An argument about publication of a judgment

Posted on May 21, 2015 by suesspiciousminds

 

Wigan Borough Council v Fisher and Others 2015

Again, Mr Justice Peter Jackson

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/34.html

I think this is the first reported authority on how to deal with transparency and publication of a judgment where one party objects, following the President’s transparency guidelines. The first and most important thing to say is that the High Court held this:-The question of whether a judgment should be published is an integral part of the proceedings from which it arises and I consider that where a party is legally aided, any work that is necessary to contribute to the court’s decision on publication should normally be covered by the party’s legal aid certificate.There were care proceedings about a little girl named A, who was in foster care but eventually went back to live with her mother. The central theme of those proceedings was the very tragic death of A’s sister Evie.

  • The proceedings arose because of the death of A’s sister Evie at the age of sixteen weeks on 21 February 2013. During her short life, she had sustained a number of serious injuries.
  • My fact-finding judgment was given on 6 December 2013 at the end of a hearing lasting eight days, during which each parent blamed the other for Evie’s injuries. My conclusion was that they had been caused by the father and that the mother should be exonerated. There was no appeal and the proceedings ended.
  • Mr Thomas was then prosecuted for causing grievous bodily harm to Evie. On 29 October 2014, he was acquitted by a jury at Liverpool Crown Court. The trial was reported in the press.
  • On the day of his acquittal, Mr Thomas gave an interview to a journalist in which he said “All I ever wanted to do … was to prove my innocence and now I have done that.” This interview, illustrated with a photograph of Mr Thomas holding a photograph of Evie, was published in the Wigan Observer and in the Daily Mail.
  • On 9 December 2014, a Coroner’s inquest reached an open conclusion, formerly known as an open verdict

 

The issue of whether the fact-finding judgment should be published was therefore an important and live one. Firstly, the name and face of the father was known to the media, as was Evie. Secondly, there was public interest in what had happened to Evie. Thirdly, the combination of the care proceedings (which remained confidential), a criminal trial (which was in the newspapers) and an inquest (which had been reported) might lead people to erroneously conclude that if the father had not hurt Evie then mother must have done.  Equally, however, father who had put himself in the public domain after having been found Not Guilty in a jury trial would obviously not want a finding of fact judgment which held that he was responsible for Evie’s death coming into the public domain.

 

  • To avoid the risk of prejudice to the criminal proceedings, I had deferred a decision on the publication of the fact-finding judgment. In November 2014, when those proceedings had ended, the parties referred the matter back to me. They initially suggested that an anonymised version of the judgment could be published, edited in such a way as to protect A’s identity.
  • I did not consider that this was realistic. The criminal trial and the Coroner’s inquest had taken place in public and substantial information about the family and the surrounding events had appeared in the press. This information was to all intents and purposes the same as that considered in greater detail in the family proceedings, except that this court’s conclusions were not reported. It would therefore be impossible for an anonymised fact-finding judgment to be published without it immediately being linked with this family. I therefore asked the parties for further written submissions by 13 January on the following possibilities:

 

(a) That the judgment should not be published at all.(b) That it should be published in an un-anonymised form.

(c)  That it should be published in an un-anonymised form, accompanied by a reporting restriction order preventing the identification of A (in which case an application would have to be made and the media notified in accordance with the Practice Direction).

(d) That it should be published in an anonymised form with workable accompanying directions that could be understood by the media. 

 

The Judge discussed the transparency guidance and the purpose of it

 

  • A salient purpose of the guidance is to promote understanding of and confidence in the proceedings of the Family Court. But beneficial though that goal is, it is not an end in itself. Rather, it is part of a necessary process to ensure that the rights of individuals and the public, referred to above, are properly balanced. That cannot happen if confidentiality in the proceedings of the Family Court, a public body, is allowed to trump all other considerations. A balance has to be struck in each case, using the guidance as a valuable aid. There will still be cases where, notwithstanding the guidance, publication is not permitted, and other cases where the judge will authorise wider publication than that contemplated by the guidance.
  • The guidance has had a marked effect. In 2014, its first year, over 300 judgments at High Court level were posted on the Bailii website, together with 160 judgments by other judges. These numbers are a very substantial increase on previous levels of publication, particularly in relation to judgments in local family courts. As a result, there is a very considerable body of material available to anyone who wants to better understand the way in which our proceedings are conducted.

 

 

I will set out the parties respective positions – the LA wanted the judgment to be published, as did mother. The father opposed publication. The Guardian supported publication but sought safeguards.

 

  • The local authority supports the publication of the judgment in an un-anonymised form, except that the surviving children A and B should not be named. It submits that there is good reason to publish the judgment and no compelling reason to the contrary:
  • The fact that an infant has been seriously injured and has died in unusual circumstances is shocking and rightly becomes a matter of public concern. Questions are asked – Why? Who? How? Could the death have been prevented? If so, is someone to blame?
  • The mass of publicly available information is noted. It includes Evie’s name, details of her injuries and death, the names of both parents, their locations, ages and photographs. Any privacy and confidentiality has long since been breached. The only remaining confidentiality attaches to A, who has not been publicly identified.
  • Conclusions have now been reached in the criminal court, the Coroner’s court and the Family Court about the events surrounding Evie’s death. The outcome of two of the three is now known, but not the third.
  • Neither A nor her mother are likely to be unduly affected or destabilised by further publicity.
  • Knowledge that the mother has been exonerated could assist her and A.
  • A’s identity is not likely to become more widely known. There is no evidence that the press has done other than respect her privacy, and a reporting restriction order is not necessary.
  • Publication would show the rigour with which the Family Court investigates the death of and injuries to a child and how it arrives at its conclusions.
  • Where, as here, there is criticism to be made of professionals, it is in the public interest to know of this in the hope that lessons will be learned.
  • Anonymisation of the judgment would be utterly pointless, except insofar as the surviving children’s names are concerned. It would lead to confusion and questions as to why the Family Court was seeking to withhold information that is already public knowledge.
  • The mother supports publication of the judgment and does not seek any other protection beyond that suggested by the local authority, namely the withholding of the children’s names. She contends that there is a clear public interest in publication for these reasons:
  • The information already in the public domain is very extensive, as demonstrated by a collection of press clippings from the Internet.
  • She has been placed in a difficult position by the father’s acquittal and the publicity he subsequently sought. Given that Evie was undoubtedly assaulted, the result has been to cast suspicion on her. She has been approached by the media to tell her side of the story, but has refused. Following the Coroner’s proceedings, the Daily Mail report posed the question in the title to its coverage: “Father with battered baby daughter’s handprint tattooed over his heart was cleared of beating her. So how did Evie die?” The article goes on to state that the father sought to blame the mother during his criminal trial.
  • The Family Court proceedings are the missing piece from a jigsaw of information. The other processes have been reported. The mother feels strongly that somewhere within the public domain there should be an accurate report of what happened to Evie. In time it will be of value to A that the truth is known. She also feels that the publication of the judgment would help to bring matters to a close for the family.
  • The father opposes publication, for these reasons:
  • The guidance states that the names of family members will not normally be used. The metaphorical opening of the doors to the Family Court is aimed at exposing the family justice system, not the families who pass through it, to the light of publicity.
  • Identification of the perpetrators of crime is the purpose of the criminal courts, not the Family Court.
  • The reasons for care proceedings to be conducted in private continue to be sound. The care with which the courts protect the rights to privacy, even of those who are found guilty in the criminal courts, is shown in a number of authorities, to which detailed reference is made. A careful balancing exercise must always be conducted.
  • Any attempt to publish the judgment in an anonymous form is doomed to fail, as the family would inevitably be identified. Since an anonymised judgment cannot be published, there should be no publication at all.
  • Identification of the family would breach its right to respect for private and family life and would be fundamentally wrong. Naming the father would be an unwarranted interference with his rights. Publication may destabilise A’s placement with her mother.
  • Just because the father involved himself in media coverage is not a reason to stir matters up again. Republication can be as harmful as publication.
  • There is no wider public interest, such as may exist in cases of failures by statutory agencies.
  • The Children’s Guardian does not argue that there are compelling reasons for publication not to occur. She notes that
  • There has already been a great deal of publicity but that A has not been named, though reference has been made to “another child”.
  • Her primary concern is that the mother and A may be exposed to unwelcome scrutiny and distress as a result of publication that reveals the disparity between the outcomes in the criminal and the family proceedings.
  • She supports as many safeguards as possible being implemented to reduce interest in this matter. She would oppose publication that identifies A or further identifies Ms Fisher, or refers to the inherited condition Treacher Collins syndrome. Any reference to the Wigan area and the local authority should be removed , and the names of solicitors deleted.

 

Note that the Local Authority was in favour of publication even though professionals were criticised in the judgment.

 

The Judge decided that the judgment would be published, and will appear in 28 days (thus allowing the parties time to prepare themselves, and for any appeal).  I think that it must be right that where a father has gone to the Press and insinuated that mother was responsible for the death of a child, that the judgment showing why she was fully exonerated from blame ought to be out there. I suspect it won’t get the same exposure in the Mail as the previous story, I hope to be proven wrong.

 

Determination

 

  • Having given due consideration to all of these matters, I am in no doubt that the fact-finding judgment should be published and that the only restriction that is necessary is that the actual names of the children referred to as A and B (another child associated with the family) are not to be revealed. The rubric attached to the judgment is sufficient to achieve this restriction. There is no need for a reporting restriction order. The media can be relied upon not to identify young children gratuitously in circumstances of this kind.
  • I find that the relevant considerations point very much in the same direction.
  • The first consideration is that it is generally in the public interest for accurate information to be made available in such a serious case. The need is particularly pressing when the information now in the public domain is incomplete and distorted.
  • The second consideration is that the mother supports publication and it is only fair that she should be able to rely on the judgment to show that she was not responsible for Evie’s injuries. Non-publication would be an injustice to her.
  • The third consideration is that publication is unlikely to destabilise A and her mother. On the contrary, it is likely to improve their situation in the long run. It is clearly in A’s interests to grow up on a true footing, knowing that her mother was not responsible for her sister’s death and that her relationship with her father is as it is because of what he did. Any short-term disturbance that might possibly arise from publicity is greatly outweighed by the long-term benefits of the truth being known.
  • The final consideration is that the rights of the father carry little weight in the overall balancing exercise, given his conduct and his attempts to misrepresent the position to the mother’s detriment. If his submissions were correct, the law would be a screen to hide the truth. There is instead a public interest in the findings about the father being made known. The fact that they have been reached according to the civil standard in the Family Court as opposed to the criminal standard in the Crown Court makes no difference in this case. to prevent the truth being seen.
  • These conclusions are, as it happens, in keeping with the guidance. Paragraphs 16 (public interest) and 17 (serious fact-finding) are both engaged. Insofar as the naming of the family members departs from the normal approach, this is warranted under both limbs of paragraph 9 (party’s wish to refer to exoneration and public interest in identification of a person against who findings have been made).
  • I agree with the local authority that it would be futile to seek to remove identifying information in an effort to dissociate the Family Court’s conclusions from information already on the public record. The court should not stultify itself and any attempt to publish anonymously could only lead to bewilderment about what could and could not be reported. The Guardian’s submissions were made before the mother’s position was known, but were they to remain unchanged, I would prefer the positions of the local authority and the mother.
  • I do not agree with the father’s analysis of the purpose of the guidance. As I have explained, it is not narrowly concerned with the image of the Family Court but with the wider goal of achieving a proper balancing of all the rights that arise in these cases.
  • The fact-finding judgment, and this judgment, will be placed on the Bailii website 28 days from now, to allow time for all interested parties to prepare themselves and for any rights of appeal to be exercised.

 

 

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Proof of facts – High Court guidance on disputed injuries

Posted on May 21, 2015 by suesspiciousminds

This is a very short judgment, with not a single word wasted, and it sets out not only a helpful summary of the state of the law on resolution of disputed injuries but clarifies some areas where there has been doubt and confusion.

It does not really need my ham-fisted attempt to summarise it, so I will simply alert you to its existence, and recommend heartily that you read it. [I am inferring that this judgment is setting out points of general principle arising from the Poppy Worthington case – that particular judgment of the facts in the case is not going to be published until the Autumn, when the re-hearing is underway]

 

BR (Proof of Facts) 2015

Mr Justice Peter Jackson

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/41.html

Mr Justice Peter Jackson:

 

  • A fact-finding hearing into how a baby came to have a very large number of fractures took place in March and in April I gave a judgment that cannot be published at this stage. This short published judgment touches on three topics of more general relevance, described below.
  • The context is that the local authority alleged that the injuries were inflicted by the parents. They denied this and relied on expert medical opinion that the injuries may have been the manifestation of a condition as yet unknown to medical science that caused transient fragility in the baby’s bones. Other expert medical opinion considered it more probable that the fractures and other appearances were the result of assaults. It was common ground that there is no known medical condition that might explain the fractures, but that the radiological appearances were highly unusual.
  • The topics that I extract from the fact-finding judgment are these:

 

(1) Proof of facts.(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015).

(3) An analysis of generic risk factors and protective factors.

Proof of facts

 

  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.
  • Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.

 

(1) Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view, statements of principle (some relied on in this case) that suggest that an enhanced level of evidential cogency or clarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.

(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.

(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:

“Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”

I agree. 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.

 

  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.
  • When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.
  • Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.

 

Evidence about pain response

 

  • In the present case, the medical experts commented upon the absence of an account by the parents of any pain response at the moments when the multiple fractures must have occurred. All the doctors stated that fractures are painful, whether bones are normal or not, and that a distinctive pain reaction would be expected from a baby when a bone breaks. The nature of the acute reaction might vary depending upon the bone. The nature of the chronic reaction in the hours and days afterwards might be confused with other childhood ailments.
  • The cause of the fractures was undoubtedly the application of force to the baby by an adult, who must have been touching the baby at the moments when the bones broke. The fractures did not occur spontaneously and the baby did not cause the injuries to itself. The question was whether the bones could have been weakened so that they fractured on normal handling.
  • On behalf of the parents, reference was made to an aspect of the judgment of HHJ Bellamy in Re FM (above). In that case, the allegation was that a mother was responsible for causing bilateral leg fractures to a child of just under a year of age. Accepting the evidence of Dr Allgrove, who was also a witness in this case, the judge found it possible that excessive use of a mid-strength topical eczema cream might have led to bone demineralisation and a propensity to fracture in a child with some degree of hypotonia and hypermobility of her joints. He concluded that the local authority had not proved its case and dismissed the proceedings.
  • The relevant part of the judgment concerns the judge’s observations on the medical evidence about a child’s likely reaction to a fracture at the moment that it occurs. A paediatrician had given evidence that it must have been “a memorable event”. At paragraph 115, the learned judge said this:

 

“As I have noted, that opinion is frequently given by paediatricians in cases such as this. In my judgment the contention that there must have been a ‘memorable event’ is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a ‘memorable event’ [but] in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a ‘memorable event’ if the injury really does have an innocent explanation.”

 

  • Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. 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. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.
  • 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.
  • In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.

 

Risk factors and protective factors

 

  • On behalf of the Children’s Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

 

Risk factors

  • Physical or mental disability in children that may increase caregiver burden
  • Social isolation of families
  • Parents’ lack of understanding of children’s needs and child development
  • Parents’ history of domestic abuse
  • History of physical or sexual abuse (as a child)
  • Past physical or sexual abuse of a child
  • Poverty and other socioeconomic disadvantage
  • Family disorganization, dissolution, and violence, including intimate partner violence
  • Lack of family cohesion
  • Substance abuse in family
  • Parental immaturity
  • Single or non-biological parents
  • Poor parent-child relationships and negative interactions
  • Parental thoughts and emotions supporting maltreatment behaviours
  • Parental stress and distress, including depression or other mental health conditions
  • Community violence

Protective factors

  • Supportive family environment
  • Nurturing parenting skills
  • Stable family relationships
  • Household rules and monitoring of the child
  • Adequate parental finances
  • Adequate housing
  • Access to health care and social services
  • Caring adults who can serve as role models or mentors
  • Community support

 

  • In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.

 

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Your Honour, I am afraid that I have not done a position statement, but may I just hand this up?

Posted on May 21, 2015 by suesspiciousminds
I think this summarises our position

I think this summarises our position

 

 

I thought of that gag this morning, and kudos to Cobb J for giving me the opportunity to deploy it.

 

Newcastle City Council v WM and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/42.html

 

When a High Court Judge asks why you haven’t filed and served a position statement, don’t do THIS

 

 

  • I return to consider some of the matters outlined at the beginning of this judgment.
  • At the outset of this hearing not one of the respondents’ advocates had troubled to prepare a Position Statement. Counsel addressed me on the first morning of the hearing to explain the absence of these documents addressing me as if the requirement for such a document were a personal idiosyncrasy of mine. It is not. May I, for the record, remind counsel again of the following points: PD27A para.4.3:

 

At the commencement of the bundle there shall be inserted the following documents (the preliminary documents) –

(a) an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if practicable, to four A4 pages;

(b) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing;

(c) a position statement by each party including a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing;

(d) an up to date chronology, if it is a final hearing or if the summary under (i) is insufficient;

(e) skeleton arguments, if appropriate;

(f) a list of essential reading for that hearing; and

(g) the time estimate (see paragraph 10.1).

 

  • May I draw to their further attention PD27A, §4.4:

 

Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents

And PD27A para 6.4:

The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge’s clerk

Sadly, this is once again one of those cases where poor planning and preparation had led to massive delays for the children,  and unfairness in the process, and once again, the misuse of section 20 played a part

  • The burden of judicial decision-making has regrettably been made significantly more complex by the failures of the professionals and child care systems involved with this family. To give prominence to those failures, I highlight some of them at the outset of this judgment:

i) At the time of the final hearing, the children have been in foster care for 93 weeks awaiting a decision about them;ii) The children were accommodated under section 20 of the Children Act 1989 (“CA 1989”) from July 2013 until March 2015, when interim care orders were made (under section 38 of the CA 1989) at the Issues Resolution Hearing;

iii) The ‘letter before proceedings’ (prepared pursuant to PD12A FPR 2010) was sent to the parents in January 2013, 73 weeks before the proceedings were ultimately issued (July 2014);

iv) The final hearing is taking place in the 43rd week, not the 26th week following issue (see section 14(2)(ii) of the Children and Families Act 2014);

v) The mother has significant learning disability; she has an assessed IQ of 61. She is assessed to lack capacity to litigate in these proceedings. There is a significant question whether she ever had capacity to consent to the accommodation of her children (it is said, per Dr. Thorpe, consultant psychiatrist, that “she did not appear to understand the reasons why her children had been placed in foster care”), and whether, in the circumstances, the children were for the extended period referred to above lawfully accommodated;

vi) On any of the outcomes proposed for the children, they will have to be separated; as indicated above, the family placement on offer is for the two older children only. The Local Authority does not contemplate an adoptive placement for all three siblings together;

vii) The youngest child has spent more than half his life waiting for a decision about his long-term future, which is, and has been for some time, essentially undisputed;

viii) The Children’s Guardian and Local Authority propose radically different outcomes for the older children. The Social Worker and the parties were only made aware of the final recommendation of the Guardian on the first morning of the hearing.

ix) The maternal aunt, who wishes to care for the children, suffers a serious and debilitating eye condition; it is identified and briefly described in the independent social work assessment of her capacity to care for the children. The aunt’s lawyers did not apparently explore the implications of this condition before the hearing began. The extent of her significant visual disability was astonishingly only revealed at the conclusion of her oral evidence, and only when I asked to describe it (she had obviously been struggling to read from the documents presented to her while giving evidence); this led to a short adjournment during the hearing to obtain necessary expert medical evidence;

x) In a case which generates a range of possible outcomes, and in which some of the key parties have vacillated about their preferences during the proceedings, none of the respondent advocates had prepared position statements prior to the final hearing (I exonerate Ms Moulder as she stepped in on day 2 of the final hearing to replace counsel who had unavoidably had to relinquish the brief at short notice, and for entirely legitimate reasons), leaving me, when reading into the case, to speculate about their final preferred outcomes;

xi) There was no attempt by the Local Authority to provide one pared-down trial bundle of the relevant material; I was provided with four lever arch files; no reading list and no reading time.

  • Lessons are obviously to be learned from the sorry state of affairs described in paragraph [3] above. I suspect that the facts outlined above speak for themselves. Lest they don’t, I expand more about them in the judgment which follows, and (in relation to (x) and (xi)) in the post-script which follows the judgment (see [105-111]).

 

I think that we are really close to the judiciary making human rights compensation orders in these cases – these children had on that reading been unlawfully accommodated for around 21 months, as the mother did not have capacity to consent to such accommodation.

 

Even more wretched than that, is that when the case was finally litigated, the Judge concluded that two of the children should be placed with a family member, their aunt. That could have been done much much earlier, and the children spent more time in care than was necessary. That’s a tragedy.

 

The judicial analysis and approach is excellent, and the judgment as a whole is worth reading.

 

Lest you think the whole thing is critical, the Judge was more than willing to lavish praise on those who deserved it.

 

 

  • Having identified some of the failures in the case, I turn next, and briefly, to one of its significant redeeming features. The role of the intermediary service.
  • I wish to pay particular tribute to Clare Jones and Rebecca Fletcher from Communicourt Limited who offered an excellent intermediary service to the Court for the mother in this case. The mother has significant communication difficulties, both with understanding and using language; this is likely to be attributable in part to her learning disability, and in part to acquiring English as a second language.
  • Ms Jones’ report, dated 20 February 2015, was clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother’s participation. Ms Jones was regrettably unable to attend the final hearing, and the intermediary service was therefore provided by Ms Fletcher, who performed her role with great skill and discretion. Ground rules had been set by HHJ Hudson at the IRH; these were re-visited at the outset of the hearing. Specific ground rules were set for the mother’s evidence, which we all endeavoured conscientiously to observe.
  • Overall, I was satisfied that the mother had been enabled to participate in the process as fully and effectively as could possibly be achieved. I am indebted to the intermediary service for its assistance

 

 

Comments Off on Your Honour, I am afraid that I have not done a position statement, but may I just hand this up?

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Adoption rates in freefall

Posted on May 15, 2015 by suesspiciousminds

I’ve been asked if I would write about the story in the newspapers this week about adoption rates going down and the blame being placed on some high profile case law decisions. This is the first time that I have ever received a request, so I should oblige.  [If anyone’s future request is that I write about my love of Jaime Lannister, or that Joe Hill’s Locke and Key is the best comic series since Grant Morrison’s run on Doom Patrol, then for those, it’s on like Donkey Kong]

 

The Painting that Ate Paris (Doom Patrol)

The Painting that Ate Paris (Doom Patrol)

 

Locke and Key - this is what happens when you use the Head key to look inside your own mind

Locke and Key – this is what happens when you use the Head key to look inside your own mind

 

 

So, here is the Independent piece – there’s a startlingly similar one in the The Times, but you need to pay Rupert Murdoch money to look at it. The choice is yours.

http://www.independent.co.uk/news/uk/home-news/adoption-rates-in-freefall-after-court-ruling-leaves-children-languishing-in-unsuitable-homes-10245614.html

 

This piece is very knowledgeable about family law and case law – more than you’d expect from a journalist. The fact that two newspaper articles with the same cases turned up this week makes me suspect a press release was involved.  The same piece appears on the BBC website.

 

Let’s have a look at it bit by bit.

The number of children being put forward for adoption has plummeted over the past year following a series of court rulings that have left local authorities frightened of removing them from birth families.

Child welfare experts are worried the decline will mean more children suffering in unsuitable and unsafe homes. It also means agonising delays for parents approved for adoption who now find no children are available.

The number of children signed off for adoption fell from 1,550 in the summer quarter of 2013 to 780 in the same period last year, down almost 50 per cent.  

 

Okay, well firstly, whilst one feels for an adopter who is waiting for a child, the family justice system isn’t, and shouldn’t be, prioritised to deliver children to adopters. The idea is that the family justice system tests fairly whether a parent can be helped to care for their child, with adoption being the last resort. Secondly, “Signed off for adoption” is not only a very ugly expression, it is hard to put a proper meaning on it. Does it mean “The Agency Decision maker decides that adoption is the plan the social worker should recommend to the Court”?  or does it mean “A Placement Order is made”?

As the Department for Education hasn’t published (yet) the statistics that is getting all of these newspapers up in arms, it is a bit difficult to tell. The thrust of the article suggests that the drop in figures is that Local Authorities are too scared to ask for adoption, so the assumption is that the drop here is in the number of APPLICATIONS for Placement Orders (i.e a social worker recommending to the Agency Decision Maker that adoption should be the plan and the ADM agreeing) – that in itself could be that social workers are asking the Agency Decision Maker less often, or that the Agency Decision Maker is saying no more often, or both.

That in turn could be because the thrust of the Re B, Re B-S et al decisions made social workers look harder and more carefully at whether adoption really was the right plan for a child – could more be done to support a parent, could those grandparents who are not ideal be good enough? Really hard to guage that from statistics – you’d need to have a look at a pile of actual cases and compare the sort of cases that were ending up with adoption in 2013 that are now ending up with parents or grandparents.  It is also difficult to know whether that’s a bad thing anyway. If the trend is to be more willing to work with parents or grandparents who are not perfect, but could be helped to be good enough, that could be a perfectly laudable aim. We might not know whether that greater willingness to give things a try was a long overdue adjustment or a bad mistake for a few years – the real test will be whether those attempts broke down.  At the moment, we can’t even tell if that’s what happened.

Certainly Local Authorities aren’t taking any less care proceedings than they used to. The latest CAFCASS statistics show that the number of applications is continuing to go up – 18% up on this time last year.

I honestly don’t think, and the recent clarifications from the Court of Appeal make this clear, that the caselaw ever meant that children should be “suffering in unsuitable and unsafe homes”. If the Court considers that the alternatives to adoption are unsuitable and unsafe, then adoption is going to be the outcome. Nothing has changed there. I also don’t think that social workers have decided to leave children “suffering in unsuitable and unsafe homes” as a result of Re B, Re B-S et al, rather than asking for adoption as the plan. What might have changed is that it is no longer enough to just assert that an alternative is ‘unsuitable’, but you have to evidence it. I don’t consider that a bad thing.

 

Next

But in November 2013 the President of the Family Court, Sir James Munby, made a ruling that left many local authorities convinced they must try every extended family member before putting a child up for adoption. The judge said that six-month targets for adoptions should not be allowed to break up families unnecessarily and that grandparents and other extended family members should be considered before placing children for adoption.

It had been hoped that a second ruling last December from the same judge, clarifying he had not changed the law in the original judgment, would curb the freefall in adoption numbers. But instead further rulings from Sir James and other judges have exacerbated the problem.

 

The first case is Re B-S  – and you can read my post about that case here https://suesspiciousminds.com/2013/09/17/this-is-some-serious-b-s/    – it was undoubtedly a big case, telling social workers, Guardians AND Judges that decision-making on adoption cases had gotten very sloppy and that the argument to justify making such a serious order needed to be clearer, stronger and more analytical. It was no longer enough to parrot stock phrases about why a child needed to be adopted – a proper comparison of the pros and cons of EACH option tailored for the individual child needed to take place. It is really hard to see much wrong with Re B-S. If anything, it should have been said years earlier. There’s nothing in it to suggest that a Court should leave a child ‘suffering in an unsafe and unsuitable home’

 

The scond case is Re R – and you can read my post about that case here https://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  – that clarifies that some of the more outlandish claims that lawyers had pushed to extremes about Re B-S – that it was a “climb every mountain, ford every stream, follow every river – before you make a Placement Order” case was not right, but that everything I just said above was still right, and the Supreme Court’s formulation that “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.”  was still bang on right.

 

Next – let’s have a look at these further confusing rulings

In January Sir James granted an appeal in a case in Liverpool where three children were taken away from a mother with a history of drug and alcohol abuse who was given no opportunity to prepare a case.

The President of the Family Court ruled that the “ruthlessly truncated process” employed by the earlier judge in the case – who had admitted he was motivated by a desire to embrace family justice reforms designed to encourage adoption – was “unprincipled and unfair”.

 

Well, that’s the His Honour Judge Dodds case, where he made Care Orders at the very first hearing (i.e in week one) in order to beat the week 26 target, even though nobody in the case had asked him to do that and there was no final evidence filed by anyone. That’s not a warning to Judges not to make adoption orders – that’s basic common sense that a Judge who behaves in a way that is utterly unfair is going to get overruled. Nobody with any common sense looked at that case and felt that it had worrying implications for adoption cases, or that it meant that children should be ‘suffering in unsuitable and unsafe homes” –  If you read this piece and think “Well, I don’t know why the Court of Appeal had any problem with what the Judge did” then I’m not sure I can help you. https://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

 

What’s the next ‘confusing’ ruling?  (I wasn’t in any way confused by the last one) – this one apparently had a “similar chilling effect on Local Authorities desire to expedite adoption cases” as the His Honour Judge Dodds one did.  (not that it should have done – the Dodds one wasn’t even about adoption)

 

Another case decided in January is understood to have had a similar chilling effect on local authorities’ desire to expedite adoption cases. Mr Justice Keehan ruled that Northamptonshire County Council had made “egregious failures” in its handling of the case of a baby taken into care without proper assessments of the mother or the maternal grandparents in Latvia. The baby was eventually placed with his maternal grandparents.

I wrote about that one too – you may pick up a slightly different tone from the title of the piece https://suesspiciousminds.com/2015/02/03/unfortunate-and-woeful-local-authority-failings/

This was just an old-fashioned Local Authority f**k-up. Sorry to anyone involved, but that’s what it was. This wasn’t a case where Local Authorities read it and it had a chilling effect on them, making them think “gosh, if social workers are getting told off for this exemplary work, then we may as well pack it in and let children suffer in unsuitable and unsafe homes” – it was one that you read and thought “If you f**ked up as royally as that, you are going to get the judicial ass-whupping that they got”.   There’s nothing in that case that would make anyone think “well, I really think in my heart of hearts that this child should be adopted, but because the law has done something weird and stupid, I guess I’ll have to leave the child to suffer in an unsuitable and unsafe home”

[Yes, I’m hammering home that phrase, because I think it is seriously misleading]

If there are Local Authorities, or social workers (and I really doubt it) that took the His Honour Judge Dodds decision and the Northamptonshire decision and interpreted them as ‘adoption is even harder to get now’  rather than ‘if you really screw something up, expect not to get away with it” then these articles are doing a great public service in correcting that total misapprehension and interpretation of the law.

Anything else?

 

No, there are no other “chilling” or “confusing” cases cited.  That’s a shame, because one could make a case for the President’s decision in Re A fits the bill far better than the two examples they have chosen.  https://suesspiciousminds.com/2015/02/17/a-tottering-edifice-built-on-inadequate-foundations/

 

For a start, it is a case where a Local Authority asked for adoption and didn’t get it – and walked away with nothing but a flea in their ear. More than that, it is a case where what looked like perfectly decent threshold criteria (the concerns that a Local Authority have to prove exist in order to get an order) was torn to bits by the Judge. And finally, it had principles and issues which affected all cases, not just the particular one being decided (unlike the two examples that were used), and there is a distinct possibility that that bar was raised, making Care Orders (and hence indirectly Placement Orders and hence adoptions) more difficult to obtain, since it is now harder to prove that the threshold is met.

But once again, the law is not saying that children ought to suffer in unsuitable and unsafe homes. It is saying that where a Local Authority says that a child should live somewhere else, they need to produce proper evidence and analysis to show WHY their home would be unsuitable and unsafe. Re B-S and Re A are not saying that adoption isn’t the right outcome for some children, but they are saying that where the State (whether that be a social worker or a Judge) is taking a child permanently away from a parent, the least that society can expect is that they both work very hard and have proper evidence and reasons for why that has to happen.

Perhaps when the stats do come out, the adoption figures really will have ‘fallen off a cliff’, just as the article claims.  Perhaps that is because social workers, lawyers, Agency Decision Makers and Judges are paralysed by chilling and confusing case law. But it might be that the numbers were too high before, and proper scrutiny of the evidence and proper analysis of what is really involved has meant that we aren’t placing children for adoption unless the proper tests are met.

 

Sometimes, an initial look at something can make you chilled and scared, and even want to throw stones. But a longer more detailed careful consideration can make you realise that Jaime Lannister kicks ass y’all, and that a Lannister always pays his debts.

 

Plus, he has a gold hand. A hand made of gold. What's not to like?

Plus, he has a gold hand. A hand made of gold. What’s not to like?

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Removal from grandparents under Interim Care Order

Posted on May 15, 2015 by suesspiciousminds

This is a curious appeal (I have to say that my gut feeling is that the grandparents were damn unlucky to lose this appeal, but of course the Court of Appeal have the benefit of seeing the papers and hearing the full argument. And each time I read the appeal judgment, my view that the grandparents were damn unlucky increased.  )

 

Re T (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed144754

There are two issues of wide import

 

1. That the test for removal under an ICO from grandparents is exactly the same as for removal from parents.

[Most of us thought this and worked on that premise, but it is helpful for the Court of Appeal to formally confirm it –  in short terms – the child’s safety must require immediate separation]

2. That the original trial Judge had not been fair in curtailing the time for the parents to seek a Stay application before the Court of Appeal – and had gone too far.

 

A stay, for those readers who are not lawyers, is an application that can be made to say “Don’t take the action that the Judge ordered, because I intend to appeal that order, and things should stay the same way as they are now until that appeal can be heard”  (think of it like a ‘stay of execution’)

In this case, a judgment concluding that Interim Care Orders were made and that the children could be removed by social workers was announced on Friday 30th January. Counsel for the grandparents immediately applied for a stay  (don’t remove the children until I can get before the Court of Appeal) . The Judge granted a stay until 2.30pm on Monday 2nd February, but didn’t send out his judgment until 1.00pm on that Monday. Even if counsel happened to be free and immediately available to look at the judgment the second the email arrived, that only gave 90 minutes to read it, draw up an appeal notice and lodge the appeal. Oh, and get before an Appeal Court to ask them for a stay. And have that application heard and decided. Ninety minutes doesn’t perhaps seem like a fair amount of time for that.

Mr Elliott of counsel seems to me a top bloke, but I don’t actually believe that he is the Fastest Man Alive (as anyone will know, that is Barry Allen. And yes, The Flash is faster than Superman)

 

except maybe Eobard Thawne, the Reverse Flash

Although counsel asked for the stay to be continued for longer, the Court were only prepared to grant him an extra ninety minutes. Thus, by the time that the grandparents case for an appeal was able to be considered, the children had already been removed – that must have massively damaged their prospects of success.

If the Court had been reasonable and granted the stay for say 24 hours after delivery of a judgment that was known to be likely to be appealed, that injustice would not have occurred.

14. Before descending to the merits of the appeal itself, it is necessary to dwell for a short time on the procedural progress of the appeal and in particular upon the paternal grandparents’ application for a stay of the interim care order to allow them to issue papers in the Court of Appeal and make application to this court for an extension of any stay until at least the permission to appeal application could be determined.

15. The sequence of events is that the judge, as I have indicated, announced his decision to make the interim care order on Friday, 30 January, but did not hand down his judgment until it was circulated by email to the advocates shortly after 1 pm on Monday, 2 February. On the application of counsel, Mr Mark Elliott, who has conspicuously and very effectively stood up for the interests of the paternal grandparents in these proceedings, the judge granted a stay on Friday, the 30th until 2.30 on Monday, 2 February. It became clear during the course of the morning of the Monday that preparation of the judgment was to an extent delayed and the judge therefore extended the stay to 3 pm on that day.

16. At the hearing which took place shortly after the judgment was circulated and I should indicate for these purposes the scale of the judgment, it runs to some 31 closely reasoned pages and amounts to 120 paragraphs the judge was asked to extend the stay until 3 pm on the following day, 24 hours later. However, the judge declined to do so and was only prepared to extend the stay until 4 pm on that day, 2 February. Counsel, Mr Elliott, those who instruct him and his clerks, were engaged in a process of trying to make contact with the Court of Appeal in order that their application for a further stay might be considered by this court. They were told that such an application could only be entertained if a formal notice was filed, and it simply was not possible for them to get the paperwork in order by 4 pm, when the judge’s stay expired.

17. The Local Authority were mindful of the procedural and professional difficulties that I have described, and they in fact allowed a further hour’s extension to 5 pm, but at 5 pm on 2 February, the children were removed from the paternal grandparents’ care. At shortly before 7 pm, Mr Elliott was able to make an oral application to the out of hours Lord Justice on duty on that night, but by then the children had been removed and the stay application fell to be considered in the colder light of day subsequently, and on that basis it was considered by me on 7 February, when at the same time I initially refused permission to appeal, and so the question of a stay did not arise.

18. I go through that procedural chronology for this reason: Mr Elliott as his fourth ground of appeal complains that the sequence of events and the limited stay granted by the judge was profoundly unfair to his clients, and also I think his submission is that it was not a procedural course which was in the best interests of the children. It effectively prevented an application for a stay being made to this court until the children had been removed.

19. In short terms, I think Mr Elliott’s point is very well made. This was not a case, happily, where the children were in any situation which could be described as immediate risk of physical harm. There was no emergency in that sense. The children had been living for a very substantial period of time in the grandparents’ home. The grandparents, we have been told, despite some concerns on the part of the social workers to the contrary, had not behaved in any unreasonable or worrying way in the intervening period between the Friday, when they heard that the order was to be made, and the Monday when judgment was handed down.

20. From the perspective of this court, it is difficult to see why Judge Meston felt unable to grant a stay of sufficient length to enable an application to be made to this court. It is well known, and has been the subject of judicial comment by judges of this court over a significant period of time, that judges at first instance, in a case which does not have the characters of a 999 emergency, should be encouraged to establish a short but reasonable stay to their orders in cases such as this so that an application can be made to this court. Judge Meston, hearing the case as he was on a Monday, might reasonably have contemplated a stay measured in the length of two or three days to allow an application to be made to this court as I have described, and not to do so seems to my eyes to be entirely unwarranted.

21. It is not – I do not think Mr Elliott argues it in this way – a ground of appeal that would lead me to hold that the judge’s overall order about the making of the interim care order should of itself be set aside, but insofar as I need to, I would agree entirely with the criticism of the judge’s process that is made in ground four.

 

On the facts of the case itself, the removal was not an emergency one – the Court had decided that the children’s needs were not being met but their safety wasn’t in jeopardy.

For my part, I’m not convinced that the ‘child’s safety requires immediate separation’ was borne out, but the Judge thought that it was, and so did the Court of Appeal.

 

My reading is more that the Local Authority were arguing that their assessment of the children’s needs was being hampered by them being with their grandparents and that removal into foster carer would allow for a better assessment. (I have heard that argument posited before, and I’ve always thought that it doesn’t meet the legal test for removal)

26. In addition, it is plain that Judge Meston in the course of his judgment considered that the plan to have these two children assessed in a neutral venue with skilled foster carers was a helpful step for the Local Authority to take. It would provide helpful, vital, information for those charged with drawing up any plan for the children’s future. It would also, if the grandparents were to become once again the full time carers of the children, give the grandparents much needed information about the sophisticated needs of these young children.

27. But again, it is plain on a reading of the judge’s judgment, and it is the submission of the Local Authority and the guardian in this case, that the judge did not make the order simply because he favoured the process of assessment that was available; he made the order, it is submitted by those who oppose the appeal, because he considered that the test of “safety demanding immediate separation” was met.

28. It is therefore necessary to see what the judge did or did not say about the level of harm to which the children were currently exposed in the grandparents’ home. Before descending into detail, it is helpful to summarise the case that is put by the Local Authority and the guardian. They do not assert that the grandparents themselves are fresh sources of significant harm to the children.

29. The case that is put is that these children have been profoundly damaged in an emotional and psychological way by the experience that they have previously lived through, and that in the care of the paternal grandparents, the need for enhanced parenting is not being met, and that despite their best endeavours the grandparents are simply not able to provide the sort of care that the children need, that the children’s behaviour is deteriorating and has been seen to deteriorate over time and contact which is supervised at times when the mother has observed them, and also more generally when observed by social workers. The Local Authority’s case, to put it in lay terms, was simply that “enough is enough”, the time has come when it is no longer in the children’s interests to be exposed to further deterioration in their emotional wellbeing.

 

[I interrupt. This is smacking to me of that rather insidious ‘reparative care’ argument…]

30. In the course of his submissions, Mr Hand has taken the court to a number of parts of the judge’s judgment where he refers to evidence about harm to the children that he has heard from the social worker and from the children’s guardian, and to findings that the judge has made. It is not necessary for me to turn to those parts of Mr Hand’s submissions which in my view did not advance his case to any great extent, but at paragraph 108 of the judgment, the judge said this:

“The nature of the harm suffered by the children is now clear enough, although the continuing risks to the children are less easy to measure; but in my judgment the risks are correctly seen to be significant, particularly if the children’s needs are not properly understood and managed by the grandparents, and particularly if the father is not seen by them as a source of risk, and/or if the conflicts between the two sides of the family remain or revive. The father’s hostility to the mother and their immature relationship was a striking feature of the evidence. The concerns about the grandparents’ attitude of the social workers is another worrying feature. Only further assessment will show whether the grandparents have developed, or can develop, some insight which can be put into practice.”

The judge had already made findings in a number of places about the need for the children to have enhanced parenting. He said at paragraph 107:

“They are also said now to require reparative care, with a high standard of skill, insight and consistency.”

[Yes, there’s the reparative care bit]

31. Looking back to an earlier stage of the judgment, in paragraph 92, the judge there lists the findings that the Local Authority sought in relation to the grandparents. Most of those are not directly relevant to the issue of harm to the children now, but the judge does say this at subparagraphs 9, 10 and 11:

“(9) The Local Authority point to the deterioration in the children’s behaviour since September shown by the mother’s statement, the contact records and the school reports.

There is no doubt that there have been serious problems in the children’s behaviour which was noted by almost all the professionals. As was said by the social worker, it was not suggested that the grandparents have been the cause of this behaviour but that their ability to manage it is limited. As was said by RP, J has sought attention by a level of negative behaviour which is not normal for the behaviour of a four year old, and she described his behaviour as escalating without strategy and routine.

(10) The Local Authority contend that the paternal grandparents struggle to set appropriate boundaries for the children. In the parenting assessment J was noted to be violent to L without there being any reprimands or other consequential for his action. In general his behaviour is challenging.

Clearly the behaviour of J, in particular, has been remarkably difficult for the grandparents to deal with, and if it continues there will be serious implications for his development and for the relationship between him and his sister.

(11) The Local Authority submit that the children have suffered significant harm and disruption in their lives to date because of the care provided by the parents, and that the children have a heightened need for stability and consistency and require reparative parenting. L also has special educational needs and requires better than good enough parenting which the grandparents are not in a position to meet. In this respect it is submitted that the paternal grandparents are not in a position to meet those needs for the rest of the children’s minorities.

There is no dispute that the children have suffered significant harm and disruption and there can be no dispute that they have a particular need for stability and consistency and require reparative parenting. The evidence overall does raise very real doubts about the abilities of the grandparents to meet the children’s particular needs.”

32. Of that material, Mr Hand in particular draws attention to subparagraph 10, where focus is placed upon the behaviour of J and the fact that the grandparents find that behaviour remarkably difficult to deal with. Within that subparagraph, I would stress the following; the judge says:

” … if it continues, there will be serious implications for his development and for the relationship between him and his sister.”

Pausing there, that is a plain highlighting by the judge of a profoundly important long term factor in the case. The starting point for any consideration of a child’s welfare is that it is normally likely to be in his or her interests to be brought up with and continue to live with any siblings. What the judge identifies at subparagraph 10 is a potential for J’s behaviour, if it continues to deteriorate or even be maintained at its current level, to call into question his ability long term to find a home with his sister.

33. The judge, having made those particular findings, moves on in his judgment to cast them within the test of identifying safety requiring immediate separation. The judge says this at paragraph 103:

“At this stage and on the evidence available I do not propose to rule out the paternal grandparents from further consideration as potential carers for the children (or either of them). They are devoted grandparents who have been prepared to take on the children, and they might have taken a more constructive position had they had legal representation at an earlier stage and perhaps, thereby they might have obtained more support from the Local Authority. They almost certainly now represent the only chance of keeping the children within their birth family. Although there is considerable force in the criticisms of the grandparents it is necessary to be cautious before deciding that they are not, and could not become, a realistic option (even if that turns out to be an option to be considered for only one of the children). At a final hearing the realism or otherwise of that option is likely to depend upon (among other things): (a) evidence that their attitude to the inevitable constraints and intrusions of Local Authority involvement really has changed, and that any improvements are not superficial as the social worker suspected they were; (b) further (and better) evidence about the grandmother’s medical condition and prognosis; and (c) the availability of effective measures to protect the children from harm in the longer term.”

There the judge, as well as stating that he is not ruling the grandparents out, does identify serious deficits in their ability to care that require attention in terms of further evidence at the hearing.

34. Turning to the harm in relation to the children, the judge says this at paragraph 108:

“The nature of the harm suffered by the children is now clear enough, although the continuing risks to the children are less easy to measure; but in my judgment the risks are correctly seen to be significant, particularly if the children’s needs are not properly understood and managed by the grandparents, and particularly if the father is not seen by them as a source of risk, and/or if the conflicts between the two sides of the family remain or revive. The father’s hostility to the mother and their immature relationship was a striking feature of the evidence. The concerns about the grandparents’ attitude of the social workers is another worrying feature. Only further assessment will show whether the grandparents have developed, or can develop, some insight which can be put into practice.”

35. Drawing matters to a conclusion, the judge describes his analysis at paragraphs 113, 114, 115 and 116, before stating his conclusion at 119:

“113. I accept the fundamental arguments advanced by the Local Authority and guardian that it is now essential and urgent for the long term needs of the children to be assessed to inform the final care plans, and that in the circumstances of this case the necessary assessment cannot properly be carried out while the children remain in the care of the paternal grandparents.

[interruption – of course, that’s not a safety issue]

114. Secondly, the Local Authority and guardian argue that the evidence of the children’s continuing and deteriorating behaviour, not least towards each other, shows the extent to which the children have been damaged in their upbringing and shows the limited ability of both paternal grandparents to understand and manage the children’s situation and needs. In essence the contention of the Local Authority and guardian was that the situation is bad and could get worse; and although there has been no obvious emergency that requires immediate removal of the children, there has been a growing level of concern and the situation is serious and urgent enough to justify such a removal.

115. In looking at the evidence overall including the incidents and difficulties indicating harm to the children and the risks of harm, I have tried to assess whether these are really long term welfare concerns, rather than concerns which involve a current risk to safety.

[That’s really the nub of the case – these could all be categorised as long term concerns, rather than immediate safety ones]

116. I accept the evidence of the social worker and guardian that things cannot remain as they are. The concerns of the Local Authority are valid and are justified by the evidence. The need to understand, manage and address the problems and needs of L and J and the potential for further damage to them outweigh the arguments for leaving the children with the grandparents in the hope that the grandparents continue to control their attitude to the Local Authority and their reluctance to cooperate, and in the hope that the grandparents can shortly acquire the skills and insight they lack.
…

119. In the light of all the evidence I have concluded that there is sufficient concern about the children’s emotional and psychological safety to justify the orders sought for the reasons advanced by the Local Authority and guardian. I have therefore decided that it is necessary and proportionate to approve the proposals of the Local Authority for removal of the children.”

Given the importance of a finding that the child’s safety require immediate separation, this seems somewhat thin.

36. Mr Elliott in his submissions to the court accepts as a matter of fact that the judge did identify harm of the nature that I have now described, and did seek to cast it in the context of current safety needs, but he submits that the element of harm that is identified simply does not come within what the case law requires. He says this is emotional harm and at no stage does the judge identify why at that date, in January 2015, the children required removal from the home because of the impact on their emotional wellbeing, when that had not been sought at an earlier stage and when the court was going to look at the whole question of the children’s future wellbeing only some four months further in the future. He submits that the judge simply did not achieve findings that got as far as identifying the children’s immediate safety needs, in emotional terms, requiring removal on that day.

37. I am bound to say, when I granted permission to appeal and when I heard Mr Elliott’s submissions this morning, I too could readily identify the dislocation that he draws attention to between the judge on the one hand saying “I do not rule these grandparents out as long term carers,” but on the other hand saying nevertheless the children’s circumstances require immediate removal.

38. Having now had the benefit of being taken to the detail of the judgment by Mr Hand in the way that I have described, I take a contrary view. The judge declined to rule out the grandparents at that stage for reasons to do with their long term capacity to be carers of the children. For the judge, the jury was still out on the question of whether or not the grandparents could bring themselves to meet the needs of the children long term, and the issues that the Local Authority had sought to identify, which included matters to do with the grandmother’s health, the ability of the grandfather to devote himself more fully to the care of the children alongside his laudable and clear desire to work hard in his chosen trade, and other matters, were long term issues that required further investigation.

39. They are, I now accept, separate matters from the immediate wellbeing of the children, and I can see how this experienced family judge, who had become immersed in the evidence of this case over the course of five days, who said that he was considering the test of safety requiring immediate separation, could come to the view that the children’s safety in emotional terms did indeed require separation at this stage.

40. For me, the elements of the evidence that I have drawn attention to, that we have been led to by Mr Hand, establish the context within which the judge’s decision can be seen to be justified in evidential terms, and also justified as a conclusion. In particular, paragraph 92 subsection 10, to which I have already drawn attention, is striking. The judge there is identifying the status quo in the grandparents’ home, where J was behaving in a way that the grandparents found remarkably difficult to deal with, but also in a way which had “serious implications for his development”, and which might, if it was allowed to continue and consolidate, pass the point of no return so that the option of this boy being able to grow up in the same home as his sister might be lost, in terms of safety in emotional terms, requiring immediate separation. To my eyes, that point alone would justify the order that the judge made.

41. Secondly, I have already described the approach of the judge and the experience of the judge. Where a judge correctly identifies the legal test, says he is applying it, and says he has the evidence which justifies that conclusion, and is able in the course of the judgment to refer to that evidence, this court should be slow to interfere and say he is wrong. There is no indication here that there was an error of principle in the judge’s conclusion, and to my mind he should be given a substantial margin of respect by this court in having conducted the exercise that he said he had undertaken.

I think the grandparents were unlucky here – I would have been fairly confident about their appeal had I been them, and fairly doubtful if I had been for the Local Authority.  Interesting that MacFarlane LJ thought that in and of itself – J’s behaviour might lead to him and his sister not being able to be placed together in the future as being sufficient for a finding of ‘safety requires immediate separation’.  I see that particular formulation being deployed in future cases.  How does one assess a ‘might’?  Is it necessary to show that it is more likely than not to happen, or is it sufficient to be a risk that cannot sensibly be ignored?

This is what Lord Justice Ryder had to say on the issue

44. The judge identified the correct test in principle. He was perhaps less clear in a detailed judgment about his analysis of the findings that he made and the prima facie evidence that existed. This court has, however, been assisted by the submissions of counsel for the Local Authority, the children’s guardian, and the appellant paternal grandparents. It is now sufficiently clear that the judge accepted the evidence of the Local Authority witnesses and the analysis of the children’s guardian that the children had suffered significant emotional harm in the care of their parents, and importantly that that harm had continued in the care of the paternal grandparents. The behaviour of the children as between each other, in particular from the child J towards his sister, had continued and deteriorated in the paternal grandparents’ care, to the extent that one of the risks identified was that as a consequence of their behaviour, the children may have to be separated such that they might not be able to be cared for together by anyone. That was capable of being characterised as a safety question that demanded immediate separation; i.e. to put it colloquially, enough was enough. 

Let us hope that ‘enough was enough’ does not become the latest soundbite to be shoved into every submission and skeleton argument in the next six months.

Note also the continuing trend of the Court of Appeal to move away from where they were on appeals post Re B, where a judgment needed to be a stand-alone document explaining and making plain why a decision had been made to a position where now the Court of Appeal are willing with a judgment that is thin in places to open up the luggage of the case and have a good rumage around to see if there are garments within that could cover the barer patches of the judgment so as to preserve its modesty.

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Costs argument between Official Solicitor and Mail on Sunday

Posted on May 15, 2015 by suesspiciousminds

 

The Court of Appeal dealt with an appeal arising from a costs order made by the President in the Re G case.

The Re G case is an incredibly controversial one, which has now been before three High Court Judges and the Court of Appeal, and involves a Court of Protection application to protect the finances of a woman aged ninety four from carers who were urging her to change her will in their favour  OR a Local Authority dragging a ninety four year old into Court and trying to control her life and gag and silence her  (depending on which side of the controversy you stand).

 

I summarised all the controversial litigation in this post here https://suesspiciousminds.com/2014/05/02/journalists-right-to-private-and-family-life-with-her-source/

 

In the very last batch of the litigation, the Mail on Sunday tried to become a party to the Court of Protection proceedings, wanting an input into the letter of instruction to the expert who would be considering whether G had capacity to make her own decision about talking to the Press or whether she did not; and also running the argument that the journalist had an article 8 right to private and family life with G  (you might think that was a curious argument, but the President didn’t actually reject it)

At the end, the Mail on Sunday having lost in all of its applications, the Court ordered that the Mail on Sunday pay 30% of the costs of the Official Solicitor  (let’s quickly remember that all of the Official Solicitors costs are met out of G’s estate, so this was a hearing that cost G money) and 30% of the costs of the Local Authority.

 

The Official Solicitor appealed that order, seeking 100% of its costs. The Local Authority did not appeal the order.

Re G (an Adult) by her litigation friend the Official Solicitor (costs) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/446.html

 

The Court of Appeal considered that the President had struck the right balance [Or certainly that it could not be said that he had been wrong]. Yes, the Mail on Sunday had lost all of their applications, and G’s estate had incurred costs as a result. But also, important (and previously unlitigated) issues of principle had been raised and now resolved to the benefit of public policy. Therefore, it was right that the Mail on Sunday pay some, but not all of G’s costs.

  1. Given the terms of the rule, the challenge to the President’s exercise of discretion is a bold submission. The President set out his reasons. He applied the framework set out in the rules. He identified those matters to which he gave weight. Given that he had concluded that the Official Solicitor had triggered ANL’s application and that he had not understood the public importance of the media’s general role, a proportionate order was an unsurprising outcome. An appeal against the exercise by a judge of his discretion faces a high hurdle. I shall give just one well known example of that hurdle as described by this court in respect of proceedings in this jurisdiction: Burchell and Ballard [2005] EWCA Civ 358, [2005] CP Rep 36 at [25] per Ward LJ:

    “Appeals against orders for costs are notoriously difficult to sustain. That is because the trial judge has a wide discretion with the result that this court will only interfere with his decision if he has exceeded the generous ambit within which there is usually much room for reasonable disagreement or because, even more unusually, he has erred in principle.”

  2. One only has to consider the exercise of discretion in this case from a perspective other than the Official Solicitor’s to understand the point. It was reasonable for the media to raise an issue of public importance and the Official Solicitor failed to understand that issue. The letters written on behalf of the Official Solicitor were wrong and that was conduct before the application and within the proceedings. In this appeal Mr Patel seeks to explain the Official Solicitor’s stance by postulating that any journalist who intruded into G’s private affairs would have been unjustified given Cobb J’s interim declarations and the Press Complaints Commission Editor’s Code of Conduct, but that involves issues of fact which were not established. ANL’s response was wholly misconceived and that was conduct within the proceedings. ANL achieved one of the ends they pursued which was the issue of public importance relating to the role of the media that was triggered in the manner described.
  3. In my judgment the Official Solicitor succeeded on the application i.e. he won a battle but lost a point of principle. ANL lost the application but achieved clarity in relation to a point of principle. None of this should be taken to be an encouragement to the media to use misconceived applications of this kind but it seems to me to be impossible for the Official Solicitor to succeed in arguing that the President exceeded the broad ambit of his discretion by placing too much emphasis on one factor or too little emphasis on another such that he was wrong.
  4. There is one further argument that tells against the second ground of the appeal and that is whether and to what extent ANL should pay two sets of costs. It is submitted by Mr Patel that this was irrelevant. I disagree. The President cannot be said to have been wrong in principle to raise a question that is within the framework of the rules and the terms of rule 159 CoPR. In doing so he apprehended a general principle applied from the administrative law context. There is ample authority for the proposition that multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs. See, for example, the proposition cited with approval by Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment and Ors [1995] 1 WLR 1177 at 1178:

    “In my judgment in circumstances such as these where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs”

  5. The President would have had that principle well in mind given his decision in R (Smeaton) v Secretary of State for Health [2002] 2 FLR 146 at 245 where he overtly applied the principle.
  6. For these reasons I concurred in the dismissal of the appeal. At the conclusion of the proceedings the court expressed its strong view that this appeal should not have any adverse financial effect upon the assets of G. The Official Solicitor has considered that view and I am grateful to him for his confirmation that G will not bear the costs of this appeal.

I was wondering the other day what had finally happened with this case. I still don’t know, but there must have either been a hearing, or be one coming up soon.

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Court of Appeal – split hearings aren’t to be used for ‘whodunnits’

Posted on May 11, 2015 by suesspiciousminds

Not their exact words, you understand.

These are their exact words:-

 

  1. The hearing at the end of which the findings were made was what is known as a ‘split hearing’ i.e. a hearing limited to a discrete issue of fact without a full analysis of the welfare context. Counsel for the parties before this court acknowledged that the decision to have a split hearing which was taken by a different judge when different advocates were involved cannot have been right given that the issue to be decided was perpetration in the context of an incident of harm, rather than whether the harm occurred.
  2. It is unnecessary for this court to do other than refer to the clear guidance on the point that has been firmly and repeatedly given by this court but just as repeatedly ignored, see for example In the matter of S (A Child) [2014] EWCA Civ 25 at [27] to [31]. There is no discrete issue that would determine the proceedings in a case like this where harm has been suffered and the perpetrator of that harm is unknown. The social work assessments of those in the pool of potential perpetrators may cast important light on the allegations that are to be determined and upon the reliability of those in the pool and the other witnesses and materials that are available

 

Re BK-S (children) (Expert evidence and probability) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/442.html

If you were wondering which appeal judge was standing up for Lord Justice Ryder’s lead decision in the little-loved Re S (a child) 2014 which effectively banished split hearings for anything other than the most serious case (even though split hearings were invented by the Children Act advisory committee and endorsed by the House of Lords)… well, you aren’t really wondering that, are you?

 

[If you are, then I would like to talk to you about my new business opportunity, where investors get to buy tonnes of gold for the price of grammes of gold. This gold will be all yours when the Sun enters its supernova phase.  The price of gold will likely to increase all the time that your investment is maturing, making this an even more profitable venture. It really is a once in a lifetime investment opportunity]

It is an interesting case in itself, a 6 month child who had been administered (by an adult) doses of an anti-psychotic medication over a period of time. It was established by toxicology reports and medical evidence that the child had been given this drug, Olanzepine, and that it had caused him significant harm. The only real issue was whether it had been given by father, mother or paternal grandfather.

 

The parents were separated, and thus there was quite a clear log of who had been caring for the child on particular days. And the expert called (and then re-called) was able to give quite detailed accounts about how the test results showed the level of Olanzepine, and how Olanzepine has a half-life  (i.e if someone takes 100 milligrams of  X time, there would be say 50 milligrams, and after 2X time, 25 milligrams, and so on), such that calculations can be done to work back from the level to calculate when the drug was taken. Or in this case administered.

The difficulty was that all of that information on half-life is based on adults. For a child of six months, the half-life might be different. It might react more quickly, or more slowly, or have greater symptoms.  The reference to Tanoshima here is the name of a study – both are on single children, because obviously there are ethical medical issues on giving anti-psychotics to 100 infants to see how quickly it comes out of their system.

 

  1. When Professor Johnston was recalled on 28 May 2014, the following oral evidence was adduced:

    “Q. [..] There are two reported studies. One that says a half life is 11.6 hours in a 28 month old child. The other one is 13.72 hours for a child of 17 months.

    A. Yes.

    […]

    Q. Can we safely assume – and I mean with almost certainty – that the half life of [Z] would have been less than 21 hours?

    A. I think that would be a reasonable assumption.

    Q. Yes. I think you also said in your previous evidence that it would be a reasonable assumption to take the 13.7 in the Tanoshima case as well?

    A. Yes.

    Q. Would that be right? So if I were for instance to take 18 hours, that would be safe as well?

    A. Yes.”

  2. The judge accepted the evidence that was adduced in the following passage in his judgment:

    “Professor Johnston agreed that to assume a half life between 21 and 13.7 hours would be likely, but that working on a half life of 18 hours in those circumstances would be safe.”

 

On reading that, I can instantly see the appeal point. If the half-life was taken by the Judge as being probably 18 hours, but between 13.7 hours and 21 hours, and that took one person OUT of the pool of perpetrators and made it more likely than not that the other person administered the drug, then an alternative reading of the evidence given might be

“So it is very difficult to be sure of the half-life of Olanzepine in a child of this age, because the research deals with only two children, and both are much much older. It would be unwise to place reliance on hard and fast numbers to resolve this problem”   (my words, but I guess that’s what counsel had been driving at with those questions)

The Court of Appeal considered that the Judge had not been wrong to follow the expert evidence and to make the finding that Olanzepine had been administered to the child on a date when mother had been in hospital with the child and father had not been present – thus that the mother had been the person who administered the drug to him.

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My blood runs wild (and not as a result of angels in the centrefold)

Posted on May 11, 2015 by suesspiciousminds

 

I often kvetch about the President’s burning desire to make the welfare of the bundle paramount (which on the ground is resulting in me spending hours of precious time removing actual EVIDENCE that the Court has ordered be filed from bundles, negotiating with other sides about what statements should be removed, and bracing myself for the inevitable complaints at the final hearing that the whole case is now going to turn on that document), but I do think that His Honour Judge Wildblood QC has a point here.

 

Re A and B (children : fact finding) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B48.html

[Of course, when the Judge reads the next blog post, about Ryder LJ’s further pronouncement in the Court of Appeal on fact-finding, he will observe that fact finding hearings are still effectively banned and thus the hearing ought to have never happened, but that’s by the by]

 

i) The bundles. To deliver eight lever arch files to a judge on a Thursday evening for him to start a case on Monday morning is unrealistic where the summarising documentation is inadequate. To those who did so I pose this question: ‘How long would it take you to read that amount of material?’ During the hearing I asked what the advocates’ expectations were of me in relation to enclosures M, N, P and Q which extend to over 1,250 pages which had not been adequately summarised (medical records, Local Authority records etc) and the discussion ended with me understanding that I was asked to read them and summarise them myself during the hearing. That would have been manifestly unfair because the advocates and parties would not then know what I was taking into account when reaching a decision before I did so and would not have an opportunity to comment on things that I discovered. In the end I required a list of pages to be given to me from enclosures M and N and read those. I read the whole of enclosures P and Q over two nights (a total of 542 pages). If I had attempted to read 1,250 pages and each page had taken an average of one minute to read and summarise it would have involved over twenty hours of reading mid-case on part only of the documentation that was filed.

ii) The case was given a three day time estimate which was never realistic, particularly if I was going to be expected to read that amount of material during it. As it is I have dealt with the case in five days and have typed this judgment during the fifth day.

iii) The bundles that were produced were in disarray. Many pages were blank. Many reports were repeated. Some pages were upside down. The medical records were not in chronological order and switched between years randomly. Important documents were not included.

 

Even the purpose of this hearing was somewhat hard to fathom – there were two children A (aged 10) and his half-brother B (aged 7 months). A was in care for other reasons and B was living happily with his mother, about whom no complaint was made. The allegations related solely to the father – there was no proposal that the father move back in with the mother, and his contact was supervised twice per week. There were a wide range of allegations made against the father by the Local Authority (most having emerged from A himself).

  1. In this judgment I am critical of the Local Authority. I list the main reasons why at the end of the judgment. I consider that it has approached this hearing without any adequate consideration of the quality of the evidence that it could place before the court. Its approach has been unrealistic and lacking in analysis. As a consequence, scarce resources have been wasted.
  2. This has been a five day hearing which came into my list two working days before it started, bearing eight lever arch files. On the working day before the case started I held a telephone directions hearing in which Advocate B, Counsel for M2, rightly questioned the proportionality of it proceeding but was told by the Local Authority that it thought the hearing to be necessary; I had not been able to read enough of the papers overnight to intervene. I regret that.
  3. Given the outcome of this hearing I think that very little has been achieved from it. He oldest child, A, is in care and, by mutual agreement, does not have contact with his father, his mother or M2. There is very clear evidence that B’s mother cares for B well. She and B have lived together in a residential placement since 19th December 2014. Within the parenting assessment undertaken by the Local Authority at E106 the following is stated at E125 : ‘I do consider that B’s mother can care for him adequately in the community at this stage…[E126]…She has been unfailingly polite, patient, co operative and compliant throughout this assessment. She has responded to advice and guidance with polite interest but [we] have not been entirely convinced that she welcomed it…[E131] …there have been no concerns about her care and he is a healthy, happy baby who is thriving’. B’s mother has been assessed over a long period of time. The father, from whom she is now separated, has contact with B twice a week under supervision. The Local Authority’s position is that B’s mother has been assessed whilst in her current placement and that ‘no concerns have been raised with regards to her basic care of B’.
  4. As will be plain I have rejected most of the allegations that the Local Authority has made. Much of the Local Authority’s case rested on things that A has said against the father. In the telephone directions hearing that I held before the case started I enquired whether the Local Authority regarded A as a reliable source of evidence. I was told that it did; as the evidence (both expert and factual) shows, that was totally unrealistic. When I asked the child’s solicitor what the guardian’s assessment was of the reliability of A I was told that the guardian was away (and has remained away during this hearing) and so it was not possible to answer my question, a response that does not require further comment.

 

[Although that response does not require further comment, I must remark that there is considerable restraint being exercised there. On a case that turns largely on the reliability of A as a complainant, it is astonishing for the Guardian or those representing her not to have a view as to that reliability.]

 

The Judge was also rightly unhappy that the chronology provided was wholly inadequate. The absence of a full chronology meant that several vital questions were unanswered and could only be established by a trawl through the eight bundles of evidence.

 

  1. Chronology – As I state at the end of this judgment when I deal with matters of practice, there was no adequate chronology in this case to summarise the evidence and put matters in context. As Lady Hale observed in a case relating to another area of family law (home ownership), context is everything. For instance (and this is an abbreviated list) i) What preceded the ABE interviews? ii) When did the child make the first allegations against the father? iii) When was the firebell incident (when A says in interview the father began to abuse him physically)? iv) What sexualised behaviour did the child exhibit and when? v) What other false allegations had the child made and when? vi) What state was the child in when he came from Portugal? vii) What happened in the first set of proceedings which ended in August 2013? viii) What was A’s weight loss (see above)? ix) When did A make the first allegation against M2? x) What role did M2 play in A’s care? xi) What does the information from the school demonstrate when it is put into a schedule (I had to require production of the school / home books and the ‘SF’ file was handed in at the start of the hearing)?
  2. It has been left to me to put the evidence in order (and I say more about this at the end of the judgment). That being so I think that it is essential to put the case into its chronological perspective if any sense is to be made of it and I have done that by putting the evidence into chronological order. The result is a judgment of much greater length than I would have liked which has taken me a very long time to produce. I have typed it within the five day listing that I have had to allow for this case

 

The judicially composed chronology is excellent, and completely necessary to make proper sense of the case.  Of course, whilst it is excellent and necessary, it breaches the President’s guidance on chronologies, by first going back further than 2 years in time, and second it is far longer than the President’s mandate.

I can’t say that I’ve ever heard of a Judge having to produce their own chronology, however. That is not an activity that is likely to make him warm to the applicant’s case.

 

The Judge also felt that none of the professionals involved – either the professional clients or the lawyers had properly attempted to analyse the evidence. With eight bundles having been produced, everyone had clearly been very dilligent in identifying bits of paper that needed to be collected up and distributed, but somewhat lacking in the process of analysing where all this evidence would take the Court.

v) The advocates themselves had not seen relevant material. The papers from the previous proceedings were produced late and omitted important material, such as the threshold document from the 2013 proceedings. Nobody knew, when the case started, what had happened about the January 2013 allegations within those proceedings. There was no mention of the parenting assessment, the psychological report or the guardian’s report in the chronology. I had to call for the threshold document from those proceedings. The chronology jumps from 21/01/13 to 01/05/2013 then to 10/10/2013 and therefore somersaults over the 2013 proceedings. That is just not sensible.

vi) It was perfectly plain to me that there had been no realistic assessment of the evidence that was being placed before me by the Local Authority, upon whom the burden of proof rests. The Local Authority is the prosecuting authority and has the burden and responsibility of proving the case that it brings. There are many examples of this. A particularly obvious one is that A says that his father started to hit him after the firebell incident in July 2013 – what impact did that have on the January 2013 allegations against the father? The sexual allegations against M2 should have been put in the context of the other material, not least the similar and false allegations that A had made against others. The chronology that I have put together (which can be compared with the Local Authority chronology) speaks for itself. Huge parts of relevant and important evidence had been omitted in the Local Authority’s analysis.

vii) There has been no overview by the Local Authority or by the guardian (and I deliberately include the guardian and the child’s solicitor in this) about the reliability of the child’s evidence. That is not the fault of this child. But it does mean that before presenting a case that is so heavily dependent upon what the child has said it is of obvious importance to consider the reliability of the child as a source of evidence. I held a telephone conference hearing on the Friday before the case started and I asked for the Local Authority’s assessment of the child’s reliability. The guardian’s solicitor told me that the guardian was not available and she could not take instructions on that issue. The Local Authority counsel told me that the Local Authority viewed A as a reliable source of evidence. It was plain that there had been no proper assessment of this issue and that there had been no proper thought given to the many untrue allegations that this child had also made. That is not just unfair to the parties but it is unfair on the child whose future should not be subject to such a process.

viii) The important evidence relating to A’s weight and the condition of his feet and hands was not summarised or analysed before the case started. I created the weight chart which I extracted from the papers. Other than that the important job of seeing what the child’s weight had been had been covered by Dr GR in his report. If the point was to be made and proved it needed to be supported by evidence from the medical records. The child’s solicitor tried to cross examine on this point without any information from or reference to those records and, in doing so, sought to make a point that was wholly invalid. As to the state of A’s feet in January 2014 it was necessary for me to require an analysis of the level of pain that the child would have felt at the time that the blisters etc were developing (would it have been obvious to his carers that he was so injured?); I very nearly made a totally false assumption that the child would have been in obvious pain (as to which see Q10).

ix) Despite the abundance of evidence about the psychological difficulties that A has, there is no evidence that any consideration was given to how A should be interviewed in the light of his very specific difficulties. The questioning that I saw gave no demonstration at all of questioning being crafted by reference to those difficulties or in a way that reflected the very large amount of medical information that was available in relation to him.

x) There was a wrongful absence of enquiry into the interview that took place on 15th January 2013 [the M10 interview]. There was no recording of it or any evidence of an investigation arising from what A said in it. There is no point in me expressing my opinion about the standard of practice that those absences demonstrate because the points are too obvious.

 

 

None of the findings sought by the Local Authority (and supported by the Guardian) were made. It is therefore theoretically possible that either of them could appeal. I really wouldn’t….

 

 

 

 

The spine was white like snowflakes

No one could ever stain

But lifting all these bundles

Could only bring me pain

 

Hours go by, I’m flicking through, I’m reading J nineteen

But there’s no hint of threshold, on the pages in between

 

My blood runs wild

I can’t believe this crap they’ve filed

My blood runs cold

The chronology is not that old

Chronology is not that old

 

Na na na na na na na na na

 

(Apologies to the J-Geils band)

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Cards face upwards – Local Authorities and judicial review

Posted on May 8, 2015 by suesspiciousminds

 

I daresay that most of my readers don’t also read planning law (and neither do I), but Midcounties Co-Operative Ltd v. Forest of Dean [2015] has some wider importance.

 

There are times when Local Authorities get judicially reviewed, and the Court in this case set out that there are rules that apply to public bodies in their interactions with the Court that there aren’t with private litigants.

David Hart QC’s summary of the case over at UK Human Rights blog is something that I couldn’t better, so I will give you the link so that you can see how it should be done.

Local authorities and judicial review: they should not put their heads completely in the sands

 

The nub of it is, that a Local Authority was being judicially reviewed for its planning decision to allow a Tescos out of town supermarket – as this was the third time, they decided that they’d had enough of Court and would decline to participate and just let the wealthy supermarket fight the case if they wanted to.  (That doesn’t really work, since the supermarket chain weren’t a public body accused of behaving unreasonably – it was the Council’s decision to grant permission that was under review, not the supermarket’s decision to ask for it)

More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular ….. a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.

 

The Court rather neatly set out what a Local Authority who proposed not to settle a JR but not to actively attend and fight it would have to do.  (And if you read all of this and say “well, they might as well either settle or turn up and fight if they have to do all of this”, that’s rather the point)

It should at least consider the following:

(1) whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;

(2) whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;

(3) whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;

(4) whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.

 

I suppose that technically, a Local Authority who have decided not to turn up to fight their own judicial review might say “Well, our obligation was to consider WHETHER to do those things. And we considered it and decided that we didn’t”

I don’t recommend that. I don’t recommend that at all.

If, many years ago, my friend Simon had asked me for advice before he went up to a nightclub bouncer and said  “You think you’re so hard, because you’ve got muscles, do you want to step outside and we’ll find out how hard you really are?”, I would not have recommended that.  I would have used similar tones and certainty in my advice to Simon as I would to a client suggesting the above approach to judicial review – if somewhat less colourful language.

 

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Things I’d like to see in judgments (but never expect to)

Posted on May 7, 2015 by suesspiciousminds

Some childish nonsense – title explains it all.

Poor Mr Crumpet of counsel is going to be the whipping boy in a lot of this. Picture whoever you like as Mr Crumpet.

 

“Having consulted the authorities presented before me, there does indeed appear to be no reason in law why a man may not marry a squid”

 

“Mr Crumpet, it did not augur well for your client on his entry to the Drug and Alcohol Court that he formed entirely the wrong impression about the ambit and ambience of said Court and had partaken heavily of both on his way there, to as he put it ‘get the party started’ ”

“I am aware, as Mr Crumpet pointed out that the mother has before her an extremely long and difficult road. He pleaded this as a reason not to attempt rehabilitation and not to go down that road. A wise man put it best – Roads ? Where we’re going, we don’t need roads”

 

“I find that they were the footprints of an enormous hound”

 

“I am reliably informed that the powers of the inherent jurisdiction are theoretically limitless, and therefore, I exercise my powers under the Inherent Jurisdiction to award everyone in the case a dinosaur and I shall from this point onwards have always been the drummer in the Beatles, with all that entails”

 

“This is an intractable contact dispute, almost impossible to resolve. Therefore, I have decided  – pud pie, straight to London, no tipsys”   *      (that might make no sense to Southern readers, sorry. Explanation at foot of page. You’ll all be doing it next week. It would sort this election nonsense out. )

“I want to give a big shout out in this judgment to Dr Kutten-paste – you da man! His evidence was the bomb, I’m sure you’ll all agree. The Bomb. ”

“Mr Grayling, I see that you have come before me today unrepresented as a result of the LASPO reforms, and you stand to lose something incredibly dear to you – I have decided therefore that we shall conduct this hearing in Latin”

“Mr Crumpet, your client gave evidence that he had no tattoo. He is behind you now shaking his head. He is certain that he has no tattoo. Indeed, he showed us last week from the witness box. that he did not have one. Allow me the indulgence of checking again.  Roll up your  left sleeve sir. Ah yes, I see the surprise on your face. Mr Crumpet, do you recall day one of this fifteen day hearing? You do, good. Would you please examine the tattoo on your clients arm. Now….. is THAT your card?”

 

“It was argued by Mr Crumpet that section 3, subsection 13 was fatal to his opponents case. I am afraid to inform him that Justice Austin section 3, subsection 13 says he just got his ass kicked”

 

“It has been explained to me over the lunch adjournment with a great deal of courtesy and skill I might add, that the summary of historical background that I set out in the earlier part of my judgment, was in fact the summary of an episode of Saved by the Bell, which perhaps explains why Screech played a more prominent role in those matters than one might otherwise have thought.  In the event that anyone remains curious, I would have found that Kelly should go to the movie with Slater, and that Zach should be grounded for a period not in excess of two weeks. I will now move on with the case proper. I should remark, as I’ve just thought of it, heh heh, that in this particular instance, it seems as though it was I who was saved by the proverbial bell”

 

“Great reliance was placed on the Court of Appeal authority of Re K 2009. It would be an absolute barrier to the ingenious solution that Mr Crumpet proffers to me. Unbeknownst to you all, as the owner of  a time machine, I have had a peek at the law reports for 2025 and Re K has been overturned, so that’s good news for all of us”

“Let me see if I have the chronology of the parental relationship correct. According to my note, of the mother’s account she met him on a Monday and her heart stood still? And at that time, she believed his name to be Bill or William.  Whereas the father’s account was that they did indeed meet on a Monday, that he took her for a drink on Tuesday, and matters became intimate on Wednesday, continuing through the Thursday, Friday and Saturday, and then there was something of a cooling off period on the Sunday”

“Yet more discrepancies emerge in the parental accounts of the relationship. Whereas the father insisted that he had saved the mother’s life when she nearly drowned, her account was that he had been at the beach but that he had showed off, splashing around. ”

“Mr Crumpet, you may recall that a particularly unothodox point of law arose before I adjourned. During that adjournment, you had your clerks walk over your Red book. I have been in my chambers, studying this matter myself. Could you please turn to page 172 of the copy of the Red book that you have in front of you? Now… is THAT your card?”

“Matters took a somewhat unusual turn in this case when I was presented with an application for a witness summons requiring that the Ghost of Elvis Presley attend to give evidence. I found his evidence to be compelling.”

 

“Before I embark on what is going to be a difficult and complex judgment, hands up if you think mother won? And hands up if you think father won?  I am going to count the usher at the back of the Court, so that rather settles that. Does anyone have any FAS forms to hand in?”

 

 

[*Pud-pie – a method of solving a dispute, or deciding who has to do something that neither participant wants to do. The two players stand a distance apart, facing each other. They take it in turns to take a step towards the other, as though walking a tightrope. The technique is that the heel of your striding foot has to touch the toe of the foot that’s behind. Alternate feet.  With each step, player one says the word “Pud”, and when taking a step, player two says the word “Pie”. The winner is the player whose next step will allow them to tread on their opponents shoe.  A tipsy is a small jump backwards, that each player may deploy if they think they are going to lose, in an attempt to shake things up. A round of pud-pie with tipsys tends to take longer, so if you want to get the decision over with quickly – “Pud pie, straight to London, no tipsys”  

I actually couldn’t find an explanation of “pud pie” on google, so I thought it did warrant an explanation.

Someday I will explain the game of Pondo-Grundy to you all. I reckon I still have a chance to medal in Pondo-Grundy, if the Olympics association ever reply to my letters]

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