section 20 drift

Posted on December 24, 2014 by suesspiciousminds

This case is not a legal authority, in that it was delivered by a Circuit Judge, (Her Honour Judge Atkinson) but it is a good judgment, on an important issue, so I am sharing it.

 

Re P (A child : Use of section 20) 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

 

By way of context for non-lawyers, section 20 is the provision in the Children Act 1989 where a parent can agree to the child being placed in foster care – that doesn’t automatically trigger court proceedings, so the case might not go before a Judge and the parents would not have lawyers to give them free advice about their situation.

 

If you want to know more about section 20, Sarah Philimore has written an excellent and comprehensive guide – it is valuable for lawyers, professionals and parents alike http://www.childprotectionresource.org.uk/what-does-section-20-mean/

P is a little boy who was born on 04/08/09 and is now aged 5 years and 4 months. P has not lived with his mother and father for 2 ½ years. He was accommodated under s.20 Children Act 1989 by the applicant local authority, London Borough of Redbridge, (LBR) on 28th June 2012 and placed in foster care. Care proceedings were not issued until almost 2 years after his removal, on 30th May 2014.

 

There is not (currently) anything in law that prevents section 20 going on for so long, but it is not good practice. With a child of this age, decisions need to be made in good time about whether he is able to go home to his parents, or be found a home elsewhere. The longer he remains in limbo, the more uncertain his future is. Two years, for a child who was not quite three at the time the s20 started, is a long, long time.

 

In this case, that’s made even worse, because once the care proceedings did start, assessments showed that these parents would, with help, be able to look after him.

These parents accept that at the relevant date in 2012, they needed help in developing the parenting skills necessary to meet their son’s needs and that the statutory threshold is crossed as a result. On the issue of welfare, suffice to say by way of introduction, that by September 2014 it was clear, on the evidence of the jointly instructed assessment service, Symbol, that these parents were able to resume the care of their son. It was also agreed that they needed a carefully managed programme of rehabilitation which could only commence once they had somewhere to live. The problem in this case and the only reason why P has not been returned to their care is that these parents have no home of their own and it is suggested that the local authority fixed with the obligation to house them, the Royal Borough of Greenwich (RBG) is unwilling to assist.

 

It didn’t help that the stumbling block was housing, and that the Local Authority wasn’t doing all it could to provide the parents with suitable housing

  1. In my judgment, P has not been appropriately cared for by the applicant local authority within the care system where for many years he has languished in s.20 accommodation with no clear plan. It is likely that he will have suffered confusion and some harm as a result. To its credit, the authority fixed with the responsibility for P’s care, LBR, has recognised the errors in its management of this family.
  2. However those errors are compounded by P’s ongoing separation from his parents caused, I am told, by the wholesale failure of another public authority to find them somewhere to live. The RBG is unrepentant in the way that it has handled this housing issue maintaining that it has followed all proper procedures and denying any bad faith. I have listed this case next week for me to determine whether there has been any bad faith in its handling of this case and to give the authority concerned the opportunity to reflect upon the circumstances in which this family finds itself. In the interim I have fixed RBG with the responsibility to support this family through an interim supervision order in the hope that by bringing children’s services on board I will see some “joined up thinking” develop within the authority as between housing and children’s services.

 

[If you want to know more about the housing side of things, I recommend Nearly Legal’s blog piece on it http://nearlylegal.co.uk/blog/2014/12/every-possible-obstacle/   which highlights that this appears wasn’t just the wheels of bureacracy moving slowly, but a conscious decision not to offer housing]

 

The Judge had this to say about the Local Authority’s use of section 20, particularly in relation to establishing threshold criteria (the test for whether it is right for the State to intervene in a family’s life and seek orders) and fairness

 

29. The relevant date for the purpose of this threshold is the date when P was first accommodated – 2 ½ years ago. For reasons which I am sure are obvious, the significance of those facts is reduced the more distant we are from them. In this case, for example, the more difficult it is to discern whether the child in question has suffered harm as a result of the parenting given to him before separation rather than the events he has had to endure after. I wonder at the impact upon P of the changes in his carers over the 2 years before proceedings were issued in circumstances in which he was living away from his parents with no real sense of why or for how long because LBR had no plan in place. I wonder at how damaging the process of holding him in s.20 accommodation without any plan for his future will have been for him.

  3. It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.
  4. In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P’s accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is “parked” and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.
  5. Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether LBR had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the LBR there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.

 

With all of that in mind, you might well be amazed that the Local Authority proposal for the way forward was for section 20 to continue whilst housing was resolved.  That shrill beeping noise you are hearing is the Court metal detector still going off three weeks later due to the balls of steel that London Borough of Redbridge’s team must have had to even suggest that as a solution.

Iron cojones or not, the Judge wasn’t much taken with that as a plan.

Turning now to the welfare decision, and contrary to my usual instinct to bring matters to a close and leave the LA to do its job, I absolutely agree that I am unable to make final orders here today. I am horrified that LBR should even ask and in doing so suggest that we should revert to the arrangement in which we use s.20 accommodation to “hold” the child until an unspecified point in the future when the other authority in this case complies with its housing obligation.

 

If you remember being at school and watching a classmate being told off and enjoying it, only to then have the teacher swivel towards you and say “And I don’t know what YOU’RE grinning about…”   this next bit will bring back memories.  Royal Borough of Greenwich are about to cop an earful too

I now turn my focus away from LBR to the RBG. The evidence before me today seems to suggest that there has been a complete and utter failure of the RBG to meet its responsibilities to provide housing to this family or even allow them to apply as a family such that these parents are prevented from bringing to an end the 2 ½ years (half of his life) that P has spent as a “looked after” child. Indeed the information that I have received suggests that the RBG has acted in bad faith and has sought to engineer a situation in which they would be freed of the obligations I might impose pursuant to a Supervision Order. I make no findings in that regard but intend to investigate that matter further when this case returns next week. I observe, however, that the most recent position statement from RBG indicates that the housing department are now satisfied that it can be reasonably be expected that P will reside with his parents and they will now consider him as part of any application for housing. However the final paragraph of that statement indicates that the RBG has failed to grasp what it is that this family needs in order to succeed in their reunification because it ends by pointing out that the most likely outcome of the application for housing will be the provision of “temporary accommodation” and that this may include accommodation outside of the Borough.

 

At least to their credit, after the judicial dressing down, accommodation was found for the family, and they were reconciled, nearly 2 1/2 years after first being separated

 

At the first listed hearing after the one at which I gave the Judgment transcribed above, RBG attended, asserting that they had found accommodation for the family which could be taken up by 15th December. A transition plan drafted by LBR was drafted on the basis that they would take up residence by Monday 15th. It transpired that this was not a tenancy or even an offer of tenancy but rather a referral or nomination to be considered for a tenancy by a local housing association. It also became clear to me upon hearing from the senior housing officer who attended on the day that juggling the housing resources of this London authority meant that this family was only ever going to be top of the list when they were recognised as an emergency and it had taken my order that he attend a hearing for them to be so recognised. That is not an acceptable way of working by public authorities in my view. It was known to RBG that the situation was as I have described it as long ago as September. I suggest that RBG ensures that it has systems which enable it to respond more appropriately to such emergencies.

Happily, at the second hearing on 16th December, the tenancy was confirmed as signed. The transitional arrangements had to be redrafted. I hope and expect that the parents will be assisted to take up their housing.

As a result I had no need to make findings on the disputed facts.

The LBR have committed to embark upon an investigation as to how this child was accommodated without a plan for such a long time. I am grateful to them for that.

 

This Judge did remarkably well to secure justice for this family. It is a shame that her remarks about section 20 drift aren’t authority, but they will be useful pointers in framing the argument in similar cases. It seems like it will only be a matter of time before Courts set down an authority that such drift and delay amounts to an article 8 breach for which compensation is payable.

 

I’m afraid that this can be part of human nature – social workers are busy and are fire-fighting crises all of the time. If the child is in section 20 and the parents aren’t clamouring for the return, there’s a danger that the case drifts not by design but because it never presents as being a towering inferno that has to be tackled as an immediate priority then and there.

The IRO in this case also got away without criticism, but this drift ought to have been nipped in the bud at the Looked After Child reviews.  There has to be a LAC review for a child in care after 28 days, then after 3 months, and then at least every 6 months. So for P, there should have been at least four, perhaps five LAC reviews before the proceedings were issued.

 

And by the second LAC review, there should be a plan for the child’s permanent future, which probably did not happen here. It is the job of the IRO to make sure that this sort of drift doesn’t happen and that the case doesn’t get put on the backburner over and over.

 

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Are YOU the Lord Chancellor? Find out in our quiz

Posted on December 23, 2014 by suesspiciousminds

This post guest-written by Misty St Clair, Agony Aunt of Jackie magazine in 1984 and was written by her at that time, following an excess of Advocaat and a bout of unexpected fortune-telling and a descent into legal matters – her column was not eventually run that week, the editor considering it to be “somewhat niche, dahling”.

 

(Suesspicious Mind note :- This was going to be by Geneva Minty, Agony Aunt of Just Seventeen magazine, but I didn’t dare face looking on Google Image for “Just Seventeen” )

Horses horses horses! (and law)

Horses horses horses! (and law)

 

Hey Girls!

A lot of young adults write to me with their problems –  “When I marry George Michael, will his chum Andrew want to be hanging around all the time?”   or  “My friend says you can’t get pregnant if you eat four After Eights straight afterwards”  or “How can I apply lipstick like Robert Smith”, but one question comes up more than any other.

It is this  “Misty St Clair, am I the Lord Chancellor?”

And it is time that this issue, which troubles so many adolescents, was answered. Find out, in this simple quiz.

 

1.  Which of these are real Judges?

 

A   Jonathan Sumption QC

B  John Deed

C  Louis Walsh

 

 

2.  Your Government intends to slash and burn the legal aid budget , what do you do?

 

A  Lobby in Cabinet for the benefits of legal aid, and educate your colleagues on the Rule of Law

B Help push through the reforms, but commit to provisions that ensure that nobody will have their human rights breached

C Pretend to do B above, but secretly issue guidance that means that those provisions will hardly ever get used, then lose in the Court case about it

 

3. An idea emerges that to please the Daily Mail, the Government should ensure that foreign nationals don’t get legal aid, do you?

 

A.  Resist on the basis of unfairness and discrimination

B  Reluctantly advise that it isn’t possible

C  Immediately issue Regulations that you had no legal power to issue and lose in the Court case about it

 

4. In order to cut costs, you are asked to ensure that victims of domestic violence have to produce documentary evidence that puts them at risk of harm, do you?

 

A. Resist on the basis that the law exists to protect the vulnerable

B  Introduce a need for documentary evidence but make it reasonable

C Introduce a need for documentary evidence, make it near impossible to satisfy, and lose in the Court case about it

 

5.  You are asked to come up with a policy that will show how tough the Government is on prisoners, do you?

 

A  Refuse and explain to Cabinet that no less an authority than Winston Churchill counselled that one judges a country by how they treat their prisoners

 

B Come up with something which looks tough but ultimately will never be followed through

 

C Ban them from receiving books, claim that this was never intended, lose in the Court case about it – but even then, don’t reverse the policy until after Christmas, ensuring that the unlawful and unpleasant ban on books still stops prisoners getting books as Christmas presents

 

6.  Imagine that you are the manager of a football team  (ask your dad or big brother) called “Judicial Review United” and you lose six matches in a row, do you?

 

A  Resolve to train harder, play better and win the next game fair and square

B Grumble about refereeing decisions but keep playing the same way

C Try to change the rules of football so that it is impossible for the other team to turn up and play

 

 

 

How did you do?

 

Mostly A’s   +    You have nothing to worry about – it may seem sometimes that you have some Lord Chancellor tendencies, but really it is nothing to be ashamed of. Many young people go through this phase and are idealistic and naive and think about experimenting with becoming a vital check and balance on the excesses of the State, and they just come through it. More people than you know. You are not alone!

To be honest, many of your ideas about what Lord Chancellors are like are very old-fashioned – the world has changed a lot, you know!

 

Mostly B’s  –  there is a risk that you might be persuaded by more ‘grown-up’ friends to dabble in Lord Chancellor-ness, but you are far too sensible to really get caught up in it. Just remember, as Misty St Clair always says  “The Coolest Thing you can ever do is Say No Thanks” .  Just like Zammo in Grange Hill, you can come out the other side and live a happy and rich life.

 

Mostly C’s  – There is no easy way to break this to you, there is a good chance that you are reading your sister’s magazine in the hope of finding some problems that help you understand girls. You are destined to become the Lord Chancellor. You may be thinking that you can avoid this fate by never studying law, working in law, having any interest in law or any knowledge of law. It will not stop what is foretold.  For reasons that are inexplicable, you and you alone, will still become Lord Chancellor even though you have no working concepts of anything you would need to know to do the job well. You will also become balding, I’m afraid. That will teach you to read Jackie – stick to Shoot or Victor and you would be much happier.

 

Till next time, I’m Misty St Clair and remember, “a problem shared is a problem that lots of young boys will read secretly and giggle over”

 

Nothing says fun like a boy band holding scaffolding. That and LAW!

Nothing says fun like a boy band holding scaffolding. That and LAW!

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Capacity to consent to sex – do you want a Hanc or a Hunc?

Posted on December 22, 2014 by suesspiciousminds

Mostyn J has just given a ruling in the Court of Protection  – London Borough of Tower Hamlets and TB 2014

http://www.bailii.org/ew/cases/EWCOP/2014/53.html

Within this case, Mostyn does two significant things.

 

The first is that he refines his own test for capacity to consent to sexual intercourse, and is much persuaded by Hedley J’s formulation.

Regular readers will be aware that the Court of Protection’s usual approach to capacity to consent to sexual intercourse is to look at three issues :-

 

(a) Understanding of the mechanics

(b) Understanding of the health risks

(c) Understanding of the risk of pregnancy.

 

Mostyn J says that he has changed his mind as to whether that is the right test

Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion.

 

Before Mostyn J, legal argument took place that bears some resemblance to that discussion in Gremlins 2 about whether a Mogwai is fed after midnight if he is on a plane crossing the international date line…

  1. I deal first with the pregnancy element. In A Local Authority v TZ [2013] EWCOP 2322 Baker J concluded at para 31 that in the case of a person clearly established to be homosexual it is ordinarily unnecessary to establish that he or she has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case Mr McKendrick argues that because TB has had an IUD inserted she is in an equivalent position. The argument became increasingly far-fetched. We discussed a man who has had a vasectomy. A woman who is beyond childbearing. A man wearing a condom. Mr McGuire QC rightly captured the unreality of this debate in his final submissions when he said:

    “But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge of this link be irrelevant for a man? “

 

And as a result, Mostyn J decided that it would be best for the third part of the test to simply form part of the second part (health issues)

I have come to the conclusion that the third element of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved”. All sexual activity has some health risks. The most obvious ones are pregnancy or STDs. But over-robust sexual activity can cause wounding or bruising, external or internal. Any sexual activity can cause psychological harm. A simple criterion as I have suggested would resolve the dilemma I expressed in para 43 of D Borough Council v AB [2011] EWCOP 101, which on reflection came perilously close to introducing a quoad hanc dimension when I had been at pains to repudiate that.

 

If you are wondering what quoad hanc means   [i.e you are not my regular commentor Andrew, or David Burrows] it raises its head in this judgment here, where Mostyn J raises a complaint that a formulation is unnecessarily overcomplicated and goes on to explain it in Latin.   (I am biting my tongue here)

The first thing that the cases have decided is that the test for capacity to consent to sexual relationships is, to use rather laboured language, general and issue specific, rather than person or event specific: see IM v LM [2014] EWCA Civ 37 at para 79. In canonical language the incapacity must be quoad hunc not quoad hanc, in contrast to the position under section 12(a) Matrimonial Causes Act 1973 where the incapacity to consummate may be on either basis[2].

Quoad Hanc is where someone is not able to have sex with a particular individual, and Quoad Hunc is where they are not able to have sex with anyone.  i.e the difference between not being able to have sex with Hank (perhaps because he has body odour) and not being able to have sex even with a hunk (because you just can’t have sex with anyone)

 

[I am sure Andrew and David will be able to put it better than I have]

Having digressed a bit, is the capacity to consent to sexual intercourse test now just

(a) Understanding of the mechanics, and

(b) Understanding of the health risks  ?

 

Well, not so fast there Hank.

Mostyn J reminds himself and us that he had previously been asked to consider whether the understanding of the ability to say “yes” or “no” to sex should be a factor, and had rejected this. He has now changed his mind, and gives credit to Hedley J in relation to this

  1. I now turn to the question whether the relevant information should include as a separate element an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time. In my previous decision of D Borough Council v AB I accepted at para 35 that I should not conflate the capacity to consent to sex and the exercise of that capacity. Therefore I rejected Dr Hall’s third head of capacity.
  2. In this case the OS agrees that being able to say yes or no to sexual relations is part of the weighing process under section 3(1)(c), and that this is made explicit by the terms of section 3(4)(a). Notwithstanding this concession Ms Greaney disputes that it should be an independent head of awareness because to do so would conflate capacity with the necessary exercise of free will. She argues that consent is the product of capacity and the exercise of free will.
  3. However, in A Local Authority v H [2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this:

    “And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. “

  4. In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J’s formulation captures perfectly why and how that extra ingredient should be defined.
  5. Therefore I conclude that when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P:

    i) the mechanics of the act; and

    ii) that there are health risks involved; and

    iii) that he or she has a choice and can refuse.

    I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has the merit of simplicity.

I have to say that for my part, I prefer this revised three part test.  I did have to quickly check whether it clashes with the Court of Appeal in Re IM v LM 2014 and I don’t believe that it does. So this is now the new test to be used.

 

[In the instant case, the woman understood the mechanics, understood that she enjoyed sex but did not understand that she could say no. Her husband for religious reasons believed that it was her duty to have sex with him on request – her general level of functioning was that of an 8 year old. Mostyn J held that she did not have capacity to consent to sex on the basis that she had no understanding of her ability to say no]

 

The second issue of import in the judgment was that there was a Deprivation of Liberty Element – this woman wanted to go back to her husband and was being prevented from doing so. In part because he intended to have sex with her about twice a week and she lacked capacity to consent.

That allowed Mostyn J to revisit his decision in Rotherham. And if you think that he has softened on that, as he has changed his mind on the capacity test, you are wrong.

  1. My decision of Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45 has aroused a certain amount of criticism. For example, Sarah Lambert, the head of policy for the National Autistic Society has stated that:

    “This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.

    Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”

  2. The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
  3. If nothing else, I think it is important that I meet the criticism that I have sought to encroach on essential protections for disabled people, and amplify my reasoning.
  4. In para 17 of my decision I said this:

    “It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5. “

  5. The suggestion that “the dissimilarity justifies differential treatment in the nature of protective measures” was not a personal idiosyncrasy. It is justified by high authority

Mostyn J goes on to set out those authorities, but I will pass over those – they are available in the judgment if you wish to see them.

57…The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”

  1. But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
  2. In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go “home” she would be brought back. Her situation is therefore very different to Katherine’s, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5. Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.
  3. At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers

 

There’s some force in that – the Supreme Court have, in setting out the law, put many thousands of people in living circumstances which now amount to a breach of article 5, and the Court of Protection is going to be swamped with cases. Mostyn J has taken a pragmatic line, and we wait to see if the Court of Appeal think the same.  For my part, I think that the Supreme Court captured this point and the fact that on the ground it has enormous consequences for very many cases doesn’t detract from the principle.  The Supreme Court have explained what the test is, and the fact that it is going to have massive repercussions can only go so far.

 

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Another day, another appeal against Placement Orders refused

Posted on December 19, 2014 by suesspiciousminds

 

I know…  it is like autumn 2013 but in reverse.  It would be nice, once in a while if the Court of Appeal would grant some appeals and refuse others, rather than having six months of granting them all and then six months of refusing them all.

At the moment, these appeals are like turning up to play 5-a-side football with your mates, and Christiano Ronaldo turns up as one of the ten.

It isn’t that hard to predict the outcome and if you are on the other side, it is a lot of hard work for not much reward.  Even worse if you turn up thinking he’s going to be on your team, only to find out that the rules changed to put him on the other side whilst you were travelling to the match.

 

Re P (A child) 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/1648.html

 

Nothing much in this one about the legal test and the ongoing debate about whether when the Supreme Court and Court of Appeal say “You’ve got to do A, B, C and D if you are going to make a Placement Order” that amounts to a change in law or not.

But some things of interest.

 

The difficulty for a real human being  (we lawyers call them “lay persons”, but “person” is also an acceptable term to use for a person) in understanding the appeal process and what to do, what form to fill out, where to send papers, who to send them to

 

This case yet again puts into sharp relief the difficulties which arise for the courts, the litigants and most of all the children, where unrepresented parents seek to navigate their way through a system which necessarily operates on the basis of detailed procedural rules, without which there would be chaos but which inevitably present the layman with significant difficulties. Had the father been represented, the mistakes that followed, would have been picked up by his solicitors.

 

The Court of Appeal explain that in this case, the father had thought he could appeal to the County Court, and the County Court had also thought that for quite a while because the Recorder who heard the case had also been sitting at that Court as a District Judge. Their explanation for this is so complicated, I had to read it three times to grasp it, so I feel for all involved.

 

Then the age old difficulty of getting a transcript

Meanwhile, notwithstanding that the county court had asserted that a transcript of judgment had been sent to the parties in December 2013, it was not until the 11 July 2014 that the local authority received a copy, and even then they obtained it only because counsel for the father sent it to them. Unhappily, whatever defect in the system for the obtaining and distribution of transcripts had been responsible for the delay in the onward transmission of the Recorder’s judgment did not lead to a revision of those systems as there were further significant difficulties with regard to obtaining transcripts. It is not being suggested that the resulting delays were the result of indifference on the part of the court staff. No doubt the problems stem from a lack resources leading to a shortage of appropriately trained and experienced court staff able to identify the problem and put in place a system for ensuring the prompt and efficient ordering and distribution of transcripts of judgments and evidence.

 

The County Court actually wrote a letter of apology to the father in this case for all of the things that had gone wrong. That’s a fairly rare occurance  (in twenty years of practice, I’ve never heard of the Court apologising to anyone)

As I understand it the father has received two letters of apology from the County Court for the mistakes which led to the wholly unacceptable delay in this matter coming before the court; a delay unacceptable for the father, but also for the prospective adopters. Whilst the father was obviously distressed during the course of the hearing, he behaved with dignity and composure throughout. It will inevitably be hard for him to accept that the outcome of this appeal, and the making of the adoption order which will in due course be made in respect of S, are not a direct result of an inadequate judgment and delay within the family justice system. I can only assure him that it is not so; Mr Hayes put forward every possible argument to convince the court that the case should be remitted, but even his skill and tenacity could not undermine the fact that upon close analysis of the findings and assessments available to the court at the time of the hearing, the making of a care order and placement order in respect of S was the inevitable outcome.

 

In this case, the appeal was based on the judgment not being sufficiently clear about what basis various options had been discounted to arrive at adoption – one might think from reading Re B-S that when they said THIS

 

41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

42. The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

that they meant that a judgment ought to grapple with the factors at play and give proper focussed attention for the specifics.

The Court of Appeal had been taking a very hard line on this, but seem to have softened their approach and are prepared to look at the totality of the judgment and the evidence heard by the Judge  (which was not the case in the low-watermark case where the parents had both been in prison at the time of the Placement Order and the appeal was granted)

  1. One of the difficulties where a judgment lacks structure and fails to present the reader with a clear analysis of the evidence, its application to the law and thereafter of its cross check with Convention rights, is that a reviewing court is not only presented with a formidable task in determining whether the decision reached by the judge was wrong, but it potentially leaves a litigant, (often a parent destined as a consequence of that judgment to have their parental tie severed), with a sense of unfairness, even where there is no question of his or her Article 6 rights having been compromised.
  2. At first blush it appeared that the deficiencies in the judgment with which this court is concerned were such that, no matter what further delay was occasioned in determining S’s future, the appeal must be allowed and the matter remitted for rehearing. The process of determining whether the essentials can in fact be found within the judgment and the evidence has been immeasurably assisted by the careful analysis of Miss Morgan QC, through which it has become clear to the court that notwithstanding the difficulties inherent in the judgment:

    i) All the material necessary for a proper determination of the case was before the judge and tested in cross examination.ii) That, whilst the finding in relation to developmental delay cannot stand, there were nevertheless more than adequate findings to allow the threshold criteria to be satisfied and therefore the court to proceed to consider what, if any order, should be made.

    iii) The father was assessed by both the Guardian and the social worker as to his ability to care for S. The judge was entitled, having heard the evidence, which included oral evidence from the father, to accept the recommendation of the Guardian and indeed, if a court decides not to follow the recommendation of the Guardian, it should give its reasons for failing to do so. (Re J [2001] 2 FCR 44)

    iv) The evidence before the judge addressed the available options and the judge took into account the father’s strengths as well as weaknesses. The Recorder gave his reasons for concluding that it was not in the best interests of S to be rehabilitated to her father.

    v) Whilst the judge failed to state in terms that he made a care order before moving on to consider the placement order application, it was implicit that, having determined that the child could not return to the only parent who was a realistic option, a care order would follow. The conditions necessary for the making of a care order were undoubtedly made out.

    vi) The care plan was for adoption. The necessary information was available to the judge for the welfare analysis within the extended assessment of the Children’s Guardian. The Recorder noted the exceptionality of the order sought and said that the making of such an order was ‘necessary’. Even though the case was heard before Re B-S the Recorder took into account the importance of the order for adoption being ‘proportionate’ and importantly, that it is not enough to say that “it would be better for the child to be adopted than to live with his natural parents”

    vii) This was a little girl who had just turned 2 at the time the orders were made in circumstances where there was no one within the extended family who could appropriately offer her a home. Once the court had concluded that it was not in her best interests to be returned to the care of either parent then, given her age and need for a secure, stable and permanent home, it could not be regarded as wrong for the judge who had heard the case to conclude that her welfare required an adoption order to be made.

  3. Pieced together in this way, I conclude that the Recorder did engage with the essence of the case and that his judgment contained the essential ingredients necessary for there to be a proper determination of the issues which determination also respected the Convention rights of all the parties

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Re R – is B-S dead?

Posted on December 18, 2014 by suesspiciousminds

 

That’s the Court of Appeal case that we’ve been talking about all week.  It happened to come in time for my deadline for my Family Law column, so my analysis of it is over there.

 

I know not all of you read Family Law, so here is the link.

 

In very short terms, the Court of Appeal layeth the smackdown on those people who were pushing, stretching and exagerrating Re B-S to be an authority for “leave no stone unturned, climb every mountain, ford every stream – till you avoid adoption, that’s B-S’s dream”.   BUT  Re B, and Hale’s formulation stands – the President specifically says that Courts can’t make a Placement Order unless satisfied that Lady Hale’s formulation applies, and every single bit of content in Re B-S still applies.  In a nutshell, Re R says to advocates, don’t take bad points and don’t appeal on flimsy technicalities based on your notion of what a post Re B-S judgment looks like.

 

http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back#.VJLA_3vzOud

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Child Sexual Exploitation (Birmingham injunction case)

Posted on December 16, 2014 by suesspiciousminds

 

This case, in which Keehan J made wide-ranging injunctions against a number of men who he was satisfied had been involved in grooming children for nefarious purposes, made the news. I have been waiting for the judgment for the following reasons :-

 

1. This remedy, if it stands up, is a better approach than placing victims of child sexual exploitation in secure accommodation (locking up the victim)

2. The precise methodology was not in the press reports, particularly in the use of the inherent jurisdiction not only to protect AB, the subject of the application, but all children under 18.  Is this lawful, and if so, how?

 

[On the latter point, the Inestimable Martin Downs has written persuasively over at the UK Human Rights blog

Inherently Uncertain: Is there authority for that? Questions over Birmingham’s Grooming Injunctions

 

particularly on whether  there are difficulties in using the inherent jurisdiction to achieve something for which Parliament has laid down a statutory mechanism for  (albeit one with different tests)  ]

Birmingham City Council v Riaz and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

 

Here are the injunctions that Keehan J made   (I have italicised the bits that I consider problematic)

From the time this order is served upon X until the date specified in this order X Must Not:

a. contact AB by any means, in person and or through any third person whether by way of face to face contact, telephone (mobile/landline/facetime/skype etc.), text messages, MSM, blackberry, chatrooms, or other social media whether or not such contact is invited in the first instance by AB

b. seek the company or be in the company of AB whether or not invited to do so in the first instance by AB

c. approach AB in any manner, whether in public, on the street or other public areas such as parks, in private addresses open to certain members of the public such as any food outlet, retail outlet, café, public house, bar, hotel, club, nightclub etc, on public transport, in or at any premises associated with a sporting or entertainment activity or in any private residence, whether or not invited to do so in the first instance by AB

d. follow AB in any location public or private

e. approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.

f. pass on details for AB for example name, location, address, telephone numbers at which she can be reached or the names of other persons through whom she can be contacted save as directed by the police or order of the Court.

g. incite, encourage or facilitate the introduction of AB to any other male.

h. incite or encourage any other male to seek any form of contact with AB

i. cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

And is bound by such order until 18th August 2015.

 

There isn’t really much doubt that the High Court has power under the inherent jurisdiction to make all of those injunctions about AB, the subject of the application. The issue is, are the bits in italics stretching the inherent jurisdiction too far?

 

I appreciate that for many readers, their reaction might be the same as mine was initially – they are grown men who shouldn’t be hanging around with teenagers anyway, they should be stopped.

As a matter of morals and ethics, I probably agree. I’m no fan of what these men are said to have done.

Legally speaking though, this is very widely drawn, and is it a proper use of inherent jurisdiction?  Long-time readers might know of my disquiet when judges trot out that old saw about the powers of inherent jurisdiction being theoretically limitless.

 

It is a long and detailed judgment, but the passage that deals with whether there is power to make the order is very short.

  1. The inherent jurisdiction of the High Court “may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits” Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23.
  2. The use of the inherent jurisdiction has been substantially curtailed by the provisions of s100 Children Act 1989. A local authority may not apply for any exercise of the court’s inherent jurisdiction with respect to children without the leave of the court: s100 (3) Children Act 1989.
  3. The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:

    1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

    1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –

    a) orders to restrain publicity;

    b) orders to prevent an undesirable association;

    c) orders relating to medical treatment;

    d) orders to protect abducted children, or children where the case has another substantial foreign element; and

    e) orders for the return of children to and from another state.

  4. In Re M and N (Minors) [1990] 1 All ER 205 at 537, Waite LJ said:

    “the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages”.

  5. I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

 

The Court applied the civil standard of proof here – in fact, as is plain from the judgment, the police were unable to seek prosecutions on this case and the criminal standard of proof would not have been made out.  It might surprise family lawyers, who think that the civil standard of proof was put to bed with Re B, to know that for other civil proceedings the debate rages on.

For serious allegations, and particularly where the consequences are serious, there is authority – Haggar for one, suggesting that the civil standard of proof approaches the criminal standard.

These men have been named and reported in the Press as predatory paedophiles or at least grooming with that sort of end in mind. And on the balance of probabilities rather than that higher test. Is it the right standard of proof, given the serious consequences that must have had for them?

 

Readers may be interested in the judgment as it relates to publicising the men, but that’s outside the scope of my interest for today, and others are better placed to write about it.

 

The “Riaz” route is an option for Local Authorities, and the Judge praised the Local Authority for their hard work and creative thinking. Is it robust? That would probably have to wait for a judgment in a case where the challenge to (a) powers and (b) standard of proof is more vigorously raised.

(Or heaven forbid, a committal application for breach, when the validity of the original order might be tested more fiercely)

 

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An appeal

Posted on December 16, 2014 by suesspiciousminds

 

Not the President’s judgment in Re R a child 2014  (I need a bit longer to do my piece on that, but it is here http://flba.co.uk/blog/2014/12/16/re-r-a-child-2014-ewca-civ-1625/   and Lucy has done a piece on it here http://www.pinktape.co.uk/legal-news/sorry-whats-that-you-say/  )

 

My gut feeling is that this is really just the Court of Appeal saying “If you are appealing against a Placement Order, come to us with an actual argument as to why the Judge got this wrong, not just on a technicality, but an actual argument about the facts”    (or an even shorter version “Stop making b**locks appeals”)

 

No, this is an appeal via one of my readers.  This reader, a very nice person, read my “What to do if Social Workers are Trying to Steal your Children” blog post with some practical advice.

 

This mother was helped enormously by a charity, and she in turn would like to help them. As with any charity, money and funding is scarce, so this is an appeal that if you were in a charitable frame of mind at this time of year, this looks to me to be a very good cause.

 

 

  www.familiesincare.com.   This is a very small charity which supports, advocates, and advises North East families who are faced with Child Protection Proceedings.
In order not to get this mother into any difficulties and at her request, I’ve taken out the very moving and impressive story, but I can absolutely tell you that this charity has made a massive difference to her life and other people like her, and I think they need to be helped to keep doing so.

 

  They have students – both Law and Social Work – who come in on placement, and many stay on to volunteer. There is a Parents Group for parents who have lost children to adoption, gently supporting them through their own disenfranchised grief process, and Families In Care help parents with Letter Box Contact.  

 

In short, this is a rare gem, a beacon of hope to parents faced with the most horrifying of times.     However, Families In Care are struggling. Having had their funding removed from a particular source, they are now in a position where they face imminent closure. This just cannot happen. It just can’t. So many families rely on their presence, their hands to hold, and their commitment to ensuring parents are heard and fairly treated.  

 

Families In Care have made an Urgent Christmas Appeal for help:   http://shoutout.wix.com/so/97a9fcf6-5dfa-4cc7-b4f3-25f19be6934b#/main   

 

Families In Care need £3000 before January or they will close and families will be left without support at the worst, most vulnerable time.     Please help, it really would mean an awful lot.

 

If you can help Families In Care at all, they seem like people who have the potential to really make a difference to people who need help.   Even better, if you happen to be someone in the North East who has some sway over budgets and resources, please see if you can give this charity some support.

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Forthcoming Court of Appeal judgment on adoption

Posted on December 16, 2014 by suesspiciousminds

We know that there is one coming, because the President told The Times (sadly behind a paywall) that there would be one coming out this week in which the Court of Appeal would clarify Re B-S. The Times article is in the context of the “crisis” in the lower adoption figures – that “crisis” is itself in the context of adoption figures having gone up 26%.

The Times, you may be aware has moved from the Camilla Cavendish line of secret oppressive family Courts into pro-adoption.

 

We will have to wait and see what the President says. I suspect the direction of travel can be read from recent Court of Appeal judgments – my guess would be that all of the rigorous demands on social work evidence and a comparison of all of the various options will remain.  But that there will be clarification that Re B-S never intended to raise the bar or heighten the legal test.

 

The language in the Times piece talks about Courts being satisified that adoption is “the best option”  which is quite a distance from “last resort” never mind “nothing else will do”

 

If Re B-S was being misunderstood, it seems odd that it has taken a year and a half for the President to speak out. He sits in the Court of Appeal, he has brother and sister Judges routinely hearing appeals, he gives speeches and judgments all the time, he has his View from the President’s Office, all of which have been silent.

 

The closest we have come until now, was this Press Conference in April 2014

Click to access munby-press-conference-290420141.pdf

Philip Hoult from Local Government Lawyer. The question I have is recent rulings on adoption from the judiciary implies that what’s said, from the steer, that adoption should be a last resort where nothing else will do. The government is saying to councils, “We want you to place more children for adoption,” and they’re threatening to remove local authority powers if they fail to do so. Do you have any advice for councils in that situation?

JM: Well, I stopped giving advice when I left the bar 14 years ago. All I would say is that it is the Supreme Court, very recently in a case called “Re: B” which used the phrases which you’ve just mentioned. Last resort and so on and so forth. Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the  judges to decide what the statute means. The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so. I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in “Re: B” in I think the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year, the tension being that whereas the Supreme Court said that adoption is the last resort, the Government, as I recall in the guidance it gave, said that local authorities should get away from the idea that adoption is the last resort. So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if the Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law. In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.

 

It does seem to me that the President is explicit there – there was a tension between what the Courts were saying in Re B and Re B-S and the pro-adoption policies of the Government. And the President was explicit – if the Government disagree with the judicial line, they must change the law.

 

So will the President hold firm, or is there a change coming?  (I know where my money is going. I suspect we are about to learn that we have always been at war with Eurasia)

 

I can’t cut and paste in the entireity of the Times piece, due to copyright issues, but if this bit is accurate, it really troubles me

 

Officials in the Department for Education made a series of pleading phone calls to heads of local authority children’s services departments telling them that the judge’s intervention had been misinterpreted.

Perhaps that isn’t right. But if it is, is that the way for judgments to be interpreted? Is that the way for Government to approach judgments that they don’t like? *

 

 

*( well, given that the Lord Chancellor just lost the book ban judicial review, but isn’t reversing the policy until after Christmas to stop prisoners getting books as presents for Christmas, maybe it is)

 

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The tussels from Brussels

Posted on December 9, 2014 by suesspiciousminds

 

{Warning, this post contains some Brussels II stuff, but it also has something potentially important – I’ll try to keep it short}

 

A v D and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3851.html

 

It involves a 3 year old girl, mother is Polish, father English. They lived together in England but then separated. Father became worried that mother would remove the child to Poland, and applied to the English Courts for an order preventing that.

In April 2012, the father, concerned that the mother might remove E to Poland, issued proceedings in the Bournemouth County Court seeking a prohibited steps order preventing her from removing the child from the jurisdiction, together with a parental responsibility order. After two preliminary hearings, the matter came before District Judge Dancey on 3rd May 2012. A transcript if that hearing is now available. The mother, who was represented, gave evidence on oath stating that, if she were permitted to take the child to Poland for a visit between 14th May 2012 and 16th July 2012, she would return E to this jurisdiction at the end of that period. The father, who was acting in person, indicated that he would not oppose the mother taking E to Poland for a holiday, although he expressed some unhappiness at the length of the proposed visit. On the basis of the mother’s undertaking, the District Judge made an order permitting the mother to remove E to Poland for the purposes of a holiday between 14th May and 16th July 2012.

 

It will not surprise any of you cynical hard-bitten readers to learn that she never came back from that holiday.

 

  1. Shortly after arriving in Poland, the mother applied to a court in that country for a custody order and subsequently wrote to the Bournemouth County Court stating that she did not intend to return. On 24th July 2012, the father filed an application with the Central Authority for England and Wales under the Hague Child Abduction Convention 1980 and Council Regulation (EC) 2201/2003, (hereafter referred to as Brussels II Revised), seeking the summary return of E to this jurisdiction. On 10th August, the father’s application in the county court was adjourned generally with liberty to restore. The father’s application under the Hague Convention was pursued via the Central Authorities but on 17th December 2012, it was dismissed by the district court in Ruda Slaska in Poland. The father’s appeal against that decision was subsequently dismissed on 24th October 2013.
  2. On 30th April 2014, the father made an application in the existing English proceedings seeking an order committing the mother for contempt of court, an order for parental responsibility and a contact order. The application was transferred to the High Court and listed before me in July 2014 to consider as a preliminary issue whether or not the court had jurisdiction to entertain the application. In the reserved judgment delivered 31st July, I held that this court had jurisdiction to entertain the father’s application for orders concerning matters of parental responsibility. In the course of legal argument at the hearing, however, I indicated to Mr Edward Devereux, counsel for the father, that I proposed to consider whether the court should exercise its power under Article 15 of Brussels II Revised to transfer the case to Poland. Mr Devereux thereupon submitted that the court had no power to transfer proceedings under Article 15 because no party to the proceedings accepted the transfer, but seeing that this argument did not initially find favour with the court, he asked for further time to consider the issue, having regard to the fact that it had only arisen in the course of argument.

 

I’ll dash through it quickly, because everyone hates Brussels II. A Court can, and now must, consider whether the proceedings ought to be transferred to another EU Country to deal with, if they are better placed to deal with them AND the child has a connection to that country.

 

For these purposes, the connection is either:-

That the mother, who has PR, is now habitually resident in Poland

OR

that the child has acquired habitual residence in Poland AFTER the English Court started to deal with the case

 

The father’s case (and I have a huge amount of sympathy for him here) is that the mother and child are only in Poland because mum abducted him and breached Court orders, yet she is now being rewarded by having the Court case on home turf – to transfer would be to reward her for her wrong-doings.

 

  1. First, Mr Devereux informed me that this case presents a factual situation which, so far as counsel have been able to discover, has not been considered before in any reported case, that is to say a proposal, arising in private law proceedings following the unlawful retention of a child, to transfer the proceedings under Article 15 to the country in which the child has been unlawfully retained. Mr Devereux stressed the fact that E is only in Poland as a result of a wrongful act perpetrated by her mother. On any view this is a blatant case of child abduction and it is not right for a court to reward a party who has acted unlawfully. Furthermore, the mother appears to have committed perjury before the English court. A transcript of the proceedings before District Judge Dancey has now been obtained and demonstrates clearly that the mother gave a promise on oath that she would return E to the jurisdiction of this court in July 2012 at the conclusion of the holiday. The father has launched committal proceedings for contempt of court arising out of the mother’s breach of her undertaking and it is asserted on behalf of the father that he will continue to press this application. In those circumstances, proceedings will in any event be continued in this jurisdiction. Mr. Devereux submitted that it would therefore be undesirable for proceedings to be continuing in both countries.
  2. Mr Devereux further contrasted the respective abilities of the parties to participate in proceedings in the two countries. The mother was able actively and properly to engage in proceedings in this country. She has a good understanding of the English language, as is plain from her oral evidence before District Judge Dancey. She was able to give a promise on oath which the judge felt able to accept. In contrast, the father asserts that he has no knowledge of the Polish language and no understanding of the procedures of the Polish courts. He does not have the means to travel to Poland and stay there to participate in proceedings. Poland has a system of legal aid but, as demonstrated in he expert report from Dr Kasinska-Wiercinska, there are in practice a number of difficulties facing a litigant in the father’s position who wishes to apply for such assistance.
  3. Mr Devereux further submitted that, all things being equal, E’s best interests would be served by having a relationship with her father and her father being involved in her upbringing. This court can ensure that this happens speedily by making a child arrangements order for contact and issuing an Annex III certificate which could be automatically enforceable in Poland. In contrast, if the case is transferred to Poland there is, submitted Mr Devereux, no guarantee that any application made by the father would be heard expeditiously nor, if and when it was heard, that he would be granted contact with his daughter.

 

As the Judge was Baker J, the law is flawlessly applied and set out, and the approach was really to answer the three questions posed by Munby J (as he then was)

In AB v JLB Brussels II Revised Article 15 [2009] 1 FLR 517 at paragraph 35 Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a request under Article 15:

“First, it must determine whether the child has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State. . . . .Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))?

Secondly, it must determine whether the court of that other Member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

Baker J found that the answer to all three questions was yes, and that the Polish authorities should be asked to take over the case.

Part of his thinking here was that with a mother who was living in Poland and adamant that she would not return to England and play no part in any Court proceedings in England, there was no likelihood of any actual contact for father getting underway.  [My reading of the case is that father was seeking to spend time with the child, rather than have the child live with him full-time. That might have made a difference, it is hard to say]

 

25. ..without the mother’s cooperation and participation in the proceedings, it is highly unlikely that any court will make any order for contact in this case. All the evidence suggests that the mother does not intend to take part in these English proceedings, and without her co-operation the father’s application for contact cannot be resolved by the English court. The fact that the father is intending to pursue his application in this jurisdiction to commit the mother for contempt makes her participation in any English proceedings concerning parental responsibility and contact even less likely. She may also be reluctant to take part in proceedings in Poland, but crucially the Polish court would have the power, should it choose to exercise it, to oblige her to participate. Although the father would be at a considerable disadvantage were he required to participate in proceedings in Poland, it is reasonable to expect him to do so to the best of his ability. It may be possible, however, for ways to be found to assist his participation in Polish proceedings.

  2. When one turns from the fact-finding hearing to the welfare stage of the proceedings, it is plain that the balance of the evidence on welfare matters lies in Poland. I agree with Miss Green’s observation that the Polish courts have a very real advantage by reason of the child’s presence within their jurisdiction. This makes it possible for all necessary enquiries and investigations as to her welfare to be carried out there. E is living in Poland. Her life centres round her mother and friends and family in that country. Any contact will inevitably have to start in Poland. There would of course have to be some investigation of the father’s circumstances, which would involve consideration of his home and life in this country. But the preponderance of evidence as to welfare matters will arise in Poland.

 

I don’t doubt that this is the right decision in law – I’m a fully paid-up member of the Baker J fan-club  (I have the badge, and I know the secret handshake), but God, this seems utterly unfair to this father. He did the right thing – he got an order from a Court to stop mum taking the child to Poland, only to find that in the teeth of someone who was prepared to breach it, Article 15 of Brussels II rewards her and punishes him.

And this happened without mum even ASKING for Brussels II to apply.

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Seeking costs against the Public Guardian in a financial safeguarding case

Posted on December 9, 2014 by suesspiciousminds

 

The Public Guardian and CT and EY 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/51.html

 

As District Judge Lush observed, this is the first reported case where a costs order has been sought against the Public Guardian.

 

By way of quick background, CT is 85 and had a stroke a year ago, which later led to a diagnosis of dementia. There has been a considerable family schism, and CT is close to his daughter EY but not close to much of the rest of his family.

 

A month after his stroke, he entered into a Lasting Power of Attorney arrangement, appointing EY as his sole attorney.

 

In July 2014, the Public Guardian, having received a referral that EY was misusing the Lasting Power of Attorney, conducted an investigation and made an application to the Court of Protection under s48 of the Mental Capacity Act 2005 for declarations about whether CT had capacity and if not what directions / declarations should be made about his affairs.

 

  1. The application was accompanied by a witness statement made by David Richards, an investigations officer with the OPG, who said that:

 

 

(a) in September 2013 CT’s son and daughter-in-law had raised concerns with the OPG.

 

(b) on 13 June 2013 CT had severed the joint tenancy of the matrimonial home and the adjoining property, which he and his wife also own.

 

(c) CT had ceased paying the utility bills on the matrimonial home; had stopped transferring housekeeping money to his wife, and had closed their joint bank account.

 

(d) in September 2013 CT applied to the Land Registry to register the matrimonial home in his sole name.

 

(e) on 30 September 2013 a Court of Protection General Visitor, Emma Farrar, saw him at Grays Court Community Hospital. She thought that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so.

 

(f) Havering Social Services had raised a safeguarding alert.

 

(g) the OPG asked EY for an account of her dealings.

 

(h) EY replied her father still had capacity and that the OPG’s enquiries were an invasion of his privacy.

 

(i) in January 2014 the OPG commissioned a visit from a Court of Protection Special Visitor (Dr T.G. Tennent, DM, FRCPsych) but EY and her partner, who is employed by Moss & Coleman Solicitors, refused to let him visit CT.

 

(j) Dr Tennent was, nevertheless able to examine CT’s medical records, and in his report, dated 31 March 2103, he came to the conclusion that CT had capacity (a) to make the LPA and (b) to sever the joint tenancies, but that it was “impossible to offer any opinion as to Mr Todd’s current capacity in relation to the queries (c) to (j).”

 

 

There then follows a somewhat complex history, but the substance of it was that the expert who examined CT, Professor Jacoby, was of the view that CT’s capacity fluctuated, but that there were times and had been times when he had had capacity to make his own financial decisions (and thus the LPA wasn’t being used at all at those times)

 

  1. Professor Jacoby prefaced his assessment of CT’s capacity with the following preliminary remarks:

 

 

 

“I shall deal with the separate capacities as set out in my instructions which were taken from the directions order of 20 August 2014. Before doing so I wish to stress that I am relying on CT’s mental state as I observed it on 2 October 2014. However, I believe his mental state fluctuates both as regards his dementia and his episodes of delirium. I should make the following preliminary remarks:

 

 

(a) When he is delirious, in my opinion, he does not have any of the capacities listed below.

 

(b) When he is not delirious, but his dementia is more prominent, his capacities are weaker than when he is at his best.

 

(c) When he is at his best he does retain some capacities as described below.

 

(d) When he is at his best he is able to communicate his decisions, and I shall not comment further on this fourth limb of section 3(1) of the Mental Capacity Act 2005.

 

(e) When at his best I believe that his capacities can be enhanced by assistance in line with the judgment of Gibson LJ in Hoff et al v Atherton [2003] EWCA Civ 1554, in which he stated “it is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as may have been given [my italics]) to understand the nature and effect of the particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffmann J.).” As I understand it, although I may be corrected by the court, giving assistance to persons with marginal capacities in order to enhance them is within the spirit of the Mental Capacity Act 2005.”

 

…

 

  1. Professor Jacoby concluded his report as follows:

 

 

 

“In my opinion, when CT is at his current best and not in an episode of delirium, he retains the capacity to manage his affairs and to revoke or make an LPA, but that his capacities would be enhanced by disinterested advice. His capacity to litigate is not totally lacking but is, in my opinion, below a sufficient threshold, and he would, therefore, require a litigation friend.”

 

If CT had capacity at the time when he made decisions to sever the tenancy, stop paying money to his estranged wife and so on, then this was not a matter for the Court of Protection. As we know, if a person has capacity, then they can make decisions for themselves that another person might consider foolish or ill-conceived.

 

EY sought that the application be dismissed and sought that the Office of the Public Guardian should pay the costs.

 

  1. On 14 August 2014 EY filed an acknowledgment of service, accompanied by a witness statement, in which she objected to the application and said that:

 

 

 

“The evidence in the attached witness statement shows unequivocally that CT had the capacity to make complex decisions in relation to his finances and property in September 2013. He underwent a further capacity assessment in November 2013 prior to discharge from hospital after nearly six months treatment and he was again assessed as having the capacity to make the very difficult and important decision as to his destination and future place of residence following his discharge. There has been no stroke activity since the incident in May 2013, nor any other event which might cause or signal a material change in his capacity since the last test was carried out some nine months ago. There is therefore no valid reason why he should not be presumed to have capacity at this time.”

 

 

  1. EY proposed that “the application be dismissed and the OPG be ordered to pay the respondents’ costs (including the costs of taking legal advice).”

 

 

In most financial disputes, the person who loses the case is at risk of being ordered to pay the other side’s legal costs. It is a little different in Court of Protection cases.

 

Firstly, the Court of Protection have a general discretion (subject to other Rules) Section 55(1) MCA 2005 provides that “Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.”

 

In terms of those Rules, they are set out in the Court of Protection Rules 2007 – they can be simplified like this:-

 

  • Normally if the proceedings relate to property of a vulnerable person, the costs of the proceedings are paid by that person or his estate
  • That starting point can be departed from if the Court thinks it is justified, and can take into account the conduct of the parties.
  • Conduct can include a wide variety of things, including before proceedings began.

 

 

Property and affairs – the general rule

 

 

  1. Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.

 

 

Departing from the general rule

 

 

  1. – (1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including:

 

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings.

 

(2) The conduct of the parties includes:

 

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c) the manner in which a party has made or responded to an application or a particular issue; and

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

 

(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

 

 

 

In this situation, EY argued that the Office of the Public Guardian had really jumped the gun – they had brought a case based on EY misusing the Lasting Power of Attorney, when closer investigation would have shown that the decisions complained of had been made by CT himself. If the Public Guardian had conducted the investigation properly, there would have been no application and thus CT and EY would not have incurred any legal costs.

 

District Judge Lush felt that things were more complicated than that – the assessment of capacity had shown that CT’s capacity fluctuated and thus there had been times when EY was (or ought to have been) exercising the Lasting Power of Attorney.

 

The Judge also felt that EY had been obstructive in the investigation, causing some of these problems as a result of her own actions.

 

  1. EY makes the point that she was not using the LPA because CT still had capacity, but even this is disingenuous. Professor Jacoby states in his report that “He is subject to recurrent episodes of delirium. … When he is delirious, in my opinion, he does not have any of the capacities listed below.” She should have been using the LPA during the recurrent episodes when CT lacked capacity.

 

 

  1. The point is made that CT’s capacity should have been presumed. The precise wording of section 1(2) of the Mental Capacity Act is that “a person is assumed to have capacity unless it is established that he lacks capacity.” The Court of Protection General Visitor believed that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so. The reason why the OPG asked a Special Visitor to see CT was so that a specialist could look for objective evidence that would be sufficient, on the balance of probabilities, to establish whether CT had capacity or not and, accordingly, whether the Court of Protection had jurisdiction or not.

 

 

  1. EY would not allow the Court of Protection Special Visitor to examine CT because she mistrusted anything to do with the OPG. The Special Visitor’s report would have been provided to CT free of charge, from public funds, but EY insisted on instructing an independent expert, instead. This resulted in the proceedings being more expensive and protracted than they need have been.

 

 

  1. I have no real concerns about the OPG’s conduct. Any investigation will seem heavy-handed to the person under the spotlight, but the OPG’s conduct was by no means disproportionate and does not even approach the threshold identified by Mr Justice Jonathan Baker in G v E (Costs). The OPG certainly did not act in blatant disregard of the Mental Capacity Act processes or in breach of CT’s rights under the European Convention on Human Rights. Having regard to all the circumstances, it would be unjust to penalise the OPG by way of a costs order.

 

 

 

Bearing in mind the usual rule, the legal costs of all of the proceedings would be met by CT. The Judge, having been invited to look at costs, had to consider whether that approach would be fair and just, given the actions of EY.

 

(This must have caused a bitter taste – having asked for the Public Guardian to pay the costs, EY found herself at risk of having to pay a portion of the costs herself)

 

  1. There is no doubt about it. EY and her partner refused, without reasonable cause, to let the Special Visitor visit CT or even speak to him over the phone. Dr Tennent’s report of 31 March 2014 stated:

 

 

 

“Over the course of these conversations EY referred everything to her partner. Quite politely they told me that CT did not want to see me but would not permit me to speak directly with him. They would not provide me with the name or address of CT’s current general practitioner. As I understood it, they were of the view that although CT had made an LPA he was still capable of managing his own affairs and they were not using the LPA and therefore the OPG should not be involved with his affairs. They told me that they were in correspondence with the Office of the Public Guardian about the matter and that until this had been resolved they did not want me to visit their home.”

 

 

  1. EY’s insinuation that a Court of Protection Special Visitor is neither independent nor impartial is both unwarranted and offensive.

 

 

  1. For me, the most striking feature of Professor Jacoby’s report was the repetition of a theme, which, like Ravel’s Boléro, rises in a continuous crescendo.

 

 

  1. In response to question (2) he said:

 

 

 

“Again, I consider that he would benefit from disinterested advice before making this decision.”

 

 

  1. He deliberately highlighted the word ‘disinterested’ by italicising it.

 

 

  1. In response to question (4), he said:

 

 

 

“Where more complex decisions are required he would, in my opinion, benefit from disinterested advice.”

 

 

  1. In his reply to question (5), Professor Jacoby said:

 

 

 

“I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions.”

 

 

  1. In his conclusion, which I have set out in paragraph 23, he said:

 

 

 

“… his capacities would be enhanced by disinterested advice.”

 

 

  1. And in response to question (4) again, the professor actually ventured to say that:

 

 

 

“I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway. However, because he is now dependent on her for his day to day care he might be more likely to accept her advice without more careful consideration.”

 

 

  1. I have never before read a report on someone’s capacity that has contained so many references to the need for ‘disinterested advice’. The only interpretation of this can be that Professor Jacoby believed that, although CT still has capacity in certain areas, he is being influenced by his daughter, and her advice is anything but disinterested.

 

 

[

 

The Judge decided that it would be wrong for CT to be ordered to pay EY’s legal costs, and EY would be responsible for her own costs

 

 

Decision

 

 

  1. If I were to apply the general rule for costs in a property and affairs case (rule 156), I would be required to order CT to pay the costs of these proceedings.

 

 

  1. The Public Guardian was seeking no order as to his own costs, whereas EY was seeking an order that her costs should be paid by the Public Guardian.

 

 

  1. For the reasons given above, and having regard to all the circumstances, I consider that a departure from the general rule is justified and I shall order EY to pay her own costs because her conduct, before and during the proceedings, has been aggressive and disingenuous and has resulted in both sides’ costs being far greater than they would otherwise have been.

 

 

  1. The overall effect is that I shall make no order for costs, though, having agreed to commission a report from a single joint expert, the Public Guardian and EY are jointly liable to pay a half of Professor Jacoby’s fee of £2,200 (£1,850 + VAT) for reading the documents, travelling from Oxfordshire to Essex, examining CT, and writing his report.

 

 

 

There is scope for a costs order to be made against the Office of the Public Guardian, if they behaved unreasonably in the course of the litigation, but this was not the case for it.

 

As my old law tutor used to say about Equity – “he who comes to Court must come with clean hands”

 

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