suesspiciousminds

Null and void (or not)

Posted on November 4, 2013 by suesspiciousminds

A Local Authority v X and Another 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3274.html

This was a set of care proceedings, within which the Local Authority applied under the Inherent Jurisdiction for a declaration that the marriage the child had entered into should not be recognised in English law. It was an application supported by everyone, but ultimately refused. The reasons for the refusals are interesting and potentially applicable to other cases.

The child, X, underwent a marriage in Pakistan when she was aged 14. A gun was produced to compel X to undergo the marriage against her will, and she was also abused by her “husband”

The LA position was that this was an unlawful marriage, given that X was domiciled in England at the time of the ceremony and was considerably under age.

The impact on the care proceedings was this :-

That X conceived a child as a result of that marriage. The father of that child would have parental responsibility IF the marriage was lawful, but if it was not lawful he would only have PR if X agreed to it (either by registering him as the father on the birth certificate, or entering into a parental responsibility agreement)

That would have consequential implications for any proceedings taking place in relation to X’s baby – whether the man who married X (and by all accounts was pretty vile towards X) would be a part of the care proceedings.

I hold by this judgment, as a mixed finding of fact and law for the purpose of the care and placement proceedings, (but not making any declaration to this effect) that the marriage between ‘X’ and the father of the baby is, on a balance of probability, void. Under English law, the father was not validly married to the mother on the date of the baby’s conception or birth. Section 1(3)(a) of the Family Law Reform Act 1987, read together with section 1(1) of the Legitimacy Act 1976, provides that a child shall nevertheless be treated as legitimate (with the consequence that the father does have parental responsibility) if at the time of the child’s conception either of the parties reasonably believed that the marriage was valid. However section 1(1) of the Legitimacy Act 1976 is subject to subsection (2) . Subsection (2) provides that subsection (1) only applies where the father of the child (viz. of the baby in this case) was domiciled in England and Wales at the time of the birth which, patently, the father of this baby was not. I therefore hold that the father does not have parental responsibility for the baby.

Now, you may well be thinking, that as a result of the judge finding as a fact that the marriage was probably void and that father does not have PR, that going on to end the marriage by making a declaration would be quite straightforward.

That declaration was sought by the LA and supported by the mother and Guardian.

The Judge was troubled that X could herself apply for nullity of the marriage, and had given this direction earlier

“‘X’ must give consideration as to whether she wishes to issue a petition for a decree that the said marriage is void on the grounds that (i) on the date of the marriage she was domiciled in England and Wales; and (ii) on that date she was under the age of sixteen, so that the marriage was void pursuant to section 2 of the Marriage Act 1949 and section 11(a)(ii) of the Matrimonial Causes Act 1973 (see Pugh v Pugh [1951] P 482). In the event that she voluntarily decides to issue a petition, it should be issued in the Birmingham County Court and an application made for it to be transferred to the High Court of Justice in the Birmingham District Registry

X had not applied for nullity.

At paragraph 23 of her most excellent position statement prepared for the hearing today, Miss Vanessa Meachin, counsel on behalf of ‘X’ (through her guardian), wrote as follows:

“‘X’ is the victim of a forced marriage and rape. She is sixteen and struggling with the complexities of the two sets of legal proceedings that she is already involved in. It is respectfully submitted that it is unrealistic to consider that she is presently equipped to proceed with a petition for nullity.”

Later, at paragraph 26, Miss Meachin wrote:

“The applicant local authority have set out their position comprehensively as to why such relief is sought and is entirely appropriate. In this respect ‘X’, her guardian and legal team entirely support the position taken by the applicant and commend the relief sought to the court. This is a matter that is capable of being resolved at this hearing.”

In elaboration of what she wrote there, Miss Meachin has added today, with eloquence and cogency, that it is really too much to expect ‘X’, at any rate at her present age and stage in life, herself to take an active step that would be so defiant of her parents and family as herself to petition for a decree that the marriage that they forced her to enter into, as I have described, is void. In effect, ‘X’ and her legal advisors on her behalf seek to shelter behind the application that the local authority have issued, as I have described.

I would suggest that those are all very appropriate reasons why X would not seek a nullity in her own right, and why if it were lawful for the Court to declare the marriage void, it would be beneficial.

However, as Holman J observed, if there is a statutory remedy which can be exercised in relation to a marriage, the Court is prohibited from using the inherent jurisdiction to declare the marriage unlawful. [You never fail to learn something in a Holman J judgment]

There is a line of authority, both at first instance and in the Court of Appeal, whereby in certain circumstances courts have made declarations that a marriage contracted abroad is not recognised here for one reason or another. Sometimes that outcome is sought in situations where the party to the marriage lacked mental capacity to contract a marriage and continues to lack mental capacity to take any steps to seek its annulment. Lack of mental capacity, however, and also duress, are not grounds which render a marriage void but, rather, which render it voidable under section 12(c) or (d) of the Matrimonial Causes Act 1973.

This case, however, is different. There may, indeed, have been reasons why the marriage is voidable under section 12 since it was achieved in consequence of duress; but in the present case there is the overarching fact that the marriage is altogether void because of the age of ‘X’. The advocates have sought to rely, in particular, upon the authority of Baron J in B v I (Forced Marriage) [2010] 1 FLR 1721. In that case the young woman in question was already aged sixteen at the time of the ceremony of marriage. It was, however, a forced marriage into which she had been forced by duress. There was no question of the marriage in that case being void, although it was, at its inception, voidable. However, section 13(2) of the Matrimonial Causes Act 1973 has the effect that there is a statutory bar on petitioning for a decree of nullity where a marriage is voidable for duress if more than three years have elapsed from the date of the marriage. In that case, the issue as to the status of the marriage was only raised after more than three years had elapsed, and accordingly at a stage when it was no longer legally possible to obtain a decree of nullity. It was in those circumstances that Baron J was asked to make, and did make, a declaration that the marriage in question was never a marriage which was capable of recognition as a valid marriage in England and Wales.

It is very important to note that at paragraph 14 of her judgment Baron J said:

“A number of authorities have been placed before me which persuade me that judges at first instance and, more importantly, the Court of Appeal regard the inherent jurisdiction as a flexible tool which must enable the court to assist parties where statute fails…” [my emphasis]

At paragraph 16 of her judgment, Baron J quoted a passage from an earlier judgment of Coleridge J in which he had said:

“There is a real stigma attached to a woman in the petitioner’s situation if merely a divorce decree is pronounced and it is desirable from all points of view that where a genuine case of forced marriage exists, the courts should, where appropriate, grant a decree of nullity and, as far as possible, remove any stigma that would otherwise attach to the fact that a person in the petitioner’s situation has been married.”

Baron J continued by saying:

“In this case, nullity is not an option for it is statute barred.”

The facts and legal situation in that case were, therefore, completely different from those in the present case. In the present case statute does not “fail”, for there is no time bar to obtaining a decree of nullity in the case of a marriage which is void. So in this case nullity is “an option” and is not statute barred.

In her judgment in B v I Baron J correctly adverted to subsection 58 (5) of the Family Law Act 1986. That provides as follows:

“(5) No declaration may be made by any court, whether under this Part or otherwise – (a) that a marriage was at its inception void.”

Note that that subsection contains an absolute statutory prohibition on any court making a declaration that a marriage was at its inception void, “whether under this Part or otherwise”. It, therefore, absolutely forbids the making of a declaration, even in the so-called inherent jurisdiction of the High Court, to the effect that a marriage was at its inception void.

As Baron J said in paragraph 12 of her judgment in B v I :

“That term was included in the Family Law Act 1986 to ensure that the Act was not used to circumvent the strict requirements of the Matrimonial Causes Act 1973.”

She continued:

“However, it is clear that the inherent jurisdiction must be used in a manner that is flexible enough to ensure that justice is provided for all. The plaintiff in this case does not seek a declaration that the marriage was void at its inception, rather, she seeks a declaration that there was never a marriage capable of recognition in England and Wales.”

As Baron J herself later said at paragraph 17, the distinction between making such a declaration and a declaration that the marriage was at its inception void is “an extremely fine” one. But, on the facts of that case, Baron J was never faced with the situation where the court might have been able to make a decree of nullity on the ground that the marriage was void or a declaration that the marriage was “at its inception void”. On the facts and in the circumstances of the case with which she was faced, the marriage was never a void one but was, at most, one which was voidable in the discretion of the court on the grounds of duress which fall under section 12 rather than section 11 of the Matrimonial Causes Act 1973.

So that presents a problem. Counsel in the case were urging Holman J to follow Baron J’s line and make a declaration that there was never a marriage capable of recognition in England and Wales. But the difference here was that there was a statutory option available.

It seems to me that there is a fundamental distinction between the facts and circumstances in the case of B v I and those with which I am faced. In the present case, as I have said, this marriage is a void one. If ‘X’ chose to present a petition for nullity, which she has ample age and mental capacity to do, being now aged almost seventeen and of normal maturity and intelligence, then (if satisfied as to the facts) the court could and would pronounce a decree of nullity on the ground that the marriage is void.

There is no statutory gap in this case. If, on the facts of this case, I were to grant a declaration to the effect that the marriage is not recognised in England and Wales, or that there never was a marriage which is capable of recognition in this jurisdiction, I would not be filling a gap. I would, frankly, be bypassing and flouting the statutory prohibition in section 58(5) of the 1986 Act by a mere device. I cannot do that and I am not prepared to do that.

I do understand and have sympathy with the point and position that it might be particularly defiant by ‘X’ of her family for her herself to initiate proceedings for a decree of nullity, although she now has little contact with most members of her family. The reality is that sooner or later she needs fully to resolve her legal status and to face up to the obviously necessary step of obtaining a decree of nullity, not least for the reasons given by Coleridge J in the passage quoted at paragraph 27 above. That, however, is a matter for her own decision, her own timing, and her own choice. For the reasons that I have now given, I simply refused to make the declaration sought.

One hopes that this issue never crops up again, but sadly such under age marriage continue to occur, and whilst it might be helpful and useful that the child herself does not have to drive the dissolution of the marriage, the inherent jurisdiction does not help where the statutory remedy exists.

{I have to say that my initial instinct was to look at the Forced Marriage (civil protection) Act 2007 for a remedy here, but that doesn’t seem to me to give the Court power to dissolve a forced marriage over and above the existing provisions. }

http://www.legislation.gov.uk/ukpga/2007/20/pdfs/ukpga_20070020_en.pdf

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Sanctity and futility

Posted on November 4, 2013 by suesspiciousminds

The Supreme Court recently gave judgment in

Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67

{This is the first Supreme Court decision on Mental Capacity Act – there’s obviously the Cheshire West decision pending, but this is still quite a big deal}

http://www.bailii.org/uk/cases/UKSC/2013/67.html

Lady Hale captures the importance of the judgment in one simple opening

This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?

There’s a really excellent summary over at UK Human Rights blog

Supreme Court weighs in on patient’s best interests and the meaning of futility

The Court of course re-emphasised the existing law and the starting point that human life has a sanctity and that making any decision that might hasten the end of life is a very serious one requiring very careful analysis. That’s long-standing authority, of course backed by Article 2 of the Human Rights Act which protects an individual’s right to life.

In a nutshell the patient David James had severe medical conditions and complications arising from those. He reached a point where neurologically he was no longer able to make decisions about his own treatment. The hospital took the view that the treatment they were able to provide was not going to cure him or help him recover. He did appear to recognise his family during their visits and take pleasure from them.

The hospital sought a declaration from the Court that they should be permitted to not provide Mr James with treatment which would be invasive or painful. The family opposed this, considering that Mr James was still able to take some pleasure from life and that his life should continue.

The three treatments that they wished to withhold were these [Note that there was not a suggestion of ending Mr James life through an overdose of pain medication, nor of ceasing to provide him with food or liquid – though of course, if Mr James HAD needed CPR to keep him alive and that would not be provided, it would hasten his death]

The three treatments in question, as described by the judge (para 8), were as follows:

(1) Invasive support for circulatory problems. This meant the administration of strong inotropic or vasopressor drugs in order to correct episodes of dangerously low blood pressure. The process is painful, involving needles and usually the insertion of a central line. The drugs have significant side effects and can cause a heart attack. They had previously been used to treat Mr James.

(2) Renal replacement therapy. This meant haemofiltration, filtering the blood through a machine to make up for the lack of kidney function. It too requires a large line to be inserted and an anti-coagulant drug which brings the risk of bleeding or a stroke. It can be very unpleasant for the patient and may cause intense feelings of cold. Mr James had not so far required this treatment.

(3) Cardiopulmonary resuscitation (CPR). This aims to make a heart which has stopped beating start beating again. So the decision has to be taken at once. It can take various forms, including the administration of drugs, electric shock therapy and physical compression of the chest and inflation of the lungs. To be effective, it is “deeply physical” and can involve significant rib fractures. CPR had successfully been given to Mr James when his heart had stopped beating in August.

The debate hinged really on the Mental Capacity Act Code of Practice

The Mental Capacity Act Code deals with decisions about life-sustaining treatment in this way:

“5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.

5.32 As with all decisions, before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person’s best interests. All the factors in the best interests checklist should be considered, and in particular, the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment.

5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests.” (Emphasis supplied.)

The issue here was therefore whether the three treatments in question met that criteria of being ‘futile, overly burdensome to the patient or where there is no prospect of recovery’

The initial Court of Protection decision was to refuse the hospital’s application for a declaration that they could decline to provide those 3 forms of treatment. That was appealed and the Court of Appeal overturned that, and allowed the declaration.

The family then appealed to the Supreme Court. The Supreme Court actually found that the original trial judge at the Court of Protection had been right BUT that by the time the case got to the Court of Appeal, deteriorations in Mr James condition meant that the Court of Appeal HAD also been right to reach the opposite decision.

[But that on two areas of principle, the original judge had been right and the Court of Appeal had been wrong]

In particular, the Supreme Court reached two key decisions

That a treatment was not futile just because it had no real prospect of curing or palliating the illness – a treatment that could improve or restore some quality of life might not be futile

Thus it is setting the goal too high to say that treatment is futile unless it has “a real prospect of curing or at least palliating the life-threatening disease or illness from which the patient is suffering”. ….where a patient is suffering from an incurable illness, disease or disability, it is not very helpful to talk of recovering a state of “good health”. The patient’s life may still be very well worth living. Resuming a quality of life which the patient would regard as worthwhile is more readily applicable, particularly in the case of a patient with permanent disabilities. As was emphasised in Re J (1991), it is not for others to say that a life which the patient would regard as worthwhile is not worth living

The test is not an “objective” test as to whether a reasonable person or even reasonable patient would consider the treatment to be futile or burdensome, but a subjective one – whether that is the case for THIS patient, where the Court should as best as possible put themselves in the shoes of the patient and take into account as much as is known or can be established about what the patient’s own view would have been.

The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that “It was likely that Mr James would want treatment up to the point where it became hopeless”. But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.

The Supreme Court made it plain that there might be circumstances in which medical professionals, or even families, might make the decision that it was right to seek a declaration from the Court of Protection about treatment in such cases, but that it would ultimately be a matter for the Court of Protection to make such a decision, and the court might take a different view to that of the applicant.

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Burning questions

Posted on November 1, 2013 by suesspiciousminds

These are a selection of issues that I now consider are somewhat up in the air following the autumn decisions by the Court of Appeal in public law cases. I’m sure that there are many others

1. What, precisely, does “nothing else will do” mean? [see my article in Family Law for more digression on this topic alone http://www.familylaw.co.uk/articles/nothing-else-will-do-why-the-last-resort-won-t-necessarily-be-the-last-word ]

2. When properly rigorous judgments that comply with Re B-S finally filter through into appeals (i.e about 2 months from now), will the Court of Appeal intervene to replace the judicial decision about Placement Orders? So far, what we have had is “go back and rehear the case, as the judgment is deficient” – what we don’t know is the extent to which the Court of Appeal will want to get under the bonnet of cases where the judgment ticks the boxes (to mix metaphors horribly)

3. For the purpose of appeals, now that we know that almost anything one would ever appeal in public law cases has the test of “wrong” and not “plainly wrong” – how much distance is there between those two phrases?

4. Has the previous latitude given to the decisions of the Family Proceedings Court that their judgments were not intended to be compared to the sort of judgment one would expect of a professional judge – and the time constraints on them were to be weighed in the balance (Re M – Section 1995 appeals 1995 and Re O Care versus Supervision 1996) now gone where the case involves placement outside the birth family? The rigorous requirements of Re B-S seem to apply firmly to the FPC as well as to professional judges. Where exactly does this fit within the standardised template?

5. Does the Court of Appeal decision in Re B (A child) 2012 2 FLR 1358 which suggests that even a solid application for leave for party status or leave to apply for a residence order can be refused if the impact on the child (including delay) is sufficient, stand in cases where Placement order is an alternative [note particularly that the test now appears to be higher for s10(9) leave than it is for leave to oppose adoption]

6. Is dual-planning still legal, given the conflict between Re P and “nothing else will do?” as highlighted in the Re DR 2013 case?

7. Where a Court is satisfied that the child has to be permanently placed outside the family, do they have to reject long-term fostering as an option in order to make a Placement Order? (again, as floated in the Re DR 2013 case)

8. Should adopters be represented at a leave to oppose adoption application?

9. Should the child?

10. Will parents be given public funding for such applications? If not, will judicial reviews ensue?

11. What exactly does a contested adoption hearing involve? To what extent will the parents be able to cross-examine the adopters? [particularly relevant if the parent can’t get funding for lawyers at a contested adoption hearing] How will Guardians approach establishing the wishes and feelings of the child without causing disruption? What impact will a contested adoption hearing have on future contact ? How precisely can a Court assess the impact of having a contested adoption hearing when deciding an application for leave when nobody yet knows what a contested adoption hearing would involve?

12. Given that Re B-S and Re W both emphasise that the task for a parent at a contested adoption hearing is not necessarily to secure the return of the child but to persuade the Court to make an order other than adoption, and that at a contested adoption hearing the test will STILL be that before an adoption order can be made, “nothing else will do” – aren’t the Courts going to be faced with arguments that a Special Guardianship Order should be made instead?

13. What impact will the combination of uncertainty over contested adoption hearings AND the possibility of a Special Guardianship Order being imposed on people who wanted to adopt have on (a) timing of adoption applications and hence the Government desire to have adoption orders made in a more timely fashion [since you would be downright CRACKERS as a prospective adopter to lodge your application now when you may well end up being a test case] and (b) people’s desire to become adopters and (c) the willingness of approved adopters to seek to care for children from England and Wales rather than from abroad where they won’t face those issues.

14. What will be the new test for leave to revoke Placement Orders – given the alterations to the test for leave to oppose adoption, the test will clearly come down, so any Court deciding such an application NOW will be doing so in the dark

15. Will the test for leave to apply to vary or discharge a Special Guardianship Order change? The test was largely modelled on the leave to revoke Placement Orders / leave to oppose adoption “change of circumstances + that change being sufficient to justify any disruption” which is now altered as a result of Re B-S and Re W.

16. When will the argument about the Court imposing a plan of therapeutic support on the LA, which is hinted at in both Re B-S and Re W (Neath Port Talbot) take place? How will it be decided? Can it be decided without going to the Supreme Court, given the Supreme Court decisions in Barry and Kent County Council v G?

17. To what extent do the judicial steers in Neath Port Talbot towards “order the LA to file a care plan in line with the judgment given, and JR them if they refuse to do so” impact on the regulatory duties under the Care Planning and Placement Regulations that mean that the Local Authority cannot approve a placement of a child with parents under an ICO unless satisfied that to do so “safeguards and promotes the child’s welfare”

18. To what extent do the judicial steers in Neath Port Talbot apply to Interim orders? Not at all, or is there no difference between trying to compel a final Care Order at home and an Interim Care Order at home, on a Local Authority who are resistant?

19. Given that the Court of Appeal consider that the welfare of the child is throughout their lifetime and talk about decisions in care proceedings having impact that last for perhaps seventy, eighty years, how significant in that context is a delay of eight weeks in resolving the child’s future? Can any application to extend the 26 week period for a further 8 weeks be refused purely on the impact of delay? What the hell does that mean for timescales and targets? Will the Court of Appeal uphold any case management decision to refuse such an extension? Given that if there is such a refusal and it is appealed, the case can’t be progressed until the appeal is determined, aren’t Judges likely to be invited to take a pragmatic approach on any case for extension that has ‘solidity’ rather than risk an appeal in such uncertain times?

20. Given that the appeals in Re B-S and Re W took over six months from decision to judgment, when are we likely to get answers to these burning questions?

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It ain’t me babe, it ain’t me you’re looking for

Posted on November 1, 2013 by suesspiciousminds

The perplexing circumstances of London Borough of Barnet and M1 (aka M2) 2013

I always love a good County Court judgment on Baiili, sometimes they end up being far more interesting than the High Court stuff. This one doesn’t fail to deliver

http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html

We have all had cases where the parent says that the person described in the papers is not who they really are – that the picture painted is far more damning than the reality, that the many good features aren’t brought into the light. “That’s just not me – I’m not like that”

But this one goes much further than that – to “That’s just not me, I am not the person named in the proceedings”

At the final hearing, the mother of the child in question – who had been present at earlier hearings, claimed that she was a different person entirely and that the facts of the case related to a different physical person – the proceedings were about M1, but she was really M2.

As a result, she said that her child C2, had been wrongly taken into care by people who had been treating him as the child of M1. She was therefore, not disputing any of the facts or assessments that had led the Court to believe that M1 was a risk and that C should be in foster care, but instead that all of those facts and assessments related to different people entirely.

The Court obviously had to deal with this by way of evidence – which was more tricky than one might suppose, despite the obvious fact that some of the professionals in the case had seen both M1 and M2 and knew them to be one and the same. [Underlining, as ever, mine for emphasis]

I deal, firstly, with the mother’s identity. Since her return to this country the mother denied that she was or ever has been M1. I already said that she said her name is M2 and her son (to whom we refer as C) was C2. She refused to see her former solicitor; she would have been able to identify her. SW1 and the newly allocated social worker, SW2, went to visit her in HMP Holloway on 7^th February 2012, neither of whom have seen her before, were seen by her. She told them that her name had been linked with M1 because she bought a car from that woman in Spain. She confirmed that C was called C2. She said she had lived in Spain since 2008 with the exception of a few days in London. She disclosed the name of her brother, Mr A. She said he could look after C.

Mr. A was contacted by the social worker on 15^th February 2012. He was able to say that his sister, M2, contacted him some two to three weeks earlier. If I understand correctly, he has not heard from her for some twenty years beforehand, and last saw her in 1992/1993 in the USA. She told him in the recent telephone call that she had a son called C. He gave the social worker additional information to be found at C246 in the bundle. The information would be important for C’s life story book, but does not need to be detailed by me.

I should add that the mother refused to see anybody who was involved with her in the previous round of these proceedings. This included the Guardian, who was therefore unable to meet with her before the hearing.

When spoken to again, Mr. A and Ms. B said they could not care for C.

The Guardian (as I said) went in to the witness box and was sworn. The mother turned away from her and covered her face with her hair. I suggested that she revealed her face to the Guardian and she did so reluctantly. The Guardian identified her without any hesitation.

Even more importantly, in my view, was the identification of C. The Guardian saw him in December 2010 prior to the May 2011 hearing. She saw him again on 13^th January 2012. She had no problem identifying the child she saw recently as the C she saw last year.

For the avoidance of doubt, I have asked Ms. Carol Edwards to go to the school which C attends and meet up with him at the conclusion of her evidence so as to tell me whether she had any doubt about his identity. Carol Edwards saw him five times in the course of her preparation of the two reports for the 2011 hearing; the last time being in March 2011. I had an email from her later that afternoon confirming the Guardian’s evidence, namely that the child she saw at school was the same child she saw here in 2010/2011.

Despite the mother’s protestation, I find as a fact that regardless of names and true identity the woman who sat in court on Monday was the same woman who was subject to the proceedings in 2010/2011. I make a similar finding in respect of her son.

One might think at this point of some cognitive issues, and those are increased when one learns that some of the concerns about M1 were in relation to her frequent attempts to have her own legs amputated despite having no medical conditions that would require it.

I went on to consider, having found the mother’s identity (as I have said), the issue of capacity – capacity to conduct legal proceedings. I intended for M1 to give evidence on Tuesday to deal with her understanding of these proceedings. I wanted this to take place when Dr. Bass was attending court, so as to consider whether she lacked capacity to conduct litigation. She chose not to attend.

Dr. Bass gave evidence on the issue of capacity. I deal with his written report later, but, even though his oral evidence was short, I was impressed with its cogency and indeed with its breadth. He told me that he recorded the interview with the mother, due to realising (having read her medical notes) that she was litigious and misrepresented aspects of conversations and/or advice of doctors who treated her in the past. He told me that there was nothing in his conversation with her to indicate that she did not understand the nature of the proceedings. He considered her behaviour now to be symptomatic of her dishonesty and pathological lying. He considered her to be very manipulative; her capacity to deceive had been used by her throughout her life and she had probably developed the skill and new mechanisms over the years. She demonstrated, in his view, some features of factitious illness. He thought that from time to time she adopted new identity (he could think of at least five he said) in order to evade reality.

For my part, I took the view on Monday, when the mother attended the hearing, that she was reluctant to be identified at court by the guardian. I was not altogether surprised when she did not arrive on Tuesday, knowing, as she did, that Carol Edwards and Dr Bass would be giving evidence.

Having heard Dr. Bass and having formed an impression of the mother’s behaviour at court, coupled with her non-attendance on a day two other witnesses were going to give evidence of her identity, I have come to the conclusion that there is no evidence before me to rebut the presumption of capacity. I considered her non-attendance yesterday. The mother, in my experience, was not the first parent not to attend a final hearing about their child. As I was satisfied that she did not attend of her freewill, I decided to continue the case in her absence. I am satisfied that her rights to a fair trial have been observed. I decided that C (of whom more below) has waited for far too long, in my view, for the conclusion of these proceedings and his welfare demanded expeditious conclusion of this case. I have seen nothing in the mother’s conduct on Monday, and indeed today, which would indicate to me that there was any merit in adjourning this hearing.

There is an issue in the case which has wider application – it does not of course dislodge the existing precedent authority, but it brought to my attention that this authority probably doesn’t stand up post Re B, B-S etc

I turn to deal with the question of the placement order. This case was before the Local Authority’s permanency panel on 9^th May of last year. C has been approved by the panel for adoption, which means that the panel recommend that he is placed for adoption. That, of course, was ten months ago. Firstly, I deal with the application itself. In my judgment, it has been served on this mother very late. It would be wrong, pursuant to Article 6, to deprive her of the opportunity to consider it. I am satisfied that since she told me today yet again that she is not who I say she is, she is very unlikely to participate as the person I say she is in any future proceedings.

Nevertheless, I have decided to adjourn the question of a placement order for seven days to give her an opportunity to consider my judgment and to consider her response to a placement order. I will list it, subject to looking at the court’s diary and tell you shortly which day and what time, so that the mother can be produced, should she wish to come.

Now, the Court of Appeal have previously said, in Re P-B (A Child) 2006 EWCA Civ 1016

http://www.familylawweek.co.uk/site.aspx?i=ed278

that where a parent is made aware that the care plan for the child is adoption, the actual physical Placement Order application can be served at any point before the Court makes the order, including during the final hearing.

I think that although that authority presently stands [and would have allowed the Court to move to consider the Placement Order application], the Judge was wise here not to have followed it, and to have instead adjourned to provide a greater period of time between the application being served and the Court considering the making of the order. I am pretty sure that Re P-B would be considered to no longer be good law if an appeal were brought on that point.

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Sharing information between care and criminal proceedings

Posted on October 30, 2013 by suesspiciousminds

There’s a CPS protocol about Disclosure of information in cases of alleged child abuse

Click to access third_party_protocol_2013.pdf

I really do know that there’s too much guidance and directives, and strategy initiatives descending on us, because it has taken me a week to force myself to open the document. But then I remembered the unofficial motto and raison d’etre of the Suesspicious Minds blog , which is “I read this stuff, so you don’t have to”

So, I’ll read it and give as short a summary of it as I can bear. It all kicks into lively exciting being on 1st January 2014 (I’m really not selling this much, sorry)

Police to care proceedings

1. There’s a form in there (oh goody, another form) at Annexe D, for a Local Authority to fill in and send to the police, to get disclosure within 14 days. That sounds as though it won’t be necessary to have a court order to seek the disclosure. [though they might redact, or keep info back if it would prejudice the investigation)

2. The CPS are apparently going to give priority to making charging decisions in cases of alleged child abuse where there are linked care proceedings (so perhaps no more waiting to see how our finding of fact hearing panned out before they make that decision)

3. Restrict the requests to relevant material from the police, not a big fishing trawl through everything they’ve got. Expect to see disclosure requests being more narrowly drawn.

4. Where there are no criminal charges brought, the police will let the LA know and give reasons

Care proceedings to police

1. The LA are to let the police know of care proceedings relating to alleged child abuse [again on a form in Annexe D] – that might be a bit broad, I would tend to construe it as care proceedings where the allegations could consititute a criminal offence where the child is a victim [I can’t imagine that the intention would be to alert the police of every care case that arises as a result of heroin misuse, for example]

2. The LA let the police have their files, or access to them, expeditiously – but NOT docs filed in the care proceedings*, and let the police know what schools the children attend. ( *They mean docs created expressly for the purpose of court, and say that for example medical report on the injuries which existed before proceedings but were filed within them, can still be given to the police)

3. the LA can provide the police with docs from the care proceedings PROVIDED it is for the purpose of child protection, not the investigation of the criminal offence – but the police can’t USE this in criminal proceedings (including showing it to the CPS) without permission from the Family Court. (That’s a change, since often the HAVE/USE distinction is viewed to allow the police to show the doc to the CPS to aid in charging decision/decisions about whether to make a full-blown disclosure application)

4. If the police/CPS want to make use of court docs from the family proceedings, they will make a formal application – though the guidance is that they won’t actually attend a hearing for that application unless the Judge directs them to, raising the spectre of four parties in the care proceedings rocking up once to say “we object” and then again a week later for the argument.

5. the LA must send to the police/CPS any transcribed judgment (redacted if necessary) that they get in relation to a case of this kind, and should ask the family court to expedite it where it is known that parallel criminal proceedings are ongoing/contemplated

6. There’s provision for Public Interest Immunity applications (I used to do those a lot, until the criminal courts thankfully determined that it wasn’t a DUTY to assert PII all the time, and the LA could restrict the applications for issues which were particularly vital or delicate that there was a wider public interest in not having social services docs get into the criminal proceedings) – these days, it is only likely to be info on children who are not victims or anonymous referrers identity which is the subject of a PII consideration.

Linked directions hearings

This is actually new – I’ve done it once or twice in particularly tricky cases, but now there is a protocol which allows the Judge in either limb to consider whether it would be helpful to have a joint directions hearing of the care and the crime, so that any issues /conflict can be thrashed out. If you were wondering, us family lawyers have to go to the criminal court – the people in wigs and gowns can’t travel to us. The directions hearings will be linked, but not combined (there are some tricky differences in law and procedure that means just having a joint hearing is not possible). In effect the care people all go into the criminal one and listen, and then if necessary the crime people or some of them will ask to come into the care hearing.

Despite my reluctance to read it, it isn’t actually bad, and not as long-winded as it could have been. Nothing immediate springs to my mind as a terrible omission (apart from the guidance being utterly silent as to whether the police can charge for disclosure, which we were promised would be going away. One could argue that given that the guidance doesn’t say that they CAN, that means they CAN’T. But no doubt those arguments will continue over the next few years)

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Posted in family justice modernisation and tagged care proceedings, cps, cps protocol on disclosure, crime, disclosure, police disclosure. Bookmark the permalink.

Farooqi Friday [It isn’t the art of examining crossly]

Posted on October 27, 2013 by suesspiciousminds

[I know, it’s Sunday, but I only just thought of the pun, and I can’t keep that back for another five days]. A correspondent pointed me towards R v Farooqi 2013 a few weeks back, and I found it very entertaining, but never thought I’d have a family law hook to hang it on – now I do, so thank you to the President for introducing me to a genuinely new experience – being pleased about something written in the View from the President.

If you yourself made it to the end of the View from the President Part Seven,

Click to access view-7-changing-cultures.pdf

you will have seen the President discuss a criminal case, and as we know, there is quite a lot of “cross-pollination” between Views from the President and judicial decisions made by the President. They flow into one another, so expect to see this find its way into a decision in due course.

Skilled advocacy has a vital role to play in the family courts as elsewhere. I stand by everything I said in Re TG (A Child) [2013] EWCA Civ 5.

May I, however, draw to the attention of advocates in the family courts,for it is surely as applicable in family courts as in criminal courts,

a point made by Lord Judge CJ in his very last judgment:

R v Farooqi and others [2013] EWCA Crim 1649, para 113:

“What ought to be avoided is the increasing modern habit of assertion, (often in

tendentious terms or incorporating comment), which is not true cross-examination.

This is unfair to the witness and blurs the line from a jury’s perspective between evidence

from the witness and inadmissible comment from the advocate. We withhold criticism of

[counsel]on this particular aspect of his cross-examination because he was following a

developing habit of practice which even the most experienced judges are beginning

to tolerate, perhaps because to interfere might create difficulties for the advocate

who has been nurtured in this way of

cross-examination. Nevertheless we deprecate the increasing habit of comment or assertion

whether in examination in chief, but more particularly in cross-examination. The place

for comment or assertion, provided a proper foundation has been laid

or fairly arises from the evidence,

is during closing submissions”.

If you are like me, you will have written numerous times in your notes of someone else’s cross-examination “Submissions” (possibly adding an exclamation point, or tutting audibly). I for one, am hoping that we end up in the sort of law court we all day-dreamed of whilst slogging through land law and easements – of hopping up like a Jack-in-the-Box to shout “Objection” and “I move that that remark be stricken from the record” during your opponents questions , perhaps ending up with wearing a white suit and a bootlace tie, whilst pacing around the Courtroom during cross-examination and speaking in a Louisiana accent.

What is this Farooqi case all about then? Other than allowing me to make a cheap pun (and many would say that that were reason itself to admire the case)

http://www.bailii.org/ew/cases/EWCA/Crim/2013/1649.html

Well, it involves an appeal from a criminal case involving suspected terrorist activities, and the arrests were made largely as a result of intelligence gathered by undercover policemen (a topical issue for discussion, I wish I were a criminal lawyer so I could talk about it more in-depth). In essence, the problem in the case was the attempt by one defence counsel to run a defence of entrapment, which for complex reasons beyond the scope of this blog, wasn’t really open as a defence. [I should point out, to be fair to counsel who is being criticised here, that the fundamental nature of the defence was that it had been the undercover officers who had made all the running, so there was a fine line to be trod about making that defence and running a defence of entrapment – it’s not a line I would have been able to tread so it has to be bourne in mind that this was a very difficult situation]

This led to these sorts of exchanges :-

(a) “Q. Well, what I suggest to you is this: that from at least mid January 2009, that that was your style? That you were trying to take advantage of Munir Farooqi’s good nature, so that you could do him harm by attempting to trick him into committing an offence. Is that right?

A. No, sir, it’s completely incorrect. I was playing the part of a role that I had been asked to do so, that had been authorised by a senior officer, and one of my objectives was to play the part of a vulnerable person with low social ties, and I did that throughout the course of the operation.

Q. And I suggest that in pursuit of conviction, while you have been in that witness box, it has been your purpose to deceive the jury by painting a false picture of your relationship with Mr. Farooqi. You have lied in short, is that correct?

A. It’s certainly not the case. I have sworn an oath. I am a professional undercover law enforcement operative, and in doing so, I have answered every question which I believe to be correct, which I have signed a statement to that effect.

Q. You are a professional law enforcement undercover officer?

A. I am a police officer. I am a professional police officer, yes.

Q. Yes, you are a professional liar, putting it bluntly?

A. I use tactics as such as an undercover law enforcement operative to carry out my role. Yes, I do lie in the role of an undercover law enforcement operative, but on this occasion I have sworn the oath and I have answered every question which I believe to be correct.

Q. So you deny both propositions I have been putting to you, that you have been attempting to trick him and that you have been lying on oath, so therefore I had better prove those propositions”

(b) “Q. And over the next eight months you were going to encourage him at every opportunity to talk about his experience in Afghanistan, were you not?

A. No, sir, and I didn’t.

Q. And you and Simon were going to play word games with a man who was ignorant of the fact that he was in peril, in order to trick him to giving you some encouragement by way of document, advice or assistance?

A. I can only answer for myself, sir. I can’t answer for another undercover law enforcement operative, but in answer to your question, that’s no.

Q. And the purpose of that was to enable you to arrest him?”

(c) “Q: Now earlier on in my cross-examination of you, I drew your attention to the fact that some people feign difficulties, so that they can assault, rob or rape people who come to their assistance. What I am suggesting to you is you feigned inadequacy, in order that you could steal from Mr. Farooqi, in order that you could steal his liberty. Is that not right?

A. No, it isn’t, sir”

(d) “Q. And what I am suggesting to you is whether or not he was sending people or engineering for people to go abroad to participate in violent conflict, was a matter of no interest to you in late January of 2009. In late January of 2009 you were hell bent on tricking this man into committing an offence?..

Q. What, and we can trust you, can we?

A. Er, yes, fully.

Q. A professional liar?

A. Erm, I am not a professional liar.

…

Q. Right. Now I think we agree that you do tell lies professionally when you are engaged as an undercover officer?

…

Q. You were cynically exploiting the death of that man, in order to excite either hostile feelings or hostile words against the police, were you not?

A. No.

Q. So that it might be deployed later in evidence?

A. No.

Q. And it is as an example of many examples of how poisonous and devious you can be, seeking out your aims?

The judge intervened during the cross examination on a number of occasions. Mr Bott refers to one example, during the cross examination of Simon on the 13 July 2011, which we set out in its context:

“Q: Well, you say to respect people’s human rights, but you never had any right to enter his premises, did you?

A. Er, yes, I did.

Q. How so?

A. He invited me in.

Q. He never invited you in?

A. I think you will find the first time I ever met Munir on the 4th of January, he invited me to come to his house for something to eat. He wrote his address down, he give me his telephone number.

Q. No, no, no, no, he never invited you?

A. He did.

Q. He invited the person you were pretending to be?

A. Which is me.

Q. He invited the person that was interested in Islam in.

J: Mr. McNulty.

LM: He invited the person who had a history of alcohol abuse in?

J: Mr. McNulty.

LM: My Lord. He never invited you in?

A. Erm, I was portraying to be a normal member of the public. If it wasn’t me that Munir had invited in and radicalised and encouraged to go and fight Jihad, it would have been another vulnerable member of the public from Manchester, so in respect of me attending his address, I feel that my main hope is that I have stopped a vulnerable individual from Manchester being radicalised by Munir and others.

Q. But you never believed for one second that if he knew who you really were you would be invited to his premises, did you?

A. Of course not.

Q. No?

A. If I told him I was a police officer, he definitely wouldn’t have invited me.

AE QC: My Lord.

J: Yes.

AE QC: My learned friend is misleading the jury about the law again.

J: Yes.

AE QC: Because what he is implying from his position as Counsel in his question is that the fact that the officer was going under an assumed alias, means that the invitation which was extended to him did not create a right to enter, and that is, I am afraid, not the law.

J: Of course. It —

AE QC: I am sorry about that, but it is just not.

J: Mr. McNulty, more than one member of the jury was actually shaking his or her head whilst you took this point.

LM: Well, let us see.

J: Mr. McNulty, I am not going to permit it. It is a complete waste of time. It is ill conceived in law, and please move on. He was perfectly entitled to enter those premises. Any suggestion that he was not is wrong in law.

LM: Well, then I suggest as a matter of fact you were no different to the man that pretends to come to read the gas meter, who is really there to steal the old lady’s pension?

J: No, Mr. McNulty. Mr. McNulty, that is exactly the same proposition put in a different way. He was entitled to enter those premises, and that is the end of the matter.

I don’t think I’ve ever enjoyed a sentence in a judgment (though the “finders-keepers” exchange in the Richard II burial judicial review comes close) as much as the Judge here saying “More than one member of the jury was actually shaking his head whilst you took this point”

And culminating in this, during defence submission – I didn’t think the suggestion was “thinly veiled” at all – it was pretty out and out.

Mr McNulty’s closing speech

Mr McNulty made his closing speech to the jury over the course of three days, the 16th, 18th and 19th August 2011. Mr Bott describes it as a defiant and provocative speech which went well beyond anything that was professionally acceptable. A number of specific matters illustrate the submission.

The speech began with what is described as a “thinly veiled” suggestion that the judge was biased in which Mr McNulty encouraged the jury to regard the judge as a salesman of worthless goods:

“After all when you meet with a salesman , he does not start off his sales patter by insulting you but…that does not mean what he is selling you is worth anything.”

Secondly, from the outset Mr McNulty attacked the motives of the Crown and others concerned with the case and encouraged the view that the Crown was a politically motivated witch hunt. The judge and the Crown were depicted as the agents of a repressive state: the purpose of the Crown was to stifle Farooqi’s right to free speech. Other parties who did not agree with his approach, and their counsel were accused of sucking up to the Crown and the court.

Thirdly, Mr McNulty misrepresented the evidence on a number of occasions. He repeatedly gave evidence himself on behalf of Farooqi, which was later summarised by the trial judge, and to which we refer later in this judgment. He made significant allegations that should have been but were not put to witnesses in cross-examination, in particular that the evidence against Malik had been contrived because the police had no evidence that Farooqi had influenced anyone except the undercover officers. This led to a number of interventions from the judge on the first afternoon, (at the end of which Mr Edis raised the propriety of Mr McNulty’s suggestion of judicial bias) and then again on 18th August when the judge said; “You are giving evidence that could have been given by your client and it must stop”. “This cannot continue.”

Mr McNulty said he was addressing the issue of Farooqi’s intention, to which the judge said: “The way he tells us what his intention is by going into the witness box.”

At the end of Mr McNulty’s speech, Crown counsel gave notice that they were considering making an application to discharge the jury. The judge responded that he was not surprised, and that he had been considering the possibility of doing so of his own motion. The court then adjourned whilst the Crown considered its position.

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Human error in the lab

Posted on October 25, 2013 by suesspiciousminds

X X Local Authority v Trimega 2013 (this one may make you shudder, as you think of all the cases where scientific results have played a part in the decision)

http://www.bailii.org/ew/cases/EWCC/Fam/2013/6.html

It is a County Court case and I am very grateful to have had the imminent publication of this brought to my attention.

I am going to be VERY VERY careful about what I write in this analysis, because there are large financial sums at stake hence significant commercial interests and I am aware that the institutions involved are prepared to litigate to protect those interests. For the same reason, I might have to edit comments on this one, so be a bit careful please. The judgment makes it plain that the company concerned have identified the problem and put in place safeguards to prevent it occurring again. (I think that’s enough back-covering and insurance against me being sued, I will now report the facts of the case)

There was a final hearing in care proceedings in July 2013 – the LA had been seeking a plan of adoption. The mother persuaded the Court and the parties that her problems with alcohol were behind her, and had some test result evidence to support this. The final hearing was adjourned for a few weeks, with a view to seeing whether a plan of rehabilitation could instead be achieved.

Shortly afterwards, a blood alcohol test was conducted by Trimega, this arriving on what would have been the first day of the adjourned final hearing.

Between 22 and 25 July 2013 a further blood alcohol test report on the mother was received from Trimega. It was dated 17 July 2013 and the result for the mother’s CDT level was 1.6% — just on the cut-off point between negative and positive results and an obvious increase on previous results. It was of great concern in that it indicated that the mother appeared to have been drinking when she was adamant that she had been abstinent from alcohol for many months. Her abstinence was a crucial factor in the plan for rehabilitation of the child to her care. The local authority therefore no longer supported such a plan

One can see that having been persuaded that alcohol was no longer an issue, getting that sort of result would give a local authority pause for thought, and that the test result was a single tipping point factor in the decision the Court would make.

The Judge did not however, rush into things, and directed for further evidence to be obtained.

On 25 July 2013 I gave directions, having found it was necessary to have further expert evidence in accordance with Part 25 Family Procedure Rules 2010, for further blood alcohol testing by a different expert and for Trimega to report in respect of the interpretation of mother’s alcohol testing results and for a new final hearing date. An updated opinion had been sought urgently from Dr Hallstrom who said he no longer felt able to support the rehabilitation plan. On 25 July 2013 by email he said that “the fact that [the CDT] result was low a few weeks ago and now raised, raises the strong suggestion that there has been heavy drinking in the last week or two….” It is right to say that if it had not been for this new test result of 1.6% a final order would have been made on 25 July 2013 and the child returned to her mother’s care.

In Trimega’s report on the father of 7 December 2012 the interpretation section says that “CDT values below 1.6% cannot be used to distinguish between social drinking and abstinence but when the value is elevated above 1.6% this marker does reliably identify someone with excessive alcohol consumption”.

In Trimega’s reports on the mother dated 18 June 2013 and 17 July 2013 it said that:

“The CDT screening test has been found to be one of the most accurate blood biomarkers for alcohol abuse because individuals with a daily intake of more than 60 grams of alcohol over more than two weeks have elevated levels of CDT. In regular drinkers their level of CDT continues to be elevated for between two to four weeks after abstaining, depending on the original increase in the level that existed for that individual. That means that for most people who are dependent their elevated CDT level will be detected even if they find themselves able to abstain for a short period before a test is performed.”

Get ready to shudder

Trimega, in considering the significance of the raised CDT level as instructed after 25 July 2013, found that it had made a mistake and the CDT figure should have been 0.2% and not 1.6%. Trimega admitted the error and apologised then to the mother’s solicitors by email dated 9 August 2013. An interim hearing was listed and on 21 August 2013 the child was returned to her mother’s care under an interim supervision order in accordance with a new rehabilitation plan. The following orders were made, among others:

The solicitor for the mother shall serve this order upon Trimega Labs inviting it to attend at 2pm on 3 September 2013 to explain the error made in the blood test result dated 17 July 2013 and to address the issue of wasted costs should any party make an application for a wasted costs order.
Any application for wasted costs shall be filed and served on the parties and Trimega Labs by 4pm 28 August 2013.

The result of the blood alcohol test which made people think that the mother had been abusing alcohol had been wrong, and what appeared to be a failing or borderline test was actually a clear indication that she had not been drinking alcohol. A number which ought to have been written down as 0.2 had instead been written down as 1.6. It was a ‘clerical error’

I make it plain that the Judge, whilst making a costs order and deciding that there was a wider public interest in publishing this order, was not seeking to coruscate Trimega (though note my underlining)

I do not say that the error made by Trimega amounted to a “flagrant reckless disregard” of its duties to the court and I accept it was a human error. I am reassured that the discovery of this error has lead Trimega to add a new procedure whereby a further specific check is made back to source material before a report is finalised and its staff understands the importance of the new measure. Trimega accepts that the mistake should not have occurred and is keen to make sure it does not happen again and it accepts that it was in breach of its duty to the court. Trimega accepts that the direct consequences were considerable upset and distress for the parents in this case, additional costs and not least a delay of four weeks for the child in being placed in her mother’s care. Trimega has made its apology.

I have decided to publish this judgment because I consider that it is in the public interest to do so. The family courts should be as open and transparent as possible to improve public confidence and understanding. In this case expert evidence was relied upon and if the mistake had remained undiscovered it is probable, given the history in this case, that it would have led to the adoption of the child instead of rehabilitation to care of her parent. Close scrutiny of expert evidence is needed and all the surrounding circumstances have to be considered in a situation such as this where the interpretation of test results was so important and influential.

I should also again point out, for the purpose of fairness, that what had happened here was not an unreliability of the testing process or the interpretation or reliability of that interpretation, but a human error in transposing two numbers when the results were recorded.

It was, as can be seen from my underlining, a human error that could have had catastrophic consequences for this child and the family, and perhaps for future children as well.

Perhaps worth remembering that any process involving human beings involves the possibility that human beings, flawed and frail and wonderful as they are, do sometimes make mistakes. And that even an honest mistake can have huge consequences if not detected.

The mother was fortunate in this case to have tenacious representation and a Judge who was more concerned with getting the right decision than being rigid about delay and further expert evidence.

[If my past experience is anything to go by, expect to receive an email from this firm’s competitors soon, drawing this case to your attention. There’s not much love lost between the major players]

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Deprivation of liberty and Mental Capacity Act – Europe beats Supreme Court to the punch?

Posted on October 24, 2013 by suesspiciousminds

The ECHR judgment in MH v UK is out today, even as we all await the Supreme Court deliberations and decision in Cheshire West.

I honestly can’t put it better than Lucy Series does, and if I can send a few people interested in mental capacity / civil liberties over to her sensational blog, I’ll count that as a very good day, so here it is.

I’ll give you her opening, to whet your appetite

Whilst 18 barristers fought it out over the Cheshire case in the Supreme Court this week, the European Court of Human Rights (ECtHR) handed down a judgment which could have equally dramatic consequences for the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS): MH v UK. MH v UK confirmed what I have suspected for a long time, that the DoLS fall short of the requirements of Article 5(4) ECHR – the right to ‘take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. The key issue is that without the assistance of a third party a person detained under the DoLS is unable (in practice) to be able to exercise their right of appeal, but there is no failsafe means by which the DoLS guarantee the requisite support. In essence, there may be duties upon various entities to assist a person in exercising their right of appeal under the DoLS, arising via the Human Rights Act 1998 (HRA). But it is not entirely clear who, and few people – at present – are interpreting them in that way. The million dollar question is – how do we respond to this?

http://thesmallplaces.blogspot.co.uk/2013/10/mh-v-uk-implications-for-deprivation-of.html

Her beginners guide to Cheshire West is also very good

http://thesmallplaces.blogspot.co.uk/2013/10/the-cheshire-case-beginners-guide.html

(See folks, this is what law writing actually looks like when it is done properly rather than my sarcasm and cut-and-paste. Even if you aren’t involved in adult social care law, Lucy’s stuff is good for the brain)

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Posted in court of protection and tagged cheshire west, derprivation of liberty, mental capacity act, MH v UK. Bookmark the permalink.

the continuing saga of the Court of Appeal and Placement Orders (I make this 9-1 against in last 2 months)

Posted on October 24, 2013 by suesspiciousminds

Re R (A child) and R (Children) 2013

http://www.familylawweek.co.uk/site.aspx?i=ed119174

In this one, the LA had obtained Placement Orders for two children, with a plan of placing them together for adoption. The mother’s appeal against that order didn’t get heard by the Court of Appeal until a year after the orders were made, by which time, the landscape had changed, not only in terms of the developing jurisprudence but that the search for a placement together, whether that be adoption or long-term fostering had not been successful.

The Court at the time the Placement Orders were made had been adamant that the children had to stay together, no matter what.

The LA had already revoked the Placement Order for the eldest child (who is eleven now, and had been ten at the time of the Placement Order) accepting that they had no prospect of finding an adoptive placement for her. They took a pragmatic decision to revoke the Placement Order in relation to the youngest child as well (that child being five).

In the course of mounting the appeal Mr Naish seeks to challenge as a matter of principle the judge’s decision to make a placement for adoption order, notwithstanding the fact that he gave the priority that I have already indicated to the need to keep the children together, and although the mother now has an extant application to revoke the placement order for N – that in fact is due to be heard next week before the court in Taunton – Mr Naish says as a matter of principle that, if the original placement order was not justified as a matter of evidence and law, it should be set aside and the mother should not be in a position of having to now apply to revoke the placement order, as she is doing.

6. During the course of submissions this morning we have been greatly assisted by counsel, Mr Naish, but also Mr Powell for the local authority who, rather than solely addressing the legal issues which are raised in this appeal, have grounded their observations to this court in the reality of the fact that the situation which everybody hoped could be achieved when the case was determined in May last year now on the local authority’s case cannot be achieved. It is not simply a matter of making a choice between placing the children together or separating them; the local authority says that there is no home available that could meet the first option of that choice, namely providing a home together. It therefore seemed to us, as a matter both of trying to meet the welfare of the children but also the essential justice of the case and the need to respect the parents’ position, that it was appropriate now that, instead of applying to revoke the placement order, the whole question of whether placement for adoption for N was justified should be considered from a standing start, as it were, before the court, in the light of the circumstances which are so totally different from the ones that it hoped would be in place with both children settled in one home.

7. Mr Powell has taken instructions and he indicates that the local authority agree that the right way forward is for the placement order for N to be revoked and for such proceedings that now move forward in the Taunton County Court to be including, if the local authority choose to do so, a fresh application for a placement order which would be determined – and in particular the parents’ consent being determined – in the light of the circumstances as they now are.

8. We welcome that concession by the local authority; the local authority therefore do not oppose the appeal made in relation to N’s placement order, and Ms Taurah, on behalf of the children, similarly makes no opposition to that course. Therefore it seems to me neither wise nor necessary for this court to descend to the detailed legal arguments that have been put before us by counsel in this unusual case. For my part, I would simply accept that this is a pragmatic and child-centred outcome, which allows Judge Bromilow to re-evaluate N’s welfare in the light of the circumstances that now obtain, and so for my part I would allow the appeal and set aside the placement order that has been made in relation to N on 9 May 2012.

So more of a tactical retreat than the Court of Appeal granting the mother’s appeal, but I think one could guess which way the wind was blowing here. The LA were probably also not wanting the Court of Appeal to get too heavily stuck into the issue of sibling placement and the Judge’s view that the children should be kept together ‘no matter what’, given that in the real world that had not been achieveable.

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Posted in adoption, case law and tagged adoption, placement order, re r 2013. Bookmark the permalink.

Placement orders v Court of Appeal part 8

Posted on October 23, 2013 by suesspiciousminds

Re F (A child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1277.html

Another Placement Order overturned on appeal (not sent back for re-hearing this time). Although at first glance, this might look like something new, or a development of the post Re B changes to adoption law, it actually turns out to be revisiting existing law from 2008 and determining which of two categories the children in question fell into.

The Court of Appeal decided that this case had significant parallels with Re T (Children : Placement Order) 2008 :- sadly the links to Re T in the Baiili piece take you instead to the worlds of high finance, so am grateful to Jerry Lonsdale for this link

http://www.familylawweek.co.uk/site.aspx?i=ed1101 .

In effect, in Re T, although the original Court had decided that the best placement for the children long-term would be adoption, there were considerable uncertainties about whether such a placement was actually in the best interests of the child because there were uncertainties about that issue – there was some specialist intervention required first and that they were not suitable for an adoptive placement at that stage; and it could not be certain that they would ever actually be ‘ready’

The Court of Appeal overturned the Placement Order in Re T

Hughes LJ gave short shrift to the idea that there should be no placement order if it was anticipated that there would be real difficulty in placing the child. He accepted that a placement order could be made even if there was a real possibility that an adoptive placement would not be found at all. He said that “mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order” (§17) and that:

“a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the Judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not.”

The key passage of Hughes LJ’s judgment for our purposes is, in my view, §18. There he said:

“But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys’ best interests, because their needs could better be met by the kind of substitute family found only in long term fostering.”

Accordingly, the court in Re T found that it had been premature of the judge to find that adoption was in the boys’ best interests and to make the placement order. Amongst the reasons that the trial judge had given for making the placement orders was that this would give the local authority the greatest possible certainty and flexibility for the future, enabling them to place the children at short notice (see §13) but those potential benefits were not sufficient to alter the outcome, as Hughes LJ made clear in §19.

In this particular case, the arguments before the Court of Appeal were whether the case before them had sufficient parallels with Re T to make it correct to overturn the Placement Order (as the parents argued) or whether the two cases were distinguishable on their facts i.e that it was a Re P case, which justified a dual approach of searching for an adoptive placement even though one could not be sure that one would be found and if not, the plan would become long-term fostering. (You may recall from recent blogs there being some issue about whether Re P and Re B-S are incompatible with regard to that dual planning approach)

The critical difference is this

1. If what you are saying is that it is too early to say that adoption is in the child’s best interests (if so, Re T applies and a Placement Order ought not to be made)

2.On the other hand if what you are saying is that an adoptive placement might not be found for this particular child because of the characteristics or features of the child, but that it is worth trying to find one (If so, it is a Re P case, and a Placement Order could be made if the other statutory requirements were made out)

There is a helpful clarification from the Court of Appeal in N S-H v Kingston upon Hull 2008

http://www.bailii.org/ew/cases/EWCA/Civ/2008/493.html

“In these circumstances there is a real prospect that the mother can persuade the court that it is not currently appropriate for the placement order to remain in being. For it is an insufficient foundation for a placement order that the long-term aim of the court is that the child should be adopted. The necessary foundation is that – broadly speaking – the child is presently in a condition to be adopted and is ready to be adopted, even though in some cases the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all.”

So, if the child is NOT YET ready to be adopted and there are some intermediate steps, a Placement Order should not be made, and the LA should carry out that work, and make an application for a Placement Order if the work places the child in that position of being ready to be adopted. That does lead to the potential gray area that if the preparatory work is going to take about the same time as the search for an adoptive placement, following this line of authority would mean the child being ready for adoption, but having to wait for the litigation to make the order.

Back to Re F (apologies for the amount of law involved in that, this is rather a tricky situation)

We can see from the justices’ reasons that Mr Cranfield, who has appeared for F at all stages of this case, submitted to the justices that it would be premature to make a placement order “because of the uncertainty surrounding the therapy [that L needed] and its duration and outcome”. He cited Re T and NS-H v Kingston-upon-Hull City Council and MC to them but they felt that the present case differed from those cases “in that the Local Authority have a clear, long term plan for adoption which includes the provision for adoptive parents to be involved in L’s ongoing therapy”.

In their resumé of the evidence, the justices said that all the professionals involved in L’s care agreed that adoption would give her the best opportunity of security and permanence, that the adopters would need to be highly skilled, that it may therefore take some time to identify appropriate adopters and that delay needs to be minimised in L’s best interests. They also recorded that the guardian had agreed that LA needed to start the search for adopters as soon as possible so that they could be drawn into the therapeutic process with L. They concluded that it was in L’s best interests to make a placement order so as to give LA the earliest opportunity to identify an appropriate adoptive family for L.

Absent from the justices’ resumé, however, was any reference to the evidence of the psychologist that it would not be known until some way into the therapy whether adoption would ultimately be in L’s best interests.

Dealing with the appeal from the justices, Judge Orrell carefully set out the evidence that the psychologist had given, including that the programme of therapeutic parenting that L needed was designed to strengthen the bond between her and her carer which “inevitably leads to serious questions being raised as to whether it would be in L’s interests to be moved and indeed, if she would cope with such and settle in a new placement”, that “a judgment would have to be made at a later date as to whether the potential benefits of being adopted would outweigh the potential problems caused the child by moving her from a secure base and severing emotional ties to her foster carers”, that “it is difficult to make predictions or recommendations at this point”, and that one “can’t really know until about 12 months elapse whether the child can be moved or placed elsewhere”.

The judge commented that it was quite difficult to ascertain the burden of the evidence before the justices and he reminded himself of the advantage that the trial court has over the appeal court in that it has seen the witnesses. He distilled his own summary of the psychologist’s recommendations. It is notable that it makes no reference to her evidence, which he had cited earlier in his judgment, that it would not be possible to say until some way into L’s therapy whether a move to adopters would actually be in her best interests.

At §33, the judge correctly isolated the essential issue in the case as being:

“Whether, on the one hand, the Justices were entitled to say that, at the date of the hearing, adoption was in L’s best interests so that she ought to be adopted, notwithstanding that important work had to be done with her prior to placement and after placement and that finding a suitable adopter might be very difficult and might be impossible or, whether on the other hand, important work had to be done with L at the end of which (and only at the end of which) it would be known whether an adoption was going to meet her needs or whether long-term foster care with skilled carers would meet her needs better.”

One can see that the possibility that this was a Re T case, in which it was too early to say that adoption was in the child’s best interests, was a live one. The County Court (having itself heard the case on appeal from the Magistrates) decided that this was a case where the Court was satisfied that adoption was in the child’s interests and a Placement Order was made (i.e that it was a Re P case, not a Re T case)

The Court of Appeal disagreed with that analysis (and if one accepts the psychologist’s evidence, one is driven to the conclusion that this is indeed a Re T case)

Despite the resourceful attempts of the LA and the guardian to persuade us that this case can be distinguished from Re T, I am afraid that I cannot see any proper distinction. However much agreement there was that adoption would be the most secure outcome for L if it was ultimately possible to place her, the clear evidence of the psychologist was that it would not be possible to tell whether adoption would in fact be the right course for her until some way into her therapy. The guardian was saying something not dissimilar in the passage of her evidence that I have set out above. Of course, when the question does come to be addressed when the appropriate point in L’s therapy has been reached, the answer is likely to depend not only on the progress L has made but also on what adopters are available. However, that does not detract from the bald fact that when the justices heard this case, the evidence was not such as to establish that L’s welfare throughout her life required adoption. This was not a Re P case because the uncertainty was not about (or not only about) whether adopters would be found, it was about whether adoption would turn out to be right for L or whether long term foster placement may be the more appropriate option.

I have, of course, given careful consideration to the advantage that the justices had in that they heard the witnesses give evidence. However, they appear to have failed to take account of the manifest uncertainty over what would turn out to be right for L, as did the judge as can be seen from his omission of this element of the psychologist’s evidence from his summary. This uncertainty was central to the determination of the placement application. On the facts of this case, in my view it was wrong to have granted the placement order.

I acknowledge that there are disadvantages in LA not having a placement order. It will almost inevitably be more difficult for them to encourage people to put themselves forward as prospective adopters for L and we were told that they will not even be able to find out what resources adoption agencies have available. However, the fact that the proper interpretation of the law has inconvenient consequences does not justify adjusting that interpretation. Secondly, granting a placement order in circumstances such as those which prevail in this case would also have undesirable consequences as Mr Cranfield pointed out. When the time comes to determine whether or not adoption is the best plan for L, there may be room for considerable debate but there will be no obvious forum for that. LA would have no obligation and, subject to the possibility of applying for the revocation of the placement order, possibly no power to return the matter to court. The guardian’s role would have ended with the making of the placement order. As for the parents, in order to play a part in the decision, they would probably have to seek leave to apply for the revocation of the placement order. To obtain this, they would need to establish a change of circumstances and I am not entirely sure whether they would be able to do so, given that it could be said that uncertainty over the plans for L had existed from the outset.

It was for these reasons that I reached the clear view that a placement order should not have been made and that the appeal should therefore be allowed.

It follows that the placement order made by the justices and affirmed by Judge Orrell must be discharged. We considered whether the appropriate course would be to remit the case to first instance for the application to be reheard. However, until L has made some progress in therapy, it seemed likely that LA would remain unable to establish their case for a placement order.

For the first time, one of the many elephants in the room with the Court of Appeal’s rapidly developing jurisprudence on adoption was dealt with – saying that the best option was for the LA to apply for a Placement Order in due course if the child was ready for adoption, the Court of Appeal noted

I was dismayed to learn that public funding may not be available to the parents to contest such an application. I would view that as wholly unacceptable in proceedings which may lead to the permanent severance of the relationship of parent and child.

That at least, is a sentiment I can wholeheartedly agree with, and one which possibly opens the door for a brave soul to drop hints to the Legal Aid Agency that a refusal of funding for a parent fighting adoption outside of care proceedings would be Wednesbury unreasonable.

Although this case falls slap bang in the middle of the biggest judicial recalibration on adoption of my lifetime, I think that it probably would have been decided this way even before Baroness Hale’s speech in Re B put the fear of God into the Court of Appeal. It is more of a reminder / determination on the facts whether this was a Re T, or Re P case.

That reminder may lead to some curious arguments and submissions that “such and such a child is too damaged to be placed for adoption without preparatory work”. It is not that uncommon to hear for example, that before the child could be placed for adoption there would need to be age-appropriate discussions and groundwork for the child about what that would mean, or that the reduction in the level of contact would be a necessary precursor. Does that mean that the child is not, at the time of making the order, “ready”?

So, how ready is ready? Does the child have to be ‘ready’ for adoption very shortly after the Placement Order is made? (i.e if a match were made in the next fortnight?) Or does the child have to be ‘ready’ within the realistic timescales for identifying a suitable placement? Or something else?

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Posted in adoption, case law and tagged child ready to be adopted, re F 2013, Re P 2008, re t 2008. Bookmark the permalink.

suesspiciousminds

Null and void (or not)

Sanctity and futility

Burning questions

It ain’t me babe, it ain’t me you’re looking for

Sharing information between care and criminal proceedings

Farooqi Friday [It isn’t the art of examining crossly]

Human error in the lab

Deprivation of liberty and Mental Capacity Act – Europe beats Supreme Court to the punch?

the continuing saga of the Court of Appeal and Placement Orders (I make this 9-1 against in last 2 months)

Placement orders v Court of Appeal part 8

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