suesspiciousminds

Did Adam and Eve receive a fair trial?

Posted on April 30, 2014 by suesspiciousminds

Nonsense.

I came across a quotation from a very old criminal case a few weeks ago and it has been on my mind – I can’t turn up the reference today save that the Judge was Fortescue, will try to find it. Anyway, the thrust of it was that the Judge, in explaining the need for fairness and procedure in criminal proceedings brought in the reference of Adam and Eve, in effect saying that God did not immediately punish them for their original sin, but gave them a trial first. If that’s so, then a criminal trial is either one of the first important things in human history (if you are a creationist) or something that is in one of our oldest pieces of literature (if you are not).

So, it has been on my mind as to whether or not they received a FAIR TRIAL.

Let’s start with the offence – was there an establishment of a criminal offence, and warning of consequence of the offence?

Genesis chapter 2

And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat:

¹⁷ But of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die.

On that basis, Adam clearly knew that God did not want him to eat the fruit from the tree of knowledge (in effect, that’s the equivalent of the Government enacting the Theft Act). I would point out that shortly afterwards Eve is created, and the warning isn’t given again. So it is arguable that God did not communicate the Theft Act to Eve, relying on Adam to tell her. Given that they were the only people in the world, and that God’s entire conversations to that point with Adam were less than a page, it seems reasonable to assume that at some point Adam would have mentioned it to Eve, it being the only rule of the Garden of Eden.

We now come to the offence itself

Now the serpent was more subtil than any beast of the field which the LORD God had made. And he said unto the woman, Yea, hath God said, Ye shall not eat of every tree of the garden?

² And the woman said unto the serpent, We may eat of the fruit of the trees of the garden:

³ But of the fruit of the tree which is in the midst of the garden, God hath said, Ye shall not eat of it, neither shall ye touch it, lest ye die.

⁴ And the serpent said unto the woman, Ye shall not surely die:

⁵ For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.

⁶ And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat.

(In addition, we establish here that Eve DID know that God had prohibited the eating of the fruit, so she can’t later claim ignorance of the law, which as we know is no excuse anyway)

At this point, we are aware that Adam and Eve knew that eating the fruit was unlawful, and that they ate it. One can hardly claim that you recklessly ate an apple from a tree, so although God wasn’t specific about mens rea for the offence, there seems to be both the act of eating the apple and the intention to eat the apple.

The offence comes to light here, and God probes the couple as to what happened

And they heard the voice of the LORD God walking in the garden in the cool of the day: and Adam and his wife hid themselves from the presence of the LORD God amongst the trees of the garden.

⁹ And the LORD God called unto Adam, and said unto him, Where art thou?

¹⁰ And he said, I heard thy voice in the garden, and I was afraid, because I was naked; and I hid myself.

¹¹ And he said, Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?

¹² And the man said, The woman whom thou gavest to be with me, she gave me of the tree, and I did eat.

¹³ And the LORD God said unto the woman, What is this that thou hast done? And the woman said, The serpent beguiled me, and I did eat.

I’m not sure that I would classify that as a trial, so much as an interview. Both of them confess (Eve after Adam has already turned Queen’s Evidence on her)

If they HAD denied it, given that God was both prosecutor and Judge, what chance would they have got? Remember that God is omnipotent and omnipresent, so he was also a witness to them eating the fruit at the time, and can also see the past and see the future. He would appear to be the perfect eye witness, and is also the Judge and the jury. He clearly would not have reasonable doubt, given that He was an eye-witness.

I think that Adam and Eve would be doomed if they tried to defend the case.

One might argue that they did it, and we know that they did it, so does it matter that they had no real opportunity to defend themselves? Does it matter if a system absolutely ensures that the guilty are always punished (the corollary of God being a perfect witness is that the innocent would never be convicted by Him, because of his omniscence. Perhaps it is only that our imperfect human minds are not omniscent that means that we NEED reasonable doubt and the chance for people to persuade a jury of those doubts)

The better line of defence here might be in relation to the agent provocateur, the serpent. At no point in the ‘trial’ is it revealed that the serpent was previously employed by God. And of course, as God as ominiscent, then He was there when the serpent tempted Eve and could have intervened, and He knew in advance that the serpent WOULD try to tempt Eve and gave no guidance. Is there the possibility of an entrapment defence here?

Well, that is going to hinge on whether God is English or American (other nationalities are possible, but come on, clearly God speaks in a similar voice to either David Niven (English) or Charlton Heston (American) )

In English law, entrapment is not a defence

R v Loosely

LORD HOFFMANN

My Lords,

35. The question in both of these appeals is whether the English law concerning entrapment is compatible with the Convention right to a fair trial. In my opinion it is. I have had the advantage of reading in draft the reasons of Lord Nicholls of Birkenhead for reaching the same conclusion. I agree with them.

English law on entrapment

36. Entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he should be prosecuted. I shall in due course have to refine this description but for the moment it will do. In R v Latif [1996] 1 WLR 104, 112 Lord Steyn said that English law on the subject was now settled. It may be summarised as follows. First, entrapment is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. Secondly, the court has jurisdiction in a case of entrapment to stay the prosecution on the ground that the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself has caused to transgress. Thirdly, although the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence on the ground that its admission would have an adverse effect on the fairness of the proceedings, the exclusion of evidence is not an appropriate response to entrapment. The question is not whether the proceedings would be a fair determination of guilt but whether they should have been brought at all. I shall briefly enlarge upon these three points.

(a) Not a defence

37. The fact that the accused was entrapped is not inconsistent with his having broken the law. The entrapment will usually have achieved its object in causing him to do the prohibited act with the necessary guilty intent. So far as I know, the contrary view is held only in the Federal jurisdiction of the United States. It is unnecessary to discuss the cogent criticisms which have been made of this doctrine, notably by Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US 369, because it has never had any support in authority or academic writing in this country. Indeed, the majority judgment of Rehnquist J in United States v Russell (1973) 411 US 423, 433, which describes the criticisms as “not devoid of appeal” suggests that its survival in the Federal jurisdiction owes more to stare decisis and its perceived constitutional and pragmatic advantages than to its intellectual coherence.

So in English law, the fact that the serpent, whose connection to the Prosecution / law enforcement agencies is uncertain but at least raises doubts, lures Eve into the offence is not a defence. It might be that if the circumstances are so repugnant to justice that the EVIDENCE obtained can’t be relied upon the prosecution might be stayed, but that would be God’s decision as the Judge.

It is God acting as Judge and jury and police and prosecutor which raises the biggest issues here. That would seem to give rise to a right of appeal, on the R v Sussex Justices point – “Justice must not only be done, it must be seen to be done”

The right of appeal doesn’t help though, since any appeal would (a) also be to God and (b) Him being omniscent, already knows the outcome of the appeal.

It is quite difficult to work out what a fair criminal justice system in which the only individuals in existence are God, the serpent, Adam and Eve; so one must be careful in criticising what was set up, but this arrangement where God sets the law, brings the charges, is a wtiness of fact, decides the case and delivers sentence seems lacking in the fundamental separation of powers.

Perhaps that explains why God (who had told Adam and Eve that if they ate the fruit, they would die that same day) ends up giving a more lenient sentence than the death sentence originally specified.

Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.

¹⁷ And unto Adam he said, Because thou hast hearkened unto the voice of thy wife, and hast eaten of the tree, of which I commanded thee, saying, Thou shalt not eat of it: cursed is the ground for thy sake; in sorrow shalt thou eat of it all the days of thy life;

¹⁸ Thorns also and thistles shall it bring forth to thee; and thou shalt eat the herb of the field;

¹⁹ In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return.

And the LORD God said, Behold, the man is become as one of us, to know good and evil: and now, lest he put forth his hand, and take also of the tree of life, and eat, and live for ever:

²³ Therefore the LORD God sent him forth from the garden of Eden, to till the ground from whence he was taken.

²⁴ So he drove out the man; and he placed at the east of the garden of Eden Cherubims, and a flaming sword which turned every way, to keep the way of the tree of life.

So, hunger, banishment from paradise, a life-cycle involving hard toil and then death rather than eternal life, and horrible pain in childbirth. (That in itself raises an Equalities Act issue, in that Eve’s sentence for the same offence seems markedly more harsh than Adam’s. The serpent also gets a sentence, and there’s clearly no trial of the serpent, who is not asked anything – AND God had not established that incitement was an offence)

[The later sentence of merely banishment for Cain, for murdering at that time one quarter of the world’s population, seems somewhat out of kilter to the harsher sentence for eating an apple, but the Lord moves in mysterious ways]

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Posted in stuff that isn't law at all and tagged adam and eve, did adam and eve get a fair trial, fair trial, nonsense. Bookmark the permalink.

Let’s find you a nice young man

Posted on April 30, 2014 by suesspiciousminds

The law on capacity and sexuality is developing swiftly at the moment, and throwing up some really difficult decisions.

In A Local Authority v TZ (no 2) 2014, the Court of Protection went on from its first judgment that the man, TZ, had the capacity to consent to sexual intercourse. TZ was homosexual, so one of the three principles (does the person understand the mechanics, the risk of STDs and the risk of pregnancy) doesn’t apply.

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

The issue that then arose was whether TZ had capacity to make safe choices about people he might chose to have sex with.

Accordingly, the questions arising here are:

(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not,

(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.

[I personally bear in mind that almost every parent ever would have wanted at some point and even for a brief flickering moment, the right to veto their child’s choice of boyfriend or girlfriend, but we have to let them make their own mistakes in life. There are certain people who like “bad boys”, sometimes they grow out of it, sometimes they don’t. Most teenagers would prefer someone that their parents disapproved of – John Bender in the Breakfast Club would be no parents choice for their child, but the parents choice of Brian isn’t going to fly. But this is a tricky situation – TZ clearly had some vulnerabilities. The Judge carefully reminded himself of the tension between being protective and giving people freedom to make what others might see as poor choices]

John Bender (bad boy alert)

Parent’s choice, lovely Brian

In addressing the issues of capacity in this case, I bear in mind a number of other points of law.

Importantly, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether, at the date on which the court is considering capacity, the person lacks the capacity in issue.

Next, as Macur J (as she then was) observed in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” The question is whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made” (ibid, paragraph 58).

Furthermore, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other professionals who have experience of treating and working with P, the subject of the proceedings, and sometimes from friends and family and indeed from P himself.. As Charles J observed (in the analogous context of care proceedings) in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. Thus, when assessing the ability of a person to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert.

Finally, I reiterate the further point, to which I have alluded in earlier decisions, including PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam) and CC v KK [2012] EWHC 2136 (COP). In a case involving a vulnerable adult, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.

and later

In this context, as so often, the way forward is illuminated by observations of Munby J, as he then was, on this occasion in Re MM (An Adult) [2007] EWHC 2003 (Fam). In that case (decided under the inherent jurisdiction), the Court was concerned with the approach to be adopted in a case of a person who had capacity to consent to sexual relations but lacked the capacity to make decisions about contact with a long-term partner. In such circumstances, Munby J held that “the court … is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk” (paragraph 119).

The following much-quoted paragraph is particularly relevant:

“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

I won’t get heavily into the particular facts in the case, they are all set out in the judgment should you want to read them – there was quite a body of professional opinion that TZ lacked the skills to weigh up whether someone was a safe person to approach or have sex with.

The Court’s decision on capacity is set out below

I find on a balance of probabilities that TZ does not have the capacity to decide whether a person with whom he may wish to have sexual relations is safe. I base that finding on the detailed assessments of TZ carried out by JS and Dr X, both of whom have had an opportunity to assess him over a period of time. These assessments include extensive conversations with TZ in which he has himself acknowledged that he lacks this capacity. In particular, while he has the ability to understand and retain information, he lacks the ability to use or weigh up the information, including the ability to assess risk and, in the language of s. 3(4), to understand the reasonably foreseeable consequences of the decision. This is, in my judgment, a good example of the distinction identified in paragraph 4.30 of the Code of Practice between, on the one hand, unwise decisions, which a person has the right to make, and, on the other hand, decisions based on a lack of understanding of risks and the inability to weigh up the information concerning a decision.

I have also borne in mind s. 1(2) – that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Having regard to Dr X’s advice, however, I consider that there is no immediate prospect of extending TZ’s capacity via a programme of education. Such a programme must, of course, be an integral part of the best interests care plan which would be put in place as a result of a declaration of incapacity.

The evidence therefore establishes that he lacks the capacity to decide whether or not any individual with whom he may wish to have a sexual relationship is safe. As to the second capacity in issue, JS concluded in her report that he did have the capacity to make decisions regarding his care and support. In oral evidence, however, JS qualified this opinion, saying that TZ can understand why he needs support “if he is in the right frame of mind”, and that his capacity in this respect is variable. She said that sometimes he is more open about taking things on board than at other times. Dr X concluded that TZ lacked this capacity. He thought that TZ’s current compliance with support did not mean that he understands the need for that support and thought it quite likely that at some stage he would ask a support worker to leave.

Notwithstanding the view set out in JS’s written assessment, I conclude after close analysis that TZ does not have the capacity to decide what support he requires when having contact with an individual with whom he may wish to have sexual relations.

In reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.

But having established that TZ lacks that capacity, the Court then have to approach any declarations with a view to what is in TZ’s best interests

Mr. McKendrick reminds me of the dicta of Munby J in ITW v Z [2009] EWHC 2525 (Fam) at paragraph 35:

“First, P’s wishes and feelings will always be a significant factor to which the court must pay close regard …. Secondly, the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific …. Thirdly, in considering the weight and importance to be attached to P’s wishes and feelings, the court must … have regard to all the relevant circumstances … [which] will include … (a) the degrees of P’s incapacity … (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that [his] wishes and feelings are not being given effect to … (d) the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and, pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in [his] best interests.”

Mr. McKendrick further submits, rightly, that in applying the principle in s.1(6) and generally, the Court must have regard to TZ’s human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, “private life” includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that “these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”: Botta v Italy (1998) 26 EHRR 241 paragraph 33.

These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.

In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to “take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”.

In addition, the state is under an obligation to take steps to protect TZ from harm.

How to apply those principles to TZ’s case

In the light of these principles and dicta, what steps should this court now take in TZ’s best interests?

On behalf of the Official Solicitor, Mr. McKendrick asserts that the challenge for the parties and the court is to develop a best interests framework which permits TZ sufficient autonomy of decision-making and respects his right to a private life whilst balancing the need to protect him from harm. He identifies three options: (1) take no best interests decision at this stage but react should TZ find himself in a situation when he is the subject of harm or at risk of harm; (2) require the applicant local authority to draft a care plan and submit it to the court for approval; (3) appoint a welfare deputy to make decisions on TZ’s behalf. Neither party is advocating for the first option. Both parties agree that the court should direct the local authority to file a care plan. The issues are, first, as to the contents of that plan and, secondly, whether a welfare deputy should be appointed.

The local authority has filed a draft care support plan. The Official Solicitor has made a number of observations about that plan. There is considerable common ground between the two parties, but some differences remain.

What follows are some proposals by the court for the sort of measures that should be included in the plan. Decision-making for incapacitated adults should, as far as possible, be a collaborative exercise. The observations as to the contents of the plan should be seen as part of that process.

I propose that the plan should contain the following elements: (a) basic principles; (b) education and empowerment; (c) support; (d) intervention; (e) decision-making. Under this last heading, I shall consider the local authority’s application for the appointment of a deputy.

(a) Basic principles

The basis for the plan is uncontroversial and can be summarised as follows.

(1) TZ lives at H Home. In due course, he may move to a step-down facility and, in the long run, into supported living.

(2) He will have available to him a number of hours of 1 : 1 support every week. Currently that is fixed at 32 hours.

(3) He has capacity to consent to and enter into sexual relations. He has the right to establish relationships with other human beings and wishes to meet other men with whom he may have sexual relations.

(4) He lacks the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual.

(5) The local authority and the Court are under a positive obligation to ensure that he is supported in having a sexual relationship should he wish to do so, but also to ensure, as far as possible, that he is kept safe from harm.

(6) The purpose of the plan is therefore to identify the support to be provided to assist him in developing a sexual relationship without exposing him to a risk of harm.

You can see, hopefully, that the overall goal of the plan is to keep TZ safe whilst teaching him the skills he will need to keep himself safe – he is not prevented from forming relationships with other men, nor indeed from having sex with them; it is more that he is to be assisted in making those decisions.

Getting down to brass tacks though, what are professionals supposed to do if TZ meets someone he is attracted to?

Mr McKendrick submits, and I agree, that TZ must have some “space” to make decisions for himself, even if this involves making mistakes, to assist him to learn (as far as he can) from the consequences of those decisions. Mr Dooley indicated that the local authority agreed that learning through experience is critical for TZ.

Mr McKendrick further submits, and I accept, that, should TZ meet a stranger, he is entitled to have private time with that person and support staff should intervene only if there is an identified risk of that person being abusive towards TZ. I agree with the Official Solicitor that the local authority and its support staff cannot interview or ‘vet’ anyone with whom TZ wishes to communicate and cannot assume that everyone he speaks to is likely to present a risk of abuse. Mr Dooley stated that the local authority’s position is that, if there is a problem in these circumstances, there will need to be a risk assessment to determine whether intervention is required. Having identified that intervention is required, the next step would be to consider the least restrictive intervention necessary to ensure that TZ is safe.

In the event that TZ decides he wishes to spend the night with someone, the care plan must provide that a private space can be made available. H Home has now indicated that he will be permitted to have a visitor to stay subject to the proviso that any visitor would have to be subject to safeguarding checks to protect other residents. A similar provision would be made in the event that TZ moved to a step-down facility.

If TZ meets someone and develops a relationship, or if he says he wishes to leave H Home and cohabit with another person, a specific capacity assessment will be required to determine whether he has the capacity to make a decision about contact with that person. If the outcome is that he has capacity, the sexual relationship should be facilitated, unless it is concluded that there is a significant risk of harm. If the assessment concludes that he lacks that capacity, or that there is a likelihood that he will suffer significant harm as a result of a relationship, a further application will have to be made to the court. If the court accepts that he lacks capacity, a best interests decision will then be made. If the court concludes that he has capacity, but that he is at risk of harm, it may be that the court would resort to protective powers under its inherent jurisdiction as to vulnerable adults. At all stages, of course, TZ must be assisted to participate in the decision-making process.

It is not the role of the Local Authority to ‘vet’ TZ’s partners or potential partners, nor do they have a role of veto

the plan must clearly delineate the circumstances in which care workers may intervene to protect TZ and the steps they are entitled to take when intervening.

On behalf of the Official Solicitor, Mr McKendrick submits, and I accept, that it is not the role of the local authority staff to vet TZ’s sexual partners. They must not deny him private time with a proposed sexual partner simply because they consider that partner is unsuitable, unless there is a clearly identified risk that the proposed partner poses a real risk of abuse to TZ during their contact. As the Official Solicitor submits, the assessment of abuse must be rigorous and evidence-based, or, adopting the phrase used by Munby J in Re MM, (supra) “pragmatic, common sense and robust”. As the Official Solicitor points out, capacitous adults also run the risk of abuse and harm. The adults protecting TZ must be given the tools to assist him, because of his vulnerabilities, but they cannot act in his best interests by attempting to eliminate all risks of harm. (“What good is making someone safe if it merely makes them miserable?”)

As JS has set out in her draft support plan, if TZ says he wants to go off with someone he has just met, the care workers would try to dissuade him, reminding him of the staged approach to new relationships previously discussed and agreed. In the event that he refused to listen to support workers in those circumstances, and where there were concerns regarding the risk of harm, the care worker involved should immediately alert management, who would in turn ensure that legal representatives were informed. A decision would then be taken as to whether the police should be informed, and/or whether an application should be made to the Court of Protection.

There was a mental health case in the last year, where a Judge set down a seventeen point plan of things that ought to be considered by a hospital before deciding that a patient was so dangerous that he needed to be transferred to a safer hospital, and the Court of Appeal ended up observing that if you get a Judge to draw up a model, he or she invariably draws up a very judicial/lawyery one which attempts to dot every i, and cross every t, but reality doesn’t always allow for that. I think that this is a damn good attempt to put a framework in place that tries to give TZ freedom and keep him safe and they are laudable aims – I am certain that I could not have done any better. But it does bring up the mental picture of a man smiling at TZ in Starbucks and staff members thumbing through the judgment to initiate “Phase Four of the plan”

Do you suspect that the staff will be likely to be on low alert for a Brian, but be contemplating intervention for the bad-boy type?

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Posted in case law, court of protection and tagged a local authority v tz (no 2), capacity, capacity to consent to homosexual sex, capacity to consent to sex, capacity to consent to sex with a specific person, court of protection, mental capacity act, protection of vulnerable adults. Bookmark the permalink.

Presidential press conference

Posted on April 29, 2014 by suesspiciousminds

There’s quite a lot in here, and as we know, speeches and views and opinions seem to have a habit of making their way into judgments, so it might be an advance insight.

Click to access munby-press-conference-29042014.pdf

The one that has already made the news is the President suggesting that consideration be given to taking divorce (as in the dissolution of the marriage, not the financial issues) out of the hands of judges and giving it to Registrars. That one needs a post all on its own (probably tomorrow) – I tend to agree with quite a lot of what he says on this, and the need for proper remedies for people who are not married but have had long term relationships / periods of cohabitation.

Here are the other big talking points

1 . Not helpful to think about adversarial v inquisitorial, but as more and more cases involve litigants in person who would rather be represented, Judges are going to need to play a larger role in the conduct of proceedings

The President says that in cases where there are litigants in person, the Judges are going to have to be more inquisitorial in style, and that sitting Sphinx-like until judgment isn’t going to work. He doesn’t think we are likely to end up with a continental style inquisitorial system, but we are a long way removed from the traditional adversarial system already.

2. Doesn’t think that the cuts will adversely affect the reforms

In fact the thrust of what the President seems to be saying here are that the reforms are vital because of the cuts, and that drive towards efficiency, cost-effectiveness and reducing time taken before the Court will allow for the litigant in person cases, which he accepts take longer

3. Believes that there will be a tipping point for mediation, where when it is sold correctly as to the benefits, more and more people will want to take it up [We are in an almost- crisis situation at the moment but once we get the message across it will be a very attractive option]

He was not keen on the idea of cost sanctions for failure to mediate or engage properly in mediation

4. Next stage of transparency will be greater access to court papers

As he rightly points out – if so much of a hearing is “Can I refer to to page B64, paragraph 6” then a journalist sitting in Court is not able to get any real sense of what is happening, what is being referred to. He says that there are going to be proposals about this in the very near future. He also indicates that because of the way that case numbers are coded, anyone who tries to work them out can quickly decipher that a Case Number refers to a Private Law case in Sunderland, as opposed to a Public Law case in Wolverhampton (He is wrong about the code for Brighton being BH though – for some reason I have never fathomed, it is UQ)

5. He is aware of the tension between what the Government say about adoption and what the Courts say

For me, this was the most interesting question, and indeed answer. It is clear that on the one hand, the Courts are implementing a “nothing else will do” philosophy on adoption, and on the other the Government has a pro-adoption agenda and is measuring Local Authorities on performance and threatening to remove these functions from Councils who don’t meet what the Government have in mind. What the President says, in effect, and much more politely than my shorthand summary, is that Parliament make the statutes, not Governments, and that if Parliament disagree with how the Courts are interpreting statute, then Parliament will need to change the statute. He acknowledges the tension (explicitly referencing that the Government have talked about local councils need to get away from the idea that adoption is the last resort) and says that on the ground, for Directors of Children’s Services, “it must be slightly difficult to know exactly what they should be doing given that tension” (something of an understatement)

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Posted in Uncategorized and tagged adoption, divorce as administrative process, government v courts, inquisitorial v adversarial, president of the family division, press conference. Bookmark the permalink.

Surrogacy arrangements made overseas

Posted on April 29, 2014 by suesspiciousminds

Re WT (A child) 2014

In a situation where a childless couple want a child, sometimes the search is cast very far and wide. At the early stage of the internet, there was outcry in Britain about the Kilshaws, a couple who purchased a baby on the internet from America. That led to the creation of legislation about overseas adoption and in turn surrogacy arrangements.

In this country, there are clear restrictions about surrogacy, and the amount that can be paid to a woman to have a baby on your behalf (it has to be expenses only) and as the High Court recently pointed out in JP v LP and Others 2014, there are criminal offences associated with any actions that are dealing with surrogacy on a commercial basis (even as an intermediary, or in that particular case as a solicitor charging for drawing up documents to make the arrangements as watertight as possible)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/595.html

section 2 of the Surrogacy Arrangements Act 1985 which says :

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

On a strict interpretation of that section, even doing the research about surrogacy and giving it to your client by way of advice can fall foul of that, if you then charge them for it s 2 (1) (c) – it actually looks like not only is the solicitor committing an offence for charging, but the client also for asking them to do it and offering to pay for the advice…

[That might cause a problem with some of the guidance given by the High Court in this case that people contemplating overseas surrogacy should seek specialist advice first]

There are slightly more complicated provisions when the surrogacy is commissioned from a woman living in another country, and that is what Re WT is all about.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1303.html

In that case, two people sought through an agency – the Kiran infertility centre (which immediately rang a not entirely positive-sounding bell with me… more later) to commission a woman in India to have a baby on their behalf.

The baby was conceived by using the male’s gametes artificially inseminating the woman in India (the use of gametes or an egg or embryo is from one of the commissioning couple what makes it surrogacy rather than an adoption that is paid for) . That woman is named SA in the judgment.

The couple paid the sum of $28.000 dollars to the Kiran infertility centre. The biological mother, SA, received 350,000 rupees (the judgment never actually does the currency calculation, so I will. The woman received roughly $5,800 dollars, leaving the clinic with $22,200. )

The couple then made an application for a parental order in the UK, this being what would make them both legally the parents of this child.

As the Court carefully point out, such an application HAS to be made within 6 months of the child’s birth – the Court has no power to extend that time-limit. If it isn’t made in time, the Court can’t consider the application.

In order for the Court to make the parental order, one of the issues that they need to consider is the consent of the mother – that has to be given at a period after the first six weeks of the child’s life (as an insurance that the decision is not being made at an emotionally vulnerable time, when hormones are having a significant sway on emotions and decision-making)

The clinic were less than helpful in getting the evidence about the mother’s consent

The parental order application is dated 14 March 2013. I have dealt with the four directions hearings prior to the final hearing on 4 March 2014. The main concerns I had on the information that was available when the matter first came before me can be summarised as follows:

(1) all the documents signed by SA were in English, including importantly the consent Form A101A. There was no information available as to whether she spoke English, was literate or had had the documents read through and interpreted for her;

(2) the applicants had not met SA and were unable to provide any information about her first language or her level of literacy;

(3) the enquiries they made with the clinic to seek clarity about the circumstances in which SA signed these documents were not responded to by the Clinic in a helpful or constructive way;

(4) the attempts to locate SA at the address on the documents were unsuccessful as the address given by the clinic for her covered a very large area;

Because of these issues, the couple sustained considerable additional costs in obtaining better evidence about the mother’s consent, and the judgment is critical of the clinic

The Clinic in this case has not always been helpful in the way it has responded to reasonable requests made on behalf of the applicants, often such requests were following specific directions made by this Court. They were given the opportunity to make representations to this Court but have not done so. Delay was caused as the Clinic insisted on being sent hard copies of the letters requesting information and consent from the applicants to do so. The Clinic makes the fair point that it is not in their interests not to help their clients obtain parental orders. Some of the documents signed by SA appeared to be in a standard form and contained provisions that were not accurate, or were not completed. For example, the ‘Agreement for Surrogacy’ signed on 29 December 2011 contained a provision which stated ‘I have worked out the financial terms and conditions of the surrogacy with the couple in writing and an appropriately authenticated copy of the agreement has been filed with the clinic, which the clinic will keep confidential’. The applicants said they had had no contact with SA in writing and were not aware of any agreement being filed with the Clinic prior to the Agreement for Surrogacy.

Eventually, the couple were able to provide the evidence that satisfied the Court that mother had given free and informed consent. The Court was also satisfied that the couple were able to offer the child a good and loving home and that making the parental order was the right thing to do.

The Court then looked at the payments – the Court has to retrospectively authorise those payments under s54(8) when making the parental order.

As the judgment shows, the public policy reasons for this are strong – if the payment is too low, there is a risk that the mother is being exploited, if too high there is a risk that her decision has been swayed by financial considerations. It is also clear that the Court has jurisdiction to look at payments made to the foreign agency (remember, if you were running a UK surrogacy agency, it would be illegal to charge money for ANY of your services)

Turning finally to the question of payments under s 54(8). Whilst the focus of the court’s consideration is on payments made directly or indirectly to the surrogate mother, it is clear from cases such as Re C [2013] EWHC 2408 (Fam), the payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions require authorisation by the court, insofar as such payment cannot be considered to have been for expenses reasonably incurred.

The applicants have produced a part breakdown of the payments they made totalling almost $28,000. The breakdown given appears incomplete: $11,675 was paid when they registered with the clinic in May 2011 followed by 6 payments of $2,500 between March to October 2012. There are then some one off items listed as post birth administrative fees ($245), notary fee ($260), SA’s travel expenses ($350) and courier charges ($45). No other breakdown of how the sums paid to the Clinic is given, despite requests being made to the Clinic to do so. The Clinic’s unhelpful response to such a request is as follows ‘payments made to clinic for the entire surrogacy process are available with your clients’. If that was the case the request to the Clinic would not have been made.

The applicants had no direct dealing with SA. The only information they have regarding payments made to her are the documents signed by her that confirm she received 3,50,000 R’s. In a subsequent email from the clinic dated 3.1.14 they confirmed that SA was not required to pay the caretaker or Dr Sekhar out of the monies she received and SA in her meeting with the Ms Baria confirmed she received 3,50,000 Rs. This level of payment to the surrogate is the same as authorised in D & L [2012] EWHC 2631 (Fam) [2013] 1 WLR 3135 which concerned the same clinic.

When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) [2009] 2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) [2011] 2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam)).

(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;

(2) the principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006, at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.

I am entirely satisfied the applicants have acted at all times with good faith and without moral taint. They took great care to select the clinic they used, undertook extensive research and enquiries and also formed their own judgment when they visited the clinic. They have displayed independent judgment by not always following the advice of the Clinic, for example which FRRO to secure the exit permit from. There is no evidence to suggest they have been otherwise than honest and candid in all their dealings with the Indian and UK authorities and have complied with the directions of this court. The amounts paid to the Clinic were set by the Clinic in a jurisdiction where commercial surrogacy is not unlawful. The amount paid to SA was not negotiated by them, appears to have been fixed by the Clinic, is the same as a previously authorised payment approved by this Court and is not dissimilar from payments made in similar surrogacy arrangements in Indian clinics. There is no evidence to suggest SA did other than freely consent to the surrogacy arrangement.

In those circumstances the payments made other than for expenses reasonably incurred are authorised by the court

The Court are of course in a bit of a bind here, and that’s hinted at here. Where the Court think that the couple have behaved properly, but that the fees were too high, their only sanction is to refuse to retrospectively approve the payments. But the money has already been spent, so what good does that do? Ultimately, the Court have the power to not make the parental order if they feel that the couple have improperly “bought” the child, but in a case like this where one might feel that they have been ripped off, there’s nothing the Court is likely to be able to do for them.

[There’s also, for me, a grey area as to whether when considering whether the payments are so grossly disproportionate that they shouldn’t be allowed, as to whether the Court is looking solely at what the couple pay or what the biological mother receives, and compare that to the value of the money in both countries. It is possible, I don’t know, that $5,800 is not a grossly disproportionate amount here, but in another country that sum of money might compare extremely favourable to annual income]

And you will see from the reference to D and L (Minors Surrogacy) 2012 that I was right to recall Kiran Infertility Clinic

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2631.html

In that one, the clinic didn’t get an address for the biological mother, causing huge problems in evidencing their consent. If you read my piece on that at the time,

https://suesspiciousminds.com/2012/10/01/be-my-be-my-baby/

you might remember this particularly telling feature

At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16^th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture

As I’m not charging anyone who reads this blog any money, I can give my advice about surrogacy without breaking the criminal law. My advice is, read these judgments and shop around before you decide which agency to use.

The Court go on to give some general advice to couples contemplating surrogacy with an overseas woman

As can be seen from what I have detailed above this application has not had an easy journey to the final hearing. Adopting the words of Hedley J in the first reported foreign surrogacy case heard over 5 years ago Re X&Y (ibid) paragraph 2 ‘..the path to parenthood has been less a journey along a primrose path, more a trek through a thorn forest. The court shares their [the applicants] hope that their experiences may alert others to the difficulties inherent in this journey.’

Having dealt with a number of these cases, many of which involve unrepresented applicants, it may be helpful to highlight the areas that cause most difficulty in these cases:

(1) Those who embark on surrogacy arrangements abroad need to be alive to the pitfalls there can be with such an arrangement and it may be wise for commissioning parents to consider taking specialist advice at the earliest opportunity, both here and in the jurisdiction where the arrangement is entered into. To proceed in the absence of such advice can lead to significant emotional and financial hardship and further delay.

[As I commented at the outset, charging for such specialist advice is not as straightforward as one might hope]

(2) It is critical that an accurate documentary account of the various steps is kept by the commissioning parents so it can be available, if required, in support of a parental order application to assist in satisfying the relevant criteria under section 54. This is particularly relevant when considering any payments made and what, if any, are caught by the provisions of s 54(8). What is most helpful for the court is a schedule setting out the payments made and what they were for.

(3) A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period. The recent decision of Mrs Justice Eleanor King in JP v LP and Others [2014] EWHC 595 (Fam), although in the context of a domestic surrogacy, is a timely reminder of the legal complexities if such an application is not made in time. Parental orders change parental status permanently, extinguishing the parental status of the surrogate mother entirely (and her husband, if applicable). Such orders confer legal parenthood and parental responsibility on both applicants for such an order.

(4) The requirement for the surrogate mother (and her husband if she is married) to give consent freely, unconditionally and with full understanding of what is involved is a fundamental part of the s 54 criteria. Depending on the circumstances the commissioning parents may need to consider meeting the legal fees for the surrogate mother, limited to taking advice on the consequences of a parental order being made. The cost of such advice is likely to be considered an expense reasonably incurred. In addition, it is clearly essential there is evidence to demonstrate (if required in the circumstances of the case) that any document signed by the surrogate mother is understood by her and, if necessary, translated into her first language before she signs it. Again, any costs incurred for this are likely to be considered an expense reasonably incurred.

(5) In this case the applicants were not able to meet the surrogate mother which in the Court’s experience is relatively unusual. If they had met her they may have been able to provide helpful information to the Court. In the event commissioning parents are not able to meet the surrogate mother they should seek to establish clear lines of communication with the surrogate mother, and ensure she is made aware during the pregnancy that she will need to give consent at least six week after the birth.

I wish this couple the very best of luck with their child, and it is a shame that so much additional cost and stress was caused to them in this process. They chose their UK lawyers very wisely in this case, in my humble opinion, and were in the best possible hands.

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Posted in case law and tagged consent to parental order, fees for surrogacy, importance of applying for parental order in six months, international surrogacy, kiran infertility clinic, overseas surrogacy, parental order, re WT 2014, surrogacy. Bookmark the permalink.

Pah-pah-pah-poker face

Posted on April 28, 2014 by suesspiciousminds

Hakki v Secretary of State for Work and Pensions 2014

This case has some impact on family law, because it arises from the decision of the First Tier Tribunal that Mr Hakki (who was earning about £500 per day from being a ‘professional poker player’) ought to pay Child Support to his children. This was appealed by Mr Hakki on the basis that as a professional gambler, he was neither employed nor self-employed, and thus not within the Child Support Agency remit. [and on the unspoken basis that he was not a man who had a highly developed sense of shame]

I like this case, because it gets into a very old piece of caselaw which also has a great name Graham v Green 1925 (not to be confused with Bill v Oddie 1951 – the famous case which turned on whether the pop singer had invited him to “put your hands all over my body” or Tim Brooke v Taylor 2004)

http://www.bailii.org/ew/cases/EWCA/Civ/2014/530.html

The point is that in order for a person’s income to be relevant for Child Support purposes, it has to be either income received in employment, or taxable income from self-employment.

As you may know, the Courts have historically said that you can’t legally enforce gambling debts

[There is a very fine A J P Herbert legal essay explaining that as marriage in those days when cohabitation simply wasn’t done, was in effect a gamble using skill and judgment that you had picked someone who you might be compatible with, that all ancillary relief claims are in effect lost gambles, and thus gambling debts that should not be enforced by the Courts]

Graham v Green 1925 decided that it was impossible for a man who made his living from gambling to be considered to be self-employed or for his winnings to be considered as taxable income.

A mere gambler was not taxable; that was what had been decided in Graham v Green and no subsequent authority had departed from that decision of 1925. It might be fair to say that Rowlatt J’s dictum was only part of a general introduction to the law about Case 2 of Schedule D, but it was clear that he did not think a gambler could ever have such a degree of organisation as would enable his winnings to be profits or gains arising from any trade, profession or employment.

Mr Graham was a person who from his own home in Amersham betted on horses at starting prices; that was his only means of livelihood apart from some interest from a bank deposit. The General Commissioners for the Burnham Division of Buckinghamshire decided that he was assessable to tax on his winnings. Mr Barrington-Ward KC submitted on his behalf that no business or system could be constructed out of betting at starting prices; there was no capital and no evidence of continuity but merely individual bets. A bookmaker was different because he bet on a system by adjusting the odds. He was therefore liable to income tax on profits made from betting. The Inland Revenue instructed the Solicitor-General (Sir Thomas Inskip) to defend the Commissioners’ decision. He submitted that betting was (as found) Mr Graham’s livelihood; it was not done casually for amusement; it was a vocation resulting in profits or gains, the vocation of a backer of horses.

The Judge in Graham v Green went on to suggest that a professional gambler, even one who did very well for himself, was not “susceptible to organisation” in a way that could properly categorise him as being self-employed. [underlining mine]

Rowlatt J then distinguished the case of the bookmaker who is (page 42)

“organising an effort in the same way that a person organises an effort if he sets out to buy himself things with a view to securing a profit by the difference in their capital value in individual cases.”

He then turned to the man who bets with the bookmaker and said:-

“These are mere bets. Each time he puts on his money at whatever may be the starting price. I do not think he could be said to organize his effort in the way as a bookmaker organizes his, for I do not think the subject matter from his point of view is susceptible of it. In effect all he is doing is just what a man does who is a skilful player at cards, who plays every day. He plays to-day, and he plays to-morrow, and he plays the next day, and he is skilful on each of the three days, more skilful on the whole than the people with whom he plays, and he wins. But it does not seem that one can find, in that case, any conception arising in which his individual operations are merged in the conception of a trade. I think all you can say of that man, in the fair use of the English language, is that he is addicted to betting. It is extremely difficult to express, but it seems to me that people would say he is addicted to betting, and could not say that his vocation is betting. The subject is involved in great difficulty of language, which I think represents great difficulty of thought. There is no tax on a habit. I do not think “habitual” or even “systematic” fully describes what is essential in the phrase “trade, adventure, employment, or vocation”. All I can say is that in my judgment the income which this gentleman succeeded in making is not profits or gains, and that the appeal must be allowed, with costs.”

Although this final paragraph concludes with a reference to Mr Graham himself, it is couched in terms of complete generality. It is clear that Rowlatt J thought that the effort of a gambler is not “susceptible to organisation” in the same way that a bookmaker organises his effort. If that is right an individual gambler, as such, cannot be taxable on his winnings. The fact that many gamblers may have (or think they have) a system which results in their winning more often than losing cannot constitute a sufficient degree of organisation to constitute a trade, profession or vocation.

This authority has now stood for many years and I would certainly not in 2014 wish to question it, even though it can be said that the Court of Appeal in Cooper v Stubbs [1925] 2 K.B. 723 left the matter open.

But of course, the world of the professional gambler in 1925 is slightly different to what it is today. If the way in which Mr Hakki ran his enterprise had that element of organisation , could his winnings be taxable and thus relevant for Child Support? And if not, might there be areas of Mr Hakki’s income that COULD in fact be categorised as being taxable, or self-employed?

For example, Mr Hakki has appeared on television programmes about poker, appeared in poker magazines and gives advice on his website about being a professional gambler. If he were to be earning from THIS, in addition to winning on the tables, the former might be taxable income, whilst the latter would not be.

Rowlatt J did not have to consider, however, a case of a gambler who could legitimately be said to be running a business. A poker player who appeared regularly on television advising people how to play poker and received a fee for so doing would no doubt be taxable in respect of his fees because he would be engaging in a trade or profession. If in the course of that business he also made winnings from other people participating in that programme, that might well be part of that business. Mr Bartlet-Jones suggested numerous hypothetical cases in which it might be said difficult to say precisely which side of an undoubtedly existing line each such hypothetical case might fall. I am therefore persuaded that it is possible to conceive a case in which a gambler’s winnings might be taxable.

Subsequent authorities show that such a case is indeed conceivable. In Down v Compston [1937] 2 All E.R. 475 a professional golfer was taxed on his professional earnings in the ordinary way. He also received winnings from bets on separate private games. These winnings were not taxable since his vocation as a professional golfer did not give rise to his winnings nor did he have an organisation constituting the business of betting on his private games of golf. In Burdge v Pyne [1969] 1 W.L.R. 364, by way of contrast, the taxpayer was the owner of a club which provided fruit machines, a card room and roulette. Mr Burdge was usually present and successfully played Three-Card Brag with members of the club. He (or a member of his family) always acted as dealer and he always won. These winnings were held to be part of his trading receipts and were taxable. The case was thus different from that of Mr Graham because there was a trade whereas Mr Graham “was not carrying on any trade at all”, see page 368A per Pennycuick J.

The question is therefore whether Mr Hakki had sufficient organisation in relation to his poker playing to constitute a trade in the sense that the word is used in the tax cases.

In this particular case, please bear in mind that both Mr Hakki and the Secretary of State were arguing that the income of Mr Hakki was not taxable, and thus not relevant for child support. That meant that Mr Hakki, although not impoverished, had no duty to support his children with his gambling income, and the Child Support Agency couldn’t touch him for it. You can understand why the Court of Appeal wanted to look at this with some rigour, as it doesn’t sit very comfortably when you look at it from the viewpoint of his children and the mother of those children.

But even with that in mind, the Court of Appeal were unable to conclude that Mr Hakki had the organisation in his enterprise to make it a taxable trade

On the facts found I do not consider that it can be said that Mr Hakki had a sufficient organisation in his poker playing to make it amount to a trade (or a business) let alone a profession or a vocation. Mr Bartlet-Jones relied on the findings (1) that Mr Hakki appeared on television for a few weeks, made the final programme and got a prize (2) that he had his own website and communicated his strategies for online poker (3) that his poker results over 7 or 8 years were published on two other poker websites, (4) that he chose his location (5) that he set a target sum to win after which he stopped and (6) that he selected the table which was most likely to pay him. Even in combination these findings do not to my mind amount to such organisation as to constitute a trade, profession or vocation. The last 3 factors must be common to many successful gamblers. Isolated appearances on television and having one’s own website are hardly, these days, evidence of organisation amounting to a trade or profession. There is just no element of what Rowlatt J called

“a subject matter which does bear fruit in the shape of profits or gains.”

There is no “element of fecundity”, merely frequent and successful playing at cards.

In these circumstances I am satisfied that, if the First Tier Tribunal had correctly directed themselves in law, they could not have found that Mr Hakki’s winnings at gambling were earnings from gainful employment within the MASC Regulations. There would have to be evidence of much more by way of organisation than found by the Tribunal before Mr Hakki could be said to be making earnings from any gainful employment. There was no such evidence in the present case and it is, indeed, the converse of Edwards v Bairstow [1956] A.C. 14 where the General Commissioners had decided that buying and profitably selling a spinning plant did not constitute an adventure in the nature of trade under Schedule D of the Income Tax 1918, when the only possible conclusion on the facts found was that it was such as adventure. In these circumstances the House of Lords held that the Commissioners’ inference that there was an adventure in the nature of trade had to be set aside. So here the only possible conclusion is that Mr Hakki was not gainfully employed as a self-employed earner.

Unless you are a poker-playing man with children he doesn’t want to support, I suspect you may be saying “Boo” here.

Me too.

The Court of Appeal do offer mother one final card to play (I will in turn suggest another )

One quite understands Judge Mesher’s anxiety to hold that Mr Hakki should make the appropriate contribution to his children’s upbringing when he is apparently quite able to make that contribution. Mr Buley pointed out that there may be a way to compel him to make such contribution by making a “departure direction” pursuant to sections 28A-28I of the Child Support Act 1991 as further elaborated by the Child Support (Departure Direction and Consequential Amendments) Regulations 1996. One ground for making a departure direction is:-

“where the Secretary of State is satisfied that the current assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall lifestyle of that non-applicant” (see Regulation 25).

Once the Secretary of State gives effect to our decision setting aside the First Tier Tribunal’s assessment of Mr Hakki’s contribution to the support of Ms Blair’s children, it may be open to Ms Blair to apply for a departure direction on this or other grounds. This court cannot say whether such an application will succeed, only that the opportunity of making such an application appears to exist.

The other card that mother could possibly play is an application under Schedule One of the Children Act 1989, which is not asking for maintenance*, but for the children to share in the capital of a parent. If Mr Hakki has salted away some of his winnings, then this would be capital, and potentially capital that could be claimed against.

[*It is possible to apply for periodical payments under Schedule One, I might want to avoid that, in case the “income” arguments here arise again]

I believe, though would recommend getting specialist legal advice, that there have been Schedule One claims made against capital that arose from windfalls, such as lottery wins or inheritances, rather than capital that built up from an accumulation of taxable income. I can’t see anything within the Act that would fetter the Court’s ability to consider any capital that the father has based on how he happened to come by it.

I have made such applications in the past where a father’s level of wealth was such that the Child Support Agency cap was reached without being a meaningful contribution to the lifestyle that the children would have had if the father and unmarried mother had continued their relationship.

(The mother’s legal costs can be claimed in such an application following NMT v MOT 2006 [2007 2 FLR 925] )

Presumably, though it is hard to see the circumstances in which this would ever be litigated, if a man’s earnings arise predominantly from crime (such as making and selling crystal meth) then that would not be a taxable form of self-employment – it might be that the Court would find that there was a level of organisation (although if the organisation is so bad that the mother of the drug lords children blows the whistle on him because he is too tight to pay any child maintenance, it isn’t much of an organisation)

Being the sort of loophole guy that I am by nature, I am pondering now whether one could do plastering for free, with the proviso that after the work is done, you then play poker with the person you did the plastering for. That person coincidentally being very bad at playing poker.

You don’t get paid for the plastering (which would be taxable income), you just WIN the same sort of amount that you would theoretically have charged by being lucky/skilful at poker (which would not be taxable income)

Or indeed, rather than charging people for legal advice, you give them the legal advice for free, and then play some poker with your new found friend for money.

I STRENOUSLY ADVISE against attempting this. Seriously, don’t try it. I really don’t think that it would actually work in the real world. Unless you are Jimmy Carr, or a minor member of the Royal Family. Not even then, probably. DON’T DO IT.

4 Comments

Posted in case law and tagged case about poker player, child maintenance, child support agency, gambling income not taxable, hakki, hakki 2014, law and poker, poker, poker player not self-employed, schedule one children act. Bookmark the permalink.

“Welfare of the child : Parental involvement”

Posted on April 28, 2014 by suesspiciousminds

There was quite a lot of debate about the wording of the new section 11 of the Children and Families Act 2014.

You may recall, in the distant mists of time, that the Family Justice Review were asked to consider whether we should incorporate into English and Welsh law the sort of provision that Australia introduced, of there being a starting point in law that it is good for children to spend time with both parents.

The Family Justice Review decided not to, but the Government decided that it did want to consult on whether something along those lines was desirable.

I wrote about the consultation nearly two years ago, here

https://suesspiciousminds.com/2012/06/13/co-op-good-with-kids/

There were four options consulted on (none of them being the presumption of equal time or shared time that the media reported on, and that the fathers’ rights lobby were asking for. I’ve tried in this article to not split it on pure gender lines – I think that all parents who don’t live with their children would like the Court to have in mind that spending a lot of time with both parents is better for a child than artificially restricting one parent’s time with their child)

Option 1 requires the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests
Option 2 would require the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents
Option 3 has the effect of a presumption by providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents
Option 4 inserts a new subsection immediately after the welfare checklist, setting out an additional factor which the court would need to consider.

The Government decided to go with option 1, but this got diluted further in the parliamentary process, until we ended up with this

Children and Families Act 2014

Section 11Welfare of the child: parental involvement

(1)Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2)After subsection (2) insert—

“(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

(3)After subsection (5) insert—

“(6)In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

(7)The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).”

[If you want a quick explanation – there’s a presumption that it is good for a child to have involvement with both parents (unless it would cause harm or risk of harm to the child), but that involvement can be ‘of some kind, direct or indirect, but not any particular division of a child’s time’.

It is probably worse for non-resident parents than the current Act, which tended to be interpreted that direct contact for both parents is a good thing for the child, if it can be done safely]

I’m grateful to Noel Arnold for alerting me and others to the fact that these provisions are not yet in force, and indeed, aren’t in any of the commencement orders (that’s the thing that turns a part of the Act from words into actual law to be followed)

http://www.legislation.gov.uk/all?title=children%20and%20families%20act%202014

Those commencement orders roll out various parts of the Children and Families Act 2014 at various stages this year – 1^st April, 22^nd April, 13^th May, 25^th July, 1^st September.

Clause 11 doesn’t appear in any of those, and the suspicion therefore is that it won’t be rolled out this year (My own suspicion is that it may not be rolled out at all, as happened with the “no fault divorce” provisions enacted in 1996)

It does appear a little odd to me that this fairly anodyne provision can’t be rolled out at the same time as the change of Residence and Contact to “Child Arrangements Orders” (Translation for Eastenders writing staff “They’ve changed Custody and Access to Child Arrangements Orders” )

I’m not sure what else would need to be done to make those provisions ready to go, and it suggests to me a measure of disquiet that the provisions are not really useful to anyone and would do more harm than good if released into the wild.

There’s a risk, in fact, that for a parent whose contact would be safe, but the parent who lives with a child is hostile to anything more than a birthday and christmas card, the s11 change might make this something that the Court could more easily countenance than the existing position that there ought to be direct contact. There’s statutory sanction for the fact that involvement can include ‘indirect’ contact.

They also seem to set up a situation in which parental responsibility should not be given to a parent (really only a father, since mothers get it automatically) if there’s a risk of harm. That risk of harm isn’t then balanced against the risk of harm if it were not done, or against the possible benefits to the child of doing so. Or if there’s a risk of harm flowing from the mother towards the child as well as from the father towards the child, so that there might be harm to the child either way.

Or indeed that the risk that would warrant not making a parental responsibility order or a Child Arrangement Order that provides for contact flows from that person at all. For example, if a mother wrongly believed that a father was a paedophile and the Court found that he wasn’t, but that having contact would cause the mother emotional distress and anxiety that would impact adversely on the child, the father’s request for contact could be classified as one that puts the child at risk, even though he has done nothing wrong.

There must be a degree of doubt whether rolling out a revised section 1 (via giving s11 Children and Families Act a commencement date) might undermine the existing body of caselaw which was determined under the current s1

For example,

“The Courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa… unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative”

Re O (A child :Contact :Withdrawal of Application) 2003 1 FLR 1258

“It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living”

Re P (Contact: Supervision) 1996 2 FLR 314

“No parent is perfect, but “good enough parents” should have a relationship with their children for their own benefit and even more in the best interests of the children. It is, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt”

Re S (Contact: Promoting Relationship with Absent Parent) 2004 1 FRL 1279

“Contact between parent and child is a fundamental element of family life and was almost always in the interest of the child… there is a positive obligation on the state and therefore upon the judge, to take measures to maintain or to restore contact”

Re C (A child : suspension of contact) 2011 2 FLR 912

I would be very reluctant to have any of those vital principles, which were determined under the old s1, weakened or put in doubt by a changed s1 with a slightly different emphasis.

[I am sure that some non-resident parents will feel that these principles didn’t seem to get much of a look-in when their own case was decided before a District Judge, but they are principles that can be relied on and pushed under the Court’s nose at the moment, and they are important ones]

I have to say that I greatly prefer the current section 1 of the Children Act 1989, which is just plain and simple that when deciding anything that affects a child, the Court’s paramount consideration must be the child’s welfare.

If and when s11 comes into force, all we have is an embroidering of that position which if anything makes it less clear and less meaningful. It certainly isn’t a victory for those lobbying for a fairer and more equal treatment for parents who don’t live with their children.

[I have to confess that it has never sat comfortably with me that portions of an Act go through parliamentary scrutiny and royal assent, and in effect get voted on by the House of Commons and the House of Lords and win that democratic approval, but ultimately become law on the decision of a single government minister to push the “Release the Clause” button or not. But here, I’d be happy for the button not to be pushed – I think that the clause makes things worse for non-resident parents, and they really didn’t need the deck stacked against them]

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Posted in children and families act 2014, private law and tagged commencement order, contact, direct contact, indirect contact, is section 11 Child and Families Act in force, new section 1 children act, presumption that parental involvement good for children, section 11 children and families act. Bookmark the permalink.

Vests

Posted on April 27, 2014 by suesspiciousminds

I am starting to come across cases in which rather than a police notebook or statement, the Court now has the benefit of seeing the video-footage recorded by the police vest-camera of an incident. The officers have a camera fitted to their vest, and everything that they do in the course of the working day is recorded and available for later scrutiny.

No doubt this is very helpful in cases with Brazilian electricians, or where there is doubt about whether or not someone had a gun, or heaven forbid whether a Government Minister included a class-based insult when swearing at police officers.

The benefit for court proceedings is plain – rather than relying on a recollection of an event that may or may not be accurately remembered or may be coloured by other issues, what actually happened is there for the Court to see. It might back up what the prosecution is saying, it may back up what the defence is saying. I was tempted to say “The camera never lies”, but we’ve seen too many doctored photographs to believe that any more.

There are potentially other benefits, as well as the direct forensic one – chiefly about trust and relationship between the public and the police. There’s no value in the police stretching the truth, or behaving in an improper way towards a suspect if the camera footage is going to be disclosed and seen later.

So, is there merit in trialling these vest cameras (the most high-tech ones being about the size of a credit card or identity card) for social workers?

There’s not a lot of transparency online about the costs of these cameras, since they are being produced by commercial bodies who don’t want to stick their pricing up on line and give their competitors an edge, so that would be the major hurdle. But you can tell from the price of camcorders and how much cheaper and smaller they have gotten over the last five years that it wouldn’t necessarily be prohibitive.

The camera would be worn for every meeting with the family, every assessment session, every visit. The family would be entitled to request to see any of these, and to make use of any of them in Court. Equally, the Judge could see any footage of an incident where there is a dispute. Rather than having to choose between two competing stories, the Court can see for themselves what actually happened. It cuts both ways – if a social worker is exagerrating about the home conditions or being provocative, difficult or patronising, that will get seen – on the other hand, the Court could see exactly what was said and exactly how the house looked on the day in question. Much better chance of getting to the truth.

And just as with the police, the knowledge that everything is being filmed might reduce the occasions on which professionals are heavy-handed or stretch the truth. Which in turn might improve the relationship between professionals and families – everyone knows that the facts can’t get twisted or have words put in their mouth, because the truth is there to be watched and inspected.

Is it something that is worth a try? Is it the sort of thing that would make more of a difference to how families are treated than micro-management of forms and documents?

The counter arguments might be that being filmed might inhibit people or make them self-conscious giving a more stilted performance in assessments, that the footage might be misused or misfiled or get lost (accidentally or deliberately), that the footage might find its way online, that children might be shown it or come across it. Those are things which would need careful thought.

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Posted in Uncategorized and tagged camera vests, video camera. Bookmark the permalink.

Booker

Posted on April 19, 2014 by suesspiciousminds

I have just read the latest scandal piece about the family justice system by Christoper Booker. Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published. [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn’t any of those – so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story

http://www.telegraph.co.uk/news/uknews/law-and-order/10775631/Costs-ruling-in-family-court-penalises-those-helping-wronged-parents.html

Let’s break it down into the core allegations that are made

1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.

2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled

5. That she was then deported to America

6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought

7. At a hearing in April, at which her McKenzie Friends “could not be present”, Mrs Justice Simler decided that the case was entirely without merit (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )

7a That Mrs Justice Simler is “the latest recruit to the High Court team” [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely. EDIT – it does appear that she became a High Court Judge in October 2013, so I stand corrected.]

8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000

9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.

I am fairly sure that points 6, 7 and 8 ARE true. We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing). You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.

Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible. One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order. It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad. That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk

Here is the deal

If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case. You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.

So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court. Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.

[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that’s probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]

ADDENDUM

It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012 http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html.

There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.

My previous piece https://suesspiciousminds.com/2013/11/01/it-aint-me-babe-it-aint-me-youre-looking-for/ .

Mr Booker’s previous column about this woman http://www.telegraph.co.uk/health/children_shealth/10308803/Deported-imprisoned-and-beaten-for-being-a-parent.html ]

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Posted in Uncategorized and tagged christopher booker, costs order, costs order against a mckenzie friend, judicial review, mckenzie friend. Bookmark the permalink.

Bundles

Posted on April 17, 2014 by suesspiciousminds

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11

Well, perhaps having hit practitioners with 18 new statutory instruments containing the rules for how things are to be done on Tuesday 22^nd April, many of which we got on Wednesday (two working days before) might not be classed by some churlish curmudgeons as smooth and efficient.

[As you may have picked up over the last two years, I READ. I quite like reading law. I even quite like reading statutory instruments. But I draw the line at reading 18. If even I’m not reading them, I have to ponder “Who is?”]

Perhaps also having changed the rules about bundles from next Tuesday, and doing so two working days before, after most of them would have already been sent out, could have been smoother and more efficient, but you’d be a fool and a communist to say so.

Anyway, here are the President’s new rules about bundles.

http://www.familylaw.co.uk/system/uploads/attachments/0008/5165/FPR_PD_27A__Bundles_.pdf

I think on the whole, I rather prefer Sedley J’s rules

http://heinonline.org/HOL/LandingPage?handle=hein.journals/judire1&div=8&id=&page=

First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.
Second Law: Documents shall in no circumstances be paginated continuously.
Third Law: No 2 copies of any bundle shall have the same pagination.
Fourth Law: Every document shall carry at least 3 numbers in different places.
Fifth Law: Any important documents shall be omitted.
Sixth Law: At least 10 per cent of the documents shall appear more than once in the bundle.
Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.
Eighth Law: At least 80 per cent of the documents shall be irrelevant. Counsel shall refer in Court to no more than 10 per cent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.
Ninth Law: Only one side of any double-sided document shall be reproduced.
Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.
Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: a steel pin sharp enough to injure the reader; a staple too short to penetrate the full thickness of the bundle; tape binding so stitched that the bundle cannot be fully opened; or a ring or arch-binder, so damaged that the 2 arches do not meet.

In any event, changes are afoot on bundles. People need to be aware that none of the source material will be in a bundle read by the Court UNLESS the Court has specifically directed its insertion. If you want to rely on contact notes, foster care records, police disclosure, medical records, school reports, then you are going to need to apply for them to be added to the bundle – and expect to have to justify exactly why they are proportionate and necessary.

That is going to be particularly important if you have picked up a final hearing brief for which someone else did the IRH – if they got the contact notes in, you’re going to be expected to make some use of them or annoy the Judge who agreed to their insertion, or worse – if counsel at IRH didn’t ask for them and you want them, you’re going to have to make an application. (And those notes won’t be available at a moments notice, so I suspect you will need to put everyone on notice in good time that you intend to do so)

Everyone is to file a position statement, limited to 2 pages, for each hearing. And they are expected to set out the orders they seek both at that hearing and final hearing. (Expect to see a lot of bland “We seek Care / Supervision Orders at final hearing, depending on the outcome of assessments” because anything else from the LA or Guardian is a hostage to fortune / evidence of prejudgment)

Case summaries are limited to 4 pages – bad news for any existing pro-formas in courts around the country which would run much longer than that.

Case summaries for cases done before justices are to be anonymised. (I know, they are sent to the justices along with a bundle of papers that are not anonymised, I have no idea what ill this is intended to remedy or what sense it is intended to make)

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

You will also note that in cases before the justices, we need to count the pages for them. DJ’s and circuit judges are expected to be able to count for themselves, one surmises.

This bit is going to be loved by Local Authorities who are dealing with the RCJ (thank God, it only applies to the RCJ. The people who wrote this have CLEARLY never tried to have a productive telephone call with the RCJ)

8.2 Upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing the party in the position of applicant shall no later than 3 pm the day before the hearing:

(a) in a case where the hearing is before a judge of the High Court,

telephone the clerk of the judge hearing the case;

(b) in a case where the hearing is before any other judge email the Clerk of the Rules at RCJ.familyhighcourt@hmcts.gsi.gov.uk;

to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organise prompt delivery by the applicant’s solicitor.

The bundles are to be limited to 350 pages or less – unless the Court orders otherwise. In case you were thinking of being a wise-guy loophole sort of person, they have already anticipated that you might just use REALLY HUGE pieces of paper

5.1 Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.

Okay, so if I can’t use REALLY HUGE pieces of paper, I’ll just write really small. Nope, already got that covered

5.2 All documents in the bundle shall (a) be copied on one side of paper only,unless the court has specifically directed otherwise, and (b) be typed or printed in a font no smaller than 12 point and with 1½ or double spacing.

My last loophole is that there is not a requirement that the bundles be written in English, so I can lodge everything in shorthand and still comply with the practice direction.

[By the way, all of my bundles are currently double-sided, which means that everyone now has to photocopy them all again single-sided and confidentially shred the ones that were perfectly fine yesterday. Approximately 11,000 cases across the country, each shredding 200 pieces of paper purely for the benefit of this practice direction. I hope Sting doesn’t read my blog. Also, 350 pages of single sided paper don’t actually fit into a single lever arch folder… 350 pages of double-sided can be a bit of a tight squeeze]

5.3 The ring binder or lever arch file shall have clearly marked on the front and the spine:

(a) the title and number of the case;

(b) the place where the case has been listed;

(c) the hearing date and time;

(d) if known, the name of the judge hearing the case; and

(e) where in accordance with a direction of the court there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc).

[As has been pointed out, as nobody any longer knows how to distinguish between two separate buildings – Trumpton Family Proceedings Court and Trumpton County Court, since on Tuesday they are both just Trumpton Family Court, that’s not that easy any more]

All numbering is to be “Arabic”

Well, if that will help…

1 – Wahid
2 – Ithnaan
3 -Thalaatha
4 – Arba’a
5 – Khamsa
6 – Sitta
7 – Sab’a
8 – Thamania
9 – Tiss’a
10 – ‘Ashra

If you need to go up into the hundreds, here’s the link http://blogs.transparent.com/arabic/arabic-numbers-1-100/

And of course, there’s a stick for any breach of the practice direction – you can be kicked out of the list, kept back to the end of the list or be hit for costs.

Penalties for failure to comply with the practice direction

12.1 Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a “wasted costs” order or some other adverse costs order.

Remember, this applies from Tuesday next week. Happy Easter.

We ask again…

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11

To end on a happier note – this being Easter, and it being a piece about bundles AND my blog title being inspired by Dr Seuss – this is an actual genuine US judgment refusing to allow a party to exhibit a hard boiled egg to his statement

http://kevinunderhill.typepad.com/Documents/Court_Orders/Hard_Boiled_Egg.pdf

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Posted in children and families act 2014 and tagged bundles, bundles in care proceedings, case summary in care proceedings, position statement in care proceedings, practice direction 27 D. Bookmark the permalink.

The President’s decision in Re S (26 weeks and extensions) Part 2

Posted on April 17, 2014 by suesspiciousminds

The judgment is on the previous blog (I’m sure it will be on Bailii shortly)

This case really turns on the provisions of the Children and Family Act 2014 that come into force on Tuesday 22nd April. What we have here, somewhat unusually, is a leading Judge giving authority as to the interpretation of an Act which has not yet come into force. Sentence first, verdict later, as it were.

At least it avoids any other Judge giving a judgment on Tuesday or afterwards which doesn’t accord with the President’s view of the test, so we all know where we stand. [In fairness, because the decision that was being sought was to adjourn the case well beyond 22nd April, the future provisions would have kicked in by the time that the case fell to be determined, so it might have been hard to simply ignore them]

On the facts of the particular case, this was about a mother with a history of substance misuse problems, on child number four, with the previous three having been removed. There had been drug tests within the proceedings showing “at worst very low levels of drugs in the mother’s hair”

The proceedings began in October, and we are now April. The mother’s application was for a residential assessment, that would last for a period of six to twelve weeks and if successful that would be followed by an assessment in the community. That would obviously take the case beyond the 26 week target of the PLO (and of course, given that the Children and Families Act provisions about timescales come into force next week, by the time of any final hearing, that would go beyond the new statutory requirement of 26 weeks). There were, however, three expert reports suggesting that the mother was making progress and that such an assessment might bear fruit.

The President was therefore considering whether to grant the adjournment and application for residential assessment, and doing so against the backdrop of the 26 week statutory position and the new provisions of the Children and Families Act as to exceptional circumstances that justify an adjournment of 8 weeks beyond that.

What was also in his mind was the new statutory provisions about expert evidence (which in effect incorporates into section 38 of the Children Act the current Rule 25 Family Procedure Rules tests and guidance)

21. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3.

This is what the President says about the statutory provision that care proceedings should be concluded within 26 weeks

24. Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first ‘View from the President’s Chambers: The process of reform’, [2013] Fam Law 548:

“My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.”

The issue then was the statutory provision in s32(5)

A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

and what factors the Court should consider when determining whether to grant such an adjournment.

One might think that those factors are already set out in the Act

s32 (6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

The President cites various authorities (Re B-S and Re NL notably, as authorities for the principle that there will be cases where an extension of time IS necessary to resolve the proceedings justly)

31. In what circumstances may the qualification in section 32(5) apply?

32. This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate

Let’s look at those preliminary and tentative observations

34. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming), para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent’s disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

34. I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.

So, to skip to the chorus – three categories of case where an extension might be warranted (forgive my short-hand mnemonic prompts, which Malcolm Tucker has helped me devise)

1. The case was always going to be super-complicated from the outset (heavy duty fact-finding, FDAC cases, heavy duty international element, parents with disabilities such that specialised assessments are necessary)

“This case was fucked from the beginning”

2. Something massive emerges during the proceedings – (fresh allegations that need to be resolved, death or imprisonment of a key player, a realistic family member comes forward late in the day – “Auntie Beryl alert! Finally an answer – adjournment is going to be permissable for an Auntie Beryl situation!”)

“This case got fucked in the middle”

3. Litigation failure on the part of one of the parties means that it would not be fair to conclude the proceedings

“Some fucker has fucked up”

The Judge then goes on to praise FDAC but delivers this guidance (which probably has wider applicability)

38. Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child’s timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’.

Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale

I think those principles have wider applicability, because the President goes on to use them in this case, which although the background is drugs and alcohol, is NOT a FDAC case.

For this particular case, this is what the President says (bear in mind that this is NOT a final hearing, but an application to adjourn the final hearing and seek a residential assessment. As far as I can tell from the judgment, no live evidence was heard. The remarks don’t leave much room for manoeuvre at final hearing…)

44. there is no adequate justification, let alone the necessity which section 32(5) of the 1989 Act will shortly require, for an extension of the case so significantly beyond 26 weeks. Again, there are two aspects to this. Looking to the mother, there is, sadly, at present no solid, evidence based, reason to believe that she will be able to make the necessary changes within S’s timescale. Even assuming that there is some solid, evidence based, reason to believe that she is committed to making the necessary changes, there is, sadly, not enough reason to believe that she will be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she will seems to me to be founded more on hope than solid expectation, just as does any assertion that she will be able to make the necessary changes within S’s timescale. Secondly, I have to have regard to the detrimental effects on S of further delay. Far from this being a case where the child’s welfare demands an extension of the 26 weeks time limit, S’s needs point if anything in the other direction. I accept the guardian’s analysis.

If you were thinking that this was all very peculiar, I haven’t even got to the best bit

I have been sitting at Bournemouth in the Bournemouth and Poole County Court hearing a care case. It is a very typical County Court case

[There is nothing in the history of the litigation set out in the judgment that ever shows that the case was transferred from the County Court to the High Court. So is this binding authority about provisions of an Act which weren’t in force at the time the judgment was given, actually a County Court judgment? ]

1 Comment

Posted in case law, children and families act 2014, timescales and tagged 26 weeks, 8 week extension, applying to extend the timetable in care proceedngs, bournemouth county court, children and families act 2014, factors that justify an extension to 26 weeks, president of the family division, re S, Re S (A child) 2014, s32(5) children act. Bookmark the permalink.

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