High Court gets into the groove

Posted on March 21, 2016 by suesspiciousminds

 

They had style, they had grace

Lots of lawyers in this case

Setright, Verdan, Renton too

Adam Wolanski, we love you

Ladies with an attitude

Fellows that were in the mood

Don’t just stand there, let’s get to it

Write a skeleton, there’s nothing to it

Hague

 

 

The laboured opening may tell you that this piece is about the High Court case in Ciccone v Ritchie (No 2) 2016 involving the singer Madonna, and the film-maker Guy Ritchie, and their son.  [And no, it is not a request for a section 37 report arising from the Judge having had to view the film Castaway that they made together, though that did cause Significant Harm to anyone who saw it]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/616.html

 

I’m going to start with how the Judge ended, because I think it is powerful and moving stuff, with much wider application than just these two celebrities.

  1. Finally, I would say this. For all the interesting legal argument and great learning that is apparent from the admirable skeleton arguments and submissions of leading and junior counsel, at the root of these proceedings (and, I venture to add, the proceedings in the United States) is a temporary breakdown in trust. For all the media coverage, comment and analysis, this is a case born out of circumstances that arise for countless separated parents the world over.
  3. The court should always be the option of very last resort when parents cannot agree matters in respect of their children. Whilst the law provides a mechanism for the resolution of disputes between parents in respect of their children it is but a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved, accepting that this latter path can be a hard one on which to embark, and to sustain, in the context of relationship breakdown. It is for this reason that during the course of the proceedings on each side of the Atlantic Judge Kaplan and myself have repeatedly urged the parties to adopt a consensual approach to resolving the matters of dispute between them for the benefit of Rocco.
  5. Within this context I renew, one final time, my plea for the parents to seek, and to find an amicable resolution to the dispute between them. Because agreement is not possible today does not mean that agreement will not be possible tomorrow. Most importantly, as I observed during the course of the hearing, summer does not last forever. The boy very quickly becomes the man. It would be a very great tragedy for Rocco if any more of the precious and fast receding days of his childhood were to be taken up by this dispute. Far better for each of his parents to spend that time enjoying, in turn, the company of the mature, articulate and reflective young man who is their son and who is a very great credit to them both.

 

In terms of points of law, there are some worthwhile passages about transparency – this Court case has attracted a lot of media attention in America, because there are ongoing proceedings in New York (where it seems the Press were allowed to come into the hearings, report what was said and even print a still photograph)  – should this judgment be published at all, should there be anonymisation – how exactly CAN you anonymise a case where there is already so much within the public domain, and where anyone with half a brain can identify who the parties are, even if you gave them just “M” and “F” initials?

I do like that the key American decision on transparency in these circumstances is actually called Anonymous v Anonymous

 

Publication of Judgment

  1. I set out the principles applicable when deciding whether or not to publish a judgment pursuant to the President’s Guidance in my judgment in H v A (No 2) [2015] EWHC 2630 (Fam) and I shall not repeat them in detail here. In summary:
  1. i) The public generally have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their jurisdiction.

ii) Paragraph 19 of the Practice Guidance makes clear that in considering whether to publish a judgment the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, Art 8 (respect for private and family life) and Art 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.

iii) The exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons;

iv) When conducting a balancing exercise between Art 8 and Art 10, the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]. In applying what Lord Steyn described as the “ultimate balancing test” of proportionality it is important that the court consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve;

v) Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations;

vi) In undertaking the requisite balancing exercises, the impact of publication on the children must be weighed by the court. Whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In particular, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child.

vii) When the court is considering whether to depart from the principle of open justice it will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation although there comes a point where evidence is not merely speculative but pure speculation.

  1. With respect to the latter point, and noting the difference in emphasis between the two jurisdictions, in reaching her decision that there were no compelling reasons to close the proceedings in New York Judge Kaplan cited the following passage from the decision of the Appellate Division of the Supreme Court of New York, First Department in Anonymous v Anonymous 158 A.D.2d 296 (1990) as follows:
    1. “The unsupported speculation by her counsel as to the deleterious effect the media coverage might have on the child is simply inadequate to overcome the strong presumption that court proceedings be open to the public.”

 

Publication of Judgments

  1. Balancing the competing Art 8 and Art 10 rights, I am satisfied that my judgment of 3 February 2016 following the hearing on 21 December 2015 and this judgment should be published. I am further satisfied that, in the exceptional circumstances of this case and subject to some limited redaction, the judgments should be published without anonymisation. The reporting restrictions in this case will continue to be governed by the order that I have already made and will apply to the reporting of my published judgments. My reasons for so deciding are as follows.
  3. The starting point in this case must be that it will simply not be possible for the court to produce an anonymised version of the judgments such as to eradicate the risk of jigsaw identification. Given the high level of publicity the world over in respect of this case, to produce a judgment that gives rise to no risk of jigsaw identification would result in a judgment that could not even indicate the dates on which the proceedings were heard. Within this context, and in the very particular circumstances of this case, I accept Mr. Wolanksi’s submission that in light of the level of information already in the public domain concerning this case, it is unrealistic to think that the judgments given by this court could be anonymised to the extent required to ensure the parties were not identified whilst at the same time remaining a means by which what the court has done in this case can be understood by the public at large.
  5. In these circumstances, I am satisfied that the choice for the court is to publish the judgments without anonymisation or not to publish them at all.

 

The key legal issue was whether a party who makes an application under the 1980 Hague Convention then needs leave of the Court to withdraw it.

The Court ruled that there does need to be an application to withdraw and for the Court to grant leave.

 

The Law

Permission to Withdraw

  1. FPR 2010 r 29.4 provides as follows in respect of permission to withdraw an application:
    1. 29.4 Withdrawal of applications in proceedings

(1)     This rule applies to applications in proceedings –

(a) under Part 7;

(b)     under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child or;

(c)  where either of the parties is a protected party.

(2) Where this rule applies, an application may only be withdrawn with the permission of the court.

(3) Subject to paragraph (4), a person seeking permission to withdraw an application must file a written request for permission setting out the reasons for the request.

(4) The request under paragraph (3) may be made orally to the court if the parties are present.

(5) A court officer will notify the other parties of a written request.

(6) The court may deal with a written request under paragraph (3) without a hearing if the other parties, and any other persons directed by the court, have had an opportunity to make written representations to the court about the request.

  1. The question to which this case gives rise is whether FPR 2010 r 29.4 applies to applications in proceedings under the 1980 Hague Convention and, if so, what the test is for giving permission to withdraw in such cases.
  3. As set out above, there is no authority precisely on this point. In respect of proceedings under the 1980 Convention some authorities appear to have proceeded on the basis that permission to withdraw is not required (see AA v TT (Recognition and Enforcement) [2015] 2 FLR 1) and some on the basis that it is required (see Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2008] 2 FLR 351 at [16] setting out the terms of an order made earlier in those proceedings and the recent decision of the President in Re D (Children)(Child Abduction Practice) [2016] EWHC 504 (Fam)). In none of those cases however, was the court requested to consider whether the permission of the court to withdraw was mandated by r 29.4 in this context.
  5. Anecdotally, my (admittedly limited) experience suggests that many practitioners do consider that the permission of the court is required to withdraw applications in proceedings under the 1980 Hague Convention and I have certainly endorsed a number of orders which provide for such permission in cases where an applicant has decided, for whatever reason, not to proceed.
  7. The remaining authorities on permission to withdraw concentrate exclusively on public law proceedings under Part IV of the Children Act 1989 (see Re N (Leave to Withdraw Proceedings) [2000] 1 FLR 134, WSCC v M, F, W, X, Y and Z [2011] 1 FLR 188 and Redbridge LBC v B and C and A (Through his Children’s Guardian) [2011] 2 FLR 117). These authorities make clear that in public law children proceedings, where the threshold is capable of being crossed the test for whether permission should be given for care proceedings to be withdrawn is the welfare of the child.
  9. However, care must be taken in relying on these authorities in the context of the question at issue before this court. First, those authorities were decided under the Family Proceedings Rules 1991 r 4.5 which, as detailed below, differs substantially from FPR 2010 r 29.4. Second, and importantly, the conclusions in those authorities that the question of whether care proceedings should be withdrawn is a question which concerns the welfare or upbringing of a child, and that the test for whether permission should be given is the welfare of the child, are grounded firmly in the fact that the upbringing of the child is the main question falling for determination in such proceedings (see London Borough of Southwark v B [1993] 2 FLR 559 at 572).
  11. It is important to note that the procedural requirement of permission for the withdrawal of proceedings is not limited to cases involving children, either in FPR 2010 r 29.4 or more widely. FPR 2010 r 29.4(1)(a) applies r 29.4 to applications in proceedings under Part 7 of the FPR 2010, namely applications in matrimonial and civil partnership proceedings, and is not qualified as only applying where the application concerns the welfare or upbringing of a child. Accordingly, pursuant to FPR 2010 r 29.4(1)(a) permission is required to withdraw an application for a marriage or civil partnership order governed by FPR 2010 Part 7 notwithstanding the proceedings do not concern the welfare or upbringing of a child. There are also other areas of law where permission is required to withdraw an application in proceedings. For example, under the Insolvency Act 1986 s 266(2) a bankruptcy petition may not be withdrawn without the leave of the court.
  13. Finally, and within this context, when considering both the scope of the application of FPR 2010 r 29.4 and the test for permission under it, it is very important to read FPR 2010 r 29.4 in its proper context. That context includes the fact that the FPR 2010 represents a new procedural code with “the overriding objective of enabling the court to deal with the case justly, having regard to any welfare issues involved” (FPR 2010 r 1.1). The court must give effect to the overriding objective when it exercises any power under the FPR 2010 (FPR 2010 r 1.2(a)) and has a duty to further the overriding objective by actively managing the case (FPR 2010 r 1.4(1)). Pursuant to FPR 2010 r 1.2(b) the court must also seek to give effect to the overriding objective when it interprets any rule.

 

  1. I have come to the conclusion that FPR 2010 r 29.4 does apply to applications in proceedings under the 1980 Hague Convention, governed as they are by FPR 2010 Part 12 Chapter 6 and that, accordingly, the permission of the court is required to withdraw such proceedings. My reasons for so deciding are as follows.
  3. In my judgment this is the plain meaning of FPR 29.4(1)(b). FPR 2010 r 29.4(1)(b) provides that r 29.4 applies to applications in proceedings “under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child“. I am satisfied that r 29.4(1)(b) is to be read disjunctively and that the words “where the application relates to the welfare or upbringing of a child” are intended to qualify only the words “any other Part” and not the words “under Parts 10 to 14“. I am reinforced in this view by the fact that Part 10 to Part 14 of the FPR 2010 deal with a wide range of applications that do not, or need not concern the welfare or upbringing of a child.
  5. Whilst it might be argued that the use of the phrase “any other” in r 29.4(1)(b) demonstrates that Parts 10 to 14 are included in r 29.4 only in so far as they apply to applications concerning the welfare or upbringing of children, if this had been the intention I am satisfied that those who drafted the rules would have said so expressly, rather than leaving it to be implied in circumstances where, as I have said, those Parts also deal with applications that need not, and often will not, concern the welfare and upbringing of children. Further, pursuant to FPR 2010 r 1.2(b) when interpreting r 29.4 I must seek to give effect to the overriding objective in FPR 2010 r 1.1. In my judgment reading r 29.4 in this context further militates against this latter interpretation.
  7. FPR 2010 r 29.4 represents a broadening of the type of applications in respect of which permission is required to withdraw when compared with the Family Proceedings Rules 1991. The previous rules, in the form of Part IV of the FPR 1991, made provision for permission to withdraw proceedings only in relation to proceedings under the Children Act 1989 (FPR 1991 r 4.5). For example, although FPR 1991 r 2.8 permitted the discontinuance of a petition for divorce, judicial separation or nullity before service of that petition, the rules made no provision for the proceedings to be withdrawn following service. By contrast, whilst pursuant to FPR 2010 r 7.9 an application for a matrimonial or civil partnership order may be withdrawn at any time before it has been served by giving notice to the court in writing (reflecting the provisions in FPR 1991 r 2.8), pursuant to FPR 2010 r 29.4(1)(a) following service the permission of the court is required before such an application can be withdrawn. Neither FPR 2010 r 29.4(1)(a) or FPR r 29.4(1)(b), which deals with applications in proceedings where either of the parties is a protected party, are not qualified as only applying where the application concerns the welfare or upbringing of a child.
  9. Within the foregoing context, in my judgment interpreting r 29.4 as including within its scope all of the applications governed by Part 10 to Part 14 of the FPR 2010, as opposed simply to those concerned with the welfare or upbringing of a child, is consistent with the overall aim of the FPR 2010 generally and in particular the aim of FPR 2010 Part 1, which requires the court to actively manage the case so as to further the overriding objective of dealing with it justly, having regard to any welfare issues involved.

 

The Judge recognised and acknowledged that where a party seeks permission to withdraw an application under the Hague Convention, it is next to impossible to conceive of a scenario where the Court would refuse and make them press on.

It would not serve the ends of justice to compel a party to pursue an application under the 1980 Hague Convention that they wish to bring to an end. Indeed, whilst not ruling out such a course of action entirely, it is very difficult indeed to think of a circumstance where the court would compel an applicant in proceedings under the 1980 Hague Convention to pursue an application they have indicated they wish to withdraw. Further, having regard to the overriding objective, there are positive merits in this case to permitting the mother to withdraw her application in this jurisdiction. As I observed during the course of the hearing, at present the existence of parallel proceedings in two jurisdictions, before two judges with two sets of lawyers is introducing unnecessary and unhelpful complexity and hindering attempts at settlement, as well as incurring considerable expense. Accordingly, I give permission for the mother to withdraw her proceedings under the 1980 Hague Convention.

 

Finally, just for style points, I have to give a nod to Mr David Williams QC for this turn of phrase

The mother accepts that the Supreme Court of the State of New York has jurisdiction in this matter. The father made clear during the course of this hearing through Mr. Verdan that he, likewise, accepts that the New York Court has jurisdiction, albeit at the outset of the hearing Mr. Verdan submitted that this court should make certain substantive welfare orders in respect of Rocco. Whilst in his Skeleton Argument Mr. Setright undertook an analysis of the jurisdictional position in this case (including an analysis of habitual residence) and submits that this court should, upon the withdrawal of these proceedings, give certain procedural directions aimed at any future applications made in this jurisdiction, he does not suggest at this time that Rocco disputes the jurisdiction of the court in New York. Within this context, and with respect in particular to orders originally sought by the father, Mr. Williams submitted that it would be wrong for the English court to seek to “park its tanks” (to use his phrase) on the front lawn of the United States by taking any steps beyond those necessary to effect the withdrawal of the proceedings under the 1980 Hague Convention.

 

 

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All along the Watchtower

Posted on March 18, 2016 by suesspiciousminds

Watch Tower Bible & Tract Society of Britain & Ors v The Charity Commission [2016] EWCA Civ 154

http://www.bailii.org/ew/cases/EWCA/Civ/2016/154.html

This is a quirky case, involving an appeal from an application for judicial review. The judicial review arose because the Charities Commission sought to open an investigation into the charity Watch Tower (which is a charity connected with the Jehovah’s Witness faith), because of some criminal convictions of three Jehovah’s Witnesses.

The Commission wishes to investigate concerns in respect of Watch Tower regarding safeguarding of vulnerable beneficiaries, in particular children who are subject to or make allegations of sexual abuse by individuals who are connected with Jehovah’s Witness congregations.

  1. On 27 May 2014, the Commission initiated an inquiry under section 46 of the 2011 Act to investigate inter alia (i) Watch Tower’s handling of safeguarding matters, including the creation, development, substance and implementation of its safeguarding policy; and (ii) the administration, governance and management of the charity by the trustees and whether or not the trustees have fulfilled their duties and responsibilities as trustees under charity law.
  2. The Commission’s decision to initiate the inquiry (“the Inquiry Decision”) arose out of three criminal trials against former members of congregations of Jehovah’s Witnesses in respect of historic sex offences. I should say that none of these was connected with Watch Tower.

 

I’ll re-emphasise that – none of the former Jehovah’s Witnesses who were convicted of historic sexual offences had any connection with Watch Tower.

The Charities Commission used their powers under the Charities Act 2011 to compel production of documents held or obtainable by the charity.

s52 “(1) The Commission may by order –

(a) require any person to provide the Commission with any information which is in that person’s possession and which –

(i) relates to any charity, and

(ii) is relevant to the discharge of the functions of the Commission or of the official custodian;

(b) require any person who has custody or control of any document which relates to any charity and is relevant to the discharge of the functions of the Commission or of the official custodian—

(i) to provide the Commission with a copy of or extract from the

document…”

What they sought was the following:-

On 20 June 2014, the Commission issued a Production Order under section 52 of the 2011 Act (“the Production Order”) requiring Watch Tower to produce:

“(a) All documents created on or after 1 June 2011 setting out or recording an instance or allegation of, or complaint about, abuse of or by a person who is or has been a member of the charity or a congregation charity.

(b) All documents created on or after 1 June 2011 setting out or recording a request for advice and/or guidance from a congregation charity and/or charity trustee, officer, agent or employee of a congregation charity that relates to an instance or allegation of, or complaint about, abuse of or by a person who is or has been a member of the charity or a congregation charity.

(c) All documents created on or after 1 June 2011 setting out or recording advice and/or guidance provided by and/or on behalf of the charity to a congregation charity, and/or a charity trustee, officer, agent or employee of any congregation charity; and that relates to an instance or allegation of, or complaint about, abuse of or by a person or persons who is or has been a member of the charity or any congregation charity.

(d) All minutes of any meetings of the charity, its staff and/or its members, other than minutes of charity trustees’ meetings, held since 1 June 2011 in which the following matters have been discussed:

i. Policies and practice for safeguarding persons who come into contact with the charity and/or any congregation charity.

ii. Any instance or allegation of, or complaint about, abuse of or by a person or persons who is or has been a member of the charity or any congregation charity;

iii. Policies and practice for the internal disciplinary proceedings of the charity and any congregation charity, including but not limited to disfellowship proceedings.”

Watch Tower in turn sought to challenge the decision to launch an inquiry, and to seek a Production Order in those terms.

  1. In relation to the Inquiry Decision, their case is that the proposed inquiry is unlawful on the grounds that (as summarised in their skeleton argument):

    “(1) the Commission is interfering and/or is proposing to interfere with the Appellants’ rights of freedom of religion under Article 9 under the Human Rights Act and freedom of association under Article 11 by commencing an inquiry with a view to changing Jehovah’s Witnesses’ and Appellants’ religious practices, and is acting disproportionately and/or is acting disproportionately by misconstruing or misapplying s16.4 of the Charities Act 2011;

    (2) the scope of the inquiry is so vague and undefined that it breaches the Appellants’ Article 9 and/or 11 rights because the restrictions placed on it are not ‘prescribed by law’ and/or in breach of the Commission’s obligation under s16.4 of the 2011 Act to act transparently in performing its functions;

    (3) the Commission is acting unlawfully in proposing that the Appellants’ Safeguarding Policy include a condition that any Elder running a Bible class must be cleared through an appropriate checking system similar to the Disclosure and Barring Service which is unlawful and/or impossible for the Appellants to implement;

    (4) the Commission has breached the Appellants’ right not to be discriminated against in breach of Article 14 and/or its obligation to act consistently under s16.4 of the Charities Act in performing its functions and/or in breach of the common law principle of consistency;

    (5) the Commission has erred in law in its approach to the duties of Trustees by misconstruing or misapplying the duties owed by the Appellants under the Companies Act 2006;

    (6) the Commission has breached its duty to act fairly by failing to provide proper details of the allegations it is making and thereby giving the Appellants a fair opportunity to meet the case against it; and

    (7) in the circumstances the decision to initiate the inquiry was irrational.”

  2. In relation to the Production Order, their case is that it too is unlawful in that (quoting again from their skeleton argument):

    “(1) the scope of the Order is disproportionate;

    (2) the information sought requires the Appellants to produce documents containing personal information and sensitive personal information as defined by the Data Protection Act 1998; and unless the data subject consents to his personal data being processed, the conditions in Schs 2 and 3 require the public authority to demonstrate that processing is ‘necessary’ and proportionate: see the Supreme Court in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421….; and

    (3) the information sought breaches the procedural guarantees of Article 8 rights because prior to disclosure, the person adversely affected must be given notice and the opportunity to make representations before the order was made: see R(TB) v The Combined Court At Stafford [2007] 1 WLR 1524.”

There are thus some really interesting issues about data protection, freedom of religious expression, article 8 right to private and family life, and balancing those matters against safeguarding and protecting children from abuse within an organised religion.  (Note, I am not saying that there is any culture of abuse within the Jehovah’s Witness religion – three convictions of people who happened to be Jehovah’s Witnesses does not make a culture comparable to say the problems that Catholicism has had over recent years and it can easily be argued that there is mere coincidence here, but one can also see why the Charities Commission would want to ensure that there was no such culture or practice in any Charity that it regulates)

Annoyingly, this case doesn’t deal with any of that, because it all turns on a tricky and arcane point of law as to the initial Judge refusing the application for judicial review to challenge those two decisions on the basis that Watch Tower should have gone to the First Tier Tribunal to challenge those issues (you can’t judicially review if there is another mechanism for challenge)

The Court of Appeal held that Dove J, who refused the application for judicial review, was right on the first question – should the challenge to the decision to commence an inquiry have been made to the First Tier Tribunal? Yes.

But was wrong on the second – should the challenge to the Production Order have been made to the First Tier Tribunal? Dove J’s answer, yes, was wrong.

 

The wording of the Charities Act 2011 at s320 deals specifically with appeals against Production Orders

 

Section 320 provides:

“(1) Section 319(4)(a) does not apply in relation to an appeal against an order made under section 52 (power to call for documents).

(2) On such an appeal the Tribunal must consider whether the information or documents in question-

(a) relates to a charity;

(b) is relevant to the discharge of the functions of the Commission or the official custodian.

(3) The Tribunal may allow such an appeal only if it is satisfied that the information or document in question does not fall within subsection (2)(a) or (b).”

All that the First Tier Tribunal can do on a challenge to a Production Order is rule as to whether the information or documents sought (a) relate to a charity and (b) are relevant to the functions of the Commission.  If they are, the Production Order stands. If not, then it doesn’t.

So the wording of s320 meant that the First Tier Tribunal could not actually take into account Watch Tower’s arguments about Data Protection Act, proportionality, necessity and article 8 rights, and fundamentally whether there was any reasonable justification for asking for such wide-ranging disclosure GIVEN that there was no link between Watch Tower and the three men convicted, save that they shared the same faith .

Thus Dove J was incorrect (though forgiveably so) in ruling that the judicial review of THAT decision should be refused because Watch Tower could go to the First Tier Tribunal instead.

Thus, the appeal was allowed in relation to the refusal of permission to judicially review the decision of the Charities Commission to seek the Production Order, and the High Court will in due course deal with this. The Court of Appeal wisely stay out of the pros and cons of the Production Order, and whether the Charities Commission were “Wednesbury Unreasonable” to have issued it.

[If you are thinking that I chiefly wrote about this because it gave me the chance for a Jimi Hendrix reference, then you know me quite well.  I could also, given that Dove J was successfully appealed, gone for Prince and titled it “When Dove J Cries” ]

 

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Child in care wanting parents to have no information or involvement

Posted on March 11, 2016 by suesspiciousminds

 

This issue has to be one of the most Frequently asked questions that I get as a Local Authority lawyer  – “Little Frank is in care and he doesn’t want his mum to know X,  do I respect Frank’s wishes, or respect the duty in the Act that parents are to be consulted with about major issues?”

 

[Very often this comes up in relation to contraception, pregnancy etc, but also sometimes just that the young person wants no information about themselves to be communicated by the Local Authority to their parent]

 

In this case, PD v SD & Another 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/4103.html

 

Keehan J was faced with a child who had been born a girl, named HD, who had changed her name to PD and wished to change her identity to male.  He was 16 years old, and had been adopted at the age of 6. Things had become difficult and unworkable, and PD was in voluntary care under section 20 of the Children Act 1989.   PD was going on to have assessment and assistance from the Tavistock about his gender identity. He did not want his adoptive parents to be involved or given any information.

It became as stark as this :-

So strongly held are his views that Ms. Morgan QC told me he would even wish his parents not to be notified if he were required to receive emergency medical treatment. The depths of his wishes are conveyed by his view that if he suffered a serious accident and underwent emergency surgery he would not want to wake and find his parents at his bedside.

 

Meanwhile, his parents were still hopeful of a reconciliation and wanted to be involved in PD’s life in some capacity.

 

  1. THE LAW
  3. It is agreed by all parties that I have a jurisdiction to grant the declaratory relief sought by P.
  4. By virtue of s.8(3) of the Family Law Reform Act, P, now aged 16, can give valid consent to medical and surgical treatment.
  5. If P was not provided with accommodation by the local authority and was not a looked after child, the local authority would not be obliged to consult with or give information to P’s parents.
  6. Since he is a child looked after by the local authority, it is obliged by s.22 and s.26 of the Children Act 1989 to consult with and give information to the parents. Section 22 provides:

    “Before making any decision with respect to a child whom they are looking after or proposing to look after the local authority shall, so far as it is reasonably practicable, ascertain the wishes of-

    (a) the child;

    (b) his parents;

    (c) any person who is not a parent of his but who has had parental responsibility for him; and

    (d) any other person whose wishes and feelings the authority consider to be relevant regarding the matter to be decided.”

    There are further obligations in a similar vein imposed by the provisions of the Care Planning, Placement and Case Review (England) Regulations 2010.

  7. The Article 8 Convention rights of P and of his parents are engaged. I take particular account of the decision of the European Court of Human Rights in Yousef v Netherlands [2003] 1 FLR 210, that where there is a tension between the Article 8 rights of the child, on the one hand, and the parents, on the other, the rights of the child prevail.
  8. In the case of Re C (Care: Consultation with Parents not in Child’s Best Interests) [2006] 2 FLR 787, Coleridge J decided it was not in the best interests of the subject child for the local authority to consult with or give information to the father. In his judgment he expressed the view that it was only in very exceptional circumstances that such an order would be appropriate. The factual matrix of that case was very different from the circumstances of this case.
  9. In my view, rather than considering whether the facts of the case are very exceptional, although in my judgment the facts of this case are very exceptional; I should instead focus on the competing Article 8 rights of P and of his parents.

 

 

There were three major relevant pieces of caselaw – it won’t surprise anyone to know that one was Gillick. The second was Naomi Campbell’s privacy case, setting out that a person’s medical records and medical treatment is private. The third is one precisely on point as to when a young person acquires the right for their medical treatment to be kept confidential from a parent.

 

  1. In the case of Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112 Lord Scarman said, at 185(e):

    “The rights of a parent exist primarily to enable the parent to discharge his duty of maintenance, protection and education until he reaches such an age as to be able to look after himself and make his own decisions.”

  2. Baroness Hale, in the case of Campbell v Mirror Group Newspapers Limited [2004] 2 AC 457 said at p.499:

    “It has always been accepted that information about a person’s health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor/patient relationship but from the nature of the information itself. As the European Court of Human Rights put it in Z v Finland [1997] 25 EHRR 371:

    “Respecting the confidentiality of health data is a vital principle in the legal system with all the Contracting State parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in health services generally. Without such protection those in need of medical assistance may be deterred from revealing such information of a person and intimidate nature as may be necessary in order to receive appropriate treatment and even from seeking such assistance, thereby endangering their own health and, in the case of transmittable diseases, that of the community.””

  3. I was referred to the case of Regina on the Application of Sue Axon v Secretary of State for Health [2006] EWHC 37 (Admin). During the course of judgment Silber J said, at para.64:

    “It is appropriate to bear in mind that the European Court of Human Rights attaches great value to the rights of children. Furthermore, the ratification by the United Kingdom of the United Nations Convention on the Rights of the Child in November 1989 was significantly showing a desire to give children greater rights. The ECHR and the UNC show why the duty of confidence owed by a medical professional to a competent young person is a high one and which therefore should not be overridden except for a very powerful reason. In my view, although family factors are significant and cogent, they should not override the duty of confidentiality owed to the child. It must not be forgotten that this duty was described in Z v Finland as a vital principle in the legal system of all Contracting Parties to the Convention.”

    Then at para.127 he said:

    “I am unable to accept Mr Havers’ contention that by permitting a medical professional to withhold information relating to advice or treatment of a young person on sexual matters, the Article 8 rights of the parents of the young person were thereby infringed. In considering this issue, it must always be remembered first, that in Z v Finland the European Court emphasised the significance and compelling nature of a patient’s Article 8(1) right to confidentiality of health information as explained in paragraph 63 above. A similar approach was adopted in MS v Sweden, in which it is said at page 337 in paragraph 41 “respecting the confidentiality of health data is a vital principle in the legal systems of all Contracting Parties to the Convention”. Although these cases deal with the position of an adult there is no good reason why they could not apply to protect the confidentiality of health information concerning a young person, especially because, as I have explained, that a duty of confidentiality is owed to a young person by medical professionals.”

    Finally, at para.130 to para.132 he said:

    “As a matter of principle it is difficult to see why a parent should still retain an Article 8 right to parental authority relating to a medical decision where the young person concerned understands the advice provided by the medical professionals and its implications. Indeed, any right under Article 8 of a parent to be notified of advice or treatment of a sexual matter as part of the right claimed by Mr. Havers must depend on a number of factors, such as the age and understanding of their offspring. A parent would not be able to claim such an Article 8 right to be notified if their son or daughter was, say, 18 years of age and had sought medical advice on sexual matters, because in that case the young person is able to consent without parental knowledge or consent for the reasons set out in paragraph 1 above. The reason why the parent could not claim such a right is that their right to participate in decision making as part of the right claimed by Mr. Havers would only exist while the child was so immature that his parent had the right of control as was made clear in Gillick. In my view, any Article 8 right of the kind advocated by Mr. Havers must be seen in that light so that once the child is sufficiently mature in this way the parent only retains such rights to family life and to be notified about medical treatment if, but only if, the young person so wishes. Indeed, whether there is family life and hence a right to family life of a particular family is a question of fact. The European Commission on Human Rights has explained the existence of family ties depends upon the real existence and practice of close family ties. It is not clear why the parent should have an Article 8 right to a family life where first the offspring is almost 16 years of age and does not wish it, second where the parent no longer has a right to control the child for the reasons set out in the last paragraph and third where the young person, in Lord Scarman’s words, “has sufficient understanding of what is involved to give a consent valid in law”. There is nothing in the Strasbourg jurisprudence which persuades me that any parental right or power of control under Article 8 is wider than in domestic law. Parental right to family life does not continue after the time when the child is able to make his own decisions. So parents do not have Article 8 rights to be notified of any advice of the medical profession after the young person is able to look after himself or herself and make his or her own decisions.”

  4. I respectfully agree with Silver J’s analysis of the law and of the relevant legal principles.

 

There were therefore two competing Article 8 rights to balance, and the Court considered that they were to be balanced in favour of the young person, who was 16 and capacitious and understood the issues involved and had made his decision that he did not want his parents to be given that information.  [I think there’s an argument that this rather reverses Coleridge J’s decision in Re C – rather than becoming exceptional that a Local Authority respect a child’s wishes not to share information with a parent, it seems to become the norm if the child is capacitious and expressing a view not to share the information – though this was, and is, of course an exceptional case]

 

  1. DISCUSSION
  3. The situation in which P and the parents find themselves is extremely difficult for each party. The parents struggle to understand P’s position, feelings and his decision about his gender. He struggles to understand their complete lack of support and understanding. The upshot is that he, at 16 years of age, has decided to completely disengage from family life with them.
  4. On the basis of the authorities I have referred to above, that is a decision he is perfectly entitled to reach and is one which this court must respect.
  5. There is no issue that P should be afforded privacy in respect of his medical treatment. In any event, I am entirely satisfied that he is entitled to respect of his privacy on these matters as a matter of law.
  6. I am pleased to learn that the parents, having expressed a willingness to engage with the Tavistock Centre throughout, will continue to seek guidance and support from the same. I am sure that will be extremely helpful for them. It may well help them to come to an understanding of why P finds it so distressing when they have referred to him as H.
  7. Like the parents, I very much hope the time will come when a reconciliation is effected between P and the parents. In my judgment, however, the surest way of seeking to secure that outcome, is to respect P’s current wishes and feelings.
  8. When balancing P’s Article 8 rights against those of the parents I am entirely satisfied the balance falls decisively in favour of P’s Article 8 rights. At the age of 16, having decided to disengage from his family in the very sad circumstances of this case, it is for P to decide what, if and when any details about his life are given to his parents. I have taken particular account of the genuine and sincere conviction with which P has expressed his views and wishes. It would, in my judgment, be wholly contrary to (a) his welfare best interests, (b) his Article 8 rights and (c) any hope of a reconciliation being effected for the court to override his views and permit or require the local authority to provide information about P to his parents.
  9. Accordingly, I propose to grant declaratory relief as sought by P.
  10. I know that this decision will be a source of real disappointment and distress to the parents. I hope, however, they will understand the reasons for my decision in the fullness of time.

 

[Another way of looking at it, not considered within this judgment, is whether the LA are capable of complying with the section 22 duty to consult with a parent where the young person is Gillick competent and objects, because of the provisions of the Data Protection Act and that the subject has rights about how their information, particularly sensitive personal information such as this is processed]

 

Very sad case, where you have to feel for everyone involved, and just hope that for all of them what must be extremely difficult and painful now may result in less pain and hardship in the future.

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Relinquished baby, chapter and some verses

Posted on March 8, 2016 by suesspiciousminds

I just ended up doing this long summary of the various issues that arise and where to find the answers in case law, so I thought it might be helpful for more general use.  It is too bony to serve as a skeleton, but it might help people as a starting point, because the answers are fairly scattered across a variety of cases.  [If you end up using it and want to give me a name-check, that would be very kind]

Our starting point is that for a genuine relinquished baby, where both parents consent, “nothing else will do” does not apply.

https://suesspiciousminds.com/2016/03/03/an-answer-on-relinquished-babies-and-re-b-s/

 

Baker J in Re JL (2016)

 

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

 

 

(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.

 

 

What does that thorough analysis of the realistic options for the child mean for extended family? How far does a Local Authority have to dig into family members?

 

Re C  v XYZ Local Authority 2007   Court of Appeal authority

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2007/1206.html

 

  1. 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.

 

 The LA aren’t OBLIGED to assess and rule out family members, but they should explore them if they represent a genuine prospect of placing the child within the child’s timescales. If a parent is resistant to that, I’d suggest that their views can be respected  (it perhaps gets a bit more complicated if say maternal grandmother is a professional foster carer, then one might think that she is a genuine prospect)

 

And what about a father?

 

A father with PR, you can’t adopt their child without dispensing with their consent, so you ABSOLUTELY HAVE to serve them. No ifs, no buts.

 

What if the father doesn’t have PR – and doesn’t know about the child, and mum doesn’t want you to tell him?

 

X County Council v C 2007  (High Court, Munby J, as he then was)

http://www.bailii.org/ew/cases/EWHC/Fam/2007/1771.html

 

The court has an unfettered discretion, to be exercised having regard to all the circumstances and in a manner compliant with the requirements of the Convention. That said, and where there exists family life within the meaning of article 8 as between the mother and the father, one generally requires “strong countervailing factors” (Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [48]), “very compelling reasons indeed” (Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam), [2006] 2 FLR 589, at para [17]) or “cogent and compelling grounds” (Birmingham City Council v S, R and A [2006] EWHC 3065 (Fam), [2007] 1 FLR 1223, at para [73]) to justify the exclusion from the adoption process of an unmarried father without parental responsibility. At the end of the day, however, every case is different and has to be decided having regard to its own unique circumstances.

 

This all assumes, of course, that there is family life. Based on what the mother has told us of her relationship with L’s father, I am sceptical as to whether he can in fact pray in aid article 8 of the Convention. If what she has said is correct, there was almost certainly no family life. But given how little we know, it would not be safe to proceed on that basis. I shall assume, though without deciding, that the father’s rights under article 8 are indeed engaged.

 

Much more significantly, of course, this all assumes that the father’s identity is known, because otherwise there is a potentially insuperable obstacle to engaging him in the process. Can the mother be compelled to reveal his identity? This is the issue at the heart of the present case.

 

In Z County Council v R [2001] 1 FLR 365 at page 366, Holman J speaking of the father said:

 

“There is no power to compel her to reveal the identity and, in the circumstances, all proceedings must necessarily take place without notice or reference to the father or further information about him, than that which the mother has volunteered.”

Dame Elizabeth Butler-Sloss P observed of this in Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [31] that Holman J “assumed” that there was no power, having heard no argument to the contrary. She herself (see at para [52]) did not have to consider whether there is such power.

 

There may be some room for doubt as to whether, when he said “there is no power,” Holman J was referring to power as a matter of law or power as a matter of pragmatic reality. I doubt that, in strictness, there is as a matter of law no power in the court to order a mother to disclose the identity of her child’s father. After all, the powers of a judge exercising the inherent jurisdiction are theoretically limitless, though in practice there are well recognised limitations on the exercise of the jurisdiction. But whether it is proper, whether it is appropriate and prudent, to exercise such a power, assuming it to exist, whether it is appropriate and prudent to attempt to compel an unwilling mother to disclose the name of her child’s father, is a very different thing.

 

 

 

 

 

 

The fact is that the local authority and the guardian and the court have tried very hard but the mother has made her position perfectly clear. Patient explanations have been given to the mother, both out of court and in court, as to why it is so important from L’s point of view that we learn who her father is. The mother’s position remains as it has been throughout. There is very little prospect – in truth, virtually no prospect – that she is going to volunteer any further information about L’s father.

 

It may be, and the mother is steadfast in the assertion, that there is in fact nothing more to disclose. The local authority and the guardian (and not without grounds I have to say) suspect there is more she could tell us if she chose to.

 

Let me assume that this is so – I emphasise I am making no finding that it is. Where does it take us?

 

In the first place, although one can only speculate as to why the mother should be adopting such a stance (if indeed she is), I would not want to assume that she is acting otherwise than properly by her own lights. We take a different view, but for all I can know she may conscientiously believe that it is not in her daughter’s interests to know anything of her father – and who is to say that she might not be right.

 

But what am I to do? The mother has told me herself in court – not in the witness box on oath but from the well of the court – that there is nothing more she can tell us. There is no reason to believe that she would say anything different were she to be required to go into the witness box and either take the oath or affirm. It would naïve to imagine that someone who on this hypothesis is prepared to lie when addressing a judge direct is suddenly going to volunteer the truth merely because put on her oath.

 

And is it to be suggested, if she maintains her denial, that she should then be cross-examined (and if so with what degree of vigour?) so that the truth can be extracted from her? I confess that I find the idea very disturbing. There is something deeply unattractive and unsettling in the idea that a woman in the mother’s position should be cross-examined in order to compel her to reveal the name of her child’s father. And there is something deeply unattractive and unsettling in the idea that a woman in the mother’s position should be cross-examined (as on this hypothesis would almost inevitably be the case, for how else is cross-examination likely to elicit the relevant information) as to the nature, extent and duration of her relationship with the father. In relation to matters as personal and intimate as this we should be wary of seeking to open windows into people’s souls. And would it in any event be right to subject the mother to prying cross-examination on the (probably dubious) double hypothesis that she is at present not telling the truth but that, if cross-examined, the truth will out?

 

And in any event, where would cross-examination get us? It is possible that the mother would in fact make further disclosures, though I rather doubt it. Suppose, as I think much more likely, that she makes no further disclosures of any significance. I might, for all I know, be left with a powerful impression that she was not telling the truth, but that of itself would get us nowhere. Contempt could not be proved unless I was satisfied to the criminal standard – satisfied so that I was sure; satisfied beyond reasonable doubt – that the mother was telling lies. That, I suspect, is an unlikely outcome. And suppose that I was satisfied to the criminal standard that she was telling lies. Could it seriously be suggested that she should be punished, even sent to prison? Surely not. Punishment would surely be unthinkable.

 

The whole process smacks too much of the Inquisition to be tolerable. And it is not to be justified merely because we believe, however strongly, that what we are doing is being done in the best interests of a child. Here again, as it seems to me, the wise words of Holman J have a powerful resonance.

 

We can reason with someone in the mother’s position. We can seek to persuade. But we should not seek to force or to coerce – and how else in this context could one sensibly characterise the threat of cross-examination or the threat of punishment for contempt. Of course, as Holman J pointed out (see Z County Council v R [2001] 1 FLR 365 at page 375), the matter is not to be determined on the say-so of a mother, but we have to face the realities. And the reality here, in the particular circumstances of this case is, I am quite satisfied, that we have to accept what the mother has told us. It would be wrong to push matters any further. I decline to do so.

 

Mum can be asked, and persuaded to give the name of the father, but if she absolutely refuses, that’s an end to it. The Court are not going to compel her to give evidence, or commit her to prison if she refuses to answer. It would be advisable to record the efforts to explain the benefits to the child of knowing their father’s identity and her responses, but you can’t make her.

 

If the mother does provide the details of the father but asks that he not be contacted

 

the relevant case is

 

M v F [2011] EWCA Civ 273

 

http://www.familylawweek.co.uk/site.aspx?i=ed81462

 

 

  1. Mr Anelay and Mr Squire accept that “the starting point is that [F] should know of the existence of his son and should be able to participate in future care and adoption proceedings” and that “only in an exceptional case should that general rule be overridden”. This realistic position accords with the authorities as I see them. I would observe, in passing, that this approach is also consistent with another strand of authority which includes, notably, the House of Lords decision in Re D (Adoption Reports: Confidentiality) [1996] AC 593. That case was concerned with whether particular evidence (part of a report of the guardian ad litem) should be disclosed to the mother in contested adoption proceedings but the five principles which Lord Mustill identified as governing that decision are illuminating when considering the more fundamental prior question of whether a parent should be informed of the very existence of the proceedings or even that they have a child. The principles are set out at page 615 of the report. All repay consideration. They culminate in the following:

 

“5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

 

In Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828 the Court of Appeal added that the interests of the adult parties may also support non-disclosure in an appropriate case.

 

  1. The appellant’s complaint is that the judge did not just look for exceptional circumstances but proceeded on the basis that only a significant physical risk would do and this was to set the test too high.

 

  1. I agree that the authorities do not impose a requirement of significant physical risk. Harm and risk come in many guises and, like Thorpe LJ, I would be anxious about attempting to define what may make a case exceptional enough to justify departing from normal principles. It may be a moot point whether Mostyn J was actually setting himself a test involving significant physical harm or, as Thorpe LJ says, simply emphasising the high hurdle that will have to be overcome before a father who is married to the child’s mother and also living with her is kept in ignorance of the fact that he has a child and deprived of the chance to participate in the legal process relating to that child. Whatever the judge had in mind, however, the balance was inevitably going to come down against M’s applications and his determination is not in any way undermined by this reference of his to a significant physical risk.

 

 

 

  1. However, the judge found, critically, that there was no medical or other expert objective evidence that supported M’s case, that it was “pure supposition” that revealing the child’s existence would affect F as adversely as M suggested it would, and that at most there would be a “degree of upset and confusion” which the judge was hopeful could be mitigated if the revelation was managed appropriately. This was not the sort of harm that would justify keeping F ignorant of his son’s existence and, as I have already observed, her application was bound to be refused.

 

 

Therefore, the Local Authority would need to explore with the mother her reasons for not wanting father to be told, and assess whether those reasons were sufficient to displace the starting point that F should know of the existence of his child and be able to participate in future care and adoption proceedings –  the LA can examine the risk and gravity of the feared harm – but it is not REQUIRED that there be a significant physical risk.

 

In Re JL,  both parents were aware and consenting to the relinquishing of the baby. There must be an element of doubt in a situation where a father does not know of the existence of the baby that it can be treated as a consensual adoption and thus that “nothing else will do” does not apply.

 

From Re X 2007 (as referred to above)

 

Rule 108 of the Family Proceedings (Adoption) Rules 2005 enables a local authority in circumstances such as this to “ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.” So whether under the inherent jurisdiction or under that rule I plainly have jurisdiction to give the local authority the relief it seeks.

 

 

This is now  Family Procedure Rules 2010

 

14.21.  Where no proceedings have started an adoption agency or local authority may ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.

 

 

So either under the Inherent Jurisdiction OR under FPR 2010 14.21 the Local Authority may ask the High Court for directions and guidance as to whether a father without PR should be told of the plan for the child to be adopted, and that is probably the safest way to resolve that issue.

Bear in mind the decision of Holman J in Re A and B and Rotherham Metropolitan Borough Council 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/47.html

 

Where a father without PR who knew nothing about the care proceedings or adoption proceedings found out at a later stage and challenged the adoption successfully, with the child being placed with the paternal aunt.  So a prospective adopter taking a child where the father has not been told does do so at some risk that a later challenge by said father might succeed in moving the child.

Right, so until the Courts are asked to deal with a relinquished baby where the child was concieved under a surrogacy arrangement, or an artificial insemination arrangement, or an international surrogacy, we know where we stand.

 

 

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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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