Breastfeeding mother versus gay couple

Posted on May 5, 2015 by suesspiciousminds

 

I think that this case has probably been in the news, or is about to be.

It is yet another example of a case where arrangements that were made before the birth of a child where conception was not the routine (birds do it, bees do it, even educated fleas do it) method, but a complex arrangement between adults that the adults involved did not properly record.

Re H v S (surrogacy agreement) 2015.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/36.html

 

I will use fake names, because I find in these cases that the bare initials just leave you grappling around for what the heck is going on.

The child is M (Mary). Mary was born on 27th January 2014.

Mary’s mummy and daddy were not two people who loved each other very much and when a mummy and daddy love each other very much, they have a special cuddle.

Mary’s mummy S (Sarah) says that she wanted a baby, and a gay man that she knew, H (Harry) agreed that he would provide her with the genetic material to have a baby, and that when she had that baby, she would be the only carer for that child.

Harry, on the other hand, says that he and B (Bob) are in a committed homosexual relationship, wished to have a child, and reached an agreement with Sarah that Harry would artificially inseminate Sarah, and that after the birth, Harry and Bob would care for the baby together, but that Sarah would play an active role in the child’s life.

That is not so much a gap but a Grand Canyon in the different understandings of the people involved.

Ms Justice Russell said this:-

Very sadly this case is another example of how “agreements” between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.

The Court had to deal with this as a straight private law children dispute under the Children Act 1989, rather than an application by Harry and Bob for a Parental Order under Human Fertilisation and Embryology Act, because Sarah did not consent to the making of a Parental Order  (and the Court have no power to make one if the biological mother does not consent)

Also, some of these adults were Romanian, some had been raised in Romania but were of Hungarian birth, and so the child is of mixed Romanian and Hungarian heritage, although all concerned now live in England.

We add into the melting pot of complexity here that the three adults concerned are not all of the same religion and there was a dispute about what religion the child should be baptised into. There was a Court order that Sarah should not baptise the child until the Court had heard argument about this and determined the dispute, but she did, and she also lied about it. Also registering Mary with names that had not been agreed or even discussed.

 

On the 21st May 2014 the Applicants applied for prohibited steps orders regarding the child’s name and her baptism. The Respondent had registered the child on her own with her surname and with first names chosen by her that had not been discussed with the Applicants or agreed between the parties. The Applicants also applied for an order prohibiting S from having M baptised according to Christian Orthodox rites as although all three of the parties are Christian H is a Protestant and B is Roman-Catholic. An order was made by Recorder Bazley QC which prohibited any party form removing M from the jurisdiction or from causing or arranging for her to be baptised or christened. In the event S not only disobeyed the order of the court and had M baptised but lied about having done so. She informed the court and the parties that she had M baptised in October 2014 at the hearing in January 2015; this despite her assurances to the contrary to the guardian in December 2014 and to the court in her own statement dated the 7th January 2015.

 

Towards the end of the hearing, the Court heard that a Tweet had been sent about the case and that the tweet had been tagged with the name of a reporter at ITN, no doubt with the intention of stirring up a public debate.  {I think that I have seen that tweet, or retweeted versions of it on my own twitter feed, which is why I had been watching out for this judgment}

 

  1. At the outset of the trial the guardian (on behalf of M) and the Applicants drew my attention to the publication of information regarding the case on social media. The first was a posting on Facebook on the 5th October 2014 by a person known to be a friend of S. The guardian was made aware of this post soon after it was published but considered that there was no information by which M herself could be identified and decided not to bring it to the court’s attention. I accept from the information contained in it that the source of that information must have been one of the parties (or someone very close to them) and it is more likely than not that that source was S. The person concerned wrote to the court and had been involved in “mediation” between the parties. This is an example of S’s mode of conducting her case not through the court alone but by recruiting support from others to pursue her case in other arenas. I do not accept that he would have published this or the Tweet in January 2015 without her knowledge or consent.
  2. On the 16th January 2015 the guardian was made aware that the same person had made the following Tweet: “Wealthy gay couple force child from good mother’s breast setting bad precedent. Starts Mon19Jan 10am High Court RCJ, court 35,“
  3. The Tweet which was available to anyone online was tagged to alert a reporter at ITN. S denied any part in this tweet, and while it may be the case that she did was not directly involved in posting the tweet, it is in keeping with her conduct of the case during which she sent emails copious emails to the court, to the President of the Family Division and pursued an appeal against the order made on the 1st October 2014 apparently against legal advice. The solicitor for the Applicants, sent an email to the person who had tweeted requesting him to take the tweet down and informing him of the objections of the Applicants to him tweeting about this matter.

 

During the hearing, the mother raised two major arguments. The first was that as she had been breast-feeding Mary, that had led to a bond and relationship which would be damaging to break.

  1. S has made a great deal of her status as a breast-feeding mother and the disruption to M’s routine of staying with her father overnight; not least because M “co-slept” with S and was breast fed during the night. Although some weeks after the hearing concluded S changed her position and agreed to M staying over-night with her father and B it is evident that she did so as she accepted that she had to following the decision to refuse her permission to appeal. Prior to that S had, as I have set out above, used the fact that she continued to breast-feed M as a reason for reducing or limiting contact and claimed that it was in M’s best interest. It is the current orthodoxy, which the court does not gainsay, that breast feeding, if possible, for the first year or more as it provides many health advantages for a child. In her first statement in April 2014 S said that she wanted to breast-feed for the first 9 months; as time has progressed so the length of time she wishes to breast-feed has increased. In her oral evidence she was unable to say how long it would go on but indicated that it would be as long as M wanted it to which could be as much as several years into the future.
  2. Part of S’s case is that she sleeps with M which also provides the child with health and emotional advantages in respect of their co-attachment. The practice is not recommended for babies and small infants as there is a danger of over-lay and as a result may be considered to be more controversial, but that was not a matter that I was asked to decide. This practice when it takes place cannot be used as a reason to inhibit or curtail a child’s right to form a positive and substantial relationship with her other parent or parents; which was a direct effect of S’s practice in this case and she used it as part of her argument to support the curtailment of overnight stays. Based on the needs of a child, as M grows she must be allowed to become independent and grow as a human being separate from her parents and carers. At her age it is most unlikely that she will not suffer any harm sleeping on her own; indeed she has already experienced it without ill effect when she stayed with her father and his partner overnight.

The second was that Harry and Bob were in a gay relationship and that all such relationships were promiscuous and inherently wrong and unstable.

  1. I have now heard the oral evidence of all the parties and read copies of electronic communication between them. The dispute about the agreement is largely based on S’s assertion that she and H decided to parent a child together, and that B was to play no part other than as the child’s father’s “boyfriend”; to use her word. S has sought to present herself throughout the proceedings as a victim and someone whose “rights” as a mother and as a woman have been trampled over and abused. She claims, in terms, that H and B are attempting to remove her child, from her breast, in a cruel and calculated attempt to build a family and that she is being discriminated against and victimised. She describes H and B in an openly disparaging and dismissive way saying that they are not like a very well known celebrity couple (who she names) who have had children by surrogates; “They are not a gay couple having a child”.
  2. S repeatedly made allegations, wholly unsupported by any objective evidence, about H and B; about their relationship and about their lifestyles. About the former she repeatedly relied on stereotypical views on the nature of their relationship suggesting that she knew “they have an open relationship, what gay people call it, have sex in groups.” There is no foundation to this claim which I consider to be a reflection of her deliberate attempt to discredit H and B in a homophobic and offensive manner. At the outset of the case she filled in a form (C1A dated 19th February 2014) alleging harm and domestic violence. She said in this form that H “has an open view on class A drugs. He believes that it is OK for people to use class A drugs and has said he would like to try it himself” She went on that H “is a self-confessed antibiotics user he gets his own supply of very strong antibiotics from Belgium and use [sic] them all the time”. S went on to allege that H might give them to M if he had unsupervised contact; and to allege that there were “loads of people coming and going” from the Applicants’ address and that drugs may be used at that address. None of these allegations were followed up before or during the hearing when the Applicant’s gave oral evidence. The abandonment of allegations during the trial lends little to the weight that that court can give her evidence as a whole.
  3. I had the opportunity of re-reading the emails sent to the court and evidence filed by S both during this case and after it concluded. It is peppered with allegations, innuendo, offensive and disparaging comments about H and B. I do not need to set them all out or repeat them as most of it was never put to the Applicants and was not pursued in evidence. I had the opportunity to see the Applicants and S in court during the five days of the hearing and on other occasions when they have appeared before me. I saw S give evidence and observed her while she listened to the evidence of others. There was never the slightest indication of a cowed, submissive or victimised person. On the contrary she conducted herself in a very confident and most assertive manner throughout. She has sought to impose her will on the court and manage the proceedings. The need to express her breast milk while genuine was used to interrupt and disrupt the evidence of the Applicants. The evidence in support of this was the manner in which she could, suddenly, regulate it after their evidence was completed

 

On the factual dispute – whether this conception was intended (as Sarah says) to be a baby for Sarah to look after with Harry donating his sperm or (as Harry and Bob say) a surrogate arrangement where Harry and Bob would care for the baby but Sarah would play a role in the baby’s life, the Judge heard evidence and read a lot of emails between the main players.  The Judge concluded that the stated  intention between the parties  HAD been for Harry and Bob to be the main carers, and more significantly that rather than this being a case where mum changed her mind after the birth (as can happen), that she had basically tricked and manipulated these men into providing a baby for her when they would never have agreed if they had known it was always her intention to keep the child.

 

  1. The emails do not set out an agreement in terms and it is H’s case that after the beginning of February the discussions were oral and went on to include B. The fact that there are not any emails produced after February supported his case. It also fits in with the insemination taking place about the fourth week of April 2013, in the Applicants’ home with B there on at least one occasion. It is, and I use the term advisedly, inconceivable that B was not aware of what was going on before April and was not party to any of the discussions. In this as in much else I do not accept the evidence of S. Her later use, in evidence, of the term “sperm donor” is completely at odds with the tone and contents of her emails in February. It is not possible to accept both from what H told her in the emails and from the obviously close relationship of H and B (which I have seen at close quarters throughout the trial) that S could have ever thought that she was having a child with H to the exclusion of B; she says so herself in her emails. I conclude that she must have either deliberately misled the Applicants about her intentions or changed her mind as the pregnancy progressed.
  2. On the balance of probabilities, and for the reasons set out above and in the following paragraphs of this judgment, I find that S deliberately misled the Applicants in order to conceive a child for herself rather than changing her mind at a later date. Having at first encouraged H to be involved S was already trying to exclude H not long before M was born from involvement with the birth and with the child. I accept the evidence of H and B that S was a part of the arrangements that were made to rent a larger property. If as she claimed they were aware from the outset that any child would be her’s and live with her there would have been no reason to go to the expense of moving and furnishing a larger home. It highly unlikely that S could ever have thought H, who had told her he so desperately wanted a child in his emails, would decide to act as a sperm donor for her, there was no reason for him to do and it would have been entirely at odds with his own plans and wishes.
  3. S has consistently done all she can to minimise the role that H had in the child’s life and to control and curtail his contact with his daughter. Far from being a child that she conceived with her good friend, as she describes it, her actions have always been of a woman determined to treat the child as solely her own. She made sure that H was not at the hospital when M was born; she registered the birth without putting H on the certificate and did not give the child any names except those chosen by her and did not reflect the child’s paternal family names in that choice. The history of these proceedings bears this out; H and B were left with no choice but to issue applications.

 

 

The question then was where this child should live during her childhood?  You need to read the whole judgment to get a proper feeling for the case, there was a lot going on, but it finally gets distilled here:-

  1. The evidence has to be considered in the light of the child’s best interests. I have used the welfare checklist as the basis for my decision because I am concerned with how to best provide for M’s physical, emotional and educational needs under the provision of s 1 (3) (a) CA. Although M is not yet at school it is more likely than not that the parent who can best meet all her other needs and is most likely to be able to provide her with a secure home and stable upbringing with room to grow emotionally for the remainder of her infancy is more likely to meet her educational needs fulfil her potential in the future. The latter requires that M is afforded the scope to grow up in an environment where conflict is at a minimum. M is not yet able to say as she is just learning to talk so I do not know her expressed wishes and feelings but I assume it that for the immediate future she would want to continue to remain with S and continue to spend time with and H and B, including overnight stays.
  2. Any decision that M lives with H and B and spends much less time with S is bound to affect her, likely to upset and distress her in the short term at least and necessarily amounts to a change in her circumstances. However familiar M is with her home with H and B she would miss her mother with whom she has spent most of her time. Against that I will weigh the harm that she is at risk of suffering if she remains with her mother. As she gets older she will become more aware of, and will be directly affected by, her mother’s negative views about her father and B. These views will affect her own sense of identity; negatively inform her view of herself and where she fits into the world.
  3. I can only judge S’s ability to parent M based on recent history and based on that history M is more likely than not to suffer harm; to continue to be taken to the GP and to hospital at times when it is not necessary in furtherance of S’s determination to control M’s contact with H and B or in respect of contact or any other dispute she may pursue over M with H in the future. It is likely that S will present H and B in a negative way to M and give her limited opportunity to understand the history behind her conception and of how she came to be here; nothing in S’s conduct of her case can offer any assurance to the court that S is capable of doing that for M in a balanced way that is free from S’s own agenda.
  4. At present S is able to care for M well physically but there are already grounds for concerns about her mother’s over emotional and highly involved role in this infant’s life. Ultimately the role of a parent is to help the child to become independent. This is a child who at 15 months old is still carried by her mother in a sling on her body. M spends most of her time with her mother who does not set out any timetable for returning to work, as S would have to, to provide for M and for herself. There is a potential for enmeshment and stifling attachment rather than a healthy outward looking approach to the child’s life. The question is who benefits most from this chosen regime which points towards an inability to put the child’s needs before her mother’s need or desire for closeness.
  5. The attachment which will develop in an infant who sleeps with her mother, spends all day being carried by her mother and is breastfed on demand through out the day and night raises questions about the long term effect on M. From the point of view of this judgment it further begs the question as to who benefits most from the regime S has chosen to impose without reference to M’s father, H. I have little doubt that the breast-feeding was used a device to frustrate contact during the proceedings, a conclusion supported by S claiming at first that she could not express her milk which so reduced the time available for contact; subsequently when it was clear that M could be fed and was able to eat other foods S no longer had difficulty expressing milk. I am forced to conclude that S has shown herself to be unable to put M first and that she is unable to meet M’s emotional needs now and in the long term.
  6. The contact that S has with H and B has been very successful; the guardian who has observed it more than once described M as alert, happy and relaxed in her surroundings. Unlike S, H and B have not made a plethora of allegations against S; apart from those directly concerned with contact or her conduct towards them during contact. They have said that they want there to be as harmonious a relationship as possible between the adults and their support of M spending time with her mother is evinced by the level of contact they suggested. Their conduct has been consistent with this approach and while it is exemplified by an offer of contact which is greatly in excess of that proposed by the guardian they have never sought to exclude S from M’s life and to the end of the proceedings expressed the hope that the relationship between the parties could become more harmonious for the sake of M. The Applicants could easily have adopted the recommendation of the guardian that contact should be once a month but they have not done so.
  7. While to move a young child from her mother is a difficult decision and is one which I make with regret as I am aware that it will cause S distress I conclude that H is the parent who is best able to meet M’s needs both now and in the future. It is he who has shown that he has the ability to allow M to grow into a happy, balanced and healthy adult and it is he who can help her to reach her greatest potential. I accept the evidence of the guardian that H and B have had a child-centred approach throughout. It was obvious from their oral evidence and their statements. H, in particular, has always sought to put M first.
  8. H thought carefully about having a child and his discussions with S in the emails that they exchanged in February 2012 are an illustration of his awareness of the difficulties that would be encountered as well as a clear expression of his very great desire to have a child; and to have that child with B. It is highly unlikely that H would have reached any agreement about having a child without involving B, not least because it would have jeopardised his relationship with B and H’s future role as father to the child he very much wanted to have.
  9. The best that can be said for S is that she deluded herself about the nature of the agreement she was reaching first with H and later with H and B. It is very unlikely that such an obviously astute and determined woman would have left anything to chance when it came to having a baby. While I do not rely on the substance of the CA proceedings in Kent I do take account of the fact that S no longer has her daughters living with her and has limited contact with them. This situation, whatever its cause and whatever her role in it, will indubitably make it more likely that she wanted, as she said, to have another child for herself. The emails that she sent were deliberately misleading and S continued in the deceit, allowing H to believe that he and B would be the main carers for the baby until pregnancy was well advanced.
  10. It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood. It is, however, a fact that M was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend, this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore M living with H and B and spending time with S from time to time fortunately coincides with the reality of her conception and accords with M’s identity and place within her family.
  11. M should live with her father H and his partner B as it is in her best interests to do so; I reach that conclusion having had regard throughout to the welfare checklist and to M’s interests now and in the long term.

 

 

The Court therefore decided that Mary should move from Sarah’s care to live with Harry and Bob.  We will wait to see whether the media reporting deals with the substance of the case that the Judge had to decide, or whether it follows the easy sound bite narrative of the tweet – Court rips child away from mother’s breast to give to gay couple…

 

There is a Reporting Restriction Order in place that the child and the adults involved not be named, and as ever it applies to me and any commenters, so if you do know the names, I don’t want to see them here.

 

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Angola – gross, inexplicable and unjustifiable delay

Posted on May 5, 2015 by suesspiciousminds

 

This is a judgment by a circuit Judge, His Honour Judge Wood, sitting in Newcastle. It is not binding precedent, but I think that it illuminates some important issues.

 

The mother in the case was Angolan, born in 1977. The eldest child had been born and raised in her early life in a refugee camp in Angola. The family came to England in 2005. It was sadly and brutally apparent that this mother had seen and experienced things that you would wish on no human being, and that obviously as a result, she had severe and serious need of help that she did not receive.

 

 

Re N (Children) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/37.html

  1. I have found this case simultaneously to be very difficult, very sad and also to have made me very angry. In reverse order, the anger flows from the failure of this Local Authority to meet these children’s needs in a significant way. First, the gross, inexplicable and unjustifiable delay, the breach of statutory duty under section 1(3). Secondly, this is a family with, if not a unique background, a relatively unusual and extraordinarily difficult one, which until Mrs Louw reported does not seem to the court to have been really considered at all and even following her report I question the extent to which it was properly embraced. The search for suitable cultural support has come really very late indeed.
  2. Thirdly, the likelihood of the parenting course that the mother was sent on barely scratching the surface was evident before the mother even went on it. I do not say that she learned nothing from it, she was able to explain what she had learned and spoke to me in quite complimentary terms about it, but the real difficulty identified by Mrs Louw was completely beyond its scope. Fourthly, the delay in obtaining the evidence from Mrs Louw was caused entirely by the Local Authority not identifying that need until these proceedings were issued. It was ordered at the earliest point at the case management hearing but by then 17 months had elapsed since the children went into care.
  3. Fifthly, the Local Authority knows about this mother’s isolation. It is apparent on all of the evidence. She belongs to a church but does not mix with other families, at school or elsewhere. She has, on her account, maybe one or two visitors from her church to her home but she does not visit the homes of her visitors and she has no other family or friends, certainly locally. As an asylum seeker from a war-torn country but with children brought up in a western educational system, the potential for cultural issues and expectations to give rise to conflict ought to have been obvious. I do not underestimate the difficulty of finding appropriate help. Even at the end of this hearing it is not clear what does exist but no real attempt was made even to mount a search until much too late. To criticise the mother for not having learnt from five group sessions of an effective parenting course is really just not fair.
  4. Sixthly, the background of being a refugee, particularly from Angola, even with an elementary knowledge of recent Angolan history and absent that an enquiry just on the internet, should have alerted the Local Authority to the likelihood that this mother had experienced real trauma likely to be of a severe kind which should have set alarm bells ringing as to her likely needs. On all of these scores the President’s textbook example of how not to conduct a care case seems to the court to have been met.

 

The Judge was rightly scathing about the delay between the Local Authority taking these children into care and issuing proceedings, some 17 months. With all of the features of this case, it should have been apparent that section 20 would not be sufficient and that proper plans for the long-term future of these children was needed.  Even worse than the delay was that the Local Authority took SEVEN MONTHS to issue the proceedings from the date that they wrote to mother’s solicitors saying that they were going to issue.  As the Judge points out – if the LA had issued when they said they were going to, the proceedings would have been concluded a month earlier than when they were actually issued.

[Even worse than this, the children had been taken into Police Protection a year before the section 20 accommodation, as a result of a physical assault, and then returned home, so the LA were seized of the issues and concerns for some 29 MONTHS before care proceedings were issued]

 

5. I want to say at the outset that the course that this case has taken in the hands of this Local Authority has been deeply unsatisfactory. Following a precipitating event in the middle of June 2013 the children were accommodated with the mother’s consent under section 20 of the Children Act 1989. Despite taking a decision in January 2014 that the plan was to be long term foster care and the Local Authority writing to the mother’s solicitor in March of that year to the effect that proceedings would be issued within seven days, they were not issued for another seven months on 22nd October 2014. As I observed when Miss Woolrich on behalf of the Local Authority addressed me, had the proceedings been issued when the Local Authority said that they were going to issue, they should have been concluded before the date when they were, in fact, issued. That they were not is bad enough but that bald fact ignores the period of nine months that preceded that statement of intent. Thus, these children were voluntarily accommodated for 16 months prior to the issue of proceedings and can properly be said today to have been in limbo now for 21 months.

  2. It is difficult to avoid a direct application of the words of Sir James Munby P in the recent Darlington Borough Council case reported at [2015] EWFC 11 in which he described that case as being, “Almost a textbook example of how not to embark upon and pursue a care case.” A specific criticism from that case that applies directly in this case is, “The misuse and abuse of section 20”, that the President said could no longer be tolerated endorsing, as he did, the observations of the Court of Appeal in Re W [2014] EWCA Civ 1065 and Northampton County Council v AS [2015] EWHC 199 quoting with approval the remarks of Keehan J recorded at paragraphs 36 and 37 of that latter judgment.
  3. This all lies entirely at the door of the Local Authority and requires addressing at the highest levels within Children’s Services and their legal advisors. That said, no parent in such circumstances is left without a remedy. Legal advice is available from the outset of notification of proceedings and it is a matter of both surprise and disappointment that the mother here was not encouraged to force the point as she was perfectly entitled, and I would say bound, to do in the circumstances of such gross delay by withdrawing her consent. I want to emphasise I do not blame this mother personally but it is the fact and a matter of regret that this did not happen long before the Local Authority belatedly got round to issuing proceedings. The effect of delay varies from case to case but in no sense could it here have been described, using the now disapproved term, as being purposeful. It served no identifiable purpose, it has delayed the outcome inordinately for young children wanting their futures decided and, as a matter of law, it has amounted to a complete and inexcusable breach of the statutory delay principle enshrined in section 1(2) of the Act.

 

The Judge sadly had to make Care Orders – one will never know whether if during those 17 months of drift the mother had been given the right help whether the outcome would have been different.

He decided that these failings were not solely those of the social worker but of the organisation and system as a whole, so followed the President’s decision in Darlington not to name and shame the individual workers

 I make a disclosure order to the head of service and to the independent reviewing officer in respect of this judgment which will be transcribed as anonymised, the cost of which to be shared equally by all parties. I should say that for the avoidance of doubt for the reasons that the President gave in the Darlington case itself, I have also directed that the two social workers who have been involved should be anonymised as well because it seems to me entirely unfair that, whatever individual shortcomings may have arisen, the criticisms that have been levelled against the Local Authority should be laid at their door or that they should be identified as responsible.

 

It also seems to me that with all of the demonisation of asylum seekers that goes on in both political discourse and the media reporting, it is worth reading this little passage and remembering that asylum seeker ought not to be used a synonym for ‘sponger’

The mother was born on 23rd October 1977 in Angola. By then the brutal civil war that shocked the outside world had been underway for two years. G was born in a refugee camp in Zambia in 2002 just after that war ended. The psychologist who reported in this case makes the point that the mother grew up and came to maturity in a war-torn country. The central province where she lived is said to have been devastated. The mother herself reports that there came a day in 1999 or 2000 when they “all ran different ways” and she thereby lost contact both with her parents and her sister. She has no idea where they might be – that is to say, assuming they are still alive – and somehow she ended up following a convoy of complete strangers that took her to Zambia. Little more than that is known, albeit the expert assessment of her presentation was consistent with her affirmative nod in answer to a direct question as to whether she had been jailed and/or tortured. She is likely to have experienced first hand, or at least witnessed, extreme brutality that has traumatised her to this day.

 

 

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Is the system failing parents?

Posted on May 1, 2015 by suesspiciousminds

Unlike most newspaper headlines that pose a question, to which the answer turns out to be “no”, this particular article from the Guardian ends up with the answer “yes”, and I would agree with it.

http://www.theguardian.com/society/2015/apr/25/are-we-failing-parents-whose-children-are-taken-into-care

 

I do complain often about how the mainstream press report on care proceedings, but this piece is a good example of how it can be done properly.

Firstly, when reporting on a particular judgment, the piece provides a link to the judgment itself, so that the readers can if they wish read the source material.

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B158.html

Second, the account of the judgment holds up as being accurate even after you’ve read the judgment itself.

And third, rather than a single source story (which is specifically against the code that journalists have signed up to), this particular journalist, Louise Tickle, has taken the trouble to go and speak to a variety of sources to inform the story.  And she has picked smart people (like Cathy Ashley of Family Rights Group, Karen Broadhurst and the Pause project) to speak to.

The really sad thing about this case is that it is not a unique and unusual outlier – it isn’t the story of a dreadful miscarriage of justice, or the truth coming out following dogged cross-examination, or a Local Authority being put to the sword for mistreatment.

It is an example of a case that people working within the system will see week in and week out – a mother who is very damaged by her own experiences and upbringing, who needs proper therapeutic help to address those difficulties and who didn’t get that therapeutic help in time to make a difference for her care of her child, with the effect that the child can’t  be with her.  This sort of thing happens all the time, up and down the country. The fact that it happens all the time shouldn’t immunise us to the pain involved and the sense that it must be wrong.

 

Whilst the Judge, His Honour Judge Wildblood QC, carefully pointed out that this was a mother who had a need to change substantially and was not going to change within the time that the baby needed her to, he went over and above the usual expression of sadness and into not only a critique of the system but an exhortation that the system must do better.

 

This case is another example of how important it is that, if therapy is needed, it is obtained at an early stage. Time and time again I see a process whereby the following occurs: a) a Local Authority intervenes and begins making assessment of a family; b) months later proceedings are issued; c) an order is made for some form of expert evidence to be produced (often a psychological report); d) months later the psychological report is obtained which says, invariably and utterly foreseeably, that someone within the family needs therapy and e) it is stated that, by then, the beneficial effect of therapy would be ‘outwith the timescales for the child’. In this case, for instance, it would have been perfectly obvious to all that, when the mother was referred before birth, she was a prime candidate for therapy. If therapy were to be obtained at an early stage such as that there is at least a prospect that outcomes in some cases might be different. I have therefore already set up arrangements in the New Year to look very carefully at how we facilitate and access therapy in this area, with a view to doing my utmost to encourage much earlier therapeutic intervention if possible. I ask for as much help as possible with that endeavour.

 

The Judge is completely right here. I’ve been saying for many years that the system was geared up to get and pay for a Harley Street diagnosis but left the business of obtaining  treatment to a model of  stand outside Superdrug looking sad and hoping the staff take pity on you.  {It’s even worse now, since we don’t even have the Harley Street diagnosis money any more to redirect where it always should have been going}

It’s really easy to wring our hands and say that the system is the system and what can you do. It is even easier to say that when the pragmatic reality is that Local Authority budgets were cut massively in the current Parliament and are set to be cut still further in the next one, whoever is in charge.  Social Services isn’t education and it isn’t health, so there’s no budgetary ringfencing – it will have to take its share of the cuts and some of health and education’s share into the bargain.

I like that His Honour Judge Wildblood QC isn’t satisfied with hand-wringing and wants to do something about it. I very much hope that his scheme works, and I hope that it works so well that versions of it are rolled out nationally.

As Louise’s article touches on, there’s precedent for that. District Judge Crichton saw so many care cases with drugs and alcohol being a feature that he took it upon himself to devise and champion a specialist Family Drug and Alcohol Court, and that model is now being rolled out to other areas in the country.

As George Bernard Shaw said “The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man”

I have no idea at all whether His Honour Judge Wildblood QC is an unreasonable man – I’m sure he is instead a deeply reasonable one. But if he is choosing to be unreasonable about a system that can see when a parent is crying out for therapeutic intervention but doing nothing about him, then all power to him.

I’d love to see some legislation that insists that where a Local Authority issues care proceedings, they must arrange and provide funding for therapy for the parents; it must be more economically sensible and morally sensible and less costly in terms of pain and trauma to try to fix what is wrong with a parent rather than simply waiting around for them to have the next child and starting the whole process off again.  (I’d love also to see that legislation backed with some government funding to pay for it, but although I am an unreasonable man, I’m not an unrealistic one)

Yes, there’s far more to tackle in family justice than this one issue of providing therapy for those who need it (rather than them trailing off to see their GP who at best puts them on a two year waiting list), but it would be a starting point, a base camp – and a message that there’s more to do to make a family justice system really be about both families and justice – rather than at the moment, where it is all simply about “system”

 

[I feel like I ought to put a You-Tube clip of “My name’s Ben Elton, good night” here, as I got a bit student ranty there]

Let’s watch out for Louise Tickle – this is damn good journalism, and it would be nice for mainstream writing on family justice to have this blend of outrage and factual accuracy.

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Ignorance of the procedure is no excuse

Posted on May 1, 2015 by suesspiciousminds

 

It’s a well-worn phrase that ignorance of the law is no excuse, but now we have the Court of Appeal confirming that if a parent is having to construct their appeal in person without the benefit of legal representation, it is not an excuse for procedural flaws.

Re D (Children) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/409.html

 

In this case, which was an appeal by the Local Authority arising from the parents successful appeal to His Honour Judge Plunkett who overturned a Care Order and Placement Order in relation to their youngest child, those orders having been made by a District Judge Maughan.

The bare facts of the case are quite simple. The parents had five children (now six) and the four oldest children had made serious allegations of physical abuse by the parents. Care proceedings began and all five children were removed and placed in care. The older children, ranging in ages from fifteen to twelve had “Voted with their feet” and returned to the parents care by the time the Court came to make final orders. Those four children were made subject to Supervision Orders.  The youngest was made the subject of a Care Order and Placement Order (hence adoption being the plan)

A year later, the parents made an application to revoke the Placement Order. His Honour Judge Plunkett, looking at the case decided that what they really intended to do was to appeal against the order.  They had no lawyers and they never actually lodged grounds for appeal or a formal application.

 

His Honour Judge Plunkett had been understanding about this. The fundamental issues for the appeal were that the older children had substantially retracted their allegations (was this fresh evidence?) and also that the District Judge had not given a judgment about why the older children had not been called to give evidence.

There ought to have been a three stage process here

1. Should the parents be able to appeal out of time, it being a year after the order

2. Should they have permission to appeal

3. Determination of the appeal

In the event, because of the blurred nature of the hearing, the LA and Guardian had thought that the Judge was considering part 2 only, but the Judge had considered that he was determining the appeal itself, and he set aside the Care Order and Placement Order and directed a re-hearing.

 

There are a few important issues that this raises. The first is the headline – to what extent does or should a Court grant leeway to failures in technical or procedural matters because parents (who would have wanted lawyers but couldn’t have them because of legal aid rules) were inexperienced and unknowledgeable about the process?

  1. Although the parents were acting as litigants in person when they instigated the process that became the appeal in L’s case, and some procedural latitude may be justified to accommodate such a litigant, the appeal procedure established by FPR, Part 30 is neither complicated nor onerous. It simply requires pleaded grounds of appeal, permission to appeal granted on stated grounds followed by the determination of the appeal on those grounds at a hearing. A substantial (and therefore impermissible) departure from the Part 30 requirements may well establish a situation in which one or more of the parties is denied a fair hearing.
  2. In relation to the appeal in L’s case, the process adopted by HHJ Plunkett did not come close to that which is required by FPR 2010, Part 30. The D11 Notice filed by the parents did not contain any grounds of appeal, other than the bare assertion that the children had retracted allegations. The Notice was stated to be challenging the judge’s decision regarding L’s adoption and the judge’s refusal to allow the parents to apply to revoke the placement order (ie the 2014 determinations) whereas the judge moved on to allow an appeal against the order made on the 2013 fact-finding hearing. Other than to note the point, at no stage did the judge engage with the fact that this un-pleaded ‘appeal’ was over a year out of time. The grounds upon which the judge eventually came to allow the appeal emerged in the process of free flowing to-and-fro communication between the judge and counsel during the hearing on 21st November.

 

(Given that I have encountered many family lawyers who have no idea of the Ladd v Marshall test for fresh evidence on appeal, I think the Court of Appeal rather overstate the simplicity of the appeal process here…)

  1. At this stage in my judgment it is right to stress the very clear view that I have formed from reading the transcript of the hearing of the 21st November which is that all parties, but particularly the judge, were motivated by the best of intentions. The discourse between all three counsel and the judge demonstrates a cooperative and sensible approach which was initially designed to assist the judge in absorbing the background detail of the case. This laudable spirit of positive cooperation between Bar and Bench should rightly attract praise, particularly in the context of a family case, but the manner in which this process was allowed to develop and then occupy the entirety of what the judge apparently considered was the hearing of the full appeal must inevitably also attract criticism in this case. The discourse between counsel and the court, which ran throughout the 21st November hearing, lacked any structure in the context of an appeal. No grounds of appeal were ever properly identified. The judge did not receive any submissions from any of the parties (even the appellant parents) on the topic that he went on to identify in his judgment as the main ground of appeal. There was no clarity, indeed there was clear confusion, as to the stage that the proceedings had reached and whether the court was considering permission to appeal or the appeal itself.
  2. Although litigants in person as applicants for permission to appeal have always been a feature of appellate justice, in modern times in family cases the litigant in person applicant has become the norm. Circuit judges, High Court judges and Lords Justices of Appeal are regularly required to process and analyse applications for permission to appeal in family cases by litigants in person. Such applications inevitably lack the forensic focus and legal analysis that would be commonplace if the application were made by a lawyer. There is, however, a danger that the judge may become drawn into the process of analysing the case to see if there is some thus far un-noticed and un-pleaded merit in a potential appeal that he loses sight of the structure of the appeal process and his or her role within that structure. It is my view that that danger became a reality in the present case. In seeking to unpick the process in the lower tribunal in order to identify whether matters had gone awry there, the judge presided over a process which, in the end, was neither fair nor effective.
  3. I have already described the appeal procedure established by FPR 2010, Part 30 as neither complicated nor onerous. Part 30 is similar in structure to CPR 1998, Part 52 which governs civil appeals to the Court of Appeal. It is a statutory requirement that family appeals in the family court or the High Court are conducted by adherence to the Part 30 provisions [FPR 2010, r 2.1]. The short and trite point therefore is that appellate judges hearing an appeal in the family court are bound to apply the provisions of Part 30. I would, however, go further and hold that, rule or not, utilisation of the simple structure of Part 30 is likely to assist the parties and the judge to process a challenge to a first instance decision in an effective and straight-forward manner. The three core elements – grounds of appeal, permission to appeal and appeal hearing – should enable all involved the proceedings to know with clarity what the issues are and what stage the process has reached at any particular time.
  4. Adherence to the requirements for the appeal notice to state the grounds of appeal [FPR, r 30.6] and for there to be no amendment of an appeal notice without the permission of the court [FPR, r 30.9], rather than being arid and empty procedural stipulations, provide both flexibility and clarity to enable the basis of an appeal to develop (as was the case on 21st November before HHJ Plunkett in the present case) but, at the same time, ensure that at each stage all those involved know what is, and what is not, a live issue that falls to be addressed within the appeal. If permission to appeal is granted on a basis outside the pleaded grounds, then those grounds should be amended by permission under r 30.9 and the appeal can proceed with all parties fully aware of the situation.
  5. In R (Dinjan Hysaj) v The Home Secretary [2014] EWCA Civ 1633 my Lord, Moore-Bick LJ, giving the main judgment in a combined appeal relating to applications for extensions of time under the Civil Procedure Rules, Part 52 (relating to appeals), considered whether or not the requirements of the rules fell to be applied differently where the party concerned was acting as a litigant in person. At paragraph 44, my Lord said this:

    “The fact that a party is unrepresented is of no significance at the first stage of the enquiry when the court is assessing the seriousness and significance of the failure to comply with the rules. The more important question is whether it amounts to a good reason for the failure that has occurred. Whether there is a good reason for the failure will depend on the particular circumstances of the case, but I do not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules. …. Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.’

    That approach, with which I am in full agreement, must apply to family appeals just as it does to all other forms of civil appeal.

  6. The fact that an applicant for permission to appeal is a litigant in person may cause a judge to spend more time explaining the process and the requirements, but that fact is not, and should not be, a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules. Indeed, as I have suggested, adherence to the rules should be seen as a benefit to all parties, including litigants in person, rather than an impediment. Ensuring that a litigant in person’s appeal is established in a manner which is compatible with the rules, that the grounds of appeal are accurately drawn to include the points that the court is going to be asked to consider on the permission application and that all parties know what stage in the process the application has reached, are steps that are each likely to support, rather than hinder, the litigant in person in their interaction with the court and the other parties.
  7. It would, thus, have been perfectly straightforward for HHJ Plunkett to ensure that the Notices of Appeal were amended once he had become sufficiently concerned to consider that an appeal might succeed (a) against the 2013 decision, which was not a pleaded target of the Notice of Appeal, and (b) upon a basis outside the currently pleaded grounds of appeal. The failure of the judge to ensure that the pleadings kept pace with his developing thoughts, much more than simply being a slip in sticking to the rules, led in this case to a process which was unclear and unfair to the parties and gave rise to genuine confusion (as evidenced by the supplemental submission filed by the local authority and the guardian).

 

It was this somewhat blurred process that led to everyone neglecting the first stage of the process – should these parents be allowed to make an application to appeal out of time, the order in question having been made a year earlier?

  1. The lack of due process also caused the judge to by-pass the need to consider whether or not to extend time to permit an appeal against the fact-finding decision nearly 12 months prior to DJ Maughan deeming the parents’ application to be an application for permission to appeal. In the present case the parents had been legally represented at the fact-finding hearing, yet the issue of calling any of the children to give oral evidence had not been raised with the district judge and it was not, apparently, considered to be a matter to be brought on appeal immediately following the fact finding hearing. The question of whether the parents should be given an extension of time a year later to bring the point by way of appeal therefore plainly arose. In the absence of a process that required the parents’ appeals on this point to be properly pleaded, the issue of an extension of time, it would seem, never sufficiently crystallised so that it was addressed by the parties or the judge.

 

The issue that had really tipped the appeal before His Honour Judge Plunkett was his view that where the allegations were made by children, it was incumbent on the Court to raise and consider whether they should be called as witnesses. None of the parties had ever asked the Court to call the children or asked for a ruling, but His Honour Judge Plunkett considered that there was a duty on the Court to do so, whether or not it had been expressly raised.

This is a very important point, and His Honour Judge Plunkett set it out in this way:-

The judge’s reasoning on the issue of the potential for one or more of the children to be called to give oral evidence is clear and shortly stated:

i) Where, as here, the threshold facts relate entirely to complaints from the children, ‘any court … is obliged to consider whether children should give evidence’;

ii) This is not dependent upon a party making a specific application for oral evidence, the court is obliged to make such a determination and to record it;

iii) There is no record of the district judge having made any determination on the issue;

iv) If the district judge did not consider oral evidence from the children then the hearing is unlikely to have been Article 6 compliant;

v) In the alternative, the district judge in any event failed to analyse her approach to the hearsay nature of the children’s complaints.

 

The Court of Appeal agreed with His Honour Judge Plunkett that the issue of the children’s evidence was important, and even perhaps that it would be good practice for a Judge to consider it even if the parties had not made such application. Where they disagreed was that a Judge who did not do so had erred in law and that a failure to examine matters of their own motion would be a basis for an appeal.

  1. I am entirely at one with the judge in identifying the potential importance of the issue of children giving oral evidence in a case such as this. A judge who adopted the practice that he describes would be beyond reproach and would have demonstrated a sound and sensible approach to the evidence. Where I differ from the judge is in his elevation of this aspect of good practice to a free-standing obligation upon the court, breach of which establishes, almost of itself, that the whole fact finding hearing was conducted in breach of Article 6.
  2. No authority, either domestic or ECHR, is cited for this principle. The judgment of the Supreme Court in Re W describes how the task of evaluation is to be undertaken, but their Lordships do not state that such an evaluation is a requirement in every case where key evidence arises from a child or young person. The nearest that the judgments in Re W come to the point is at paragraph 31 in the judgment of Baroness Hale SCJ:

    ‘Finally, we would indorse the suggestion made by Miss Branigan QC for the child’s guardian, that the issue should be addressed at the case management conference in care proceedings or at the earliest directions hearing in private law proceedings. It should not be left to the party to raise. This is not, however, an invitation to elaborate consideration of what will usually be a non-issue.’

    My reading of that paragraph is that it is no more than an endorsement of counsel’s suggestion of good practice; it does not establish a legal obligation in every case, breach of which will, or is likely to, render the whole proceedings unfair. Such an approach is also in line with the observation of Black LJ in Re B (Child Evidence) [2014] EWCA Civ 1015 at paragraph 29:

    ‘The Supreme Court [in Re W] did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be a conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her.’ [emphasis added]

  3. For my part I consider that the judge has overstated the position and has done so without the support of any authority. Whilst the approach taken by the district judge to the children’s complaints must fall to be considered as part of an analysis of the proceedings as a whole in the context of any fresh appeal, this one aspect, taken in isolation, did not of itself establish a breach of Article 6 as a matter of law and justify allowing the appeal on that ground alone.

 

For my part, I can see the ambiguity on this point, and I can see why His Honour Judge Plunkett considered that the failure by the DJ to explicitly consider whether the case could be properly resolved without the children’s evidence and whether for article 6 purposes the children should have been called (or at least weighed up those issues) was a fatal one.

However, this is now cleared up by the Court of Appeal. There isn’t a requirement on the Court to consider whether the children should give evidence UNLESS they are invited to do so.

I do wonder, having never met either His Honour Judge Plunkett * or District Judge Maughan, how the judicial tea and biscuits have gone down in Birmingham.  I am imagining DJ Maughan stretching casually and remarking “Oh, I see on that case where you overturned me and said I’d got the law wrong, it turns out it was you who had got the law wrong”

(I’m sure that hasn’t happened and that all involved are much more grown up than I would be in those circumstances. Reading this, I think it a bit Schroedinger’s Cat again – I think both of them wre sort of right and capable of being right, and it was only when the Court of Appeal explictly ruled on it that either of them became right or wrong)

 

*It is possible that I have met HH J Plunkett whilst he was at the bar, but as I don’t know his forename, I could not now say either way.

 

The Court of Appeal allowed the appeal and sent the matter back for re-hearing. It is a good job that this was Birmingham and not one of the smaller Courts in the country, because a smaller Court might have been running out of judges to hear the case.

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Appeal, Special Guardianship Order to a stranger

Posted on April 29, 2015 by suesspiciousminds

 

The Court of Appeal in Re H (a child) 2015 considered the decision from a circuit Judge, Her Honour Judge Wright, to make a Special Guardianship Order to a woman who knew the mother through church as opposed to placing the child with the father.  From the material before the Court, it appeared that the prospective Special Guardian had been observed with the child for about an hour.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/406.html

 

This case, as it deals with how to conduct the balance properly, and making it plain that all of the strictures of Re B, Re B-S et al still apply (as it involves the permanent removal of a child from a parent) makes for an interesting comparison with the Court of Appeal in Re E-R (a child) 2015   where they made it even more explicit that in private law disputes, there is no broad presumption that a natural parent is the best person to care for a child.

No broad presumption in favour of a natural parent

 

The Court of Appeal (rightly so in this case) were critical that the PLO process had not been properly followed. These weren’t nitpicking complaints, but actually went to the heart of why the case had been decided in a flawed way and why there had to be a re-hearing.

 

There had been no continuity of judiciary, no continuity of representation, the parties had not properly identified the issues and hence the Judge had not been able to properly narrow the issues at IRH, and critically proper thought had not been given as to whether the expert in the case ought to be asked to either provide an addendum or to be called to address what was really the key issue in the case.

Could this father, having undergone therapy and developed insight, now care for this child to a ‘good enough’ standard, or did the expert’s prior report indicating that he would need to have another person alongside him to co-parent still stand?

  1. The threshold for jurisdiction described in section 31 of the Children Act 1989 was necessarily constructed on a broad basis having regard to the fact that there were issues of fact and likelihood of harm relating to both mother and to father. The local authority’s case against father was that he was not capable of caring for his daughter because of his autism, the effect of stress on him, the specialist skill required to deal with H’s chromosome disorder and the risk that he presented to H’s emotional wellbeing.
  2. The risk that it was said father presented was based in part on matters determined in the earlier proceedings and in part on new allegations. The risk was made up of (1) that which it was said flowed from an allegation that father left H in the care of her mother when the couple separated, (a risk which was mitigated by the fact that he chose to inform the local authority through the dedicated nursery workers), (2) that which arose out of the abusive relationship between the parents, the physical elements of which he denied, and (3) that which would arise if father was unable to engage with H as her primary carer. The judge held that the findings sought by the local authority which were sufficient to satisfy the threshold had been proved. There was undoubtedly ample justification for that conclusion based on the mother’s conduct alone. What is sadly missing from the judgment is attention to the detail of the findings that the judge made against the father so that there can be a proper understanding of the nature and extent of the risk that existed in the father’s care for the purpose of a welfare analysis.
  3. The judge identified in her judgment the key issue in the case which was the question whether father was capable of caring for H on his own, about which there was an adverse assessment conclusion supported by the analysis of the children’s guardian. Closer examination reveals that the opinion upon which the judge relied was that of a Dr Campbell, a consultant neuropsychologist who was an expert witness in the 2011/12 proceedings and who had then advised that father would need another person alongside him to co-parent H. The judge records that opinion and the fact that father disagreed with it on the basis that he had received therapy, had developed insight and had changed.
  4. Although the judge set out the fundamental disagreement on the key issue, no-one had thought in advance of the final hearing to identify whether the issue was important enough for Dr Campbell to write an updating report or even to be called to be cross examined on behalf of the father. No-one took any steps during the hearing to question how the disagreement was to be resolved. There was no application to call Dr Campbell. If the social worker and guardian were asked for their opinions during examination and cross examination this court was not taken to their answers and the judge did not rely on any of the detail of their evidence in her judgment to suggest that the issue was addressed. Furthermore, it was conceded before us that the social work assessments and analyses in this case could not substitute for or update the forensic opinion of Dr Campbell. The witnesses did not have the skill and expertise to do that.
  5. The consequence is that the judge did not give the lack of agreement that existed the importance that it deserved and that was because there were fundamental flaws in case management before the final hearing. The issue was not identified nor was there any identification of the evidence and the witnesses whose materials would go to that issue. A part 25 application to adduce expert evidence had been unsuccessful during case management and the assessment material appears to have taken the issue as being concluded when it was not. In fact the part 25 application seems to have been misguided, asking as it did for alternative adult psychological assessment. What should have been asked for was up to date evidence from Dr Campbell and given that his opinion was part of the local authority’s case, they should have made application for it, paid for all or some of it and taken the lead in giving instructions for it.
  6. In discussion before this court, the advocates acknowledged that the lack of judicial continuity was compounded by the lack of continuity of representation of the parties such that essential steps including mandatory advocates’ discussions before hearings were missed. Had there been judicial continuity it is at least likely that these issues would have been addressed.
  7. There are cases where a judge’s firm acceptance of evidence can lead this court to acknowledge that the reasoning process implicit in that acceptance is sufficient to deal with the key issue identified. Suffice it to say that having regard to the other issues in the case, to which I shall now turn, no-one seriously pursued a submission that the judge’s reasoning was sufficient or that any gaps could be filled by reference to the evidence that was accepted by the judge

 

The underlined portion of paragraph 16 is important – the LA here were relying on Dr Campbell’s conclusions that the father could not be a sole carer for H, and the Court of Appeal took the view that it was they who were responsible for updating Dr Campbell and getting fresh evidence before the Court whether the change of circumstances changed his view (and moreover, responsible for paying for that)  – rather than the father, as it was his case that he had changed.

Worth bearing in mind.

 

I found it a little odd that the Court of Appeal were not even more interested in threshold, which seems on the thin side post Re A and Re J (particularly given that this child had been with father as a sole carer during the six months of the care proceedings)

  1. The background to the case is as follows. As the judge recorded, the local authority had been involved with the family since before H’s birth. There were previous care proceedings within which, in April 2011, H was placed in foster care. She moved to her parents’ care one year later. In June 2012 a supervision order was made which reflected the success of a residential assessment and the subsequent placement of H at home. The order was extended until February 2014. It was an important element of the care plan that the parents’ care was to be supported by the father’s family and members of the mother’s church because each parent on their own was assessed to be unable to care for H. H was subsequently diagnosed as having a condition known as ‘chromosome 16’ which is linked to developmental delay and speech, language and learning difficulties. She has delayed development and is vulnerable to seizures. Her needs have been assessed to be high, requiring a level of parenting that is better than ‘good enough’ and carers who are ’emotionally available’ to help her make sense of her experiences.
  2. The triggering incident which led to these proceedings occurred on 5 January 2014 when the police were called to a shopping centre in West London. H had been left unaccompanied inside the centre by her mother who had been smoking a cigarette outside the main entrance. H’s father was not present and was unaware of what had happened. The incident was investigated by a social worker who discovered that the parents’ relationship was breaking down. By late January, H’s mother was insisting that the father should leave the home and on 26 January 2014 he did so, leaving H in her mother’s sole care. Despite increased local authority support the care of H by her mother rapidly broke down. That led to a trial agreement between the parents and the local authority for collaborative care by the parents under the supervision of the local authority which was to be provided for by renewed care proceedings that were issued on 7 March 2014.

 

The father also produced evidence from professional bodies and groups – given that what was being said was that his autism (in whole or in part) was why he could not parent as a sole carer and needed another adult to provide day to day support and care. The Court of Appeal were critical that this evidence was not properly analysed in the judgment – yes, the Court could have decided that it did not tip the balance in favour of the father, but to do so, it would have to have grappled with the evidence and set out an analysis of why it was found not to tip the balance.

 

18. Furthermore, there were independent elements of the evidence available to the court which might have impacted on all three opinions.

  2. The independent evidence that was available came from Mencap, the National Autistic Society and from father’s two siblings. The judge heard no oral evidence about any of the support that was on offer from those who could provide it. On the written materials she came to the following conclusion:

    ” I do not accept the support offered by way of his family, MENCAP, and NAS would be sufficient to meet [H’s] need for a co-parent to assist [the father] if she were to remain in his care in the longer term“

  3. First of all that recognised the importance of the key issue I have identified, about which the only other relevant conclusion to which the judge came was:

    “The difficulty he has is that, as was made clear in the previous proceedings, he does not have a reliable person who can provide primary care for [H], who will be attuned to her changing needs, and with whom he can work in partnership. Sadly, the evidence from the parenting assessment, [the social worker] and the guardian’s (sic) indicates [H] remains at risk of harm in her current circumstances.”

  4. The judge went on to consider what the position would be if father was not supported and also two other aspects of the case that are relevant, namely the father’s understanding of the need to act quickly if H had a seizure and what was described as a negative “snapshot” from the guardian derived from her only visit to father’s household during the extensive period that he successfully cared for his daughter with the support of family members. None of this was decisive. The key issue in the case remained whether father needed a co-parent and if not, whether the nature and extent of the available support was sufficient.
  5. It is clear from the judge’s judgment that she had read materials from the interest groups referred to above and from the father’s relatives. It is not at all clear what part, if any, they played in her analysis. That is because the analysis is missing. It is possible that no-one wished to cross examine the authors of the documents and that their contents were taken as agreed. An alternative explanation is that the local authority took the pragmatic view that they disagreed with the contents or that the contents did not address the issue and that cross examination would not take the evidence any further. Either position would have been acceptable and understandable but given the disagreement on the key issue it would have been helpful to know whether or not the content of the documents was agreed and how that was factored into the welfare analysis. I also find it difficult to accept that a value judgment about a co-parenting or caring supporter in a contested case can be definitively made without hearing some limited oral evidence from that person in the absence of agreement or a case where the proposal is not realistic.

 

A further criticism was that the father had wanted to call evidence from family members and had had this request refused. I know that this is an issue that greatly troubles Ian from Forced Adoption, so I will set out the Court of Appeal’s ruling on that (which he will like)

It is one of the grounds of appeal to this court that the judge declined to hear oral evidence from the paternal family, i.e. evidence other than that of the father. The paternal aunt and uncle attended court on the third day of the final hearing with the intention of giving that evidence. We were told that the evidence would have gone to answer some of the questions that the local authority social worker and the guardian had about the merits of the support that the father had. It is difficult to know whether that is right. The judge rejected the application for reasons that are unclear. They were neither expressed in the judgment nor in the detailed order made by the court. The reasons may have been appropriate but if not expressed the impression given is that the judge treated the father’s case as if it was not a realistic option.

 

If a Court is going to refuse to hear evidence from witnesses, they will have to give reasons for that, and set out very clearly in the judgment why that was decided.

Ryder LJ was very clear that the problems in this case and judgment arose fundamentally from a failure to have a proper IRH

  1. All of these issues should have been addressed by the court and the parties at the issues resolution hearing when a different judge briefly had conduct of the case. It was at that hearing that the SGO option is first identified in a recital to an order. Although there is a reference to a SGO, the question of whether a SGO should be made is not then identified as an issue to be determined as it should have been on the face of the case management order. It is not until the final order of the court that the issue is identified as one for resolution. The importance of that is not merely technical. For an SGO to be made there are steps that have to be taken. The steps are part of a regulatory scheme that provides protections for the child involved and for those with parental responsibility and those who seek to obtain it. Furthermore, it is important that the court identifies the realistic options before the court so that the evidence can be focussed upon those options thereby providing the material for the judge to consider in the welfare analysis.
  2. At first sight of the papers one could be forgiven for wondering what compliance there had been with the rules in the preparation there had been for the final hearing. The local authority did not amend the care plan to make the proposal for special guardianship until 2 October 2014 and the detail of the transition plan to move H from the care of her father to A was not provided until the first day of the final hearing. The IRH had taken place on 23 July 2014 when all of those materials should have been available. I assume that no-one was taken by surprise because there was no application to adjourn the final hearing on that basis but the extended period from July to October, which was inappropriate in itself, should have been used to regularise what was happening so that it did not occur at the last minute.

 

The Court of Appeal were unhappy that there had not been a proper Special Guardianship report, which is of course a statutory requirement.   There is something VERY IMPORTANT in this bit, which is going to make 90% of my readers groan  – the Court of Appeal rule that if an SGO is sought, there should be an application. Rather than, as usually happens, the Court is asked to make it of its own motion.  Either the prospective special guardian or the LA should make a formal application.  [And that s10(9) applies to such applications – which in a practical sense means that anyone other than a person with whom the child has lived for at least a year, or has a residence order  OR has consent from everyone with PR to make the application, is going to need leave of the Court]

 

{There’s a slight bit of wiggle room here It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason.    so if everyone agrees, you could still ASK the Court to rule that a formal application isn’t needed. Given that there is an application fee, and the Court service is financially straitened, I’m not sure I’d count on that. At the very least, you are going to need to know prior to IRH whether the Court is going to agree to use that power, or insist on a formal application and possibly a s 10(9) application. Remember that both can easily be foreced by one parent saying that they resist. }

 

  1. What was happening was that the local authority were seeking to persuade the court to make a SGO. Although the court has power to make such an order of its own motion in accordance with section 14A(6)(b) CA 1989, that should not be the default position. Such a process can, as it nearly did in this case, give rise to procedural irregularity for lack of notice. The special guardian or the local authority on her behalf should have made the application. The important procedural hurdle of the satisfaction of the test in section 10(9) CA 1989 would then have been addressed. It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason. In any other case, the use by the court of this power must be reasoned. The parties in this case did not agree and the use of the power was assumed not reasoned.
  2. In accordance with section 14A(8) CA 1989 the local authority must prepare an SGO report and by section 14A(11) the court cannot make a SGO without such a report. The statutory purpose is a very real protection. The contents of such a report are set out in a regulatory scheme which is to be found in the schedule to the Special Guardianship Regulations 2005, which is designed to ensure that necessary questions are addressed before controlling parental responsibility for a child is vested in a person other than a local authority. Such a report was never directed to be prepared in this case because no SGO application was ever made.
  3. In her judgment the judge accepts that a report, a support plan and an addendum report which she identifies are sufficient for the statutory purpose. It is only because there is a concession before this court that the content of an earlier ‘connected person’s assessment’ of A fulfil those requirements that this court has not moved on to question whether the assessment was sufficient for its purpose. During case management, the court should have addressed the question directly. On identifying that one of the realistic options that the court was being asked to consider was special guardianship, it should have made directions in the prospective application including for the SGO report and any relevant evidence. If a report which is being or has been prepared is to be deemed to satisfy the regulatory and statutory requirements, then the case management judge should say so: allowing anyone who disagrees to be heard given the statutory importance that is attached to the report. In other words, the assertion must be scrutinised. By section 14C(1) CA 1989 the holder of a SGO shares parental responsibility with the parents of a child but has the right to override the responsibilities of the parents. Such an order is a significant step in a child’s life that is intended to have long term consequences and the protections that surround it should be respected.

 

The final major criticism was that given that this was a stark choice between two options (dad or prospective SGO) the Court had not properly allowed the father to challenge the assertions that the SGO would be able to care for the child.

  1. The final element of this appeal that is troubling is the judge’s treatment of the special guardian. The judge was apparently of the opinion that it was not appropriate for the father to ‘compete’ with the special guardian. I can understand the point she was making, namely that it would be undesirable for the two potential carers of H to be engaged in an adversarial exchange when subsequently they might have to work in partnership. However, the father was entitled to the procedural protection of being able to cross examine witnesses about the capability of A to care for his child. If that was not to be A herself and I reserve judgment on that question until it is a live issue on which a case turns, then it should have been the assessor.
  2. One of the authors of the connected person’s assessment to which I have referred was called to give oral evidence. Unfortunately, she was the assessor who provided information about the birth family. The separate assessor who provided the information about A was not called to give evidence and accordingly there was no cross examination on the question of the capability of A to care for H.
  3. All of this stemmed from an assumption generated in poor case management that the special guardian was a realistic option and the father was not. That was not this case. At the time of the final hearing H had been living with her father for more than six months. It was accordingly incumbent on the court to undertake a comparative welfare analysis. That is missing and would have been difficult to construct on the evidence that was heard.
  4. The errors that I have described are fatal to the determination made by the judge. As a consequence, at the conclusion of the hearing before this court we allowed the appeal, set aside the special guardianship order, imposed an interim care order on an undertaking to file a new interim care plan to abide the event of an application to restore the status quo ante or an urgent re-hearing. We made case management directions to expedite the identification of the issues, evidence and witnesses at a new IRH.

The Court of Appeal was very damning in Ryder LJ’s final remarks

  1. I have set out the catalogue of problems in this case in rather more detail than might usually be necessary because it is essential that the rules and practice directions of the court are applied. They are there for a purpose. Casual non-compliance is not an option precisely because further harm will likely be caused to a child.

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Poppi Worthington

Posted on April 27, 2015 by suesspiciousminds

 

There has been a lot of media interest and frustration about the death of Poppi Worthington.  She died in December 2012 and was just thirteen months old. A finding of fact hearing took place in care proceedings and judgment was given on that in March 2014.  Despite media interest and applications, the contents of that judgment are still not known other than to those directly involved in the case.

A reporting restriction order remains in place, that prevents the contents of that hearing being shared in the media or published. [As ever with reporting restriction orders, they apply to me and to my commentators, so if the information is leaked elsewhere on the net, please do not link to it]

We do know that an inquest took place, with an open verdict and the Coroner releasing Poppi’s name into the real world and was recorded as describing her death as ‘unusual and strange’

The Press were interested in the suggestions that either the finding of fact hearing in the care proceedings might be a miscarriage of justice (based on the Coroner’s verdict being open, rather than concluding that Poppi was unlawfully killed)  OR that the finding of fact hearing was critical of the Local Authority and social workers and that this was being hushed up.

[See for example, the Daily Mail piece here http://www.dailymail.co.uk/news/article-2810262/How-council-tried-baby-s-death-secret-protect-social-workers.html   ]

Either of those things are possible, it is really hard to prove or disprove them until we see the judgment itself.

For a long time, the decision to hold back the contents of the judgment despite media interest, was on the basis that there might be a pending criminal trial.

The police decided on 16th March 2015 not to charge the father with any criminal offences. The Press obviously thought that this would mean that the judgment would be released and they could tell Poppi’s story.

However, as a result of enquiries that had been made in the police investigation, including fresh medical experts, the father considered that there was scope to challenge the decision of the fact finding hearing and the decision to make Care Orders on Poppi’s siblings.  [I don’t think it is rocket science to infer that the final outcome of the finding of fact hearing was that father had done something to Poppi that led to her death, which he disputes]

 

The issues then for Mr Justice Peter Jackson to resolve were :

1. Should this be an application to the Court of Appeal on fresh evidence OR an application for re-hearing made to the High Court who had originally heard the case?

2. If the latter, should the application for re-hearing be granted?

3. Should the original judgment be published prior to the conclusion of that appeal/re-hearing?

And that is what he dealt with in the case of Cumbria County Council v M and F (Application for rehearing) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/35.html

 

 

  1. At the original hearing, the main medical evidence came from three pathologists. Dr Alison Armour, Dr Stephanie Bitetti and Dr Stephen Leadbeatter and from Dr Victoria Evans, a paediatrician. Their opinions coincided in some respects and diverged in others. I substantially accepted the evidence of Dr Armour.
  2. As a result of the fact-finding judgment, the police commissioned further medical enquiries. Opinions have now been given by Dr Nathaniel Cary (pathologist) and Dr Liina Kiho (histopathologist). Their views diverge in a number of respects from those of Dr Armour. An opinion has also been obtained from Dr Victoria Aziz, who is described as a forensic examiner.
  3. In their submissions, the parties have analysed the extent to which the more recent pathology evidence differs from that which was given that the original hearing, with reference to five particular post-mortem appearances.
  4. On behalf of the father and the Guardian, it is argued that the additional medical evidence raises issues of sufficient importance to warrant a rehearing. On behalf of the local authority and the mother, it is said that the issues are ones of nuance and interpretation that do not amount to a reason for reopening the matter. It is also said that the process by which the new evidence was gathered may have had shortcomings.
  5. In my view, the further evidence contains matters of mixed fact and opinion that deserve further consideration. In particular, it contains an alternative unifying hypothesis for the post-mortem appearances. That hypothesis was not overlooked at the earlier hearing, but it did not receive the degree of attention that is now being paid to it. Arguments about any consequences arising from the process by which the further opinions were obtained cannot be resolved without significant further inquiry, and a decision on the father’s application should not in my view be postponed for that to occur.
  6. The circumstances in which the court will reopen established findings of fact are rare. There is a public and private interest in litigation being final. The impact of a renewal of the litigation on the family members can be significant, as is undoubtedly the case here. Further proceedings are also expensive, in this case to the public, and consume court time that is needed for other cases.
  7. There are two ways in which an application for a further hearing can be made. The first is by way of an application to appeal out of time on the basis of fresh evidence. The second is by way of an application to the trial court for a rehearing. In this case, the latter course has been selected. It is argued on behalf of the mother that the former course would have been better. However, it is acknowledged that the appeal route would be likely to lengthen the overall process in circumstances where the earliest resolution is in the interests of the children. In the overall circumstances, and bearing in mind that this court has had an ongoing involvement since the conclusion of the care proceedings because of issues of publicity, I find that the father’s application is appropriately made here.

 

So, in these circumstances, an application for re-hearing was better than an application to appeal. What about the merits of the application itself?

  1. His choice of venue will have been influenced by the way in which the tests that apply in each court have been articulated. An application to appeal out of time engages the well-known test in Ladd v Marshall 1954 1 WLR 1489. The new evidence must be such that it would probably have an important influence on the result of the case, though it need not be decisive, and it must be apparently credible, though it need not be incontrovertible. An application to the first instance court for a rehearing engages the guidance contained in paragraph 33 of the decision of the President in Re ZZ (Children) 2014 EWFC 9 where he endorsed the words of Mrs Justice Hale in an earlier decision: “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions on the same evidence … The court will want to know … whether there is any new evidence or information casting doubt on the accuracy of the original findings.” To this, the President added that “one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my own part I would be disinclined to set the test any higher.”
  2. There may be cases in which the formulations of the tests on appeal and at first instance might make a difference to the outcome, but I do not consider that this is one of them. The court’s overriding objective is to deal with cases justly, having regard to welfare issues involved, and that is my goal.
  3. The considerations that persuade me that justice requires that a further hearing should take place are these:

    (i) The finding of fact addressed in the more recent evidence is of central importance for the family. It is of a kind that determines the children’s future and is of great significance to the parents.(ii) It will be important for the children to have an accurate understanding of what happened to their sister. The more recent evidence has the effect of raising doubt about the existing conclusion. The children’s welfare requires that the matter is resolved.

    (iii) The more recent evidence, like the previous medical evidence, comes from a reputable source; further, it was commissioned in response to concerns expressed by this court about the earlier police enquiry.

    (iv) While the outcome of a further hearing cannot be foreseen, it is possible that a review of the overall medical evidence may lead to a different conclusion. It may, or it may not. What can be said is that there is a serious issue to determine in the light of the further opinions.

  4. As to the scope of the further hearing, oral evidence is likely to be limited to medical testimony. I am unlikely to admit other oral evidence, unless a particular matter needs clarification. Transcripts and notes of evidence from the earlier proceedings will be gathered. A meeting of the doctors should be held in order to establish points of agreement and disagreement. The parties will present a draft directions order, having made further enquiries.
  5. At an earlier stage, the father submitted that any rehearing should take place before a different judge. That submission was not in the end pursued, in my view correctly. There are considerable advantages in judicial continuity in a case of this complexity.
  6. The outcome is that the further hearing will take place in the autumn.

 

So there will be a re-hearing in the autumn. But we are not yet into May – what happens between now and then?

 

As to the publication of the original judgment, I remain on view that this is not appropriate at this point in time, for the reasons given on 30 March. However, I have expressed a provisional view that it should be published at or around the time that the rehearing begins, rather than it being withheld until that hearing ends. There is a proper public interest in the course that these proceedings, and the other procedures surrounding Poppi’s death, have taken. The media will be able to describe matters more effectively if the original findings can be described at the point when they come under review. I have also raised the possibility of the further hearing taking place in public. I will hear from the parties and the media about these issues at the next directions hearing.

 

So the judgment will not be published until the autumn. It MIGHT be published before the re-hearing finishes, and even possibly at around the time that it begins.

The reference to the judgment on 30th March is this one – which was considering the position given that the police had dropped their case against father, but father was wanting to challenge the findings in the family Court.

From that judgment

http://www.bailii.org/ew/cases/EWHC/Fam/2015/918.html

 

  1. On the question of publication of the judgment, there is division between the parties:

    (i) The media, on whose behalf Ms Caoilfhionn Gallagher has presented written submissions, supplemented today by Mr Murphy, argues for publication. It says that the matter is of the highest public interest, both as to the circumstances of the death and as to any agency failures. There is a risk that an information vacuum will be filled with inaccurate speculation. Moreover, continued non-publication would be likely to reignite concerns about “secret courts” and lack of transparency in the family justice system.(ii) The local authority argues that the judgment should be published now that a charging decision has been taken. Even if the findings are reopened, there is a public interest in being informed about the process as it occurs.

    (iii) The mother supports publication, particularly as non-publication heightens speculation in an unhelpful way.

    (iv) The father opposes publication at this point. On his behalf, Mr Rowley QC argues that the evidence gathered during the father’s criminal investigation forms a credible basis for querying the court’s findings. He submits that it would be wrong, taking into account the father’s rights, to publish the judgment ahead of a decision about whether the findings will or will not be reviewed.

    (v) On behalf of the children, the Children’s Guardian opposes publication of the judgment at this time. The children, whose future plans remain at a sensitive stage, would have to face a heavy bout of publicity now with the possibility of further, conflicting publicity at a later stage.

  2. The Practice Guidance issued by the President of the Family Division on 16 January 2014 and entitled “Transparency in the Family Courts: Publication of Judgments” [2014] 1 FLR 733 advises that fact-finding judgments in serious cases should be published unless there are compelling reasons to the contrary. Quite apart from that guidance, this should in my view be the starting point in a case of this kind. The public interest that the media contends for is very significant indeed. As I have said elsewhere, I am aware of the value of the media being able to describe events in real time as they unfold. The risk of speculation replacing information is also a relevant consideration.
  3. I have nevertheless concluded that it would not be right for the fact-finding judgment to be published now. The court retains control over the question of publication and must give due weight to the public interest, the interests of justice and the interests of the individual parties, not least those of the children concerned. It would be wrong in my view to place in the public domain a judgment that would be likely to receive considerable publicity immediately before taking a decision on the question of whether that judgment should be reviewed. To do so would be unfair to the father and contrary to the welfare of the children.
  4. I well understand the desire of the media to carry out its role as fully as possible, and the frustration that is felt at the course of events in this case, in particular where one obstacle to publication is removed only to be replaced by another. However, I am clear that a proper balancing of the rights of all concerned leads to the conclusion that the judgment cannot be published yet. In saying this, I repeat my intention that it shall be published when it can be.

 

Given the Daily Mail story linked to earlier, it is worth noting that at the hearing on 30th March, the Local Authority (i.e Social Services) were of the same view as the Press, that the original judgment should be released and published.  I can also see however, that if you were the father, hoping to get that decision overturned that you wouldn’t want the Press reporting all the details of how a Court found that you did something dreadful to your child BEFORE you get a chance to persuade the Court that they had got this wrong. I can also see that for the Guardian, representing the children, it would not be ideal to see in the papers terrible headlines about your father and your sibling, and then possibly to have a different version of events and fresh stories AFTER the re-hearing.  But also, I can see that this all feels very unsatisfactory – the Press have a story here which is a genuine public interest. Maybe there were failings from professionals from which others could learn, maybe not. Maybe a family has been broken up as a result of a mistake in the family courts, maybe not.  The Press legitimately want to report the story and they aren’t able to do so.

Not an easy situation.

I also note that there is to be a Serious Case Review (which is the internal investigation where a child dies and there might be lessons to be learned). Those generally have to be published, so I wonder if the report might be timed to come in after the autumn re-hearing; as otherwise the Press could legitimately report on the conclusions and substance of that report.

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And we can throw in a word like “circumcision” / cos we ain’t going in for Eurovision

Posted on April 27, 2015 by suesspiciousminds

 

In Re W (Children) 2015, the Court of Appeal had to deal with an appeal arising from a refusal to grant a parent leave to oppose the making of an adoption order.  [I know that like Rizzle Kicks you are saying “Let’s snip to the good bit” – have patience, it is about a third of the way down the page]

http://www.bailii.org/ew/cases/EWCA/Civ/2015/403.html

 

As the case was being dealt with by the President (amongst others), we were always going to begin with an admonishment about Practice Directions.

I interpose to observe that this is yet another example of practice which is not merely unacceptable for reasons which ought to be obvious – the court needs to know both the author(s) and the date of such a document – but is in fact in plain breach of PD27A, para 4.2. This is not the first time I have had occasion to complain about this in recent months: see Re L (A Child) [2015] EWFC 15. I said this (para 14):

“PD27A para 4.2 states that:

“All statements, affidavits, care plans, experts’ reports and other reports included in the bundle must be copies of originals which have been signed and dated.”

This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11.”

I continued (para 23):

“This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough … The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions”.

I spelt out what those sanctions might involve. Here we merely identify the delinquent local authority as Coventry City Council.

It can only be a matter of time before the President issues an edict that prescibes a rap over the knuckles with a ruler for breaches of PD27. Or perhaps a dunces cap, constructed of foolscap paper, to be worn by those responsible for the breaches for the duration of the proceedings.

I can see that it must be irksome for a Judge not to have the signed and dated documents in front of them, this seems a far more legitimate complaint than whether the documents are on double-sided paper. But nonetheless I am adding it to my file of “The Welfare of the Bundle is Paramount” cases.

There were a lot of gripes about the original way that the trial judge managed the application, but it finally turned on this particular point:-

  1. In the first of those two paragraphs, Judge Watson said this:

    “So far as M is concerned there has been a very specific matter which has been raised and has been raised consistently throughout the proceedings and that is that for some reason he was not circumcised. I do not know the reasons for that. It could well be to do with the time and the age he was when he was taken into foster care, but for whatever reason he was not circumcised. The social worker has indicated in her statement that on 3 September there was an agreement that M should be circumcised and I am satisfied that it would be in his cultural and religious best interests to be circumcised. It is what his parents wish and it is a wish which ought to be recognised and perhaps should have been recognised before to date [sic].”

  2. The final paragraph of her judgment underwent some revision. In the draft transcript sent to her for approval, Judge Watson was recorded as having said this:

    “I am therefore going to say that I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the adoption order in relation to B. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

    As approved by Judge Watson the final paragraph reads as follows:

    “I am therefore going to say that I will refuse leave to oppose the adoption but I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the final adoption order in relation to B in 7 days time. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

  3. I have already set out Judge Watson’s order in full. So far as relevant to this point, the key parts of the order are these:

    “upon the court indicating that the Adoption Order for M will be made upon written confirmation to the court that he has undertaken a procedure for circumcision

3 The court has approved an Adoption Order in respect of M such order to be made upon notification of the procedure as set out above.

 

And that, of course, is the Court making an Adoption Order on a conditional basis, which is not allowed.

 

  1. The first relates to M’s circumcision. It is tolerably clear from the order, though the language of the judgment (whichever version one takes) is unclear and, to my mind ambiguous, that Judge Watson did not on 29 September 2014 make an immediately effective adoption order in relation to M. According to the language of the order it “will be made” and is “to be made” upon the happening of the specified event. In other words, perfection of an adoption order in relation to M was expressed to be subject to what as a matter of law is properly described as a condition precedent, namely that M be circumcised. Ms Bazley and Ms McGrath submit that the court cannot properly make an adoption order effective only on satisfaction of a condition precedent. As they ask rhetorically, what is to happen if the condition precedent cannot be satisfied? Does one treat the condition precedent as determinative, with the consequence that the child is not adopted – and if so, what is to happen? Or does one treat the decision for adoption as determinative and, in effect, ignore the condition precedent? They pose the questions not for the purpose of inviting answers but in order to demonstrate that such an order is not merely unworkable in practice but also wrong as a matter of principle. How, after all, does an adoption order subject to such a condition precedent meet the ‘adoption as a last resort’ principle spelt out in the authorities?
  2. In the event the issue has arisen in a very practical way because Ms McGrath told us on instructions that the local authority has been unable to identify any NHS hospital or private clinic willing to perform a circumcision on a child of M’s age, absent medical reasons for doing so – a position, we were told, that is unlike to change.
  3. I agree with Ms Bazley and Ms McGrath. Paragraph 3 of the order is irretrievably flawed. It is in a form which is wrong as a matter of substance. No adoption order can be made expressed to be subject to satisfaction of a condition precedent. Accordingly, in relation to paragraph 3 of the order the appeal must be allowed on this ground also.

 

Nicely argued. You can’t really say that adoption is the last resort (but only if the child no longer has a foreskin).

The underlined bit is odd –  there are a great many male children who have such an operation without there being any medical reasons – we can see the parental desire for this procedure was religious / cultural – so wouldn’t that be your starting point for having the process undertaken?

I can’t find from the judgment how old M was – certainly under the cut-off point for adoption. If he was say five or six, I can see why a GP / hospital consultant might be nervous about the procedure without medical cause. But surely it was a solveable problem. It was perhaps fortunate that the appeal arose, as otherwise this child would have been in a Schroedinger’s Cat style limbo – he can’t be adopted without the circumcision, but the LA can’t get the circumcision done. And no simple vehicle for taking that back to Court to vary the order, and they could have run out of time to lodge the appeal. It could have been very problematic  (which is a major reason why you can’t attach a condition to the making of an adoption order)

 

The other two legal quirks in the case were these.

 

Firstly, in the care proceedings, nine days before the final hearing on a younger sibling JE  began, the parents produced a letter from an Aunt who wished to care for the children.  That led the Judge to decide that the case could not be concluded, but that he could conclude that neither parent could care for JE

  1. On 1 September 2014, Judge Cleary gave judgment following what had been intended to be the final hearing in relation to Je. He explained why finality had not been achieved. For present purposes there are two matters to be noted.
  2. First, Judge Cleary recorded his inability to get to the bottom of what had happened in relation to the various assessments of Aunt A. In his judgment he referred in scathing terms to the fact that the case worker “had a woefully inadequate grasp of what was going on, a wholesale lack of relevant papers and no, or no clear knowledge of the passage of information to and from Belgium”. He commented, “It was, as the caseworker conceded, a fiasco.” He directed a further assessment of Aunt A by an independent social worker who I shall refer to as ISW.
  3. Secondly, Judge Cleary ruled out both parents as carers for Je:

    “I have quite enough information in respect of the parents, and enough evidence to require me to conclude that neither [the father] nor [the mother] is in a position to care for Je, and I therefore conclude that a North Yorkshire declaration is appropriate.”

  4. The legal significance of this is that North Yorkshire was a 2008 High Court authority thought by some (me) to have been a pragmatic solution to a tough situation and being hard to justify given what the Court of Appeal said in Re G that it is no longer a linear ruling out process. North Yorkshire is exactly that – the Court ruling out the parents and then having a later hearing to consider an alternative carer/ adoption. I thought North Yorkshire was dead in the water after Re B, R B-S and particularly Re G.

The President gave it an unexpected kiss of life in Re R, but in that case the Court had not been asked to determine that issue and it had not arisen, so his remarks were at best obiter.  Here however, they are ratio and are binding.  It is official, North Yorkshire declarations are compatible with adoption.  (I can’t see how, but I don’t make the rules, I just write about them)

That is a reference to the decision of my Lady, then Black J, in North Yorkshire County Council v B [2008] 1 FLR 1645. That case is still good law: see Re R (A Child) [2014] EWCA Civ 1625. As I said (para 67):

“Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out.”

So in principle Judge Cleary was entitled to proceed as he did and there has been, so far as we are aware, no challenge by either parent to his decision.

 

Flowing from that, just days after the Court had ruled both parents out as carers for JE but embarked upon an assessment of the aunt, by happenstance, the leave to oppose adoption hearing took place, before a different Judge, Judge Watson.

At that time, the ISW had not reported on the aunt as a potential carer of JE (and she was also putting herself forward as a carer for B and M).  Two days after the leave to oppose hearing, the ISW report DID arrive, ruling the aunt out as a carer.

 

At the time of the leave to oppose hearing then, Judge Watson knew that Judge Cleary had ruled out the parents as carers for JE, but had directed an assessment of the aunt, and the outcome of that assessment was not known.

There’s quite a law anorak debate about whether the findings and decisions of Judge Cleary were binding on Judge Watson, or whether they were a starting point that she was entitled to rely on, but could deviate from if there were reason to do so.

  1. Judge Watson was entitled to take as a starting point, as the factual baseline, the various findings set out by Judge Cleary in his judgments of 12 December 2012 and 31 January 2013 and the fact that on 1 September 2014 Judge Cleary had ruled out the parents as prospective carers for Je: see In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 and In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95. The same approach applies (see Re Z, para 32) whether the matter is before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. So Judge Watson was entitled to rely on Judge Cleary’s decision on 1 September 2014 even though it arose in the context of the proceedings in relation to Je being heard by a different judge whereas the proceedings before Judge Watson related to B and M.
  2. A judge can revisit earlier findings and depart from them if there is good reason to do so. The approach was indicated by Hale J, as she then was, in Re B, page 129:

    “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence … The court will want to know … whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

    In Re Z, I said that I agreed with that, though adding (para 33) that one does not rehear a previously determined issue:

    “unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge.”

  3. It is not clear to me that Judge Watson was ever invited to go behind Judge Cleary’s decision on 1 September 2014. In any event, I cannot see that there were any solid grounds for challenging his decision. Judge Watson, in my judgment, was entitled to feed that decision into her overall appraisal of whether – I am leaving Aunt A on one side – there had been any change in the circumstances of the parents.
  4. What Judge Watson said in her judgment on the point was this:

    “sadly for [the mother], on 1 September of this year she was ruled out as a potential parent and carer for Je.

    That of course is a matter of weeks before this decision that I have to take and it is very difficult for me in those circumstances to satisfy myself that she has made those solid and significant changes an her circumstances which would justify me granting her leave to oppose the adoption.

    …

    His Honour Judge Cleary also ruled [the father] out as a prospective carer for Je. Again I am in considerable difficulty in seeking to accept the submissions made by [him] that he has also made an improvement and a significant change in his circumstance such that would justify the grant of leave to oppose the making of an adoption application because that does not accord with the judgment of HHJ Cleary.

    Three weeks [sic] Judge Cleary was unable to accept that there had been a reversal, what I described as a sea change, in [the father’s] approach to the findings and to his involvement in the findings made by Judge Cleary in relation to the parenting of all of the children, but particularly the older children. I was not the judge who heard the fact-finding hearing and I must accept that if Judge Cleary made those findings and concluded the welfare of the children could not be best served by considering placement at home for the children that, if not appealed, is binding on this court, as it is of course on Judge Cleary when he made the decision in relation to Je, and again reviewed that decision in September and concluded that the changes were not significant and that Je could not be returned to the care of his parents.

    I cannot accept that in the light of the findings of His Honour Judge Cleary as recently as 1 September that there has been this change in circumstances, this improvement in the father’s position that would justify the granting of leave to oppose the adoption.”

  5. It might have been wiser if, instead of using the phrase “binding on this court”, Judge Watson had chosen words that better reflected the legal position, but taking these passages in the round, and reading them in the context of the judgment as a whole, I do not think that Judge Watson either misdirected herself in law or proceeded in a manner that was not open to her.

 

The orders were overturned and sent back for re-hearing, but for all of the legal high-concept and anoraking and argument, it was the Judge’s decision that M should be circumcised before the adoption order was finally made that really won the appeal.

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No broad presumption in favour of a natural parent

Posted on April 27, 2015 by suesspiciousminds

The Court of Appeal in Re E-R (A child) 2015 had to deal with a very emotionally difficult case.  [Don’t ask me why they call the case “Re E-R a child, but then use T as the child’s codename throughout. I have no idea why, it makes no sense] 

 

T was five years and nine months old. She had lived with both parents until she was two and they separated, and from then on with her mother. Her mother sadly was diagnosed with cancer.  The separation from the father had been very acriminious and the father had drifted out of T’s life.

 

The mother had made a will appointing a friend SJH as testamentary guardian, wanting SJH to care for T after her death. She and T moved in with SJH, who provided the mother and T with care.  SJH made an application for a Special Guardianship Order whilst the mother was unwell but still alive.

 

His Honour Judge Vincent at the family court sitting at Truro on the 30th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.

The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.

 

Very sadly, the mother died before knowing the outcome of the appeal and thus without knowing whether her daughter would continue to live with SJH or whether she would be removed and placed with the father.

The Court note at the end, but I think it is very important, that everyone in this case struggled with the law (counsel in the first hearing and the Judge) and that father had not been able to be represented and had to represent himself in the Court of Appeal on extremely tricky points of law. A wholly unacceptable situation.

  1. This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:

    i) The relevant law was not brought to his attention; as a consequence his analysis was conducted on the basis that there was a presumption that T should live with her father. This was wrong in law and as already indicated, upon that basis alone, the appeal must be allowed.

    ii) The judge might nevertheless have been better able to analyse the complicated issues which were thrown up had he had the benefit of something more than the somewhat one dimensional and superficial reports which were available to him.

  2. The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.
  3. The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?
  4. Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives

 

The Court of Appeal did overturn the order and send it back for re-hearing.  That does not automatically mean that the decision is that T will live with SJH, but just that in making the decision it is not a starting point or broad presumption that it would be better for a child to live with a birth parent.  The Court of Appeal were at pains to point out that just as there’s no starting point or broad presumption that natural parent should prevail, nor was there one that the status quo should prevail.

  1. The Law
  2. In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

    30. My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

    “We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”

    Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

    31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

    “I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved”

  3. In her conclusion Baroness Hale said:

    “44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

  4. In Re B (a child) 2009 UKSC 5; [2010] 1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:

    This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”

  5. When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.
  6. I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.
  7. In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor – custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

    I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

  8. In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.
  9. In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

 

I’ll clarify this – this is the law for PRIVATE law proceedings, and in care proceedings, there is clear authority that the best person to bring up a child is the parent.

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided thechild’s moral and physical health are not endangered.”

Lord Templeman in Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139 at 141A.

This has been cited approvingly in dozens of cases and is a fundamental underpinning of public children law.  It at essence means that it is not the job of the Court when considering a Care Order application to think about whether the child might have a happier life, or better standard of living and better opportunities if they lived with foster carers or nice adopters, but to decide whether the parents care of the child was harmful to them in a way that could not continue. It is the bulwark against social engineering.

(Many would argue, and Owen Jones in particular has argued that a large part of the adoption system is social engineering, moving children from poor working-class families to middle-class ones, but if the Court does its job properly this ought not to happen)

There might well be some tricky decisions in future months when the options before the Court are not parent v foster care, but ‘good enough but not great parent’ versus ‘stellar grandparents’ – it must be very hard to resist the tempation to ‘fix’ the children’s lives by leaving them with far more capable grandparents. But that is a tempation that Lord Templeman warned us to avoid.

 

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Fax it up, m’lord

Posted on April 16, 2015 by suesspiciousminds

 

I was listening to Radio Five this morning, to a debate on the NHS and at one stage an expert told the listeners that the NHS was far too behind in modern technology – by way of disparaging illustration he said “Most GP’s are still using faxes, for goodness sake”

Which reminded me of the apocryphal story of the High Court Judge sitting in a Court far away from London, reaching the end of the case and realising that he has left all of his notes and preparation for delivery of his imminent judgment back at his London home. He mentions this dilemma, and someone helpfully suggests, “Fax it up, m’lord”  – to which the Judge sadly responds, “yes, I’m afraid it rather does”

And that led me to think that anyone who began practicing law in the last ten years would probably not understand that joke.  We have a fax machine in our office, but I can’t remember the last time anyone used it in anger. All that I ever see come out of it are single page spam adverts – invariably telling us that if we have had an accident in the workplace, we could get compensation – hugely informative stuff of that type.

When I first started working in law, which was a long time ago, I was at the beck and call of the fax machine. I don’t know that I want to give precise dates, but by way of indication my Local Authority was using a junior barrister named Cherie Booth and we were dimly aware that her husband was an MP but had no idea who he was.

 

The fax machine and I were very close. Our first version had no programmable numbers, you had to dial them all manually. And it didn’t use ordinary paper, but some horrid shiny stuff akin to the toilet paper in schools at the time (and possibly prisons now).  When we received our evidence, we had to fax this out. It had to go to the Court, to three firms of solicitors (mum, dad, Guardian) and to our counsel. So each piece of final evidence, I, as the junior dogsbody, had to fax out five times. I was junior dogsbody for eight lawyers at the time, so there was a LOT of final evidence, most of it having to be sent out on a Friday afternoon.

And the fax couldn’t send and receive at the same time, so if we had one lawyer with evidence ready to go out, and another waiting to receive the faxed copy from the social worker, that would be a juggling act with the social services dogsbody and I on telephones “Can I start sending it now?”  “Just wait, ten seconds… oh damn, the one to Thimbleby Fisher has jammed again”

If you aren’t old, like me – for example, my colleague Gimson, who does not believe me that we didn’t always have stuff on television whenever you turned it on and that for about five years daytime television consisted of Pebble Mill then three hours of “Pages from Ceefax”, it probably seems ridiculous to think that I was spending close to eight hours a week doing nothing other than feeding paper into a fax machine and swearing copiously when two pages went through at once.  I had to do this, because there was no way of sending these documents from one computer to another.

The social worker would write their statement out by hand, take it to a typing pool, a typist would type it up, the social worker would give it to the social services dogsbody, they’d fax it to me, I’d take it to the lawyer who would check it. If it was okay, then I would fax it out to everyone.  And then when they got it, which would often be at about seven pm, because I’d be doing this for eight cases on a Friday, they’d have to fax it out to their counsel.

And as archaic and dreadful as that sounds – this was an improvement. This was cutting edge tech – it was instantaneous compared to the system that had been around before I started, when you’d be DX-ing or posting it out and it would arrive a day or two later – usually just after you’d left for Court on the case you needed the document on.

None of us had computers on our desks – I remember that coming in, and many of the lawyers being mortified that this was taking up space on their desk where their files and notes would have been. When we finally got email, it meant that we no longer had to have the social work statements faxed to us, and that we could make changes and amendments to documents without having to get a typist to do it.   (It also ended one of the other curiousities, which was that I was keeping an index for all of those cases, which I was doing by making handwritten annotations to the typed index as new documents came in, and then getting it typed about once a month – if the case was going wrong, I’d be squeezing more and more annotations into a tiny space).

But we still couldn’t send documents out by email, because most of the other solicitors didn’t have it straight away.

I can’t really imagine doing the job now without a computer, being able to see a document and edit it and perfect it and send it back and forth until it is just right, then simply send it out to everyone who needs to see it in a task that takes less than 30 seconds when it used to take an afternoon. I can’t really now, even after such a short time, really get straight in my mind what it was like to only be able to look at your emails if you were sitting at your desk – to not be able to read them on the way to Court or whilst waiting for Facts and Reasons. And that’s a change of only the last four years or so.

The really odd thing of course, is that without blackberries, and email, and computers, and word processing – without even photocopiers, the lawyers in the early days of the Children Act got all this done – and they actually did it in shorter timescales and with less delays than we manage now with all of our assistance. That’s rather like learning that Formula One cars in the 1930s were faster than modern ones (they weren’t)

I wonder what is coming in the next few years, and how it will make our lives easier, but how as Parkinson’s Law shows us, work expands to fill the time available to do it.

I’ve been reading a book called Future Crimes, by Marc Goodman, which is about incredible advances in technology and the opportunities that these bring, and also the threats that they may pose. It isn’t an alarmist book – every story that the writer tells, he is able to show a real-life example where this has happened (often where hackers are demonstrating weakness in things like GPS, drone missiles, pacemakers, hearing aids, central heating controls, by hacking them and taking them over as proof of concept).  It was a great read, and frankly I could devote the blog for the next month to quoting you individual stories from it – there’s something astonishing on every page. (Paypal’s privacy policy contains more words than Hamlet… how one hacked tweet knocked 20% off stock prices in America for a morning, allowing the hackers to profit by shorting stocks, Target emailing a 14 year old with discount vouchers for maternity items leading to her father writing them an angry letter only to send another one two days later  saying that unknown to him she was pregnant – Target’s shopping algorithm knew she was pregnant based on purchases of things like unscented moisturiser before the girl herself even knew)

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A heartbreaking case of staggering genius

Posted on April 15, 2015 by suesspiciousminds

 

It isn’t really heartbreaking – when you read about how two people are arguing about how to divide a fortune of £144 million it stirs up the expression ‘my heart bleeds’, but it is a case where Holman J tackles the word ‘genius’   – and his approach interested me.

Gray v Work 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/834.html

 

It so happens that I agree with Holman J that the word is massively overused.  Just as a quick random sampling – 458,000 hits for “wayne rooney genius” and 35 million for ‘george north genius’  – both of whom are exceptionally talented and gifted sportsmen, but they aren’t geniuses  (geni-ii?)

  1. Paragraph 80 of Charman, excerpted in paragraph (vi) above, is one of several authorities that employ the word “genius”. It appears also in Lambert, and very recently in Cooper-Hohn, and in other authorities in which the court has debated whether the person claiming a special contribution possesses the quality of “genius.” I personally find that a difficult, and perhaps unhelpful, word in this context. To my mind, the word “genius” tends to be over-used and is properly reserved for Leonardo Da Vinci, Mozart, Einstein, and others like them. It may lead, as it did in this case, to the rather crude question to (in this case) the husband: “You don’t describe yourself as a genius, do you?” Not surprisingly, the husband, like any person with a modicum of modesty, was rather nonplussed by the question. Oscar Wilde is famously said to have declared that he had nothing to declare but his genius. More modest, even if exceptionally talented, people may be slow to make such a claim.
  2. What I understand is meant by the word “genius” in this context, and what is required for a claim to a special contribution to succeed, is some “exceptional and individual quality which deserves special treatment.” See Charman at paragraph 80. But the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.
  3. It is clear from the above propositions and the outcome in other cases that hard work alone is not enough. Many people work extremely hard at every level of society and employment. Hard work alone lacks the necessary quality of exceptionality. Further, to attach special weight to hard work in employment risks undervaluing in a highly discriminatory way the hard work involved in running a home and rearing children.
  4. It is clear also that a successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time, or benefiting from a period of boom is not enough. It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.

 

[I think personally I would go with Da Vinci, Mozart, Darwin and Einstein, and I don’t tend to use genius for anyone else – I know that my definition is narrow. {I wrestled with including Orwell, but had to finally conclude that this would open the door to too many others. If Sherlock Holmes had been a real person, would he have been a genius? Just short, I think.}  It would be a definition which means that the special contribution ancillary relief test would not be met for anyone, were I deciding it, since those four men are long gone. And actually it conflicts with the second definition in the dictionary

an exceptionally intelligent person or one with exceptional skill in a particular area of activity.  So in the unlikely event that I was sitting on the Court of Appeal, I would overrule my own definition as being wrong…]
The other issue of general application relates to the ever popular (and I use ‘popular’ here to mean ‘hatefully recurring and more difficult to ignore than one would ideally like’ as in “One Direction are a very popular band”) theme of excessively large bundles
  1. The parties have spent approaching £3,000,000 on legal fees and associated expenditure. For that, you get very high quality legal teams, and each of them has been very well represented, but it does not appear to have facilitated a conciliatory outcome to this case.
  2. Further, some of the spending has been, in my view, profligate and unnecessary. Ordinary people litigating in the family courts about very serious issues, such as whether their children should be adopted or returned from care or whether life support of a child should be maintained or ended, do not have the luxury of, nor, frankly, the need for, two shorthand writers in court throughout the hearing, producing overnight transcripts to which negligible reference was later made. It is an extravagance. Whilst it was a privilege to hear from two Texan matrimonial lawyers, I do not think the cost of their travel and attendance was justifiable or necessary.
  3. The bundles were excessive and proved inconvenient for me, for witnesses who struggled with them in the witness box, and at least at one stage for Mr Howard QC. At one point we had the absurdity of going to one bundle for a letter and another bundle for the reply. There was a pre-trial hearing before a circuit judge on 3rd December 2014. He had no other involvement in the case either before or after that day. Amongst many other directions, he did formally give “permission for the trial bundle to be extended to six lever arch files…” I asked Mr Tim Bishop QC, who appeared on behalf of the wife, and who was present on 3rd December 2014, whether the circuit judge had exercised his own independent discretion in agreeing to six bundles, or whether he had been seduced by counsel. Mr Bishop immediately and frankly said that the judge had been seduced by counsel and that it was not an independent assessment by the judge. It was rubber stamped. This is not how the very important Practice Direction 27A is intended to be applied. Further, the cardinal and over arching words of the practice direction are the opening words of paragraph 4.1: “The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing …” However many bundles the court may authorise, there should be no document within them which does not fall within that rubric in paragraph 4.1. I have not kept a tally in the present case, but I am confident that the total number of documents read or referred to is less than half the total of well over two thousand pages assembled in the bundles.
  4. In his judgment in L (a child) [2015] EWFC 15, handed down last week, the President of the Family Division has given due and crystal clear warning that these excesses will no longer be tolerated. What I wish to emphasise is that although that judgment related to care proceedings, every single word of the relevant part of it applies no less, and arguably more, to financial remedy proceedings.

I did rather like the language of whether in agreeing that there should be six bundles in the case, the Judge had been ‘seduced by counsel’.

I’m not sure that seduction efforts that involve allowing a Judge to permit additional lever arch files into evidence is going to be a subject matter that would particularly tempt Hollywood into incorporating it into Rom-coms, and probably it will be a while before my huge rollercoaster of a script “Pride and Pagination” gets picked up by Hugh Grant, but a man can dream.    [My action-ancillary-adventure movie starring Matt Damon  “The Besterman Cushion” is in post-production, so there’s that]

[I would have to say that having a letter in one bundle and the reply to that letter in a different one is fairly illustrative of things having gotten completely out of hand]

It is different counsel who later on posits that in the list of assets that the wife has suggested should be transferred to her contains some ‘duffs’ as well as ‘plums’  – I don’t think I am anywhere near well-bred enough to ever get away with using it; but I still liked it.

  1. The wife and her legal team have attempted to avoid the dispute as to discounts by proposing what they call Wells v Wells sharing. They have identified about 24 assets in the asset schedule which they suggest should be transferred in whole or in part to the wife, inclusive of any inherent discount. Whilst I welcome and appreciate their desire to minimise costs and potential further litigation, I am unable to accept that proposal. The present hearing has been largely occupied with the evidence and argument as to the two issues of the agreement and of special contribution. There simply has not been time, in the time estimated and allotted for this hearing, to hear either evidence or argument as to discounts.
  2. Mr Bishop says that their proposed Wells v Wells sharing list contains “duffs” as well as “plums”. But that is mere assertion. I am simply unable to engage judicially in consideration of discounts, save on an item by item basis, upon which the court would need to hear both evidence and argument.

The case is well worth a read if you do ancillary relief, or enjoy watching very well paid lawyers squabble about millionaire’s money. The husband clearly had cojones that would have been setting off the security metal detector given that they began with an offer that was 2% to the wife, 98% to the husband and over the course of the hearing shifted that.

Very sensible, to shift.

But probably not from 2% to 0%.

The wife ended up with 50%  – which one might have thought was a result that one could have guessed at without spending three million on lawyers, but I suppose if you thought you could get away with 98% of the assets it was worth a punt.

 

Yet another of those big money cases that ate up precious High Court time, for a very small fee. I do wonder if the time has come for the Court to get a percentage of the assets in dispute where one is dealing with sums over twenty five million. The ancillary relief Court fee of £255 is not touching the sides of what these cases are actually costing the taxpayer.

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