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

Posted on February 26, 2016 by suesspiciousminds

 

Seriously? Seriously?

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

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

 

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

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

 

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

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

 

 

 

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Co-operation, camels and housing

Posted on February 25, 2016 by suesspiciousminds

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

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

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

Section 27  Co-operation between authorities

 

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

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

 

 

(3) The authorities are—

(a) any local authority;

(c) any local housing authority;…

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

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

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

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

M and A v London Borough of Islington 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

 

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

 

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

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

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

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

 

 

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

 

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

 

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

 

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

 

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

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

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

 

 

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Appeal about the transparency in the Poppi Worthington case

Posted on February 25, 2016 by suesspiciousminds

 

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

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

Re W Children 2016

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

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

 

 

 

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Court Supporter

Posted on February 25, 2016 by suesspiciousminds

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

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

The suggestion is “Court supporter”

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

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

 

Here are the details for responses

 

1.6 Consultation responses may be submitted by

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

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

 

The document itself is here

Click to access consultation-paper-mckenzie_friends_feb2016.pdf

 

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

Here are the ten questions they pose

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

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

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

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

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

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

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

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

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

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

 

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

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

(a) providing moral support;

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

(c) taking notes of the proceedings;

(d) advising the litigant quietly on—

(i) points of law and procedure;

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

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

 

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

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

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

 

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

 

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

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

O(5.1)

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

O(5.2)

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

O(5.3)

you comply with court orders which place obligations on you;

O(5.4)

you do not place yourself in contempt of court;

O(5.5)

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

O(5.6)

you comply with your duties to the court;

O(5.7)

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

O(5.8)

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

 

 

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

 

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

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

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

 

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

 

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

(a) a limited civil restraint order;

(b) an extended civil restraint order; or

(c) a general civil restraint order;

 

against:

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

or

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

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

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

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

 

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

 

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

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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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