Split-hearings and “non-accidental injuries”

Posted on January 24, 2014 by suesspiciousminds

The Court of Appeal decision in Re S (A child) 2014.

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/25.html

 

 Very quick summary, to persuade you that this case is worth reading

 

  1. Guidance on whether split-hearings are needed and when (hint, the new Court of Appeal isn’t keen on them any more – expect to be taken to this case during any Case Management Hearing where the issue is physical injury or sexual harm)
  2. Confirmation that for “findings of fact” the appeal test is PLAINLY WRONG, not wrong.
  3. Really important stuff about threshold criteria and notably criticism of the phrase “non-accidental injuries” and the need to go to the statutory construction of the threshold criteria

 

If you aren’t familiar with the term, “split-hearing” is what happens when there is a narrow (although sometimes complex) factual issue to determine in a case involving children, and that resolving that factual dispute is done at a hearing with evidence and cross-examination and a judgment AND THEN the case goes on to a hearing to decide what the Court should do about those facts that have been proved or disproved (what is usually called the Welfare stage)

 

For the majority of children cases, the hearing about the factual dispute and the welfare dispute (What happened, what should happen next) are all dealt with together, but there are some cases where historically the hearings have been split in two (hence “split hearing”) and had a hearing to decide “What happened” first and then “What should happen next” later.

 

Indeed, for a while, split-hearings were very much in vogue and the higher courts were keen on them and critical where they had not happened. There are a few reasons for that

 

  1. If a parent is accused of injuring a child and it can be proved that they didn’t, the sooner that happens the better
  2. Everyone can plan for the future of the child KNOWING what happened, rather than speculating about what might have happened and ending up with plans that are “If X, then what should happen next is…. But if Y, then what should happen next is”
  3. If the Court finds that one parent injured the child and the other didn’t, then the parents have an opportunity to think about whether they want to stay together or split up
  4. If the Court finds that the parent injured the child, there can then be an assessment of whether that is likely to happen in the future – maybe there would be treatment, maybe having had the Court make those findings frees people up to talk about how the injury happened and those discussions can potentially identify the stress points and triggers and avoid it happening in the future.

 

Well, over the last year, it seems that the Courts have been getting cold-feet about split-hearings with hints being dropped that they were being used in too many cases and that Courts must be carefully to ensure that they are only used in cases where it really helps.

 

And of course, nobody has a real clue how a “split-hearing” works in the rigid 26 week timetable – the PLO guidance is clear that the fact that a split hearing is needed or the case involves physical injury isn’t itself a reason to go beyond 26 week. At the moment, it is a struggle to get ONE hearing done within 26 weeks, never mind two.

The Court of Appeal looked at this in Re S, and go the farthest that they have done since the concept of “split-hearings” was introduced to suggest that they have had their day.

 

To give the background, the care proceedings were issued because of an injury to the head of a one year old child, resulting in two skull fractures. The Local Authority considered that the parents had caused/contributed to the injury (more of this later), the parents saying that this was an accident or some other medical explanation.

 

In the case, there was an account of the evening leading up to the injury which was demonstrated to be false  (as the Judge and the Court of Appeal remind us, just because a person is caught out in a lie on one thing does not mean that they are lying about everything else)

 

This was an appeal by the Local Authority, because the Judge concluded this

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

They lost the appeal, the Court of Appeal found that it was misconcieved and there was no reason to interfere with the findings. [In essence, the LA had put all of their eggs in the “deliberate harm” basket and didn’t satisfy the Judge of that, and hadn’t sufficiently explored the possibility that there could have been some form of negligence or carelessness without a deliberate element] 

 

Guidance on split-hearings

 

 

  1. It is by no means clear why it was thought appropriate to have a ‘split hearing’ where discrete facts are severed off from their welfare context. Unless the basis for such a decision is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e. whether a statutory order is necessary) to be made more expeditiously. The reasons for this are obvious: to remove consideration by the court of the background and contextual circumstances including factors that are relevant to the credibility of witnesses, the reliability of evidence and the section 1(3) CA 1989 welfare factors such as capability and risk, deprives the court of the very material (i.e. secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made. It may also adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fade of the detail and nuances of the evidence that was given weeks or months before.
  1. I ought to emphasise for the avoidance of doubt that although parallels can be drawn between the use of fact finding hearings in public and private law children proceedings, the appropriate and measured use of fact finding hearings in private law proceedings which are often safety cases, for example involving recent domestic abuse between parents, are not the subject of this court’s consideration in this judgment. An example of this court’s guidance in relation to those proceedings can be found in In the matter of C (Children) [2009] EWCA Civ 994. In private law proceedings it is the court that is defining an aspect of parental responsibility in its determination of the arrangements that are put in place for the child and findings of fact are appropriate, where necessary, to inform that process by reference to the factors in section 1(3) of the 1989 Act and in particular where safety issues have arisen which justify the court’s interference with the article 8 ECHR rights of the family members. In public law children cases where a care order is in issue, the court is being asked to sanction an agency of the state, namely the local authority, being permitted to exercise parental responsibility for a child. The jurisdiction in the court to undertake that task has to be based upon the existence of facts (primary and / or secondary) that satisfy the threshold in section 31 CA 1989. Accordingly, concessions or findings of fact relevant to the threshold question will always be necessary in public law cases alongside such further findings of fact as are necessary to inform the welfare evaluation.
  1. It ought to be recollected that split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate. The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. The justification comes from an era before the present Rules and Practice Directions came into force and can safely be discounted in public law children proceedings save in the most exceptional case.
  1. Social work assessments are not contingent on facts being identified and found to the civil standard (see, for example Oldham MBC v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597 and Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 per Scott-Baker J at [34] and [35]). That is the function of the court not a social worker (Dingley v Chief Constable of Strathclyde Police [2000] UKHC 14 per Lord Hope of Craighead at [120] and [122]). Social work assessments are based upon their own professional methodology like any other form of professional risk assessment. In care cases, an appropriate social work assessment and a Cafcass analysis should be undertaken at the earliest possible opportunity to identify relevant background circumstances and context. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider (see, for example, In the matter of W (Children) [2009] EWCA Civ 644 at [33]).
  1. It may be helpful to highlight the fact that a decision to undertake a split hearing is a case management decision to which Part 1 of the Family Procedure Rules 2010 [FPR 2010] and Pilot Practice Direction 12A ‘Care, Supervision and Other Part 4 Proceedings: Guide to Case Management (the PLO)’ apply. A split hearing is only justifiable where the delay occasioned is in furtherance of the overriding objective in rule 1 FPR 2010, that is:

i) as a consequence of active case management by the court which includes in accordance with rule 1.4:

“(a) setting timetables […],

(b) identifying at an early stage […] the issues,

(c) deciding promptly (i) which issues need full investigation and hearing and which do not; and (ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

[…]

(i) considering the likely benefits of taking a particular step justify the cost of taking it;

(j) dealing with as many aspects of the case as it can on the same occasion;

[…]; and

(m) giving directions to ensure that the case proceeds quickly and efficiently.”

ii) in accordance with the child’s welfare having regard to the timetable for the child within the meaning of that concept in para [5] of pilot PD12A; and

iii) in accordance with the timetable for proceedings within the meaning of that concept in para [5] pilot PD12A.

  1. On the alleged facts of this case, there was no discrete issue which was appropriate for trial without its social or welfare context and delay was the inevitable consequence of the decision to have a split hearing. Given that by rule 1.3 FPR 2010 the parties have a duty to help the court to further the overriding objective, it is all the more surprising that one of the submissions made to this court was that a split hearing was inappropriate. That professional analysis should have been offered to the court below. The benefits and detriments of such a course, if proposed, should be analysed by the children’s guardian. In future, a decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the Case Management Order alongside what has always been the good practice of the court which is to settle the issue to be tried on the face of the order

 

 

Of course it must be right that the Court ought to have clear thinking and rigour before listing a split hearing and deciding what the benefits are, that’s hard to argue against. But this seems to be a heavy hint that split hearings will rarely be effective.

 

I have to say that I struggle with this – there clearly was a discrete issue here. If the parents had done nothing wrong, there was clear advantage for everyone in deciding that as soon as possible. If there had been some wrong-doing, then it was important to determine what that was and allow the parents to make decisions about what they put forward as the best future care of the child at the earliest opportunity. 

 

This is exactly the sort of case that split-hearings were meant for, and one has to ask – if the Court of Appeal think a case like this isn’t right for a split hearing, is one left with any split-hearings in public law cases?

 

Probably not.

 

So, at a final hearing on week 26, when the Court decide that a child suffered a skull fracture and that this was caused by dad but mum didn’t know about it and did nothing wrong, what exactly is supposed to happen?

 

Are the Courts going to say that mum ought to have separated from dad and gone it alone months before the Court made its decision? Or is mum to be given half an hour with her lawyers to make a decision whether to leave dad or not?

 

 

 

Non-accidental injury

 

Another interesting and potentially important development in the case is the discussion about “non-accidental injury”.

 

What the Court was interested in was whether this term was being used in a sloppy, “catch-all” fashion, and indeed being used differently by the medical professionals and the social work professionals.

 

When the phrase “non-accidental” is being used, is what is meant simply that the injury is not a result of an action, or does it mean that the parent is culpable, or that the injury was caused deliberately? 

 

It seems that the Local Authority in the case were putting the case on the basis that if the medical evidence was that this was a “non-accidental injury” that the parents had thus inflicted the injury.

 

Going back to the judicial finding, it is obvious that the Judge at first instance (and the Court of Appeal did not interfere with his discretion) did not make THAT finding

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

 

On the face of it, that seems unsatisfactory to both sides. If there was an accidental or “innocent” explanation for the injury, then the threshold criteria ought not to have been made out –  whilst the skull fractures were significant harm, the harm is not attributable to the care given or not given by the parents not being what it would be reasonable to expect a parent to give. So  from the parents viewpoint, why did the Judge find that threshold was met? And from the LA viewpoint, if the Judge did not consider that there was an accidental explanation and found threshold met,  how had the injuries occurred? How can anyone plan for the future on that basis?

 

 

 

Is there anything else that the Judge found that helps in understanding what happened to this child, and from there to see whether there is any future risk?

 

  1. It was a conceded fact before the judge that a false history of how the harm occurred had been given at the hospital. The false history was subsequently repeated in various degrees of detail to suggest that the child had been in a bouncer suspended from a door in the flat at a height of about half a metre from the ground when a strap broke, the bouncer fell and the child hit her head. That false history was discarded by the family when the child’s father voluntarily went to the police and said that the history previously given was not true. It was also discovered that the strap had been cut (it is said by grandmother) to make it look like it had snapped. A new history was then proffered by the family which was given to the judge in evidence. The evidence was that father was standing holding S in the kitchen behind mother and grandmother when S wriggled and in some way fell to the floor.
  1. With the possible exception of grandmother’s partner, who was not said to have witnessed anything of relevance, the judge found the family’s account of what happened on the night in question including the timings to be wholly unconvincing. He regarded the grandmother as a particularly unconvincing witness and was satisfied that father, mother and grandmother had conspired to attempt to exculpate father from what had occurred.
  1. The judge’s ultimate finding was that the grandmother and the parents had lied to the hospital and again to the police and the court i.e. both histories were untrue. He found as a fact that the court had not been told the truth about what had occurred. He found as a fact that something happened to S in the care of her parents (i.e. that the harm was not a true accident) but did not find that either of the parents deliberately injured their child. Having read and heard the evidence he was not satisfied on the balance of probabilities that either parent had deliberately inflicted the injury. That was not a positive finding that exculpated the parents or indeed any other adult. The case management order which purported to record the findings is erroneous if it was intended to suggest otherwise.
  1. The judge’s conclusion left open the question of how the injury occurred. The judge put down a marker to himself for the future welfare hearing that what had happened “may well involve negligence”. It is clear from the terms of the judgment that he did not find that the parents or any of the adults had been negligent but he opened up that possibility no doubt for future examination in the light of any other evidence that the court may consider at a subsequent hearing.

 

 

This is what the Court of Appeal had to say  [underlining mine for emphasis]

 

  1. It may be obvious to the interested bystander that there was a theoretical range of possibilities relating to what had happened to S: from accidental harm through to deliberate infliction of injury, but that was not the way the case developed in evidence. The neuroradiologist who gave evidence to the court gave his opinion about the range of possibilities in the following terms:

“The skull fracture can occur as a result of accidental injury. In this context fracture most commonly arises from a fall from a carer’s arms and results in an un-displaced unilateral fracture most often of parietal or occipital bone. Skull fractures may also occur as a result of impact in the context of non-accidental head trauma. If the injury is non-accidental, a fracture may also be displaced, comminuted, involves (sic) more than one bone or if there are multiple fractures in the same bone, it is more likely that the injury is non-accidental in origin”

  1. The local authority chose to pursue deliberate infliction of injury with the witnesses at the hearing and both at that hearing and before this court equated the term non-accidental injury with infliction. The local authority submitted that infliction was not necessarily deliberate infliction, but it is by no means clear that anyone else defined the terminology in that way and that characterisation of the evidence ignored the statutory formulation that the local authority needed to prove. This court was helpfully taken by counsel to the questions put to the witnesses which appear to demonstrate that the local authority assumed that ‘non-accidental injury’ if proved would be deliberate. They did not adequately explore the circumstances of the adults’ care other than to cast doubt on both of the histories that had been given nor did they explore what has come to be known as the attributability element of section 31(2) of the Act. Whether there had been reckless or negligent acts and omissions or what the neuroradiologist meant by the terminology that he had used or the causative mechanisms he had described remain in doubt.
  1. This court has sympathy both with the judge and the advocates in a situation where the direct evidence from those who were present is false and the local authority rightly assumed the burden of demonstrating that. In doing so, however, they appear to have lost sight of the rest of the case and of the statutory formulation in section 31(2) of the Act.
  1. The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
  1. The court’s function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.
  1. The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.
  1. This court has not been addressed about the volume of guidance in materials issued by professional bodies (including the medical Royal Colleges) and Government which makes reference to ‘non-accidental injury’. Indeed, counsel for the local authority went so far as to submit that none of that material provided a generally accepted medical or legal definition of the term. Whether that is right or not, it is not necessary for this court to analyse that material because all that is required in a case of this kind is for the court, legal practitioners and experts to have regard to the statutory formulation with which the court is concerned. If other terminology is used in evidence its meaning should be precisely ascertained so that the court knows what is being alleged and advised.
  1. In this case, the judge was careful to sever the question of whether the harm was an example of a true accident i.e. a chance happening that is by definition unexpected and unintentional, from the question of attributability which in the circumstances of this case was said to include perpetration of harm and lack of protection from harm. The local authority’s case was of (deliberate) infliction by one or the other parent and that was the case they put. They did not succeed in establishing that case. No other possibilities were sufficiently examined to enable the judge to make conclusions upon them. The medical expert had left open the possibility of an accidental cause, albeit that it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible. Accordingly, there was no inconsistency between the findings and the evidence and the local authority’s description of the findings in the grounds of appeal are misconceived.
  1. The judge examined what were conceded before him to be the false explanations for the injury given by those who took S to the hospital which were subsequently repeated by other members of the family and also what was said to be the true history of the events of the night in question which he decided was also false. He directed himself to consider that there may be innocent explanations or explanations that do not attract responsibility for telling an untruth about a fact in issue: the so called Lucas direction (R v Lucas [1981] 1 QB 720). Far from failing to consider drawing an inference of attributability from the repeated lies that were told, the judge overtly considered the options and having given himself a Lucas direction concluded that the lies were more likely to be related to their inexperience as parents. Having heard the parents in evidence the judge declined to draw the inference that they had deliberately inflicted injury but did draw the inference that they had failed to protect S by delaying the obtaining of medical treatment.

 

 

There is a big hint here for advocates, particularly Local Authority advocates that in any case where harm is disputed, one has to avoid tunnel vision and just exploring the binary possibilities  (the parents deliberately injured the child v this child had an accident which simply could not have been helped) and to explore all of the middle ground, and focus particularly on not just the harm but how that harm might, or might not, have been attributable to the parents care.

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Transparency and Facebook

Posted on January 24, 2014 by suesspiciousminds

This is a County Court case, dealing with some of the transparency issues that I’ve been writing about recently, and highlights that there are going to be teething problems as the Courts move from very secret to fairly open. 

[If we were moving to 100% open where there were no restrictions at all, the lack of clarity about what is ‘direct identification’, what is ‘indirect identification’ and what is neither, wouldn’t be such an issue, but at the moment, given that what the Courts are prohibiting is direct or indirect identification of the child and linking that to identification that that particular child had been the subject of Court proceedings, not being clear about what is meant by those terms is no longer helpful.]

 

Re B (A Child) 2014

 

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

 

 

The case involved an application by the Local Authority (Staffordshire) for a Reporting Restriction Order  – given that Staffordshire were the LA who lost so badly on this issue when they came before the President in Re J they must have been fairly nervous about making the application.

 

The child is 2 years old and on 23rd May 2013 the Family Proceedings Court made her the subject of care and placement orders.  There had been extensive assessments of the problems faced by these parents.  The mother and the father came to the courageous and wise decision that they would not oppose the local authority’s plan for their child to be placed for adoption.  The maternal grandmother had a different view and she made an application to the court for an order that she should care for the child.  The grandmother was also the subject of extensive assessment which concluded that the child should not be placed with her.

 

What happened after that final hearing was that the grandmother did not accept the outcome in the way that the parents had. She was against it, and not afraid to say so.

 

She appealed to the County Court, and lost, and appealed to the Court of Appeal and lost.

 

The grandmother is clearly very disappointed by this outcome and she has

complained that the outcome is unfair.  No one suggests that the grandmother

should be prevented from commenting on this saga or from criticising the local

authority or the court.  However, the local authority says that the grandmother

has gone beyond that.  They say that she has caused harm to the child by using

her name and her photograph.  Examples have been shown to me.  I have seen

the grandmother’s Facebook postings in the bundle at C13, C15 and C17.  There

is a further very relevant Facebook posting at the back of the local authority’s

written submissions, an entry which I am told is dated 13th December 2013 and

starts by an indication that it was posted 11 hours ago.  In addition the

grandmother has started an online petition bearing the name and photograph of

the child.  Details are in the bundle at C17.  The grandmother has contributed to

an internet radio station where there was a discussion forum to which the  

grandmother contributed the name of the child.  This is accessible from a link

which appears on page C19 of the bundle.

6.                  The local authority’s application for a reporting restriction order seeks

to prevent this identification of the child but otherwise does not seek to prevent

discussion, comment and criticism of the local authority and court processes.

So it is only anything that would directly or indirectly identify the child which would be prohibited.

 

That of course was easy in an age where the only people who could publish anything were newspapers – they would just be told “you can print the story but not the name” and would decide whether sans the name the story would have sufficient public interest to make it worth publishing. And the sanction for breaking that restriction would be fairly simple – it is easy to dish out a fine to a newspaper, who can pay the fine.

 

But we now live in a different age, one where anyone who wants to publish anything can do so. For example, this very blog that you are reading. Anybody who wants to can set up a blog and write about what they like. Or they can use their Facebook page, or Twitter, or join an internet chatroom or post comments on Mumsnet or other similar sites.

 

The considerations are different for a journalist or editor whose natural tendency is to comply with the Court’s wishes or orders, and that of an aggrieved person who is personally and fundamentally affected by the decision and has lost all faith in the Court.

 

The most natural place for most people these days, to express their views is on their Facebook page. The grandmother, of course, doesn’t have to give the surname of the child to have indirectly identified them if she writes about them on her Facebook page, because the Facebook page directly identifies HER, and her comments directly link the children to HER.

 

 

   The evidence presented to me leaves me in no doubt that the grandmother has embarked upon a campaign to undermine these rights enjoyed by the child.  The Facebook entry of 13th December 2013 attached to the written submissions can only be described as a call for others to help a search for the depicted child in her new adoptive placement.  The accompanying text and other text refer to the child as a stolen child but by that date the Court of Appeal had determined that the plan for adoption could not be challenged.  This kind of publication is very harmful at a number of levels.  It is harmful to the child in the present if the search established her whereabouts and led to disturbance and destabilisation.  It is harmful in the present even if the search does not succeed in that it exposes the prospective adopters to anxiety at a time when the child’s best interests would be served by them accepting her into their household from a standpoint of emotional stability.  It is very harmful to the child in the future in that these internet postings can remain so that when a little older and accessing the internet herself the child may encounter these destabilising messages and find her own wellbeing undermined.  Alternatively these postings might be accessed by friends of the child and form the basis of comment or even bullying.

11.              I remind myself that the courts of the land at the highest level have determined that placement for adoption is the only appropriate outcome for this child and an outcome which is inherently lawful.  In these circumstances it is clear that Article 8 and Article 10 are in conflict.  Both represent important rights.  However, as so often in these cases, a proportionate balanced reconciliation emerges.  The right to freedom of expression does not need the elements of personal identification which are so harmful.  The right to respect for family and private life does need a prohibition to be placed upon identification but does not need to prevent all comment and debate.  It is clear to me that the proportionate outcome is to allow discussion but to prevent identification

 

The Court balanced the article 8 right to private and family life for the child against the article 10 right to freedom of expression, and determined that it was right that the grandmother should be able to debate and discuss the case, including the facts of the case (and including within that scope her own view of the case, which might be at variance to the Court’s own conclusions) BUT that she should not be allowed to identify, directly or indirectly, the child.

 

 

There is one area in which I find the present case to differ from the President’s case of Re: J [2013] EWHC 2694 (Fam).  In that case the restraint of publication of photographs of a tiny baby was considered to be inappropriate.  The present case I find to be very different.  This child is significantly older and correspondingly easier to identify from photographs.  Indeed, the grandmother has used a photograph as part of her campaign to seek out the whereabouts of the prospective adoptive placement.  This is one of the most harmful aspects of the case and an element from which the child needs protection.  Carrying out the same balancing exercise as did the President I reach a different conclusion and find that the publication of photographs must be restrained alongside the publication of names.

 

 

 

I shall conclude with a note addressed to the grandmother. I am sorry that she has chosen not to attend court today. There may be points which she could raise which are relevant to my decision. I have done my best in her absence to anticipate them. However if there are other points I invite her to apply to the court. The worst thing she could do would be to act in breach of this order and only when steps are taken to enforce the order against her, to raise points which should have been raised today. The order does not prevent campaigning, discussion or debate. However as in many other cases, these must not include the use of the true names or photographs of the child as this would be harmful to her.

 

 

 

The judgment does leave me in some doubt, and sadly the precise terms of the Reporting Restriction Order are not set out to aid in interpretation, as to whether the grandmother can continue to post commentary or discussion about the case on her own Facebook page subject to NOT naming the child or including photographs, or whether doing that commentary or discussion under her own name indirectly identifies the child.

 

Likewise, if she posts an article about the case on a website, using her own name but not naming the child, is that okay? What if she puts up a photograph of the PARENTS but doesn’t name them? What if somewhere else in her Facebook page, there’s understandably a photograph of her grandchild?

 

As we get farther and farther along the transparency route, the vagueness about what would constitute indirect identification of the child in these sorts of cases becomes less and less satisfactory.

 

Lawyers need to be able to know where the boundaries are drawn to properly advise their clients how not to cross them.

 

People who are unhappy about outcomes of court proceedings need to know where the lines are that they should not cross in talking about the case

 

Newspapers and moderators of online discussion groups need to know where the lines are so that they don’t inadvertently cross them

 

Local Authorities need to know where the lines are so that they don’t end up warning or threatening legal action for things that they might wrongly think is a breach

 

Guardians need to know where the lines are so that children who are capable of understanding know what can and cannot be said about them in the press

 

And Courts need to know, so that these things can all be transparently expressed.

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Assault committed in Court – the Ramet case

Posted on January 22, 2014 by suesspiciousminds

You may have come across this in the newspapers when it happened a while back, that during a Court hearing relating to a dispute over children, the father assaulted the mother and when the Court Clerk intervened, the father assaulted him as well.

 The committal hearing for an application to commit Mr Ramet for contempt in the face of the Court was listed to be heard by the President of the Family Division and that judgment has now been published.  (Mr Ramet can be named, as happens with all committal cases, even though that indirectly identifies the children who are the subject of proceedings)

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/56.html

 

In terms of the facts of what happened, those are not in dispute

 

  1. I return to Southend. Judge Roberts has been describing Mr Ramet, his evidence and his closing submissions:

“he made no reference at all to the overwhelming mass of evidence, which was critical of his own conduct … [he] has focused on his own feelings … and finds it very difficult to see any fault on his own part.”

Having referred to a report by a CAFCASS officer in 2007, she continues “If Mr Ramet had listened to that advice then, and since then, the situation may not be as it currently is. He did not”. Having referred to another expert report from 2011, she says “I accept all this expert evidence, and it is of huge regret that that advice was not followed.” She now turns to the mother. She says

“I found [her] to be sensible, reasonable and thoughtful. I have read the older reports, and it is clear to me that she has listened to much of the advice she has been given.”

At that point the transcript abruptly ends. What has happened?

  1. Mr Ramet has got up, as if to leave court, but in fact he attacks the mother, grabs her, repeatedly punches her about the head with his clenched fist, grabbing her hair and kicking her after she has fallen to the floor. The court clerk gallantly goes to her assistance, being assaulted by Mr Ramet for his pains. Mr Ramet is restrained. Order is restored. Judge Roberts adjourns. Mr Ramet is arrested. He is charged and appears in the Magistrates’ Court, where he indicates that he pleads guilty. He is remanded in custody for trial in the Crown Court.

 

The President begins the case by talking about how long this particular private law case has been going on (ten years – the parents separated in 2003 and began the litigation immediately, and the child who was three is now thirteen) and makes reference to the many other authorities that deplore that such important issues are taking so long to resolve and that more must be done.

 

Prior to the committal proceedings, Mr Ramet appeared in the criminal court charged with assaulting the mother, and assaulting the court clerk. He pleaded guilty to both offences and received a 20 month prison sentence.

 

The Judge in the Crown Court was alive to the sensitivities of the family court, the frustrations that arise and the need for parties to contain their understandable high emotions

 

15.   “It is hard to imagine any case for assault taking place within a courtroom which did not cause it to be within the most serious of that type of offence and the reason is quite clear.

In a criminal court it is entirely appropriate to be acting in a secure atmosphere. There is a dock. There is a considerable presence by way of security, if necessary. Family proceedings cannot operate in that way. The family court cannot operate in that way. It is, of its very nature, less structured, somewhat less formal, and in cases where the emotional temperature is inevitably high. Parties are going to be in close proximity to each other. That increases the risk of matters such as that which occurred on this occasion happening. It also increases the responsibility of people involved in such proceedings to keep their emotions in trim, to act with appropriate dignity, not to lose their temper and the court will always act by way of deterrent sentences to ensure that proceedings which needs to be conducted in a proper dignified and non-violent matter. Where they are interrupted, the courts will act entirely appropriately to punish those who act in that way.”

 

The President indicates that he agrees entirely with these remarks.

 

 The interesting aspect in this case, over and above it being a clear marker that persons who commit assaults within a court room can expect to be imprisoned as a result, was how the Court dealing with the committal for contempt should proceed, in light of the fact that a criminal court had already dealt with, and sentenced, Mr Ramet for the very same actions.

 

  1. The other point on which Mr Jerman addressed me was as to the approach to be adopted by the family court where, as here, the same conduct has given rise to both criminal proceedings and committal proceedings, something that has been considered in a number of authorities. The first five decisions, in Smith v Smith [1991] 2 FLR 55, Hale v Tanner (Practice Note) [2000] 1 WLR 2377, Director of Public Prosecutions v Tweddell [2001] EWHC Admin 188, [2002] 2 FLR 400, Lomas v Parle (Practice Note) [2003] EWCA Civ 1804, [2004] 1 WLR 1642, and H v O (Contempt of Court: Sentencing) [2004] EWCA Civ 1691, [2005] 2 FLR 329, were all surveyed in masterly fashion by Wilson LJ, as he then was, in Slade v Slade [2009] EWCA Civ 748, [2010] 1 WLR 1262. I cannot improve on his analysis and do not take up time repeating what he said.
  1. All I need do here is extract a few propositions which are particularly apposite in the present case, where the criminal proceedings have already concluded:

i) First, as Balcombe LJ indicated in Smith v Smith, page 64, my task is to sentence for the contempt – the matters arising under sections 14 and 118 of the 1984 Act – rather than for the crimes.

ii) Second, I must take into account the outcome of the Crown Court proceedings. As it was put by Thorpe LJ in Lomas v Parle, para 48, “It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence.”

iii) Third, a person is not to be punished twice for the same conduct. So, as Wilson LJ put it in Slade v Slade, para 21, “the second court should … decline to sentence for such of the conduct as has already been the subject of punishment in the criminal court.” What I must do “is to sentence only for such conduct as was not the subject of the criminal proceedings.”

  1. In the light of these principles, Mr Jerman’s submission was simple and, in my judgment, unanswerable. Having regard (a) to the charges to which Mr Ramet pleaded guilty in the Crown Court and those to which he pleaded guilty before me and (b) to the way in which he was sentenced in the Crown Court by Judge Lodge, there is no further sentence that I can properly impose on Mr Ramet. In relation to the whole of the conduct with which I am concerned, Mr Ramet has already been prosecuted and sentenced. He is not to be punished twice for the same conduct.
  1. In relation to the assault on the court clerk the point is really very simple. Before the Crown Court Mr Ramet was convicted of, and sentenced for, an assault (common assault) on the clerk. Before me he is summonsed for having “hit” the clerk in circumstances constituting an “assault” within the meaning of section 14(1) of the 1984 Act. Insofar as section 14(1) involves an additional ingredient – an assault on the clerk “while in the execution of his duty” – that factor was taken into account by Judge Lodge (“insofar as the clerk to the court was concerned … this was an offence committed against those working in the public sector”).
  1. In relation to the assault on the mother, the point is perhaps slightly more complex but the final outcome is the same. Before the Crown Court Mr Ramet was convicted of, and sentenced for, an assault occasioning actual bodily harm. Before me he is summonsed for having “attacked” his victim in circumstances bringing him within the reach of section 118(1) of the 1984 Act. There were here, judged from the perspective of the law of contempt, two aspects to what Mr Ramet did: first, there was the disturbance in the court room – a contempt in the face of the court irrespective of the identity of his victims; second, there was the retaliatory attack on the mother, as his opponent in the proceedings, which is a criminal contempt of court irrespective of where it occurs. Now whatever the ambit of the statutory contempt under section 118, a matter on which there is no need for me to express any view (though see R v Bloomsbury County Court ex p Brady (1987) Times 16 December), it is clear that every aspect of possible contempt was taken into account by Judge Lodge (“She was in a courtroom, she was there as your ex-partner in proceedings which were being taken in respect of your son … Location is the most serious aggravating feature”).
  1. I conclude therefore that it would be wrong as a matter of principle for me to impose any additional sentence on Mr Ramet. To do so would be to punish him twice for the same conduct.

 

 

If this situation does ever arise again, the timing of the subsequent litigation is important – it would seem sensible for the Crown Court case to be dealt with first, to deal with the element of the actions which are a criminal offence and only if there are residual matters which were not dealt with as a criminal offence but WERE capable of being contempt, should a committal hearing go ahead.  It is also seems that this would be quite a compelling argument to adjourn any committal proceedings where the actions complained of are also being dealt with by the criminal courts.

 The obvious negative consequence of the committal hearing is that it ends up identifying the child, who would ordinarily be entitled to anonymity. In this case, the child’s privacy and the mother’s privacy was lost, to little tangible benefit, given that the criminal court had already sentenced Mr Ramet for his criminal behaviour.

 

 

(The President indicated that IF there had not been a criminal prosecution, he would undoubtedly have found that Mr Ramet had been in contempt and wished to deliver a sentence of imprisonment which was longer than the contempt powers provide for)

 

  1. Before passing from this case there are a number of other matters I need to address.
  1. The first relates to the appropriate sentencing of persons guilty of behaviour such as Mr Ramet’s. Those guilty of violent disorder in a court and those who resort to actual physical violence against a person in court can expect an immediate and lengthy custodial sentence. I agree with Judge Lodge that deterrent sentences are justified in such cases, so as to ensure, insofar as the law can, both that the proper administration of justice is not impeded and that persons attending the court can do so without fear. Where there is serious violence – such as would amount to actual bodily harm or worse – consideration should be given, as in the present case, to inviting the appropriate authorities to consider bringing criminal proceedings in the Crown Court.
  1. It is in this context that I have to express serious concerns about the adequacy – in fact, in my opinion, the utter inadequacy in modern conditions – of the statutory penalties available under the 1984 Act. So far as concerns the family justice system I accordingly invite the Family Procedure Rules Committee to consider whether there is some way in which, compatibly with the provisions of the Crime and Courts Act 2013, District Judges, Circuit Judges and Recorders can be given powers more extensive than those currently available to them in these cases.

 

 

 

The President also drew attention to the difficulties that Mr Ramet had in obtaining public funding for the committal proceedings – clearly given that his liberty was at stake, he ought to have received public funding, but the provisions for providing free legal advice for committal proceedings in CIVIL cases is problematic. The President worked out a clever way around this, which may be worth knowing and borrowing in future cases.

 

  1. I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:

“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –

…

(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”

The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings.

  1. Because this is criminal public funding, it can be ordered by the court. So, in the present case I made an order on 28 November 2013 granting Mr Ramet legal aid for solicitor and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB), to which I would invite the attention of all family judges and practitioners.

 

 

Finally, because there had been an issue with serving Mr Ramet in prison and allegations that prison staff had been difficult and had taken the papers off him before he could properly consider them, the President sets down this marker – again, it may be worth borrowing should this situation arise in other cases

 

  1. There is one final matter to which I must draw attention. As I have already mentioned, there were difficulties in serving Mr Ramet because he was in prison. Service was eventually effected by the expedient of having him brought to the Royal Courts of Justice on 7 November 2013 pursuant to a production order and served by the Tipstaff. Mr Jerman tells me on instructions that the papers were removed from Mr Ramet on his return to prison and not returned to him until a day or two before the hearing on 28 November 2013. He also tells me that there were, despite what I had said in court on that occasion, difficulties in arranging access in prison to Mr Ramet by his legal team, with the consequence that proper instructions could not be taken until Mr Ramet’s arrival at court on 17 December 2013.
  1. Recognising that I have not thought it appropriate to conduct any kind of investigation into these matters, and that I accordingly have only one side of the story, I must nonetheless record my concerns. Prisoners have a constitutional right of access to the court, the obstruction of which may be a contempt of court: Raymond v Honey [1983] 1 AC 1. Mr Ramet was facing penal proceedings before me: denial of access to the papers which the court itself, acting by the Tipstaff, had served on him and preventing adequate access to his lawyers, if indeed that is what happened, are very serious matters. I trust there will be no future occasion when I have to express such concerns.

 

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Transparency Guidance

Posted on January 20, 2014 by suesspiciousminds

You probably recall that the President of the Family Division is rather keen on transparency – he’s been saying so for many many years, he’s certainly no Johnny-come-lately on the issue, and was saying so for a long time as pretty much a lone voice.

He called for views on a proposal to publish every judgment in care proceedings decided by Circuit judges or above, and all Court of Protection judgments back in October, and those views have now been considered and the plan is going ahead.

In fact, from 3rd February, the overwhelming majority of judgments in care proceedings will be published on Bailii. These will be anonymised (by the poor saps who work for local authority legal departments, with the anonymising then being approved by the judge) and will be available for anyone who wants to read them.

I think that in principle this is a good thing – as the President has said many times, in the debate between those within the family justice system who say that confidentiality and respecting the child’s privacy is the point and those outside who say “secret courts – if there’s nothing to hide, why is it secret”  – the transparency camp have clearly won.

If we are to move the debate about family justice beyond “secret court, what have you got to hide” and into proper areas of where the family justice system is getting it wrong, and where it is getting it right, and what can be done differently, then publishing judgments is an idea whose time has come.

I am absolutely in favour of transparency and the public being able to see what is being done by the State in their name. Only by doing that can we properly test the system and to recalibrate if things are taking place that don’t have public backing, that are being done wrong. Every wrong decision in family justice is a huge tragedy, but at present we have very limited ability to see whether wrong decisions are a rarity or endemic.

 

Pink Tape writes very efficiently about the issue and the guidance here

 http://pinktape.co.uk/rants/and-suddenly-it-all-becomes-clear/

There are things that I worry about – not least being that we are going to go very fast from announcing it to doing it in 2 weeks, that the previously expressed views from children don’t seem to have played much of a part, how we prevent jurors from finding those judgments and contaminating the criminal trial,  that there doesn’t seem much in the way of safeguards about privacy (the President is of the view that as long as the name doesn’t get out, privacy of the child is preserved – I am slightly more cautious about the ability of the general public, journalists and determined people on the internet to put known facts together to be able to link Mr X with a genuine name), and a lack of clarity about the boundaries.

It is the latter one which troubles me, because I really think there are now gray areas – once the judgment is a public document, how direct does one have to be in highlighting that the person in that public document is the same as this very real person here.

For example, if what is currently forbidden is the parent (or anyone else) directly or indirectly identifying that the child in  Re B (Parents who snort Polyfilla) 2014 is called “Timmy Grout” but that publishing the judgment or facts in the judgment is fine, are any of these actions going to get people in trouble?

 

1. Pam Grout, the mother of Timmy, posts a link to the judgment on facebook, and makes no comment about it.

2. People add comments under the link saying “you were robbed Pam”

3. A member of Pam’s extended family posts a link to the judgment and says “Don’t talk to me about British justice”

4.A campaigner about family justice who lives abroad, say a resident of the Vatican posts a link on their website, hosted abroad, saying “Pam Grout was betrayed by the State, read the case here and see how the Judge stitched her up”

5. People living in England post links to that website

6. Pam Grout posts a link to the website on facebook, but with no comment, or someone posts a link on her facebook wall and she ticks “Like”

7. A person on Twitter says “This judgment LINK is awful. My friend Pam Trout had an awful experience in Court”

8. A newspaper runs a story about the case, quoting the judgment. In the comments section, someone says “Pam Grout is not a bad person”

9. A prominent tweeter posts “Why is Pam Grout trending? #innocent face”

10. An MP stands up in Parliament and says “Pam Grout is the mother in the well known miscarriage of justice that the Courts call Re B (Parents who snort polyfilla) 2014

11. Every newspaper in the land reports what the MP has said.

 

12. Or how about this – one of the children is 14 and tweets “I am the brother of  Timmy Grout, the Polyfilla boy” and that goes viral?  

Are any of these actually breaches, would there be sanctions? Or are all of these things okay, and the only breach would be Pam Grout saying in terms “My son Timmy was taken off me by social services”

If you are advising Pam, how confident are you in telling her which of those twelve things are breaches and which are not?

 

It may well be that we end up having a debate about whether, once these anonymised judgments are out there, that we are playing a semantic game in saying that the child is not identified, given that they clearly become IDENTIFIABLE by what’s already a simple process of putting two or three facts together.

If you live in Bon Temps, and are one of six children, and you are all taken into care, and children in your class know that this has happened to you, but they only know the lurid details if you chose to tell them; then it isn’t that hard for anyone who wants to know more to find it.   Because a  judgment is published about six children who were taken into care in Bon Temps at about the right time and the ages and genders of the siblings match up, it isn’t rocket science for people who know a few things about you – perhaps your friends, perhaps people at school who have taken an unhealthy interest in you or who dislike you, to be able to read a judgment about you online and learn about your family life, allegations that have been made – perhaps that you still wet the bed, maybe you self-harmed, perhaps you have been confused about your sexuality,  maybe your dad has mental health problems, maybe your mum smokes crack, perhaps that your uncle molested you?

Maybe that won’t just be in your childhood – perhaps a prospective love interest will search about you, perhaps a future employer, perhaps future work colleagues.  If the link between Timmy Grout and Polyfilla boy ever gets out into the public domain, that information will be there for years to come, capable of being found by anyone who wants to know a bit more about Timmy. 

Perhaps when we are all wearing Google-Glass or whatever supersedes it in five years time, every time anyone sees Timmy Grout in the street they will be alerted to who he is and what happened to him as a child and be able to read all about it.  {Google Glass is here now, and facial recognition software that sees a face and can take you to any websites they are mentioned on is already here – this sort of thing is going to be commonplace in the near future}

It may be that we reach a point where society says that the interests of transparency mean that anonymity can’t be totally preserved, and that if children’s identities are found out and that people who are not invited by them to know about their lives can find out the most intimate details themselves then that is a price worth paying for opening up our family justice system and ensuring that there are no secrets.  Maybe we will eventually get rid of the bar on identification completely.  

There are many people who think that this will be a good thing. Me, I’m mostly interested in what Timmy has to say about it.

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Let’s make habitual residence a bit more complicated

Posted on January 15, 2014 by suesspiciousminds

Because heaven knows, it has always been so simple, and nobody has ever had to argue  in Court about where a person lives.

 The Supreme Court have handed down their decision in LC (Children) No 2 2014.

 

http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_Judgment.pdf

 

There’s a press release which nicely summarises it all  http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_PressSummary.pdf  

 

 

I’ll try to break the facts down very simply.  Not that easy, because if it were, it wouldn’t have reached the Supreme Court.

 

Four children, oldest 13, youngest 5. They lived in England with both parents. The parents relationship broke down and mum moved to Spain with them in July 2012. The children came to stay with dad in England over Christmas 2012 and then did not go back. Mum made applications under Hague Convention for the return of the children. There are claims, strong ones, that the 13 year old in particular did not want to go back to Spain and viewed that she was not living in Spain but had gone there for a while and wanted to stay in England now.

 

[The whole issue is complicated because mother is a Spanish citizen, and the father had himself lived in Spain for a time, and there were certainly strong Spanish connections for the family as a whole]

 

A question that came up was whether the children were habitually resident in Spain (they had moved there with mum and had lived with her there for five months by the time the dispute arose) or in England (where they were physically present, and certainly the oldest child was indicating that she wished to remain), or possibly had no habitual residence.

 

All sorts of things flow from habitual residence. There are not just rafts of caselaw, but ocean-liners of caselaw about habitual residence.

 

What the Supreme Court say it had boiled down to prior to this case was that one looks at habitual residence as being whether there is some degree of social integration of the child in a social and family environment in that place.

 

(That gets rid of the ‘intention’ element which can be problematic, because one can have an intention or desire to live in say, Monaco, without actually being habitually resident there. I’d love to live in Moncao, but unless I actually do something about that desire, I’m not actually resident there)

 

So, on that test, it would have been fairly straightforward that the children’s habitual residence was Spain – they had moved there, they had integrated there and had spent months there.  

 

However, the Supreme Court accepted father’s argument that with a child who has understanding and a view about where she wants to live, such as the 13 year old, the Court ought to take that into account when deciding the factual question of habitual residence.  The Supreme Court also found that the lower Courts were wrong not to have joined the 13 year old as a party.

 

 

 

Courts are now required, in analysing the habitual residence of a child, to search for some integration of her in a social and family environment [34]. Where a child goes lawfully to reside with a parent in a state in which that parent is habitually resident it will be highly unusual for that child not to acquire habitual residence there too. However, in highly unusual cases there must be room for a different conclusion, and the requirement of some degree of integration provides such room [37].

 

 No different conclusion will be reached in the case of a young child. Where, however, the child is older, particularly where the child is or has the maturity of an adolescent, and the residence has been of a short duration, the inquiry into her integration in the new environment may warrant attention to be given to a different dimension [37].

 

 

[There was some dispute amongst the Supreme Court Judges as to whether the state of mind of a child is a relevant issue in determining habitual residence for ALL children or only ones that have reached a sort of Gillick-esque competence to weigh things up. Two Judges felt it was relevant to all, but had less weight with younger children, the majority felt it was only applicable to children who had that sort of understanding]

 

So, when looking at whether a child’s particular situation changes the starting point that their habitual residence is with the parent they usually live with, the Supreme Court say that what is to be looked at is

 

 

The Court notes that what can be relevant to whether an older child shares her parent’s habitual residence is not the child’s “wishes”, “views”, “intentions” or “decisions” but her state of mind during the period of her residence with that parent

 

 

They were clear that where a child was of sufficient age and understanding and wished to be joined as a party in circumstances like this, the Court ought to allow it.

 

Having been joined as a party, how are the enquiries into the child’s state of mind to be conducted?

 

 

the Court notes that an older child in particular may be able to contribute relevant evidence, not easily obtainable from either parent, about her state of mind during the period in question [49]. However, it is considered inappropriate to hear oral evidence from T even as a party. Instead, a witness statement from T; cross-examination of the mother by T’s advocate; and the same advocate’s closing submissions on behalf of T should suffice to represent her contribution as a party [55]

 

 

The Supreme Court make it plain that the sort of features of this case, where a child of the right sort of age and understanding leaves one country to go to live in another and then returns for a short time to the first country, whereupon  an issue arises about where she should live in the long-term are very rare, so they are not envisaging quizzing the children in every Hague Convention case about where they see their habitual residence – it is about ensuring that where this becomes a live issue in a case that the child’s position is not ignored.

 

Of course, arguments about habitual residence don’t merely become confined to England and Spain – you can have them about England or Scotland, Cumbria or Cornwall, Stoke or West Bromwich.  It is not that uncommon for families when they break up to have geographical separation between the parents as well as emotional separation.

So much flows from habitual residence and ordinary residence that we probably still have not heard the last of this. I suspect that even now, there are some Local Authorities bickering about who has responsibility for a child who are wondering whether the child’s state of mind might prove to be the vital key.

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This means nothing to me, ahhhhh Vienna

Posted on January 14, 2014 by suesspiciousminds

The decision of the President in Re E (A Child) 2014.   

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/6.html

 You may recall from my last blog, which was about Mostyn J’s decision about a Brussels II application, in which Mostyn J posited certain ideas about whether the English Courts needed to be more proactive about alerting foreign EU authorities that the English Courts were dealing with a child who could be said to be a resident of that country rather than England, the case ending up with permission to appeal so that the Court of Appeal could give some general guidance.

 Well, before that appeal comes to pass, the President has given a decision in a case involving a child where the mother was from the Slovak Republic, lived for a time in the UK and then moved back to the Slovak Republic.

 In this case, the Slovak consulate were actively involved in the UK proceedings although were not making any application under BRII to have the proceedings transferred to the Slovak Republic.

 However, the President makes a lot of important remarks within the judgment, which may well be echoed in the Court of Appeal judgment when that case is finally heard – the Court of Appeal might well be quoting and relying upon Re E. Perhaps, as happened quite a bit in 2013, it might be the President himself quoting his own words – he does also sit in the Court of Appeal.

 In saying that, I don’t actually disagree with much if any of what he is saying here

  1. Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.
  1. In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.
  1. It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent: see Re B-S (Children) [2013] EWCA Civ 1146, para 19, referring to the speech of Baroness Hale in Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36, para 34. Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child’s best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.
  1. Before turning to address the three specific issues I have identified, a more general point needs to be made. Its importance cannot be over-stressed.
  1. The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions and, in the purely European context, by BIIR. Looking no further afield, we are part of the European family of nations. We share common values. In particular in this context we share the values enshrined in BIIR

The Italian C-section case, together with a raft of cases where the Slovak authorities have intervened, have really highlighted this as an issue. If what is said within this judgment is to be believed, this particular mother’s case is as big a cause-celebre in the Slovak Republic as the C-section case is here.

If one stops being parochial for a moment, every time a British citizen gets arrested for breaking the laws of a foreign country (smuggling drugs, having sex on a beach, calling a teddy bear Mohammed to name but a few) our press gets outraged and demanding that the person be brought back to the UK for trial and punishment, or even set free.  Heck, even when the foreign country is one with whom we have a special relationship, we get twitchy about our citizens being dealt with by a foreign court (google Gary McKinnon if that is leaving you baffled)

So, if you are a person walking around in the Slovak Republic and you hear that a woman who was born in the Slovak Republic and now lives in the Slovak Republic had her child taken off her in England and can’t get the child back, you’d probably be outraged and offended too. Fair enough.

The President points out the dangers of being patrician and parochial and assuming that our justice is better than anyone elses here

  1. In In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] EWHC 521 (Fam), [2013] Fam 253, para 37, Mostyn J expressed his complete disagreement with an approach which he characterised as “a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen”. He added that the court “should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.” I profoundly and emphatically agree. That was a case which, as it happened, also involved Slovakia. But the point applies with equal force in relation to every country which is a member of the European Union.
  1. On appeal in the same case, Re K (A Child) [2013] EWCA Civ 895, para 24, Thorpe LJ said that:

“there is a fundamental flaw in [counsel’s] submission since it essentially seeks to elevate the professional view of experts in this jurisdiction over the professional view of experts in the jurisdiction of another Member State. That is, in my view, impermissible. We must take it that the child protection services and the judicial services in Slovakia are no less competent than the social and judicial services in this jurisdiction”.

Again I emphatically agree.

We don’t get too far into the judgment before the President quotes himself (he is always rigorously transparent that he is about to do so, in fairness)

  1. Perhaps I may be permitted in this context to repeat what I said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

“Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.”

The guidance that the President gives about the operation of BRII in care cases generally in the future – subject of course to what the Court of Appeal say   (hint, Ray Winstone is urging me to wedge heavy on them agreeing with this more or less verbatim) is important.  We need to think about this in any case where a parent has come from another European country.

  1. BIIR – future practice in care cases
  1. What of the future?
  1. It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

i) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

  1. This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital. Judges must be astute to raise these points even if they have been overlooked by the parties. And where Article 17 applies it is the responsibility of the judge to ensure that the appropriate declaration is made.
  1. As I have observed, the process envisaged by Article 55 works both ways. The English courts must be assiduous in providing, speedily and without reservation, information sought by the Central Authority of another Member State. At the same time judges will wish to make appropriate use of this channel of communication to obtain information from the other Member State wherever this may assist them in deciding a care case with a European dimension.

The President then gives some guidance about the Vienna Convention, prefacing this by saying

“Articles 36 and 37 of the Vienna Convention on Consular Relations are probably not very familiar to most family lawyers”

He is quite right

He sets them out in full, so if you want to read them, follow the link at the top.

The gist of them, however, is these three points

  1. I am concerned only with what they suggest as good practice in care cases. But in that context there are, as it seems to me, three points to be borne in mind:

i) First, Article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers.

ii) Second, the various obligations and rights referred to in paragraphs (b) and (c) of Article 36(1) apply whenever a foreign national is “detained”; and where a foreign national is detained the “competent authorities” in this country have the obligations referred to in paragraph (b).

iii) Third, Article 37(b) applies whenever a “guardian” is to be appointed for a minor or other foreign national who lacks full capacity. And Article 37(b) imposes a particular “duty” on the “competent authorities” in such a case.

The President then gives general guidance for future cases  (and again, Ray Winstone is telling me that I should lump on that the Court of Appeal will echo these sentiments – he adds that it is an “andsome tickle”)

Underlining mine, because this is pretty dense stuff.

  1. The Vienna Convention – future practice in care cases
  1. What of the future?
  1. I express no views as to the effect of Articles 36 and 37 of the Convention as a matter of either public international law or English domestic law. There is no need for me to do so and it is probably better that I do not. Nor do I take it upon myself to proffer guidance to local authorities, health trusts and other public bodies as to how they should interpret whatever obligations they may have under the Convention. That is a matter for others. What I do, however, need to do is suggest how as a matter of good practice family judges, when hearing care and other public law cases, should from now on approach these provisions.
  1. In considering the possible implications of Articles 36 and 37 of the Convention, family judges should assume that, in appropriate circumstances, the court may itself be a “competent authority”. They should also assume that there is a “detention” within the meaning of Article 36 whenever someone, whether the child or a parent, is being deprived of their liberty within the meaning of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, for example, in accordance with sections 2 or 3 of the Mental Health Act 1984 or, in the case of a child, in accordance with section 25 of the Children Act 1989.
  1. In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.
  1. Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case:

i) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

ii) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for

a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or

b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

iii) Whenever a party, whether an adult or the child, who is a foreign national

a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or

b) is detained,

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay.

  1. If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision

This is interesting – if one of the parents of the child is from another European country, they should have the ability to share documents and information with official members of that EU State without permission of the English Court and without fear of consequence.

That sounds to me like a good thing, but I do note that in the many changes to the provisions of Family Procedure Rules, English citizens USED to be able to share information and documents from care proceedings with their Councillor or MP and now can’t.  So you have a situation in which European citizens have greater rights in English Courts than English ones.  (anyone got Nigel Farrage’s email address?)

[See Family Procedure Rules 2010 12.75, or the nice handy table in Hershman McFarlane at C2965  – we USED to have provision for a parent to discuss information or disclose documents about their case to their local Councillor or an MP, but it isn’t there any longer. Not that you would necessarily know that]

 

The final issue dealt with in this case was a Reporting Restriction Order application, and the President is forgiven here for quoting himself, since Re J is of course both the leading and transformative case.

Again here, the President says that short of reporting the name of the child or anything that would identify the name of the child anything else is permissible, and the RRO is drafted in that restrictive way.

This goes a little further than Re J however, because of the foreign element, and the existing interest of the foreign press in the story.  (I wonder what was in the President’s mind when he coins the name “The Daily Beast” as a hypothetical newspaper rather than say “The Voice of Reason”)

  1. In relation to foreign media the English court must proceed with very great caution. As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible. In the first place, what justification can there be for the courts in one country seeking to control the media in another? If the media in a particular State are to be controlled that must be a matter for the relevant authorities in that State. For the courts of another State to assume such a role involves an exercise of jurisdiction which is plainly exorbitant, not least as involving interference in the internal affairs of the other State. What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other State authorities in Ruritania were handing a case involving an English mother? Secondly, the exercise of such a jurisdiction would be inconsistent with the principles I explained in Re J, paras 44-65. Thirdly, any such attempt would in all probability be an exercise in futility.
  1. On the other hand, a different approach may be justified where internet or satellite technology is involved, for there the media have an extra-territorial effect. It is of the essence of the internet that, wherever the service provider or the service provider’s servers may actually be located, the information is accessible throughout the world. So, in principle, attempts by a court to control the internet are not subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign State.
  1. Applying this approach, proviso (ii) to paragraph 15 makes clear that the English court is not seeking to interfere in any way with the print or broadcast media in any foreign country, including but not limited to Slovakia, even if it is the English language which is being used. And in relation to internet and satellite services, proviso (iii) confines the potential application of the order to those services using the English language.
  1. So the mother can publish whatever she wants in the foreign print or broadcast media or, so long as it is not in the English language, on the internet. The only restriction on the mother’s freedom to publish her story is that she must not do so in the English print or broadcast media or, using the English language on the internet, in such a way as to identify E in one or other of the ways referred to in paragraph 15 (including by the use of her married surname).

The obvious thing that occurs to me that in a document written in the Slovak press where none of this is understandable to an English reader can legitimately include the mother’s surname and child’s name.  There can be a mirror story in the UK press which contains a translation of everything but those words. And the UK press can link to the Slovak article.

That is all within the Reporting Restriction Order. The fact that you don’t need to speak the language of the Slovak Republic (sorry Andrew, I’m not even going to try to guess) to quickly work out which bits of the Slovak story give the name of the mother and child seems neither here nor there.

If the headline contains nine words, and there’s a word that follows the mother’s first name (which we know and is allowed to be published in the English print media) you don’t need to be a genius to work out that this word is probably her surname.

In order that nobody inadvertently breaches the RRO, I’ll print it in full here

  1. Reporting restriction order

“1 The applicant is E (“The Child”)

The First Respondent is M (“The Mother”)

The Second Respondent is F (“The Father”)

The Third Respondent is [name] (“The Local Authority”)

The Fourth Respondent is S (“The Maternal Aunt”)

…

9 Upon the making of this order the local authority shall be treated as the Applicant. Any duties an Applicant is expected to meet, shall be met by the local authority.

10 This order binds all persons and all companies or incorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.

Territorial limitation

11 In respect of persons outside England and Wales:

(i) Except as provided in sub paragraph (ii) below, the terms of this order do not affect anyone outside the jurisdiction of this court.

(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court:

(a) The first and second respondents and their agents;

(b) Any person who is subject to the jurisdiction of this court;

(c) Any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(d) Any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order;

(e) Any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

Nothing in this paragraph prevents the publication referred to in the proviso at the end of paragraph 15.

Undertakings to the court

…

13 The applicant will not, without permission of the Court, seek to enforce this order in any country, state or territory outside England and Wales.

IT IS ORDERED THAT:

…

Prohibited publications:

15 Subject to the “territorial limitation” above, this order prohibits the Respondents and any or all other persons from facilitating or permitting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service of any information, including the mother’s married surname (as set out in Schedule 2) that reveals the identity or name or address or whereabouts of the child (whose details are set out in Schedule 1) or the identity, or name or address of his carers (whose details are set out on Schedule 3) or the identity, or name or address of F (whose details are set out in Schedule 2) if, but only if, such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:

(a) A child who is or has been the subject of proceedings under the Children Act 1989 and the Inherent Jurisdiction; and/or

(b) A child who has been removed from the care of his parents; and/or

(c) A child whose contact with his parents has been prohibited or restricted; and/or

(d) A child who has been treated or hospitalised at a psychiatric unit; and/or

(e) A child who has been placed in the care of his maternal aunt; and/or

(f) A child of Slovakian descent;

PROVIDED that nothing in this order prevents:

(i) the publication of the mother’s first name; or

(ii) the publication of anything in the print or the sound or television broadcast media in any country other than England and Wales; or

(iii) the publication of anything on any public computer network, internet website, social networking website, or satellite program service in any other language than English.”

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Brussels Sprouts II – this time it’s jurisdictional

Posted on January 8, 2014 by suesspiciousminds

There haven’t been any posts since Christmas, because there haven’t been any judgments published. That’s sort of the way that a topical law blog works – when the Courts go quiet, I go a bit quiet too.

This one from the High Court, Mostyn J, is not what one could describe as interesting (Brussels II cases are NEVER interesting) but in the context of the biggest child protection story of last year, it might be politically important.  (I was hoping someone else would write it up first, as I had my fill of BRII with all of the Slovak cases last year)

 

Re D (A child) 2013 http://www.bailii.org/ew/cases/EWHC/Fam/2013/4078.html

Brussels II is basically legal shorthand for meaning the mechanism by which the Court in one EU state says to another “Actually, you know that case you’re dealing with – well, we think it ought to come over to us and we’ll deal with it”. It is also important to note that where a BRII application is made, the rules are that it must be determined within six weeks.

You may remember a lot of discussion in the media about the C-section case as to why our courts were dealing with it at all – the answer is fairly simple – the child was physically here, an English Court was presented with an application, and no Italian Court made an application under Brussels II for the case to be transferred lock stock and barrel to them, nor did anyone else.

 

Anyway, this one involved a family who were in the UK but had originated from the Czech Republic  – care proceedings were initiated here, and eventually a plan of adoption was put forward.  The background is set out here

    1. The background to this case is set out in my very full fact-finding judgment dated 30 November 2012 ([2012] EWHC 3362 (Fam)). As I said there, the story that unfolded before me was wrenchingly dispiriting and was one of abuse, misery, exploitation, criminality, and unrelenting vice. The father here was the step-father of the mother. He seduced her (thereby committing the crime of sexual activity with a child family member as defined in sections 25 and 27 Sexual Offences Act 2003) at the same time that he was sleeping with the mother’s own mother. The mother’s half-siblings were allowed to be aware that their father was sleeping with their sister. The father plied the mother with drugs. It was a truly appalling state of affairs.

 

  1. In short, the judgment described the father as a malevolent Svengali. It described how on Day 5 of the hearing he fled to the Czech Republic.

 

The Czech authorities became involved, and put forward a plan whereby the mother and the child would live in the Czech Republic together, with support. The mother also sought to transfer the proceedings to the Czech Republic. (It would be fair to say that the Czech Republic were fairly lukewarm in their enthusiasm for that)

For the child therefore, the jurisdictional issue was not a merely semantic one – the decision as to whether this was properly an English case or a Czech one would determine whether the child would be adopted or live with mother.  Both sides indicated that they would seek leave to appeal if the decision went against them.

    1. It is important to recognise what an order authorising a transfer request under Article 15 entails. It is a request of the foreign court, no more than that. It is not a request to the government of the other EU state. Nor is it a request to its executive arm, the central authority. Nor is it a request to the local authority of the municipality of the foreign state. It is a request to a fellow EU court. And that court has the final say on whether to accept the case or not. It must decide within six weeks. If it accepts the request the case will go there. If it does not it will stay here and be determined here.

 

    1. In my judgment although Article 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration.

 

  1. But in most cases all things are not equal. And so a scrutiny of the facts must be made in each case.

Mostyn J decided that on the facts of the case the case ought to be transferred to the Czech Republic IF AND ONLY IF, having been told of that decision, the Czech Courts agreed to do so within six weeks, otherwise it would remain in the UK.

 

The important things about this case are :-

 

1. For the first time I am aware of, the application under BRII was made not by the foreign country or court, but by a party to the UK proceedings (Mostyn J specifically concludes that this is acceptable under BRII and that the application can originate from inside the proceedings – thus for the first time there’s a mechanism by which a party in the UK proceedings can try to PUSH the proceedings to another jurisdiction, rather than having to rely on that country seeking to PULL them). In the words of Ron Burgundy – that’s kind of a big deal.

 

2. Mostyn J highlights that in the Czech Republic there is no non-consensual (forced) adoption, and the tension therefore with the Supreme Court authority in Re B that a placement order should only be made if nothing else will do.

3. He also highlights that it is not for English Courts to critique foreign systems or indeed the actions of foreign social workers.

4. The case is obviously going to be appealed, and that will be an opportunity for the Court of Appeal to give some guidance on this issue, which will crop up more and more frequently, of how to deal with cases where one or both parents is living or plans to live in another EU country by the time of the final hearing.

In my opinion the Court of Appeal needs to consider the very difficult issues thrown up by this case and to give definitive guidance as to how future Article 15 requests in public law cases should be dealt with. Certainly I would have thought that they would wish to emphasise that any court hearing a public law case where there is a potential Article 15 aspect should raise this with counsel at an early stage and give consideration to transfer to the High Court. But that will be for them. I confine myself only to granting permission to appeal to the local authority and to the Guardian. Any appeal must be heard with great expedition and I understand that the Court of Appeal would be able to hear the appeal in the first week of the forthcoming Lent term, and in fact will be giving directions later today.

 

So, is being from another EU country a get out of jail free card? Well, perhaps, perhaps not

 

    1. The evidence here suggests that save in cases of abandonment adoption in the Czech Republic is only permitted with parental consent. It is therefore even more momentous where a local authority seeks this remedy in a case where the laws of the child’s homeland would not allow it. Indeed, it may fairly be said to give rise to diplomatic and political questions about the relations between states within the Union.

 

  1. I am fully alive to the fact that in 2004 this family came to this country and settled here. Social Services were not involved with the family until October 2011. When a family immigrates here they must be taken to accept all our laws whether they relate to tax, crime or the protection of children. The fact that our family law permit non-consensual adoption (in contrast to the law of their homeland) is part of the price of the exercise of the right to settle here. This feature is a strong pointer against making the Article 15 request.

 

Mostyn J certainly felt that where there was the potential for a BRII application, the Judge ought to discuss that with counsel, and if so to transfer the case to the High Court.  Although BRII is dry and dusty and not a lot of fun, this decision – and whatever the Court of Appeal do with it, are going to be important for any child protection case where a parent is from another EU Country  (purely anecdotally, for my own caseload over the last five years, that’s about 15-20% of them).  It will be important that the advocates understand what would be involved in such an application and what the tests and arguments are, and important for those advising parents to know that this is an option which might be available.  For some parents, moving back to their birth country might not be something they want to do, but it is certainly a powerful tool particularly where that birth country takes a different view about non-consensual adoption.

 

 

 

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He’s not the Messiah, he’s a very naughty boy (or girl)

Posted on December 27, 2013 by suesspiciousminds

 

We do get to see some unusual names within our line of work, and sometimes we do wonder why the Registrar didnt counsel the parents ought of it. (I understand that in France, their equivalent of a Registrar has a right of veto on names)

This piece came my way care of Freakonomics, which was reporting a child who had been named Colt .45 after the handgun.  The parents actually posted a comment on the subsequent discussion and they seemed to me like very reasonable and nice people.

Freakonomics is very good on the consequences of names in later life, and what it is that parents are signifying, sometimes subconsciously, when they select a name. They have also done extensive research about the social migration of names (how names that are used by very rich people tend to find their way into poorer families by way of aspiration over time and then get dropped by the rich people) .

  They also reported on the life experiences of two brothers, one named “Lucky” and one named “Unlucky”   [And they report a similar case of two brothers with the surname Fail, one named “Will” and one “Never”

 

Anyway, in this report, a US Judge forcibly changes a baby’s name from  “Messiah” to “Martin”

 http://www.npr.org/blogs/thetwo-way/2013/08/12/211348996/judge-orders-babys-name-changed-from-messiah 

Peculiarly, it turns out that “Messiah” as a name for a child in America has hit the top 400 and is one of the fastest growing names.  {Of course, it occurs to me that Jesus is not that uncommon a name in Spain or Latin America, though I think it would raise some eyebrows in the UK}   Time will tell then, whether being named Messiah causes you problems in life, or whether it is empowering, or makes no difference at all.

 

Looking at this also threw up a report on a baby named “Storm” in America in 2011, whose parents decided that they were going to try to raise Storm as a genderless child and not tell anyone whether Storm was a boy or a girl. The idea presumably being that the child would form their own personality and tastes, free from gender stereotyping. Wonder if they are still doing it?

 The detail I like from this is passers-by slowing down their cars if they saw the family on the sidewalk so that they could shout “Boy!” at this baby.

http://www.thestar.com/news/gta/2011/12/26/the_genderless_baby_who_caused_a_storm_of_controversy_in_2011.html

{I found a British couple that had done the same thing, which lasted until their child was five, and primary school made being genderless pretty tricky}

http://www.telegraph.co.uk/news/9028479/Couple-raise-child-as-gender-neutral-to-avoid-stereotyping.html

 

This is curious though, it turns out that people do act different towards even babies depending on what they believe their gender to be

One 1975 study, published in the journal Sex Roles, put 42 non-parents in a room with a 3-month-old baby and three toys: a football, a doll and a gender-neutral teething ring. A third of the volunteers were told the baby was a girl, a third thought the baby was a boy, and a third were told that the experimenter couldn’t recall if the baby was a boy or a girl.

Unsurprisingly, when the volunteers thought the baby was a girl rather than a boy, they were much more likely to offer “her” a doll to play with. If they didn’t know the baby’s gender, the male volunteers tended to go for the teething ring, while women offered the baby the doll. That could mean that women see dolls as less gendered, or it could mean that the men in the study hewed more strictly to gender roles.

Overall, people held and touched the baby less if they thought “she” was a girl. When they didn’t know the sex, a gender difference emerged again: Men held the unknown baby less, while women held the baby more.

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The last resort – without Jonathan Ross

Posted on December 24, 2013 by suesspiciousminds

Re LRP (Care Proceedings : Placement Order) 2013 and some labour saving remarks from the High Court

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/3974.html

You may recall the seismic shift in the jurisprudence about adoption law that happened in autumn of this year, following Baroness Hale’s judgment in Re B and the subsequent adoption of many of her thoughts by the Court of Appeal in Re B-S and many others.

One of the things that was in my list of unanswered questions was the extent to which the Court, in deciding that “nothing else than adoption will do” has to explore or exclude long-term fostering as an option.  Is it mandatory to give reasons for ruling it out, or can the Court – having established that nothing else than permanent care by the State will do, simply determine that adoption has advantages that make it the more desirable option?

Well, although this is a High Court authority rather than a Court of Appeal one, it is fair to say that the High Court judge gave the “long-term fostering” argument pretty short shrift  – the case involved a young child, indeed a baby.

In fact, it only arose as an issue at all because the social worker was obliged as a result of Re B-S to put it in as a possible placement option and outline the advantages and disadvantages

The only other possibility mentioned within Ms Gorbutt’s report, is that LRP might be placed in long term foster care. It emerged during the course of the evidence that the primary reason for raising long term foster care, which Ms Gorbutt does not support, was so as to attempt to satisfy the requirements of Re B-S (supra) and other recent Court of Appeal guidance.

 

 

The analysis, whilst making it plain that adoption was the preferred option of the LA, said this

Ms Gorbutt’s report suggests that long term foster care would be a “means by which permanency can be achieved”; and that “a long term foster home can offer … commitment, security and stability within a new family…”

 

 

And Pauffley J’s take on this was  (get your copy and paste button ready, it’s CTRL C then CTRL V)

  1. I profoundly disagree with those contentions. Long term foster care is an extraordinarily precarious legal framework for any child, particularly one a young as LRP. Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all in the current context, a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted.
  1. The realistic, as opposed to the fanciful, options are (i) a return to her parents or (ii) a placement for adoption. So whilst I am sympathetic to Ms Gorbutt, as I would be to any practitioner who is endeavouring to fulfil the requirements of the law in the way assessments are conducted and reports written, it is worth reiterating that the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched

Well, I completely agree with Pauffley J, in relation to a newborn baby (these proceedings were actually concluded within 10 weeks), long-term fostering is not a proper care plan at all.

The final sentence is interesting – of course, as a High Court judge, Pauffley J doesn’t have the power to overturn Re B-S (court of appeal authority), but it is a clear marker that so far as the lower courts are concerned, a laborious exercise of setting out why adoption is better than long-term fostering is just a waste of everyone’s time and they don’t want to see it.

(I told you that you would want the cut and paste handy)

That also seems to me to mean, that until the Court of Appeal tell us otherwise, once the Court reaches the point of “nothing else but permanent placement outside the family will do”  there is not a need to RULE OUT long-term fostering.

A welcome authority – let’s save the arguments on long-term fostering versus adoption for those cases where there is a genuine issue as to what the better option for the child might be.

It is also interesting that although the Court of Appeal authority required the LA to spell out the disadvantages to the child of making a placement order, Pauffley J goes through those disadvantages like a drug-fuelled chef julienning some particularly tender vegetables. Perhaps the vegetables had been pre-tenderised by some forceful handling?

  1. Placement order – the disadvantages
  1. The disadvantage of making a placement order is that LRP will be deprived of an upbringing within her natural family. She will not be brought up by a mother who is obviously able to demonstrate pleasing emotional warmth and affection for her child or by a father who, similarly, can be appropriately tender when minded to show that side of himself. It may be, as Ms Gorbutt suggests, that in future LRP will need some professional assistance so as to deal with issues of loss and identity if she is not to be brought up within her natural family. But experience suggests that so long as the adoptive family deals openly and sensitively with those matters – and age appropriately as the child grows – the potential for problems is markedly reduced, even eliminated.
  1. Ms Gorbutt comments that “in the event a culturally matched placement is not found, LRP’s diversity needs will not be met.” She continues, “There is a risk of placement breakdown.” Those fears, it seems to me, are misplaced. They fail to recognise the realities, well known to all professionals who practice in the field. I mention the most obvious. First that the younger a child is placed within his / her permanent alternative family, the better the chance of a very successful outcome. Second that LRP is an infant child born to “White British” parents of average to good intelligence so that ‘family finding’ for her should be entirely straightforward. Third, that there should be no difficulty at all in identifying a culturally appropriate placement. Fourth, that I may safely ignore the absurd suggestion that LRP’s “diversity needs will not be met.”

Do we get the feeling that other than in the rareified air of the Court of Appeal, judges on the ground are somewhat patronised by being told how to do their job and at having to laboriously read arguments about the blindingly obvious?

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I say Port Harcourt, you say the High Court…

Posted on December 23, 2013 by suesspiciousminds

Two different takes from the High Court on pretty similar facts  (on one the ‘parents’ are believed, on the other they are found to be liars). It demonstrates that High Court judges don’t talk much amongst themselves, otherwise the two Judges would have been mangling their chops in the canteen and both gone “I’ve got exactly the same case as that!” and of course that Judges are human beings and not automatons.

I have written about the Port Harcourt “fertility clinic” before

 

https://suesspiciousminds.com/2012/10/29/one-of-these-nights-youre-gonna-get-caught-itll-give-you-a-pregnant-pause-for-thought/

 

in A Local Authority v S and O 2011 where the High Court in 2011 considered a case where a woman went to Port Harcourt for fertility treatment (this being in Nigeria) and came back to England with a child who was not theirs. One of the big issues in the case was whether the couple had known this and been part of a deception to pretend that this unrelated baby was theirs or whether they themselves had been duped.

 The High Court was helped in that case by extensive research by the parents legal team which showed that Port Harcourt fertility clinic had some previous form and been investigated for duping mothers into undertaking a fake labour and tricking them into believing that the child was theirs. Given that it was established that they had tricked other women, the incredible story this ‘mother’ was telling became slightly less fanciful.

 

(I have in my mind that there was another Port Harcourt case, not long after, but I can’t find it at this moment. I really thought that I had blogged about it…)

 

This is another High Court case, just reported (although decided back in winter 2011) on the same sort of facts – again the woman went to Port Harcourt for fertility treatment, underwent a false labour and came back with a child – the issue again was whether the couple were duped, or involved in the deception themselves

 

Re E (A Child) 2011

 

http://www.bailii.org/ew/cases/EWHC/Fam/2011/3453.html

 

 

As a result of timing, neither of the two High Court cases refer to each other. This is something of a shame, since the extensive research and investigation in S and O 2011 didn’t get done in Re E , and the Judge in Re E understandably took the view that the couple’s account of what had gone in in Port Harcourt was remarkably far-fetched.  (It might have been that she still had doubts about the couple’s complicity had she known that Port Harcourt had been found to have done exactly what was alleged here in another case, but it might have tipped the balance)

 

This is the only bit where the worries about Port Harcourt’s practice comes into the judgment in Re E

 

He also said that he had done some internet research: he believes from that that this Clinic may be suspected of being one where young girls give birth and babies are passed on to other families. I accept that some such reference was found on the net: I am not prepared to act on this but it does not take research to ask the question and to entertain such suspicions. If E is not the O’s child, then the social worker is entitled to ask the question, where does she come from, and is not the obvious answer some form of organised trafficking? I have also asked myself the same questions, and like him I have no satisfactory answer.

 

 

Given that the Court weren’t given evidence about Port Harcourt’s history of deception, the account given by the couple was felt to be incredible, and there was some doubt in the Court’s mind that the couple had even been to the fertility clinic at all

 

  1. The evidence that E is not Mr and Mrs O’s child is overwhelming; no person could rationally believe that she was their child: indeed Mr and Mrs O’s case involves an assumption that in certain circumstances normal scientific laws are suspended or are to be disregarded. Quite apart from the repeat DNA tests, the negative scans and pregnancy tests, and the absence of HIV antibodies, all the evidence points to an overwhelming conclusion.
  1. The refusal by Mrs O to be examined supports the inference that she knows that her body does not bear the marks of childbirth: I do not accept her explanation for refusing the examination by Mr Naylor: she may also have feared, for whatever reason, that he would not find that she is currently pregnant.
  1. I have found on the clearest possible evidence that she did not give birth to E at the Clinic or elsewhere. I cannot positively find, even on the balance of probabilities, that she was actually treated at the Clinic at all, or that she underwent any form of simulated or pretend labour. In fact, I am inclined to think that she did not. I found Mrs S’s evidence incredible throughout: she was plainly being ‘helped’ to give her evidence by someone, perhaps Mrs O’s relative, although, I thought at one stage that I heard a man’s voice as well as a woman’s. Her account that Mrs O had undergone labour is a frank lie. Mrs S must know that she is not telling the truth, and Mr and Mrs O must realise this.
  1. I cannot imagine a circumstance in which a trained midwife could imagine that she had delivered a baby from a woman when this had not happened. A suggestion in some of the early documents that Mrs O may have been duped because the labour suite was in darkness was not pursued: both Mrs O and Mrs S say that the lights were off briefly because of a power cut but that the generators were put on very shortly afterwards and the room was properly lit. Some parts of Mrs O’s account are consistent with a false labour process: a drink of herbs to ‘induce labour’ leading to internal pain, a midwife putting a hand inside her and a gush of fluid which she interpreted as her waters breaking, could have been created to deceive her: but the account is just as consistent with a complete fabrication. The Clinic plainly had dealings with Mrs O because they have supported her account. No motive has been given for Mrs S to lie and deceive Mrs O: this is not a case such as the Haringey case (Haringey London Borough Council v C, E and another intervening [2005] 2 FLR 47) where Ryder J. was able to find that the ministry running the clinic had a vested interest in ‘miracle’ births. I cannot find that there were significant financial arrangements (other than the £250 which Mrs O said that she had paid): but I cannot find that there are not, and there must have been some incentive. The presence of Mrs O’s relative at the clinic with Mrs S when the doctor was not there points to some family connection and influence, and Mrs S gave evidence under her supervision. All these factors tend to support the case that Mrs O is not an innocent dupe. Further than that I cannot go.
  1. Mrs O spoke lucidly and clearly if with a good deal of emotion and anger and with no sense that she was deluded. Much of her presentation is consistent with pseudocyesis: for instance her swollen abdomen, which is documented and of which there are a number of pictures, and which would probably be impossible to fake: but it is also consistent with simple weight gain. The picture from the medical records that she had presented herself as being pregnant consistently from July 2009 until November 2010 is also consistent with a pseudocyesis: but it may also be consistent with a consciously simulated pregnancy. Also, having heard Mr Naylor’s evidence Mrs O backtracked on crucial features of the case previously accepted or presented: for instance denying that in February 2010 (at just about the time of E’s conception) she had told the doctor that she had felt the baby kicking: saying that he had suggested that to her, and her change of case about the ultrasounds in Nigeria. This suggests to me that she was able to take a tactical and rational approach to the question of matters relating to pregnancy which may be inconsistent with a fixed false belief. Also, as I have said above, Mr Naylor told me that in his experience of women with pseudocyesis he had never encountered a woman who had then claimed to give birth and produced a baby: although a common presentation was that a woman would be admitted to hospital claiming to be pregnant, and then once confronted with evidence that she was not pregnant, accuse the nurses of stealing her non-existent baby. On the other hand in the Haringey case Ryder J. did accept that the wife had been deceived into believing that she had given birth to three children, in rather similar circumstances to these and where Ryder J said that of that couple’s belief… “faith is the answer to what medical science cannot or will not explain“.
  1. I got the impression that Mr O showed more signs than Mrs O of an unquestioning belief in the supernatural: he referred on several occasions to believing in the ‘natural’ by which he plainly meant beyond the scientific. Mrs O attempted to give a rational scientific answer, stating that the herbs were used to prevent her from ‘spotting’ blood, and to prevent miscarriage, rather than to assist in a miraculous pregnancy, as Mr O said he believed.
  1. I am not able to hazard a guess as to how a fixed mutual and irrational belief as to the birth of a child can develop in both a husband and wife.
  1. Against all the other evidence I am unable to find that Mrs O has been duped, misled, or is living in a fantasy world. I cannot accept that she truly believes, particularly in the light of all she knows now, that E is her child. I do not accept that she truly believed that when she brought E into this country.

 

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