffers from profound disability and severe cognitive impairment. In B’s case, her current diagnosis is epilepsy, encephalopathy, global developmental delay, microcephaly, cortical visual impairment. She is fed by gastrostomy. She suffers from prolonged seizures as well as sound sensitivity. She has scoliosis of her spine and subluxation of her hip. By reason of her disability she receives extensive support from a community paediatrician, a consultant paediatric neurologist, consultant orthopaedic surgeon, an epilepsy nurse, dietician, speech and language therapist, occupational therapist and physiotherapist and sensory support team with regard to her health, mobility and postural needs.
  2. So far as C is concerned, his current diagnosis is dystonia, perinatal hypoxic lactatemia, encephalopathy, epilepsy and global developmental delay. He had previously had a nasogastric tube to aid feeding until May 2014 when it was replaced by a gastrostomy. He is currently in receipt of support from the community paediatrician, orthopaedic surgeon, epilepsy nurse, dietician, speech and language therapist, occupational therapist, physiotherapist and sensory support team.
  3. It goes without saying that each of these children is totally dependent on carers to meet all of their holistic needs, to ensure that they receive the medication and the delivery of their health plans as well as being closely monitored to ensure that their health and presentation, safety and wellbeing is at all times met. Neither has any verbal communication. B will apparently cry with distress, but it is said to be hard to find the cause at any time other than by elimination. C responds to sounds and sensory stimulation only.
  4. The local authority says that F in particular does not recognise the needs of his children and their increase. He has, from time to time, as part of a pattern, accused health and educational staff of harming both of the children, as well as ignoring advice from a range of professionals.
  5. There is, as I say, a significant history, but the onset of the precipitating event, if I can put it that way, was that on 13th March 2015, C was admitted to the University Hospital of North Durham with life threatening dystonia, that is to say a movement disorder that causes muscle spasms and contractions. This particular episode required a high level of nursing on admission and frequent monitoring, as persistent back arching had put him at risk of airways compression. This was described by medical staff as a serious life threatening medical condition, resulting from a gradual increase in muscle tone and, on admission, his father reported that he could no longer manage this at home, the spasms having become more frequent.
  6. The medical records record, and one of the treating paediatrician’s comments based on that record, that such severe dystonia would have developed over time and suggest that health support should have been sought at an earlier date to prevent this life threatening episode.
  7. B was admitted to the same hospital on 19th May 2015 due to increased seizures and she required monitoring and medication review and due to her complex needs and swallowing difficulties she has been fed by a gastrostomy which enables her to receive liquid feeds throughout the day in accordance with a dietician devised regime.

 

Given B’s difficulties with feeding and seizures, it was of vital importance that any medical advice regarding feeding be followed. There was an incident where it appeared not to have been, and the investigation as to the cause cannot have been too onerous or complex.

 

The local authority say this has been extensively discussed with B’s father and, on 9th June last year, whilst she remained an in-patient and F had been alone with her in her room, carers arrived to find B vomiting over her clothes and bedding, a liquid that was orange in colour and smelt of tomato soup. A tin of tomato soup was noticed in the waste bin in the room. F, who had briefly left the room, returned and was asked if he had fed B foods either orally or via the gastrostomy site and he denied it, but it is said that later in the evening he admitted that he had given B tomato soup with mashed potato. Medical advice suggested that this placed her at significant risk of aspiration and choking and could have been a life threatening situation for her. It constituted, in any event, having ignored the dietary advice, giving oral feeds that had not been agreed by medical staff, and thereby placed her at risk of significant harm. F at different times, it is said, has disagreed with the feeding and medication regime for the children and has indicated in terms that he would not follow such a regime once the children returned to his care.

 

The father’s behaviour become more challenging and peculiar after this. He started to assert that the medication given to the children was making them ill, that hospital staff had inserted electronic chips into their heads, that there was silver metal being placed in their brains and that the hospital were using the children as human guinea pigs to test the effects of bacteria upon them.  It was this behaviour, in combination with the fact that the children had very significant health needs which would have to be met, on discharge by their parents, that led to the degree of concerns that the Local Authority held.

 

  1. In addition to the evidence of the then social worker, Claire Brown, the local authority relied on the reports of two paediatricians who have cared for the children in Durham, Dr Haves and Dr Balu. These are frank and, in the case of Dr Haves in particular, really quite hard hitting reports, in which neither pull their punches. Dr Haves expressed belief that both of these children would suffer significant harm if they were returned to the care of their parents they being in hospital continuously from the time of their admission up until November, as I will come to. She was very concerned at what to her was M’s extended and unexplained absence. She considered F to have a significant undiagnosed mental health disorder, which was deteriorating and impacting on his ability to work with professionals, he declining to undergo mental health assessment. Dr Haves considered his belief about the causation of the children’s disability, which is thought, from a medical point of view, to be genetic in origin, to be paranoid or delusional in nature, but more worryingly, that belief acted as a barrier to the administration of proper care and she gave a long list of examples of that, some of which I have already touched upon.
  2. She felt his allegations against medical professionals were incompatible with any evidence, or indeed reasonable expectation. Nor, in her experience, could his views be explained by a cultural variant, or an adjustment reaction to the children’s disability, she having had some significant experience of working in communities where many people from the Indian sub-continent live. She gave examples of F’s paranoid beliefs that extended to his emails being hacked, his receiving telephone guidance from professionals in London and neighbours reporting on him, and she said it was impossible to engage with him in a rational way, which in turn made the provision of medical care in the community almost impossible.
  3. There were other specific concerns. First, his inability or unwillingness to recognise and manage seizures of which there was a long history. This had profound implications for ensuring the correct medication. His inability or unwillingness to comply with medical advice, withdrawing, reducing or increasing doses of medication, particularly anti-convulsants, such that, at times, the children were inadequately protected, or so dosed up that they presented as sedated. F also made claims of medical expertise, repeated, I see, in his closing submissions. His claims of academic qualifications include biology, microbiology, immunology, pharmacology, none of which were ever substantiated, but used by him to engage with professionals in what they considered an inappropriate way. He had acquired medical equipment with no qualifications to use it, such as a blood pressure machine, as well as taking steps such as dressing in an NHS uniform or a white coat, thereby implying that he had qualifications that he did not have. He had, on occasion, administered high flow oxygen to B, without any medical intervention or advice. He fed her orally, as I have mentioned, and administered a privately acquired nebuliser. Dr Haves also had worries about his emotional attachment and basic care, noting on occasion a lack of reaction to distress, a lack of stimulation, at one point offering to donate the children to medical science if a genetic condition was ever established, as well as leaving the children unaccompanied for significant periods. Finally, was her concern about his reluctance to accept support. She concluded her report by saying this: “B and C have profound and complex neuro disability. They are highly dependent on others for all aspects of their care and remain highly vulnerable to complications. As such, the level of parenting capacity required to meet their needs is extremely high and it is expected that any parent in that situation would require the help and support of a wide range of professionals, to give expert advice and opinion. Professionals working with families caring for such disabled children are generally highly skilled and experienced at working with families with a variety of different beliefs and levels of understanding and work hard to develop positive relationships with the families, regardless of any differences in opinion. However, in order to work in an effective way with families, professionals need to be able to expect a level of honesty and openness and to be satisfied that parents and carers have a reasonable understanding of key health issues. Where parental understanding or belief systems appear to be acting as a barrier to providing adequate care to highly vulnerable children, professionals must raise their concerns. Professionals working with F have had long standing concerns about his mental health and well being and how his strongly held beliefs are impacting on the care of his children and his ability to work with professionals. There has been real professional anxiety about the possibility of actual harm occurring, as a result of his beliefs and behaviour and about the potential future risk to the children, owing to any possible undiagnosed, untreated and unmonitored mental health condition. There is now additional witness evidence of incidents of a very serious nature, in which the children have been placed at high risk due to F’s behaviour. I strongly recommend that he should not be allowed any further unsupervised access to his children and that he undergoes an expert psychiatric assessment.”

 

The Judge made the following findings in relation to father

“iv) F holds strong and dogmatic views on the treatment of his children. Some of these views are paranoid and delusional. His insistence on the validity of these views impinges on the ability of the treating team to treat the children effectively. F is unable to exercise consistently rational judgments in relation to what care and treatments are in the children’s best interests, thus placing them at the risk of significant harm. The following are examples.

(i). C had a microchip deliberately implanted in his head, which is the cause of his fits.

(ii). B has been deliberately inoculated with harmful substances.

(iii). B’s fits at school are caused by allergens and bacteria.

(iv). The dose of Keppra may be poisoning B.

(v). An obsessive belief that Lamotrigine is the cause of B’s fits.

(vi). Both children have been implanted with bacterial pathogens and silver fragments in their brain.

(vii). A refusal to submit to psychiatric assessment by professionals from the National Health Service who were ‘the opponent’ and were ‘a criminal organisation’, who fabricate information.

(viii). M has gone to India to have children since it is safer. The NHS have made the children how they are.

(ix). The other paranoid beliefs, some of which I have mentioned, including the view that his emails are being hacked.”

The father claimed, though was not able to evidence this claim, that he had a Masters degree in Zoology.

However, given one of the later findings made was :-

“viii) F made unsubstantiated claims of expertise in science, microbiology, biology, immunology and pharmacology. He seeks to take on a medical role in relation to the children, over and above that which it is reasonable for a parent to claim in such circumstances. The following are specific examples:

(i). F required various medical equipment – a blood monitoring machine – which he had no expertise to utilise.

(ii). F dresses in a white coat and has been seen examining the children with a stethoscope in hospital.

(iii). F brought intravenous bags to administer fluids without seeking advice.

(iv). The use of an Abigail pump incompatible with the current feeding regime.

(v). Administering high flow oxygen without medical advice.

(vi). Administering privately acquired nebuliser.

(vii). Administering a significant quantity of potato and tomato soup, either orally, or via a nasogastric tube, without seeking prior advice.

(viii). F’s expressed intention to return to a natural feeding regime, should the children return to his care, which is contrary to professional advice, which will place the children at risk of harm.”

 

One can see why hospital staff were concerned. An unsubstantiated Masters in Zoology doesn’t really equip one to be walking round in a white coat in a hospital wearing a stethascope and examining children. I’d be pretty concerned if he’d been walking round a petting zoo examining rabbits.

Given that the parents had withdrawn from the process by going back to India (it seemed very likely that this had been because mother was pregnant and wanted to have the baby overseas and not return to the UK) the Judge had very little choice but to make the Care Orders sought.

 

  1. The court has therefore been presented with two options: a return to the parents or other family in India, or the making of a care order with a plan of long term foster care. The return to India was far from fanciful as an outcome. It is perfectly possible that, despite the findings the court has now made, that these children could go to India, could there receive suitable care and be cared for either by extended family or some institution, nevertheless maintaining the link with the birth family. The local authority says that the findings in fact do not permit a return to the parents and unless and until there is acceptance of those findings and an understanding as to how they can work with professionals in the future, that is simply not a possible outcome. Although the parents say they can access a lot of support, both from family and from professionals, there is no indication that they do not seek to care for the children themselves. Indeed, they seem to be saying that they intend to care for them. Whatever it is, in any event, it is all wholly unassessed and that is not because the local authority has not tried to assess it, but because of the parents’ conduct throughout this litigation.
  2. The local authority is supported by the guardian in its entirety over the inability of a plan to place the children with the parents. Counsel for the parents frankly accept that they cannot presently advance the parents as carers, given their responses to the litigation.
  3. The only other contention is long term foster care. There is, literally, no other alternative. The local authority has identified a permanent foster parent who, with the support of 24 hour professional care, can care for the children at their present home, which was for a time at any rate the home of the family, and which is adapted and fully equipped to meet the children’s needs. Their needs will be met in accordance with the care plan, if approved, that is to say medical needs, a multi-agency care team, schooling, personal education plan, as well as universal services.
  4. The children’s guardian raised an issue as to whether Children and Families Across Borders should nevertheless embark upon assessment in India, as the present social worker appeared to be suggesting in her final statement, but withdrew after the discussion we had about it. Because, unless and until there is a plan, or at least a proposal of a plan, that could meet the children’s needs, it would, I am satisfied, be an academic exercise, despite, as I say the suggestion that it should be proceeded upon, in any event.
  5. From the court’s point of view, nothing would give greater pleasure than to be able to reunite this family, scattered across two continents. However, the findings that the court has made, are serious and, absent them being addressed by the parents, or them preparing a care regime where safety would be ensured by others who have made themselves available and been assessed, it seems to the court that it would be completely unrealistic and disproportionate to embark upon an assessment in what would be a vacuum. If the parents seek to oppose the order actively, they can of course apply to discharge any care order made, explain their responses to the findings and offer properly supported proposals, which are capable of investigation and assessment. It seems to the court that, at the present time, they are in denial and they have not, despite on the face of it putting forward long lists of names, advanced proposals which are capable of being exposed to such a process.
  6. By reference to the welfare checklist, the wishes and feelings of these children would be very difficult to ascertain. I accept they have a relationship with their father, in particular, which is of value to them. Set against that, they are well and building good relationships and thriving within their limitations. Their needs and characteristics are central to this case: they are complete, profound and life long, as well as life limiting. Any change in circumstances for them would be very hard to manage but, if all other factors were in place, no doubt could be managed. The risk of harm is, in the court’s judgment, profound. The findings go directly to the welfare question and there is simply no understanding as to why F, in particular, but M to an extent, have behaved as they have. It turns directly on their capability, which is impossible to assess, because neither has engaged meaningfully in the final analysis, so it is really very difficult to measure.
  7. Looking at the range of powers available to the court, they are in truth extremely limited.
  8. This is a desperately sad case, where, whatever their motives, the two children with whom I am concerned, have been effectively abandoned. I am satisfied that on an application of the welfare checklist and by reference to the Article 8 rights of parents and children, the only order that presently meets their needs, is a care order. So I approve the care plan for long term foster care. I note that the local authority will seek to facilitate regular contact, should the parents come. Should they choose not to, they will endeavour to facilitate Skype contact. Whilst it is of course for the local authority to promote contact for children who are in their care, it is also incumbent upon the parents to make themselves available and demonstrate a commitment so that any contact that takes place can be meaningful.
  9. I wish both children and their carers well. I very much hope that the parents, faced with the enormity of what they have done, can and will reflect and, in time, at any rate, engage in a way that might yet give these children a chance of life within their family.

 

 

 

 

[Later edit – very sad postscript is that the health of one of the children deteriorated still further and the Hospital sought a declaration from the High Court that treatment cease   http://www.bailii.org/ew/cases/EWHC/Fam/2016/535.html    The parents represented themselves in those proceedings, and stood by their views that the children had been made unwell by the hospital and that they should be sent to India forthwith]

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Girl I wanna make you SWET, SWET till you can’t SWET no more

Posted on February 26, 2016 by suesspiciousminds

 

Seriously? Seriously?

The Social Work Evidence Template gets amended, in a press release on a Friday, and tells practitioners that it is to be used from Monday. Yes, this coming Monday.

The new templates should be used in new cases from Monday, 29 February onwards.

 

Good luck with that.  Haven’t even had time to read it yet to see what I like or don’t like about it.

Again, the press release claims that the President has endorsed it  (Frankly, I like to see the President himself saying that, because I find it rather tricky to imagine that he ever read a statement in the SWET format and said “Hey, this is great!”   – in my mental picture here, he uses the same voice as Casey Kasem from America’s Top Twenty / Shaggy from Scooby Doo)

 

[And also there is some form for claiming that the President has endorsed some guidance, only later to watch aghast as he distances himself from it in a judgment]

http://www.familylaw.co.uk/news_and_comment/updated-template-to-help-social-workers-prepare-for-court-launched

 

 

 

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Co-operation, camels and housing

Posted on February 25, 2016 by suesspiciousminds

The Argentinian author Borges once observed that there is not a single mention of a camel in the Koran – they were simply so common-place and unremarkable in the time and place that the Koran had been written and later circulated that there was no need to actually ever mention them.

A long while ago, I became curious about just how often the word “co-operation” came up in child protection law  – “The mother is co-operating, so there’s no need to make an interim order, stick with an agreement”,  “The father didn’t co-operate with the assessment”,  “I don’t feel that the parents can co-operate with professionals”  and so I undertook an exercise. I went through the entire Children Act 1989 looking for the word “co-operation”

It appears just the once. And it isn’t about parents co-operating with professionals at all – it is about professional agencies co-operating with one another.

Section 27  Co-operation between authorities

 

“(1) Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority specifying the action in question.

(2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.

 

 

(3) The authorities are—

(a) any local authority;

(c) any local housing authority;…

Section 27 doesn’t get out much. It has all sorts of potential, but it is a wallflower compared to the gregarious and vivacious section 31, 20 and even 17, which find themselves before the bright lights in London all the time, being pored over and scrutinised and having reams of purple prose written in their honour.

So it pleased me to see a case where section 27 was the mainspring of the argument. It relates to a case where housing would not house a family in a ground floor property and where social workers had observed that the children were drawn to windows and balconies and would try to jump out.   The last case with those features did not end at all well  – in fact it was deeply tragic :-

https://suesspiciousminds.com/2014/12/01/serious-case-review-can-a-failure-to-call-one-be-judicially-reviewed/

The mother attempted to judicially review the Local Authority social work department’s failure to ask the Housing authority to assist in their section 17 duty of meeting the children’s needs and keep them safe by providing housing, using the lever of section 27.  It’s a clever argument.

M and A v London Borough of Islington 2016

http://www.bailii.org/ew/cases/EWHC/Admin/2016/332.html

  • The two claimants are children who are severely autistic. They live with their respective mothers in flats owned by the defendant. M has a younger brother, S, who is also severely autistic. Otherwise they are not connected, but their claims have been joined because on behalf of each it is said that the failure of the defendant to afford them a transfer to other accommodation is unlawful since where they at present live is unsafe for them in particular because all three children are drawn to windows and balconies and will try to jump out. The danger of this is all too obvious when they are at a level above the ground floor.
  • The claims were lodged in July 2014. Following refusal on the papers, permission was granted at an oral renewal hearing on 18 September 2014. Expedition was required and a hearing was to take place on 26 November 2014. As will become apparent, the main ground relied on on behalf of the claimant was that Section 27 of the Children Act 1989 applied so that the defendant was obliged to take action which it had not taken to re-house the claimants. In R(C) v. Hackney London Borough Council [2015] PTSR 1011 on November 7 2014 Turner J decided, having heard argument from Mr Wise, that s.27 did not apply. This claim was accordingly stayed pending a decision of the Court of Appeal on the claimants’ application for leave to appeal. Following refusal of leave to appeal by McCombe, LJ on 15 May 2015 the stay was lifted. Mr Wise has maintained the argument that s.27 does apply and that Turner J was wrong and has submitted that I should decline to follow his decision.

The arguments about why section 27 was held not to apply are tricky, but I’ll try to condense them

The defendant is a unitary authority. All functions which a local authority can exercise are exercisable by it. But it has within it separate compartments so that various different functions will be carried out by different persons. The two compartments material for the purposes of this case are social services and housing.

[So for this case the Housing Department and Social services department were essentially the same corporate body, just different parts of it. Let’s say right hand and left hand. Now, one might well argue that the right hand doesn’t always know what the left hand is doing, but they are still attached to the same body. ]

In some areas of the country, different authorities deal with social services and with housing. Thus s.27 of the 1989 Act fulfils an obvious need if a service which the particular authority concerned with social services cannot provide but which can be provided by a different authority is required. Mr Wise submits that it can also apply to different departments within a unitary authority. Having regard to the purpose of s.27 which is to assist in safeguarding and protecting the welfare of children in need, it is, he submits, necessary to construe s.27 to give effect to that purpose. It is only if the reference in s.27(1) to ‘that other authority’ includes a separate department within a unitary authority that that purpose, he submits, can be achieved. Turner J decided that that would be to subject s.27 to a strained and wholly artificial interpretation

The argument being that whilst s27 allows say Islington’s right hand to ask Hackney’s left hand to do something, and allows Hackney’s left hand to ask Islington’s left hand to do something, it doesn’t allow Islington’s left hand to ask Islington’s right hand to do something.  Or rather, one can ask, but you’re not asking under section 27. And the duty to co-operate doesn’t arise.  In plain English, if Islington’s housing and social services were just all the London Borough of Islington, it can’t co-operate with itself.  A single entity can’t co-operate with itself, it needs someone else to co-operate with.

This is the Byas point “You cannot ask yourself for help” R v. Tower Hamlets LBC ex p Byas (1992) 25 HLR 105

[I’m not sure that I really go for this argument – having worked in many Local Authorities, the different departments may as well be different planets. One could easily spend as much time arguing between different departments as any fight you could pick outside. It’s a bit like saying that the Treasury and Department of Health are the same thing. Notionally yes, they are all just the British Government, but they have completely different staff, budgets, aims and managers. ]

  • Mr Wise has raised the same arguments which were rejected by Turner J and has relied on the same authorities. But he has submitted that there has been a subsequent decision of the Supreme Court, Nzolameso v. Westminster City Council [2015] PTSR 549 which assists his argument. He also relies on guidance from the Secretary of State which appears to indicate that s.27 does apply within unitary authorities. The natural meaning of the words in s.27 indicates that it is aimed at co-operation between different authorities when the authority which deals with social services and so the welfare of children in one does not have responsibility for dealing with other matters, in particular no doubt housing. It may be assumed that Parliament considered that unitary authorities would ensure that there was the necessary co-operation between the various departments so that there would be no need for a statutory requirement to achieve it. Thus in R v. Tower Hamlets LBC ex p Byas (1992) 25 HLR 105 which concerned an application to require the Council’s social services department to make a s.27 request to its housing department, Hoffman LJ observed at p.107:-

“In my judgment, this application is perfectly hopeless. Section 27 of the Children Act 1989 enables a local authority to ask for the help of one of the other authorities mentioned in s.27(3). It seems to me quite unarguable that the requesting authority can itself be the authority to which the request is addressed. You cannot ask yourself for help.”

Byas was a refusal by the Court of leave and so is not a binding authority. But, as Turner J observed, it is due considerable respect.

  • Mr Wise has relied on in particular observations of Lord Nicholls in R(G) v. Barnet LBC [2004] 2 AC 208. The construction of s.27 was not argued in that case and Lord Nicholls’ observations about it were entirely obiter. He does indicate in paragraph 62, applying s.27, that a unitary authority’s social services department can request help from its housing department ‘as the local housing authority’ and the housing department must comply unless it would unduly prejudice the discharge of any of its functions. Byas was not cited. Lord Steyn was in general agreement with Lord Nicholls. Mr Wise submits that Lord Hope’s observations in paragraph 71 assist his argument. Lord Hope was simply making the point that in unitary authorities the statutory duties in relation to child care are separated from those relating to housing.
  • R(G) v. Southwark LBC [2009] 1 WLR 1299 concerned the councils’ obligation to provide accommodation for a child. Lady Hale gave the only reasoned opinion. At paragraph 33 she referred to s.27 of the 1989 Act and the guidance issued by the Secretary of State in May 2008 on the issue of co-operation between authorities. She stated:-

“Section 27 of the 1989 Act empowers a children’s authority to ask other authorities, including any local housing authority, for ‘help in the exercise of any of their functions’.”

Since Southwark is a unitary authority, her observations do seem to assume that s.27 can apply to such an authority. But Byas was not cited and it is not clear the extent to which (if at all) s.27 was raised in argument.

[For me, I think Lady Hale dealing expressly with s27 beats Hoffman LJ on an authority which is not binding]

But anyway, we move on to the Government’s guidance published in March 2015 telling Local Authorities that “where requested by a local authority children’s social care department, professionals from other parties of the local authority such as housing have a duty to co-operate under section 27”

That couldn’t be clearer that the guidance believes that s27 applies equally to unitary authorities as it does to any other arrangement.

  • Nzolameso (supra) concerned the lawfulness of Westminster’s decision to house a single parent who was suffering from ill health and was homeless in Milton Keynes. An issue dealt with by the Supreme Court was the application of s.11 of the 2004 Children Act. It did not require that a child’s welfare should be the paramount or even a primary consideration, but it had to be properly taken into account (paragraph 22). But s.27 was not considered at all and I find nothing in the case which supports Mr Wise’s construction of s.27.
  • In March 2015 the Secretary of State issued updated guidance entitled ‘Working Together to Safeguard Children’. It was issued under a number of statutory provisions including s.7 of the Local Authority Social Services Act 1970 and s.11(4) of the Children Act 2004. It will be recalled that s.7 of the 1970 Act requires that the authority must act under such guidance and that s.11(4) imposes the lesser obligation to have regard to such guidance. In paragraph 68 of the guidance, it is said:-

“Where requested to do so by local authority children’s social care, professionals from other parts of the local authority such as housing and those in health organisations have a duty to co-operate under Section 27 of the Children Act 1989 by assisting the local authority in carrying out its children’s functions.”

There is a similar paragraph in guidance issued under the Children Act 1989 which in paragraph 428 states:-

“Health authorities, local authorities, local housing authorities and other social services departments have a duty to comply with a request from a children’s services department for help in the exercise of their functions [section 27]”

  • Mr Wise points out that where an Act requires that persons act on guidance, there must be very good reason not to follow it. But the guidance must comply with the law. Following Turner J’s decision, the law is that s.27 does not apply to unitary authorities. It follows that the indication that it does in the guidance is not in accordance with the law and it cannot be used as a ground for submitting that Turner J’s decision, now upheld by McCombe LJ, was wrong.
  • As I pointed out in argument, it seems to me that the attempt to overturn Turner J’s decision was entirely unnecessary. It is apparent that Parliament required by s.27 the degree of co-operation between authorities set out in it. While the guidance is poorly drafted, it can and should be read to require that the same degree of co-operation between departments in a unitary authority is given as would be required by s.27 between different authorities. Lord Nicholl’s observations in R(G) v. Barnet LBC (supra) went too far and unnecessarily applied s.27 in terms and, Lady Hale in R(G) v. Southwark LBC was, I fear, guilty of loose reasoning, but the effect of her observations is to make clear that within a unitary authority different departments must act in the same way as would be required if s.27 did apply.
  • I note that in R(C) v. Hackney LBC it was agreed between the parties that if s.27 did not apply the claim had to be dismissed. That was, I think, an unfortunate approach since s.27 was not needed to achieve the required result. As I have said, I am satisfied that the argument that s.27 must apply directly is a barren argument since in a unitary authority it follows Parliament’s will, the Secretary of State’s guidance and observations of Lord Nicholls and Lady Hale that the same approach as required by s.27 is applied. Mr Baker did not seek to argue that my approach was incorrect, his case being that the defendant’s system in operation as applied in the cases of each of the claimants did meet the s.27 test. Mr Wise did in the end recognise that my conclusion provided the claimants with all that they could have had if s.27 directly applied. I should of course add that I am entirely satisfied that Turner J’s construction of s.27 was correct. It follows that I do not need to deal with Mr Wise’s arguments based on human rights and Article 3 of the UN Convention on the Rights of the Child which he deployed to support his contention that s.27 applied. They are all unnecessary since I have decided that its requirements are to be applied indirectly.

 

I’m afraid that Collins J has made my head hurt here. Basically he is saying that s27 does not apply to unitary authorities and that Turner J was right to say that, but the effect of the guidance and the case law is that within a unitary authority different departments must act in the same way as would be required if s27 did apply.  [Which is a very long route to a net effect of s27 applies]

 

In any event, Collins J then went on to dismiss the claim on the facts. That the social care and housing department had had discussions and meetings and conversations and housing were alive to the concerns of social care but had made their determination that provision of alternative housing was not required. Whether s27 applies or not, social care don’t get to make housing bend their own rules and policies and statutory duties.

 

 

  • Mr Wise submits that the system in force does not equate to that which s.27 would require. It is I think important to bear in mind the obligation on the requested authority which is to comply with a request for help if it is “compatible with their own statutory or other duties and objectives and does not wrongly prejudice the discharge of any of these functions.” In R v. Northavon DC ex p. Smith [1994] 2AC 402 the House of Lords considered what the correct approach should be. Lord Templeman’s observations on the manner s.27 should be applied were agreed with by the other members of the committee. On page 410 between letters D and H, Lord Templeman said:-

 

“The provisions of section 27 of the Children Act of 1989 which, as Mr Lester observed, required the housing authority to co-operate with the social services authority, imposed on the housing authority a duty to ascertain whether the housing authority could, without unduly prejudicing the discharge of their functions, provide a solution or co-operate in securing a solution to the problems of the Smith family to the extent necessary to prevent the children from suffering from lack of accommodation.

Following such consideration the result might have been that no solution was obtainable with the reasonable co-operation of the housing authority. There might have been no available accommodation which the housing authority could provide without unduly prejudicing the discharge of any of their functions. There might have been no solution which did not impose on the housing authority a financial burden which they considered unduly prejudicial to the discharge of their functions. Mr Smith might have been an unacceptable tenant. Failing any acceptable solution, it would have been the duty of the social services authority to protect the children of Mr Smith by providing financial assistance towards the accommodation of the family or by exercising the other powers available to the social services authority under the Children Act 1989.

In the event the housing authority were able, without in their view unduly prejudicing the discharge of any of their functions, to co-operate in arrangements whereby the children of Mr Smith did not suffer from lack of accommodation. The social services authority are responsible for children and the housing authority are responsible for housing. The two authorities must co-operate. Judicial review is not the way to obtain co-operation. The court cannot decide what form co-operation should take. Both forms of authority have difficult tasks which are of great importance and for which they may feel their resources are not wholly adequate. The authorities must together do the best they can.”

His concluding remarks on the undesirability of using judicial review to obtain the necessary co-operation are to be noted. And it is equally important to bear in mind that s.27 does not require that the functions of the requesting or the requested authority are changed. The same approach will be material in a unitary authority where one department is requested to assist the other.

 

 

There is some complex points system, and actually there is reference obliquely in the judgment to the Deeqa Mohammed case referred to earlier, since this is the same London Borough

 

  • The witness produces a copy of the exceptional housing needs policy which applies to children in need. It provides that any professional employed in specialist services (which will cover children such as the claimant) may make a referral under the policy and by doing so will be seeking to prioritise the housing needs for the benefit of a child or young person. It is only to be used if (so far as material to these claims) there is a significant risk of a child needing to be looked after and no suitable housing is available and an ordinary transfer application would be likely to lead to delay which is considered detrimental to a child’s welfare. Such a referral can be dealt with by what is known as ‘the Director’s Scheme’ which enables the Director of Children’s Services to make up to 15 nominations for priority housing to the Housing Department. Acceptance by the housing department will result in an initial award of 150 points and the case will be kept under regular review.
  • Apart from the Director’s Scheme, there is the RAG system. If the TAC meeting which will follow if the OT’s assessment of risk recommends that there is a need for alternative accommodation, there will be a placement on the Risk Register at red or amber. A Housing Needs meeting attended by officers from Children Services, Housing and OT is held monthly and at such meeting the OT will raise an amber case that needs to be reviewed. In paragraph 10 of her statement, the witness states:-

 

“In order to promote co-operative working between Housing and Children Services, I have arranged training in safeguarding for my officers involved in the allocation process. Officers in my division understand that Children services can request assistance from Housing and that they are required to support Children Services in their safeguarding duties. I have recently implemented a monthly drop-in surgery for social workers from Children Services to come and seek advice on the housing allocation scheme and housing options for their clients. Cases on the risk register are kept under review at TAC meetings and at the monthly Housing Needs meetings; Children Services can request further assistance from Housing at these meetings as necessary.”

 

  • Mr Wise criticises the system in that the OT who assesses the risk is not an employee of the defendant. There is, he has submitted, no children services input into whether a child goes on the risk register whether red or amber. This he submits is a fatal flaw since if there is to be an equivalent arrangement to that provided for by s.27, the request for assistance must come from the social services department and so social workers must be able to instigate it. It is clear that the system does involve all relevant professionals. There is no reason to doubt that an OT is the best person to assess risk. It is apparent from the evidence of Ms Lucas that it is open to anyone in Children Services to raise any concerns about risk in existing housing. The fact that the OT and the Head of Paediatric Therapy and Specialist Nursing are not employed by the defendant is not of any significance since they work together with social workers.
  • While no family on the amber level of risk has been made a direct offer of alternative accommodation, Ms Lucas has said that there is no bar in principle to that happening if a meeting identified such a case.
  • I have no doubt that the system in operation, which owes much to the death of the child in 2012 when a new approach was recognised to be needed, is such as does comply with the indirect application of s.27.

 

The Judge was content that this system was compatible with s27 (which did not apply on the statue, but as a result of the guidance and case law nearly did so would be treated as though it did) and thus for judicial review purposes, the Local Authority had not behaved unreasonably.

I guess in a judicial review, you’re not able to make the succinct argument that the last time social workers were worried that a child might fall out of a window in Islington the child did, so maybe when you’re worried that three children (one of whom is autistic) might fall out of a window it is reasonable to re-house them  (since it might not be unreasonable to not re-house them)

Who knew there was quite so much case law and controversy about section 27?

 

 

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Appeal about the transparency in the Poppi Worthington case

Posted on February 25, 2016 by suesspiciousminds

 

At first glance, this looked a bit  “Let me just fix this stable door, it is SO much easier without the horse being in here getting in the way and standing on my foot“, but the appeal was actually heard in November  BEFORE the re-hearing of the fact finding, and it is just that we’ve only today had the judgment itself.

I know that some people were curious about how much material was allowed to be reported (for example Poppi’s name, and the name of the father) and some were curious about the ‘live’-tweeting aspects and the Press being present during the hearing itself.

Re W Children 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/113.html

Mr Justice Peter Jackson had given a decision about his plans as to what could or could not be published, in advance of that re-hearing and what role the Press could play.  The Guardian appealed that decision, supported in part by the father. The mother and Local Authority were neutral.

The Court of Appeal were asked specifically to consider what role the welfare of the children had to play in a decision about reporting and press attendance. They bravely duck that question  (to be fair, I think it ends up being a conflict between some  authorities one of which is a House of Lords case, so it has to be resolved ultimately by the Supreme Court). Given that the Guardian’s case was largely based on the degree of openness and transparency here being inimical to the welfare of the other children, that decision was pretty fatal to the appeal.

  1. During the hearing of the appeal we accepted the jointly argued approach of counsel and that, in turn, was the basis upon which we came to the decision on the appeal which we announced at the conclusion of the oral hearing. In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23rd November 2015 and that decision was based upon the children’s welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable, must fall for determination by this court on another occasion.
  2. The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton [2006] EWCA Civ 878; [2007] 1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam); [2007] 1 FLR 1146.
  3. Although, in my view, a reading of those cases may give rise to a potential point relating to the paramountcy of the child’s welfare, which, as I have stated, must fall for determination on another occasion, it is not necessary to go further in this judgment and consider the matter in any detail.

 

Counsel for the Press association (the always excellent Caoilfhionn Gallagher) set out the case for openness and transparency in this case very well  – and it really explains why so much was allowed to be reported in this case.

a) In the unusual circumstances of this case, the judge’s decision on publicity and reporting is entirely justified for the reasons that he gave after giving careful thought to the submissions of each party;

b) In general, there is a strong principle in favour of open justice which has long been regarded as integral to protecting the rights of those involved in court proceedings, and as essential to maintaining public confidence in the administration of justice;

c) The President of the Family Division has drawn attention to the importance of transparency in the context of family justice in Practice Guidance Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733 and in a 2014 consultation document Transparency – Next Steps;

d) The Practice Guidance identifies two classes of judgment, (i) those that the judge must ordinarily allow to be published and (ii) those that may be published; the present case falls into category (i) and there is therefore a strong presumption that the final judgment should be published in due course;

e) There is already an extremely strong public interest in transparency being applied to this case at this time;

f) The Appellant’s acceptance that paragraph [1] to [100] of the July 2014 judgment should be published, which contains a summary of the medical evidence, renders illogical her opposition to the publication of the remaining paragraphs (albeit in a redacted form);

g) There is already substantial publicly available information regarding the injuries that Poppi sustained prior to her death and the fact that her father had been arrested with respect to an allegation of sexually abusing Poppi. Reference is made to the clip of media reports provided to the court;

h) Daily news reporting is justified against the backdrop summarised in (g) above and is justified in this ‘highly unusual’ case. In any event the judge will retain some measure of control over reporting through the ability to impose a retrospective embargo if some particularly sensitive material is disclosed in court;

i) The challenge relating to the judge giving judgment in public is misconceived as the judge did not make any such direction. His proposal to sit in private, with the media in attendance, prior to publishing the judgment was entirely proportionate in the circumstances.

 

The Court of Appeal concluced that this was unusual, but that Poppi was  ahighly unusual case, given that so much was already within the public domain. They largely upheld Mr Justice Peter Jackson’s decision, albeit limiting the amount of medical information that was to be published from the original finding of fact judgment (you may recall at the time that the judgment published initially had such huge chunks redacted from it that one couldn’t see what father was alleged to have done and it was left to astute reading to see that taking a sample swab from father’s penis suggested something very dark. )  They also said that tweeting from Court would have to wait until the end of the day, when the Judge could consider anything unusual arising from the evidence and give directions about it.

 

  1. Ms Gallagher accepts that daily reporting of a child protection case was unusual, but she submits that this has now become a highly unusual case in terms of there being a second fact finding hearing in circumstances where a good deal about the case is now in the public domain.
  2. During the hearing the court asked for more detail of the arrangements that the judge had put in place to maintain some control on the material that could be reported by press representatives who were attending court. The judge’s proposal was that if, for example, a witness were to give unexpected evidence, the disclosure of which might unnecessarily breach the Article 8 rights of the children, or more generally cause them unnecessary harm, the court could embargo that part of the evidence from that which could otherwise be reported. The wording of the judge’s order on this point was that ‘such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing’.
  3. In considering the appeal on this point, the starting point must be that the introduction of a facility for daily reporting of an ongoing fact finding hearing in a child protection case is indeed highly unusual. It is not profitable to debate whether this is or is not the ‘first’ such case. For my part, in a slightly different context, I recall that there was widespread national media reporting day by day of the sad case of Re RB [2009] EWHC 3269 (Fam); [2010] 1 FLR 946; other judges will no doubt be aware of other cases. Be that as it may, no party submits that Jackson J was acting outside his powers by permitting daily media reporting. For the reasons that I have given at paragraph 37, such a course was plainly within his discretion.
  4. In circumstances where, as the Appellants have accepted, the final judgment will be published in due course, the issue of daily reporting relates to the quantity and timing of reporting rather than to reporting the facts of this case as such in principle. It is a matter that calls for a proportionate approach, over which a trial judge is entitled to exercise a wide margin of discretion; as I have stressed, in the present case that is particularly so with respect to this trial judge at this stage in this trial process.
  5. Although I must confess to having a feeling of substantial unease at this degree of openness at the start of an unpredictable fact finding exercise, I am clear that it is simply not possible to hold that Jackson J is wrong in his analysis of the issue and his decision to grant media access to this degree. I am, however, sufficiently concerned about the laxity of the terms of the order dealing with daily reporting as it is currently drawn to stipulate that a further sub-paragraph be added to that part of the order in the following terms:

    ‘such reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, in order to ensure that the court has had an opportunity to consider whether any such additional directions are required.’

    The purpose of this new provision is, hopefully, self-explanatory in that it allows for stock to be taken at the close of the court day so as to identify any aspect(s) of the evidence which should be subject of embargo before any reporting, of any nature, can take place.

  6. The grounds of appeal relating to whether or not the judge should sit in public to deliver his judgment were not pursued and therefore fall away.
  7. For the reasons that I have given, I would therefore allow the appeal to the very limited extent of (a) requiring the removal of reference to any of the medical evidence from the edited 2014 judgment, and (b) inserting a tighter requirement in the court order relating to the control of daily reporting.

 

 

 

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Court Supporter

Posted on February 25, 2016 by suesspiciousminds

A consultation document has been published, making some suggestions about McKenzie Friends. One of the proposals is that their name be changed to something more meaningful

(I think I have told the story before about how the term McKenzie Friend just arrived out of chance because that was the name of the case where it was first asked for – in fact, as the person who was asking to assist was a Australian pupil barrister called Mr Hangar, it could just as easily have been “Hangar Friend”  – though if you say that aloud, it takes on the murderous imperative sense.     Digression 2 – for similar reasons, it is never advisable to attend Court singing the Smiths song “Panic” where the chorus goes “Hang the DJ, Hang the DJ, Hang the DJ, Hang the DJ”  as Security will probably take you into a dark room and shine lights in your eyes)

The suggestion is “Court supporter”

Whilst that makes sense in terms of “It is a person who supports you in Court”,  it carries the other connotation – as in “West Ham supporter”  being a person who supports and admires and endorses West Ham. There are a few McKenzie Friends who wouldn’t really describe themselves as being a supporter, admirer or endorser of the family Courts.

Anyway, I know some McKenzie Friends read the blog and may be able to share this with others.  [I’m not sure how the authors of the consultation intended to let practicing McKenzie Friends know about it]

 

Here are the details for responses

 

1.6 Consultation responses may be submitted by

email to mckenzie.friends@judiciary.gsi.gov.uk or by post to: McKenzie Friends Consultation, Master of the Rolls’ Private Office, Royal Courts of Justice, Strand, London WC2A 2LL.

1.7 The consultation opens on 25th February and closes on 19th May 2016

 

The document itself is here

Click to access consultation-paper-mckenzie_friends_feb2016.pdf

 

Sorry if you can’t do PDFs, I’d suggest emailing the address above and asking for a copy in a different format.

Here are the ten questions they pose

Question 1: Do you agree that the term ‘McKenzie Friend’ should be replaced by a term that is more readily understandable and properly reflects the role in question? Please give your reasons for your answer.

Question 2: Do you agree that the term ‘court supporter’ should replace McKenzie Friend? If not, what other term would you suggest? Please give your reasons for your answer.

Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court? Please give your reasons for your answer. Please also give any specific comments on the draft rules in Annex A.

Question 4: Should different approaches to the grant of a right of audience apply in family proceedings and civil proceedings? Please give your reasons for your answer and outline the test that you believe should be applicable. Please also give any specific comments on the draft rules.

Question 5: Do you agree that a standard form notice, signed and verified by both the LiP and McKenzie Friend, should be used to ensure that sufficient information is given to the court regarding a McKenzie Friend? Please give your reasons for your answer.

Question 6: Do you agree that such a notice should contain a Code of Conduct for McKenzie Friends, which the McKenzie Friend should verify that they understand and agree to abide by? Please give your reasons for your answer.

Question 7: Irrespective of whether the Practice Guidance (2010) is to be revised or replaced by rules of court, do you agree that a Plain Language Guide for LIPs and McKenzie Friends be produced? Please give your reasons for your answer.

Question 8: If a Plain Language Guide is produced, do you agree that a non-judicial body with expertise in drafting such Guides should produce it? Please you’re your reasons for your answer.

Question 9: Do you agree that codified rules should contain a prohibition on fee-recovery, either by way of disbursement or other form of remuneration? Please give your reasons for your answer.

Question 10: Are there any other points arising from this consultation on that you would like to put forward for consideration? Please give your reasons for your answer.

 

I thought this bit of suggested legislation was interesting.  (I am really looking forward to seeing how one defines ‘quietly’)

Except where a rule or other enactment provides otherwise, where a hearing is in public a court supporter may assist a litigant. Assistance may, as the litigant requires, take the form of any of the following:

(a) providing moral support;

(b) helping to manage the court documents and other papers;

(c) taking notes of the proceedings;

(d) advising the litigant quietly on—

(i) points of law and procedure;

(ii) issues which the litigant might wish to raise with the court;

(iii) questions which the litigant might wish to ask a witness.

 

If the proceedings are in ‘private’ (i.e a family case), the person needs permission from the Court.

McKenzie Friends may wish to know that although the proposed legislation allows a Court to allow a “Court supporter” to conduct litigation or have rights of audience (the ability to address the Court or put questions to witnesses) the proposal is that this MUST NOT be given where the “Court supporter” is charging for it in any way.

Permission granted under rule 3.23(3) will be withdrawn by the court at any time where the court supporter is receiving, either directly or indirectly, remuneration from the litigant in respect of exercising the right of audience or carrying out the conduct of litigation

 

This bit imposes the same duties on a Court supporter as a on a solicitor

 

Where an individual is authorised to act as a court supporter, that individual in respect of those proceedings is deemed to be an officer of the court and thereby owes such duties to the court as if they were a solicitor.

http://www.sra.org.uk/solicitors/handbook/code/part2/rule5/content.page

O(5.1)

you do not attempt to deceive or knowingly or recklessly mislead the court;

O(5.2)

you are not complicit in another person deceiving or misleading the court;

O(5.3)

you comply with court orders which place obligations on you;

O(5.4)

you do not place yourself in contempt of court;

O(5.5)

where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client;

O(5.6)

you comply with your duties to the court;

O(5.7)

you ensure that evidence relating to sensitive issues is not misused;

O(5.8)

you do not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case.

 

 

The proposed Rules also give the Court the discretion to refuse a particular individual to act as a “Court supporter”

 

(6) Assistance from a court supporter may be prohibited, refused, or withdrawn under rule 3.22(5) where:

(a) such assistance would be or is contrary to the efficient administration of justice; or

(b) the court supporter is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned).

 

The proposed Rules also say that a person subject to Civil Restraint Order (i.e someone who isn’t able to make their own Court applications as a result of having made a number of frivolous or vexatious ones) can’t be a Court Supporter AND that a Court may consider making a Civil Restraint Order against a “Court supporter”

 

1. This Practice direction applies where the court is considering whether to make –

(a) a limited civil restraint order;

(b) an extended civil restraint order; or

(c) a general civil restraint order;

 

against:

(a) a party who has issued claims or made applications which are totally without merit;

or

(b) against a court supporter who has acted in any proceeding or proceedings

(i) in a manner which is contrary to the proper administration of justice;

(ii) for remuneration contrary to any rule or order of the court; or

(iii) sought or exercised a right of audience or a right to conduct litigation on a regular basis.

 

I suspect lots of people will have views on these changes, one way or another*, so if you want to express your view, participate in the consultation.

 

(* for example, some people may consider that the changes are long overdue and level an unequal playing field, whereas some people may consider that the changes are a grudging acceptance that McKenzie Friends are necessary and required as a result of savage cuts but an attempt to starve/scare them out of taking on the role. Your mileage, as the saying goes, may vary. )

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