Children in small ads

Posted on December 10, 2013 by suesspiciousminds

Another day, another scandal. The Telegraph reports this case where an Adoption Agency, “Adoptionplus” placed adverts in local newspapers saying that two children needed an adoptive placement and seeking adopters to care for them.

 

http://www.telegraph.co.uk/health/children_shealth/10505544/Adoption-agency-advertises-children-in-local-newspapers.html

 

Now, although I am very cautious about the accuracy of the Telegraph as a source at present, this one does seem to stand up. There is a copy of the advertisement and one can see from it that this was in a local newspaper, rather than a specialist adoption publication.

 

(Adoptionplus, if you are wondering, is an adoption agency whose role is to find adoptive families for children on behalf of Local Authorities. They won’t work for one particular Local Authority, but for a range of them)

I have seen this sort of ad before in the national press, but to be honest, always assumed that where a photograph was used it was a model or stock photo, rather than being an actual child who was awaiting an adoptive placement.

Let’s cover a few basic points from the story, because this is important.

 

  1. The names of the children used aren’t their real names.
  2.  The newspapers used weren’t ones local to the children’s birth family
  3. The Local Authority / the Adoption Agency ought to seek permission from the Court to advertise children for adoption (more on that later)
  4. A Local Authority/ the Adoption Agency  cannot properly seek that permission until their Adoption Panel (now Agency Decision Maker) has approved the plan of adoption
  5. Not all Local Authorities / Adoption Agencies use adverts in specialist press, and generally it is used only for children who it is known will be difficult to place or who have been waiting a long time.
  6. Undoubtedly there is a national shortage of adopters and a large number of children whom the Courts have decided that adoption is what they need.    [There would be many critics of the family justice system who might say here, if we have too many children waiting for adoption already, maybe we should stop using adoption so readily as a solution for families, and y’know, they’d have a point]

 

 

 

The Telegraph say that they have pixellated the child’s face so that you can’t identify it, which was responsible journalism. From that, I take it that the original advertisement does NOT pixellate the child’s face.

 

But in this instance, I don’t disagree with the Telegraph’s take on it; which is that children who are waiting to be adopted shouldn’t be marketed like second-hand sofas.

 

This does feel distasteful; for me there is a significant difference between advertising seeking adopters in the local press and advertising particular children. It also seems to me that in days where people have extended family that don’t always live closely to them and where there is social networking such that people’s social circle spreads very widely, even advertising outside of the geographical home of the parents is no guarantee that you aren’t indirectly identifying the child with a photograph.

 

If you were a parent and someone rang you up to say “Hey, I’ve just seen your Kevin in an advert saying he needs to be adopted, what have you done?” you’d be rightly aghast and horrified.

 

There is also a difference between advertising specific children in a specialist adoption publication (with permission of the court) and doing so to the general public.  The specialist adoption publications go only to people who have been approved as adopters or social workers involved in matching adopters and children. 

 

I suspect that somebody can point to some strong research that says that for a difficult to place child, having an advert that makes them come to life (a name, some information about what they like or their personality and a photograph) is by far and away the best way to garner interest. 

 

I suspect that somebody can also say that as a way of getting prospective adopters to come off the fence and to make that call to say “Yes, I AM interested in adoption, I’ve been thinking about it for a long while, what do I do next?”   seeing a real child or hearing a story about a real child who needs an adoptive parent is a powerful way to achieve that.

 

I am still uncomfortable about it – I’ll touch on the legal context in a moment, but in my view, if the intention is to advertise to the public (rather than the specialist press which produces magazines or publications that go only to persons who have already been approved as adopters and social workers who are looking for children to match those approved adopters with) then that ought to be spelled out very plainly to the Court and to the parents before that is done.  I would not be happy with using the permission given by the Court to advertise the children being used to place adverts in local newspapers  (because that wouldn’t be what the Court or the parents had in mind when the permission was being sought)

 

Frankly I don’t like it full stop.

 

 

We then go on to what the Telegraph say that the advertisement says

 

The advert claims adoption is a quick process saying there is “no cost”, “no waiting time” and “no hoops to jump through”.

 

 

I can’t see that in the advert that they show, it may well be in the blurb below that piece. IF Adoptionplus did say that in their advert, it is obviously a crock and deeply misleading.

Their website makes it plain that they aim to complete the assessment process in 6 months  (most human beings would describe that as waiting time).  They are right about there being no cost, to be fair.

But the last claim “no hoops to jump through”…  well, if you mean literally, precisely, at any stage in the process does someone produce a plastic or wooden hoop and ask you literally and precisely to jump through it, they are accurate. But if you mean in the figurative sense of the words that anyone would apply to “no hoops to jump through”  that there are no checks or tests that you have to successfully pass in order to move forward, well no.  There are statutory tests and checks to become an adopter, most of which could accurately be described as hoops to jump through

 

For example, you’d need to show that you were financially capable of managing to care for yourself and a child (which would involve looking at your earnings, savings, outgoings and debt),  you’d need to show that you had no relevant criminal convictions, you’d need to show that you were medically fit to care for a child (which would involve having a medical) and that you had understanding about caring for a child and meeting their needs. Chances are that if you had any serious past relationships, the assessment would explore those and might actually go to the point of wanting to speak to your significant exes.  

Let’s put it this way, if I ring Adoptionplus and say “I understand from your ad that there are no hoops to jump through, I have had five children removed from my care, I’m currently addicted to heroin and I am racist and homophobic”   I think they might qualify the ‘no hoops to jump through’ claim a bit.

 

 

 

The Legal Context

 

The lead case is Re K (Child) (Adoption : Permission to Advertise) 2007 EWHC 544

 

That case makes it plain that the welfare of the child is the court’s paramount consideration, and that the process of advertisement is an interference with the child and the parents right to a private and family life under article 8 of the Human Rights Act 1998, and thus is not something that can be done unless it is necessary and proportionate to do so.  (That, following Lord Neuberger’s comments in Re B 2013 might well be a high test indeed)

 

Although the case doesn’t place a mandatory duty on Local Authorities to seek the Court’s permission (it says that the LA CAN’T place an advert BEFORE their internal Adoption Agency has approved adoption as the plan for the child and that the LA MAY apply to the Court for permission), it is fairly common practice to make such an application if an advertisement is to be placed.

 

There are potential questions as to whether publication of a photograph of a child, saying that this child is available to be adopted, might cause problems with section 57 of the Adoption and Children Act 2002   (I have put in bold the portion that I think MIGHT be problematic, although there are all sorts of qualifiers on the ability to make such disclosures)

 

 

57 Restrictions on disclosure of protected etc. informationE+W

This sectionnoteType=Explanatory Notes has no associated

(1)Any section 56 information kept by an adoption agency which—

(a)is about an adopted person or any other person, and

(b)is or includes identifying information about the person in question,

may only be disclosed by the agency to a person (other than the person the information is about) in pursuance of this group of sections.

(2)Any information kept by an adoption agency—

(a)which the agency has obtained from the Registrar General on an application under section 79(5) and any other information which would enable the adopted person to obtain a certified copy of the record of his birth, or

(b)which is information about an entry relating to the adopted person in the Adoption Contact Register,

may only be disclosed to a person by the agency in pursuance of this group of sections.

(3)In this group of sections, information the disclosure of which to a person is restricted by virtue of subsection (1) or (2) is referred to (in relation to him) as protected information.

(4)Identifying information about a person means information which, whether taken on its own or together with other information disclosed by an adoption agency, identifies the person or enables the person to be identified.

(5)This section does not prevent the disclosure of protected information in pursuance of a prescribed agreement to which the adoption agency is a party.

(6)Regulations may authorise or require an adoption agency to disclose protected information to a person who is not an adopted person.

 

 

And of course, the publication of a photograph of a child saying that the child is available to be adopted is clearly Sensitive Personal Data for the purposes of the Data Protection Act and one needs to be sure that the public bodies involved had met the criteria for such use of Sensitive Personal Data.

 

We don’t know here whether Adoptionplus or the Local Authority involved had made that application to Court and gained the Court’s permission. If they had, they are of course completely covered.  If they had not, then there might be an article 8 claim to be brought by the parents.

 

 

(If I were representing a parent in a Placement Order case, I would probably want some reassurances from the LA that they would make an application to Court if they intended to advertise the child for adoption, and for that application to be very particular about where such advertisements might be run and what would be in them)

 

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What IS the Court of Protection?

Posted on December 6, 2013 by suesspiciousminds

This is intended to be a beginner’s guide to the Court of Protection, not exclusively intended for lawyers. There are, in fact, some journalists who might benefit from it.  You may have been reading about the Italian woman who underwent a ceasarean section without her consent, and want to know how decisions like this are supposed to be made and what powers the Courts have.

To be fair to the national press, I’ve just had to expand 3000 words to absolutely race through even the basics of the Court of Protection, without even getting into the nuts and bolts of this case, so one can see why they end up saying “A secret Court” and leave it at that.   Perhaps in future, this piece might be a handy link or source for anyone who wants to understand the basics of  how that secret court is meant to operate.

I in no sense think that the Court of Protection is flawless or perfect, and it is perfectly possible for very bad decisions to be made, but at least understanding the nuts and bolts of the fact that decisions are made by a Judge, with a lot of tests and guidance might help people avoid some of the more dreadful factual errors that came about with some of the recent reporting. Otherwise you end up endlessly debating the rights and wrongs of a set of abhorrent things that DIDN’T actually happen, as opposed to very real and important rights and wrongs of a set of very troubling things that DID.

[It is like determining US and UK foreign policy post 9-11 based on Kay Burley’s account on Sky News on the day that “The entire Eastern Seaboard of the United States has been decimated by terrorist attacks” rather than what actually happened, which was awful and significant enough without lurid inaccuracies *]

What is the Court of Protection, and is is a secret court?

The Court of Protection is a branch of the English and Welsh court system, dealing with cases involving people who either do not have capacity to make decisions about certain things for themselves, or to determine whether in fact they do have that capacity. The Court of Protection as we now know it was set up by the Mental Capacity Act 2005, building on the Court of Protection which had previously dealt with financial matters  (Thanks to @barbararich for pointing out my original inacuracy, now fixed, and for doing so nicely).

It is not open to the public. The Press have to make an application if they want to attend the hearing. Some decisions of the Court of Protection (judgments) are made public on law sites like Bailii

http://www.bailii.org/ew/cases/EWHC/COP/

if they contain important points of law or principles which might apply to other cases or are in the public interest, but the day to day decisions are not made public  (yet – the President of the Family Division has indicated that he intends to bring about publication as a matter of course of all decisions of the family courts and probably the Court of Protection too).  When those decisions are made public, the identity of the person concerned is usually anonymised.   (There are certain, though rare cases, where the identity is revealed, such as the Mark Nearey case http://www.independent.co.uk/news/people/profiles/mark-neary-they-didnt-understand-steven-they-saw-me-as-a-fly-in-the-ointment-2295565.html )

So the Court of Protection is certainly secretive – there are arguments that this is done to protect the vulnerable people concerned, but the President of the Family Division takes the view that the counter argument that without exposing their decisions to public scrutiny there’s a risk that the public lose confidence in the work they do and that hyperbolae is taken as gospel  (he would seem, from events this week, to be right) and it is almost irresistable now that judgments from the Court of Protection will be made routinely available, and probably that the Press attendance at Court of Protection hearings will become the default position (with the Court having to given reasons why they SHOULDN’T be there)

Why did the Court of Protection come about?

It was introduced by the UK Parliament as a result of a case that went to the European Court of Human Rights, involving a man who is known as “L”  (the case is also well known as the “Bournwood” case, after the Trust involved). L had been a day patient at a centre, and lived normally with a family. He did not have capacity to make decisions for himself, but was not mentally ill or dangerous. One day he had an episode at the centre and when his family came to collect him, they were told that he had to stay at the centre. Now, if L had been detained under the Mental Health Act, his family would have had all sorts of legal safeguards and abilities to challenge his detention. Equally, if L had had the capacity to say to the unit “I want to go home” they would have had to let him, but L fell between these two situations, and there was no proper mechanism. Many commenters and professionals working with vulnerable adults felt that it was inherently wrong that someone like L could be detained for months or years with no legal safeguards, just because he wasn’t in a position to object. The ECHR agreed.

At the same time, Parliament brought into one statute, legal provisions for some decisions that the High Court had historically made under their Inherent Jurisdiction  (Inherent Jurisdiction would require a whole other beginners guide, but if you just read Inherent Jurisdiction as “High Court superpowers” you won’t go far wrong) – for example deciding whether doctors could carry out surgery on a patient who was refusing it, dealing with marriages where people had no ability to understand the marriage vows, protecting the finances of vulnerable people, and wrapped it all up into one statute.

The thinking was to give protection and safeguards for the most vulnerable people in society, those who are not able to look out for their own interests.  (Many commenters believe that the MCA began with those noble intentions but hasn’t in practice delivered on them)

Who brings cases to the Court of Protection ?

The cases are normally brought by one of these four groups (though others are possible) : –  the health trust whose doctors are treating the person, the care home who is providing care for the person, the Local Authority who are providing services for the person, or on behalf of the person or their family.

How does the Court decide whether a person has capacity?

The Mental Capacity Act sets out a test as to the REASON why the person lacks capacity

Section 2

(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)It does not matter whether the impairment or disturbance is permanent or temporary.

And then sets out a test for deciding WHETHER  a person lacks capacity

Section 3 Inability to make decisions

(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)deciding one way or another, or

(b)failing to make the decision.

It is VERY VERY important to note that a person is entitled in law to make a bad decision, an unwise decision, a daft decision, a decision that no other person would take; AS LONG as they understand the situation they are making the decision about.   (For example, Carla out of Corrie is entitled to marry Peter Barlow even though he is a love-rat with a history of bigamy, an alcoholic and is trying it on with Tina from the Rovers, even though many people would think she was foolish to do so. But if she does not understand that marriage is the union of one man and one woman (currently) and is intended to be for life although it can be ended through divorce, then she can’t marry him.  Just as, if he drinks and is so intoxicated that he can’t understand that, he can’t legally enter into a marriage contract  – but that is PRETTY drunk)

It is also important to note that just because a person lacks capacity to make one particular decision, it doesn’t mean that they lack capacity to make any sort of decision. Some decisions are more complicated to weigh up than others and need more capacity to understand.  Over a period of time, the Court of Protection has decided cases and set up guidelines for what sort of understanding a person has to have for certain decisions.

For example, classically, in order for a person to have the capacity to consent to sexual intercourse they have to be able to understand the following three things :-

(i) The physical mechanical act

(ii) That pregnancy can occur and what pregnancy is  (and contraception)

(iii) that you can get diseases through sex (and how to avoid that)

The person doesn’t have to understand the emotional implications (that you could get heart-broken or sad, or that the other person might) or be able to weigh up who is a good person to have sex with and who is not, just those three factors.    (For homosexual sex, the second factor is taken out)

You will see from the legal test that the person has to be helped, with explanations suitable for them, to reach the point of understanding the issues so that they can make the decision for themselves. The law WANTS people to make the decision for themselves, and it is also worth noting that the starting point is that every person HAS capacity unless evidence is provided to the contrary.

If the Court decide that a person lacks capacity, what then?

The Court then have to make what is called a “best interests” decision.  That means deciding what is in the best interests of the person. That might be what the State (the doctors or social workers) say is best, it might be what the person themselves is saying or showing that they want, or it might be something else entirely.

The legal test is set out in the Mental Capacity Act

section 4 Best interests

(1)In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

(a)the person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)He must consider—

(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)if it appears likely that he will, when that is likely to be.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)anyone engaged in caring for the person or interested in his welfare,

(c)any donee of a lasting power of attorney granted by the person, and

(d)any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a)are exercisable under a lasting power of attorney, or

(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10)“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)“Relevant circumstances” are those—

(a)of which the person making the determination is aware, and

(b)which it would be reasonable to regard as relevant.

You can see that the Court are obliged to consider and take into account all that is known about what the person themselves wants, or would want, or has previously expressed about wanting (remember that a person might only temporarily lack capacity, so the Court have to take account of anything the person said or showed about the issue in the past), and also has to take into account the views of anyone who cares for the person or is interested in their welfare.

This is the difficult bit, and in most Court of Protection cases, the majority of the judgment is spent on the Judge deciding what is in the ‘best interests’ of the patient to do.  Sometimes that accords with what the patient is saying or showing they want, sometimes it does not.  It is the hardest part of the exercise, and to an extent, I agree with Lucy Series from The Small Places blog about capacity and mental health :-

“ A recently ratified UN treaty – the Convention on the Rights of Persons with Disabilities – poses the question: why should people with disabilities and mental illnesses face these kinds of interventions when people without do not? It looks very much as if the Mental Capacity Act itself is not compatible with this Convention, although views on this differ. It is certainly a question it would be good to see the media asking more often… Again, this is an issue that comes up a lot around the Mental Capacity Act 2005: how can we distinguish decisions which are merely irrational or unwise, which everybody is entitled to make, from those which are incapable. This is actually quite a profound philosophical problem (my own view is that it is insoluble; ‘mental incapacity’ is a conceptual device which we cling onto to mask the value judgments we are bringing to bear when justifying interventions in situations which we regard as intolerable). The disability Convention referred to above poses serious questions about how we deal with ‘capacity’, and emphasises the role of support for decision making. Even the Mental Capacity Act requires support to be provided for a person to make their own decision before it is made on their behalf, and decisions made on their behalf should involve the person as far as possible. “

How does the Court ensure that it is making the decision that is right for the person, and not the decision that “seems” the right thing to do from a paternalistic “The State knows best” approach.  The Court of Protection at essence is a referee between the tension of “the State needs to decide what is best for vulnerable people” and “people should be free of State interference and make their own decisions”.  It is not easy, and it can seem to those outside that the Court of Protection doesn’t always get things right.

It is certainly a new system (in terms of law, 8 years of operation is a baby) and it would be astonishing if mistakes weren’t being made and lessons were there to be learned. So it is important to scrutinise the decisions and for the Court of Protection to be responsive and reflective to changes both in law and attitudes in society. Twenty years ago, a man saying that he intended to marry another man would have seemed peculiar to most of society, now a Conservative Prime Minister is driving that change.

But, if a person doesn’t have capacity to make a decision, how do they fight the case?

Well, this is the million dollar question. Remember firstly that just because a person lacks capacity to make one decision doesn’t mean that they lack capacity to make all decisions. So it is possible for a person to be able to instruct his lawyers to fight the case, whilst the Court decides on the real issue in question. But very often the issue of capacity will also affect the person’s capacity to instruct a solicitor.  There is firm guidance on the legal test to be able to instruct a solicitor, and where a person doesn’t meet that test, they can’t give instructions directly to a solicitor.

[A person who HAS capacity is able to tell their solicitor to do something really foolish or unwise or downright dumb – i.e Carla can tell her solicitor to put all of her assets in Peter Barlow’s sole name and to sign a pre-nup saying that she has no claim on any of what is now his property. That’s stupid, but if she understands the nature of what she is doing, she can do it.]

What happens ordinarily then is that an agency known as the Official Solicitor is appointed by the Court   (not by the social worker or Trust, as certain national newspapers seem to think) and the Official Solicitor will decide how the case is to be run on the persons behalf  – that might be to fight the case every inch of the way, it might be to offer no resistance, it might be to be neutral and say that the doctors or social workers have to prove their case, or it might be that some parts of the case are challenged very hard and others aren’t. It is up to the Official Solicitor)

Now, one can see where that causes a problem. The person lacks capacity, say, to make an informed decision that if surgeons don’t cut off their foot they will die of gangrene, but is very vocally saying “Don’t cut off my foot, I would rather die”.   The doctors will be able to tell their lawyers to argue all the reasons why the surgery will happen. The Judge knows what the person is saying and has to take it into account. But there could very well be no lawyer who actually argues to the Court all of the reasons why the surgery SHOULDN’T happen, they will only do that if the Official Solicitor decides that it is in the person’s best interests to fight the case.

(You may see that you end up with both the Official Solicitor and the Court making decisions about what each of them CONCLUDES is in the person’s best interests to do and that can appear to be a blurring of roles.  When a lawyer acts for someone who has capacity, she gives them ADVICE about what is in their best interests, often very strong advice, but where a person says “I hear all that, but I still want to do X instead” that lawyer goes into Court and argues fearlessly and without favour for X.  You end up with, here, a situation where the most vulnerable people in society get less protection from the lawyer charged with representing them, than they would if they had capacity)

If you want to know more about the decision of the Court of Protection in ceasarean section cases, I heartily recommend this piece , which focuses on the legal side and the tests to be met

http://thesmallplaces.blogspot.co.uk/2013/12/more-questions-than-answers-on-forced.html#more

and this piece

http://www.birthrights.org.uk/2013/12/views-on-the-forced-cesarean-judgment/

Which looks at it from the perspective of the pregnant mother

* She actually did say that. And what better reason do I need to crowbar in a “Who said this, Kay Burley or Ron Burgundy” quiz?

http://www.huffingtonpost.co.uk/2012/03/29/anchorman-2-ron-burgundy-kay-burley-quiz_n_1387332.html

Stay classy, internet

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the judgment from court of protection in the caesarean section case

Posted on December 4, 2013 by suesspiciousminds

 

This is Mostyn J’s decision (see the two Untimely Ripped posts, and most of the press since Sunday if you don’t know the background)

 

http://www.judiciary.gov.uk/media/judgments/2013/re-aa-approved-judgement

 

I think the note from Mostyn J is important to read

 

NOTE BY MR JUSTICE MOSTYN (4 December 2013)
Although no-one has sought to appeal the judgment dated 23 August 2012 during the last 15 months, or to have it transcribed for any other purpose, I have decided to authorise its release together with
the verbatim transcript of the proceedings and the order made so as to inform and clarify recent public comments about this case.
It will be seen that the application to me was not made by the local authority or social workers.
Rather, it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust, supported by the clear evidence of a consultant obstetrician and the patient’s
own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone
two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
The patient was represented by the Official Solicitor who instructed a Queen’s Counsel on her behalf. He did not seek an adjournment and did not oppose the application, agreeing that the
proposed delivery by caesarean section was in the best interests of the patient herself who risked uterine rupture with a natural vaginal birth. I agreed that the medical evidence was clear and,
applying binding authority from the Court of Appeal concerning cases of this nature, as well as the express terms of the Mental Capacity Act 2005, made the orders and declarations that were sought.
Although I emphasised that the Court of Protection had no jurisdiction over the unborn baby, I offered advice to the local authority (which were not a party to or represented in the proceedings, or
present at the hearing) that it would be heavy-handed to invite the police to take the baby following the birth using powers under section 46 of the Children Act 1989. Instead, following the birth there
should be an application for an interim care order at the hearing of which the incapacitated mother could be represented by her litigation friend, the Official Solicitor
Okay, there’s quite a lot in that, so let’s break it down :-
1. The application for the Court to rule that the surgeons could undertake a C-section was made by the health authority, not by social workers
2. Social workers weren’t a party to the proceedings or represented
3. The mother was represented through the Official Solicitor and by Queen’s Counsel
4. The Court heard evidence that the mother was seriously mentally unwell and incapacitated  (not quite Brooker’s “panic attack”)
5. The decision about the C-section was on the basis of very clear medical evidence that it would prevent a uterine rupture
6. Mostyn J gave advice to be communicated to the local authority social workers, that any decision about removal of the baby should take place at a Court hearing with the mother represented through the Official Solicitor
 rather than the police exercising their powers to remove for a period of 72 hours and place the baby in the care of social workers
7. The decision about the C-section was made lawfully, taking the statutory matters into account and following the clear principles already established in English law   (i.e there isn’t anything dramatically new about what happened here, in relation to the Court of Protection decision)
Now, there is still a public debate here about point 3, and I am sure that John Hemming MP would still wish to have it. Although the mother was represented through the Official Solicitor and had a very very experienced and senior barrister representing her; as the mother did not have capacity to instruct a solicitor and tell them what she thought about the operation, the Official Solicitor did not oppose the application.  (I know that Mr Hemming MP taes the view that this procedure is unfair for vulnerable people and there is a disconnection between the mother and those who are purportedly representing her. It is a tricky one, and worthy of further debate. However, what was done here is the usual process with a person lacking capacity – even slightly more so, given that Queen’s Counsel was instructed.
What there ISN’T here, is the smoking gun that the Sunday Telegraph and others following in their wake were hinting at (or indeed expressly saying) that the C-section had been done at the behest of social workers to facilitate an easier time of removing the child into care.  Let’s see if the Press correct that.
There is STILL a genuine debate to be had about the circumstances in which the child was removed – but the Local Authority made an application to the Court (as Mostyn J had advised) and it seems very likely that the mother was represented through the Official Solicitor for that hearing (they already being seized of the situation).  Let’s wait and see what that judgment says – of the three judgments, that is probably the pivotal one, since it will illuminate whether the evidence and the risks involved really required this baby to be removed whilst mother was unconscious and recovering from her operation.
(I may come back to the judgment, but wanted to get it up so that people could read it for themselves)

 

 

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The work of Guardians in care cases

Posted on December 4, 2013 by suesspiciousminds

 

One of my regular readers, Boxerdog, asked me to have a look at the CAFCASS commissioned research into the work of Guardians in care cases – it has been a bit of a week, and ordinarily this would have been much higher up my agenda.

Anyway, the report is here :-

Click to access FINAL_VERSION_Cafcass_-_The_work_of_children%27s_guardians_in_care_cases.pdf

 

The report sets out to answer two questions

1. What work was undertaken by Guardians?

2. When in the proceedings did that work take place?

 

So the fact that the research isn’t particularly helpful is the fault of the persons framing those parameters and questions, rather than flaws with the research itself.  I don’t think many people’s big unanswered questions with CAFCASS were these, but more about were they a genuine check and balance to the State, were they genuinely representing the voice of the child and looking at things in the round rather than the focus on “safeguarding” which seems to have crept in, was their work considered helpful and useful by other (shuddering at the word) stakeholders in the process – the children, the parents, the Judges?

 

But anyway, those are the questions we got. The answer to the second is “Mostly at the beginning” and in the first three months, chiefly.  Of course, most of the really important stuff in care proceedings is happening at the end, as assessments are completed, decisions are being made and the views of children about the range of options for their future is being gathered, so some might think that the balance here is a bit askew.  As a counterpoint to that, the meeting of the parents and relatives, reading the court papers, deciding on an expert and questions, and reading the social work files (ha!) all happens at the beginning, so I am perhaps being slightly unfair.  It depends whether the ‘front-loading’ means  “More at the front, but quite a bit all the way through”  or “almost all at the front and very little thereafter”

 

The report shows that CAFCASS met with the parents in 90% of care cases  (giving the benefit of the doubt, there ARE SOME parents who don’t involve themselves in any point in the proceedings, think 10% is rather high estimate of that) and met with/observed the children in 95% of care cases

 

Contact with the child
: the guardian had contact with the child in 95 per cent of cases. Four of the five cases in which there was no contact had some features in common, notably previous proceedings in respect of older children and the child being 0 years of age. In the fifth case the court found that the significant harm threshold was not met. The mean number of contacts per case was three, and the range was 0- 13 contacts. The type of contact was influenced by the age of the child. Thus, the guardian met with the child in 33 per cent of cases, but in every case where the child was aged 12 or older. Fifty seven per cent of children in the sample were aged four or under, the guardian observing children in this age group, in the presence of a parent, carer of foster carer, in 92 per cent of cases. There was telephone contact between the guardian and the child in nine per cent of cases
Not blaming individual workers for this, it is a shift in our times and the organisational priorities and how workloads are managed. But when I started, if a Guardian had visited the child 3 times during the course of the proceedings, they would have been SLAUGHTERED in the witness box. I remember on rare occasions seeing a Guardian ad Litem (as they then were) get completely taken to the cleaners for having made just 3 visits.  And that was in the days when care proceedings were shorter  (yes, before we had all of the protocols and PLOs to reduce the duration of care proceedings, they were actually quicker than 55 weeks) and more pertinently, before the Human Rights Act and article 8 was at the forefront of our minds.
What the report doesn’t look at, of course, is whether that contact is sufficient for the purpose of representing the child and being their voice in proceedings. As we diminish the role of independent experts in the court process (by a combination of cutting their fees until they don’t want to do it, and raising the bar on getting permission from the Court to instruct them), a good, solid, robust, inquiring and genuinely independent Guardian with no axe to grind other than “what does this child want, and what is best for them?” becomes a vital check and balance to the State, and this low-level of input doesn’t always provide for that.
Not the fault of individual Guardians – there are damn good ones who are very committed and work very hard, and rightly pull Local Authorities up on bad practice or decisions or unfairness, but the organisation s a whole decided to try to manage the increased volume and workloads by spreading the individual Guardians more thinly, and that has had profound knock-on repurcussions.
Back when I started, if you had a new baby born and there had been previous proceedings on a brother or sister, the first thing anyone would read from the old papers would be the Guardians report, which would tell you everything you needed to know, it would set the scene and give you all of the story of what had happened in the case. (you might agree with the final recommendation, you might disagree with it, but the report would tell you the story). I haven’t started with the Guardian’s report for many years now.

 

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Can one simultaneously be baffled and pleased?

Posted on December 3, 2013 by suesspiciousminds

It appears so. The MoJ have published a consultation on Court fees. Long time readers of this blog will know my rather low opinion of consultations  (they are a way of breaking bad news to people whilst pretending that “your view can make a difference”)

 

And any consultation on Court fees normally means one thing – they’re going up, stand still whilst the MoJ mugs you. It is so tiresome for the MOJ if you wriggle about whilst they go through your pockets and wallet.

 

This one, it appears not

 

https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform

 

 

Please send your response by 21/01/14 to:

Graeme Cummings Ministry of Justice Law and Access to Justice Group Post Point 4.38 102 Petty France London SW1H 9AJ

Tel: (020) 3334 4938

Fax: (020) 3334 2233

Email: mojfeespolicy@justice.gsi.gov.uk

 

[Might actually be worth doing that, this time]

 

 

Here are some good news items from it  (good news, from an MoJ consultation on fee changes, you can see why I am baffled)

 

Removing the fee from Non-molestation or Occupation order applications (currently £75).  Given what a palaver getting the fee-exemption was, many people ended up just paying the fee, and it always seemed wrong to me that people should have to pay a fee to get protection from domestic violence.

 

The fee for any application in Children Act cases (other than s31) is now just £215, same across the board. No more looking up in a chart to try to work out just what the bloody fee is for those applications that you hardly ever make. It’s just a standard fee across the board. That’s gone up a bit (£35) for most of the applications.

 

And here’s the odd one  – you may recall that the fee for issuing care proceedings went up several thousand per cent – from about £175 to over £5,000, and went up again in April.

The lie / spin at the time was that this was completely cost-neutral and would be covered by central government funding and that it was not an attempt to artificially depress care proceedings or provide a financial incentive for Local Authorities not to place cases before the Court.  You may recall a judicial review that didn’t succeed, and then all the various reports saying “these fees should be abolished”.   If the fees ever were cost-neutral, which almost anyone in local government would dispute, they certainly aren’t now, as central funding has been salami sliced over many years. Those court fees represent a significant drain on public authorities limited resources.   

 

The current arrangement is that the LA pay the court a fee of £3,320 up front, and then a further fee of £2,155 if there’s a final hearing.

 

Well, I immediately look for that section, to see how much care proceeding court fees are going to go up by, and see the proposals are :-

 

Flat fee on issue to change from £3,320 to £2,000   (yes, that’s actually gone DOWN)

 

Fee for final hearing to change from £2,155 to £0   (yes, that’s actually nothing)

 

This is something of a climb-down – I mean, it’s not the recommendation of the Laming report, the Plowden report or the Family Justice Review (all of which the Government said in advance they would implement in full) that the fees be scrapped entirely, but it’s a START.

 I couldn’t find anything within the consultation document that was a rationale for this reduction, so I went to the public attitude survey here

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/262917/public-attitudes-civil-family-court-fees.pdf

 in which people were surveyed about court fees and given some hypothetical examples to set fees for. (There are some interesting things, more useful for private law, about public attitudes towards fairness of the court system)

 

[I did this exercise  because if I see a gift horse, the first thing I DO is look in its mouth. It is nonsensical advice to say “Don’t look a gift horse in the mouth”  – the story comes from the Trojan War, and OF COURSE the Trojans should have been wary about the gift horse…]

 

Anyway, there’s nothing in that either.  In any event, thank you MoJ for a consultation document that made me happy rather than miserable. Let’s see if it translates into action.

 

(That’s potentially a lot of money that can be spent on services to help and support troubled families, so it is not just good news for Local Authorities, but for real people too)

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Death by a thousand cuts – expert fees take another hit

Posted on December 3, 2013 by suesspiciousminds

 

You might remember some time back that there was a consultation on a proposal to reduce expert fees further from the drastic cuts brought into play in October 2011   (I say consultation, what I mean of course is, breaking the news to experts that this was definitely going to happen and giving them a few months notice whilst pretending that no decisions had yet been made)

 

As ever with a Government agency, finding the document that actually publishes the new rates is a forensic ferreting exercise all of its own, but this is it, below

 

http://www.justice.gov.uk/downloads/legal-aid/funding-code/remuneration-of-expert-witnesses-guidance.PDF

 

These rates now come in to all cases with a start date after December 2013   (so it is worth knowing that an expert who is INSTRUCTED in January 2014, might get paid at the old rates if the CASE itself started before December 2013. If you’re an expert, that might well be a question worth asking)

 

 

Picking out the ones most common in care proceedings  (these are non-London rates, some of the London ones are slightly different)

 

[When I say 2011 rate, that was the rate from Oct 2011 until April 2013, when there was an interim cut]

 

Child psychiatrist now £108 per hour  [the rate in 2011 was £135]

 

Child psychologist £100.80 per hour [the rate in 2011 was £126]

 

DNA testing  £252 for the sample and testing, £72 for the report  [2011 was £315 and £90]

 

Interpreter £28 per hour   [2011 was £32]

 

Neurologist £122.40 per hour [2011 was £153]

 

Paediatrician £108 per hour            [2011 was £135]

 

Psychiatrist £108 per hour               [2011 was £135]

 

Psychologist £93.60 per hour          [2011 was £117]

 

Risk assessment expert £50.40 per hour [2011 was £63]

 

 

 

If you imagine a ballpark of the costs having been cut by 33% in two years (having already been cut down extensively in the 2011 changes) you’d be about right.

 

The new guidance is silent on social work costs, which have historically been at £30 per hour.  Let’s take that to mean that ISWs can still be paid at £30 an hour, which is good news, because applying the 33% cut given to other experts would mean ISWs working at £20 an hour, and there really would be none left at that rate.

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Untimely ripped part two

Posted on December 3, 2013 by suesspiciousminds

Firstly thank you to all the contributors to the debate on the first post, I think this case undoubtedly stirs up not only emotions but some genuinely important issues. No doubt once we get the Court of Protection judgment (which is the really important one) more issues will be stirred up.

I have to point you all towards Pink Tapes very thoughtful and considered analysis of the case

http://pinktape.co.uk/cases/never-let-the-facts-get-in-the-way-of-a-good-story-eh/#more-4418

which makes the very important point that the Press are conflating two separate decisions and applications

1. The Health authority’s application for a determination about capacity and surgery to the Court of Protection, which would have been about health issues

2. The Local Authority’s application for removal of the child on an interim basis, which would have been about risk  (and appears from the reporting to have taken place in mother’s absence and whilst she was not conscious)

It is the conflation of those two separate decisions and applications into one that suggests that the C-section happened to make it easy for social workers to remove the child that raises the temperature so much.   There are still very interesting and important issues in the case, however, and still a legitimate public debate to be had about whether this is right or not.

It occurred to me that I could imagine all sorts of scenarios where this choice was a genuine life-or-death one for both limbs (it would be wrong for me to speculate about those, but it doesn’t involve much of a stretch to concieve of a situation where it appeared that the only way to save A baby’s life was to take this incredibly harsh action). Now, we don’t know whether that was the case here or not, and await the judgments to give us an informed view.

[So from here on out, I am not talking about THIS particular case, I am talking about a hypothetical case, where the Court is satisfied that there is a genuine life-or-death choice to be made, where the issue is either to save the child OR to intervene in the starkest and harshest way  –  the Court is of course bound by Art 2, so would have no choice BUT to act, if the choice were that stark]

Hypothetically, IF the evidence was that this action was the only thing that could have saved the child’s life and the risks there were ones that no Local Authority could sensibly ignore, one still has to consider whether the State (which in my view effectively ‘borrows’ its powers with the consensus of the people) ought to have those sorts of powers, even after a legal process with safeguards and the highest tests before such powers can be used.

I think that there is a very legitimate question, along the lines of Ben Franklin’s famous aphorism  “Those who would trade in their freedom for their protection deserve neither”

If we as a society, and as a free press take the view that even in a life or death situation, an outcome like this is abhorrent and wrong  (and I think I am probably leaning towards that myself, in terms of ‘are these powers that the State should have’ as opposed to ‘those powers existing, was it right to make use of them?’  but I reserve my final position) then in coming to that judgment, we have to accept the consequences of it, which will be that we must be willing to accept that it might be better for the baby faced with this hypothetical situation to die than to use very draconian powers to secure its safety.

That’s a big question put in those terms.  I have immediately thought of  three conflicting positions in relation to that :-

(a) in a life or death situation, pretty much anything goes to save the baby, although the burden to demonstrate that this really is life or death is high

(b) Even in a life or death situation, the State shouldn’t have such powers and it is wrong to exercise them

(c) I would be absolutely opposed to such powers being used in anything short of life or death, and I still feel pretty uncomfortable about the powers existing, because of the draconian nature of them, the fact that the decision is being made in haste and what appears ‘life and death’ might not be in the cold light of day

[I think that in the hypothetical situation, I am probably C, but I MIGHT be B]

I do feel uncomfortable that a removal hearing takes place whilst mother was unconscious, if the reporting is accurate, and I would want evidence of a very high level that there was really nothing that could be done to safeguard the child whilst a hearing took place with mother being present.

I have little doubt, that IF we had a hypothetical situation like this, and the risks were genuine life or death and this draconian action was the only way to save the baby, and the LA HAD NOT acted, there would be equal criticism and vitriol from the Press about bungling social workers who let a baby die even though they knew how big the risks were  – “what were they thinking?”.  Does anyone honestly think that we wouldn’t have been seeing “heads must roll” headlines and speeches in Parliament? 

So whilst this case is based on a particular set of circumstances which may never ever crop up again, it does raise an issue of wider importance – are we as a society willing to accept that if the system is rebalanced so that we have a higher tolerance of risk to allow more children to stay with their families, are we at the same time willing to accept the less palatable consequences of that?

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Untimely ripped

Posted on December 2, 2013 by suesspiciousminds

The case involving the Italian mother who whilst in the UK had a caeserean section without her consent, and awoke to find her baby had been removed.

The Press, understandably have taken a very hard line on this – the Independent isn’t one of the Camilla Cavendish / Christopher Brooker brigade, but even they tell the story with very emotive language – social workers ‘forcibly removing the baby from the womb’  – I’ve even seen the phrase ‘ripped from the womb’ employed by the mainstream press today. The Independent even headline their piece that social workers were condemned for this action  (which makes you immediately think “by a judge”, but no, it is by human right campaigners)

http://www.independent.co.uk/news/uk/home-news/social-services-forcibly-remove-unborn-child-from-woman-by-caesarean-after-she-suffered-mental-health-breakdown-8975808.html

 

First things first then – we don’t know the facts.  There will be three judgments in this case, all of which we need to see and consider before we could claim to be informed on the issues. Because contrary to the impression one might form from the Press accounts, social workers don’t have powers to conduct surgery, nor to remove children without either consent or a court order.

The judgments would relate to the applications and would be these :-

 

1. The Court of Protection decision that the mother in question lacked capacity to make a decision about the way in which she was going to give birth, and giving a declaration that a C-section was in her best interests (note that the Court of Protection don’t have the power to make the surgeons carry out the operation, only to tell them that they CAN do it without mother’s consent)

2. The initial decision for removal, which is probably going to be an ex-parte Emergency Protection Order – the existing law on this is that removal of a child from a parent without the parent being present to oppose is a draconian order that requires the most compelling evidence, and the Court should be very reluctant to grant such an order

3. Given that those two matters happened in August 2012, we now have the final hearing in care proceedings in which, it seems, the Court made a Care Order with a plan of adoption, possibly with a Placement Order.  As recent readers of this blog will know, the test for that has become very high (many would say rightly so) – that “nothing else will do”

 

There are three judgments then, two involving very very high and stringent tests and robust evidence – the Court of Protection would undoubtedly have needed to consider the operation very carefully before granting it.

So, firstly, we don’t know the circumstances – given the public debate I think that all 3 of these judgments should be published forthwith and that the Press should also be given access to the documents and evidence in the case (so long as anonymity is preserved). It is vital that one sees in this case whether :-

(a) The proper high legal tests were observed in this case

(b) The authorities involved made the applications that they were entitled to make in law in good faith, and that there was no other option realistically open to them  [were they gung-ho, or just in a genuinely impossible position? We don’t yet know]

 

But over and above that

(c) Whether as a society, we are content for the State to have such powers at their disposal, particularly when they are used on a person who whatever the scenario was a vulnerable person enduring a difficult mental health problem.

 

I can see perfectly well why John Hemming MP has taken an interest in this case – it involves the Court of Protection, decisions being taken in the “best interests” of a person which seem on the face of it to be directly counter to what the person’s own view of what would be in their best interests would be had she been asked, the whole issue of a person being deprived of the opportunity to challenge and fight the most dramatic and draconian applications purely because she lacks capacity (her vulnerability effectively being counted against her twice)

I’m not going to defend or condemn the actions of the State in this one, because I don’t have the facts. [yet]  It may well be that no matter how dreadful the risks and fears were in this case, no matter how strong the evidence, I would still feel uncomfortable that the State had such power  to do such things.  I’m not sure that they sit terribly comfortably with the duties that we have to people under article 8 – I can think of no greater interference with family life than this, and one has to be sure that the interference is both necessary and proportionate.

I do feel that the Press is a little unfair in not conveying that these actions were all a consequence of a Judge making decisions. Whether a Judge, any Judge, should have that power, whether the requirements and tests are high enough  and whether the safeguards for a mother in this position are adequate is a perfectly valid debate, and the sooner the facts of the case are properly in the public domain the better.

 

*I will declare an interest now, I worked for a time at Essex about five years ago, and I think that they are good people; although in any case like this I would prefer to see the judicially established facts rather than the media spin on things

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What it feels like

Posted on November 28, 2013 by suesspiciousminds

I thought that this was a really excellent piece in Community Care and wanted to share it with my readers  (there’s probably some overlap between people who read this and read Community Care, but not total overlap)

http://www.communitycare.co.uk/2013/11/27/feels-like-child-social-work-teams-caseload-dies/

It is something that we try not to think about, but the potential is there with every phone call, every email, every decision you make, the question you ask or forget to ask.

I know that some of my readers think that all social workers are heartless nazi-fascists  –  too certain, coy and hard to please, who need to be lined up and shot come the Revolution *, and I don’t expect to ever change their mind. We will continue to Agree to Disagree.

Nor do I happen to think that social workers are all harp-playing bewinged ministering angels who descend when fear and anguish wring the brow. 

Like any profession, there are good ones and bad ones  (teachers, doctors, lawyers, pop stars). Everyone will have and is entitled to have their own view on what proportion of good and bad makes up the profession.  

 It happens to be a profession where a bad one can cause a lot of misery, but it is also a profession where those within it have to carry a lot of fear and disquiet about making wrong decisions  (either way – the Always/Never myth is, as I and others have discussed, a myth.  https://suesspiciousminds.com/2013/09/29/alwaysnever/ 

Nobody can get every decision right, every time).  

If we as a society constantly ramp up the pressure and consequences of getting a decision wrong in only one direction (always) we do run the risk of getting too many wrong the other, less criticised way (never) 

 

 

*I’m reminded of the phone call I used to get at 9.15am every Monday without fail in an early job, from a man who would tell me that “come the Revolution, you and people like you will be first up against the wall and shot… no offence to you mate”

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Children of parents who are in the UK unlawfully

Posted on November 28, 2013 by suesspiciousminds

 

  The Supreme Court considered this issue in Zoumbas v Secretary of State for the Home Department 2013,  handing down judgment this week.

 http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0100_Judgment.pdf 

 although it chiefly deals with a judicial review of the Home Office decision that the children could be deported along with their parents to the Republic of Congo, it has some relevance for those advising Local Authorities or parents in care proceedings.

 

It has become less uncommon to be dealing in care proceedings with parents who are apprehensive at the words “Home Office” and often what one is trying to predict is whether the child would be able to remain in the UK once the Home Office have processed the case.  

As relatively few family lawyers are also specialists in immigration law (there’s a limit to how many grey hairs any one human can have at one time), that second-guessing process of the intricacies and innate peculiarity / perverseness of Home Office decision-making is not a very scientific process.

 

I’m afraid that this case does not give a definitive answer – in fact, the Supreme Court were very plain that it was not permissible to have a “hard-edged or bright line rule to be applied to the generality of cases” when considering proportionality under article 8. 

 

What the Supreme Court do say is that

 

“in our view, it is not likely that a court would reach in the context of an immigration decision what Lord Wilson described in H(H) (at para 172) as the “firm if bleak” conclusion in that case, which separated young children from their parents.”

 

 

And that whilst the children’s welfare is not PARAMOUNT, it is a primary factor and no other individual factor outweighs the children’s welfare (so the Home Office would need to stack against it a number of other factors to outweigh a decision which was contrary to the children’s welfare)

 

So, the Home Office is to consider the case, and it will decide either that everyone stays or everyone goes.  [This of course raises curious dilemmas of what happens if say a man comes to England from the Congo, and remains here unlawfully, and marries a woman who has come to England from Angola, and remains here unlawfully; and they then have children together. Where do the children get deported TO?]

 

 

 

Here are the key principles in that consideration :-

 

 

 

(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;

(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;

(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;

(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;

 

(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and

(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.

 

 

 

One can see, I hope, that predicting what the Home Office decision will be becomes tricky.  The best one can do is guess that the more troubled the country of origin, the less likely a decision to send children to it might be, and that the longer and more settled the children have been in the UK the greater the argument that it is in their best interests to remain in the UK.

 

 

If you are interested, the Supreme Court upheld the original decision of the Home Office, and refused the application for judicial review by the parents.

 

 

24. There is no irrationality in the conclusion that it was in the children’s best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision-maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country. They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred into United Kingdom society would have been predominantly in the context of that family unit. Most significantly, the decision-maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being. We agree with Lady Dorrian’s succinct summary of the position in para 18 of the Inner House’s opinion.

 

            Finally, we see no substance in the criticism that the assessment of the children’s best interests was flawed because it assumed that their parents would be removed to the Republic of Congo. It must be recalled that the decision-maker began by stating the conclusion and then set out the reasoning. It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance. When one has regard to the age of the children, the nature and extent of their integration into United Kingdom society, the close family unit in which they lived and their Congolese citizenship, the matters on which Mr Lindsay relied did not create such a strong case for the children that their interest in remaining in the United Kingdom could  have outweighed the considerations on which the decision-maker relied in striking the balance in the proportionality exercise (paras 17 and 18 above). The assessment of the children’s best interests must be read in the context of the decision letter as a whole.

 

If one were of course armed with a Guardian’s report and leave to disclose that, and a judgment and leave to disclose that,  both setting out how settled and happy the children are in the UK, and the likely detrimental impact of moving them back to the Congo or wherever applicable, that couldn’t hurt…

 

Not binding on the Home Office of course, but it really couldn’t hurt.

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