Very superstitious, writing’s on the wall

Posted on July 20, 2015 by suesspiciousminds

Re R (fact finding) 2015  http://www.bailii.org/ew/cases/EWFC/OJ/2015/B95.html

May I pass my hearty congratulations on to Her Honour Judge Atkinson, who has conducted and reported a case which has allowed me to use a Stevie Wonder reference.   Any Judge who is keen to appear on these pages would have a good chance if they name their case Re A (Sir Duke) 2015….

 

Also, it is a case where the Judge’s summary of the legal principles on a finding of fact hearing is done impeccably and with brevity and verve.  I will be lifting this for months to come, and I commend it to others.    [It borrows heavily from Re BR, which is also a thing of beauty. https://suesspiciousminds.com/2015/05/21/proof-of-facts-high-court-guidance-on-disputed-injuries/   ]

 

Look upon her works, ye mighty and erm, hit Ctrl C then Ctrl V  :-

 

  1. The Law
  2. The local authority brings this case and it is for the local authority to prove the facts. The standard of proof is the balance of probabilities: I have to be satisfied that it is more likely than not that the event occurred. It is as simple as that. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. To quote Jackson J: Re BR (Proof of Facts)[2015] EWFC 41

    ” It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.”

  3. Evidence comes in many forms and in my discretion the different forms of evidence will be more or less persuasive. In this case there has been evidence from experts and from lay parties. There is no magic in the evidence of an expert. All witnesses come to the witness box as equals. They may not leave as equals but that is a matter for me to assess. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence.
  4. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility. Each piece of evidence must be considered in the context of the whole.
  5. Whilst it is not for the parents to provide an explanation as to the possible causes of any injuries, there are situations in which the medical and other evidence points to the fact that the absence of any explanation is of significance. To quote Jackson J again (Re BR supra): “It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof………. Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.”
  6. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).
  7. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849). In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).

 

 

 

Seriously, if you set up a competition to set out the legal principles involving physical injuries, I’d be very impressed if anyone could beat this entry.

 

Anyway, on to the superstition bit.

 

Things hadn’t started well for the family when they moved into new accommodation, that had been previously occupied by others.

 

There has been evidence from each of the parents that on the blinds in the bedroom it looked as if the word “hell” or possibly “help” had been written. The mother joked about it being a sign of something bad in the house. The father undoubtedly found it unsettling.

 

[okay, the writing was on the blinds, not on the wall, but the case is about superstition, and writing being on something… I’ve been far more tenuous in the past, and will be in the future]

One of the features in the case was the father’s superstitions and his belief in ‘bad spirits’   (and explicitly whether this was an indicator that of the two parents, he was the one responsible for the injuries to the child)

 

  1. The concerns expressed regarding father’s belief in “bad spirits”
  2. A major part of his evidence was directed towards the issue of his religious beliefs. This part of the evidence has troubled others more than it has me. I note that even the Guardian alerted the parenting assessors to his belief in “evil spirits”. It was put to him from early on in his evidence that he had told the police in his interview that he believed his son to be occupied or possessed by the devil/ an evil spirit. This has caused some to insist that he has a possible mental health issue. There is no other evidential basis for this assertion.
  3. I have found this young man to be completely open and frank about his religious beliefs and from where they emanate. He has been brought up by a mother whose religious beliefs might be considered by some to border on “superstition”. However, when you peel it back and give him the opportunity to explain I have found nothing concerning in his views.
  4. I am quite satisfied that what he was seeking to explain in his police interview and in his evidence before me was a strongly held belief that something other worldly and possibly disruptive, evil if you like, bringing bad luck could be warded off through prayer. There is nothing unusual in such a belief. Many mainstream Christian faiths have their homes blessed by a priest before occupying. Other faiths have prayers written on paper rolled up into a container and nailed above the door to keep their home safe. The crucifix over the entry to the home. The blessing of a baby by a practising catholic before christening lest anything untoward might happen. Crossing your fingers. In my judgment these are all examples of the same thing.
  5. He denies that he has been accurately reported by the SW. I have not heard the evidence of the SW – it has not been necessary but I am prepared to believe that even if it she accurately recorded what she believed he was saying it was misunderstood and I am prepared to believe that because of the reaction I have seen to this subject – the excitement that is has caused – just in this hearing.
  6. In his interview with the police he was questioned for 3 ½ hours without a legal representative. He is led by the officer questioning him on many of these issues such that it is not clear what he might have volunteered. He didn’t have a chance. I am afraid that I consider that he has not been given the chance to explain himself to his partner and her family either. I think it entirely possible that in this case everyone has been looking for an explanation as to how this baby has suffered such significant injuries in the care of a couple about which there have been no contra-indications to date. As a result, those investigating seem to have been prepared to latch onto anything apparently unusual. In my view this issue about extreme religious beliefs is a red herring.

 

The Court did make findings that the injuries were caused by one of the parents, but that there was not sufficient evidence to identify which or exclude either of them.

 

 

To finish off I am going to indulge myself and you, with some of the greatest songs ever   [waves at Camilla Wells from 1 Crown Office Row]:-

 

 

 

 

 

 

 

2 Comments

Posted in assessment of risk, case law, fact finding and tagged , , , , , , , , . Bookmark the permalink.

Has the adoption case law made any difference in your Courts?

Posted on July 17, 2015 by suesspiciousminds

 

 

I don’t pretend that this is scientific – given that it is on a law geek website, it is only going to get voters who actually know about Re B, Re B-S et al, whereas I know from training that I give around the country that substantial volumes of social workers have been told nothing about it.

 

But I thought that a poll might help to identify a broad trend. I have my own answer, but I’m sure that my answer must be coloured by my own local experience.

In voting, please vote for what you are actually seeing in your local Courts – it isn’t meant to be a vote about what you think OUGHT to be happening.  It is open to everyone, not just lawyers and social workers.  (It is probably easier for people who were dealing with these cases both now and before Sept 2013, but I’m not excluding anyone)

If you want to disseminate the poll more widely, to other colleagues, or to local solicitors or social workers or Guardians, that’s fine. The more people who respond, the more useful an indicator it might be.

 

 

[It is my first try at a poll on the blog, so bear with me if there are teething problems]

11 Comments

Posted in adoption, case law and tagged , . Bookmark the permalink.

IS v Director of Legal Services 2015

Posted on July 16, 2015 by suesspiciousminds

Many other people will be writing about this case, but I’ll just give the bit for the family lawyers and Court of Protection lawyers (since it touches on capacity cases). Really important for the battles that have been fought since LASPO to say that it is being interpreted by the Legal Aid Agency in a way that, as Mostyn J put it

 

“sacrifices individual justice on the altar of public debt”

 

[which is approvingly cited in the case. Hell yeah]

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/1965.html

 

This is of course, the case about whether the Legal Aid Agency were properly using their discretion on granting public funding for cases where to represent yourself would put you in a position where your human rights would be breached, i.e section 10 LASPO. The LAA lost. They intend to appeal.

 

The really important bit for family law cases is paragraph 40

 

 

It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

 

You can’t really have a much clearer message than that to say that the low rate of s10 LASPO public funding applications being granted, and the tests and guidance being applied by the LAA are wrong. Scandalously wrong.

 

Paragraph 80 also good  – that the process of making an application is made unnecessarily difficult, and this, combined with the poor success rate has had the obvious effect of discouraging such applications from being made.

 

The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients who need to apply for ECF. The scheme is not properly providing the safety net which s.10 is supposed to provide. It is to be noted that it was anticipated that some 5,000 to 7,000 applications would be made in a year. The actual rate was a fraction of that. The defendants say that the figures they relied on were only estimates for planning purposes. In a letter of 20 August 2013 the MoJ stated that the figures were based on the number of grants estimated in the LASPO consultation exercise, namely 3,700. It is significant that the scheme has not produced anything like that number of grants, let alone applications. Furthermore, as the OS has indicated and a number of applications dealt with in the statements confirm, the hurdle erected for those who lack capacity is far too high. Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended.

 

 

And final flurry of killer blows

  1. As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
  2. The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
  3. As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.

 

 

I don’t know about you, but I find  something shameful about a Ministry of Justice being condemned by a Court for their part in devising a scheme that deprived individuals of justice in order to assauge public debt. And similarly something shameful that a body whose job it is to ensure that people have access to legal representation and advice going out of their way to prevent them getting it.

But then, these are bodies who in their response to the criticisms laid against them by the Justice Select Committee of Parliament with comments like  “The Court did not rule that our policy was wholly unlawful” as though that was something that a Ministry of Justice should actually boast about.

 

Which reminds me rather of Steve Coogan’s pool attendant from the Day Today

 

 

7 Comments

Posted in case law, costs and tagged , , , , , , , . Bookmark the permalink.

Irn Brouhaha

Posted on July 16, 2015 by suesspiciousminds

 

I apologise to any readers north of the border for that dreadful gag.

 

Re M 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/2082.html

 

The quick summary on this was “mother applies to discharge care order and in the alternative for more contact” so I wasn’t expecting much out of the case when I opened it up. But then I saw four Silks in the case and I thought “oh hello”

 

In very brief summary, His Honour Judge Dowse made findings that a father (F1) had sexually abused a child. The mother’s resistance to accepting those findings and her continuance of a relationship with father led to a series of care proceedings, ending up with seven children being permanently placed away from the mother.  The oldest C1 is subject to a Freeing Order but has not been adopted, the next oldest C2 is placed with an aunt, C3-C7 have all been adopted.

 

And then there is child C8, who is presently living with mother and her new husband (F2) in Scotland, under no orders.

This is the Irn-Brouhaha  –  the Scottish equivalent of care proceedings was brought in Scotland in relation to child C8 and the Court there concluded that there had not been any sexual abuse, and thus no failure to protect.

That was all well and good for the mother and C8, but raised obvious questions of what should happen with child C1 and C2.  If a Court rules that there was no abuse and there is no risk, should they come home?

 

As you may know, I am no admirer of the 350 page limitation, so I had to smile at this particular line from Hayden J

So scrupulously have the documents been pared down for the application before me, in compliance with the President’s Guidance, that it is not possible to track the evolution of these proceedings clearly from the papers filed.

 

 

The big argument for the case was therefore – what legal status does the Scottish judgment on C8 and the sexual abuse allegations have on the English Courts dealing with C1 and C2?

 

  1. In the course of the proceedings in Scotland the Court was persuaded to re-open the findings of HHJ Dowse. At the conclusion of the Scottish hearing, before Sheriff O’Carroll, the court reached a very different conclusion. In his judgment of the 30th October 2013 the Sheriff found that he was unable, on the evidence before him, to find that the Reporter (whose status is similar to that of the Local Authority in England) had discharged the burden of proving, to the civil standard, that M and F1 had been involved in the sexual abuse of any of their children. The allegations, on this aspect of the case, had been placed before the Scottish Court in this way:

    “2. On various occasions between 22 February 1998 and 1 October 2005, at various addresses in the north of England, exact addresses meantime unknown, M and F1 caused C1, C3 and C4 (who were all under the age of thirteen at the relevant times) to participate in sexual activity and caused them to touch, with their hands or their mouths, the genitals, anus and breasts of M and the penis of F1.

    3. Statement of fact 2 demonstrates that M committed an act of lewd and libidinous practices and behaviour. This an offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995.”

  2. In respect of these allegations the Sheriff stated in his judgment:

    “320. […] However, I am unable on the evidence before me to find that the reporter has discharged the burden of proving to the civil standard that statement of fact 2 is proved. It follows that SoF 3 is not proved.”

    By contrast Judge Dowse found:

    “Both parents were involved in explicit and inappropriate sexual behaviour with C1, C4 and C3 and neither protected the children from the other.”

     

 

It is always curious to see how wording differs in other countries – the ‘lewd and libidinous’ adds something here, I think.

 

Non lawyers may not be aware that Scotland has an entirely separate legal system to England and Wales – the statutes are different, the process is different and they have their own case law. The only time that the cases cross over is when the Supreme Court has to decide a case, when the Supreme Court (which is full of English Judges) has to apply Scottish law to the case and reach a decision.  This means establishing whether the Scottish judgment has any legal weight is not a simple task.

 

 

25. Mr Tyler and Mr Booth have drawn my attention to: Stare Decisis and Scottish Judicial Decisions, J.K. Bentil, [1972] Modern Law Review 537. They adopt the analysis of the legal status of Scottish judgments on the law in England and Wales set out in that paper:

    1. “Apart from the fact that some Scottish judicial decisions which go on appeal to the House of Lords may create binding precedents for the English Courts, the effect on English courts of certain Scottish judicial decisions in their own right appears to have received little or no attention this side of the border. Theory has it that generally Scottish judicial decisions are not binding on the English courts but have persuasive effect only. But in actual practice, the weight of authority on this side of the border tends to suggest that certain Scottish judicial decisions, notably those concerned with the interpretation of statutes of common application on both sides of the border, are indeed binding on English courts.”

The ultimate conclusion reached is as set out in paragraph 20 of their Skeleton Argument:

“Although we cannot assert the Sheriff’s judgment to have a formal (in the sense of automatically enforceable) status, it is clear that it has some status, or perhaps better worded, a ‘real significance’.”      

 

 

 

 

 

 

 

I always dread to type the words Brussels II  in a blog post, but I have to.  (It always makes me think of Stephen Hawking’s publisher telling him that every equation in “A Brief History of Time” would cut sales in half. He only actually used one, in the final version)

Very briefly, if the Scottish judgment here had been in Lithuania, or France, or Portugal, the English Court would have to take it into account, and of course, mother could argue that under article 15 the case ought to be dealt with entirely by Scotland.  but Brussels II specifically does not apply to cases between England and Scotland.

In Re PC, YC & KM (Brussels II R: Jurisdiction Within the United Kingdom) [2014] 1 FLR 605 Baker J observed at para 16:

“It is widely recognised that the provisions governing conflicts of jurisdiction in children’s cases within the UK are, in the words of Thorpe LJ in Re W-B, supra, at paragraph 29, “difficult and complicated.” He was referring in particular to the provisions of the Family Law Act 1986, but as Miss Green has demonstrated, there is similar difficulty and uncertainty as to the applicability of BIIR to the allocation of jurisdiction within the UK.”

Nonetheless he went on to conclude at para 18:

“Given the clear view expressed emphatically by the Court of Appeal very recently in Re W-B, I reject Miss Green’s submissions and adopt the orthodox view that BIIR does not apply to jurisdictional disputes or issues arising between the different jurisdictions of the United Kingdom. Article 15 could not, therefore, be used to transfer these proceedings from England to Scotland.”

 

So the nutshell answer, after four QCs have sweated over it and a High Court Judge have looked at it is, “the Court don’t HAVE to consider it, but probably best not to just ignore it”

We then get into the law on re-opening cases.

Hayden J sets out all of that law very beautifully, but I think that I will cut to the chase, which is Lady Hale’s line In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11.”  about situations in which a party wants to challenge findings that had been made by an earlier Court.

“In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”

But also

    1. “(a) that there is a public interest in an end to litigation – the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; [1997] 1 FLR Hale J Re B (CA Proceedings) (Issue Estoppel) (FD) 295”
    1. (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but
    1. (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and
    1. (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 947, ‘must be applied so as to work justice and not injustice’.
  1. In a further passage that I find has particular resonance to the issues in this case Hale J observes:

    “(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone.”

     

It is ultimately a matter of Court discretion to decide whether to re-open previous findings, but a Court is allowed to consider that there’s limited value in re-running the case unless there’s a decent chance of arriving at a different outcome.

Of course here, we have two judgments, in different countries, which reach diametrically opposite conclusions. That led to some of the barristers having to argue that the Scottish judgment was an exemplar model of the way these things should be done and that HH J Dowse’s judgment was so flawed it ought to have been appealed anyway  (so the Scottish judgment is so superior it establishes a reason for re-hearing) and others having to argue that they were merely Judges reaching different conclusions.

I myself rather liked Mr Howe QC’s approach for the Guardian  (but the Judge did not)

  1. Mr Howe QC, on behalf of the children, engages with these factors in a rather different way and comes to the following conclusion:

    “The Guardian has taken into account the impact on C1 of the court concluding that the allegations were not proved but on balance, and for the reasons given, it is submitted that the balance falls in favour of the court permitting some reconsideration of the findings made by HHJ Dowse on 17th October 2007.”

  2. Mr Howe also submits:

    “the weight to be attached to the Scottish judgment does not arise from any assessment of its merit as an expression of the forensic exercise undertaken. The weight of the Scottish judgment is in its effect. Looking at these circumstances from C1’s perspective, it would be incomprehensible to her that the English court did not ‘think again’ and reconsider, not necessarily overturn, but at least take another look at the allegations given what was found in the Scottish court and how the findings there have enabled a relationship between C8 and M and F2 that, on the evidence before this court, appears to be entirely appropriate and beneficial for him.”

  3. Finally, Mr Howe comments:

    “It is submitted that C2 has to be granted the possibility of some relationship with her sibling and mother by the court agreeing to reconsider the previous findings.”

     

I know that not everyone is fluent in Elegant, so to translate  “It is really important for these children to get to the truth, whatever that might be, and whichever of these judgments is right the fact that they directly contradict each other means that at the moment there is doubt, which can only be eradicated by a re-hearing”

[I  agree with Mr Howe QC here. But as I told you, the Judge did not.  And he was not shy about saying so]

  1. It is self-evident that the interests of neither child is served by an erroneous determination of fact. Such a statement is platitudinous out of context. More than that it can be a dangerous, siren call unless it is considered carefully alongside the other features identified by Hale J in Re B. It is important to recognise that the factors she there identifies are inevitably interrelated. Thus: the insidious dangers of delay have to be considered alongside the more obvious damage caused by erroneous findings of fact. These tensions are notoriously difficult to reconcile and are ever present in family law.
  2. As the President identifies in ZZ (supra), the court’s discretion has to be applied so as to work ‘justice and not injustice’ and so the starting point is, again as he identifies, whether there is ‘some real reason to believe that the earlier findings require revisiting’. That seems, to my mind, to resonate closely with the observations of Hale J: ‘whether there is any new evidence or information casting doubt on the original findings’ (Re B supra). With respect to the Guardian, her views as to the value to C2 of ‘having another look’ lose focus on these important principles and fail to give sufficient weight to the real impact on these children of once again re-opening litigation, which itself may fail to resolve the present situation.
  3. Moreover, I am not prepared to draw the inference, suggested by Mr Howe, that because C1 instigated a further interview, following the Scottish Judgment, she therefore should be taken as signaling a willingness to participate in further litigation. She does not know, for example, what the reach of further litigation might be, nor does she yet have the maturity to understand what its impact on her could be. Before concluding that an issue should be reheard there must really be a substantial reason to believe that further litigation will achieve some clarity. In the light of my view of the validity of each of the respective judgments and finding myself un-persuaded that there are any other solid grounds for believing that a rehearing will result in any clarification of the present position , I can see no basis upon which to grant the application for a rehearing of the English proceedings.

 

[There is a lot in the judgment about a factual comparison between the judgments, and the basis on which the Scottish courts reached a different conclusion. I’m afraid that you would need to read that to fully grasp why on the facts the Judge felt that a re-hearing of the allegations was unlikely to reach a different result.  In very brief terms there were two major issues – that the Scottish Courts had relied on an expert doing something like a ‘veracity’ assessment which is out of favour here and the issues that came up in it were things that HH Judge Dowse had taken into account anyway, and that reliance had been placed on the children saying different things in an ABE interview done years later and the Court felt that this was not unexpected.   I wouldn’t say that I end up wholly agreeing with the conclusions, but because the decision here is largely fact-specific, you do need to read those sections to form your own conclusion about whether the Judge here was right. ]

And finally – wider interest

    1. Finally, I very much regret the delay involved in delivering this judgment. The case provides a powerful reminder of the consequences that ensue when the advocates fail to allow sufficient time in their estimates of hearing for a judge to write and deliver a judgment. The provision of one day to write this judgment is, I hope, self evidently inadequate. All counsel must regard it as a professional obligation to factor time for the judge to write and deliver a judgment into their time estimates. This is a professional duty which should be seen as a facet of the requirement to avoid delay in proceedings concerning the welfare of a child. I take the opportunity here to highlight a pervasive problem which requires to be addressed more widely.

 

It must certainly be the case that a judgment which requires a Judge to look at the intersection of Scottish and English law, Brussels II and all the law on issue estoppel was foreseeably going to take more than a day to write.   I wonder how in a more normal case, counsel are to arrive at a time estimate for a Judge to write the judgment, presumably at IRH so that time can be allocated within the Court listing for the final hearing    (Those advocates who feel the case is a slam-dunk are likely to be estimating 2-3 hours, those who are hoping to persuade the Court that the case is finely balanced before tipping in their favour are likely to be estimating 2 days so that the Court can see that this is a really tricky case which will need very long thought)

1 Comment

Posted in case law, international, welfare of the bundle and tagged , , , , , , , , , , , . Bookmark the permalink.

Not being allowed to see an expert report

Posted on July 15, 2015 by suesspiciousminds

 

I’ve read this case half-a-dozen times now, and I still don’t entirely get it.

 

NCC v AH and DH 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4845.html

 

Dramatis personae

 

NCC is the Local Authority.   (It isn’t a very cryptic disguise of whom they might be)

AH is a woman, who has some mental health problems and for a time was considered to lack capacity and be a person at risk from :-

 

DH her husband.

 

The application

(a) an application by DH for disclosure to him of any reports and/or letters by Dr. McInerney and the report of Dr. Khouja dated 29th July 2011;

(b) an application by AH for disclosure to her of the said reports and of her Social Services records (it being acknowledged by all parties that she would share them with DH); and

(c) applications by AH and DH for their costs, or a proportion thereof, incurred in both sets of proceedings to be paid by the local authority.

These applications arise from a set of proceedings under the Inherent Jurisdiction and a set of proceedings under the Mental Capacity Act in the Court of Protection.  Both seem to have arisen because AH made allegations about her husband’s behaviour towards her which were believed (but which appear to have been more a result of her mental health problems).   NCC considered that AH was a woman that they owed duties towards, as a result of Re Z (Local Authority: Duty) [2005] 1FLR 740, especially at para.19.

 

In my judgment in a case such as this the local authority incurred the following duties:

i) To investigate the position of a vulnerable adult to consider what was her true position and intention;ii) To consider whether she was legally competent to make and carry out her decision and intention;

iii) To consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

iv) To consider whether she was legally competent to make and carry out her decision andintention;

v) To consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

vi) In the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

vii) In the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

viii) Where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

ix) In very exceptional circumstances, to invoke the jurisdiction of the court under Section 222 of the 1972 Act

 

 

A psychiatric report was directed in those proceedings, from a Dr McInerney. It appears that within the proceedings, the Official Solicitor (on behalf of AH) and Local Authority, took the view that the Court should take the unusual step of not disclosing that report to DH, on the basis that there were things AH had said about his behaviour which might put her at risk if DH were to see it.  [That’s quite unusual, we’ll come back to it later]

The Official Solicitor and LA also told the Court that they did not rely on Dr McInerney’s report and wanted a second opinion, from a Dr Khouja.  DH  of course, had not seen it, so it was rather hard for him to say whether he did seek to rely on it, or whether a second opinion was necessary.  (One can make an informed guess that if it said things that the LA and OS agreed with, they wouldn’t have been asking for a second opinion, so DH would probably have agreed with what was said)

[It is also worth noting that DH had to pay a share of the costs of Dr McInerney’s report, although he never got to see it or know what it said. He didn’t have to pay a share of the costs of Dr Khouja’s report]

Dr Khouja was directed to file two reports, one on capacity (which DH DID get to see) and one”considering the recent Social Services assessment of AH, and he may also include in that supplementary report, any matter or opinion which he would wish to report upon, but he is of the view should be withheld from DH pending judicial determination of any disclosure issues.”  which DH didn’t get to see.

Dr. Khouja concluded that AH did not lack capacity in respect of any of the matters which he had been instructed to assess. This led to Bodey J’s order of 11th November 2011. By consent, NCC were given permission to withdraw both sets of proceedings. The Official Solicitor was discharged as litigation friend to AH although he remained as an interested party for the purposes of the disclosure application.

 

So, the proceedings were withdrawn, because AH had capacity to make her own decisions about whether she wanted to be with DH or not, and it wasn’t the role of the State to intervene on her behalf.

DH, having gone through all of this and having had to pay for all of his own legal costs, was understandably unhappy, and wanted to make a series of complaints about what had happened.  In order to inform his complaints and no doubt to bolster them, he wanted to see both of the expert reports that had been withheld from him. And he was also asking that some of his costs be paid.

 

Law on non-disclosure

 

The law is that generally, a document filed at Court should be seen by all parties, and the burden is on the party seeking non-disclosure to establish why that general rule should not be followed.

The substantive law is set out in the House of Lords case of Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 [1995] 2 FLR 687. The test is:

“(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party…

(2) … the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

(4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

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

[Although Re D here deals with a child, the principles are much the same. The argument was that disclosing to DH an expert report in which AH was presumably making allegations to the expert about abuse might put her at risk.  The counter argument to that is that as a consequence of these proceedings, DH might have to live apart from his wife as a result of such allegations but they were being made in a way that concealed from him what they were.  ]

Moylan J’s judgment does not really deal with this, although to be fair, the decision to not disclose the documents at that earlier stage had already been taken and presumably there is a judgment weighing up those factors at that time.  Instead, he looks at the duty of disclosure being that the documents are disclosed in order to allow a person to participate effectively in the hearing  –  in order to have a fair trial.

  1. Turning now to the legal framework, the expert evidence in this case was obtained for the purposes of these proceedings and pursuant to court orders. The court has power to provide to whom such evidence is to be disclosed and to whom it is not to be disclosed, including a party to the proceedings: see, for example, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.
  2. The experts overriding duty is to the court. Both proceedings in this case were heard in private. The reports are, therefore, confidential to the court, as described by Sir Nicholas Wall, President, in A County Council v. SB, MA & AA [2011] 1FLR 651. At para.34, he said:

    “In my judgment, ‘confidentiality’ in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court’s permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court”.

  3. As a result of being confidential to the court, and to the proceedings, a report cannot be used by any party for any collateral purpose or purpose unconnected with the proceedings without permission from the court. There are a significant number of cases which address the factors which the court will take into account when deciding whether to give such permission.
    1. Turning now to disclosure, the general rule is that a party is entitled to the disclosure of all evidence which any party proposes to adduce to the court. As Lord Dyson said in Al Rawi & Ors. v. The Security Service & Ors. (Justice & Ors. Intervening) [2012] 1 AC 531, at para.12:
      1. “Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance”.
    6. It can be seen from this passage that disclosure is made for the purposes of the proceedings and to ensure that any trial is fair.

 

But of course we know that during the proceedings, those documents were kept from DH. There were allegations being made about him that he was kept in the dark about.  When it emerged that AH had capacity, and wanted to remain in a relationship with DH, the proceedings were withdrawn.

Should he now be entitled to see those reports?   (after all, they are about AH, and she has capacity to say whether she wants him to have them – and she does)

  1. Given the determination of the substantive proceedings, I can identify no grounds on which disclosure of the reports should be ordered. They were prepared for the purposes of the proceedings. They were not disclosed to DH and AH pursuant to orders made during the course of those proceedings. There is no freestanding entitlement to disclosure once proceedings have concluded. Disclosure is part of the process by which the court ensures that a fair trial is effected. It is self-evident that, following the determination of proceedings, disclosure of evidence is no longer required for the purposes of the proceedings or in order to effect a fair trial.
  2. It is self-evident in this case that disclosure can no longer be sought for the purposes referred to in DH’s Solicitor’s letter of 18th March 2010, namely to enable the evidence to be tested within the proceedings. Rather, disclosure is sought by DH and AH for collateral purposes, namely to challenge, what they refer to as, the “toxic” comments in the reports. This, they contend, is necessary to enable them to clear their names. They also want to report Dr. McInerney to the GMC, and possibly to take libel proceedings.
  3. None of these appear to me to provide, in the circumstances of this case, any ground for ordering disclosure. I cannot envisage any court giving permission to DH and/or AH to use the reports for the purposes of any such step. Now that the proceedings are at an end, there is no justification in seeking to challenge the contents of reports prepared for, and only for, the proceedings. I can, therefore, see no basis on which DH and/or AH could now successfully seek to challenge the orders made during the course of the proceedings.

 

That seems to me to be a rather curious way of looking at things. It ought not to matter what DH wants to do with the documents, and whether you think he ought not to do it. This was a report about AH, and we now know that she has capacity to decide for herself whether she wants it to remain confidential or whether she wants her husband to see it, and she does.  I can see that the Court approach is to draw a line under the proceedings and for everyone to move on and forget the whole thing, but once AH has capacity, she is no longer a vulnerable person who needs the protection of the Court. The decision not to disclose the reports at the time were taken in the context that it was believed that she lacked capacity and needed that protection.

The next bit is even more suprising.

Finally, given the clear risk of satellite litigation, I propose to order that neither the Official Solicitor nor the solicitors instructed by the Official Solicitor should disclose the non-disclosed documents or the Social Services records, insofar as they have them, to AH. If this were to happen, it would undermine the effect of my judgment and proposed order.

 

Well, it makes sense. The Court order could easily be circumvented by a subject access request under the Data Protection Act 1998, for disclosure of the records that are held about AH and DH.  This is, however, the Court making an order that a Local Authority need not comply with their statutory obligations under primary legislation if a request were made.  Not only that, it is an order about primary legislation where the first port of call in a dispute or challenge is not actually the Court but to the Information Commissioner.  Does the Court even have jurisdiction to do this?

 

[Well, of course the answer to that is going to be that the original application was under the inherent jurisdiction, and we can all chant the answer “the powers are theoretically limitless”]

 

I can’t actually establish under the DPA what section you would use to refuse a section 7 request.  It doesn’t fit any of the non-disclosure provisions in Schedule 7 of the Act.

 

My best argument would be that in making that order, the Court has effectively determined (though without giving a judgment as to why) that this is satisfied

The Data Protection (Subject Access Modification) (Social Work) Order

2000:

this provides that personal data held for the purposes of social work

are exempt from the subject access provisions, where the disclosure to the

data subject would be likely to prejudice the carrying out of social work, by

causing serious harm to the physical or mental health, or condition, of the

data subject, or another person.

 

For law geeks, there’s a really obvious way of getting the reports, but obviously it would be wrong of me to spell it out here.

 

You won’t be surprised, having read the rest of this, that Moylan J didn’t allow the application by DH for costs.

 

  1. Turning next to the issue of costs, I am satisfied on the evidence that AH was given no assurance that her costs prior to the appointment of the Official Solicitor would be paid. I accept the evidence of Ms. Hardman and Mrs. Ord to that effect, which is supported by the records produced from AH’s own solicitors. Additionally, AH herself says that she was not in a fit state at the relevant time and was not taking things in.
  2. Secondly, in respect of proceedings in the Court of Protection, I can identify no justification for departing from the general rule that there should be no order as to costs. There is nothing in NCC’s conduct which would justify my departing from that rule. The proceedings have concluded without any determination. I am satisfied that NCC have acted properly throughout, in accordance with their obligations. There is no point at which they should have decided, as submitted by DH and AH, to discontinue the proceedings earlier than they did, namely following the receipt of Dr. Khouja’s report.
  3. I am also not persuaded that I should make any separate order in respect of Dr. Khouja’s costs. These were part of the costs of the proceedings to which the general rule applies.
  4. Thirdly, in respect of the costs of the proceedings under the inherent jurisdiction, I am also persuaded that NCC acted properly throughout in bringing the proceedings, in that, in so doing, they were acting in accordance with their obligations in respect of vulnerable adults. As the letter from DH’s solicitor dated 18th March 2010 makes clear, it was accepted that AH had said things to social workers which would lead professionals to have concerns. The letter specifically states that:

    “Our client accepts that the premise of the proceedings is that the local authority believes that his wife’s descriptions of how he has treated her may be true”.

    I can identify no point at which NCC should have decided to discontinue those proceedings earlier than when they did.

 

Thus DH had to pay for legal representation, in order for NCC to go to Court and argue that his wife lacked capacity and needed protecting from him, even though it turned out in the end that she didn’t, and had to pay for a share of an expert report (which probably would have helped his case if he’d seen it) which he wasn’t allowed to see and will never see. The whole of this case was based on allegations which he hasn’t seen and none of which were proved.

 

This one is probably far too legally complex for our friend over at the Telegraph, but it certainly is one that might warrant the “Kafka-esque” label that he routinely affixes to cases.

9 Comments

Posted in adult social care, case law, court of protection, inherent jurisdiction and tagged , , , , , , , , . Bookmark the permalink.

Martin Narey’s response

Posted on July 14, 2015 by suesspiciousminds

I wrote recently about Mr Narey’s speech to the Association of Directors of Children’s Services. He has put up a response to my response.

In order to stop us getting into an infinite regress of responses to responses, I won’t do a detailed reply.

Here is his response

 

Very very quick points

1. He didn’t have to do a response – I’m a very tiny fish and he swims in a proper pond with proper grown-up fish (and maybe some sharks), so respect to him for taking the time. And he did it with flair and humour, so fair play to him.

2. I think that we probably agree about more than you might think   (Adoption is the right outcome for some children, and if people are interpreting the case law of the last two years to mean that adoption is never right for any child, they’re wrong; and if the Court does make a Placement Order it is a disgrace for children to wait so long for a family and that needs fixing)

3.  I don’t think we’ll agree on what the law of the last two years is actually saying, but that’s okay.  Probably if you put ten lawyers in a room and ask them something you’d get eleven different opinions.

4. I think he accidentally puts a ‘not’ in when he’s quoting me here :- a lawyers’ job is to give advice but take instructions.

5.  I’m of course not privy to the conversations and discussions that have taken place between Mr Narey and the President. Those things are between themselves. I can only go on what the President has said in public, and there are two major sources there – firstly, his press conference where he accepted that there was a tension between the line the judiciary were taking on adoption (emphasising the nothing else will do) and the line that the Government was taking (emphasising that adoption should not be seen as a last resort) leaving Local Authorities caught in the middle and secondly his coda to Re R which can only be read as saying that the judiciary were not endorsing the Myth-Busting document.

 

I would genuinely like his views on the decisions since December 2014 that have moved children from prospective adopters to members of the birth family. Those are unprecedented developments, and I find it hard to think that it is coincidence that we had no such judgments from 1976 to December 2014 and four since then.  I do honestly worry about these decisions. I think that it puts prospective adopters in a scenario that they never ever wanted to be in  – a court battle fighting about where a child should live; it puts the child in a dreadful situation where they have been settled into a new home and then moved, and it puts the family in a position where the child has been placed with adopters and then returns to them and nobody can really predict the longer term impact or what support they need.  I’ve represented prospective adopters in my time, and the idea of Court always terrified them, even when you were able to reassure them that no Judge was ever going to take the child away from them.

 

 

 

21 Comments

Posted in adoption. Bookmark the permalink.

Deprivation mmmmeltdown

Posted on July 13, 2015 by suesspiciousminds

 

The case of MOD & Others (Deprivation of Liberty) 2015   http://www.bailii.org/ew/cases/EWCOP/2015/47.html   involved nine unrelated cases where Local Authorities were seeking test cases under the President’s new scheme for ‘fast-tracking’ Deprivation of Liberty authorisations.

 

You may recall that the Court of Appeal dealt with the President’s scheme as it was laid out in Re X  (saying that he did not have the power to do this in a judgment, but as it wasn’t really a judgment they had no jurisdiction to overturn it on appeal, but that in any event, a scheme which didn’t include a voice for P  – the person being detained, would almost certainly be wrong)   http://www.bailii.org/ew/cases/EWCA/Civ/2015/599.html

 

There’s a Practice Direction for the fast track process now, which will need some slight tweaking in light of Re X.

 

Anyway, this is the first reported authority on how these ‘fast track’ cases will work in practice.  The answer, in short would be  “not well” and “not fast”

 

The problem here is that the current scheme for P to be represented is through the Official Solicitor.   The Official Solictor told the Court that in the month after the Court of Appeal decided Re X  (which was effectively the green light to start bringing the DoLs cases) requests doubled.

 

District Judge Marin said this:-

I understand that at present, about 100 applications have been issued since the Court of Appeal’s decision three weeks ago with more arriving each week. At the hearing, one local authority told me that they alone have “hundreds” that are to be issued imminently.

 

[If anything, that’s something of an understatement. The ballpark figure nationally is that up to 100,000 such cases might be issued in a year, as a result of the wider definition for restriction of liberty settled on by the Supreme Court in Cheshire West]

 

20….the Official Solicitor wrote a letter which is not only referable to the cases before me but also to all other similar cases where he has been invited to act.

  1. The Official Solicitor said this:

    “..I am not currently in a position to accept the invitations to act as litigation friend in the ‘referrals’ in these cases.

    I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process for this class of case, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to fund them, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.

    Even before the dramatic increase for the month of June 2015 …. and these 43 actual and impending invitations to me to act as litigation friend in this class of case, in resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.”

  2. He went on to elaborate:

    “There has been an increase in the number of invitations to me to act as litigation friend (‘referrals’) for P in Court of Protection welfare applications, including applications for orders the giving effect to which deprives P of their liberty.

    For the three calendar years 2011, 2012 and 2013 the number of new referrals a month averaged 28 cases. In 2014 this increased to an average monthly referral rate of 50 cases. In the five months to the end of May 2015, the monthly referral rate was in excess of 53 cases. In resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.

    There has been a dramatic increase for the month of June 2015 with 99 new referrals to the end of the month. But that number for June does not include the 43 new invitations to act to which I am responding. As at the end of May I had 137 referrals in my CoP Healthcare and Welfare team, in the ‘pre-acceptance’ stage (which clearly did not include these former streamlined procedure cases).

    From time to time, I have taken those steps I have been able to take, having regard to budgetary constraints and balancing the needs of all my teams, to increase staff available to the work of the healthcare and welfare team as its caseloads have risen.

    But, as has been frequently noted publicly, I do not have the staff resources to manage the expected significant additional increase in caseload arising from the decision of the Supreme Court in Cheshire West.”

      1. Despite reference in the letter to a light touch scheme to allow cases to be processed quickly, the Official Solicitor nonetheless commented that:
        1. “But the simple facts are that:
  • I am not currently in a position to accept the invitations to act as litigation friend in the referrals in these cases; and,
  • I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to which have I referred above, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.”
  1. As if to emphasise the seriousness of the matter, the Official Solicitor copied his letter to the President and Vice President of the court, the local authority applicants in the cases and the Ministry of Justice as his “sponsoring department”.

 

 

The Supreme Court have made a ruling that means there will be thousands more of this case, probably tens of thousands. The Court of Appeal has said that P must have a voice. The organisation who are responsible for P having a voice say that they are already operating at a referral rate four times that which they can actually take (and the deluge hasn’t even begun yet – it is something like 100 a month at the moment, and when these cases really get going, it will be more like five to eight THOUSAND a month)

 

As the wise Lucy Series has said, this is now an engineering problem, rather than a logical one. The system as it is, clearly is not going to cope with what is coming at it.   And once we solve the representation of P problem, we will then have the Best Interests Assessor problem, then the social work problem, then the lawyers for relatives problem, then the Judges problem, then the Court time problem.

You can’t go from a system which just about functions at 25 cases a month and turn it into one that can handle 5,000-8,000 cases a month.  Everyone in family law can tell the Court of Protection just how hard it was to cope with the post Baby P deluge, and that was at worst a doubling of demand. Here demand is going up TWO HUNDRED to THREE HUNDRED times.

 

We shall see what happens when these test cases come before Charles J, the vice president of the Court of Protection, but there really are no easy solutions here.  The Law Commission has recognised the need for a complete overhaul of the law on DoLS, but that’s years off.

 

  1. So far as the remaining eight cases are concerned though, I decided to transfer them to the Vice President of the Court of Protection to decide issues at a hearing which I listed as follows:

    1. Whether P must be joined as a party in a case involving deprivation of liberty

    2. Whether the appointment of a rule 3A representative is sufficient in a case involving deprivation of liberty

    3. If P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act.

    4. Whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings.

    5. Whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs 1 to 4.

  2. With regard to the fifth issue, some of the parties expressed the concern that they have other cases listed and they were loathe to incur the cost of a hearing if a similar order is likely to be made or the court will stay the case pending determination of these issues. To address this, I have invited the Vice President to consider staying the cases presently listed such that hearings already listed may be vacated. It occurs to me that he may also wish to consider whether an automatic stay should be imposed on future cases that are issued.
  3. I have taken the course of referring these cases to the Vice President because it is vital that a decision is made on these issues as quickly as possible. None of the parties were equipped to fully argue the issues at the hearing as they would need to prepare: this is not a criticism as the issues were not identified until the hearing. There would therefore need to be another hearing and if so, it must make sense that this hearing produces a judgment from a senior judge which will set out the court’s view on these matters and direct the way forward. There will thus be a saving in time and costs which is consistent with the overriding objective in the court process.
  4. So far as the Official Solicitor is concerned, I do not discharge him in any of these cases and I have ordered him by 4pm on 22 July 2015 to file and serve on the parties a statement which shall:

    1 Provide a full and evidence based explanation of why he cannot cope with the number of deprivation of liberty applications in which he is invited to act as litigation friend

    2 Explain in full detail providing evidence where appropriate as to which areas or processes cause him difficulty and why

    3 Inform the court when he expects to be able to cope with deprivation of liberty cases and the likely time scale in which he can start work on a case.

    4. Provide any other information to the court that will assist the court to make decisions in this case regarding the position of the Official Solicitor.

  5. I believe that this information is vital to allow the court to properly consider his position.
  6. I am also anxious that the court can properly evaluate the availability of a litigation friend in all of the cases apart from MOD where one has been appointed. I therefore ordered the Applicants in each case by 4pm on 22 July 2015 to file a statement which shall:

    1 Explain what steps have been taken to find a litigation friend for P

    2 Set out whether IMCAs or other Advocates or resources are available to act as litigation friend or if not, why they are not available.

    3 List all family members who are willing to act as litigation friend.

  7. I was asked in all the cases to approve the deprivation of liberty of P on an interim basis. I declined to do so because it seems to me that the effect of the Court of Appeal’s judgment is to demand a higher level of scrutiny than the Re X process demanded and on the information available which is in the form of Re X, I am unable to do so. There are also some cases where the information is incomplete. However, my order provides that applications for interim orders can be renewed at the next hearing.
  8. By setting out the issues as they emerged at the hearing and making the orders I have referred to, my aim is to ensure that matters can be adjudicated upon and resolved as soon as possible.

 

6 Comments

Posted in case law, court of protection and tagged , , , , , , , . Bookmark the permalink.

Nakama

Posted on July 13, 2015 by suesspiciousminds

 

One of my many obsessions, alongside law geekery, 80s references and all the other stuff you’ve probably picked up by now, is manga/anime, and specifically the Eiichiro Oda magnum opus “One Piece”

 

“One Piece” is the longest running manga series, telling stories set in a world of what can best be described as super-powered pirates. As well as fight sequences which are so pacey and dramatic that they make X-Men and Avengers look flat footed and pedestrian, One Piece’s over-arching theme is that of the importance of nakama.  Nakama is a Japanese word meaning “True Companion”  – a friend, but much more than that, a friend who you can completely count on, and they can count on you.

 

The nakama in One Piece are the Straw Hat pirates, the heroes that we follow.  They consist of :-

 

Monkey D Luffy, the captain who is made out of rubber and is a formidable fighter (but cannot swim, something of a failing in a captain of a pirate ship) and has literally no common sense.  I love Luffy because he is fiercely loyal to his friends, is hugely impulsive and is the only fictional character I know that has less common sense than me.

 

Roanora Zoro, the green-haired master swordsman, who practices Three Sword Style  (yes, he fights his foes with three swords at the same time – left hand, right hand and one between his teeth), who has no sense of direction and once famously got lost walking up a flight of stairs

 

Sanji, the chain-smoking, high-kicking chef, who set off on the journey around the world so that he could catch and cook new kinds of fish, and who is such a ridiculous womaniser that when faced with beautiful mermaids got so excited that he got a nosebleed that almost made him bleed to death.

[Sanji is my favourite]

The aforementioned Sanji. (In my head, that's how I look. Sadly not in real life)

The aforementioned Sanji. (In my head, that’s how I look. Sadly not in real life… My eyebrows are less curly)

 

Usopp, the pinocchio-nosed sharpshooter, who is a teller of tell tales and an inveterate coward, who still manages to follow his nakama into life-threatening situations even though his knees are knocking.

Nami, the navigator extraordinare who wants to map the world and steal everything that isn’t nailed down

Chopper, the ship’s doctor, who also happens to be a reindeer who looks like a racoon and who adores compliments

Nico Robin, the ship’s archeologist (I know), who is like an even sexier version of Catwoman, she used to be the right hand woman of a really evil warlord, and she can sprout copies of her hands on any surface.

Franky, the shipwright, who is a cyborg who powers up on cola, and has a penchant for dancing around in Speedos.

and

Brook, a skeleton swordsman with afro-hair, who is a colossal pervert.

 

This crew are actually quite normal compared to many of the bad guys that they face.

 

I have my own nakama. The people who I work with are True Companions. We face stuff together, and sometimes things are tough, but we have each other’s back.  I’m lucky to have found them. They may not have super powers, but they are super people.

All of us need nakama, people around us that we can count on, that help us out, that make us smile when things are hard, that can sense when you need a kind word or a hand. I’ve always pretended to be a lone wolf, travelling from town to town, place to place – the sort of person who doesn’t need anyone else to get by. I’m Cain out of Kung Fu, David Bruce Banner out of the TV version of Incredible Hulk, “The Littlest Hobo”  – I go to a place, help out and move on.

 

But it isn’t true. I have my nakama in my home, and I happen to be madly in love with her, but I also have and need my own nakama, my crewmates. We just happen to be lawyers rather than super-powered pirates.*

My best nakama leaves the team for a while today, starting a great adventure of her own.  I will miss her very much.  The ship won’t be quite the same without her, and when she comes back, she won’t be quite the same either, because there will be a new nakama in her life too.  She won’t be quite the same, she’ll be better.  And it will be up to me to make sure that I’m better too.

 

The Straw Hat pirates (and not, as you might have imagined, my team photo)

The Straw Hat pirates (and not, as you might have imagined, my team photo)

 

 

* We would, if any mad scientists are reading, be amenable to discussions about becoming super-powered lawyers. Well, at least, I would.

 

3 Comments

Posted in stuff that isn't law at all, Uncategorized. Bookmark the permalink.

Local Authority lawyers should grow a pair

Posted on July 10, 2015 by suesspiciousminds

This post contains 95 per cent of your Recommended Daily Allowance of Sarcasm and 119% of your Recommended Daily Allowance of Dopiness

 

Well, it isn’t quite put like that, but it isn’t far off.   I appreciate that for a substantial amount of my compatriots, it isn’t even biologically possible.

 

You see, it turns out that the adoption statistics are our fault.  We all knew that there was about to be a blame game  (heaven forbid that anyone should even consider whether the direction of travel might be a good thing, or a bad thing or a neutral thing before embarking on the blame exercise), but it turns out that the finger points at Local Authority lawyers, who, as I say, are going to be told to ‘grow a pair’

[Even though I speculated today that the next judicial edict would be that the LA final evidence must be written in iambic pentameter and rather than being typed, the social worker would have to sew it using cross-stitch, this rather surprised me.  “It turns out that the Bayeux Tapestry was really just contact notes”… I fully anticipate that Dallas PD will be questioning all Local Authority lawyers about JFK shortly]

 

Martin Narey, Adoption Czar  (or is it Tsar? I can never remember, but it always does remind me that the career trajectory of Czars and Tsars, both in historical leader sense and in political oversight sense hasn’t been that stellar) has given a speech at the Association of Directors of Children’s Services.

 

He is thus talking to the uber-bosses of all social workers, the capo del tutti capi of social workers.

Whilst I’m not the largest flag-waving champion of Mr Narey, and I’m unlikely to ever make his Christmas card list, I will give credit where it is due. He has put that speech up online, so that people can read it. He didn’t HAVE to do that, so good on him for doing it.

Flag is going back in the cupboard now.

 

It isn’t really surprising that he opens with a discussion about the adoption statistics. To be fair (oh, flag coming back out), if you’re the Adoption Czar and there’s a big political drive to get adoption numbers up, then when they absolutely tank, you’re BOUND to want to do something about that. If you don’t, then you’re sort of redundant. Probably literally as well as figuratively.

 

Mr Narey refers to the drop being a result of two major Court decisions, Re B and Re B-S, and reminds us all that he helped to produce a Myth-Busting document that picked up a lance and slew the dragon of misconception, so these adoption figures should recover, thanks to his intervention.

 

He talks about the number of ADM decisions for Placement Orders to be sought going down 52% last year, and he says this    (If I’m crabby here, it is only PARTLY because I can’t cut and paste from his slides and have had to type the whole thing out. Only PARTLY)

 

“But these are not as a result of the Courts rejecting Placement Order applications in vast numbers. The drop is overwhelmingly explained by a drop in Local Authority Placement Order applications. They have dropped from 1,830 to 910, a decrease of almost exactly half.

 

Unless you believe that all those adoption decisions you made last year were not in the interests of those children, I urge you to ensure that your social workers and lawyers have not lost their nerve, and the President’s exhortation that you must follow adoption when that is in the child’s best interests is followed. If current figures do not recover, then over time, we shall see adoption numbers drop back very substantially indeed.

 

I don’t think adoption can ever be suitable for other than a minority of children in care. But I think that minority is probably more than 5,000 or just 7% of the care population”

 

Well, where to start?

As an argument “Unless you believe that all those adoption decisions you made last year were not in the interests of those children”  so get out and make some more – ideally 50% more , leaves a lot to be desired. Firstly, it is an emotive appeal. Secondly, saying ‘If you think all those cases where you recommended adoption, you were right’ inexorably leads to   ‘a lot of the ones where you didn’t, you must be wrong’ is some strange use of logic that I’m not familiar with.  Of course ADMs who make a decision that adoption is the right plan for a child do so believing that this is in the best interests of the child. But why on earth should that mean that they were wrong with those that they rejected?

That’s like saying  “remember all those times you bet on Red in the casino and you won? Well, forget about the times that you bet on Red and lost, or you bet on Black and won, clearly betting on Red is the right approach. Go heavily into Red. “

Next, if you think that Local Authority lawyers have lost their nerve, then you need to get out in the trenches with us. There has NEVER been a harder time to be a Local Authority lawyer.  I don’t say this to garner sympathy (I know that many of my readers think that lawyers, and LA lawyers in particular, are the devil incarnate – they are wrong, it is just me), but it is the truth.  It is breathtakingly offensive to say that we have lost our nerve.

Nor have social workers.

 

Perhaps the Adoption Tsar doesn’t know that actually, a lawyers’ job is to give advice but take instructions. We don’t EVER say to a social worker that they can’t put forward a plan of adoption or ask the Agency Decision Maker to approve that plan. We tell them whether or not such a plan is likely to succeed in Court, and we tell them what the strong and weak points of their case is, and we give them advice on what they can do to improve the weak points and how to present their evidence in the way that the Courts now require.

What we do not do, is advise the ADM  “you should approve adoption here”  or “this isn’t an adoption case”.  Even back in the days of Adoption Panel, where a lawyer sat in the same room as the Panel when they made the decision about whether it was an adoption case or not, we didn’t get to make any representations about it or to vote.  Our role was, and still is, limited to giving advice on any legal issues that arise, not to advise the ADM on the merits or otherwise of the case.

 

Mr Narey’s argument here is presumably, theat if Local Authorities had asked the Court to make 1,830 Placement Orders after Re B-S, the Court would have made them.   (And perhaps if we’d asked for 4,000, the Court would have made them too).

 

The reason the adoption statistics dropped was because we were stupid and didn’t understand Myth-Busting !  (TM)  or because we were too timid to ask the question – social workers and Local Authority lawyers have been metaphorically teenagers who want to ask someone out but end up not being able to get a word out when we are near the subject of our affections. What Mr Narey is saying to us is “Hey, that person you like is TOTALLY into you, and they would TOTALLY say yes if you asked them to go to the pictures with you”

It is of course telling that with that 52% drop in applications for Placement Orders, I have not heard of a SINGLE case where a Judge seized of all of the facts and evidence, said to the Local Authority “I cannot believe that you are putting forward a plan that doesn’t involve adoption here, I really think that you should reconsider”  , or given judgments that say “none of the options put forward for this child are sufficient to safeguard their well-being, and I adjourn the final hearing so that matters can be reconsidered”

 

 

I think that it is interesting that whilst this speech makes great play of the President’s decision in Re R, and even quotes from it approvingly, it misses out two really major elements of Re R.

 

The first is this one:-

 

in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.’

 

[And to save you flipping back to Re B, that, precisely, is THIS

 

para 198: “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.” 

para [215]:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.” ]

 

If a Judge makes a Placement Order without engaging with that test, the judgment will be deficient. If a Local Authority present their case without striving to meet that test, their evidence will be deficient.

The Court of Appeal in Re R also made it plain that all of the stipulations laid down in Re B-S about the quality of the evidence, the need for robust and rigorous child-specific analysis of all of the realistic options and the Court not proceeding in a linear manner still stand.

 

The second omission is of course,

On 11 November 2014 the National Adoption Leadership Board published Impact of Court Judgments on Adoption: What the judgments do and do not say, popularly referred to as the Re B-S myth-buster. This document appears to be directed primarily at social workers and, appropriately, not to the judges. It has been the subject of some discussion in family justice circles. I need to make clear that its content has not been endorsed by the judiciary.

 

I have set out before, here, what the Court do and do not say in Re R     http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back

 

As I said in that piece, the ‘myths and misconceptions’ that the Court of Appeal were slaying were the ones that nobody actually believed were right – even the lawyers advancing those claims that “Re B-S means that if the positives and negatives aren’t set out in tabular form, adoption must be rejected” didn’t actually believe what they were saying.  (It’s one of the advantages of being a lawyer, you don’t have to believe what you are saying in order to say it…)

 

Mr Narey is quite right that the Court of Appeal are clear that where the only option that will meet a child’s needs is adoption, that’s the order that should be sought, and the Court will adjudicate on it. If the social worker thinks that of all of the realistic options, adoption is the only one that can meet the child’s needs, then they can and should go to the ADM to seek approval of that plan. And likewise, if the ADM thinks that, then they can and should approve the plan. And likewise, if the Court conclude that, they can and should make the adoption order.

 

That is encapsulated by this passage

‘[44] … Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.’

 

If a social worker, or an ADM think that this test is made out, then there’s no reason at all why they shouldn’t put forward a plan of adoption. It might be that when the evidence that lead them to think that is tested in the burning crucible of cross-examination, it is found wanting, but that’s how litigation works.

 

I can’t help but note that Mr Narey in his speech quotes a section of the President’s judgment from Re R  [what he doesn’t do is quote all of the bits in italics are a key part, which rather change the meaning if you ENTIRELY miss them out]

 

It is apparent, and not merely from what Miss James and Miss Johnson have told us, that there is widespread uncertainty, misunderstanding and confusion, which we urgently need to address.

[41] There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’, that ‘adoption is a thing of the past.’ There is a feeling that ‘adoption is a last resort’ and ‘nothing else will do’ have become slogans too often taken to extremes, so that there is now “a shying away from permanency if at all possible” and a ‘bending over backwards’ to keep the child in the family if at all possible. There is concern that the fact that ours is one of the few countries in Europe which permits adoption notwithstanding parental objection is adding to the uncertainty as to whether adoption can still be put forward as the right and best outcome for a child.

[42] There is concern that Re B-S is being used as an opportunity to criticise local authorities and social workers inappropriately – there is a feeling that “arguments have become somewhat pedantic over ‘B-S compliance’” – and as an argument in favour of ordering additional and unnecessary evidence and assessments. It is suggested that the number of assessments directed in accordance with section 38(6) of the Children Act 1989 is on the increase. It is said that when social worker assessments of possible family carers are negative, further assessments are increasingly being directed: “To discount a kinship carer, it seems that two negative assessments are required.” There is a sense that the threshold for consideration of family and friends as possible carers has been downgraded and is now “worryingly low”. Mention is made of a case where the child’s solicitor complained that the Re B-S analysis, although set out in the evidence, was not presented in a tabular format.

[43] We are in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice ‘on the ground’, but they plainly need to be addressed, for they are all founded on myths and misconceptions which need to be run to ground and laid to rest.

[44] I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.

 

I appreciate, space is at a premium and when you’re giving a speech you don’t necessarily want to quote great chunks of a judgment, but when you quote as selectively as this, you are turning a passage in a judgment that is saying that where really ridiculous arguments about Re B-S are being used, those are fallacies into something which suggests that Re B-S says nothing of any consequence at all.  It is just plain misleading.

 

Ignore for a moment the “nothing else will do” formulation (although, as outlined above, it is still good law, just not in the ludicrously over-literal way that the Court of Appeal were initially using it).  These are the other changes in child protection law and adoption law since Re B.

 

1. The test for an appeal Court is now whether the Judge was  “wrong” and not whether the Judge was “plainly wrong”.  That is a substantial change, and makes the risk of being appealed in a judgment notably higher.

2. The Court can no longer proceed on a linear analysis.  They MUST look at the pros and cons of each option. This is not a small thing. Prior to this decision, the process was always “look at parent, if no, then look at family member, if no then adoption is all that is left, ergo the ‘last resort’ element is satisfied, it is the last resort because there isn’t anything left”.   If a Local Authority are making a case for adoption, they have to not only show the flaws in the other options, but that the benefits of adoption outweigh the FLAWS in adoption. That requires social workers to fully engage and grapple with the benefits AND flaws of adoption both in general and for a particular child.  If the Adoption Leadership Board want to tackle a single issue, rather than Jedi-hand-waving that ‘this law hasn’t changed, you may go about your business’, training that better equips social workers to do this and proper impartial and evidence-based research about those benefits and flaws would be a damn good start.

3. The rigorous analysis and evidence required as a result in Re B-S is still required.

Let’s look specifically at the example of social work analysis on why adoption was right for a child that the Court of Appeal tore to bits in Re B-S

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

 

Prior to 2013, that wasn’t only the sort of thing that you’d see in a social work statement explaining why adoption was the right outcome for a child, it was actually one of the better ones. Prior to 2013, I’d have put that in the top 10% of attempts in a social work statement to explain the benefits of adoption.  This was an A minus attempt.

Let’s look at what the Court of Appeal said

With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

 

. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

 

I’ll say it again, because this is important. A formulation that I would have put in the top 10% of analysis that I’d been seeing pre 2013 was DESTROYED by the Court of Appeal as being completely inadequate.  An A minus attempt was given an E.   Whether or not Re B-S changed any legal tests, it certainly raised the bar massively for the standard of evidence and analysis required.

 

4. The test for leave to oppose adoption was dramatically reduced.  Prior to Re B-S, such applications were rare and also very easy to shut down. All you needed was to quote Thorpe LJ in Re W  “However, it cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that permission will be granted after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application.”  and draw the Court’s attention to the facts of Re P, where parents who had gone on to have another child and keep that child, with no statutory order, hadn’t been sufficient to get them leave to oppose.   Now, the test is substantially reduced.   In particular, these two elements from Re B-S.

 

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

and

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

 

5.  As we have seen, more leave to oppose applications are being made, and more have been granted.  We also see that the Courts have given judgments in cases where adoption applications have been successfully opposed. To date, the reported cases are where a parent has been able to show that another family member could care for the child instead of prospective adopters who have had the child for 13-18 months.  Such a decision would have been unthinkable in 2012, but they are happening now.  What that means is that if a Court is being invited to make a Placement Order, and the LA are inviting the Court to do so, they have to have good, cogent evidence as to why family members are not suitable instead.  If they don’t get that exercise right first time round, then the child will pay the price when at an adoption hearing 15 months later, the Court may be removing the child from adopters and placing with those family members.

 

 

All of those things, and Lady Hale’s formulation are real things.  It does nobody any favours to ‘jedi-hand-wave’ them out of existence, particularly by chopping up a quote from a judgment so that a person reading it would think that the Court of Appeal had said:-

There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’… those impressions are based on myths and misconceptions  

 

when those three little dots are missing out all of the actual substance.

 

Parliament has created a statutory power of adoption. The tests have been laid down in the Act. The Courts have interpreted how those tests are to be delivered in practice.  The Lady Hale formulation in Re B is the test that the Courts will be working towards. To pretend otherwise is misleading.

It does remain the case that where a Local Authority can show that none of the other options before the Court can meet the child’s needs, adoption is an option that they can legitimately pursue.

 

It’s disengenous to pretend that people didn’t understand that.  If social workers and lawyers and ADMs hadn’t grasped that, then there would have been NO applications for Placement Orders.  The numbers went down because the difficulty in obtaining a Placement Order from the Court went up.

 

 

If the social workers, lawyers and ADMs had ‘held their nerve’ in 2013 and made the same number of Placement Order applications, then the Court would have rejected them in huge numbers.  Maybe they all should have done, and let it become the Court’s problem.

Two years later, the same might not still be the case.  Firstly, the over-literal over-prescriptive appeals seem to have died down a bit. Secondly, social workers have got more used to the rigorous standards that are required in terms of their evidence and are better equipped to present their evidence to those standards.

 

 

 

 

 

13 Comments

Posted in adoption and tagged , , , , , , , , , , , , , . Bookmark the permalink.

The Supreme Court ignore my new Act

Posted on July 9, 2015 by suesspiciousminds

Having laboured over the drafting of brand new legislation to avoid any disputes about where people live,  https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/  I am disappointed that the Supreme Court did not take the opportunity to pick up that particular baton and run with it.

 

And if you thought that people were litigating about ordinary residence too much BEFORE, just you wait.

 

The Supreme Court in R (on the application of Cornwall Council) 2015  https://www.supremecourt.uk/cases/docs/uksc-2014-0092-judgment.pdf  were dealing with a tricky scenario.

 

P had been a child, and when he was a child, had been placed in foster care in Wiltshire. This was in 1991.  As part of his care, Wiltshire PLACED him in South Gloucestershire.   When P became an adult, his needs were such that he required accommodation under the National Assistance Act 1948.  His needs are estimated to cost about £80,000 per year and he is likely to need them for the remainder of his life, so the issue of which Local Authority pays is liable to cost millions.

P’s parents, when he was an adult, moved to Cornwall; who also got dragged into this, despite him never having set a foot in Cornwall until 2004 and only then on a short visit to his parents.  We also add into the mix that accommodation was found for P in Somerset.

 

It is real law-exam stuff.  I wrote about how the High Court resolved it here (back in 2012), and I obviously developed some form of mental scarring as a result, because when the Court of Appeal decision came in, I couldn’t even face looking at it.    (I’ve not sold this link, but if you are a masochist, or you are trying to decide whether to quit law forever and just want something to tip you over the edge, here it is  https://suesspiciousminds.com/2012/12/27/as-clear-as-a-bell-if-the-bell-were-made-out-of-mud/

 

[I’ll assume that you rightly skipped that link]

 

The majority opinion of the House of Lords is that where a Local Authority accommodate a young person, and that person then goes on to require adult services, there’s no break in ordinary residence just because they happened to put him in another area.  The LA who started the case off, keeep hold of the responsibility, even though the case moves from being a child case to an adult case, and moves from one Act to another.

 

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y.

55. It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may comefrom all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

 

That does make a degree of sense.  Firstly, if a Local Authority caring for P as a child, could remove any burden on caring for him as an adult by placing him in another local authority area, then these vulnerable individuals could become subject to a game of pass the parcel (but where you DON’T want to be holding the parcel when the music stops). Secondly, Local Authorities who had made provisions or had specialist facilities in their area for children could end up receiving a higher number of such children and then having to go on to care for them as adults. And thirdly, Local Authorities might jealously guard their borders, not being willing to accommodate children on behalf  of other Local Authorities who might be trying to shift the burden of responsibility in adulthood.

 

The majority opinion therefore concludes

 

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday.

 

[The Supreme Court do not use this guache term, but in a reductive sense, the law on ordinary residence where a Local Authority places a young person in another area and that young person then needs services as an adult is “He who smelt it, dealt it”]

 

But see Lord Wilson’s stirring dissenting opinion, and it is hard not to disagree with his conclusions. What he says in effect is that the Supreme Court majority opinion is deciding the law not on the basis of a legal interpretation or following precedent, but deciding on which outcome has the better public policy implications.  This is all even better if, like me, you choose to imagine that Lord Wilson has the same speaking voice as John Le Mesurier used for Sergeant Wilson.  (“Are you sure that’s wise, sir?”)

 

I believe that this might be my FOURTH Dad's Army illustration on the blog...

I believe that this might be my FOURTH Dad’s Army illustration on the blog…

 

 

 

62. My colleagues consider that, in making his determination under section 32(3) of the National Assistance Act 1948 (“the 1948 Act”) of the place of PH’s ordinary residence on 26 December 2004 for the purpose of section 24(1) of the same Act, the Secretary of State could lawfully have reached only one conclusion. It is, according to them, that on that date, which was the day prior to his 18th birthday, PH was ordinarily resident in a county (Wiltshire):

a) in which in May 1991, ie about 13 years earlier, he had ceased to live upon his removal to live with the foster parents in South Gloucestershire;

b) to which, during the following 13 years, he never returned, not even just to stay overnight;

c) in which in November 1991, ie also about 13 years earlier, his parents had ceased to live upon their removal to live in Cornwall;

d)in which by 1997, ie about seven years earlier, both sets of his grandparents had, in one case because of relocation and in the other because of death, ceased to live; and

e) in which, from 1997 onwards until many years after 26 December 2004, no home remained available, even in principle, for his occupation.

63. Such is a conclusion to which, with great respect to my colleagues, I do not subscribe. It is a conclusion for which no party has contended at any stage of these proceedings. A court should tread cautiously before favouring a solution devised only by itself, particularly where, as here, it has been addressed by an array of excellent counsel instructed by public authorities widely experienced in this area of the law.

 

Whether you agree with Lord Wilson or not, you have it say that to be able to pour so much information into such a condensed and easy to follow two paragraphs is masterful.

 

He goes on

 

 

 

65. I must squarely confront the problem. There appear to be strong reasons of public policy which militate in favour of imposing upon Wiltshire, rather than upon South Gloucestershire, the obligation of making decisions about a suitable placement of PH following his 18th birthday and of funding whatever placement may thereafter be suitable for him from time to time. It would be a heavy financial burden for Wiltshire but its burden in the case of PH would be borne to the same extent by some other local authority in a reverse situation: in other words the burdens should even out. Public policy suggests:

a) that it is desirable that a local authority which has exercised the decision-making power (and has borne the funding burden) in relation to the placement of a mentally incapacitated minor should, in the light of its knowledge of his needs, continue to exercise that power (and bear that burden) following the attainment of his majority; and

b) that it is undesirable that a local authority which is exercising the decision-making power (and bearing the funding burden) in relation to the placement of an incapacitated minor should, while he remains a minor, be able to place him in a suitable facility in the area of another local authority (indeed, in the case of a private placement, without the consent of that local authority), with the result that, following the attainment of his majority, the decision-making power and, in particular, the financial burden should fall upon that other local authority. In the present case, for example, the evidence suggests that Wiltshire’s placement of PH in 1991 with his excellent specialist foster parents did not in any way involve the local authority of South Gloucestershire, which for the following 13 years appears to have played no part in directing or securing his care. Yet, on my analysis, it is South Gloucestershire which should thereafter have begun to exercise the decision-making power and, in particular, to bear the financial burden. The Secretary of State accepts that, of the young people who move from being looked after by local authorities as minors to being provided with accommodation by them as adults, those lacking capacity are only a small proportion. But he explains convincingly that, in the light of their specialised needs, the cost of maintaining them indefinitely is very high. He proceeds to identify real concerns that a few local authorities might therefore be motivated (to use the crude shorthand which, only for convenience, has been deployed in the hearing before this court) to “export” such a minor to the area of another local authority prior to the attainment of his majority; and equally that, were that other local authority to be the administrator of a specialist resource entirely suitable to the needs of a minor, it might nevertheless be motivated to refuse him admission to it for fear of the financial consequences following the attainment of his majority.

 

66. But such is the result which in my view the law, as it stands, clearly compels. I am not a legislator. Nor, with respect, are my colleagues.

 

Whether the case should be decided on law or public policy  (and I agree with Lord Wilson – if the Supreme Court start to decide cases on what it considers to be the best outcome for public policy then we are on a slippery slope), the Supreme Court have not really considered the real public policy outcome here.

 

If Local Authority A and Local Authority B are arguing about which area is responsible for providing care for little Tommy, then at the moment, they fight like cat and dog about meeting those costs for a maximum of 18 years.  Following this decision, the loser of that argument could, if little Tommy is going to require accommodation throughout his adult life, be stuck with those costs for 80-90 years.

Now, using your skill and judgment, do you think that those arguments will as a result become :-

(a) more amicable; or

(b) more contentious

 

 

 

 

 

 

2 Comments

Posted in adult social care, case law, supreme court and tagged , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →