I agree with Nick

Posted on November 6, 2013 by suesspiciousminds

Ah, those heady days of the televised election debates, where Brown and Cameron were falling over themselves to position as the party who most agreed with Nick Clegg, and for a time Nick Clegg had the brightest burning star in British politics…

 

No, this is about District Judge Nicholas Crichton, and his very firm views about the PLO.  For those who don’t know D J Crichton, he is the pioneering judge behind the Family Drug and Alcohol Court in London, which has done so much to help troubled families and children.  He is not the ,ost influential or powerful family judge in the country – the Daily Mail wouldn’t be able to call him “Top Judge” but he is one that most of the profession look up to as a thoroughly decent, committed and imaginative judge who has tried to help those who come before him.

Therefore, when he speaks out, what he says is worth listening to.

http://www.lawgazette.co.uk/practice/pioneering-family-court-on-the-edge/5038532.article

 

And what he says here is that the rigid 26 week mandate is a tyranny that will lead to grave injustice for individual families who could have turned things around given the time, and he urges solicitors to appeal decisions where the 26 week mandate is rigidly imposed.

I think regular readers of this blog will know that I share those concerns myself – not that aspiring to cut out delay and the ‘dead time’ in care proceedings where nothing happened other than waiting for experts is a bad idea, rather that the rigidity of ‘one size fits all’ was inevitably going to lead to some cases being decided at the wrong time for that family.  So yes, largely I do agree with Nick.

I possibly agree less vehemently than I would have done two months ago. I think that DJ Crichton suspects now, as I did then, that the 26 week mandate was part of a greater political drive to faster and more adoptions and that troubled families weren’t going to be given a fair and reasonable chance to turn things around.  My only interpretation of the recent batch of Court of Appeal cases is that there is some judicial moving around of chess pieces on the board to lay the foundations for less adoptions and more Care Orders at home, with Local Authorities being ordered to hold onto higher levels of risk than they have historically been prepared to, and to provide more services at home to families than have historically been available.

It might be argued that this is long overdue, it might be argued that as we have a Child and Families Bill going through Parliament, that a proper and thorough debate about what Society and Parliament wants to do about families who come into the family justice system – are we there to penalise them, to test them, to help them, to prop them up? would have been the appropriate place for such a shift in national policy to happen.

 

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From Russia, with love

Posted on November 5, 2013 by suesspiciousminds

 

The committal decision in Re Davies 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3294.html

 

This one is likely to rekindle the debate, both amongst professionals and the wider public, on the powers of the Court to deal with breaches of court orders and contempt of court.

 

There are some, John Hemming MP springs to mind, who consider that imprisoning people for family Court matters which fall far short of being criminal offences is not acceptable in a modern society and illustrative of the family Courts having too much sway and not enough accountability. The secrecy/confidentiality of the family Courts just exacerbates these concerns. They might well say that punishment and resolving family disputes don’t go together.

 

There are others,  I suspect many in the Father’s Rights movements, who would say that the family Courts are largely toothless when it comes to dealing with people who have no respect for orders and decisions and just take matters into their own hands to thwart contact. If you have spent two years of litigation and jumping through hoops and possibly thousands on legal costs to get your contact order and then it doesn’t happen because the parent with residence of the child just ignores the order, then you can see that you would WANT there to be consequences for breaking court orders and you would WANT those consequences to be dished out.

 

On the one hand here, we have grandparents who spent five days in prison because they did not want to tell the Court where their daughter had taken their granddaughter Alice too.

 

On the other, we have a mother who defies a Court order for contact, takes the child away to another country and leaves the father not knowing where his child is or how to find her, who then gets her family to lie in the witness box and breach Court orders that are designed to locate this mother and get her to bring the child back to the UK so that the arguments can properly be heard. 

 

 

This particular case made some of the national press, who took the understandable emotive line of how awful it is to lock up grandparents for not telling the Court where the child was.

 

One also has to look at it from the side of the father, and of the child who has been denied the lawful contact she should have been having with her father because the mother took the law into her own hands.  [i.e one could have written the story as a very emotive one about how the child had been whisked away from dad and he had no idea even which country she was in or whether she was safe]

 

Firstly, it is worth noting that although the grandparents and the aunt were locked up on 25th October, the Court adjourned sentencing until 30th October (the judgment on that is not yet reported) to allow them the chance to get some legal advice and do what is called “purging their contempt”   (in essence, apologising to the Court for breaching the orders and complying with the order now by giving what information they have about the child’s whereabouts).  

 

Secondly, it is worth noting that although the father was present in Court and represented, he was asking for the family members NOT to be imprisoned.

 

Of course, with the media being the way it is, what we want is a simple good guy and a simple bad guy, and where the stories are more complex than that, the press coverage struggles to set out the nuances. So much easier to just side with either the grandparents or the father, and paint the other side as being wicked.  I don’t even know that you could paint the mother as the bad guy here – she was certainly foolish, but until she gets back and has her say, we don’t know what lies behind her decisions.

 

[The grandparents were released on 30th October. As I understand matters, the Aunt is due to appear in Court on Tuesday 5th November]

 

 

Anyway, by way of background

 

  1. In this matter I am concerned with one young child, Alice Gabrielle Davies, who was born on 18th September 2008 and is five years of age. Her mother is Jacqueline Davies. Her father is Julian Brown. Her maternal grandparents are Patricia Anne Davies and Brian Davies. Her maternal aunt is Melanie Williams. The parents’ relationship broke down and they had recourse to court proceedings. The father was unable to have contact with Alice. Those court proceedings resulted in an order being made on 29th June 2011 for the father to have contact with his daughter on a regular basis. In fact, subsequent to that order, he has not seen her since 18th December 2011.
  1. On 1st March 2012, the mother submitted an application for the cessation of contact because she was planning to leave the jurisdiction. In the reasons that she gave for applying for that order she said:

“Unfortunately, because of the constant need to take time off to prepare for and attend court, my job became untenable and my employment terminated. So due to the financial circumstances of not working and the implications of the continuing costs of solicitors’ fees etc, which has left me in debt and without the security of a job, and trying to sort out the finances of the here and now, I have had to make an uncomfortable decision. Therefore, because of the need to support my child and myself and the economic climate in the United Kingdom, after months of looking for work, I have had to take drastic action and have been forced to seek a position further afield, leaving my roots and family support.”

  1. Sometime after that application – the date is not at all clear – the mother did indeed leave this jurisdiction with Alice. From the enquiries made by the Tipstaff, it appears that she flew to Russia. There is no record of her returning from Russia to this jurisdiction, and it is unknown whether she remains living in Russia with Alice or in a country somewhere else.

 

So, the father had to go to Court to get an order for contact with his daughter, the contact wasn’t provided and mum intended to apply to discharge the existing contact order because she wanted to move abroad.  What she then did, in leaving the country with the child without the Court having granted permission, was unlawful.

 

In those circumstances, it is entirely understandable that the Court made orders that Alice should be returned to the UK, and that she should be in the UK whilst the Court considered the respective applications of the mother (to end dad’s contact order and move abroad) and the father (to continue his contact and presumably resist any move abroad unless his contact was going to be adhered to)

 

It is important to note that the Court had not made any decisions about who was right in the long-term on those applications, just that it was premature to move Alice abroad before both sides had their say and the Court reach a view.

 

Because of the difficulties in tracking down the mother and Alice, the Court used their powers to make orders that members of mother’s family provide any information they had about where mother and Alice were.

 

  1. Mrs. Davies, accompanied by her husband, Brian Davies, attended before me yesterday, and I made an order requiring her, on one last chance, to divulge the details of the whereabouts of Alice and the mother. During the course of that hearing the maternal grandmother, Mrs. Davies, gave evidence on oath before me. She told me repeatedly and in no uncertain terms that she had no means by which she could make contact with her daughter and that she was solely reliant upon her daughter making contact with her, which she did from time to time. She also told me repeatedly that she had no idea where her daughter or Alice were in the world. Mr. and Mrs. Davies then left court and travelled by car back to Cardiff.
  1. During the course of that hearing, at the request of the Tipstaff, I required Mrs. Davies to give him the name and address of her other daughter, Melanie Williams. The police attended upon Mrs. Williams last night and served her with the location order and explained that order to her, and the duty that she was therefore under to cooperate with this court and to give information that was available to her about the whereabouts of Alice and her sister Jacqueline.

 

The police, in serving those orders, asked some questions of the family, and it was their answers to these questions which got them into difficulty and eventually into cells  [underlining mine, for emphasis]

 

  1. I have statements from the two police officers who attended upon Mrs. Williams – a Police Constable and a Police Sergeant. The statements record the self-same evidence, namely that when they asked Mrs. Williams when she had last been in contact with her sister, Jacqueline, she replied, to start with that it was “about three years ago“. She insisted that since they were 18 and had left home they had gone their separate ways and they had not spoken for some time. She said that she had sent some emails to her sister. Those had not been returned undelivered, but she claimed that she had not received any reply. She continued to deny having any knowledge about where her sister lived. The police officer records as follows: “Whilst looking for the mobile number for Patricia Davies, I noticed a contact ‘Jacq’. I asked Melanie if this was her sister. She did not reply. I therefore noted down the mobile number”. Again, the police officers asked Mrs. Williams about when was the last time she had contact with her sister. The police officer says: “Melanie eventually stated that she had had a Skype text conversation in August 2013 but insisted she did not know where her sister had been when they had that conversation.”
  1. Because one of Mrs. Williams’ daughters was present at the home when the police were there, they advised her that they were minded to arrest her for breach of the order. They therefore contacted the maternal grandparents, who were still en route from this court, to look after their granddaughter. The police were still present when Mr. and Mrs. Davies arrived. The Police Sergeant explained to all three of them the reason they were there and urged them to provide any information in order to prevent the arrest of Mrs. Williams. The Police Sergeant then sets out in his statement the following: “Patricia Davies then said loudly, ‘I can’t, I can’t, I won’t. They’ll take the baby away’.” The Police Sergeant again urged the grandmother, Mrs. Davies, to provide any details she had of her daughter Jacqueline. She then told the police officer that she had a mobile number. She went out to her car and came back and gave the telephone number to the police officer. The Police Sergeant asked her to telephone that number. He records Mrs. Davis replying: “Jacqueline wouldn’t answer because it was the middle of the night where she was”. She was asked how she knew it was the middle of the night. She said: “I don’t know”. She was again asked: “How do you know it is the middle of the night?”, and she replied: “Because it’s thousands of miles away”. She was asked how she knew that, and she said that Jacqueline had told her. She finally said: “You’ll just have to arrest me. I don’t care what they do to me”.

 

 

The family were brought back to Court on 25th October and gave evidence to the Court about these matters. On the face of it, they had a contact telephone number for the mother, knew where she was and were refusing to provide the information “You’ll just have to arrest me. I don’t care what they do to me”.  The prospect of them being imprisoned for contempt was very high as a result of this.

 

  1. Over the course of this afternoon, Mrs. Davies, Mr. Davies and Mrs. Williams have given evidence on oath. Mrs. Davies gave evidence first and then her husband and then her daughter, Melanie. Having considered their evidence, I am in no doubt whatsoever that all three of them are lying to me. I find that Patricia Davies has lied and has admitted lying on oath when she told me yesterday that she had no mobile number for her daughter and had no means of contacting her. It is wholly remarkable then that on her journey back from this court she is sending texts to her daughter. Of note, she was asked by the police officers prior to them arresting her whether she had been in contact with Jacqueline today – that is yesterday. She replied: “Yes, but by text but I’ve deleted the texts now”. Mrs. Davis claimed that those texts were deleted because that is her normal practice. I regret to find I do not believe her. I find that she deleted those texts so that nobody would be able to see what she had sent to her daughter or what her daughter had sent to her. I am satisfied, so that I am sure, that Mrs. Davis did say to the police officers: “I can’t, I can’t, I won’t tell you”. That is entirely in keeping with her final comment to the police of: “You’ll just have to arrest me. I don’t care what they do to me”. She said in evidence to me that she knew it was the middle of the night where Jacqueline was because she said Jacqueline had told her. I find once again, so that I am sure, that Mrs. Davies is lying to me. She knew it was the middle of the night because she knows precisely where her daughter is, but she refuses to tell this court.
  1. In relation to Mr. Brian Davies, in my presence in court yesterday I heard him, and I am quite satisfied and sure I heard him, instruct the maternal grandmother when she was giving evidence “not to tell them”. He denied that in the witness box. Mr. Cheesley, the Tipstaff, told me at the start of this hearing that after I had risen from court yesterday Mr. Brian Davies had said: “I’m the head of the family. I told her to leave the country”. Initially, he appeared to accept that that is what he had said, but then he changed it and said that, no, he had not told his daughter Jacqueline to leave the country, he had told her to leave his house. However, he then claimed not to remember whether his daughter had left the house immediately after he had said that or how long a period it was after he had apparently told her to leave the house that she in fact did so with Alice. I note that it is significant that in her application of March 2012, giving her reasons for leaving this jurisdiction, the mother (a) does not assert that she had been thrown out of the home where she was living by her father and (b) quite the contrary, she states that she had a difficult decision to make which will result in her losing the support of her family.
  1. I regret to find so that I am sure that Mr. Brian Davies is lying when he denies saying in court yesterday that he told his daughter to leave the country. I regret to find that I am satisfied, so that I am sure, that he is lying when he claims he threw his daughter out of the house. He claims to have had no contact whatsoever with his daughter for about four years or thereabouts. I regret he gave me no satisfactory explanation whatsoever as to why he should take that course with his daughter or why he does not like her anymore and does not want to have any relationship with her. The best he could come up with was that it was because she had had sex before marriage with her then partner, which resulted in the conception of Alice. I am satisfied that Brian Davies is lying to the court, that he has information he could give but he refuses to give it.
  1. In relation to Melanie Williams, I regret to find that she has lied to this court. First, I note that she told the police that it was some three years since she had last communicated with her sister, Jacqueline. She then changed that in evidence to me, that it had been about two and a half years since she last spoke or had communication of any kind with her sister. When she was reminded of what she had told the police yesterday, that in fact it was August 2013 when she had last had a Skype text conversation, she was unable to be clear in her recollection that that took place, although she admitted that she had said that to the police. When I asked her about what conversation she had with her sister, she could not remember any details at all, and then told me that it was not a conversation at all, and she had not said to the police it was a conversation. She had sent a text to her sister, she said, but received no reply. She then accepted that she had said to the police it was a conversation that she had had with her sister in August 2013, but maintained that that conversation consisted of merely sending a text to her sister and receiving no reply. I regret to find, so that I am sure, that in giving those accounts to the police and to me, Mrs. Williams is lying.
  1. I am satisfied, when I consider the reasons why Mrs. Davies, Mr. Davies and Mrs. Williams are lying to this court, that it is for one reason and one reason only (because, although I have pondered the matter, I can think of no other reason for them lying) and it is this: they know full well where Jacqueline and Alice are but they refuse to tell this court or the Tipstaff where that is because they do not want to assist in any respect in the attempt to try and secure the return of Alice to the jurisdiction of this court. I am satisfied, so that I am sure, that they also have the means of communicating and contacting Jacqueline but they have sought, particularly Mrs. Davies, to obfuscate that position and they have not told me the truth about the communications that they have had with her not only over the last few years but in the last few months and in the last few days. Again, they are lying about those matters because they do not wish to assist this court in seeking to recover Alice back to this jurisdiction.
  1. On those findings, I am in no doubt that all three of them are in contempt of this court

 

 

 

Of course, on a completely human level, one can empathise with the family, they had been asked by their daughter / sister to keep her secrets and not tell the Court or the father where she was, and they ended up in an intolerable position of having to obey the Court order or keep their promise.  Without being in that intolerable position, it is really hard to know how you would react.

 

It is always important though, to have an eye on the other side of the case, which is that the father and child were kept apart and denied contact as a result of the mother acting unlawfully and asking her family to act unlawfully to help her, include them lying to the Court;  and the Court has to treat matters like this very seriously.

 

If there’s no consequence to breaking court orders or lying to the Court, then what’s the point of the Court at all?

 

I think that if I had been hearing the case, I  probably would not have imprisoned them pending the sentencing hearing, and allowed them to have a short opportunity (say two or three days)  to reconsider their actions knowing that a prison sentence was on the cards. But the Judge had been faced with lies in the witness box on two separate occasions,  even after they had been blatantly caught out, and of course the risk that wherever mother currently was, the family might have tipped her off to run away. It would not have been an easy decision to make.

 

Should the remedy or sanction be imprisonment? Should anyone really be imprisoned for something that isn’t a criminal offence?  There are those who think that imprisonment ought to be reserved for criminal matters, and that one ought not to be faced with it as a result of breaching orders in the family courts.

 

I suspect that there are also parents who have gone to Court and argued successfully for contact with their child, who see orders flouted or ignored or thwarted by the other parent, who are pulling out their hair at how toothless the law seems to be on dealing with a parent who has no intention of obeying Court orders, who would be devastated at the one sanction that the Court has being removed.

 

It depends entirely on which side of the fence you happen to be on, or which group of people are telling you the story. If you were sitting down talking with the grandparents in this case, you’d form a very different view of it than if you were sitting down with the father.

 

I think those are legitimate questions and I’m sure the debate will continue, but in the meantime whilst the law provides for imprisonment for contempt of court and failure to comply with court orders, those who are served with court orders need to bear in mind that this is a risk they take, even if they are pensioners trying to do what they think is right for their own daughter.  

 

 

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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.

  1. 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.”

  1. 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.”

  1. 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]

  1. 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.
  1. 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.
  1. 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]

  1. 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.”

  1. 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.
  1. 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.

  1. 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.”

  1. 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.

  1. 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.
  1. 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.
  1. 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]

 

  1. 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

 

 

  1. 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

 

 

  1. 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

 

  1. 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]

 

  1. 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 7th 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.
  1. Mr. A was contacted by the social worker on 15th 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.
  1. 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.
  1. When spoken to again, Mr. A and Ms. B said they could not care for C.
  1. 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.
  1. 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 13th January 2012. She had no problem identifying the child she saw recently as the C she saw last year.
  1. 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.
  1. 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.

 

  1. 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.
  1. 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.
  1. 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.
  1. 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

 

  1. I turn to deal with the question of the placement order. This case was before the Local Authority’s permanency panel on 9th 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.
  1. 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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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?

    1. 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

    1. 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.
    1. 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.”

    1. 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.
    1. 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.”
    1. 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.”
  1. 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.

 

  1. 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.
  1. 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”.
  1. 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

 

  1. 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)

 

  1. 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.
  1. 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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