OK, take custody

Posted on February 24, 2016 by suesspiciousminds

 

The High Court in Re D (Children: Abduction) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3990.html

dealt with a private law dispute between parents over their children.  (I know that most family lawyers are gritting their teeth, wincing and in agonies about the use of the word ‘custody’ in the heading, but it is a direct quote from the key part of the case).

There seemed to be a lot of unhappiness between the parents as to the amount of maintenance that the father was paying to the mother.  The mother and children lived in France, the father in England.  They had a frank exchange of views by email and texts – starting about mother’s request that father extend his holiday with the children for two days and then getting very heated.  Unfortunately for the mother, this exchange of views happened whilst father was having holiday contact with the children so they were in his care, and she at one point used the words ‘OK take custody’

The father duly did, and when the mother sought the return of the children to her care and made an application to that effect relying on his abduction, the father’s case was that the mother had given clear and unequivocal consent in the message “Ok take custody” for the children being in his care, which is a defence to the Hague Convention abduction remedies.

On the face of it, “Ok take custody” is not a wise thing to say to someone when you are arguing about where the children should live, but it is also important to look at the context. Mother’s case was that the words were heat of the moment in a heated and difficult exchange and not to be taken seriously, father’s case was that she meant them literally and clearly and unequivocally consented.

Let’s look at the whole exchange :-

 

 

  • In the summer of this year the parties agreed that the father would bring the children to England for a holiday lasting about five weeks. It was agreed that he would collect them on 26th June and return them on 30th July. Prior to the children’s departure to England, and over the first few days after their arrival, the parties engaged in a lengthy email exchange arguing about a range of matters. Translations of all the relevant emails have been put before me. Initially, they argued about whether the father could keep the children for two further days. It was the mother’s request that he do so; the father refused. The mother asked again; the father refused again. In so doing, he alluded to the fact that he was paying what he described as an “enormous amount of maintenance”.
  • That led to a lengthy email from the mother in which she said inter alia about his payment of maintenance:

 

“It’s your duty to do that. You’re not doing it for me. Don’t pay maintenance if you don’t want to, couldn’t care less. What are you complaining about? Do you want to swap roles, even though my maintenance won’t be such an enormous amount as yours, as you make so clear?”

In his reply the father said inter alia:

“If you’re not there to pick them up on 30th July in the afternoon I will file a written record of your absence and they will go back to school in England.”

In her reply, the mother said:

“Okay, if it was so simple then separated parents would send their children here and there without worrying about their wellbeing. Instead of filing a solution, you threaten me. Okay, I’m waiting to see. Bring them back the last week at school or else I’ll file a complaint for kidnapping.”

The father replied:

“It’s very simple, you agreed to take them back on the 30th of July and I cannot keep them any longer.”

A little later:

“There’s no point in making a fuss about nothing, everything was very clear and the dates were clearly stated.

You’re the one who wants to change the dates, so it’s up to you to come up with a solution.

This is my last email on this subject.”

 

  • All those emails took place on 20th and 21st June. That was the end of the exchange. The children were collected by the father and brought back to England on 26th June for their holiday.
  • On 1st July the email exchange resumed with further arguments about money. In the course of these arguments, at 14.49 on 1st July the father sent an email saying inter alia:

 

“If you’re not happy with the maintenance you get I can take custody back. I’m fed up of you treating me like a bank.

I’m waiting for you to confirm about the 30th of July.”

The email exchange then continued as follows. At 15.12 the mother sent an email saying simply: “OK take custody.” A minute later she sent a further email to the father saying:

“You must still be in Paris? Pop round to pick up the rest of their belongings.”

At 15.23, that is to say some ten minutes later, the father replied:

“I will need a letter from you saying that I have formal custody starting today, I will also use this email.

It’s not very important about their belongings.

You need to pay about €450 maintenance.

I let you have custody because you were creating problems when I had them last year. Unfortunately you carried on creating problems once you had custody.

This time you’ll have to get sorted, it will be the last time they move, you’ll have to sort visits out the best you can.”

At 15.33, some ten minutes afterwards, the mother replied:

“You know the procedures.

Start by making an appointment with the Family Judge.”

At 15.42, nine minutes later, the father replied:

“They are in France because I agreed to it, and that was following procedures in their original place of residency.

This time is simply them coming home.”

At 15.52, some ten minutes later, the mother replied:

“Oh no. They go to school in France and their primary residence is in France. You want to go to prison, abduct them. You will need the French judge’s ruling to put them in a school. Good luck.”

At 15.55, some three minutes later, the father replied:

“Abducting? You just told me to take custody.

I’m not playing around here.

No worries about the judge in France, seeing as you’re the one who enrolled them in school in France and they were staying with you. I’ll let you fill in the questionnaire which you can find here.”

He then attached a website link, presumably to the French court office. At 16.01, some six minutes later, the mother replied:

“Why should I fill this form in? You sort it out.

End of conversation.

Have a good day.”

If you can read that without wanting to bang both of their heads together, I’d like to thank you for visiting the blog St Francis of Assisi. Quick reminder that these people are actually adults, who have responsibility for looking after children.  My take here is that mother was not clearly and unequivocally consenting (things like “You want to go to prison, abduct them” are pretty suggestive that she’s not agreeing to a change of residence), but that she was also pretty foolish in not picking up that the father was more than willing to call her bluff on the sarcastic ‘ok take custody’ email.

  • The leading case on the question of consent in this jurisdiction under Article 13(a) is the decision of the Court of Appeal in Re P-J (Children)(Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588. Consent is a defence which the defendant has to prove. At para.48 Ward LJ identified the following nine principles to be applied when the court is considering a defence of consent:

“(1)  Consent to the removal of the child must be clear and unequivocal. 

(2)  Consent can be given to the removal at some future but unspecified time or upon the happening of some future event. 

(3)  Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4)  The happening of the future event must be reasonably capable of ascertainment.  The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled.  Fulfilment of the condition must not depend on the subjective determination of one party, for example, ‘Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.’ The event must be objectively verifiable.

(5)  Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life.  It is not to be viewed in the context of nor governed by the law of contract.

(6)  Consequently consent can be withdrawn at any time before actual removal.  If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed. 

(7)  The burden of proving the consent rests on him or her who asserts it.

(8)  The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9)  The ultimate question is a simple one even if a multitude of facts bear upon the answer.  It is simply this: had the other parent clearly and unequivocally consented to the removal?”

  • It is the father’s case here that the mother in her emails made statements which amount to “clear and unequivocal consent”. He points in particular to her use of the word “consent” in the email to which I have alluded and the subsequent emails, which he invites the court to read as clearly indicating that the mother was genuinely consenting and inviting him to go to the French court to obtain a formal order to avoid being accused of abduction. This is his interpretation of the references in the email exchanges which I have quoted to the court forms.
  • On the other hand, Dr. Rob George on behalf of the mother submits, first, that there was no clear or unequivocal consent and, secondly, even if the mother did give consent in the email exchanges on 1st July, that was plainly withdrawn on 23rd July, seven days before the end of the holiday on 30th July which constituted the point at which the children were retained in this jurisdiction.
  • I have no hesitation in accepting Dr. George’s submissions. First, I do not regard the mother’s words as I have quoted in the email exchanges on 1st July as amounting to “a clear and unequivocal consent”. Plainly what she said in those emails was said in the heat of the moment, and I remind myself of the observations of Ward LJ in the passage from Re P-J which I have just quoted, namely that: “Consent, or the lack of it, must be viewed in the context of the realities of … the disintegration of family life.” This exchange took place in the course of a heated conversation between the parties in which the mother was becoming frustrated and angry about what she saw as the father’s unreasonable behaviour so far as the precise timing of the contact was concerned, the date on which the children would be returned, and matters of money. Whether or not she was justified in becoming frustrated and angry, I know not, but what is clear to me is that her statements made in the emails have to be viewed in that context, and I do not in those circumstances regard them as clear or unequivocal. To my mind, the fact that she referred to abduction only a few minutes later in a further email further shows that the emails do not amount to “a clear or unequivocal consent”.
  • Secondly, even if I am wrong about that and the statements made in those emails were “a clear and unequivocal consent”, manifestly that consent was withdrawn before the children were retained.
  • Accordingly, applying, as I do, the principles in Re P-J which relate to removal by analogy to the retention of the children, any consent that was given was plainly withdrawn on or by 23rd July in the email which I have just read out. This, to my mind, is a blatant example of unlawful child abduction and my plain duty under the Hague Convention is to order the summary return of all three children, which I shall now do.

 

 

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It’s time… for Pig to say sorry to Hartley

Posted on February 23, 2016 by suesspiciousminds

 

In my youth, there was a TV show called Pipkins, in which Hartley, a moth-bitten hare with a personality disorder lived in a house with a Brummie pig, a monkey called Topov, a creepy tortoise who slept in a shop till and a Zsa-Zsa Gabor type ostrich. There would always be a section in the show where the human presenter would tell one of the characters to say sorry to another – with the “It’s time…. for Pig to say sorry to Hartley”

(There would be a montage of clocks and the noise of clocks striking during the “Time” bit)

 

This looks like the stuff of some sort of fevered Shock-Headed Peter nightmare, not a children's entertainment. (I am not even showing you the evil tortoise)

This looks like the stuff of some sort of fevered Shock-Headed Peter nightmare, not a children’s entertainment. (I am not even showing you the evil tortoise)

 

That pig looks as though he’s going to lunge at me and eat me from the soles of the feet up.

Besides being largely responsible for my life-long aversion to tortoises (seriously, I have to leave the room or look away if I see one on television, they give me the Fear), that expression always stayed with me.

In the case of Re K (children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/99.html

The Court of Appeal were considering the father’s appeal against a decision that he have no contact with his children, there having been domestic violence between the father and mother and the children having been exposed to some of this. The Court of Appeal granted the appeal, ruling that the Judge had not gone far enough in the duty to exhaust the reasonable avenues of getting contact re-established.

The interesting feature of the case is that both the Judge and the Guardian had become quite fixed on the idea that the father needed to apologise to the mother for his behaviour.

Vos LJ firmly rejected this and it may have a bearing on other cases.

 

I agree, and would only add a few words on one aspect of this case that I found somewhat disturbing. As Lady Justice King has recorded, the recorder seems to have taken the view that the father’s failure to make a genuine and heartfelt apology to the mother precluded him from seeing his children. I cannot accept such a starting point. It may well be that a repentant father would offer a reduced risk of harm to the children, but it is that risk and the welfare of the children generally that are important in contact cases, not any moral judgment of either parent. As has been often pointed out, parents are of all kinds and demonstrate all levels of moral virtue. It is not the court’s job to judge a wrongdoing parent for the sake of doing so, because it will, in all but the most exceptional circumstances, be in the children’s best interests to see their parents. If the failure to apologise posed a risk to the children, that might have been a different matter, but that does not seem to have been the case here. The recorder was wrong to impose a pre-condition of repentance and apology. Those matters were relevant, but only insofar as they had a bearing on the welfare of the children.

 

 

And if you want some more nightmare fuel, there were Pipkins episodes where Hartley (to my mind a cross between a really annoyed Kenneth Williams and Al Pacino at the end of Scarface) had his own puppet, which was even more malevolent.

 

Will I ever sleep again?

Will I ever sleep again?

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Mistaken identity

Posted on February 23, 2016 by suesspiciousminds

 

Readers may recall the case of Riaz , where Keehan J used the inherent jurisdiction of the High Court to make injunctions against a number of men, banning them from contact with any child under 18 and allowing them to be ‘named and shamed’ as people who may have sexually exploited or groomed children.  (They may also remember my doubts that the inherent jurisdiction, which is undoubtedly pretty elastic, stretched quite as far as Keehan J was deciding.   “I’m like a rubber band, until you pull too hard”, as Sia sings)

We then had the Redbridge case, in which Hayden J said just that, that the inherent jurisdiction could properly be used to protect a named child from harm from named individuals, but not to protect ALL children against such men.

Both of these Judges are High Court Judges, so the conflict between Riaz and Redbridge will have to be decided by a more senior Court if at all.

Birmingham City Council vand SK 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/310.html

In this case, however, Keehan J made a “Riaz” style injunction against a man, only to later have the Local Authority who asked for it to come back rather sheepishly to say that they had obtained such a serious injunction against the wrong man.

[Hopefully this time the “Riaz” injunction didn’t end up with the national or local press ‘outing’ this man as someone who exploits or grooms children. Am wondering what the remedy would be if so – you can’t sue for defamation for something that is said in Court so the LA telling the Judge that the man LG posed a sexual risk would be protected, a newspaper reporting the Court order would be protected.  I guess it would have to be a claim for negligence?]

  1. SK, from the age of 13, was absenting herself form the family home. It was discovered that she was keeping the company of much older men. She was beyond the control of her parents. Her case came to the attention of the local authority and of the police. Hence the care proceedings were issued and an application for an injunction was made against an individual, LG, who it was believed was sexually exploiting SK.
  2. There was a meeting of MASE on 5 October 2014 when he was mentioned as a possible perpetrator of child sexual exploitation against SK.
  3. The local authority thus made the application for a Birmingham City Council v Riaz and othrs [2014] EWHC 4247 (Fam) [2015] 2 FLR 763 (‘Riaz‘) style injunction against him. On the basis of the information then before me on 24 March, I granted the injunction as sought.
  4. Within days of making that order, however, it became evident that there had been a serious lack of communication and/or a misunderstanding between the police and the legal department of the local authority. It also became clear that LG had quite wrongly been identified as a possible perpetrator of a child sexual exploitation of SK at the multi agency meeting held on 20 January 2015.
  5. Quite properly the local authority immediately applied to me to discharge the injunction against LG. I granted the same but required a detailed explanation from the local authority and from the police as to how such a serious mistake had been made. I was promptly provided with an explanation which I accept. I do not propose to lengthen this judgment by reciting the same save that I accept it was a genuine and unintended error borne of lax and less than rigorous procedures.
  6. The local authority and the police, with the court’s approval, wrote an entirely suitable and regretful letter of apology to LG. The material passages of that letter are:

    “… The order had been granted by the High Court on the basis of evidence and information gathered by the local authority in the exercise of its safeguarding duties. The information that indicated that you might have involvement with the individual named in the order was provided to the local authority by West Midlands Police at a meeting on 23rd September 2014, again as part of safeguarding procedures….

    ….On the 27th March 2015 information was received by the local authority legal department from West Midlands Police. That information made clear that it was not thought that you were in fact involved with the child in question….

    ….The reason that Birmingham City Council sought an order against you was that information was received from West Midlands Police (WMP) at a social services meeting in September 2014, that there was a log connecting you to a relevant address and potentially to the child in question.

    However, a break down of safeguarding procedures within the local authority meant that this link with LG was considered to be accurate even after, at another safeguarding meeting on the 20th January this year, West Midlands Police made it clear that LG was not thought to be involved with the child.

    Prior to the hearing at court on the 24th March 2015 the local authority sought to ensure that the information it relied upon remained accurate. However, the steps taken failed to highlight that you were not involved with the child…..”

  7. The positive outcome of this most serious and unfortunate set of circumstances has been the creation of a Protocol devised by the local authority and the police. It is an extremely helpful document which is the result of many, many hours of discussion and debate between the various agencies engaged in the field of child sexual exploitation.

 

The misidentification of LG as a potential perpetrator of child sexual exploitation was, to put it mildly, extremely unfortunate. I am satisfied that the same resulted from a series of unintended errors and misunderstandings, of greater importance, however, for the conduct of future cases is the Protocol agreed between the local authority and the police. It provides a clear and detailed procedure for the steps to be taken in cases of actual or suspected child sexual exploitation. The protocol is the result of careful consideration over many months, by a number of agencies, with the benefit of counsels’ advice and drafting.

 

You can find the Protocol laid out in the judgment, if you are interested.

What is perturbing me, however, is how the Judge came to make the “Riaz” injunction without it coming to light that LG had been wrongly named as a sexual risk.  That suggests strongly to me that LG was not present at the application – since if he was, surely he would have been saying that there had been a terrible mistake. So did Keehan J make such a serious order ex parte?  (without LG being present to oppose it?)

We can’t be sure of that, since the judgment doesn’t explicitly say so, or set out what evidence was presented, but it is surely a lesson for the Courts as much as the LA?  In all other applications, there is clear guidance and case law as to the risks of a hearing taking place with only one side present and the very limited circumstances in which that can occur, the caution that the Court needs to take and often the very high evidential bar that the applicant needs to surmount before an order can be made.

Given the huge implications of a “Riaz” style injunction (let’s not forget that the subject would be barred from any contact with children, and might be placed in very awkward situations having to explain that they cannot visit family or friends who have children, let alone the publicity issue), surely the very high evidential bar that exists with say Emergency Protection Orders ought to be in place. Particularly given that there’s some doubt about the jurisdictional issue.

I could be wrong. Maybe LG WAS present at the injunction application and either didn’t say that this was mistaken identity or wasn’t believed.

On a broader issue, we do need the conflict between Riaz and Redbridge to be resolved. We all know that different Judges approach things in slightly different ways and as human beings bring their own experience to bear, but it cannot be right that a person like LG faced with an application of this kind would have some Judges who would absolutely not make the injunction and some who would, on exactly the same facts. That cannot be right or fair.

 

 

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The ‘evidence of domestic violence within 2 years’ Regulation found unlawful

Posted on February 19, 2016 by suesspiciousminds

I am struggling to think of a piece of legislation that has had as many successful challenges to the legality of Regulations issued under it as the much-beloved LASPO  (Legal Aid, Sentencing and Prosecution of Offencers Act 2012)

The particular Regulations here are Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012

LASPO sets out that being a victim of domestic violence can be a reason for the provision of free legal representation.  The sense of this is that where someone has been the victim of domestic violence, it would be abusive and damaging for the State to make them face the perpetrator in Court without a lawyer to represent them.  [Note that this provision still only applies within financial limits – below a specified income and capital the State should pay for that, above that and the individual would have to pay for it themselves, regardless of whether the legal representation is actually genuinely affordable on that income]

There is, of course, an entirely separate debate about whether someone who is accused of perpetrating domestic violence should be entitled to free legal representation to defend the allegations (at least until the Court has determined the truth of the allegations), but that’s beyond the scope of this case.  [For my part, I think that LASPO should have provided for that, but it doesn’t]

Regulation 33 sets out that in order to show that you are a victim of domestic violence, you need some documentary evidence of that to get legal aid, and that the evidence must be within the last 24 months.

This 24 month rule was challenged.  [Note that although the application was brought by a group lobbying for women’s rights, men of course can also be the victims of domestic violence and abuse, and this case applies to men as well]

Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91

http://www.bailii.org/ew/cases/EWCA/Civ/2016/91.html

 

Whilst the judgment is fairly long and involves some rather nuanced discussions about Padfield unfairness versus Wednesbury unreasonableness, the case can be condensed into these short passages

 

  1. Ms Lieven submitted that the evidence shows (as practitioners in the Family Division know from their own experience) that there are many situations in which victims of domestic violence find themselves at the receiving end of legal proceedings not merely more than 24 months after incidents of domestic violence have occurred but more than 24 months after it is practical to obtain the kind of verification required by regulation 33. Examples of such cases are:-

    i) the perpetrator may have been in prison; once he (it is almost always he) is released, he may initiate proceedings for child contact or divorce and financial settlement; regulation 33(2)(a) can only be relied on if the conviction preceding the prison sentence is a relevant conviction for a domestic violence offence and if it is unspent; if the sentence is a fine or a community order, the conviction will be spent after only 12 months from the date of conviction or from the last day the order is to have effect;ii) there may have been a non-molestation order (or other form of injunction) which has kept the parties apart for 2 years but has expired before legal proceedings are begun;

    iii) a similar period of separation may have occurred for other reasons such as the receipt of a police caution or other police involvement; criminal proceedings may have been instituted which do not result in a conviction; such non-convictions occur for many reasons other than that the alleged perpetrator is innocent;

    iv) there is no time limit for the initiation of proceedings for child contact; a refusal of child contact does not prevent a re-initiation of proceedings which can therefore be served again on the victim of domestic abuse after the expiry of the two year period. Additionally, the court can direct, pursuant to section 91(14) of the Children Act 1989, that no such proceedings shall be begun without permission of the court for a period until the expiry of the two year period in which domestic abuse could be verified in accordance with the Regulations; if the Court also directs that any application for permission is not to be served on the respondent, a victim of domestic abuse may receive no notice of prospective proceedings within the relevant period in which she may otherwise take steps to obtain verification;

    v) The main priority of any victim of domestic violence will be to make immediate arrangements for her personal safety and that of her children; this may take a considerable time particularly if the abuse was prolonged or the marriage was originally a forced one; any proceedings sought to be brought by the victim for divorce or financial relief may well be more than 24 months after any practical ability to obtain verification has passed;

    vi) although the definition of domestic violence extends beyond physical abuse to psychological or emotional abuse, the verifications required by regulation 33 are much more easily satisfied where there has been physical abuse than where there has been psychological or emotional abuse. This means that even though signs of psychological or emotional abuse may persist longer than sign of physical abuse, there is considerable difficulty for the victim in obtaining the necessary verification after any lapse of time; and

    vii) victims of financial abuse will not be able to obtain any of the verifications required by regulation 33 at all. (The only answer Mr Sheldon could give to this last point was the inadequate one that victims of financial abuse could always be expected to show evidence of psychological abuse).

  2. This is a formidable catalogue of areas of domestic violence not reached by a statute whose purpose is to reach just such cases. But does it go so far as to show that the 24 month requirement has no rational connection with the statutory purpose?
  3. In my judgment it does. There is, as Ms Lieven submits, no obvious correlation between the passage of such a comparatively short period of time as 24 months and the harm to the victim of domestic violence disappearing or even significantly diminishing. No doubt the 24 month requirement serves the purposes of the statute as the Divisional Court considered them to be but as I have said those purposes are not the only purposes of the statute. Once it is accepted that part of the statutory purpose is to ensure that legal aid is available to (at any rate the great majority of) sufferers from domestic violence, one has to ask why it is that so many of them are excluded by virtue of the 24 month rule. Mr Parsons’ assertion that “the time limit provides a test of the on-going relevance of the abuse” does not justify the many excluded instances or the lack of any opportunity for victims of domestic violence to explain why it would be unjust to apply the time limit to their particular case. It operates in a completely arbitrary manner

 

And then

 

I would therefore allow this appeal and, subject to any further argument about the detail of the form of order, in principle declare that regulation 33 is invalid insofar as it

a) requires verifications of domestic violence to be given within a 24 month period before any application for legal aid; and

b) does not cater for victims of domestic violence who have suffered from financial abuse.

A cynical person might say about LASPO that Parliament when considering this Act were rightly very troubled by the original legislation and the lack of protection for certain vulnerable groups, which was why some safeguards were inserted into the final version of the Act, and that the Legal Aid Agency and Ministry of Justice have systematically attempted to erode those safeguards by Regulations (which have been successfully challenged) and guidance on implementation (which has also been successfully challenged).

In effect, Parliament agreed to trade in the car that they owned for a greatly inferior but still safe model to save cash, and agreed to let the Minister have a copy of the car keys, in case he or she needed to tune up the car or valet the inside at any time (the power to make Regulations).

 Then the Minister snuck off in the night, used the keys and removed the brakes, seatbelts, speedometer, and airbags that would make the inferior car still safe to drive.

The Courts have ordered these safety measures to be reinstalled. But so far, each individual bit of ministerial pilfering has had to be dealt with one at a time. I hope that MPs are keeping up to date with the bad-faith approach to LASPO and will approach any future legislation with a much more cynical eye on giving Ministers the car keys in the future.

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Conference 2 – in Birmingham no-one can hear you scream

Posted on February 18, 2016 by suesspiciousminds

The Transparency Project are once again involved in a multi-disciplinary conference about the child protection system – entitled “The Child Protection System – Where do we go from here?”.

This conference, is the second held by its organisers and is intended to be a genuine conversation between professionals of different disciplines AND those whose lives the court and child protection system actually affects. It is being held on 3 June in Birmingham and will be  More Amazing than Being Bruce Wayne*. The conference will be opened by DJ Gailey, and will involve all sorts of other interesting and challenging speakers and participants (Maggie Siviter, Clare Fenton-Glynn, Dr Lauren Devine, Brid Featherstone, Louise Tickle, Lucy Reed – hopefully some real parents too, as they were so good last year).

Do take a look at the information, circulate it to colleagues and friends, tweet it like crazy and share it on all your weird facebook yahoo google groups – and book a place!

*the author is not responsible for any difference of opinion between us about what constitutes “More Amazing than Being Bruce Wayne”     – frankly, I may be overselling it, because he has a butler who is also like a surgeon, his boring day job is dating models – that’s the part of his life that is LESS COOL and that he finds less enjoyable and he (sshhh) is secretly Batman.

Astute blog-readers may have picked up on the fact that I have largely stolen this from Lucy Reed’s post due to pressure of time. Hers had slightly less Batman references, which means that mine is the winner.

 

http://www.qwantz.com/index.php?comic=1502

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Lawyer slaps Judge

Posted on February 18, 2016 by suesspiciousminds

 

Shame on all of you lawyers who just let out a wistful sigh. Shame on you. Shame.

This actually happened in India.  [And not, as was my first thought on hearing that this had happened, in Liverpool]

A Jaipur lawyer, Prem Surana, had slapped a magistrate in the open court and used abusive language as the magistrate disallowed his application for exemption from appearance and issuing a non-bailable arrest warrant against the advocate, an accused in a criminal case.

http://timesofindia.indiatimes.com/india/Slapping-a-judge-is-slapping-justice-delivery-system-SC/articleshow/19791742.cms

It turns out that there are consequences for this, and said lawyer is now in custody for Contempt of Court. I do have to admire his chutzpah for offering instead an undertaking of good behaviour for five years.  [I absolutely love that he was only prepared to commit to not slapping Judges for FIVE years, rather than indefinitely]

For once, I’ve beaten Lowering the Bar to this story…

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Adoption and parents who had been people trafficked

Posted on February 17, 2016 by suesspiciousminds

 

This is the hottest of hot potatoes that can be thrown at a Judge at the moment.  (And for me, in writing about it, because it involves Brussels II  and Slovakia, which always irks my commentator Andrew when I say “Slovakian” at any point rather than Slovak or the Slovak Republic.  For this particular occasion, any use of Slovakian is taken entirely from the judgment itself, and is not my own creation)

 

Re N and P Children 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/4.html

The children concerned had been born in England. At the time of the decision, one was just over two and the other just over one.

The mother was Hungarian, but had been raised “on the street in Slovakia as part of a homeless family.”

“The father, who is 36 years old, is Slovakian but also speaks Hungarian”

It is alleged that the parents were the victims of people trafficking. The mother’s account is that on arrival at Dover they escaped from the traffickers and travelled across England, staying at various locations, but ending up in Bournemouth.

 

Care proceedings were taken as a result of domestic violence / disturbance incidents.  in early 2015, the parents were evicted from their accommodation and subsequently returned to Slovakia and have had no further contact since that date. Their present whereabouts are unknown although it is understood that the mother has given birth to another child.

The parents did not play any further part in the proceedings, and their whereabouts is unknown.

 

 

  • On 19th January 2015, HH Judge Bond made a further case management order directing the local authority to write to the Slovakian Embassy to inform them of the proceedings and invite a representative to the following hearing and further directed the local authority to liaise with the Embassy to ensure that any independent social worker instructed to undertake an assessment of the grandmother in Slovakia received appropriate clearance. In a series of emails, the local authority was informed that the Slovakian authorities would not support an English independent social worker undertaking the assessment and instead offered the services of the relevant local authority in Slovakia to prepare a report. At the next hearing on 11th February, which so far as I am aware was not attended by a representative of the Slovakian Embassy, the court gave directions facilitating the assessment of the grandmother by the Slovakian authorities. The assessment was duly arranged by the Central Office of Labour Social Affairs and Family and carried by social workers in the branch of that office local to the area where the grandmother lives.
  • In March 2015, the Central Office indicated that the paternal grandmother was willing to care for the children, but the final assessment by those authorities revealed that there had been serious concerns about the grandmother’s care of her own children, including allegations of neglect, and the unexplained death of a baby some years earlier. The condition of the grandmother’s home was also described as unsuitable. The assessment concluded that the grandmother was an irresponsible person who had neglected her obligations to care for her own children and recommended that neither N nor P should be placed in her care.

 

That was then leaving the Court with two options – to make Care Orders and Placement Orders, with a plan of adoption – or to transfer the case to “the Slovakian authorities ” as per their request.

 

Those authorities had set out what they would do with the children if they were returned.

 

 

  • The recent letter from Ms Marcinova has clarified the plans of the Slovakian Authorities for the care of the children, if they are sent to that country. Ms Marcinova stated that “the facility for enforcement of court decisions is a children’s home” which “temporarily replaces a child’s natural family environment or a substitute family environment.” She explained that children’s homes provided care by means of two types of organisational arrangements, namely autonomous groups or professional families. An autonomous group, in which care is provided to a pre-determined number of children, is set up in a separate family house or in a separate section of the children’s home. Professional families are also organisational units of children’s homes. A professional parent is an employee of a children’s home; he or she takes care of 1 to 3 children in a family house or flat provided by the children’s home, or in a property owned by the professional parent. The professional parent has all the powers and responsibilities normally vested in birth parent, although no legal relationship is created between the professional parent and the child. Ms Marcinova stressed that the care provided by a professional family is not the same as substitute family care, but it did provide an opportunity for the provision of individual care to a child placed in institutional care by decision of a court.
  • Ms Marcinova confirmed that the placement of a child institutional care, whether it be in an autonomous group or in a professional family, was regarded as a temporary solution, the aim being to return the child to its original family as soon as possible provided the family was able to resume care. In the alternative, if this was not possible, the child would be placed in a substitute family – foster care or adoption.
  • Upon arriving at the children’s home, a child may first be placed in an autonomous group where they can meet and interact with the professional parent identified as a potential carer. An assessment process is carried out, which may include psychological assessment and counselling. Once the child has been placed with the professional family, there are regular checks and assessments, and the children’s home and other agencies co-operate with the biological family in drawing up a joint plan of social work with the aim of facilitating the child’s return to the natural family
  • Ms Marcinova stated that a secure placement at the children’s home at Renetske Hamre is available for N and P. They could be placed together with a professional parent, in a flat with above-average modern furnishings and equipment, situated in the centre of the town with good access to all relevant facilities. The professional parent identified is Slovak. Ms Marcinova advised that she does not speak English but would be able to communicate with the aid of a dictionary. If necessary, the children could be helped by an interpreter during the adjustment phase. After placement, the authorities would cooperate in providing support to and mobilising the biological family with the aim of securing substitute care for the children within the family. A decision to place the children within the family would be a matter for a court.

 

The Court therefore had to decide whether the proceedings should be transferred under Brussels II, where that would be the plan, or kept in England, where the only concievable plan was adoption.

 

  • In analysing the options, the welfare of the children is my paramount consideration and I must assess the relative merits of the options by reference to the statutory welfare checklist.
  • The advantage of moving the children to Slovakia would be that it would provide an opportunity of either being placed with members of their birth family or having greater contact with the family. It would also provide them with the best opportunity of growing up with an understanding and experience of their culture of origin. Cultural needs are important, but in my judgment in this case they are manifestly outweighed by the children’s emotional needs for stability and security. At present, their needs – physical and emotional – are being met very successfully by their current carers with whom they have formed a close attachment. Given the disruption they endured in the first months of their lives, when they were neglected and ill-treated by their parents, their future security and stability are vital. A move to Slovakia would cause a sudden interruption to their lives, however sensitive and skilful the professional parent to whose care they were entrusted. Such a move would inevitably cause great distress and, I am satisfied, a high degree of emotional harm to two children who have already suffered significantly in this regard.
  • In short, in terms of the statutory welfare checklist, I conclude that in this case the physical and emotional needs of the children, the capacity of their current carers to meet those needs, the adverse consequences of a change in their circumstances, and the very strong probability of harm they would suffer if moved to Slovakia, all outweigh their needs for maintaining a relationship with their birth family and the opportunity to grow up within their culture of origin. In any event, I am satisfied that their need to acquire and maintain an understanding of their culture will to a very substantial extent be met by their current carers, who have been selected carefully for this very purpose.
  • The disadvantages of a placement in Slovakia in this case are in fact so great that I do not regard it as a realistic option. To my mind, the only realistic option is that they remain in their current placement. The realistic options are therefore long-term foster care or adoption. Having regard to the factors already identified and all relevant matters in the statutory welfare checklists, in particular their need for stability and security, the balance plainly comes down in favour of adoption. I take account of the likely effect on the children (throughout their lives) of ceasing to be members of their birth family. In my judgment, any disadvantages are outweighed by the emotional security they will acquire as adopted persons.
  • I therefore accept the clear recommendation of the local authority and guardian. I repeat my expression of gratitude to the Slovakian authorities, and in particular Ms Marcinova, for their careful and thorough response. Given the particular needs and circumstances of these children, and the length of time since they were removed from their family, I do not consider that placing them in temporary care of a professional parent in Slovakia, with the prospect of a further move in due course, to be a realistic option. Although long-term foster care in this country would in theory enable the children to maintain relations with their birth family, the reality is that these children have been abandoned by their parents and such links as exist with the birth family are extremely tenuous. The children are currently in an excellent placement where they have thrived and are being well cared for. Their carers have links with eastern Europe, in particular Slovakia and Hungary and are well qualified to maintain and nurture the children’s sense of identity.
  • It is manifestly clear that this is a case where only an adoption order will fully meet the needs of these children. I therefore approve the local authority care plan and make a care order in respect of both children. I conclude that the children’s welfare requires them to be placed for adoption, and for that reason dispense with the parents consent to such a placement and make a placement order in respect of both children.

 

[What doesn’t occur in this case, which could have occurred, is the Hungarian authorities putting in their own claim for the children. The children were born in England and have lived here for their entire yet short lives. The mother was born in Hungary. The father was born in the Slovak Republic. The English Courts have had a hell of a job trying to decide between two competing jurisdictions. We are surely going to get a case soon which involves three competing jurisdictions. Or four.  What are we going to do with the first children who live in England, but were born in Ghana, and have a Lithuanian mother and a Peruvian father?]

Cases like this tend to be fact specific – the balance might well have tipped if the parents whereabouts were known, and they or the extended family might have continued to have contact. As it stood, the Judge was balancing cultural issues against the benefits of permanence, and decided that in this case, permanance prevailed (though in this specific case the children were fortunate enough to have carers who could meet the cultural needs). Different facts could result in a very different outcome.

 

 

 

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Some interesting cases, but no judgments

Posted on February 15, 2016 by suesspiciousminds

I think now that the Court of Protection is open to the Press, we’re going to see more of this happening. There’s quite a wait for a Judgment to be transcribed, approved and put on Bailii, so the Press who are present are able to report the drama of a case without a judgment available to allow those who weren’t there to see the nuance or how the competing issues were balanced.

http://www.theguardian.com/law/2016/feb/12/allow-huntingtons-disease-sufferer-to-die-judge-rules

 

In which Hayden J dealt with a person lacking capacity, who was pulling feeding tubes out of his body, over a hundred times. Was it in his best interests to continue to insert the tube, or to discontinue it, even though that might lead to his death?  Hayden J ruled that it was in the person’s best interests to stop the treatment. Kudos to the Guardian for not labelling this a ‘right to die’ case, but boo for trotting out the stock and misleading phrase that the Court of Protection deals with ‘the sick and vulnerable’   (no, it deals with people who are believed to be lacking capacity to make their own decisions, who may ALSO be sick and vulnerable, but the overwhelming majority of sick people will never come anywhere near the Court of Protection and plenty of people are vulnerable without lacking capacity. )

Annoyingly for a lawyer, the Guardian piece doesn’t set out how Hayden J balanced the individual’s best interests (and one can infer from his actions what his wishes might be) against the article 2 right to life – since this isn’t a case like Tony Bland and others where there was no response (the evidence was that the man reacted to family mentioning Manchester United – by smiling)  or a Lady who sparkled case of someone with capacity rejecting treatment just as any of us can do.

So we need to see that. It is perhaps illustrative of something of a shift in Court of Protection away from the patrician and towards autonomy, but without a judgment, I can’t say.

 

There’s also a C-section case with social workers in the wings seeking to initiate care proceedings, and we know what a hot-button topic that is.

http://www.theguardian.com/law/2016/feb/11/judge-orders-caesarean-if-needed-for-mentally-ill-mother-to-be

And it would be handy to see the judgment in full, to assess whether this was proportionate, and whether the high tests for C-section without consent were applied.

 

Then in Children Act cases, there is

Child given placement order after special guardianship arrangement lasts two weeks

 

In which it is said that a child was placed with Special Guardians and the placement lasted two weeks, with the Special Guardians spending their allowance on drugs, alcohol and gambling. Not perhaps the most robust of assessments, if it didn’t spot that they were assessing someone with all of those problems. [Even most TV cop shows would draw the line at their flawed hero having all THREE of those problems all at once]

 

And this one

 

Judge criticises independent social worker for ‘face value’ assessment of abusive father

 

Where an ISW described a contact session as positive and enjoyable, whereas the Guardian described it as the worst she had ever seen  and horrifying.

 

I’d love to write about all four of these cases, but in the absence of judgments, I’ve got no source material.

My teeth are gnashed.  If I had an alligator to hand, I might well throw it through a window, to express my dissatisfaction.

Is an Alligator a “Deadly Weapon”?

 

I’ll leave you with Lowering the Bar, who report that the Court in Pennsylvania  (which I believe is staffed by little cute mice and bunnies and squirrels, or alternatively vampires – those are the two connotations of Sylvania that I hold in my head) have had to put up a notice to tell people attending Court not to wear pjyamas to Court (they are American and call that pajamas)

 

NOTE: Don’t Wear Pajamas to Court

I did once see a woman attend Court wearing a wedding dress (no, it was not actually her wedding day), and I represented lots of wealthy farmers back in my divorce days who would come along in their worst possible clothes (ragged, patched, gaping holes, egg-stains) to try to put in the Judge’s mind how poor they must be, but I have never seen anyone attend Court wearing PJs.

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Payment of a contact supervisor – private law

Posted on February 11, 2016 by suesspiciousminds

This may crop up again in private law cases, and is important therefore for Judges, lawyers, parents and very importantly Independent Social Workers and contact supervisors to know about.

In Re D (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/89.html

There was a decision at an interim stage that father’s contact needed to be supervised. An order was made for six sessions of supervised contact and that the father should pay for an ISW to supervise this contact. When the bill arrived, father considered it excessive and only paid some of it, leaving an amount outstanding.

As part of the appeal on other issues, the Court of Appeal had to consider the Judge’s final order in the private law proceedings which was that father must pay the ISW’s bill in full.  The father argued that the family Court had no jurisdiction on that issue, that this was a contractual dispute between him and the ISW and would have to dealt with as a contractual dispute, not within the family Court.

The legal argument was whether s11 (7) of the Children Act 1989 which allows a Court to set conditions about contact is sufficiently broad to allow a Court to rule that not only must contact be supervised, but who is to pay for the supervision, and how much.

 

 

  • Finally, I turn to the issue of the outstanding invoice submitted by Ms Barrett, the ISW, for services in connection with the supervision of contact pursuant to the order of 10th January 2014.
  • By that order, in which she directed the initial six sessions of supervised contact, the recorder ordered that the costs of the instruction of the ISW should be borne by the father, adding (“for the avoidance of doubt”) that the relevant costs would cover time spent in reading the relevant documents (identified by her as all the judgments save that as to costs, and the reports of all the professionals and experts in the court bundle); the cost of supervision; the cost of preparing sessional contact reports; and the costs of attending the subsequent review hearing if required by any party. Following that order, Ms Barrett was instructed and a letter of instruction sent by NYAS. As already described, contact duly took place, although the arrangements subsequently broke down. On 7th August 2014, Ms Singleton of NYAS forwarded the ISW’s invoice to the father. He replied the following day raising objections to a number of items on the invoice, and proposing that the sum payable should be reduced by £355. At the hearing on 14th November 2014, the recorder directed that the issue in respect of the outstanding invoice be adjourned to and dealt with at the final hearing. In respect of the two further contact sessions then ordered, the recorder directed that the father was to be responsible for meeting the ISW’s costs “which, in relation to these 2 contact sessions only, are to be limited to the supervision of 4 hours of contact (8 hours in total), the ISW’s travel time, and 1 hour of contact report writing in respect of each session (total 2 hours)”. The recorder further directed that NYAS was to be responsible for invoicing the father in respect of these further costs by 1st December; that the father was to pay the further invoice by 5th December (i.e. in advance of the contact); that upon receipt of the cleared funds NYAS was to inform both parties at once so that contact could take place as directed; and that, if the father failed to comply with the directions as to payment, the mother was to be released from her obligation to make the children available for contact. Following these tightly-drafted directions, a further invoice was duly submitted and paid in advance, and as already described the further contact sessions took place as directed.
  • At the hearing in February 2015, the recorder heard evidence and submissions from the parties (though not from the ISW, who did not give oral evidence at the hearing) on the disputed invoice. She dealt with this issue in the following brief passage towards the end of her judgment at paragraphs 105-6:

 

“105. The father has paid some but not all of the costs. In my judgment, he should pay all of Ms Barrett’s outstanding fees. Having been invoiced, [the father] took on the role of taxing master (a judge who decides on which costs in a case have been reasonably incurred), he told me he didn’t think that Ms Barrett was ‘cooking the books’ but that in relation to some items she had for example claimed an excessive amount of travel time, or for time spent writing her report. The invoice was rendered in August 2014 in the sum of £812.80, [the father] has paid £197.80. The balance to be paid within 28 days.

106. I have been told that Ms Barrett made no charge for all the work she undertook in trying to set up the contact on the 28th July 2014. I don’t mention that because it affects my decision in the slightest, but I think this reflects on the sort of person Ms Barrett is and why it is especially sad that she has withdrawn from being the supervisor.”

 

  • In his skeleton argument for this hearing, Mr. Rowbotham submitted that the recorder’s order that the father should pay the ISW’s costs was wrong and outwith her jurisdiction. Unless the ISW fell within the category of expert (which he submitted she did not), the obligation to pay her was purely contractual and therefore only enforceable in the county court. He submitted that the powers conferred by statute on the family court do not include the power to make orders for payment for services by a party to a non-party. In the alternative, he submitted that, even if the family court had such powers, the recorder was wrong to dismiss the father’s objections summarily. The concerns raised by the father were legitimate, and in declining to deal with them, the recorder failed to act in a way that was just or proportionate.
  • In reply, Mr. Wilkinson for the mother submitted that the order was no more than enforcement of previous orders; that the court’s powers under s.11(7) of the Children Act 1989 to attach conditions to a s.8 order are broad enough to encompass a requirement to pay the costs of contact supervision, and that, as the order was made at a hearing at which the father was present and where he did not object to such payment, he could not now be heard to say that he should not pay a sum which has been assessed as reasonable by the court. On behalf of the guardian, Mr. Fitzpatrick acknowledged that the recorder did not address the issue of jurisdiction to make the order, but submitted that a prospective appellant should first seek elaboration from the judge as to the jurisdictional basis for the decision. He further submitted that, in all the circumstances, including the fact that she was required by the order of 10th January 2014 to write a report as to each contact session, that the ISW was acting as an expert so that her remuneration fell within the court’s jurisdiction under Part 25 of the Family Procedure Rules. He further suggested that the court might think it a “grossly inequitable outcome” if the ISW were out of pocket as a result of the father’s non-payment or if NYAS, as a registered charity, felt obliged to reimburse the ISW from its income.
  • I have much sympathy with the recorder having to deal with this comparatively minor issue at the conclusion of another difficult hearing in these long-running proceedings which she has handled adroitly and sensitively. On this occasion, however, I consider that she fell into error. It seems that she was not addressed on the question of jurisdiction and it is not clear from her judgment exactly what jurisdiction she thought she was exercising. Her disapproving reference to the father taking on the role of a taxing master suggests that she proceeded on the basis that he was obliged to pay the invoice without demur. Given the father’s conduct throughout the proceedings, her approach was perhaps understandable but in my view mistaken. As the basis on which the ISW was to be remunerated was not precisely specified by the terms of her instruction, the father was entitled to challenge her invoice if he considered it excessive and, unless the dispute can be resolved by some other means, he is entitled to have his challenge judicially determined by a court with jurisdiction rather than summarily dismissed.
  • I reject the submission that the ISW was acting as a court-appointed expert. Although an ISW is capable of acting in that capacity, Ms Barrett was not doing so in this case. Accordingly, any power the family court may have under Part 25 to determine issues as to the payment of experts is irrelevant. S.11(7) of the Children Act provides inter alia that a section 8 order may contain directions about how it is to be carried into effect, impose conditions which must be complied with by any person in whose favour the order is made, or who is a parent of the child concerned, and make such incidental, supplemental or consequential provisions as the court thinks fit. The broad terms of this subsection enable a court to lay down precise and comprehensive terms concerning the payment of costs of supervising contact. That is indeed what the recorder did in her subsequent order of 14th November in which she not only fixed the number of hours for which the ISW could charge but also provided for payment in advance to avoid any further issue arising after the event. The earlier order of 10th January, however, whilst containing a number of details, did not specify precisely the hours to be taken on each item, and therefore left open the possibility of a dispute if the party responsible for paying the costs objected to the number of hours taken by the ISW. Although s.11(7) enables the court, when making an order for contact, to specify conditions as to payment of the costs of supervision, it does not in my judgment invest the court with jurisdiction to resolve a subsequent dispute about those costs, at least when the dispute is with a non-party.
  • I accept Mr. Rowbotham’s submission that the obligation to pay the ISW was contractual, but although this court was shown the letter of instruction, the information contained therein was insufficient to identify with confidence the terms of, or parties to, the contract. I also accept Mr. Rowbotham’s submission that the family court’s jurisdiction, as defined in s.31A of the Matrimonial and Family Proceedings Act 1984, and schedules 10 and 11 of the Crime and Courts Act 2013, is confined to family proceedings and does not include jurisdiction to resolve any contractual dispute involving a third party. If the contract was between the ISW and the father, such a dispute must be determined under the small claims procedure in the county court, unless resolved by agreement or alternative dispute resolution. In such circumstances, the family court would have no role to play. If, however, the contract was between the ISW and NYAS, then NYAS would be entitled to seek reimbursement from the father within the family court proceedings of sums paid in respect of the invoice by seeking to enforce the terms of the order of 10th January, at which point it would be open to the father to ask the court to reduce the sum payable by him to NYAS on the grounds that it was unreasonably high.
  • Accordingly, on this issue, I would grant permission to appeal and allow the appeal. Pursuant to CPR 52.10(2)(b), I would refer the matter back to the recorder for determination of the following issues: (1) the identity of the parties to, and terms of, the contract for the services of the ISW as contact supervisor pursuant to the order of 10th January 2014; (2) if the contract was between the ISW and NYAS, what order, if any, should be made by way of enforcement of the order, having regard to the father’s challenges to the invoice; (3) alternatively, whether the application for enforcement of the order should be stayed pending resolution of any contractual dispute. Given the small sum involved, it would be preferable, if possible, for any contractual claim and any application for enforcement of the order in the family court to be resolved by the same judge. On any view, however, it plainly makes sense for the parties and the ISW to attempt to resolve this issue by some means that avoids any further legal costs.

 

Whilst a Court order could stipulate payment to an ISW for supervision of contact under s11(7), if it is going to do so, it is going to need to stipulate in detail the exact sums to be paid and for what. If there ends up being a dispute about payment, the family Court don’t have jurisdiction to resolve that dispute. [Though it could be reserved to the same Judge, sitting with a different hat on, with a different application to resolve]

That could still end up being costly and protracted, so, if you are doing ISW contact supervision work, get paid up front.

 

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Can you compel a child to give evidence?

Posted on February 11, 2016 by suesspiciousminds

 

The Court of Appeal in Re S (children) 2016 consider this point of law, and whilst they say that they are explicitly not ruling on it, they do give the answer

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/83.html

During the appeal hearing, the question arose as to whether the judge could have compelled K to give evidence if she remained unwilling to do so. I am grateful to counsel for efficiently providing an agreed note of the legal position immediately following the hearing. As that note recognised, the question of whether a court can/should use its powers to issue a witness summons in relation to a reluctant child in family proceedings has not been considered by the Court of Appeal or the Supreme Court since the Supreme Court’s decision in Re W (supra). The present case was not one in which we needed to hear oral argument on the subject and I would not wish to be thought to be expressing any view about it. However, it may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000.

 

So

  1. If the child is competent  (rule of thumb here is going to be functioning at about the level of an average 13 year old, but there may be other factors which make an older child not competent or a younger one competent), then they are a compellable witness.
  2. A compellable witness can be made to attend Court to give evidence under a witness summons
  3. The protection against self-incrimination in s98 Children Act 1989  doesn’t apply to a child – so they would have to be warned about the risk of possible criminal proceedings arising from their evidence.
  4. However, the punishment for a person not obeying a witness summons (i.e what you do if they don’t turn up) are imprisonment or a fine.
  5. You can’t imprison a witness under 18 for not obeying a witness summons.
  6. That leaves you with a fine.  Unless the child witness is Richie Rich or Mustafa Millions, that doesn’t really help.
  7. So you CAN compel them, but you can’t actually do anything if they call your bluff.

 

That’s the legal interest in the case. Other than that, it is always worthy of note when the Court of Appeal split. The main issue here was that a 15 year old K, made allegations of sexual abuse and reported them to the police. There was then something of a backtracking when the police wanted to press charges. K did not want to press charges, she had wanted the abuse to stop. She said to the police that she was not retracting the allegations, but didn’t want charges to be pressed.  However, one police note of a conversation with K recorded that K said she had made the allegations up.  K then wrote two letters saying that she had made the allegations up and that things had got out of hand.

Those representing the alleged perpetrator in the family Court proceedings about K and her siblings understandably wanted K to be produced as a witness. A judicial decision was taken not to compel her attendance, and the Judge went on to make findings (including one which was supported by a medical but was explicitly not an allegation that K had ever made herself).  The findings and the case management decision were appealed.

All three of the Court of Appeal Judges said that the finding which was suggested by medical examination but had never been a claim that K had made had to be overturned. Two of the Judges held that the other findings were safe and should not be overturned. The third took the opposite view.

 

I will set out the minority view, which was not the decision of the Court of Appeal, because I think it contains some powerful arguments (even though they were not successful). For my part, I think it is very difficult to make findings of such a serious nature as sexual abuse when there are changes of position by the complainant, and letters of retraction, without hearing some direct evidence from the complainant. I think that the Judge worked very hard to make it as fair and balanced a judgment as possible, but I would have been with Lady Justice Gloster on this, I just don’t think that the findings can be considered safe in this context. The burden of proof is on the LA to prove that the abuse happened, not on the accused person to prove their innocence.  [Sometimes you do end up with cases where there are very strong suspicions but also doubts, and what tips the balance either way is the credibility of the complainant. If the accused person cannot properly test the complainant’s evidence, the right to fair trial is questionable, for me.]

 

Lady Justice Gloster:

 

  • It is with considerable diffidence that I disagree with views expressed by such experienced family judges as Lady Justice Black and HHJ Moir. This court is rightly very cautious about interfering with case management decisions and second-guessing findings of fact made at first instance by careful family judges. However this case has left me with a deep sense of unease, both in relation to the initial decision of HHJ Moir dated 16 September 2014 that K was not to give oral evidence in the finding of fact hearing and the judge’s subsequent fact-finding judgment dated 15 October 2014 (the order in relation to which is inappropriately described as a “case management order”) in which she held that the Appellant had indeed sexually abused his sister, K. That concern is aggravated by the fact that, as my Lady, Lady Justice Black, has held (and as I agree) there was no basis for HHJ Moir’s finding that the Appellant had anally abused K.
  • The critical features of this case may, in my judgment, be summarised as follows:

 

i) The single issue was whether the Appellant had abused K.ii) The case against the Appellant depended entirely on the veracity of K’s allegations.

iii) The burden of proof at all times was on the Local Authority to establish on the balance of probabilities that the abuse had occurred.

iv) There was no medical evidence of vaginal penetration, despite K’s repeated allegations that she had had full penetrative sex and that she was “no longer a virgin”. In this context the judge appears to have relied on what I regard as the somewhat ambivalent evidence of Dr Jones that “penetration through the hymen can occur without leaving any physical signs”; see paragraph 30 of the judgment.

v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety on the grounds that she had made them up (16 September 2013); see paragraphs 9 –13 above for the chronology. So those interviews contained no evidence about the reasons for her retractions.

vi) K frequently changed her mind as to whether she was prepared to give evidence. She informed her guardian that her allegations were untrue and that she wished to give evidence. Subsequently it appears that she changed her view and that she did not want to give evidence. Her guardian assessed her as a “mature young person who had the capacity and competence to give instructions.” The social worker who assessed described her as a “determined and strong willed individual who speaks her mind”, and also observed K as being “quite fragile in her presentation and lacking in self-esteem.”

vii) In deciding whether K should give evidence, the judge relied upon the opinion of K’s guardian and the social worker to the effect that:

“I do not feel that [K] is able to recognise any links to her self-reported frustration and anger with the coping strategies she may have adopted to deal with how she was feeling with her experiences of the current situation. I feel that she seeks to display a certain persona in order to ease her emotions while having built up a barrier up to others to cover how she is feeling.

….

I would not be in support of [K] giving direct evidence at the fact-finding hearing due to the concerns outlined above. I do not feel that she is emotionally able to deal with the impact that this could have on her. I feel [K] would struggle to manage in-depth questioning on the basis that giving direct evidence is to have her say and [inaudible]”.

viii) On any basis, the evidence of K’s guardian and the social worker as to K’s wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K’s evidence by the judge.

ix) As a result of the judge’s ruling that K would not be required to give evidence, or otherwise be subjected to any questioning as to why she had changed her mind, because of her so-called “vulnerability, a fragile presentation and her lack of self-esteem”, the reality was that the Appellant was deprived of any effective opportunity to challenge the veracity of K’s case.

x) The case was one of huge importance for the future life of the Appellant and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Article 6 of the European Convention of Human Rights (“the ECHR”) to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Article 8 to a family life.

 

  • In my judgment HHJ Moir’s case management decision dated 15 October 2014, in which she decided that K should not be called as a witness, failed in any adequate way to weigh up the two relevant considerations set out in Re W (Children) [2010] UKSC 12 namely: the advantages that a child giving evidence will bring to the determination of the truth; and the damage which it might do to the welfare of the child witness. In my judgment, there was no adequate medical, or indeed other, evidence, apart from the vague and dubious views of K’s guardian and the social worker, to support the conclusion that it would be so harmful for K to give evidence that she should not be asked to do so. Nor was there any adequate analysis by the judge as to why those concerns trumped the entitlement of the Appellant to question why she had retracted, or, at the least, to some extent resiled from, her previous allegations.
  • As to the first consideration, K was at the time of the fact-finding hearing 13 years and 10 months old and had no cognitive impairment. There was no reason on age and maturity grounds why she should not have been called as a witness. She had displayed as a person who was at least to some extent prepared to exert pressure on the authorities to force the outcome of the criminal proceedings. She clearly had differing attitudes at different times as to whether she wanted, or was prepared, to give evidence. She was a mature young person who had been described as a “determined and strong willed individual who speaks her mind”; see above. Her allegations were extremely serious. There was, in my judgment, no adequate consideration by the judge as to whether K should be required – and indeed whether it would be in K’s interests for her to be required – to give evidence, which either stood by her previous allegations, or which explained the circumstances in which she had resiled from them. Whilst, whether her allegations were true or false, it might well have been distressing or demanding for her to have given evidence, there was no psychiatric or psychological evidence to support the idea that it would have been mentally damaging for her to have given evidence. There was no consideration by the judge as to the advantages to K personally of facing up to the consequences of the allegations which she had made, whether they were true or false, or as to the disadvantages to her of being allowed to avoid responsibility for the consequences of her allegations by not being required to attend trial.
  • Moreover, it was extremely unclear whether K was an unwilling witness or not. She changed her mind frequently about wishing to give evidence in the months leading up to the judge’s ruling and had not been asked in the weeks prior to the ruling whether she would, in fact be prepared to give evidence (whether with or without special measures). Indeed it is significant that the final order dated 8 December 2014 recites the fact that K “would like to meet with the judge”, although the judge ruled that this could not take place until the proceedings were over.
  • In my view the judge was also wrong not to explore other ways in which K could have given evidence, apart from being subjected to cross-examination in open court in front of the Appellant and others. The fact that counsel for the Appellant did not raise the possibility of the judge questioning K in the presence of counsel, but in the absence of the parties, by reference to questions agreed in advance, does not seem to me to be a reason why the judge should not have given consideration to such an option or other alternative options. This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing.
  • As to the second consideration, in my judgment there was no adequate consideration by the judge of the impact on the Appellant’s case of the inability of his counsel to cross-examine K as to the allegations and her retraction of, or unwillingness to proceed with, them. The consequences for the Appellant, and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted. On any basis, in my judgment, he could not have had a fair trial in circumstances where the judge was able, in effect, to rely so heavily, if not exclusively, on the ABE interviews conducted before K sought to retract, or sought not to proceed with, her allegations.
  • For the above reasons, I would have allowed the appeal against the judge’s case management decision dated 16 September 2014. In my judgment the judge failed to appreciate that the critical issue was whether or not the Appellant could have had a fair trial without the ability of challenging K’s evidence in any realistic way. In my judgment the judge failed properly to apply the guidelines set down in Re W, which reflect the paramount consideration that a party should have a fair trial.
  • I should say that, so far as the evidence of the K’s two friends are concerned, such evidence was clearly hearsay and should have been afforded very little evidential weight, since, in all the circumstances, it could have provided very little corroborative support for K’s own evidence.
  • Likewise, for the above reasons, it seems to me that the judge’s conclusions in her fact-finding judgment dated 15 October 2014 are clearly open to serious doubt. I do not see how, in the absence of up-to-date evidence directly from K herself, as to the retraction and/or reluctance to proceed with her allegations, the judge was able to conclude that she could rely so heavily on the ABE interviews, or come to the conclusion, as set out in paragraphs 38-39 of the judgment, that K’s allegations were true and that her retraction had arisen partly because of pressure from her family, but largely because of her own feeling of responsibility for breaking up her family and her own strong desire to see her nephews. The inferences which the judge drew from the documentary evidence in my judgment cannot be supported in the absence of up-to-date direct evidence from K herself.
  • I also regard the judge’s analysis of the evidence of the Appellant as inadequate. There is no, or no adequate, explanation by the judge as to why she felt able to reject his evidence that the alleged abuse never took place.
  • In my judgment the judge failed to give proper consideration to the fact that the burden of proof lay on the Local Authority. She had no basis for concluding on the balance of probabilities that K’s serious allegations against the Appellant had been proved. In the absence of any opportunity afforded to the Appellant to challenge K’s evidence that was not a conclusion which I consider she was entitled to reach. In my judgment, the Appellant did not have a fair trial in accordance with his rights under Article 6 of the ECHR and, as a result, his Article 8 rights and those of his infant sons, have been seriously infringed.
  • I would allow the appeal and set aside the findings of HHJ Moir. I would rule that no findings adverse to the Appellant in relation to the allegations of sexual abuse could properly be made on the evidence available to the judge. But since Black and Vos LJJ consider that the appeal should be dismissed, that will be the order of this court.

 

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