The whole caboodle landed in…

Posted on February 11, 2014 by suesspiciousminds

 

Once in a while, even in family law, you read a case where the circumstances are brand-new  (I think of the Port Harcourt fertility clinic undertaking fake labours, the case where the District Judge took the whole court on an uninvited excursion to a grandparents home to check it out, the peculiar case of whether a child was concieved by artificial insemination or biological insemination) and this is another of those.

SA v BN 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4417.html

The case began as private law proceedings, about a 3 year old girl named JN. JN’s father sought parental responsibility and contact with her, following his separation from JN’s mother. The mother initially responded by saying that J was not the biological child of the father and DNA tests were directed. It then came to light that JN’s mother had had previous children who were the subject of care proceedings. The Court asked the Local Authority to look into this.

    1. On 10 February 2012 the section 37 report, was filed, it recorded the mother’s failure to cooperate with the preparation of the report and concluded: “At this stage it is not clear if J is at risk of significant harm; due to Miss N’s lack of engagement, J has not been seen and historical information that has come to light has not been discussed with Miss N“. It went on “The local authority will be considering initiating child protection proceedings in respect of J. The local authority will also be making a referral to the First Response Team so that an assessment can be carried out in respect of J and GN to assess the risk in the light of information received from Children’s Services.”

 

    1. When the matter came on again before District Judge Dowding on 15 February 2012, the mother did not attend but she was represented. District Judge Dowding extended the period for the DNA testing to 9 March 2012 and required the mother to attend with J in order to provide mouth swabs a penal notice was attached to her order.

 

    1. On 27t February 2012 the mother and the grandfather took J for the DNA testing.

 

  1. On 1 March 2012 the mother, without any prior notice took J to Kinshasa in the Democratic Republic of Congo (DRC), allegedly for the funeral of her mother, the paternal grandmother

 

The next hearing is where things started to get properly weird. The maternal grandfather and later, the mother began to assert that whilst in the Democratic Republic of Congo, J had been involved in a car accident and had died.

    1. On 5 April 2012 when seen by RC a social worker the grandfather said the mother was in the Congo and had died following a road traffic accident On 10 April 2012 the maternal grandfather sent a text and two photographs to RC a social worker, saying that J had died in a road traffic accident in the Congo on Saturday, 3 of March 2012. The two unidentified photographs show a coffin with people sitting around it and a second photograph of a body of an old woman in a coffin.

 

  1. Four days later on 16 of April 2012 the maternal grandfather sent three further photographs. Subsequently, the maternal grandfather e-mailed what purported to be J’s Congolese death certificate. It was in this context that RC duly prepared the section 37 report, (dated 4 March 2012) attaching to it the photographs and the purported death certificate,.

 

This hearing then, as a prelude to whether the Court could make any orders about the return of J to the country, had to firstly establish as a fact whether J was in fact, deceased.  As the mother was the person asserting this, the burden of proof was on her. Prima facie, she produced quite a lot of evidence.

i) the death certificate of JN, 700/N008080;

ii) medical report of cause of death, 603 2012;

iii) burial permit, number 012/2012;

iv) pro-justice official police report, 0403 2013;

v) expert request form, 007/201204032012;

vi) death certificate of Sisika Masamba; [the grandmother]

vii) hospital transfer ticket for JN.

 

However, on forensic examination, this evidence rather crumbled

(i) Death certificate.

    1. On about 5 February 2013 EM spoke to a Dr. N from the relevant medical facility about J’s case. A transcript of that telephone call was forwarded to the UK. Dr. N was asked about the death certificate of J and said as follows:

 

“I am familiar with this case and I have seen your colleague here. The girl you are talking about did not die here. The number on the documents bears the name of another person. Thank you for raising this problem because we have now discovered that there is a Mafia network in trafficking in documents. We have just had a second case in death certificate from our department but it is a fraudulent document. Briefly, J did not die here, not a trace has been found and I don’t know what to tell you. What we can do is ask you to help us. If the woman in London could give us the contact details of the person who presented her with these documents, after that we could retrace the networks this document is trafficking. I have no further comment.”

    1. Subsequently, on 26t July 2013, Dr. N signed a witness statement in which he dealt with the authenticity of the “cause of death report“, but not the death certificate. It follows therefore that there is no official written record emanating from the Congo confirming that the death certificate, (as opposed to the cause of death report), is a fake. Taken, however, with the information in relation to the report in relation to the “cause of death” form set out below in this judgment, I find on the balance of probabilities that the death certificate filed herein is a fake.

 

(ii)Medical Report of Cause of Death.

    1. Both Dr. N of the medical facility, and the medical director of the medical facility in Africa, have signed witness statements saying that the “cause of death” report is a fake.

 

Initially, CATSR were unable to verify the authenticity of the report as the signatory, a Dr. EKM had been on long-term sick leave. Subsequently, CATSR sent an e-mail to CFAB that Dr. K had been seen on 15 January 2013 and did not wish to discuss the matter. That was not the end of the matter as in a further e-mail AW was informed that Dr. N and Dr. T had told CATSR that Dr. K had been dismissed from the medical facility.

    1. The short statement prepared by Dr. N says as follows:

 

“I believe that this document is a forgery as this document does not relate to the death of JN, but to another person. The document is a false document. The child, JN, did not die in this hospital. Accordingly, I have no hesitation in concluding that this document was a fake.”

(iii) Burial Permit.

    1. On 14August 2012 Mr. M was interviewed Mr. M is the manager of a Cemetery where the mother says that J is buried and which it is said is shown in one of the photographs produced by the grandfather showing the mother and a young man standing next to a wooden cross upon which is written J’s name. Mr. M says (and he thereafter confirms in his statement) that until July 2012 he alone was the person authorised to produce a burial permit for the cemetery. Since July 2012 the system has changed and officials in the town hall now produce the permits. This burial certificate is however dated March 2012 and therefore he would have been responsible for issuing a permit.

 

    1. Mr. M said that the document is a fake for the following reasons:

 

a) Mr. M does not recognise the stamp, (which is not that of the cemetery), or of the signature of the person purporting to sign it.

b) The date of birth is not written in the usual way and the age of the child is simply written as one and a half, which Mr. M says, makes no sense.

c) The telephone number on the document is incorrect as there are ten digits in Congolese phone numbers and there are only eight written on the document.

    1. It was confirmed, for completeness sake, that the burial permits now used and issued by the Civic Hall are in a wholly different format from that of the burial permit carrying J’s name.

 

    1. I accordingly find that the burial permit is a fake.

 

(iv) The Official Police Report.

    1. Mr. MM (Commandant in the DRC police force in Kinshasa), was seen and confirmed that the report carrying his signature is accurate and that an accident indeed took place. There are, however, two matters of significant concern in relation to this document which would otherwise be the only document confirmed by its author to be genuine. The document which is entitled Official Police Report, gives the wrong date for the accident, referring to it as happening at 9 a.m. on 4 March, instead of the date universally referred to elsewhere and which the mother maintains, namely 3 March and not 9 am rather 16.27 was a date referred to in some of the documents.

 

    1. Added to this, it is accepted by Mr. MM that an official register of all accidents is maintained by the police in the city. When Mr. MM was asked for that register and provide confirmation of his report, he said that “they” had just moved offices and the register had been lost.

 

    1. Taken with the totality of my findings in relation to the other documents produced, I find on the balance of probabilities that the official police report is a fake and the officer in question was lying when he said the report was genuine.

 

(v) Expert Request Form, dated 4 March 2012.

The same observations apply to this document as the official police report, the provenance being the same.

(vi) Death Certificate of Sisika Masamba.

    1. A Dr. ZM, who certified this document, has filed a statement in these proceedings saying that this death certificate purporting to relate to the death of the grandmother is a fake. Dr. ZM was seen and said that the certificate was from his hospital, and the name on the document was his, but the writing and the signature were not his. Furthermore, and significantly, the number on the death certificate (700/NO06050) was produced on 7 October 2011 for an entirely different woman called D L and not for the grandmother.

 

    1. The death certificate for the grandmother is a fake.

 

(vii) Hospital Transfer Ticket.

    1. The mother gave evidence that J was initially admitted to one hospital and was then transferred to the hospital where she died. Officials from the original hospital, a Mr. CK and a Mr. KN, were seen at the hospital. They said that the document bore the name of their hospital but that it had not been produced by the hospital. When asked to clarify, they gave the following reasons for saying the document was a fake:

 

a) The transfer tickets produced at their hospital are booklets, whereas this was a full format A4 piece of paper.

b) They do not accept serious accident cases at the hospital.

c) They place the stamp at the bottom and not at the top of their documents and their stamp is small and not the same size as the stamp that appeared on the document.

d) On the transfer ticket in the place marked they always write: “CH” this had not been done.

e) For clinical information they always refer to the general condition of the person and write a comment such as “traumatisation” or “lesion” or “wound“, in the transfer ticket produced there is no reference at all to the general condition of the person.

f) For the destination, if it was a transfer ticket originating from their hospital they would have spelt the destination hospital differently

g) For the dates they always write …/…/20.. and the rest is written in by hand. On this transfer ticket the 2012 had been made by machine.

h) There was no-one in the hospital with the signature that appeared on the purported transfer document. Generally, when a transfer document is produced it mentions the name of the person who authorised the transfer and his signature is at the end, but this document did not bear the name of the person responsible for the transfer.

i) The document produced showed someone else had taken a page from a folder and scanned it in to increase the font for the typeface. In their tickets that the records are keyed in, but they do not much use either type face or the font on the purported transfer document.

j) Finally, the document does not even have a reference in hospital records which are kept at the so-called originating hospital.

    1. On 13 August 2013 Mr. M of CATSR returned to the hospital in order to obtain statements confirming all this information. He met with Mr. C again and on this occasion a Nursing Sister RK. They felt unable to produce a confirmatory statement or comment on the authenticity of the document without the original alleged hospital transfer ticket, which has not been produced by the family.

 

  1. Whilst a signed witness statement to confirm the contemporaneous note of the conversation Mr. C had with CATSR would be preferable, I conclude, on a balance of probability, that the hospital transfer ticket is a fake for the reasons listed by Mr. C and that it bears no resemblance to a genuine transfer document.

 

If you are thinking that right about now, none of this looks too good for the mother, and that faking your child’s death to avoid a contact order is somewhat extreme, you are not wrong

    1. Finally, in considering the evidence purporting to support the mother and grandfather’s case that:

 

i) the grandmother, SM, died on or around 27th of February 2012 and was buried on 3rd of March, and ii) that J was killed in a road traffic accident on 3rd March 2012,

I consider also the photographs produced by the grandfather in April.

    1. In relation to the photographs of the woman in the coffin, there is absolutely no evidence that the woman in that photograph is the grandmother. Further doubt, if necessary, is cast on them by the fact that notwithstanding she was said to have died in February and the photograph was produced in April, the photographs have a Christmas border on them. I do not accept the grandfather’s evidence that it is traditional to put a border on such a photograph and to decorate them in such a way; neither do I accept that this border was other than specifically Christmas related. One glance at the photographs showed these are definitely Christmas decorations.

 

    1. In relation to the photograph purporting to be the mother standing by her child’s grave, I have no doubt that this was staged for the benefit of these proceedings. It shows a wooden cross, easily made, with hand rather machine printing on it.

 

    1. The agreed evidence in this case, endorsed by the doctor’s evidence, is that the level of corruption in the Congo is such that there would be little difficulty in obtaining fake documents of the type produced in this case.

 

    1. In my judgment the documents are fake; there is no credible evidence that the grandmother died around 27 February 2012 or that J died on 3rd of March, whereas there is very considerable evidence that the family have set out to produce false documentation in order to try and deceive this court and, more importantly J’s father, into believing that she is dead.

 

    1. On 11 July 2012 the mother was ordered to hand her passport over to the guardian for safekeeping until further order. According to the mother, her father (the grandfather) wanted the mother to go to France to friends for Christmas. The grandfather contacted the mother’s solicitor to ask whether or not agreement could be reached for her to have her passport to enable her to obtain a visa and thereafter go to France. By consent, an order was made on 13 November 2012 granting leave for the passport to be released, on the basis that the passport would be returned to the guardian within three days of the mother’s return to England.

 

    1. The mother’s case is that she was unable to get the necessary visa and so the planned trip to France did not take place. She says in her statement that she forgot to return the passport and kept it in a handbag where she used it to enrol at college for the new term. In addition, she needed it, she said, in order to make arrangements in relation to her bank account.

 

    1. The mother’s case is that on 2 February 2013 she got the bus to college and on arrival her passport was missing. The mother denies having travelled outside the area and insists that the passport was genuinely lost.

 

    1. The court ordered the mother to produce evidence from both the college and the bank that she had used the passport for the purposes stated. She has failed to produce any such evidence. There must be a very strong suspicion that the mother travelled to the Congo or France to see J over Christmas 2012 and that far from losing her passport, she was unable to give it back to the guardian showing, as it would, that she had travelled to that country.

 

  1. Whilst the court may have strong suspicions that the mother’s account in relation to the passport is untrue, I do not feel able on the necessary standard of proof to find as a fact that the mother travelled to the Congo.

 

So, not only did JN not die in a road traffic accident whilst visiting the Congo with the mother to attend the grandmother’s funeral, the Court didn’t believe that the GRANDMOTHER was dead either.

 

Findings and Conclusions

    1. I am satisfied on the balance of probabilities that:

 

i) The mother left the United Kingdom on 1 March 2012 as a result of the section 37 report and in the knowledge that social services intended to launch child protection proceedings in relation not only to J, but significantly as far as the grandfather was concerned, to J and G, the children of his most recent marriage. I am unable to say to the requisite standard of proof whether concern about the outcome of the DNA test played any part on the decision. ii) That the application made by the mother for a visa allowing her to travel to the Congo made on 15 February was made as a direct response to that report.

iii) There was no telephone call to the effect that the maternal grandmother had died. I have no idea whether she is dead or alive. It maybe that the photographs produced by the grandfather are indeed photographs of the funeral of the grandmother. If so, that funeral took place, I am satisfied, near to Christmastime, some time before, and not in March 2012. The death certificate was a fake.

iv) The mother travelled to the Congo with J on 1 March. Thereafter the mother and J lived with the extended family and probably her uncle until such time as the grandfather obliged the mother to return to the UK in June of 2013. In my judgment it is a moot point as to whether or not she would have in fact returned to this country had not the grandfather travelled to the Congo and obliged her to return.

v) I find as a fact that J did not die whether in a road traffic accident or in any other way and the documentation produced is fake. It follows that I find that J is alive and that the mother and grandfather each know of her whereabouts whether it be the Congo, France or UK.

vi) I am satisfied that the grandfather’s relationship with his daughter is enmeshed and unhealthy at best and that the grandfather has shown on more than one occasion that he will not allow his daughter to move away from him and establish her own life. I am satisfied that he brought the mother’s relationship with the father to an end, wishing her to return to live him.

vii) Similarly, I am satisfied that he would not allow her to stay away in the Congo and that his relationship with her was more important to him than the fact that by bringing her back to England he was separating mother and child.

 

[I haven’t really gotten into the whole dynamic of the relationship between the mother and the grandfather, which is a whole other can of worms in the judgment – but the Judge had to look at whether this tissue of lies had been orchestrated by the mother alone…]

    1. The question then arises as to who masterminded this elaborate façade. In her assessment, prepared in the care proceedings and dated 29 July 2009, the social worker (J Cl) spoke to the mother on a number of occasions. She referred to the mother as appearing: “Distracted and disinterested in most of the questions and did not speak freely. Although she provided an answer to all of my questions, she provided short answers. I found it extremely difficult to draw her into free conversation. B was unable to maintain eye contact in the course of any of my sessions with her.”

 

    1. Those observations chimed with my own assessment of the mother during the course of her evidence. She was virtually monosyllabic. She was courteous and replied to the questions she was asked, but she was throughout completely flat, showing no emotion whatsoever, even when speaking of what, on her case, were the simply appalling events of 3 March 2012.

 

    1. In assessing this mother I bear in mind that whatever the truth of J’s death, she is a young woman who was abused and has been traumatised by her life experiences since she came to this foreign country at fourteen-years of age. In those circumstances it would not be right for me to use her demeanour as evidence against her assertion that J died as opposed to evidence of a deeply troubled young woman.

 

    1. I do, however, feel able to say with certainty that this mother would have been quite unable to have planned and put into effect the removal of J to the Congo and to have thereafter arranged the production of the documentation.

 

    1. It follows that I am satisfied that the grandfather has organised and manipulated events every step of the way. It should come as no surprise to the court that J was spirited away to the Congo. DN was sent back to the Congo to avoid the consequences of his having raped and impregnated his half-sister and I have no doubt that the mother would have been sent back to the Congo had the police not acted on the tip-off after the grandfather’s arrest for rape. Throughout the papers one can see the grandfather’s manipulative hand. He is there at each appointment, making arrangements, organising things and was, and I am satisfied remains, in complete control of every aspect of his daughter’s life.

 

    1. The grandfather made it clear that the uncle in the Congo is the member of the family who controls matters at that end that is where the mother lived I have no doubt that the grandfather and the uncle between them organised and obtained the various documents.

 

    1. The mother has recently remarried and is expecting another child. It remains to be seen whether she will now be allowed to make a life of her own.

 

    1. The grandfather as unrepresented Intervener has played a full part in the proceedings. He has been courteous and polite throughout. On one level he gave plausible evidence, although his self-centred approach was apparent at every turn. He was considerably more animated than the mother, particularly towards the end of his submissions when he was bordering on tears but tears of self-pity in relation to the effect the proceedings had had upon him. This was in contrast to the way in which he spoke of the death of J, in positively callous manner, saying that the hearing of her death had “spoilt my day, spoilt my shift at work” and saying, quite brutally, that once J was dead he had destroyed everything about her, including any photographs he may have had.

 

  1. I am satisfied that the grandfather knows of the whereabouts of J and that he could organise, if he so chose, to ensure her return to the UK, her country of habitual residence immediately. Accordingly, I find that J is alive and will make a raft of orders designed to ensure her return to this country as soon as practicable.

 

I know that private law proceedings can get vitriolic, and even have false allegations thrown around, but telling a father that his daughter is dead sets something of a new low.

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Reporting Restriction Order – Swansea

Posted on February 11, 2014 by suesspiciousminds

 

The decision in Swansea v XZ and Another 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/212.html

It is rather strange, in this week where all judgments by Circuit Judges or above relating to children are to be published online following the President’s guidance, to also see a Reporting Restriction Order case; although the order makes a great deal of sense in the particular circumstances of the case.

In this one, a mother from the Swansea area faced criminal charges relating to the murder of one child and the wounding of another. The mother pleaded guilty to the criminal charges in November 2013.  The alleged offences happened in 2006 and 2007, although the criminal charges were brought many years later.

This was touched on by the Court here

On 27th September 2011, the police finally applied for disclosure of the case papers. I note that this was already nearly three years after the finding of fact hearing before Wood J. The case came before Charles J on 1st November 2011. Even at that stage, he said that there was, as far as he could see, “no reasonable justification” for the delay in applying which appeared to be “inexcusable.”

Between 2007 and the present day, care proceedings took place on the second child and subsequent children those proceedings seem to have taken place over many years, with what seems like several different sets of proceedings,  finally ending in 2013 with the family court deciding that all of the surviving children could live with their parents.  [The precise chain of where they had all been living in the interim is not easy to follow, but it seems that it had mostly been with either both parents, or the father alone]

I should make it clear that the Mother’s care of the children that were staying with her has, since the institution of the proceedings, been, at all times, exemplary. The children very much wanted to be with their Mother and it was in their best interests to be with her provided she was mentally well and it was safe for them. By 11th March 2013, it was clear that, despite the criminal charges, her mental health had not deteriorated. I therefore directed that those children should return to live with her on 19th March.

 

The Local Authority applied in this case for a Reporting Restriction Order to prevent the mother’s name being published – in the usual course of events, there would be nothing to prevent the Press publishing the outcome of the criminal trial (which is certainly newsworthy) and naming the mother – even though that would indirectly identify the children. Hence, the Local Authority applied for the order. (It was not intended to keep the care proceedings secret, but prevent the children from being identified as being the children of a woman who killed a baby)

 

    1. The Local Authority case is that permitting the media to report the identity of the Mother will cause very significant harm to the children. First, it is said that, for reasons I cannot explain fully in this public judgment, anyone in the locality reading a media report naming her would instantly know which family it was.

 

 

    1. It is then said that there are a number of features of this case that could well result in real danger and harm to these children. In particular, it is argued that this case involves a significant number of features that have, rightly or wrongly, caused great contention of late in this country. These stem from the family background details and that very serious harm was done to two babies; and the Mother has cared for those children notwithstanding what has happened.

 

 

    1. It is said that, as a result, the family would be at high risk of being targeted within their community by threats and reprisals if they were identified. It is argued that reprisals might be both physical against them and against their homes. There would be a real risk of serious bullying at school. I am told that the effect on the children is potentially devastating.

 

 

  1. Significant evidence has been put before me as to the risk that the children will suffer significant harm
    1. The evidence that has been placed before me comes into exactly this category. It is from a very experienced social worker, Carol Jones, who is well aware of local conditions. I also have evidence from the Guardian (albeit that she has only relatively recently been appointed in this case) and from the consultant psychiatrist, Dr D.

 

 

    1. Carol Jones says that, for reasons explained in her evidence, the family are easily identifiable. She is concerned that the community may, wrongly, feel that the family has been treated differently because of their background. She tells me that something similar happened to another family in the locality where there was a conviction for child murder. She adds that, if there is no custodial sentence, that may itself fuel resentment.

 

    1. She goes on to say that, if the application for the Reporting Restriction Order fails, the Local Authority has decided that it will have to remove the family immediately to a completely new area of the country and give them new identities. This, of itself, shows how very seriously this matter is viewed. If this happens, the children will lose the stability that has been painstakingly acquired since the tragic events of 2006 and 2007. They will also lose the consistency and security of their schools that have provided them with significant stability, notwithstanding the difficulties faced by the family. They will lose friendship groups. I accept everything that Ms Jones writes.

 

    1. The Guardian, Joanne Bamford, says that she is particularly concerned about one of the children, who is well aware of what has happened. That child has found the stress of the last few months increasingly intolerable and is exhibiting signs of anger and frustration. Ms Bamford considers exposure will have a particularly devastating impact upon that child who uses Facebook and will be exposed to what is written about the family. The child may well be bullied and threatened. There is concern as to the child’s mental health and even the possibility of self-harm or even attempted suicide. I accept all this evidence as well.

 

 

  1. As noted above, the Local Authority has prepared a Safety Plan that involves immediate relocation out of the Swansea area even before the reaction of the public is tested, so serious are the concerns. In my view, the effect of all this on the children will be nothing short of devastating. In due course, they will all know that one of their siblings has died and that another sibling was seriously injured. These events happened as a result of the actions of their Mother, who they love so much. None of this was in any way their responsibility yet they are the ones who would now suffer the most. They would have to move home and school. They would lose their friends and all that is familiar to them. They would have to change their identities. Moreover, in all likelihood, they would suffer significant vilification and abuse. Once this is all clear, it becomes immediately clear why this is such an exceptional case.

 

 

This case is a good illustration that there’s a tension between public policy and interest that people who commit crimes should be identified and their crimes reported and the privacy of children who have done nothing wrong but might face serious detriment or harm if the local community linked them to the mother who committed these crimes. It is that tension, otherwise expressed as article 10 (freedom of expression) v article 8 (right to private life) that the Court had to wrestle with.

The law as it relates to this particular case

 

    1. I have already said that, very responsibly, having considered all the evidence, the media organisations represented before me accept that this is one of those very few wholly exceptional cases in which anonymity is justified not just for the children but also for the Mother (and Father) because identifying the parents will lead to identification of the children.

 

 

    1. I agree with that assessment. I am solely concerned in this regard with the effect on the children, not the effect on their Mother but the evidence points inexorably to serious harm being done to the children if their identity was to become known. The fact that the Local Authority considers, rightly in my view, that it would have to uproot them immediately from the area where the children have lived for many years, if I was to refuse to make the Reporting Restriction Order, is clear evidence of the serious damage such exposure will do.

 

 

    1. I am, however; equally clear that I must permit reporting of anything that does not lead to the identification of the children. I must therefore assess what is likely to lead to their identification and what can safely be put in the public domain without leading to their identification. I accept the submission of the Local Authority and the parents, with which the media organisations do not dissent, that, in dealing with this area, I must consider “the jigsaw effect“. In other words, I must remember that there may be an individual piece of evidence that itself may not lead to identification but that is likely to do so if combined with other pieces of information also placed in the public domain.

 

    1. It is accepted that they would be identified if their name was known. It is for this reason that it is accepted that the Mother and Father’s names must be given anonymity as well as those of the children. I also remind myself that there may be a significant number of people who know that this family lost a baby in 2006.

 

The individual issues

    1. The first issue I had been asked to consider was whether or not to permit reference to the family’s origin. I am absolutely clear that such reporting must be prevented as was agreed by the media once they had read the further papers. Having considered the statistics relating to persons from that country living in the Swansea area, I am quite satisfied that, if any reference had been made to their origin, there would have been a likelihood of exposure.

 

    1. I will therefore now turn to deal with the areas that remain in dispute.

 

 

    1. The first issue was whether or not there could be reference to their religious faith. Again I have considered the statistics in relation to this and I have come to the clear conclusion that permitting disclosure of her religious faith would also be likely to lead to identification of the children. I therefore refuse to do so.

 

    1. I consider that it also follows that the media should not be entitled to name AZ. It certainly points to a family of their origin. I have come to the conclusion that AZ should be referred to as “A” and BZ as “B”.

 

    1. Ms Gallagher perfectly properly pointed out at the end of the submissions that the draft Reporting Restrictions Order would appear to permit the media to report how the Mother came to be in this country. The other parties were surprised by this as they had assumed that this would not be possible. I was therefore additionally asked to decide on that.

 

    1. I am particularly aware of the fact that the Z family are not living in an area where there are a significant number of people who might potentially have this background. I have come to the same conclusion in relation to this aspect. In other words, I consider that permitting disclosure would run too high a risk of identification.

 

    1. Finally, there is the question of the composition of the family. I consider that very different considerations apply here although I am still concerned about naming the exact number of the children. To do so would immediately show that this is a family with a particular number of surviving children plus one deceased in 2006. I do not believe there are likely to be many families in the Swansea area in that category and certainly not where they live. It therefore follows that I consider it would be to run too high a risk to permit naming of the number of the children.

 

  1. I do not, however, see that there is any reason to prevent reporting that the parents are separated. Indeed, it would be surprising if they were not. Equally, I consider there is no reason to prevent the media saying that there is more than one surviving sibling and that they see their Mother. Further, I consider that it is appropriate to report, if the media wishes to do so, that, since the institution of care proceedings, her care of them when with her has, at all times, been exemplary.

 

[This latter bit explains the earlier suggestions about how giving much of the family’s background would easily identify them – let’s pretend for hypothesis sake that they are Martians, and have green skin and surnames like M’Hxtelkraw, and you can then see what is being hinted at, and also the talk of ‘how the family entered the country’ makes sense of the earlier suggestion that the local community might, wrongly, feel that they had been treated differently because of their background]

 

The Press were very responsible in this case – reading between the lines, this would be a very newsworthy story, particularly for the more erm… ‘traditional’ newspapers for whom the story would have pursued several agendas, but they recognised and accepted the balance between the children’s welfare and running a juicy story.

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An important unimportant judgment

Posted on February 11, 2014 by suesspiciousminds

I believe that Re A, B and C (Children) 2014 is the first judgment to be published and made available online despite not having any significance or importance in and of itself. It is not a precedent for anything, it does not raise any unusual or interesting areas of law, nobody is likely to ever cite it in a skeleton argument or a legal article. But it seems to me to be the first, so it has some degree of novelty and importance despite itself.  [I could be wrong, it might just be the first one that has flitted over my radar, but I have been keeping an eye out]

http://www.bailii.org/ew/cases/Misc/2014/2.html

It is a fairly short judgment, the case moved at the Issues Resolution Hearing (the hearing that the Court has once all of the evidence is in, to see if the case can be agreed or whether a full-blown final hearing is needed) from a dispute between the LA and parents on the one hand (who were saying the children should stay at home under Supervision Orders) and the Guardian who had reservations as to whether that was safe, to agreement that Supervision Orders were the right orders to make.

It might actually be more interesting for what is NOT said – whilst the name of the LA and the Guardian are up, there is no naming of the social worker  (this may not be intentional, it might just be that in such a short judgment, the social worker’s name simply did not come up).

Cases like this, where the parents work to make changes, succeed in doing so, and there’s a good outcome for the family that means the children stay at home and have a happier life than they would have had before the proceedings started, don’t often get reported – the cases that historically get reported are the ones where there’s a big fight – such a big fight that the case is either in the High Court or gets appealed. Maybe it is a good thing to see that there are cases like this, where the hard work a family does to make changes makes a difference.

Happiness writes in white ink on a white page – Henry de Montherlant

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Mostyn-tacious – a judgment that makes your temples throb

Posted on February 7, 2014 by suesspiciousminds

 The case of Re D (A child) 2014 presented Mostyn J with a very very serious issue to try.

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/121.html

 The child, D, was profoundly unwell, with a great deal of problems.

 A very full report by a consultant paediatrician, indicates that D suffers, or is suspected to suffer, from, inter alia, sublugotic stenosis, chronic lung disease, cerebral palsy, visual impairment, epilepsy, sickle cell disease inherited from her parents, aspiration pneumonia, and gastroesophageal reflux. As a result she has suffered multiple cardio-respiratory arrests, is fed naso-gastrically and has undergone both insertion of a central line and a tracheostomy through which she is continuously administered oxygen – she is oxygen dependant. She will require 24 hour intensive care even upon discharge from hospital.

 On 2nd July 2013, there was a suspicion that D’s mother had deliberately turned off the tap which controlled the oxygen supply to D.

 There ended up being three, and only three possibilities

 

  1. The tap had not been turned off, and the medical staff who believed that it had were wrong
  2. The tap had been turned off, but it had been done so accidentally by a student nurse J
  3. The tap had been turned off deliberately by the mother

 

 

It is fairly easy to see that if a student nurse had made such a dreadful mistake, that would have some consequences. Likewise, if the Court were to find that mother had done so deliberately that would have very serious consequences for her.  Therefore, if the medical staff who believed the tap had been turned on were wrong, that would be important to know.

 

The police had undertaken a forensic exercise, but the only DNA on the tap was D’s herself. Obviously D was not capable of touching the tap, so the DNA would have been transferred there by another person touching the tap. So, the forensic evidence did not really help one way or another.

 

Here’s where things start to get complicated. Obviously, before you move to the identification of a perpetrator  (the whodunit exercise), you first want to establish whether anyone did anything.

 

Mostyn J indicated that he was satisfied that it was more likely than not that the tap HAD been turned off.

 

As he then pointed out, once he had found that it was more likely than not, the binary approach turns that into a probability of 100%.  Once a Judge finds that X event was more likely than not to have happened, then it happened.

 

The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.

 

And moving onto the ‘whodunnit’ part, the Court no longer takes into account that there was doubt about the first element, because it is a proven fact.  [i.e once the Court has found as a fact that an injury happened, then on considering who perpetrated it there is no longer a final option of “nobody did anything”]

 

 

Mostyn J was clearly in difficulties with that. He provided some probabilities, purely by way of example.

 

  1. Counsel for the Local Authority asks me to consider scenario (i) first. She invites me to find first on the balance of probabilities that the oxygen supply was indeed turned off and that Nurse G is not mistaken about that. As I will explain, I accept that submission notwithstanding that I have some serious concerns that I may well be wrong. I will find on the barest balance of probability that the supply was turned off. I appreciate that in a different context in Re B (Care Proceedings: Standard of Proof) at para 44 Lady Hale stated that “it is positively unhelpful to have the sort of indication of percentages that the judge was invited to give in this case”. However I do not think that prevents me from indicating, only for the sake of example, that the probability that the supply was turned off was 55% (or as the mathematicians would say P = 0.55 and Q = 0.45). Indeed, were I not to do so I believe that a serious injustice may well arise in this and other cases, for the reasons that follow.
  1. If I approach the exercise in the staged way suggested by Counsel for the Local Authority then the 55% probability which I ascribe to scenario (i) is converted by reason of Lord Hoffmann’s binary method of judging to a 100% certainty (or P = 1). What is a mere likelihood (in the true sense of the word) is transmuted into a certainty. The 45% probability that the oxygen supply was not turned off simply will not feature in the second stage which inquires into who turned it off.

 

 

What he then says, is (and indicating that he ascribes these percentage values purely for illustration) – what if the Judge then thinks that between the two remaining probabilities  (the student nurse did it v mother did it) he ascribes a 60% chance to the student nurse and 40% to mother…

 

On the traditional approach, having established that someone turned off the tap (it is more likely than not that someone did, so it becomes a judicial fact), one would then just find that it was more likely than not that the student nurse did it accidentally.

 

But if you sit down and do some maths, as Mostyn J did

 

Well, you then end up with

 

1.         The chance that the tap was not turned off and it was a mistake                        45%

2.         The chance that the tap was turned off by the student nurse 33% [that being 60% of the 55% chance that the tap WAS turned off]

 

3.         The chance that the tap was turned off by the mother       22%  [that being 40% of the 55% chance that the tap WAS turned off]

 

[That adds up, as probabilities must, in a closed system where there are no other options, to 100%.  And the largest of those probabilities is that the tap wasn’t turned off – although none of them hit the magic 51% that would show that it was MORE LIKELY THAN NOT]

 

As you can see, you get two contradictory results, depending on whether you approach the three possibilities in a LINEAR way (deciding first whether the tap was turned off, and then who did it)  or whether you calculate the probabilities of each event and THEN look at which is the most likely.

What is being illustrated here, is that if, instead of a two stage process

1. Did the event happen?

2. Who did it?

One compresses that into a one stage process

1. Is it more likely than not that person x did event y ?

 You can end up with two different answers.

 

That led Mostyn J to form these two conclusions

 

 I have already indicated that on the barest balance of probabilities Nurse G was right to deduce that the oxygen supply was turned off. The grip on the tap in the off position is distinct if slight. She has been consistent in her contemporaneous statements. She is an experienced and meticulous nurse. On the other hand, she accepted that this may well have been an event where the oxygen saturation level fell even though the oxygen was on, and that she may have jumped to a conclusion. There was a great drama happening and attention to detail may have been wanting. Having considered the matter very carefully I am satisfied, just, that the supply was turned off, but I do record that my doubts are very real.

 

[i.e that the Court finds it was more likely than not that the tap WAS turned off, although there’s a significant possibility that it wasn’t.]

 

But then

 

Having weighed all the evidence very clearly I conclude on the balance of probabilities that if the supply was turned off the mother did not do it. In the light of Lady Hale’s strictures I do not ascribe a percentage probability to this finding but I am confident in it. But it does not follow from this finding that I am concluding that J did turn the supply off by accident. Far from it. A correct application of the laws of probability leads me to conclude that in relation to her also I am not satisfied on the balance of probability that she accidentally turned off the supply.

 

 

[Explicitly finding that IF the tap was turned off, mother did not do it, but also making clear that this does not mean that the only remaining of the three possibilities – that the student nurse, J, did it, was what the Court found. In fact, that this possibility is not found either. ]

 

 

I think (deep breath) that the finding actually ends up being (though this is never baldly stated)

 

Whilst it appears that it is more likely than not that the tap was turned off, once one factors in the doubt about this, it is not more likely than not that the tap was turned off EITHER by  J, the student nurse, or by the mother, and thus no findings can be safely made against either mother OR J the student nurse.

 

 

I can see what Mostyn J is getting at here, but it is clearly problematic that a Judge faced with the exercise of hearing the evidence about a very grave allegation ends up not finding that any of the only three probabilities is more likely than not to have happened.  You end up with an odd situation that the Judge basically hints that the MOST likely of the three explanations is that the tap was not turned off, even though the only thing that he found WAS more likely than not was that the tap WAS turned off.

 

A problem here is that the case before him didn’t easily settle into a Lancashire finding – i.e that (i) it is more likely than not that someone turned off the tap (ii) the Court can’t identify the perpetrator, but that the only two possibilities are the student nurse J and the mother and neither can be safely excluded

 

The reason being that the ‘motivation’ for turning off the tap is different for the two potential perpetrators – one is an accident, and one is deliberate. So a Lancashire finding doesn’t really resolve anything.  [It is, at least arguable that if the scenario had been that either mum or dad had deliberately turned off the tap and nobody else could possibly have done it, then, a Lancashire finding would have been made]

 

 

The other problem is that whilst the numbers used by Mostyn J are arbitrary, for illustrative purposes, the residual impression is that Mostyn J considered that if the tap HAD been turned off, it was much more likely to have been by the student nurse than by the mother, that being caused simply by the numbers he plugs into his calculations.

 

That residual impression is quite a big deal for the nurse in question, and I wonder whether the human importance of what was being deliberated here got somewhat lost in the maths.

 I wonder if these arguments are going to be imported into other cases, or whether Mostyn J is pretty much the only Judge who is going to divert from the standard way of dealing with findings.

One thing is for sure, counsel appearing before Mostyn J in finding of fact cases would do well to read up a bit on probability theory and bring a calculator (and perhaps some Migraleve).  

 

 

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“What’s got two thumbs and just cost family justice a million pounds per year?”

Posted on February 6, 2014 by suesspiciousminds

My quick unscientific estimate of the cost of a transcript (I took the ones I’ve obtained in the last year and took an average, although I think my judgments are all fairly short)  £130 per case

From the CAFCASS figures on number of care proceedings issued in 2012 (april 2012-march 2013) that was 11,107

If, as a result of the President’s decision on transcripts, we obtain a transcript for each final judgment, that would cost the family justice system  £1,443,910

(yes, that’s nearly one and a half million pounds. A year.)

Now, to be fair, some of those final hearings are heard by Magistrates or District Judges, which aren’t included (at the moment) within the guidance that a transcript be obtained of each final hearing.

It is a bit tricky to work out what proportion – let’s be generous and say half. 

That still leads three quarters of a million pounds of taxpayers money.  A year. And the system isn’t getting any extra, so that’s money that has to be found from existing resources, which means £750,000 of cuts from somewhere else.

 [I don’t have the statistics on how many Court of Protection judgments there are a year, but those all have to be transcribed now too. ] 

 There’s also the harder to calculate figures  (a lawyer has to anonymise the judgment and arrange the transcription, invoices have to be drawn up and paid, everyone’s lawyer has to wrangle with the Legal Aid Agency about the costs each and every time,  the Judge has to check the judgment, someone has to arrange for the transcript to go up on Bailii, Bailii have to host probably ten thousand more family judgments a year than they are used to doing).  Oh, and of course, the basic law of economics that as demand increases about five-fold, the price is probably going to go up too.

Now, when the MoJ ran pilot schemes in five Courts, where all judgments were anonymised and published online for a year,  they calculated the administrative costs, if it were rolled out nationally to be £500,000 per year, pushing the costs back up above a million pounds.

https://www.justice.gov.uk/downloads/publications/moj/2011/family-courts-information-pilot.pdf

This pilot was hardly a glowing endorsement for rolling the scheme out nationally, as you can tell by the fact it was published in 2010 and the scheme wasn’t rolled out nationally (until the President decided to do it this year).  In fact, the conclusion was that publishing judgments online was pretty much only useful for researchers and legal commentators; and that journalists and the parties didn’t think it had much value.  One of the few positives (because the transcripts were paid for by the Court) was Local Authorities who were pleased to be getting anonymised transcripts.

The tenor of the recommendations was that the statistical analysis of overall trends was far more useful, and to keep publishing anonymised judgments limited to either cases that had a value as a precedent or where one of the parties specifically sought publication.

 If you don’t want to read the full report on the pilot, then there’s a reasonable summary here:-

 http://www.familylawweek.co.uk/site.aspx?i=ed85957

 Now, I’m not saying that transparency isn’t a good thing – I think that it is. Maybe it is a good enough thing to be paying over a million pounds a year for even in our straitened times of cuts and belt-tightening. I’d just like to see the cost-benefit analysis that shows that to do it this way is worthwhile, because the pilot study doesn’t.

[See also David Burrows excellent analysis of the fact that making the decision on an individual case to publish a judgment still requires an actual judicial balancing of article 10 and article 8

http://dbfamilylaw.wordpress.com/2014/02/01/guidance-from-the-president-of-the-family-division-on-publication-of-judgements/
 
If you think I’m a stroppy swine, you need to read a bit of David’s blog. He’s only been doing it a week and he’s already threatened two judicial reviews…. The spirit of John Osborne is lurking nearby, taking notes for a new play named “Angrier Less-Young Man”]

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A word in your shell-like

Posted on February 6, 2014 by suesspiciousminds

Appeals, adoption, writing a cheque for costs and ‘informal discussions’

 Re C (A Child) 2014

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html

 It is no longer any great surprise when the Court of Appeal overturn a Placement Order, but just when I was getting jaded with this new spirit, along comes something to raise an eyebrow. In this one, the Court of Appeal overturned the Placement Order AND made an order for costs, in the sum of £22,000 against the LA.

 It also raises a couple of important issues of principle.

 The first is the need for a Judge to take care on an appeal – in this case, the whole thing started with a DJ refusing a placement order and the Local Authority appealing it to Keehan J.

 Keehan J found all five grounds of their appeal met, granted the appeal (fine) but then went on to make the Placement Order.

 As the Court of Appeal pointed out, Keehan J therefore made a Placement Order whilst only seeing the documents in the appeal bundle (which were of course very limited) and had not seen all of the documents that would be necessary to properly consider whether or not a Placement Order was the right order.

 It is quite obvious that Keehan J was concerned at the delay in planning for S’s future care needs, which delay is statutorily recognised as inimical to the welfare of the child (Children Act 1989, s 1(2)). Unfortunately, his understandable desire to move the matter forward appears to have blinded him to the significantly defective appeal bundle created and provided by the appellant which actually rendered him incapable of proceeding with the hearing on the notice of appeal filed, let alone providing the necessary evidence to support the making of a placement order. Put shortly, there were no transcripts of evidence and some of the documents before the district judge had been removed from the bundle….

 

There was an obvious lacuna in the materials presented to Keehan J in his appellate capacity to dispose of the appeal, still less to subrogate his own assessment of the facts in making a placement order. (See paragraph 8 above). I know that he would now only too readily acknowledge that his expressed reasoning in deciding that it was right to do so is insufficient and does not comply with the subsequently reported Re B-S (CHILDREN) 2013, EWCA Civ 1146.

 

 The Court of Appeal raise an interesting point, which may well come back to bite them, about transcripts of evidence rather than just the judgment. I happen to agree with them, but it is still something of a hostage to fortune.

Keehan J’s judgment was that the district judge “misconstrue[d] the evidence of Dr Bourne”, “was wrong to conclude that [an option] was viable or available…because the social worker gave evidence to him…”; reached “a conclusion which…he was [not] entitled to reach on the totality of the evidence before him”; and, that in relation to the care plan “was plainly wrong to come to that judgment and assessment”. He concluded that “The care plan of the local authority was entirely clear”. In my judgment, these findings and conclusions simply cannot subsist in the absence of a critical appraisal of all the evidence that was before the district judge (rather than relying on such statements as he had and the summary within the district judge’s judgment. Oral evidence will necessarily colour the picture otherwise presented by the statements and reports prepared before hearing. As is obvious from the judgments of District Judge Simmonds, that is precisely what happened in this case.

 

 

  1. In challenging Counsel for the Respondent local authority as to the absence of any transcript of evidence before Keehan J when hearing the appeal, her response clearly reflected the position taken by the local authority in the first appeal. That is, that transcripts were unnecessary since the district judge had specifically summarised the oral evidence as was obviously relevant to the judgment.
  1. This submission reflects an inability to recognise the failures of the local authority in the first appeal process which I would otherwise have hoped may have occurred to its legal advisers after reflection upon the contents of the present appellant’s notice and recourse to notes of evidence. It also flies in the face of paragraph 9 of District Judge Simmonds’ first judgment, vis:

“The fact that I do not mention something in this judgment does not mean that I have not fully considered it, but it is impossible to set out in this judgment everything that I have heard and read. My analysis of the evidence and findings, although made after each witness, are on the basis of hearing and reading the entire evidence and analysing the evidence in its totality.”

  1. This observation is entirely consistent with the well established principle derived from the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at p 1372:

“The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1 , 45:

The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

  1. Over time, inevitably and regrettably, this conspicuously articulated wisdom is diminished by familiarity and may often, as in Keehan J’s judgment, become eroded by a concisely expressed but imprecise phrase. Lord Wilson’s judgment, endorsed in this respect by Lord Neuberger in RE B (A CHILD) (CARE PROCEEDINGS:THRESHOLD CRITERIA) above is a potent reminder of the need for all appellate courts to do more than pay lip service to the doctrine. At paragraph 42, after quoting Lord Hoffmann in Piglowska he said:

“Lord Hoffmann’s remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?” and, in a public law case, when always hoping to be able to answer his question negatively, to ask “are the local authority’s concerns about the future parenting of the child by this witness justified?” The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge’s decision about the future arrangements for a child. In In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258 , Lord Nicholls said:

“16 …There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.……Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge’s decision.”

 

 

Is that authority for “in an appeal, a transcript of the entireity of the evidence should be obtained?”    – well, not quite, but I would certainly say that attention should be paid as to whether it should be obtained, and advocates be prepared to defend their decision about it either way. (Frankly, I would cover my back and include within the appeal notice a position as to whether the oral evidence given is intrinsic to the appeal and the Court is invited to direct whether a transcript be obtained)

 

A major issue in the case was whether in the original hearing, the oral evidence developed to a point where an alternative to adoption (namely the child continuing to be fostered by the existing foster carers) emerged as a credible alternate plan. That plan was the one that the District Judge approved – hence him making a Care Order but no Placement Order. At the appeal before Keehan J (who of course saw the written evidence and submissions that this was not an option on the table) what appeared to be the case was that the DJ had refused the LA plan and tried to foist upon them a plan that did not in truth exist as an option, which would of course have been wrong in law.  The Court of Appeal, having seen the transcripts of the oral evidence, felt that the option that the DJ selected was in fact an option open to him based on the evidence, and that thus not only was Keehan J wrong in granting the appeal but the LA had been wrong in issuing it.

An interesting aspect of the case was the Court of Appeal’s take on the ‘informal discussions’ that took place between counsel for the LA and the original District Judge. There is obviously a fine line between the duty to raise points of clarifications before an appeal and back-door pressure, and the Court of Appeal felt that this was wrong side of the line territory.

  1. Counsel for the local authority e-mailed the district judge timed at 3.33 am on 25 February seeking to “clear misunderstandings” as to the thrust of her closing submissions which had apparently not been accepted. The district judge responded at 9.07 in short order restating the pertinent bases of the decision reached and indicating that the order would follow. Remarkably, and with great temerity in my view, Counsel then responded “with the greatest of respect, I do not agree with your analysis”. Having re-iterated shortly the basis of his decision the district judge quite properly made clear that he was “not prepared and [would] not deal with this matter in e-mail correspondence.”
  1. Whilst other advocates were copied into the second e-mail and the first e-mails disclosed to them subsequently, apparently have made no complaint and may well regard it to be orthodox procedure, I regard this to be an entirely inappropriate, unacceptable and unsatisfactory practice. Not only was this an unwarranted ex parte approach by unconventional medium but it is a practice that lends itself to accusations of taint, bias, closed door justice and “stitch up” in the absence of an adequate and reliable method of recording what transpired. In the circumstances, the district judge was extraordinarily restrained in his responses.…

And

I agree with the reasons given by Macur LJ for allowing this appeal and I agree with the order proposed. I would particularly like to associate myself with the remarks that Macur LJ has made at paragraphs 11 and 16 of her judgment. The attempt to get the District Judge to change his judgment and order after the he had delivered his judgment was quite unjustified and inappropriate. Counsel should know better than to attempt such an inappropriate exercise, even if the client urges it. (I do not say that happened in this case; I do not know).

 

 

And

  1. I agree with both judgments. Having seen the judgments in draft, Ms van der Leij has expressed concern about the comments at paragraphs 10-11 of Macur LJ and paragraph 36 of Aikens LJ dealing with the e-mail exchanges subsequent to the hearing. She observes that “it is by no means unusual for practitioners in the Principal Registry to e mail district judges directly seeking clarification of matters raised in a hearing”. It is one thing, if invited, to make submissions in relation to the terms of an order provided that every communication is copied to every party; it is another to express dissent and seek to engage in further argument. If that is not unusual, it is important that the problems which it generates should be recognised and that the practice should cease. First, it suggests (even if it is not the case) that advocates can go behind the scenes to resolve issues in favour of their clients and, as Macur LJ observes, will give rise to allegations of ‘stitch up’. Secondly, it will encourage litigants in person (who do not have the same understanding of the law or practice) to adopt a similar approach thereby disrupting the finality of the judgment of the court and generating continued uncertainty.

I completely agree with all of this – it is hard to know what was going on here, but the best way to deal with this sort of thing is transparently, where everyone (including and particularly the parents) sees exactly what is being said to the Judge and has an opportunity to comment.

 On to costs.

The Court of Appeal point out, with a degree of acidity, that if the parents had been legally represented at the first appeal, to the circuit judge, it would have emerged that the oral evidence had been markedly different to the papers that Keehan J had seen and that the DJ had been within his rights to view that oral evidence as being that an alternative plan than adoption – namely long term fostering with the existing foster carers, was not only an option that he could chose, but one that he should.

They point out that in saving a very small amount of costs in legal aid for that hearing, substantially greater costs, and delay for the child have been incurred because that appeal itself had to be appealed.

The fact that the parents were faced with an appeal before Keehan J without any professional representation because their legal aid had been withdrawn must have been a factor which unfortunately led the judge to be persuaded to act as he did, despite the fundamental procedural failure of the respondents’ lawyers. This was, of course, their failure to produce on appeal the transcripts of the very oral evidence which the appellant alleged that the first instance judge had misconstrued/misunderstood. As Macur LJ has commented, if the parents had been represented by competent counsel this failure would doubtless have been pointed out and the appeal may never have seen the light of day. As it is, further public expense has been incurred because of the need for a further appeal to this court. What might have been saved in legal aid fund costs has been lost by incurring public expense on another (but related) part of the public purse.

They did refute the parents claim that because they had not been represented at the original appeal their article 6 rights had been breached – i.e this would not be a ground for appeal in and of itself, although it provided context as to why the original appeal had gone awry and needed to be appealed

 

 The fact that parents comprise the vastly increased number of litigants in person which appear before the courts in child public law cases since they do not qualify for non means tested legal aid is all too apparent and unavoidable as a consequence of the present regime. As here, non represented parents will often be ranged against legally qualified advocates opposing them. They have access to justice in accordance with their “Article 6 rights” but are often daunted by the process and feel understandably outgunned. In itself, this fact does not found a meritorious ground of appeal but necessarily it comprises a context for the other complaints that are raised in this application. I have every reason to expect that, if they had been legally represented by a competent advocate, this appeal may never have seen the light of day.

 

 

An application for costs was made. As readers will know, costs in care proceedings are fairly unusual, although possible,

  1. The mother is now legally aided. However, during the preparation for this appeal it appears that there were periods when it was withdrawn. In any event, the mother apparently is at risk of future recoupment from the Legal Aid Agency. She applies for costs of the appeal. Written submissions and revised cost schedules have been submitted.
  1. The local authority relies on Re T (Costs: Care Proceedings: Serious allegation not proved) [2012] UKSC 36 to resist the application. It argues that it has not adopted an unreasonable stance or been guilty of reprehensible behaviour. For the reasons above I believe that the position that it has taken to have been unreasonable. In the alternative, it cites London Borough of Sutton v Davis (Costs) (No 2) [1994] 1 WLR 1317 as authority to the effect that this court should not make an assessment but should order costs to be paid in a sum assessed by the director of the LAA. This proposition is based upon the obiter dicta remarks of Wilson J, as he then was. He urged reform of the then current legal aid regulations. They do not endure in the light of the 2010 Standard Civil Contract entered into between the mother’s solicitors and the Legal Aid Agency, section 1, General Provisions 1.50B of which provides: “This paragraph represents our authority pursuant to section 28(2)(b) of the Act, for you to receive payment from another party….and to recover those costs at rates in excess of those provided for in this Contract or any other contract with us. This court must address the claim for costs with a view to the context in which it arises. The director of the LAA is not in a position to assess whether the same have been unreasonably incurred.
  1. The necessity for this appeal emanates from the local authority’s failures to address the issues correctly in front of Keehan J. I would order them to pay the costs of the mother claimed in the sum of £22,756.68

The Court of Appeal don’t formally say that the informal approaches by counsel to the DJ played any part in this decision, but they hardly take pains to point out that they played no part. Those might have been very expensive emails.

 

[I am grateful to one of my readers for politely, judiciously and correctly letting me know that Keehan J is of course not a Circuit Judge, as I had been wrongly designating him – I have now edited out those incorrect references. ]

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Nothing else will do in the USA

Posted on February 3, 2014 by suesspiciousminds

Readers may be aware that in care proceedings, if it is not possible for a child to live with a parent then a family member is the next best thing. They may also be aware that the Supreme Court and Court of Appeal have been saying in 2013 that in order for a plan of adoption to be approved that the Court must be satisfied that “nothing else will do”

 You might not be aware, unless you happen to have done such a case, that where a family member lives in America, that the only lawful way to get the child INTO America is for the family member to adopt the child. That’s because of the way that the US authorities deal with immigration and visas and such.

 That poses something of a tension between “I want to place with Auntie Beryl, who lives in America” and “adoption is the last resort” because in this situation, adoption is actually the only legal route one can take to get the child placed with Auntie Beryl. 

 

But at the same time, you end up with a substantially more draconian order, one that ends the legal relationship between the birth parents and the child, than you would have countenanced had Auntie Beryl lived in Stoke instead of Tallahassee.

Should you find yourself in that tricky spot, this piece of caselaw will be helpful

 

RO v A Local Authority & Others 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/97.html

 

Exactly that situation arose, and where a Court would normally be looking to place the child with Auntie Beryl under a residence order or Special Guardianship Order, here they have to do so under a regime of adoption, which is now considerably more difficult than it was pre June 2013, when the caselaw shifted radically.

 The Judge approved the plan of placement with the relatives who were living in America, and outlined very carefully the reasons that this could only be done under the auspices of adoption, and thus why the making of a Placement Order was justified. It would stand as a good model for any one seeking to persuade a Court to place with relatives in the USA in future.

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uncharted waters

Posted on February 3, 2014 by suesspiciousminds

The limits of current medical knowledge on fractures and rickets, discussed in the case of A Local Authority v M and Others 2013

 

http://www.familylawweek.co.uk/site.aspx?i=ed127031

 

This was a case where His Honour Judge Hayward-Smith had considered a fact-finding hearing about a child who had suffered multiple fractures, including a skull fracture. At that hearing, the medical evidence had been unanimous that the child had been suffering from rickets but that the injuries had been caused by the parents, and hence the findings were made.

 

Subsequent to that, the judgment in Al Alas Wray was published, and that obviously highlighted the possible connection between Vitamin D deficiency, rickets and fractures in children.

 

The case came back before the Judge, who authorised some fresh experts, to look specifically at whether the presence of rickets in the children might mean that the fractures were not caused deliberately by the parents.

 

The medical evidence here was not simple, and not agreed, and the Court had to not only address the conflict between the medical evidence, but also to address the fact that the issues in question were butting up against the edge of what was known medical science and attempting to extrapolate from that what might be learned in the future.

 In particular, it became clear that what was not known at this stage, and did not exist in the research was

 

(a)   Whether having rickets meant that a child could suffer fractures more easily or with less force than a child without rickets would require to cause the same injury; and

 

(b)   If so, how much more easily, how much less force?

 

(c) The extent to which rickets affected the healing speed of fractures, and thus the reliability of usual dating techniques to decide WHEN the injury happened where rickets is a feature.

 

On the first issue, the experts were agreed that the existing research on animals did strongly suggest that for animals there was a sufficient link between the presence of rickets and fractures occurring more easily or with less force to be confident that a causal relationship existed, and that this PROBABLY mean that the same was true of humans, and human children too.

 

On the second and third issues, there was no certainty at all and no research evidence yet to point clearly in either direction.  (Again, with animals, the research showed that rickets did impact on the healing rate of fractures)

 

One of the evidential issues that arose was whether, within the body of children who have rickets (and are known to have rickets) fractures and multiple fractures as in this case was a common feature, a fairly rare feature or an almost unheard of feature.

 

 The problem here was that although the Court had the benefit of two experts with a lot of experience on the issue, their experience differed, and neither had the raw data or research, just their own observations. One thought it was almost unheard of (and thus that with multiple fractures NAI was a more likely explanation for the injuries), the other felt that it was fairly rare but within his own experience.

 

Is the multiplicity of fractures significant?

33. As the evidence developed this issue appeared to me to lie at the heart of this case.  Professor Gardner went so far as to say that Professor Bishop’s experience in this area led him to conclude that this is a case of non-accidental injury.  There is no doubt that Professor Bishop is a very distinguished expert in this field.  He was described by one of the experts as knowing more about this field than anyone else in Europe.  Professor Bishop said during the course of his evidence:

“In Sheffield we see approximately 500 children in any one year.  The majority will have conditions leading to bone fragility, the majority being osteogenesis imperfecta [which is not rickets].  I have been involved in this area since 1987 with babies, including premature babies, and older children since mid-1990s.  I have seen cases of rickets and the number reaches three figures.  [He did not go further as to what he meant by three figures, but it is clearly a large number of children]. 

“Of the children that I have seen with rickets, as far infants are concerned and indeed older children, I have only had three or four with fractures and only one had multiple fractures.  The children, in my experience, with multiple fractures are mobile and not as young as M who would have been immobile, but in one case a child was so ill that the bones could hardly be seen on x-ray and there were multiple fractures; and in that child, indeed, the rib cage had fallen in, it was very severe de-mineralisation of the bones.” 

That evidence reflected what he had said at the experts’ meeting.  The transcript of what he then said reads as follows:

“My concern remains that I have seen a number of cases of rickets which are more severe than this where there has only been one fracture.  I have not seen any other child in my own clinical experience with this number of fractures with rickets or, alternatively, in the literature with a description of this number of fractures in the presence of clinically apparent rickets.  So to me, this is a disproportionate number of fractures and it was actually the reason that I agreed to take this case on in the first place because it was unusual and because I was expecting, when I reviewed the child clinically, to find evidence of some other underlying bone disease that would provide an explanation for the fractures not the rickets.” 

Professor Barnes then asked the question whether that reflected Professor Bishop’s experience in relation to children under the age of six and Professor Bishop said:

“Yes, certainly, it does reflect my experience that it is unusual to see this number of fractures in an infant with vitamin D deficiency, rickets, at this age and that is an experience that goes back over quite a large number of years.  Before I did bone disease I did a lot of neonatology for ten years and we did see from time to time infants in the premature baby unit who had fractures as well, although the aetiology there is quite different.  But this is a stand out from my perspective over that long period of time.”

Professor Barnes then asked him whether his experience had reached the literature and Professor Bishop answered: 

“No, it has not reached the literature because, as I say, it is a scattered experience over a long period of time and I have not kept the case notes of each individual child seen over that period so it is a cumulative experience.  I have talked as well with a number of colleagues about what their experience has been and the general agreement, I have to say, is that one fracture is not unusual in rickets, occasionally two, but, you know, more than that, four, no, we don’t see that.” 

He then said in further evidence:

“Even with that child that I referred to with very severe rickets, there were only three or four fractures.  The majority of rickets cases don’t have a single fracture.  Given the likelihood of multiple fractures in the context of rickets, it is more likely in this case that there has been a use of excessive extraneous force.”

He went on to say:

“There is no objective measure of force required to produce fractures.  In normal children, multiple fractures would indicate abuse.  Multiple fractures in rickets is not borne out on the evidence of my experience, but there is very little published evidence in relation to children under six months.  We x-ray babies all the time.  If rickets was responsible for a lot of fractures we would be seeing multiple fractures in children with rickets and we just don’t see them.  In some parts of the world many children have rickets and there are no reports of multiple fractures.  A fracture, and certainly multiple fractures, is uncommon in rickets.”

That is strong evidence from a distinguished source and I take it very seriously, as indeed I did at the last hearing.

34. There is no objective research and no literature to assist much in this field.  Professor Nussey told me that animal research indicates that rickets in animals greatly reduces the force required to break bones and all the doctors agree that that is likely to be so in humans.  Reference was made at this hearing, as at the last hearing, to the Chapman study, but it is of limited value because of the limited number of children involved.  Professor Nussey’s written report includes the following passages:

“The question as to whether the presence of several fractures rather than one is an indicator of abuse rather than general bone fragility is impossible to answer in the absence of any objective measure of the change in the tensile strength of bone in rickets.  Skull fractures are said to be unusual in rickets, but they have been reported.”

Professor Nussey said that he deferred to Professor Bishop’s experience in this area, but I did not take him to be wholly jettisoning his own evidence. 

35. Professor Barnes had much greater direct experience in this area than Professor Nussey.  In his hospital he treats approximately twelve children a year who have rickets, but in addition cases are referred to him and his unit from across the United States and he has seen a total of about thirty-six cases a year since 2008.  He is compiling a database of such cases.  Most of the children referred to him have fractures; that is usually why they are referred to him, as he put it, to sort out which are the cases of non-accidental injury and which are not.  He has a particular interest in children under the age of six months.  Most of them referred to him that he sees have multiple fractures, but by no means were all of them caused non-accidentally. 

36. Professor Barnes’ experience of children with rickets having multiple fractures differs from that of Professor Bishop. The reason for the difference in their experience is unclear, but it has been suggested that more x-rays are taken in the United States and so more fractures come to light.  In the United States most cases of rickets are referred to major centres, whereas in the United Kingdom they tend to be dealt with locally. 

 

 

 

In the concluding passage of the analysis of the medical evidence, the Judge said this:-

 

All experts agree that there has been little research into the nature of the issues in this case.  Rickets has been curable since the 1920s and there has, therefore, been no pressing need for such research.  All experts agree that the issues in this case should be approached with caution and that there were many unknown factors including the amount of force required to cause a fracture.  Professor Bishop said that he could not be sure to the criminal standard of proof that this was a case of non-accidental injury.  He put the balance of probability at about 75%.  Both Professor Nussey and Professor Barnes say that there is insufficient evidence to say whether or not non-accidental injury has occurred in this case and that the evidence is consistent with innocent parents. 

43. At the last hearing the medical evidence pointed inexorably to the findings I made.  This hearing has been very different.  I am now doubtful whether the parents would necessarily have noticed any of the fractures, apart from the humerus and the skull to both of which they reacted appropriately.  I have conflicting evidence as to the relevance of multiplicity of fractures.  I bear in mind that the parents have given no explanation for the injuries apart from a tight garment pulled over the head and a possible knock on the head in the car, but – given the nature of the rickets, the uncertainty of how bad it was prior to 2nd January and the lack of knowledge of how much force would be required to break a bone – it would, in my view, be wrong to draw the inference that a lack of explanation from the parents indicates non-accidental injury.  For all those reasons, I am not persuaded on the balance of probability that the parents did cause these injuries to M.  I do not find, therefore, that the section 31 significant harm threshold has been crossed. 

44. I add one final word about the medical evidence.  I have great respect for all the experts in this case. They are all very impressive.  I would not wish to be taken as criticising any of them or rejecting the expertise of any of them.  This case involves areas of scientific uncertainty where there has been a paucity of research for reasons I understand.  Medical experience differs and caution is required, as indeed all the doctors involved accept. 

 

 

The Judge could have done nothing other than this, I think. We have reached a point in determining non-accidental injuries where rickets is demonstrated to exist where we simply do not know, and are not likely to find out any time soon, whether it makes such a difference that injuries that appear deliberate are in fact caused by relatively minor trauma; and where such doubt exists, the benefit of it has to be given to a parent.

 

It is an invidious position for all involved to be placed in – for the parent who can’t find the definitive answer and might end up being separated from a child temporarily or permanently, for a social worker who is trying to make a decision about whether the risks mean that such a separation should be sought, for the doctors on the ground trying to reach a conclusion, and for Judges who are having to make a decision as to whether what on the face of it are awful and serious injuries may have their causes in biochemistry outside the parents control or responsibility.

 

One thing is for certain, in any case of suspected fractures to children, getting an answer as to whether rickets or vitamin d deficiency are a clinical feature and getting that answer early will be vital.

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“You can’t see me”

Posted on February 3, 2014 by suesspiciousminds

Withholding documents in Court proceedings from a party, and documents being shown to that party’s lawyer

 RC v CC and Another 2014

 http://www.bailii.org/ew/cases/EWHC/COP/2014/131.html

 This is a Court of Protection case, but has wider implications (in fact, it imports a lot of the principles established in care proceedings into Court of Protection cases)

 It does sometimes (but only very rarely) happen within court proceedings that there is a document, or something within a document that might be problematic for one of the parties to see. In those circumstances, the Court have to decide whether the reason for keeping it from that party are sufficiently strong to interfere with the usual principle that a party gets to see all of the evidence against them.

 

It is absolutely right that the test for keeping evidence secret from one party is a very very very high one. It does very little good for the perception of fairness and equality in Courts if things are kept away from a party.

This is a very rare course of events – I’ve come across it twice in nearly twenty years of practice. In the overwhelming majority of cases, the parent is entitled to see all of the evidence, and to ask for whatever documents or disclosure that they or their lawyers think is fit. It is also worth noting that even in these rare cases where a piece of evidence is determined by a Judge that the parent should NOT see it, the process itself ought to be transparent  (i.e that the parent knows that SOMETHING is being kept back, they just don’t know what it is).

 

In this case, which was an appeal heard by the President, a birth mother had been applying for contact with her daughter who had been adopted. There were circumstances that led to that being a Court of Protection case. There were three pieces of social work evidence which the Local Authority had argued ought not to be seen by the mother (though they were seen by the Judge) and the Judge ordered that they were not to be disclosed.

 

The President accepted the appeal, for reasons set out below, and sent the case back to the original judge for reconsideration. The President was able to confirm that the principles which govern non-disclosure of documents to a party in care proceedings applied equally to Court of Protection cases.

 The original Court had properly identified the tests to be followed (and they are all helpfully set out within the judgment)

 

  1. How is the jurisdiction to be exercised? I return to what Lord Mustill said in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, page 615:

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

  1. In Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, having examined a number of both domestic and Strasbourg authorities, I concluded my judgment as follows (para 89):

“Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.”

As I pointed out in Dunn v Durham County Council [2012] EWCA Civ 1654, [2013] 1 WLR 2305, para 46, this approach, so far as I am aware, has never been challenged and has often been followed.

  1. Dunn v Durham County Council is in fact clear authority (see paras 23, 24 and 26) that the test is, indeed, one of “strict necessity”, what is “strictly necessary”.
  1. In a case such as this the crucial factor is, as we have seen from the passage in the speech of Lord Mustill in In re D, page 615, which I have already quoted, the potential harm to the child. Lord Mustill summarised the proper approach as follows:

“the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

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

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

  1. Before leaving this part of the case, there are two further points to be noted. The first is that, as I put it in Dunn v Durham County Council (para 50):

“disclosure is never a simply binary question: yes or no. There may be circumstances … where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised.”

To the same effect, Maurice Kay LJ said (para 23) that:

“in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.”

  1. A related point, often commented on in the authorities, is that the position initially arrived at is never set in stone and that it may be appropriate to proceed one step at a time. This is not the occasion to discuss this in any detail. I merely draw attention, as examples, to what was said by Hale LJ, as she then was, in Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828, [2002] 2 FLR 476, para 28, and, most recently, by Baroness Hale JSC in In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2012] 3 WLR 1484, para 36.
  1. Thus far, as will be appreciated, the authorities to which I have referred have mainly related to children. Do the same principles apply in cases in the Court of Protection relating to adults? To that question there can, in my judgment, be only one sensible answer: they do.

 

 

Part of the appeal was that although the original judge had drawn his attention to those authorities and the test, in the discussion passages of his judgment it appeared that he had reversed the test and begun talking of there being no strong reason why the mother needed to see the documents  (as can be seen from the above guidance, the test is the opposite – it has to be demonstrated why it is necessary that she SHOULD NOT see them)

 

  1. First, Mr Fullwood submits that Judge Cardinal misdirected himself, failing in fact to apply the law as he had summarised it. He points to the passages I have set out in paragraph 34 above where Judge Cardinal says “I do not consider that RC needs to see the social work evidence” and, again, “I do not take the view at this stage that it is necessary for the … social worker’s evidence … to be disclosed”, submitting that this is to put the point the wrong way round. The question, he submits, and I agree, is not, is it necessary for RC to see the documents? The question is whether it is necessary (in CC’s interests) that RC does not see the documents. Now particular phrases in a judgment are not to be torn out of context. The judgment must be read as a whole, giving it a fair and sensible reading, not a pedantic or nit-picking reading. Are these particular passages on which Mr Fullwood fastens, passages which taken on their own are wrong, saved by the rest of the judgment and, in particular, by Judge Cardinal’s concluding summary quoted in paragraph 25 above? I cannot be confident.
  1. Second, Mr Fullwood submits that in any event Judge Cardinal has given inadequate and unsustainable reasons to justify his conclusion. There are a number of points here. There is no differentiation between the obvious necessity to prevent the disclosure of anything that might lead to CC being identified or traced by RC and the far less obvious necessity to restrict RC’s access to other personal information about CC. It is surprising, even allowing for what Judge Cardinal says are the difficulties in redacting the material, that it is necessary that nothing in the three witness statements should be disclosed. After all, a large amount of sensitive personal information about CC was disclosed to RC in the redacted psychologist’s report. What is it about all the information that makes it necessary not to disclose it? And how does this square with the fact that Judge Cardinal thought that RC’s counsel should be able to see it? It may be that, with fuller explanation, Judge Cardinal’s decision could be sustained, but as it stands it provides inadequate justification for such a drastic restriction of what RC can see.
  1. Mr Fullwood’s third complaint is that Judge Cardinal has in effect introduced a closed material procedure, which, he says, was inappropriate in this particular case and is in any event, as a matter of general principle, inappropriate in the Court of Protection. I am not sure that it is helpful to categorise what Judge Cardinal did here as a closed material procedure as that expression is more generally understood. I take him to have been doing no more than has been hallowed by long practice in these cases and now has the weighty imprimatur of Baroness Hale. Whether, on the other hand, it was appropriate in this case is another matter. I have already alluded to the deficiencies in Judge Cardinal’s reasoning. But there is another point. As Moses LJ made clear, this is a process dependent upon counsel’s agreement – an agreement which counsel for the reasons given by Moses LJ may feel unable to give and which in any event the instructions from his lay client may prevent him giving. Judge Cardinal does not seem to have explored these aspects of the matter. Nor, for that matter, does he consider other possible solutions: allowing RC to read, but not to borrow or copy, suitably redacted copies of the documents, or directing that there be disclosure to her of a document setting out the gist of what is being said by the social workers.

Conclusion

  1. In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal’s order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment

 

 

The other matter of interest was that the original Court had ordered that the documents in question could be seen by mother’s legal team (presumably to reassure themselves that there was not a “smoking gun” being kept back from them) but on the basis that the documents or their contents were not to be shared with the mother.

 

That puts the lawyers in a difficult spot, and the President makes it plain that such an arrangement

 

(a)   can only happen with the agreement of the legal team and not be imposed upon them, and

(b)   they can only agree if they have instructions to do so, and

(c)   They can only agree if they are satisfied that they can do so without any damage to their client’s interests (which is, of course, bloody difficult when they don’t know what might be contained in those documents)

 

  1. It is apparent from Official Solicitor to the Supreme Court v K and Another [1965] AC 201 that disclosure limited to a party’s legal representatives was already by then a recognised practice in wardship. It is mentioned by Sir Nicholas Wall P in A County Council v SB, MA and AA [2010] EWHC 2528 (Fam) , [2011] 1 FLR 651, para 37. There can be no doubt as to the legality of the practice: see, for example, R (Mohammed) v The Secretary of State for Defence [2012] EWHC 3454 (Admin). But there are obviously potential difficulties, some identified in a characteristically thoughtful discussion in the June 2013 issue of the Thirty Nine Essex Street Court of Protection Newsletter of Judge Cardinal’s judgment in this case.
  1. Importantly, such disclosure cannot take place without the consent of the lawyers to whom the disclosure is to be made; and they may find themselves, for reasons they may be unable to communicate to the court, unable to give such consent. Moreover, they cannot consent unless satisfied that they can do so without damage to their client’s interests. As Moses LJ said in Mohammed (para 28):

“The free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client’s case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.”

 

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Enjoy the (right to) silence

Posted on January 24, 2014 by suesspiciousminds

 

Another case on the right to silence, and the frustration of the family Court in having parents refuse to give evidence or file a “no comment” document on the basis of legal advice given by their representatives in criminal proceedings.

I have written about this a few times

 https://suesspiciousminds.com/2013/02/04/is-there-a-meaningful-right-to-silence-in-care-cases/

 Essentially it is that s98 of the Children Act 1989 has two key provisions – that a parent cannot refuse to give or provide evidence on the basis that to do so might incriminate them  AND vitally that such evidence that they give many only be used in prosecutions against them for perjury and nothing else.

 Over recent years, that principle has been rather eroded, as the family Courts have become more and more amenable to requests by the police for disclosure of care proceedings AND more importantly, changes to the criminal law which allow for inconsistent previous statements to be admissible in evidence.  S 119  of the Criminal Justice Act 2003  (which never really seems to get tackled when the family courts look at this issue)

 That is a backdoor by which admissions made in care proceedings could be evidence in criminal proceedings if they are an inconsistent statement. The s98 protection may prevail, and a criminal judge rule that it overrides the later legislation which permits inconsistent statements to be adduced as evidence, but it may not. When your client might be looking at an eight year prison sentence, that’s not a risk you want to be taking.

 As a lawyer, it is part of your job, if a client says “Is there any risk in my doing this?” to advise them whether there is or not, including whether it is a grey area.  [It is not necessarily a question of telling them NOT to give a statement in care proceedings, but you have to advise them that doing so involves a risk to them.  HOWEVER, note this judgment, which now makes it plain that it is a contempt of court for a lawyer to tell a parent not to make a full and frank account in their evidence in the family Court, even if that lawyer’s job is to defend them in the criminal court]

 That means that if a parent in care proceedings gives an honest account of what went on, as they are encouraged to do and on the basis of the s98 protection, it may come back to haunt them in criminal proceedings and they are unwittingly potentially waiving their right to silence.

 It is little surprise then that where the issues in question relate to serious criminal offences where a significant custodial sentence might await a parent if convicted, that those representing the parent in criminal proceedings are keen for them not to incriminate themselves.

 One of the other problems is that there are relatively few lawyers who are utterly at ease with both the criminal justice system and the family justice system – so criminal lawyers are nervous and wary about anything that goes into the family court, and family lawyers aren’t going to tell their client to go against the advice they’ve been given by their criminal lawyers.

 The family Courts have been less keen on the parent taking that legal advice, rebuffing the argument in various appeals and also last year committing a man to prison for failing to give evidence in a family court on legal advice.

 https://suesspiciousminds.com/2013/09/19/inconsistent-statements-and-eating-more-porridge-than-orinoco-womble/

 

[So actually, the risk is twofold – if you file the statement it is possible that the prosecution get it and use it as an inconsistent statement, and if you don’t you can be sent to prison by the family court.  If you are thinking that it seems unfair that you might get sent to prison for trying to exercise your right to silence because the framers of legislation left a grey area, then I agree with you]

The family Courts have AGAIN had a crack at this thorny issue, which is not going away, and will not go away until either a very senior criminal court or  family Court address once and for all whether s98 genuinely does offer protection against prosecution for anything other than perjury.

 Part of the problem here is that we have two statutes in conflict with one another – it is all very well for the family courts to think that s98 Children Act 1989 beats s119 Criminal Justice Act 2003, but it ain’t necessarily so.

 

A Local Authority v DG and Others 2014

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/63.html

 Exactly this issue arose – father in care proceedings was directed to file a response to threshold, his legal advice was not to waive his right to silence and that if he was to file anything it should be very very anodyne.

 The Judge was unhappy about the whole debacle, and was  critical of the advice given to the father  although understood why it had been given.

 

The Court was asked to provide some guidance, which it duly did. It does not resolve the ultimate issue of whether it is safe to make admissions in care proceedings or not, but it does clarify WHEN that argument should be heard.  (Clue, if you guessed “When it is too late”, you would be right)

 

40.   Guidance

  1. The interplay between linked care proceedings and criminal proceedings was considered extensively by Wall LJ, as he then was, in Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and by Judge LJ, as he then was, in R v. L [2006] EWCA Crim 1902, [2006] 1 WLR 3092. The guidance I propose to give is intended to complement the guidance given and observations on best practice made in Re W and R v. L.
  1. I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:

a. when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;

b. the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;

c. a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;

d. it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;

e. It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all;

f. the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court’s determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

g. the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

h. nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.

 

 

Well, that’s helpful in a way, because the Court makes it plain that the parent HAS to file a statement, HAS to comply with the orders of the family Court, HAS to do so on time (even where this means that they are filing a statement that might later be contradicted by their defence statement)  and that the TIME to argue about whether or not the statement might prejudice their right to silence is when the police ASK for it and not before.

 

At least there is a clear process and procedure now. But it still puts the parent and their legal team out on a limb – this is “Tell us everything now, and we’ll decide later whether it will be shared with the police”

 

This isn’t an easy situation, and I have sympathy for all involved, including the Courts. For me, it is a real shame that when this issue got up to the Court of Appeal, the Court of Appeal didn’t just grasp it and make it plain that s98 stands, exactly as written, and that nothing a parent says in evidence in a family Court can be used against them in a criminal court, other than in a prosecution for perjury.

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