Transparency and vampire-ish creatures

Posted on September 6, 2013 by suesspiciousminds

Where we are following the President’s decision in Re J (A Child) 2013

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/2694.html

 

 (Or, as the Daily Mail have reported it, on their front page,  providing a link to the contentious video in question “Top Judge’s War on Secret Courts”   – I note with interest that their online version of the newspaper in amongst promoting this story heavily also speculates as to whether testicle-chomping piranhas are about to invade English rivers.  I didn’t read that article, but I suspect the answer is no)

 The broad sweep of the case appears to be that a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable. 

I suspect the hearts of the Local Authority sank when they realised that their application for an injunction was to be heard by the President, much as those people long ago who brought their case about nuisance and cricket balls from the local cricket club breaking their coldframes must have had a sinking feeling when Lord Denning strode into Court wearing his MCC tie.

The narrow issue in the case was whether the Court should grant an injunction preventing the publication in the Press or on the internet, of material and in particular a video showing the moments of removal of a baby from the parents by social workers and police officers.

 

As one can see from the Daily Mail coverage, the application was not entirely successful, and had pretty much the Streisand Effect   (the term given when an attempt to avoid bad publicity brings instead an avalanche of even more publicity).

 

Where the Court ended up was that an injunction until the child’s 18th birthday was made in these terms

 

“3 This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service for the purposes of preventing the identification (whether directly or indirectly) of the child of:

(a) The names and addresses of:

(i) The Child, whose details as set out in Schedule 1 to this order;

(ii) The Child’s parents (“the parents”), whose details are set out in Schedule 2 to this order;

 

 

(Leaving completely hanging the “whether directly or indirectly” element. Once the video appears on the website of a national newspaper, even if it pixellates the faces of the parents, you get to see an awful lot that would allow their neighbours to identify the parents and thus the child, particularly given that the date of birth of the child and home county  is now in the national  public domain.  I suspect that the ‘indirectly’ part of this is where the difficult semantic arguments are going to be had in future.  What if, for example, the father now puts on his Facebook page  or Twitter “Can’t believe I’m in the Daily Mail today!”   – is he indirectly identifying himself as the father in the case, and hence identifying the child?)

 The case is quite important, because it involves a campaign of publicity which the Court has effectively endorsed (short of anything which directly or indirectly identifies the child) NOT following a judgment which concludes that the parents criticisms and complaints are bourne out  (such as in Webster or Al Alas Wray) but in the midst of proceedings. The Court has not yet reached any decisions about the future of the child, or whether the parents complaints are justified.

I suspect the view of some of my regular commenters will be that this case is long overdue (and perhaps even that the restriction on names goes too far)

 Here is a particularly good soundbite from the parents facebook and video campaign cited in the judgment. It has a sort of Poe / Lovecraftian quality about it.

 

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.”

 

 

The judgment sets out the details of the child’s birth and the parents efforts to publicise the injustice that they considered was occurring

 

  1. J was born at home on 4 April 2013, the local authority says against medical advice. The father announced J’s birth on Facebook. It included these words: “SS banging on the door we’re not answering” and “ss gone to get epo”. I very much doubt that ‘SS’ was here being used as an innocent acronym for the local authority’s social services. The internet is awash with strident criticism of local authorities, described as “the SS” or “SS”, where it is quite clear from the context that the reader is meant to link the activities of the local authorities being criticised with those of Hitler’s infamous SS. The comparison is grotesque and is, and I have little doubt is intended to be, offensive and insulting – grossly so. I make no such finding against the father in relation to this particular publication but I am willing to proceed on the assumption, though without finding, that the father’s intent was indeed to encourage readers to make the comparison.
  1. Subsequently the father posted on Facebook what the local authority says was the “covert” filming of the execution of the emergency protection order later the same day. J was referred to by name. The next day, 5 April 2013, it was picked up by a website called UK Column Live, which published it via You Tube. It has subsequently been much ‘shared’ on Facebook. Two days later, UK Column Live filmed an interview with the father which it uploaded to You Tube on 11 April 2013. The father and the mother are referred to by name. On 12 April 2013 the father gave an undertaking to remove all the material posted on the internet and within his control that would identify any of the children as being or having been subject to care proceedings. On 1 May 2013 he further undertook to use his best endeavours to secure removal of such material from the internet. Footage of an interview with the parents in the precincts of the court on that occasion was subsequently put on the internet by UK Column Live. W and J were identified by name. Further orders were made on 10 May 2013.

 

As those who use the internet know, once something has been published on the internet, it can never be 100% scrubbed clean. If J’s name was published on the internet by UK Column Live, then even if it is now removed, it is discoverable by anyone who really wants to find it.

 

One might think that the audience for UK Column Live, a website run from Plymouth, campaigning hard about what is often called forced adoption, would be fairly limited (though undoubtedly much larger than my own), probably to fellow campaigners and parents who have felt aggrieved by their own experiences. The Daily Mail front page is a rather different matter – anyone who walks into a newsagent or supermarket today will see it.  Once the circulation of the story increases, the potential for someone identifying the child as a result increases exponentially.

  The judgment deals with some very interesting aspects – the first is really the case for transparency, an issue dear to the President’s heart and one which he has adjudicated on several times in the past. This is the furthest he has gone – he makes a number of points here with which I agree, when setting out how vital it is for the public to be able to know what is being done in its name.   (I have underlined what I consider to be the most important passage)

 

  1. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.
  1. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction: Re X; London Borough of Barnet v Y and X [2006] 2 FLR 998, para [166].
  1. I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.
  1. This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.
  1. Almost ten years ago I said this (Re B, para [103]):

“… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.”

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.

  1. The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism. So far as concerns principle I can do no better than repeat what Lord Steyn said in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, where, having referred to Holmes J’s dissenting judgment in Abrams v United States (1919) 250 US 616, he continued:

“freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. … It facilitates the exposure of errors in the … administration of justice of the country.”

  1. This takes me on to the next point. It is vital that public confidence in the family justice system is maintained or, if eroded, restored. There is a clear and obvious public interest in maintaining the confidence of the public at large in the courts. It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism. This principle, as the Strasbourg court has repeatedly reiterated, is protected by both Article 6 and Article 10 of the Convention. It is a principle of particular importance in the context of care and other public law cases.
  1. In relation to the pragmatic realities, I repeat what I said in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, para [133]:

“… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise.”

  1. The family lawyer’s reaction to complaints of ‘secret justice’ tends to be that the charge is unfair, that it confuses a system which is private with one which is secret. This semantic point is, I fear, more attractive to lawyers than to others. It has signally failed to gain acceptance in what Holmes J famously referred to as the “competition of the market”: Abrams v United States (1919) 250 US 616, 630. The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts. As I went on to say:

“… where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77:

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.”

  1. In short, the remedy is publicity, “more speech, not enforced silence.”
  1. The second matter is this. The workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466, 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system require open and public debate in the media. I repeat what I said in Harris v Harris, Attorney–General v Harris [2001] 2 FLR 895, paras [360]-[389], about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system. And the same goes, of course, for criticism of local authorities and others.
  1. This takes me to the third matter. It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish. As I explained in Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89]:

“A judge can assess what is lawful or unlawful, a judge in the Family Division may be called on to assess whether some publication is sufficiently harmful to a child as to warrant preventing it. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting … And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895, at [373]), the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neill LJ recognised [in Re W (Wardship: Publication of Information) [1992] 1 FLR 99] a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public.”

As the Strasbourg court has repeatedly said, “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation:” see, for example, Bergens Tidende v Norway (2001) 31 EHRR 16, para 49.

  1. Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language: see on all this Harris v Harris, Attorney–General v Harris [2001] 2 FLR 895, para [372] and Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89].
  1. It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory or because its dissemination involves the commission of a criminal offence. If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction. If a criminal offence has been committed, the appropriate course is the commencement of criminal proceedings. If it is suggested that publication should be restrained as involving a criminal offence, that is a matter for the Law Officers.
  1. The publicist – I speak generally, not of the present case – may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving. As Lord Oliver of Aylmerton robustly observed in Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248, 1320:

“the liberty of the press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved.”

The remedy, to repeat, is publicity for the truth which lies concealed behind the unfounded complaints, “more speech, not enforced silence.”

 

 

(I do think, however, that a fairly simple case for the distinction between privacy and secrecy can be drawn, in relation to preserving the anonymity of children’s identities. Although the vast majority of the public will never go anywhere near care proceedings or social services and thus the issues are outside their usual experience, most people have known someone who has divorced.  In a divorce case, most people would agree that it would be wrong for their neighbours or work colleagues to be able to read the lurid and scurrilous allegations set out in the divorce petition or to read the details of what the husband has paid out in his bank statements disclosed into the ancillary relief proceedings. They would understand that the public don’t get to see that because it is PRIVATE. )

 

 

The Judge goes on to make some comments about the Internet, and the massive changes it has made to the world of transparency.

 

  1. It is probably far too soon to be assessing the true implications of all this, and there is no need for me even to attempt to do so. It suffices for present purposes to make three points, building on what Tugendhat J said in MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB), para [11]. First, the internet allows anyone, effectively at the click of a mouse, to publish whatever they wish to the entire world – or at least to everyone who has access to the internet. No longer does the campaigner have to persuade a publisher, newspaper or broadcaster to disseminate the message. So there is very little editorial control. The consequence is that the internet is awash with material couched in the most exaggerated, extreme, offensive and often defamatory terms, much of which has only a tenuous connection with objectively verifiable truth. Second, material once placed on the internet remains there indefinitely and, because of powerful search engines, is easily accessible by anyone wanting to track it down. Third, internet providers are often located outside the jurisdiction, in countries where practical difficulties or principled objections stand in the way of enforcing orders of this court.
  1. All of this, it goes without saying, poses enormous challenges. The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies. We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles. For example, and despite the highly objectionable nature of much of what is on the internet, we must, at least in the forensic context with which I am here concerned, cleave to the fundamentally important principles referred to in paras [37]-[40] above.

 

 

 

The Judge then goes on to consider the ability of injunctions to control what is published in other countries.  I think that these passages will be particularly interesting to one of my regular commenters, whose website is hosted in Monaco

 

  1. But at the outset I make clear that there is, in principle, no objection to the English court in an appropriate case granting injunctive relief against a foreign-based internet website provider. Mr MacDonald has helpfully drawn my attention to XY v Facebook Ireland Limited [2012] NIQB 96, HL (A Minor) v Facebook Incorporated and others [2013] NIQB 25 and Tamiz v Google Inc , affirmed [2013] EWCA Civ 68, [2013] 1 WLR 2151. Other relevant cases are G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), [2010] EMLR 14, and Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753.
  1. I can likewise see absolutely no reason why the same principle should not apply equally in the case of what has come to be known as a contra mundum injunction. In my judgment there is, in principle, no objection to the English court in an appropriate case granting a contra mundum injunction against the world at large, including against foreign-based internet website providers.

 

 

(In short, a UK court CAN injunct a publisher, or internet site in another country not to publish material, but one then has to consider the ability of the Court to ENFORCE that injunction if it is breached. The Judge effectively raises the issues but says that resolution of them is for another day, but gives guidance on what the applicant would NEED to do if seeking an injunction to take effect against a person or organisation outside of the UK jurisdiction)

 

  1. I turn to the question of discretion. There is a tension here. On the one hand the starting point is that the courts expect and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent’s likely disobedience to the order. Romer LJ put the point forcefully in Re Liddell (page 374):

“It has been further contended that even so this order can never be enforced against Mrs Liddell if she chooses to disobey it and that the sequestration of her income would not be for the benefit of the children. It is not the habit of this Court in considering whether or not it will make an order to contemplate the possibility that it will not be obeyed.”[2]

  1. On the other hand, and because equity does not act in vain, the court will not grant an injunction which is ineffectual or, to use the Latin, a mere brutum fulmen. As Kerr LJ put it in the passage from which I have already quoted, “our courts will not make orders which they cannot enforce.”
  1. What approach should the court adopt in coming to a decision as to how to exercise its discretion? This is a matter for another day, when there is fuller argument than was appropriate in the present case. Here I merely note that in Wookey Butler-Sloss LJ said that “there must be a real possibility that the order, if made, will be enforceable,” while in Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, para [35], Arden LJ said that “the court must be astute to see that there is a real prospect that something will be gained.”
  1. Drawing the threads together, the court is going to need evidence on two distinct matters. First, in relation to jurisdiction, the court will expect the applicant to put before the court evidence that service by email or letter or as the case may be is permitted by the law of the relevant foreign country: Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753, para [53]. Second, in relation to discretion, the court will need evidence as to the applicable law and practice in the foreign court, evidence as to the nature of any proposed proceedings to be commenced in the foreign jurisdiction, and evidence as to whether the foreign court would be likely to enforce the injunction: compare Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499. Where the injunction, as here, engages freedom of speech, the evidence will also have to detail the foreign jurisdiction’s approach to such matters. Given the First Amendment, this is obviously particularly important in the case of the United States of America: cf the comments of His Honour Judge Parkes QC in Davison v Habeeb and others [2011] EWHC 3031 (QB), para [69].
  1. If what is being sought is an injunction against named defendants it will usually be appropriate for all this evidence to be available before the court is invited to grant the injunction. If, however, what is being sought is, as in the present case, an injunction in contra mundum form, it may be more appropriate to adopt the same procedure as with worldwide freezing (Mareva) orders: see Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, and the form of freezing injunction in the Annex to CPR PD 25A.
  1. There the practice is to require the applicant to give the court an undertaking that “The Applicant will not without the permission of the court seek to enforce this order in any country outside England and Wales” and to include the following in the order:

“Persons outside England and Wales

(1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court –

(a) the Respondent or his officer or agent appointed by power of attorney;

(b) any person who –

(i) is subject to the jurisdiction of this court;

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

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

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

The detailed evidential investigation of foreign law and procedure can then be postponed until such time as the applicant seeks permission from the English court to enforce abroad.

 

On the final matter, that of whether publication of the video was lawful given that the baby’s face could be seen, the Judge said this :-

 

  1. There is, however, in my judgment, a crucial difference in a case such as this, where we are concerned with a baby a day old (though the same point will no doubt apply to somewhat older children), between restraining publication of the child’s name and restraining publication of visual images of the child. There are three reasons for this. First, the reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual. Third, in a case such as this, although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.
  1. Assessing these three factors together, there is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.

 

Leaving us with the situation where the Daily Mail and other newspapers, can run the story of this case on their front page, provide stills from the video and use their websites to link to the video PROVIDED that they do not give the child’s name.

 

Short of defamation actions (which are not at all easy to get off the ground), given that the injunction here did not restrict the publication of the details of social workers names and the Court ruled that

 

I simply fail to see how naming the local authority, the social workers, the local authority’s legal representative or the children’s guardian, or even all of them, can in any realistic way be said to make it “likely” that J will be identified, even indirectly. The risk is merely fanciful

 

This case is obviously a major shift for campaigners and a major headache for Local Authorities.

 

 

It is also very clear that in any application for an injunction or Reporting Restriction Order in future, this case is going to be cited as a compelling reason NOT to make such an order, and the evidence of harm or risk of harm to the child will need to be very clearly set out.

 

 

It is, to me, really interesting to compare this case with the Vicky Haigh judgments. In that case, Vicky Haigh ran the risk of prison for her internet campaigning and a friend of hers who was assisting her in the campaign DID actually go to prison (albeit briefly). That judgment was made by our last President, only two years ago, and related to a mother who was running a campaign on the internet about her court dispute, including making allegations which were unfounded about the father being a sexual risk to children.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2011/B16.html

 

One can’t help but wonder the extent to which these two cases differ so vastly in such a short space of time.

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Triborough a little tenderness

Posted on September 2, 2013 by suesspiciousminds

 

A dash through the evaluation of the Tri-borough project aimed at completing care proceedings within 26 weeks.

 

This is a valuable assessment, being the first evaluation of how the new PLO 26 week timetable works in the wild  , and you can find it here

 

http://www.uea.ac.uk/ssf/centre-research-child-family/news-and-events/news/2012-13/Triborough

 

The Tri-boroughs are Hammersmith and Fulham, Kensington and Chelsea and Westminster, and they rolled out a plan to achieve the 26 week timetable in care proceedings.

 

Caveat to all of this – I couldn’t find anything that indicated that ALL of the cases in those boroughs were included in the pilot  – clearly if there was an “opt-in to the Pilot” then the findings become less valuable, since it would be simple to ‘weed out’ the cases that appear complex or problematic so that they never went into the pot.  It is also worth noting that over the course of the Pilot, one of the Boroughs had reduced their LAC numbers by 30%, which may have had some influence on volumes of proceedings.

 

Their findings are useful. The first thing to note is that whilst all professionals and the local judiciary were throwing the kitchen sink at finishing these cases within 26 weeks, by the end of the pilot period, as many cases took LONGER than 27 weeks as had finished within 27 weeks.

 

The timescales for concluding proceedings had however gone down massively with the new way of working – although they hadn’t hit the target of 26 weeks in over half the cases, they had cut the average duration of proceedings down from 49 weeks to 27 weeks.  And for the longest running cases – the outliers, they had cut these down by almost half, from 99 weeks to 52 weeks. That is impressive, by any standards.

 

 

I think that these comments from the key summary points are helpful, and worth quoting in full

 

 

The fact that the median length of proceedings is now around 26 weeks means, of course, that half the cases are still taking longer than 26 weeks. This should not necessarily be viewed in a negative light since some case-by-case flexibility about the length of proceedings is surely necessary in the interests of children’s welfare and justice. The pilot demonstrates that some flexibility can coexist with meaningful efforts to bear down on unnecessary court delay.

 

 Proceedings involving a single child were shorter (median 25 weeks) than those involving sibling groups (32 weeks). Proceedings resulting in a care order, with or without a concurrent placement order were shorter (median 20 weeks) than cases resulting in an SGO (26 weeks) or in the child returning or remaining at home on a supervision order, with or without a residence order (29 weeks).

 

A lot of the professionals who were interviewed during the evaluation had been concerned (as am I) that attempting to artificially constrain the duration of proceedings might result in unfairness in individual cases even whilst it might be good for the system overall.  In reality in the pilot, it appears that those cases that NEEDED more time were given it.   That is a scheme that I would be behind, but the fear remains that pressure is being applied based on raw numbers and data to drive the duration down with unfairness in some individual cases being an acceptable collateral damage. I hope this lesson from the Tri-borough pilot is taken on board by The Powers That Might Be Giants, but am slightly doubtful.

 

What also interested me in the summaries above was confirmation that a longer duration of proceedings doesn’t automatically mean a bad thing. One can see that you can finish proceedings more quickly if you get what many would consider to be the WORST option (child adopted by strangers) and it takes the longest time to get the BEST option (child being successfully placed with a parent). I also hope that THIS lesson is taken on board – I am rather more doubtful about that.

 

 

I suggest moving through the report to the graph at figure 2.4.  This shows where at each stage, time savings have been achieved.

 

The time from pre-proceedings to issue was about the same. The time from issue to CMC was about the same. The time from CMC to IRH sped up from 26 weeks to 15 weeks, a big reduction in time.

 

But, look at the next bit – the time from IRH (the hearing at which all the evidence should be ready, and the case can either be concluded, or a final contested hearing take place) to final order  – this reduced from 15 weeks to 5.5 weeks.

 

This is an ODD figure.  Nothing that was going on in the pilot ought to have affected the waiting time between IRH and final hearing.

 

Here are the five possible explanations that my cynical mind has come up with:-

 

 

 

A)   s the figure is an average, the Pilot massively increased the proportion of the cases that concluded at IRH rather than final hearing. But the text discounts that, saying that actually the reverse is true – nearly one in six pilot cases finished at IRH, whereas nearly one in three pre-pilot cases finished at IRH. So it isn’t that.

 

B)   The time estimate for contested final hearings went down, thus giving the Court more hearings in the same time period, and making it quicker to list.  (reducing the waiting time from 15 weeks to 5.5 weeks seems a LOT for this) . The report doesn’t give me the data on duration of final hearings pre-pilot and during the pilot, which might be interesting for that. 

 

C)   Because there were less experts, the Court didn’t have to provide dates which suited that limited expert availability. (Under THIS theory, the Court had previously been offering dates quicker than 15 weeks which had, pre-pilot, been turned down due to not being suitable for the expert, but during the pilot could be made use of)

 

D)    There were additional judicial resources in terms of sitting days in the Tri-boroughs during the pilot. 

 

E)   When deciding the date for the final hearing at IRH, pilot cases were getting priority over non-pilot cases  (that’s my polite way of saying ‘queue jumping’

 

 

I would rather like to know more about this, because the 9.5 week saving here represents quite a big chunk of the 22 week time saving the Pilot had achieved as an average. I genuinely hope that it is as a result of B and C, and not the other factors.

 

One would need to know whether that was replicable across the country (i.e it was done fairly) before one could get excited about it.  Without that saving of time at the back-end, the average duration of care proceedings would be stuck at the 35-38 week point.

 

 

There’s an interview with a family law solicitor that expresses just this point, I think rather well (it isn’t me)

 

Now I am aware that the Ministry of Justice is going through a process of trying to make large savings in terms of judicial sittings and appointment of full-time judges, and I also wonder whether the courts can deliver on making courts available, judges available, to make decisions on time, so that we are not waiting four to five months for court time. Because if we are going to be faced with courts saying, ‘Well from the point of an IRH to when a care final hearing is listed, you have to wait four to five months,’ which is very common in the recent past and is not uncommon now, then any savings you make are just going to fly straight out of the window. You are sitting there everybody with their arms folded, the case beautifully presented and no court available to make the decision. So…it is not just the local authorities, it is also court availability and that seems to me problematic. The thing is we are going to be told I am sure, that with a unified court, that’s going to solved, I am doubtful personally, from what I see day in day out in court….And I fear that courts won’t be able to deliver on this in the year. (Family solicitor, Int 3)

 

And

 

I think where it won’t be sustainable is in the ability of the court to accommodate hearings as quickly as they did. (Local authority solicitor, Int 9)

 

 

Both make me suspicious that the savings on the “Wait from IRH to final hearing” weren’t necessarily achieved by replicable means.

 

Of course, if in the headline Pilot study, where the suspicion exists that extra judicial resources AND priority status was given to listing final hearings, it is pretty worrying that it STILL took 5 ½ weeks from IRH to get a final hearing. Since we know that for run-of-the-mill work, we have six weeks from IRH to find a final hearing…. cough, cough… ooh look everyone, an elephant!

 

 

And the report also touches on the ever present difficulty of Pilot studies, that being part of a Pilot tends to focus and energise people and that knowing whether that could be sustained in a national roll-out.

 

 

The concern then is that the pilot has benefitted from unusually favourable conditions (relatively wealthy boroughs, changes in staffing levels at Cafcass, special treatment in the courts), and that it has required, as we discussed earlier, if not more actual time, then higher than average levels of commitment, effort, focus. We discussed previously the fact that views were surprisingly diverse as to whether the pilot added or subtracted from staff workloads in terms of time but it does seem clear that more effort (also described by participants in terms of being ‘strong’ or ‘robust’ or having ‘energy’) is needed to work in this new way.

 

 

The report also echoes the findings of Masson, that the duration of pre-proceedings work had no positive bearing on the duration of the proceedings. In fact, oddly (and this may just be a quirk of a relatively small sample size), the cases where the formal Pre-Proceedings Protocol was used took slightly longer to conclude than those where it wasn’t. (figure 5.2)

 

One of the fears of the new PLO was that delay would be shifted to pre-proceedings rather than during court proceedings, but the pilot evaluation showed that not only did this not happen, there seemed to be a sharper focus on issuing proceedings at an earlier stage. For cases other than newborns, the time between issue of Letter Before Proceedings and issue of proceedings came down from an average of sixteen weeks to an average of six weeks.  (Figure 5.3)

 

(One might query whether six weeks is long enough for a parent to turn anything around, but clearly this figure isn’t showing that the delay was just moved to pre-proceedings)

 

The time children had spent on child protection plans before proceedings were issued had also come down, quite considerably.

 

Pre-proceedings drift, a major worry for many professionals, does seem to have been avoided by the Tri-boroughs pilot, and for that, if nothing else, there must be some valuable lessons to be learned.

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Violence against social workers

Posted on August 23, 2013 by suesspiciousminds

 

This is a curious little article in Community Care, based on a national survey done of social work/social care staff around the country. It covers an important topic of the violence that workers in social care encounter during their work.

It gives a useful colour coded map, in which one can use sliders to look at the number of the  incidents of violence against social work / social care staff over the last four years.

The grey areas show that none of those surveyed in that area reported any incidents of violence, and then the colours go from yellow, dark yellow, orange through to reds and dark reds. Each colour represents around 150 incidents, and you can click on any individual area to see the total number of reports.

 

http://www.communitycare.co.uk/violence-against-social-care-staff-2013/

 

Given what social care professionals have to do in their work, I am slightly surprised that it is not higher – not that I am condoning any of these incidents far from it, but there’s a context of having to make very challenging and emotionally charged decisions and interventions in people’s lives.  When you consider the number of people employed in social care and the number of interactions that each of them has with people very single day, even the high end is just a tiny tiny proportion of those interactions. That obviously doesn’t lessen the unpleasantness of any single one.

 In nearly 20 years of doing a pretty challenging job in legal, I’ve had one person take a bad swing at me and miss, one throw a table over in court, one massive steroid-assisted bloke with pecs like halved watermelons inform me that if I didn’t get out of his way he would “destroy me”, a delightful chap walk behind me in a corridor at Court and tell me that “If I had a knife in my pocket right now, I could stick it right in your kidneys”.  

I can understand the context of why all of those people felt that way about the horrible mess I was making of their lives, but it didn’t stop any of it being very very unpleasant to experience and I remember all of them pretty vividly. And I didn’t actually get struck in any of them.

So all of what follows is absolutely with the understanding that violence in the workplace is a really horrible and potentially traumatising event and that it can’t be acceptable.

Caveats over.

All of the gray areas are presumably no reported incidents at all, and that probably represents around a third of the map. The majority of what is left is somewhere between 1 and 300 incidents per year.

 But what I found rather intriguing was that there were bands or geographical pockets of the higher end, the orange and red areas that seem to be around 500-1000 reported incidents per year.  And some of these cropped up over and over. And they weren’t necessarily the ones that a lazy stereotype might pick out.

 

The ones for 2012 show  those hotspots as being :-

 

The very North of England – Durham, Cumbria, Northumberland (hold off on your stereotypes for a moment), Leeds, Sheffield and Nottingham (leave those stereotypes) and the South East of England, particularly West Sussex.  People working around Worthing and Bognor were much more likely to experience violence than those around Liverpool, Manchester, Birmingham, inner-city London in 2012.

 

2011 shows North of England, Leeds, a teardrop shape around Sheffield and Nottingham, bits of London and again West Sussex.

 

2010 show North East of England, the Sheffield/Nottingham teardrop again, bits of London and again West Sussex.

 

2009 – no red or orange in north of England, or Sheffield/Nottingham, or London. Norfolk is bad, Dorset is bad, and yet again, West Sussex is bad.

 

Of course, the number of incidents doesn’t tell anything about the seriousness of them. Perhaps the red/orange authorities are more rigorous about reporting and logging incidents that some of the other areas brush off and don’t record.  

 

Maybe not, maybe West Sussex workers should be asking for some danger money.

 Another portion on the Community Care story on this shows an infographic illustrating the violence inflicted on such workers – the larger the word, the more frequently it came up in the survey

 http://www.communitycare.co.uk/blogs/social-work-blog/files/2013/08/Violence-Wordle-1200×900.jpg

 The heading being “knife throwing” and the sub-heading being “workers tell us what they have been attacked with”

 Then you look at the visual image and wince.

 When you first look at this, just as I did, the words that leap out at you are Chair, Knife, Thrown, Knives, Hammer, Face, Head,  Needle, Glass, Hit, Heavy, Objects Threatened.  

 Again, without wanting to trivialise this – nobody ought to be physically threatened or harmed when they are doing their job, even in the context of the very emotive nature of the job; when you look a bit closer at the infographic, you see words like

 

Etc, various, manager, parent, ready , another, support, number

 

Albeit much smaller. So clearly the graphic is not showing “things that workers have been attacked with” and how frequently such objects were used, but rather the frequency with which certain WORDS were used in the description of events.

 Unless it is that social care staff in West Sussex are being hit by another manager for not being ready.

 It is an important and serious issue, and for any worker who has gone out to do a difficult job and in the course of a day was threatened or hit with a stick, or a snooker cue, or a knife, that’s absolutely unacceptable and dreadful. I just think one needs to be careful about juxtaposing information like 712 incidents of violence in 2012 in Northumberland with a graphic highlighting the very most serious of such events.

 Nonetheless, I think it is an important issue;  to look at why these things happen and how they can be reduced and why there are such regional disparities; and I applaud Community Care for highlighting the issue and bringing it to life.

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There ain’t no sanity clause

Posted on August 22, 2013 by suesspiciousminds

 

I was just remembering this today, and it made me chuckle. There aren’t many people who could wring a laugh out of contract negotiations…

 

“I can read, but I can’t see it”

 

 

 

 

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Removal of a vulnerable adult from his home

Posted on August 22, 2013 by suesspiciousminds

The decision of the Court of Protection in Re A Local Authority v WMA 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2580.html

This is not, I think, a development in the law, but it is a recent decision by the Court of Protection which authorised the removal of a vulnerable adult WMA from his home, authorised the LA to go into his home and remove him, authorised him to be placed somewhere he didn’t want to go, authorised a deprivation of his liberty and authorised if necessary the police to go into his home and remove WMA, all on the basis that this was in his best interests, WMA lacking capacity to make such decisions for himself.   It therefore raises interesting talking points.

What orders are necessary? I find that these are: a power for the local authority to enter the home if necessary; a power to the police to restrain WMA if necessary; an order that WMA be removed from his current home and taken to B where the local authority will have power to retain him if needs be; and the local authority will have the power, of course, in addition, to sign the tenancy agreement on his behalf. These measures are proportionate and necessary.

As such, it is a powerful reminder of the powers that the Court of Protection have; the impact such powers can have on vulnerable individuals and additionally a useful summary of the factors to be balanced and tests to be applied.

I have to say that my own take on the case (which is not that important, but I’ll give it) is that I felt WMA’s wishes were somewhat marginalised and that the case was substantially more finely balanced than it might appear from reading the judgment. I probably would have authorised WMA’s removal, if all efforts to improve things for him at home had failed, but I would have found it more difficult to do so.

  1. The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty.
  1. WMA suffers from an autistic spectrum disorder. Although it is possible to have a conversation with him about his clearly expressed views, it is plain, and agreed by even his mother MA, that he lacks capacity in some important aspects to which I shall come. He has been diagnosed in these proceedings as having atypical autism and a pervasive development disorder. He presents with unpredictable behaviour on occasion.
  1. He leads an isolated and insular life with MA, who has also sight and mobility problems of her own. The local authority is concerned about the impact of isolation on WMA’s long term development and its social work team has reluctantly come to the conclusion that he needs to be moved into supported living accommodation, despite the difficulty of the initial move, because in the long term this will help WMA and MA to develop a more healthy relationship. It is argued that there is currently an unhealthy degree of interdependence. The local authority alleges too that MA is unable to care for WMA properly, she is likely to be harming his development and it is against his best interests to remain with her.

 

 

Part of the problem in the case was that although WMA wanted to be with his mother, MA; professionals felt that MA was (a) holding him back and impairing the progress and development that he could make and (b) not able to actually care for him, to the point where the home conditions were described as both ‘squalid’ and the sort of home conditions that would lead a child to be removed for neglect.  MA did herself no favours by the way she participated in the hearing, one has to say.

The LA put the case like this

 

  1. 67.   “It is my professional view that WMA is a twenty three year old man with the potential to lead a more fulfilling life. I am also of the view that MA is not deliberately abusive to him but rather has needs of her own that have not been assessed but which impact upon her ability to care for WMA effectively and to manage her own living environment. I think she is not aware that her behaviour towards him is abusive. She has little expectations of him and there is evidence of the frustration she experiences from undertaking his care, shouting at him, preventing him from leaving the property. MA has stated on many occasions she does not want local authority involvement with the family, blaming them for the lack of diagnosis of WMA as a child. She has been found to be neglectful through safeguarding adults procedures. I am concerned that WMA has been treated in an inhumane and degrading manner by MA and that his true potential has been unrecognised and stifled. In order for him to live safely and towards a more fulfilling life I think he should move on to supported accommodation whilst continuing to have contact with his mother.”

The first issue in the case, where WMA had capacity to make decisions for himself, was fairly straightforward. (I did note with some surprise that WMA’s IQ was assessed at being 64, rather higher than one might have believed reading some of the descriptions of him, but of course with autistic spectrum disorder IQ itself isn’t the only measure of capacity)

  1. WMA’s significantly learning disability as a result of his autism meet the criteria of section 2 for he has an impairment of functioning of the mind or brain. Dr. Carpenter has made this quite clear. Even MA has doubts as to his capacity and considers him less capable than others of achieving in this life.
  1. In addition, WMA clearly meets the functional tests in section 3. He cannot use all relevant information relevant to a decision as part of the process of making a decision. This test is decision specific but I am satisfied that WMA cannot make decisions as to his residence, his care plan and his contact with his mother. Of course, WMA has sufficient capacity to decide what he wants to eat but he cannot cope with concepts or make sensible plans as to where to live. In addition, he cannot cope with or even contemplate change, save with assistance.
  1. This, too, is confirmed by Dr. Carpenter who made it clear to me that this is not a borderline case as to capacity. He counselled against believing that WMA has near capacity simply because of his verbal abilities. That view of the functional test was echoed in the evidence of Mr. McKinstrie, the independent social worker, and the views of the social workers who gave evidence.
  1. Accordingly, I have concluded WMA cannot use or weigh the factors as to where he should live. His view that he should remain living with his mother is a decision he is incapable of making. He cannot weigh up all the considerations. Alongside that fundamental issue he cannot decide what care package is suitable for him or, indeed, what contact if away from MA he should have with her.

Having established that WMA lacked capacity, the Court then had to go on to consider what was in his best interests, taking into account all of the factors set out in the Mental Capacity Act 2005.

The Court made the following factual findings

  1. I make the following findings.
  1. First, the local authority social workers have been unable and will be unable to provide appropriate care for WMA and monitor it because of his refusal to accept it and because of MA’s inconsistence and erratic interference with the local authority help.
  1. Second, there is a worrying history about MA’s care for WMA that shows no sign of abating.
  1. Third, that the local authority has made special efforts over the last eighteen months to engage fully with both of them but there has been an unacceptable degree of conflict. I am not persuaded the local authority could have done any more and I have noted with concern the helpful evidence of CG that she has felt under threat recently.
  1. Fourthly, WMA lives an isolated lifestyle and is expected often to be in mother’s eyes and ears. His relationship with her, however, is a frustrated one and there is clear evidence on mother’s case alone that he is, at times, beyond control.
  1. Fifthly, the isolation is such that WMA just does not go out with any with any regularity. Dog walking and shopping appear to be virtually the limit of his outdoor activities with the exception of the few outings that were organised by Delos who he now rejects. As long ago as February 2012 he could not recall when he last went out anywhere.
  1. Sixthly, the home of MA and WMA continues to be kept to a very low standard of cleanliness and, whilst it is not for the court to impose respectable middle class standards of care, nonetheless, the home’s condition has on occasion deteriorated. The recent evidence of CG, for example, that the fridge is kept to a low standard of cleanliness is very concerning. True enough, this has not yet made WMA ill but I am sure that it will one day,
  1. Seventhly, there is a plain history of neglect of WMA by his mother. She does not keep him sufficiently safe or clean or his clothes sufficiently clean to an acceptable standard. The clear point is that MA’s standards are not simply lower than the norm, they are below a good enough standard.

It is important to note that the ‘safeguarding concerns’ were not the test – they were a factor to be weighed in the best interests decision, but it was not a simple matter, as the Official Solicitor suggested the LA had put it of safeguarding concerns being the focus of the Court.  The Official Solicitor also raised on behalf of WMA that the case might well be social engineering. It was not right to move WMA simply because he might DO BETTER in a setting away from his mother   (this is a well-established principle in care proceedings), it had to be a decision taken in the round, for his best interests.

There was an interesting debate about what the starting-point is in such cases (i.e does one START with the position that WMA ought to be at home where he wants to be, or START with a blank sheet of paper?  In care proceedings, of course, the Court STARTS with the proposition that it is better for a child to be at home with his parents and has to have compelling evidence to move away from that proposition)

Not so in Court of Protection cases.

  1. I quote from another part of the K v LBX case [2012] EWCA (Civ) 79 not cited by Mr. O’Brien. In discussing whether or not the court would start from placing the person concerned with their family, Black LJ said this:

“A prescribed starting point risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. In its wider form incorporating reference to both private and family life, there is a danger it contains within it an inherent conflict for elements of private life, such as the right to personal development and the right to establish relationships with other human beings in the outside world may not always be entirely compatible with the existing family life in the sense of continuing to live within the existing family home.”

It is a difficult tension here – once a person lacks capacity, there is no “Threshold criteria” no test of harm that has to be crossed by the State to justify their removal from their family home; the Court just has to consider whether it would be in WMA’s best interests to be so moved.

Of course, the law is intended to protect vulnerable people who prior to the MCA 2005 would have been left alone to live in squalid conditions with their needs not being met unless the person met the criteria under the Mental Health Act for detention or Guardianship (or the little-used powers under community care legislation)

National Assistance Act 1948

s47 Removal to suitable premises of persons in need of care and attention.

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

 

Which made provision for an application to be made to Court and an order authorising the removal.  I’m not sure how often that was ever used, but one can see that there is something of a test in there (and a pretty high one), rather than the generic principle now that a person lacking capacity can be removed from their family if the Court of Protection consider it is in their best interests.

There are no police powers to remove a vulnerable adult from a home where they are felt to be at risk, and the criminal offence of neglecting a vulnerable adult whom you are caring for only came about with s44 of the Mental Capacity Act 2005.

On the other hand, this leaves a vulnerable group of adults, those lacking capacity, as being those for whom the Court of Protection can make wide-ranging decisions about what is in their best interests. One hopes, of course, that the Court of Protection makes what one would objectively consider to be in the best interests of the vulnerable adult, but there is this obvious tension between what the State might consider to be in the best interests of the adult, and what the adult and their friends and family might consider to be in the adults best interests.

The Mental Capacity Act of course came about to fill a gap in the law, the “Bournewood gap” where a person who lacked capacity to declare that they wanted to leave a residential unit ended up remaining there with his carers being unable to challenge that decision or remove him, and the case had to go all the way to Europe.

We are still in relatively early days of the Court of Protection and the working of the MCA in practice, but a case like this does point up how even when a Judge carefully analyses and balances all of the competing factors, the exercise of a “best interests” decision can completely turn WMA’s life upside down, and unless his capacity to make decisions changes, such a decision will be very hard to reverse or challenge for WMA in the future.

It could be argued, and is being by many who come across the MCA, that the solution is becoming worse than the problem. It is very hard not to be paternalistic when operating the best interests decision.  (for me, in this one, the chronic neglect and home conditions probably just tip the balance, when combined with the long-standing unsuccessful attempts to resolve this, but if they do tip the balance, it is only just, and I might well have gone on to find that the article 8 right to private and family life trumped it).  It does seem to me a little odd that there’s no presumption in the MCA that the vulnerable person’s family are better placed to make a decision for what is in their best interests unless there are compelling reasons to the contrary.

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The Commital-ments

Posted on August 21, 2013 by suesspiciousminds

Two recent cases on committals – one resulting in a suspended sentence, one resulting in the commital being dismissed on some interesting techicalities.

The first :-  Re Roberts 2013

http://www.bailii.org/ew/cases/EWCC/Fam/2013/1.html

A warning shot across the bows, in relation to parents publishing material on the internet that would identify their child as being the subject of care proceedings.

In this case, Mr Roberts undertook some filming at Derby County Court, and also published on the internet documents which identified that his child was the subject of care proceedings, which is unlawful.  He had also given an undertaking not to do this sort of thing and breached that undertaking.

He was given a sentence of 6 weeks custody, suspended on the basis of him undertaking not to do this again.  (if he does it again, he will serve 6 weeks, plus whatever additional sentence is imposed for the later offence)

Of course, there is a lively and spirited debate at present as to whether parents should be able to do that, but unless and until the law is changed, doing this sort of thing presents a very serious risk to the parent of committal proceedings.  It is particularly worth noting the judicial comment here that breaches of this kind are bound to attract a prison term.

I’m not going to get into the merits of whether the law should change to allow Mr Roberts to do this, to publicise his case and speak out about whatever injustice he considers has been done to his family – the judgment is a cautionary tale that the law STILL applies to people even where they consider it to be unfair or foolish, and that there are serious risks attached to breaching the law.

I would add that as more and more litigants in person come into the family law system, the more vital it is to have clear and easy to follow rules about what can and cannot be said by a parent about the ongoing court case. The President’s direction of travel towards more openness is going to make it even more important that parents know exactly what the rules are.

It is such a short judgment, I can publish it in full. Note in particular, my underlined passages for emphasis.

RE MR PAUL ROBERTS

1.     On the 19 June 2013, Mr Paul Roberts appeared before His Honour Judge Orrell at the Derby Combined Court Centre; Mr Roberts was assisted by Mrs Jacque Courtnage, acting as a McKenzie friend.

2.     Mr Roberts admitted breaches of an order made by Mr Justice Hedley on the 14 June 2012 and breaches of an undertaking given by Mr Roberts on the 12 April 2013, namely:

3.     He allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified W by name as a child who had been removed from her parents’ care and been subject of proceedings under the Children Act 1989.

4.     He published on the Internet images and letters from the local authority which identify W by name as a child who had been removed from her parents’ care and been made the subject of proceedings under the Children Act 1989.

5.     On the 1 May 2013, he allowed himself to be filmed in the Derby Combined Court Centre and in the film he identified J by name as a child who had been removed from his parents’ care and had been the subject of proceedings under the Children Act 1989.

6.     The above matters were breaches of the order made by Mr Justice Hedley.

7.     In breach of his undertaking, on the 1 May 2013, Mr Roberts disclosed information about the proceedings under the Children Act 1989 concerning J to a third party whilst allowing himself to be filmed including filming in the court building before the hearing in these proceedings on that day.

8.     In respect of the breaches, Mr Roberts was committed to 6 weeks custody to run concurrently in respect of each breach; the term of committal was suspended on condition that he complied with the terms of each of the following: [i] the order made by Mr Justice Hedley on the 14 June 2012, [ii] the order made by His Honour Judge Orrell on the 1 May 2013 within these proceedings and [iii] the undertaking given by Mr Roberts on the 12 April 2013.

9.     The sentencing remarks were as follows. The order and the undertaking were to protect a child in care. Any breach of that sort of undertaking is bound to attract a prison term. Breaches by talking to the sort of people you did was extremely reckless. On this occasion I will suspend the inevitable sentence in the hope you will not again risk going to prison.

His Honour Judge Orrell

And now, the second

In the Matter of an application by Her Majesty’s Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court 2013

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/application-matter-of-jennifer-jones-21082013.pdf

And this involved a mother who defied orders of the High Court that the children should be handed over to the father, who proposed to live with them in Spain.  She not only did not hand them over, she in effect went on the lam, and was finally found hiding out in a guesthouse in Gwent.

The two older children refused to go to their father, and even though the order transferring residence remained in force, they continued to live with their mother in Wales.

An application to commit the mother for contempt was brought, the trial Judge having asked the Attorney General to consider the case.

An issue arose as to whether there had in fact, been a breach of the order made by Hedley J, that underpinned the committal application. That order was as follows :-

“It is ordered that:

1 Jessica … Tomas … Eva … and David … shall be returned forthwith to the jurisdiction of the Kingdom of Spain pursuant to the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2 Paragraph 1 above shall be given effect as follows

(a) The children shall return to Spain accompanied by the father on a flight scheduled to depart from England and Wales no later than 24.00 hours on 12 October 2012 (00.00 hours on 13 October 2013); and

(b) The mother shall deliver up the children into the care of the father, or cause the children so to be delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012”

Paragraph 1 does not place any obligation on the mother to do this, para 2 (a) relates only to the father, leaving only para 2 (b).  It is clear that the mother DID NOT deliver up the children.

 

18.  The Solicitor General does not base any allegation of contempt on a breach of paragraph 1 of Hedley J’s order. He was right to adopt that stance, for paragraph 1 was not an injunction, whether in form or in effect. First, paragraph 1 was not addressed to anyone in particular. It directed, in the abstract as it were, that something was to be done. But it did not order the mother, or anybody else for that matter, to do something: see the analysis in Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. Secondly, paragraph 1 did not specify any time for compliance, and that omission is fatal: Temporal v Temporal [1990] 2 FLR 98.

 

19        In relation to paragraph 2 of Hedley J’s order, the Solicitor General, as we have seen, puts his case on two different footings. First, he says that the mother was in breach in failing to deliver up the children by 4pm on 12 October 2012. Secondly, he says that she continued to breach the order by failing to deliver up the children after 4pm on 12 October 2012, which breach, he alleges, continued until 17 October 2012

That seems, on the face of it, to be a legitimate argument. The mother was aware that she had to deliver the children into the father’s care at Cardiff Railway station, no later than 4pm on 12 October 2012. And she didn’t do that. That looks and smells like a breach. But wait.

20    There is, in my judgment, simply no basis in law upon which the Solicitor General can found an allegation of contempt for anything done or omitted to be done by the mother at any time after 4pm on 12 October 2012. Paragraph 2(b) of the order was quite specific. It required the mother to do something by 4pm on 12 October 2012. It did not, as a matter of express language, require her to do anything at any time thereafter, nor did it spell out what was to be done if, for any reason, there had not been compliance by the specified time. In these circumstances there can be no question of any further breach, as alleged in the Solicitor General’s notice of application, by the mother’s failure to deliver up the children after 4pm on 12 October 2012 or, as alleged in the application, any continuing breach thereafter until 17 October 2012 when she and the children were found.

 

 

The President ruling therefore that mother could not have been in breach for not surrendering up the children AFTER 4pm on 12th October, as the order did not require her to do so.  So she was NOT in continued breach, and her actions in going on the run with the children wasn’t any part of the breach for which she could be committed. And she couldn’t be breaching the order by not delivering up the children BEFORE the deadline. That meant that the only possible breach was her not delivering the children to father’s care AT 4pm.

(So, she was possibly only in breach of the order for a minute, as by 4.01pm, the requirement on her had lapsed.)

22. The present case is a particularly striking example of the impossibility of reading in some implied term. What the order required the mother to do was to:

“deliver up the children into the care of the father … at Cardiff

Railway Station at no later than 4pm on 12 October 2012.”

Suppose that for some reason she failed to do that. What then did the order require her to do? Deliver the children to the father at Cardiff Railway Station or at some other (and if so what) place? And assuming it was to be at Cardiff Railway Station by what time and on what day? Or was she (to adopt the language of a subsequent proposed order) to return, or cause the return of, the children to the jurisdiction of the Kingdom of Spain by no later than a specified date and time? It is simply impossible to say. Speculation founded on uncertainty is no basis upon which anyone can be committed for contempt.

23.I do not want to be misunderstood. If someone has been found to be in breach of a mandatory order by failing to do the prescribed act by the specified time, then it is perfectly appropriate to talk of the contemnor as remaining in breach thereafter until such time as the breach has been remedied. But that pre-supposes that there has in fact been a breach and is relevant only to the question of whether, while he remains in breach, the contemnor should be allowed to purge his contempt. It does not justify the making of a (further) committal order on the basis of a further breach, because there has in such a case been no further breach. When a mandatory order is not complied with there is but a single breach: Kumari v Jalal [1997] 1 WLR 97. If in such circumstances it is desired to make a further committal order – for example if the sentence for the original breach has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, by an application for committal for breach not of the original but of the further order: see Re W (Abduction: Committal) [2011] EWCA Civ 1196, [2012] 2 FLR 133.

24.  It follows that the only question which properly arises on the present application is whether the mother was in breach of paragraph 2(b) of Hedley J’s order by reason of events down to 4pm on 12 October 2012.

At this point, one suspects that those bringing the committal application were beginning to quail. They probably considered that the mother was “bang to rights” but that sense of confidence was dissipating.

The next issue was then, whether the mother was actually flouting the order of Hedley J, or whether through forces beyond her control, she had been unable to comply with the order by getting to the train station at 4.00pm.

As luck would have it, before the mother had set off on the journey, the children had run away and the police were called and her departure was delayed, making it impossible for her to get to Cardiff train station by 4pm (or at worst, there being a reasonable doubt that it was impossible)

The Judge found therefore, that it was not proven to the criminal standard of proof that it had been physically possible for her to comply with the order to deliver up the children at 4pm, the mother had NOT breached that order, and that the order as drafted placed no obligation on her to do anything subsequent to 4pm (i.e she didn’t have to deliver the children to father’s care after that time), so the committal application had to fail.

It is therefore, a very important lesson in drafting terms in an order that might be enforced – one has to be clear what the mandatory obligation on the party is, and what the timescales for compliance are. Had the order been that mother must deliver the children to father’s care by 4pm on 12 October 2012 or in the event of that not being possible, that there was an obligation for her to deliver the children into his care at any time after and by the latest by 4pm on 19th October 2012, she might well have been in breach.

The events of 12 October 2012 – the facts

29. I turn at last to the central issue in the case: the close and careful scrutiny of the events of the crucial day, 12 October 2012. In fact, as I shall explain, the relevant inquiry focuses on an even narrower time-span: the period from 1.39pm to 2.56pm on the afternoon of 12 October 2012.

30. The unchallenged evidence of the mother, based on a Google printout, is that her home in Llanelli is 54.4 miles from Cardiff Railway Station, and that the journey by car along the M4 takes about 64 minutes. So, in order to get to Cardiff by 4pm they would have had to leave by 2.56pm at the latest. Also unchallenged was her evidence that she had arranged the loan of a friend’s 8-seater people carrier at 2.30pm to take herself and the four children to Cardiff and that, having herself packed the younger children’s luggage, at about 1pm she told the two older children to go upstairs to pack. At 1.37pm (the time is fixed by his mobile phone) Mr Williams received a telephone call from his daughter, who was driving past the house, to say that she could see Jessica on the flat roof outside her bedroom window and Thomas outside the house with his bag (apparently he had jumped down off the flat roof). Mr Williams went upstairs and pulled Jessica back into the house. She gave him the slip and ran out of the house and away with Thomas, Mr Williams in pursuit. He telephoned the police: the call was logged at 1.39pm. None of this is challenged by Ms Cumberland. So the crucial inquiry narrows down to the 77 minutes or so between 1.39pm and 2.56pm.

 

31. In relation to what happened during that period I am dependent in large part on the accounts given by the mother and Mr Williams. Both, as I have said, made witness statements and gave oral evidence. Their accounts can be summarised as follows: Mr Williams set off in pursuit, giving the police a running commentary on the phone: this is borne out by the police log. The children were found in the public library and collected by the police; the police log records them as being in the process of being taken back to the police station at 2.1pm. While they were being taken to the police station Mr Williams returned home and told the mother she was needed at the police station. Her friend Allyson Thomas took her there in her car. On her arrival – at about 2.30pm she thinks, perhaps a little earlier – she had to wait some time on her own. She then had a conversation with a police officer, who told her what the children had been saying. Only then was she able to see the children herself. Eventually they all returned home. A police log records at 4.59pm that they had left the police station “approx 1 hour ago” but the mother and Mr Williams think this is wrong and that they had in fact left somewhat earlier; the mother recalls her friend being anxious to get back in time to get her son to work by 4pm.

32. Having heard both of them giving evidence and being cross-examined, I accept this account as given by the mother and Mr Williams. They were, I think, being honest and doing their best to be accurate in what they said. Partly, this is a conclusion I arrive at having seen the way in which they gave their evidence. This was not some glib rehearsed account. The mother in particular was thoughtful, giving every appearance of trying to recall – to visualise – what had been happening that afternoon. Nor did she seek to put any kind of ‘spin’ on her account. If anything, quite the reverse. She did not seek to use the entry in the police log as showing that she had left the police station later than the time she recalled. And, significantly, she made no bones about the fact that as soon as she was reunited with the children in the police station she made it clear to them that they were not going back to Spain, nor about the fact that she repeated this to all the children at or soon after 4pm once she and the two older children had returned from the police station.

33. It is clear, both from her own account and from the police logs, that the mother told the police that she had to get the children to Cardiff by 4pm, and that she explained why. The police logs show that she was told it was a matter for her, and not the police. The mother’s account is that, whilst she was at the police station talking to the officer before being reunited with the children, he gave her an account of what they had told him and expressed his own opinion as being that Jessica was a danger to herself and others on the plane.

34. Apart from the police logs I have no account from the police of events at the police station. None of the officers gave evidence.

            Mr Hames submits that in these circumstances there is a clear answer to the critical question, Was it within her power to comply with the order, could she do it, was she able to do it? She could not. Through no fault of her own, and having made every effort to arrange a timely departure that would get them all to Cardiff by 4pm, the mother’s plans were frustrated: two of the children ran away, and whenever precisely it was that she left the police station it was on any footing well after 3pm, and probably nearer to 3.30pm – too late to get to Cardiff in time. As a fallback position, Mr Hames points out that it is for the Solicitor General to prove the case, and, moreover, to the criminal standard of proof. He submits that I simply cannot be sure that it was within the mother’s power to comply.

             

36. Ms Cumberland points to the mother’s frank admission of what she said to the children, to the fact that the mother, on her own account, made no effort to get the two younger children to Cardiff, and to the fact that, again on the mother’s own account, by shortly after 4pm she had embarked on a course of conduct that, far from trying to make alternative arrangements with the father, led to them all going on the run.

37. I can see the force of what Ms Cumberland says, and cannot help thinking that the mother has, quite fortuitously, been able to take advantage of two things that are unlikely to re-occur: one the serendipitous happenstance that the children ran away; the other that nothing which happened after 4pm is capable of being a contempt of court. So I have to come back to the critical question: Was it within the mother’s power to get the children back home from the police station in time for them all to leave for Cardiff no later than 2.56pm? Ms Cumberland says that it was: no-one had been arrested, everyone was free to leave the police station whenever they wished, and in any event there was nothing going on in the police station that would have prevented the two younger children being taken to Cardiff.

38. At the end of the day I am concerned with what is essentially a question of fact arising in most unusual circumstances. I have to put myself in the mother’s shoes as she is in the police station during the half hour or so between her arriving there at about 2.30pm and the time – 2.56pm – by which she has to leave for Cardiff. Two of her children have run away and been taken by the police to the police station. She has to wait, before receiving worrying information from the officer and only then being able to see her children. However the lawyer might subsequently analyse what had happened, the reality is that the mother was, metaphorically if not literally, in the hands of the police and having to work to their timetable. It is far from clear on all the evidence that the mother had been reunited with the children by 2.56pm – perhaps, but then perhaps not – and on that fact alone, in my judgment, the Solicitor General fails to prove his case.

 

Standing back from the detail, it is for the Solicitor General to prove that, as events worked themselves out on the afternoon of 12 October 2012, it was within the mother’s power to leave Llanelli by 2.56pm so that she could get the children to Cardiff Railway Station by 4pm. In my judgment he has failed to do so. The application must accordingly be dismissed

[Postscript – this is yet another one of those cases where a hugely important point was being litigated and the party did not obtain public funding. The mother was represented by pro bono counsel, who probably kept her out of prison, and hence at least some of her children still with her. The President spoke out afterwards about how unacceptable it is that such important issues are litigated relying on good will of lawyers acting for free.  http://www.lawgazette.co.uk/news/family-judge-criticises-reliance-free-representation  ]

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Capacity and Vasectomy

Posted on August 19, 2013 by suesspiciousminds

The decision in Re DE  2013 , and issues arising from this

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/de-judgment-16082013.pdf

 

I will start by saying that this is obviously a controversial judgment, dealing with the State intervening in the private life of an individual, and the Court authorising the sterilisation of a man who did not have capacity to agree to such an operation.

 

I actually think that the judgment was very fair and well-balanced and carefully looked at the need to respect DE’s rights and interests, and did not smack of the patrician attitude or eugenic approach that one might think going by some of the media reporting. I only have one real critique of it, but it is an important one.  There are some really good articles analysing this decision, in both a critical and supportive tone, and it is a thought-provoking issue.

 

This was a Court of Protection decision, dealing with the application by the NHS for the following three declarations

 

a) DE does not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to this procedure;

b) That it is lawful and in DE’s best interests that he should undergo a vasectomy;

c) It is lawful for the NHS Trust to take any steps which are medically advised by the treating clinicians at the trust responsible for DE’s care to undertake this procedure which may include the use of a general anaesthetic and all such steps as may be necessary to arrange and undertake the procedure including general anaesthesia.

 

 

 

 

The Court went on to note what made the declarations sought newsworthy (and indeed the case made national news)

 

            If the declarations sought are made it will, the court is told by the Official Solicitor, be the first time that a court in this jurisdiction has made orders permitting the sterilisation for non therapeutic reasons of a male unable to consent to such a procedure.

 

 

 

There was quite a well-balanced piece on this in the Guardian, for example

 

http://www.theguardian.com/law/2013/aug/16/court-sterilisation-man-learning-difficulties

 

It is important to note at an early stage, that if DE had capacity to make decisions for himself (and the Mental Capacity Act 2005 has as a starting point that people DO have such capacity unless demonstrated otherwise) then the Court have no real role in matters save for determining whether he does or does not have capacity. 

 

People get to make decisions for themselves, unless the Court declare that they don’t have capacity to make that decision; and in broad terms the capacity means that with help and guidance the person can understand the competing factors involved, can weigh up those factors, and can communicate their decision.  (It is REALLY important to understand that a person with capacity can still make what appear to be really stupid or bad decisions; capacity isn’t about people making logical decisions but that they understand  (a) that there are factors to take into account and what those factors are (b) that they should weigh up those factors and are capable of doing so and (c) can communicate their decision afterwards. The law doesn’t, or shouldn’t, interfere with people making foolish decisions, only with people who don’t have capacity to make a decision)

 

If he has capacity, the operation will only take place if both he and the doctors agree to it.  It irked me considerably how many of the reports of the case by the media made reference to DE “agreeing to the vasectomy” – if he had capacity to agree to it, the decision wouldn’t have been made by a Court, what he had were wishes and feelings about it which fell short of capacity to make the decision. Those are important to take into account in the stage AFTER capacity, which is “what is in this person’s best interests to do next?”

 

 

The history is fairly simple.

 

2. DE suffers from a learning disability. He lives with his parents FG and JK. With the dedication of his parents and the support of his local disability services, DE has prospered and achieved far beyond what may have been expected given his level of disability. Prior to 2009, not only had he achieved a modest measure of autonomy in his day to day life, but he had a long standing and loving relationship with a woman, PQ, who is also learning disabled.

3. In 2009 PQ became pregnant and subsequently had a child XY. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. DE was clear that he did not want any more children. His relationship nearly broke under the strain but remarkably it has weathered the storm

4. There is no question of DE having the capacity to make decisions as to use of contraception. FG and JK formed the view that the best way, in his interests, to achieve DE’s wish not to have any more children and to restore as much independence as possible to him was by his having a vasectomy.

 

 

Unfortunately for me, I think the key issue is actually the matter dismissed in a single sentence at para 4 (my underlining)

 

I think there were 3 separate issues on which one needs to know if DE had capacity

 

(a)  Can he consent to sex  (if not, contraception not all that important, because the State can’t condone him engaging in sexual intercourse)

 

(b)  Does he have capacity to make decisions about contraception? (if he can, vasectomy only an issue if he DECIDES that he wants to go the vasectomy route)

 

(c)  Does he have capacity to consent to a vasectomy operation?

 

 

A capacity report undertaken in November 2012 concluded that DE did not have capacity to consent to sexual intercourse. That obviously posed significant problems for his relationship with PQ, and what obligations were on the other members of the family to prevent a sexual relationship taking place.

 

(There are some really big issues here about a case where two people with capacity issues love each other and wish to express those feelings physically, although they do not reach the level of understanding the law deems as being able to consent to sexual intercourse. Probably neither has the mens rea needed to commit the offence, but their carers could find themselves in legal difficulty for not having prevented such an offence occurring. Whilst it is VITAL that the law protects people who lack capacity to understand the nature of sex from being exploited by those who do, it seems to interfere profoundly with the private life of two such people in a relationship together. This is a really really tough issue, and I have no idea how one would legislate about it, but I suspect we are not that far off a Court hearing dealing with this specific issue)

 

 

 

The Court made an interim declaration following that report that DE did not have capacity to consent to sexual intercourse and the relevant Local Authority had to convene a safeguarding meeting and come up with a plan to protect DE from unlawful sexual activity.

 

At a hearing on 15 November 2012 in the light of Dr Milnes’ report the court made by consent an interim declaration that DE did not have the capacity to consent to sexual relations. The Local Authority, quite properly and appropriately, thereafter held a Safeguarding Adults’ Conference on 30 November 2012. A Protection Plan was put in place meaning that DE and PQ were not to be left alone without supervision. Inevitably this had a significant impact on all DE’s activities, for example transport home being provided instead of DE getting the bus to avoid chance meetings with PQ. MB summarised the impact on DE as having experienced the loss of:

a) Engaging without supervision/staff support, with the local community

b) Walking through town from one venue to another with a friend

c) Going to shops, making purchases, interacting with traders and passers by

d) Using the local gym and facilities on the same terms as any other participant

and that is before one factors in the loss to DE of any form of privacy or time on his own with his long term girlfriend.

At about this time PQ ended the relationship with DE to his considerable distress. At the time it was not clear why PQ had decided to do this but, in due course, it was realised that she had wrongly believed that these proceedings in some way related to XY and she thought that if she stayed with DE she might lose her baby. In addition to this fear it had had to be explained to PQ that if she and DE had sexual intercourse she would be committing a criminal offence. It is hardly surprising that, frightened and with a limited ability wholly to understand what was happening, PQ completely withdrew from DE. DE therefore suffered a further loss, namely the loss of PQ between about November and June of 2013.

MB initially felt that DE coped well with the increased supervision and filed a statement to that effect but, as time went on it became clear to her that there was in fact a marked adverse impact upon DE. Gradually his ability to go out and to do things on his own was being lost and by April 2013 there were considerable concerns about DE’s reduced level of independence. It has to be remembered that each achievement on DE’s part takes months if not years to be gained and if not used and reinforced is quickly lost. FG told me that as winter approached last year DE stopped going to the day centre on the bus on his own, she said DE said that it was because it was cold, but Dr Milne felt it may well have been a loss of confidence and fear of doing wrong

 

 

And so one can see that the legitimate desire to protect DE from unlawful sexual intercourse ended up having all sorts of detrimental impacts on his quality of life and independence.

 

Work was undertaken to try to raise DE’s awareness of sexual matters, to lift his understanding to a point where he COULD be judged to have capacity to consent to it, it being plain that DE and PQ wished to be in a relationship and wished physical intimacy to be a part of that.

 

34. The Official Solicitor has felt it necessary, notwithstanding the universal views now expressed by the witnesses, to explore the issue as to DE’s capacity to enter into sexual relations. At the conclusion or the oral evidence in relation to this aspect of the case, the Official Solicitor now accepts that the court should proceed on the basis that DE has capacity to enter into sexual relations. Having read all the reports and heard the evidence I am satisfied that DE has capacity to enter into sexual relationships, although it will be necessary for him to have so called ‘top-up’ sessions to ensure that he remembers how to keep himself safe from sexually transmitted infections and diseases.

            Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained.

 

 

 

And then, on ability to consent to the surgical procedure of a vasectomy

 

52    t is agreed that DE lacks the capacity to weigh up the competing arguments for and against having a vasectomy. That is not going to change no matter how dedicated and skilful the work carried out with DE may be. His wishes and feelings in relation to having a vasectomy have rightly been explored. He has been broadly been in favour of the idea although in his most recent session with CH and ZZ on 23 July 2013 and with Dr Milnes, he expressed a view that he would prefer to use condoms. Neither CH nor Dr Milnes think these recent meetings are wholly to be relied upon. On 23 July, DE had just learnt that a very close friend had died and was deeply distressed, in addition, he had just had a session in which the issue of pain immediately following a vasectomy was discussed with DE. CH thought that this may have been the influencing factor. Dr Milnes’ final view is that if it is explained to DE that a vasectomy is foolproof in relation to “no more babies”, but that he might conceive with a condom he would go for the vasectomy.

53    I approach DE’s wishes and feelings in relation to a vasectomy with the utmost caution. DE does not have the capacity to consent to a vasectomy and that must inevitably colour the court’s approach.

 

Going back to my list then, DE had been determined to have capacity to have sexual intercourse, to lack capacity to make a decision about surgery and vasectomy.

 

That left issue number 2 – did he have the capacity to make his own decisions about contraception? If he did, the issue of surgery did not arise (other than that if he ASKED for a vasectomy, the medical professionals knew that he did not have capacity to consent to the operation)

 

What the heck is the test for a person’s capacity in making decisions about contraception? How did the Court establish whether or not DE had it?

 

            35.Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained

 

And here

 

            54. In relation to the reported cases on consent to contraception there remains uncertainty as to whether a man needs to understand female contraception as well as male contraception before he is deemed to have capacity. In my judgment DE does not have the capacity to consent to contraception on any level. I therefore do not need to consider the issue and do not propose to comment on how a court, having heard full argument in a case where the issue is relevant, might decide.

 

I’m ever so slightly infuriated by this, if it is possible for such a state to exist.

 

It seems to me that before the Court embark on the best interests decision (which I consider was all done perfectly properly and I can quite see why the decision to declare that the NHS could perform the vasectomy was made) it was VITAL to decide what it was that DE did not have capacity to decide, and what the test for that capacity was.

 

Particularly given that he now had capacity to consent to intercourse, and that his capacity had been raised by intervention to reach that point. The capacity to consent to intercourse involves of course not just an understanding of the mechanics and the physical act, but the consequences of it (including pregnancy and the possibility of STDs)

 

I am struggling quite a bit to see how a person such as DE can be capable of understanding the consequences of sexual intercourse, but not making decisions about what contraceptive action to undertake. And of course, it takes two to tango, as the saying goes, so PQ’s ability to make decisions about contraception would factor into this.

 

[The Court said no in relation to the latter point, for these reasons. 

 

In my judgment the court should not factor into account any contraceptive measure PQ may be taking for two reasons:

i) The evidence is that PQ is unreliable in taking the contraceptive pill and has a phobia of needles so a Depo injection has been discounted.

ii) In the event that the relationship breaks down, it is likely that he will form another relationship. In the group of learning disabled people who form DE’s social circle, it is the norm for there to be relationships within the group; DE is popular and friendly and after 11 years with PQ accustomed to having a girlfriend. Even if PQ was wholly reliable in relation to her own contraceptive care, a future girlfriend may not be so assiduous.

 

I agree on point (i), am not so sure about point (ii)  – it seems to me that this would be a relevant factor in deciding when it arises, and not to fortune tell]

 

It was universally accepted that the decisions about how DE could have sex without producing offspring was something that he could not decide; but in nothing like the detail of the other two capacity decisions.

 

Once the Court accepted that DE did not have the capacity to make decisions about how to manage sex without producing offspring (and all parties accepted that he didn’t), the best interests decision was the next step, and in relation to this, I think the Court’s analysis is faultless from there on out.

 

The Court went on to balance the use of other contraceptives against a vasectomy, and used the reliability of those measures as a key factor; particularly taking into account the abilities and limitations of DE and PQ in reliably and properly undertaking those measures. The Court also went on to consider everything that DE and PQ had expressed about their wish for physical intimacy but not to have another child.

 

It is a very careful balance about what is best for DE, taking into account all of his circumstances and his wishes and feelings, and not putting too much emphasis on any one issue. I think it is a damn good judgment and decision.

 

I am just left a bit unsettled about the key issue – the decision under question was not “should DE have a vasectomy” but “should the State take over DE’s decision-making in relation to contraception”  (and thereafter, what’s better for DE – vasectomy or alternative contraception) and I remain very vague about what the test for capacity in relation to that question was, and why DE was considered not to satisfy it.

 

 

I can’t really blame the Court for not dealing with the issue of capacity to contraception in a more in-depth way, given that all parties accepted DE did not have it and the Judge concluding that she was completely satisfied that DE did not have it.

 

But I am left with a rather nagging feeling that it is hard to imagine that DE had capacity to consent to sex if he lacked capacity to make decisions about contraception  (understanding the potential negative consequences of sexual intercourse surely has to incorporate the persons ability to militiate against such consequences); and that perhaps a DE-focussed decision was made that declaring that he did not have capacity to consent to sex was going to have a massively detrimental impact on his life.

 

Although a declaration that a person can’t consent to an operation doesn’t mean that one progresses inexorably towards the operation being directed – a best interests decision needs to be taken, the same is not true of a consent to sexual intercourse.  Almost any capacity decision is followed by a best interests decision of what is best for the person. Almost any.

 

Save this one. The Court of Protection cannot declare that a person lacks capacity to consent to sexual intercourse, but that nonetheless a sexual relationship continuing or recommencing is in his best interests. Once that declaration is made, sex is off the agenda. And that clearly wasn’t in his best interests.

 

So I have a slight suspicion that there was an element of Judge Fudge on the contraception point, in order that DE and PQ could enjoy their relationship without producing further children (it being clear that neither of them wished to do so, but didn’t have the wherewithal to make sure that didn’t happen).  I am not critical in the slightest if that did happen, I think it was the right call for DE.

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What the Court want from experts, and other adventures in judicial ass-whupping

Posted on August 19, 2013 by suesspiciousminds

The guidance given by the High Court in Re  IA (A Child: Fact Finding: Welfare: Single Hearing : Experts Reports) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html

This case covers a LOT of interesting stuff, so although the guidance on expert reports is the highlight, there’s other valuable information within it; including a kicking for the Local Authority (the Judge agreeing that a suggestion that the social worker had been ‘sticking the boot in’ was apt and justified), the fact that the High Court don’t like mother’s being referred to as “mom”  (hello everyone in the West Midlands!)  a finding of fact exercise being completed years after the event, some very important judicial comments about what could be reasonably expected of the mother, a reverse-ferret from the professionals and an unexpected outcome.

There are many sections of the judgment where the Judge could easily have prefaced with a  “Now I’m gonna open up a can of whup-ass”

Let’s start with the expert report.

  1. Dr Rylance’s report
  1. The very last matter for comment arises from Dr Rylance’s report. When I sanctioned his instruction in February, it was on the basis that he should “provide a short report on KA’s clinical presentation following the injuries sustained and …interpret blood test results.” Ms Jacobs letter of instruction explicitly referred to the President’s very recent Practice Direction in relation to Experts. She attached a copy to her letter. Although there is no mention of it with the correspondence, Ms Jacobs informs me that Dr Rylance was requested to confine his report within 10 to 12 pages. He apparently said he was content to do so.
  1. When he gave evidence, Dr Rylance confirmed he was aware of the reforms to the way in which experts are now required to report, that they should be succinct, focused and analytical and should avoid recitals of too much history and factual narrative.
  1. Dr Rylance’s report was 35 pages long. There was a reasonably lengthy section comprising the relevant background information (5 pages) extrapolating material from reports of other doctors and the medical records. Dr Rylance then dealt with the following issues – Timeframe for fractures; Possible / likely mechanism/ causation of rib fractures; Possible / likely mechanism / causation of right tibia metaphyseal fractures; Force to cause the fractures of the 4th and 5th ribs laterally; Force to cause metaphyseal fractures. He devoted about 5 pages to the issues of likely reaction at the time of and in the aftermath of injury and to whether or not a non perpetrator would have had awareness. Over the course of 5 pages, he provided advice upon the potential for there to have been a medical explanation for the rib fractures. Dr Rylance then tackled the explanations given by the parents and gave an opinion on plausibility before turning to consider (on page 25) the post mortem blood test results and their significance. He also provided an opinion as to the likely cause of the rib fractures.
  1. None of the foregoing was requested. Those matters did not form any part of his instruction and for the obvious reason that Professor Malcolm had already reported in relation to them.
  1. On page 27 of his report, Dr Rylance turned to consider and answer the specific questions asked of him, referring as he did so to many of his earlier paragraphs, as relevant, and repeating their content.
  1. In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half. Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.
  1. Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.
  1. Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance’s over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a ‘paediatric overview.’ I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind.

In short – keep it short and focussed. And if the Court ask that the expert report is no longer than 10-15 pages, it had better not come in longer than that.

Anyway, the case itself. The mother and father had previously had another child, KA, who died when four months old, and who had had injuries discovered post-mortem. This had happened in 2011, and two years later, no charges had been brought.  As there was no other child at that time, there had been no care proceedings brought.  Thus, when the parents had their second child, IA, there had been no resolution, criminal or civil, as to how KA had died and whether there was any culpability on behalf of the parents.

The father had also had a child EA, and he had received a conviction for fracturing EA’s arm, although he denied that he had done this, he was rather undone by his pre-sentence report where he expressed remorse and contrition for what he had done. He had of course, told his family and the mother, the time-honoured explanation that he hadn’t done it but that his lawyer had told him to plead guilty to get a lighter sentence.  (Naughty criminal lawyers, who always tell people to plead guilty when they are asserting their innocence. Naughty!  /end sarcasm)

The Judge conducted a finding of fact hearing and concluded that the father had caused the injuries to KA and EA.  The Judge also concluded that the injuries to KA had happened at a time when mother was out of the home and father was the sole carer, and that thus mother had had no idea of what had happened and had not failed to protect.

The Local Authority had asserted that mother ought to have separated from the father following KA’s death, and not gone on to have another child with him. The LA had been seeking a plan of adoption, and put their position as baldly as this:-

When the case was opened on Tuesday of last week, the London Borough of Croydon was inviting me to make a care order predicated on a care plan of adoption. It was said that even if the mother was not involved in causing the older child’s injuries and did not know that he had suffered fractures it would nevertheless still not be safe to return the baby to her care. It did not bode well for the mother’s ability to prioritise the child’s needs over her own in the years to come, said Mr Date on behalf of the local authority, that it had taken her two years to come to a position of being able to make concessions in relation to failure to protect.

She separated from the father shortly after the proceedings relating to IA had commenced (this being of course, before any findings were made about the injuries)

This is what the Judge decided about whether mother was culpable in any way in not separating from the father sooner.  (Hint, the Judge doesn’t end up agreeing with the LA)

  1. The circumstances prevailing at the time of and leading up to the period when injury is inflicted are all important. It would be manifestly unjust and inappropriate to look back, with the benefit of hindsight, so as to conclude that a parent had failed to protect because of information which became available him / her after key events occurred.
  1. Thus, in the current context, it becomes crucial to consider what this mother knew or ought to have known by the time that KA came to be injured. There is, in fact, no dispute. She knew only what the father and his loyal family had told her about events involving EA. The mother was led to believe that the father was essentially innocent of wrongdoing, that the broken arm had been caused by EA’s mother and that the father had only pleaded guilty so as to avoid being sent to prison – he’d received advice that imprisonment was altogether more likely if he was convicted after a trial.
  1. The mother described within her written evidence how her relationship with the father began, developed and became secure. He came across as extremely genuine; he respected and treated her well. She relates that in the months leading up to KA’s death, they had laughed a lot; she felt they had a great relationship and thought she had found her ‘soul mate’. She was never shown any violence or aggression. Even when they argued, he did not frighten or worry her. Nor did he ever ‘raise a hand’ to her. The only occasion upon which the mother witnessed the father as aggressive was when, after KA’s death, the father punched her former step father. At that time, as she said, “everything felt very raw.”
  1. Those who knew the father best, namely his family, maintained his version of history. The paternal grandmother struck the mother as someone who would not stand by if she “felt something was not right and would speak her mind.” And yet, when the mother asked her and the father’s sister about his previous relationship with EA’s mother, they supported him, saying it had been turbulent. The mother believed neither the grandmother nor the father’s sister would have been supportive of him if they believed he had done anything wrong.
  1. I do not believe she could be criticised for that which seems to me to be an altogether reasonable assumption, particularly given that the father’s sister has children of her own.
  1. No one opened the mother’s eyes to the realities in relation to EA. She had no access to any of the court papers from the 2007 care proceedings. Nor, indeed, did she know of their existence; and that continued to be the position until the interval between her first and second police interviews in 2011 when there was a conversation with the father in which he had told her about EA’s family proceedings. She had no contact with the probation service because the father’s deliberate ploy was to keep her away from his probation officer. There was no ongoing local authority involvement with the father after the conclusion of the care proceedings in early 2008; and thus no opportunity for the mother to discover the actuality.
  1. It is also relevant that the mother was 21 years old when she met the father and only 22 when KA was born. Should she have asked more questions? I don’t believe it is fair or reasonable to conclude she should. On behalf of the local authority, Mr Date suggests that at the time of KA’s death, the mother’s failure was that she did not recognise the warning signals and too readily accepted the father’s version of past events. I cannot agree, on a dispassionate analysis of the evidence, that those suggestions are apt. There were no warning signals. She was young and very much in love, entitled to trust what she was told by her partner particularly when his behaviour mirrored the notion that he was anything other than a danger to children.
  1. It should be said that the mother, both in her written and oral evidence, has been all too ready to acknowledge that she failed to protect KA. She said that by choosing to get into a relationship with the father, trusting and having a child with him, her son has come to harm. If she had not got into that relationship KA would not have been harmed; and therefore, she said, she has failed her child. As a mother she wanted to do everything she could to protect him so she feels she let her first son down.
  1. I have no doubt as to the mother’s sincerity. She was an extraordinarily impressive, transparently honest witness, revealing the depth of her sorrow time and time again throughout her evidence.
  1. That said, I do not believe she should be as hard on herself as she has been. Standing back as I do, weighing information from all sides, there is in truth nothing to substantiate the claims that the mother should have acted differently, has failed to respond to a developing situation in which the child was placed at risk or otherwise should be seen as blameworthy for what happened to KA. Put shortly and more simply, the mother did nothing wrong. She is not to be viewed as a parent who has failed to protect her son. She is blameless in relation to him.

That is a pretty full exoneration.

The Judge then gives some useful comments about the process by which a parent arrives at a decision to separate from a partner who would be viewed as being dangerous, and applies that process to the facts of the mother’s case. (I have underlined a passage which I think those representing parents may find particularly useful, and which given that we still don’t know how fact-finding cases are going to fit into the PLO seems to me very important. I expect to see it cropping up in position statements quite often)

  1. It is often and wisely said that the enlightenment process for the non abusing parent, particularly those who are not found responsible in any way for what occurred, should properly be seen as ‘a journey.’ It is expecting far too much, indeed it borders on the surreal, to suggest that more or less immediately in the aftermath of whatever defining incident, the innocent and truly ignorant parent should shun the other, depart the relationship and make definitive judgments for herself as to what has occurred.
  1. Here, as the mother movingly relates, it is very difficult to describe what it is like to lose a child. It was for her an “extremely lonely and alienating experience.” “Everyone around her had known her child had died but no one knew what to say.” She had “felt angry and upset that (her own) and KA’s privacy had been invaded when everyone came to watch the air ambulance landing in the local school so that he could be taken to hospital.” People, said the mother, “had not felt able to ask her how she was or how she was feeling.” She became aware she “was making people feel awkward just by being there and being sad.” She had stopped wanting to go out, wore sunglasses if she did to avoid eye contact and “pretended she was invisible.”
  1. The mother explained that she felt the father was really the only one who understood how she was feeling as he was going through the same thing. It had made her unite with him more and she was in no emotional state to start contemplating that he could have been the one who hurt KA.
  1. She goes on to describe how, after KA’s funeral in September 2011, the intensity of the police investigation died down as did her conversations with the father about what had happened to their son. She knew there “remained a huge question mark which (she) would have to confront. However the weeks and months drifted on and (they) continued in a state of limbo.” No one had been asking her to think about what had happened to KA and she “supposed it was easier for (her) to cope with trying to grieve if she did not ask those questions” herself. For about a year the mother, was taking anti depressants and “just about coping.”
  1. When soon after July 2012, she discovered she was pregnant, the mother had mixed feelings, knowing there was every likelihood she would not be given the chance to care for another baby whilst KA’s death was being investigated. She said in evidence she had contemplated an abortion. She had not wanted to bring a child into the world in such unsettled circumstances but she “could not do it – lose one child and then get rid of another.” But she had been “very, very scared.” She added she had “brought her second son into the world, he had been separated from her which was not the normal way.” She feels guilty about letting her first son down and that “will never go away.”
  1. I cannot find the mother culpable or deficient in relation to what she has done or omitted to do since KA died. Reading her statements, listening to her evidence, I was profoundly impressed by her ability to describe her feelings. Nothing she described seemed to me to be anything other than the entirely understandable reactions of a bereaved and grieving mother. Her reactions to a rapidly developing situation after proceedings were begun in February this year, to my mind, were entirely reasonable. I find it impossible to be critical of her responses and choices living through events, as they have unfolded, since KA’s death.
  1. It is noteworthy that, hitherto, most parents in this mother’s situation, have had the opportunity to participate at a two-stage care process – fact-finding followed some weeks, even months, later by welfare determination. Because from the child’s perspective it was vital so to do, those who were found to have failed to protect have been afforded the opportunity for reflection upon the judgment. There was then the potential for establishing whether there were signs of acknowledgment, sufficient to embark upon a process of rehabilitation. In this instance, there has been no such relaxed opportunity – responses were required in advance of fact finding in order to prepare welfare plans.
  1. The impact of the consolidated hearing is that this mother, according to the way in which the local authority puts its case, has been expected to work out causation for herself in advance of the evidence being given, respond accordingly and defend her conduct as far back as August 2011. She is castigated for failing to separate from the father immediately after IA’s birth. Those expectations, to my mind, are profoundly unjust. They elevate what might be expected of a parent into the realms of professional reaction; a professional moreover seized of all relevant information.
  1. All the signs are that the mother is not only capable of protecting IA, she is alert to the reality which is that she finds herself now in more or less the same situation as a first time mother. She described how KA’s death had left her anxious as does the fact that hitherto she has not been IA’s main carer. So she is worried about him settling and grateful to know that the support of her own mother will be right there.

The LA at the start of the case had been seeking the findings, and a plan of adoption. The Guardian had been asking for an assessment of the maternal grandmother, who was putting herself forward as either an alternative carer or as someone who could live with the mother.

After the grandmother gave evidence, the Local Authority had a change of heart

  1. At the conclusion of the grandmother’s evidence, Mr Date announced that the local authority had been “hugely impressed” by her; and that he would no longer be asking me to endorse a care plan for adoption. There was agreement from the local authority that the child should be placed together with his mother in the grandmother’s home. Over the weekend, that plan has crystallised to this – that a residence order should be made either to the maternal grandmother alone or jointly with the mother; and there should be a supervision order for 12 months in favour of a specified local authority in the West Midlands.
  1. In similar vein, when Ms Dinnall (the Guardian) went into the witness box on Friday, she relinquished her recommendation for further assessment, lending support to the suggestion that the child should be looked after by his grandmother and mother together under the auspices of a supervision order.
  1. I have struggled to recall an instance where there have been quite such dramatic changes of position amongst the professionals; and whilst from the family’s perspective (particularly the mother’s and grandmother’s) those shifts were so very welcome, it must also be said that in the weeks leading up to this hearing there have been serious errors of judgment in the care planning exercise.

It is no great surprise that the Court endorsed the plan that mother and grandmother should care for IA jointly.

The next passages deal with the judicial criticism of the LA’s conduct of the case.  The social worker is named in these passages – I don’t know the social worker in question and can’t comment as to whether these criticisms apply across the board or just to this case, but she certainly takes a hell of a kicking.

I report these not just for schadenfreude, but because it touches on issues of expertise and the intention in the PLO of social workers being treated as experts. In order for that to work, the quality of work has to be substantially better than this.  Underlining again mine for emphasis.

  1. 94.   Case handling by the local authority
  1. Turning from the issues for decision to other matters, I cannot leave this case without commenting upon the way in which it has been handled by the local authority.
  1. I take account, of course, of the considerable difficulties drawn to my attention by Mr Date in his final submissions – that the social services department is “an unhappy place;” that Ms Kanii, who had no handover from the previous worker has only been in post for six weeks; that there has been a change of team manager during that time and changes of personnel as well within the legal department. Mr Date accepts that the work of assessment undertaken by Ms Kanii was not as thorough as it should have been and the conclusions reached were incorrect.
  1. All of that said, I should have been in the position of being able to place reliance upon the social work assessment so as to reach proper welfare determinations for IA. I should have had fair, balanced and proportionate advice resulting from a thorough inquiry undertaken over the five months or so since the proceedings were begun in February. I should have been able to view the social workers as experts in relation to the child’s welfare and to repose trust in their decision making.
  1. As it is, I am bound to say that Ms Kanii’s work was of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system. I mention just three – first that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625); second, that the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision (Re C and B (Care Order; Future Harm) [2001] 1FLR 611); and third that orders ratifying a care plan for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).
  1. The mother’s second statement refers to the difficulty she encountered in speaking with Ms Kanii. She said she found her “quite intimidating” and she gained the “impression she had formed her opinions before really speaking with (her)”.
  1. I found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.
  1. In relation to the mother, Ms Kanii said it is “her view that she cannot care for IA. She lacks insight into significant harm. She would fail to protect the baby. She would not be able to prioritise his needs over her own.” Ms Kanii went on to say that the mother would “struggle to prioritise the child’s needs because fundamentally she does not grasp the significance of harm and how that would impact a child.”
  1. As for the maternal grandmother, Ms Kanii’s overall position was that although the grandmother “came across as quite willing, she was not able to prioritise the needs of the child over those of her daughter.”
  1. Challenged in cross examination by Miss Rayson and Miss King, and very properly so, Ms Kanii was essentially unmoved. Her only concession was that in the event the father was found to be the perpetrator then she favoured some further assessment of the maternal family. Although Ms Kanii denied she had “put the boot in” whenever the opportunity to do so had arisen, I’m impelled to say that Miss Rayson’s suggestion was both apt and justified.
  1. Ms Kanii’s written statement and addendum viability assessments, it has to be said, were perfunctory, lacking in balance and indefensibly critical of the mother and grandmother. I was left bemused that such adverse judgments had been made of the mother in particular when the content of her written statements had given me such cause for optimism. My sense was that Ms Kanii could not have read and assimilated the mother’s statements and yet she said she had. More bewildering still was the thought that the mother must have presented very similarly in discussion with Ms Kanii to the way in which she reacted in the witness box. And yet, such harsh judgments were made. It seems to me that Ms Kanii was operating in a parallel universe, intent on securing a placement order whatever the strengths within the natural family.
  1. Finally, in relation to this, two things should be said. First, I strongly believe – though cannot know – that Mr Date as the head of the local authority’s team intervened during the course of last week so as to retrieve an increasingly hopeless situation. If I am right about that, then I would wish to express my gratitude to him or to whichever individual it was who reconfigured the local authority’s position.

All in all, I think an important and illuminating case, and one which I expect to see cropping up from time to time. The importance of social workers evidence being balanced and not merely advocating for the desired course of action they recommend is vital, if care proceedings are to be fairly determined.

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“Hope your child enjoyed their stay, now if you could just settle your bill, please”

Posted on August 14, 2013 by suesspiciousminds

 

Or, on an Alan Partridge vibe “Cashback!”  (Have been hitting the Partridge in readiness for the film, apologies)

The legal implications of the mooted proposals from Worcestershire to charge parents for voluntary foster care.

 

Worcestershire are of course, only consulting on the scheme at the moment, and haven’t made any decisions; but the idea in a nutshell is that where a parent can’t look after a child and the child goes into voluntary foster care, the parent would be charged by Worcestershire to recover the costs of this (subject to the parents means)

 

http://www.communitycare.co.uk/articles/14/08/2013/119417/council-defends-controversial-plans-to-charge-parents-whose-children-go-into-care.htm

 

 

and here

 

http://www.theguardian.com/society/2013/aug/13/children-charged-social-care-worchestershire?INTCMP=SRCH

 

 

There are, as we know, two distinct categories of services that a Local Authority provides for children in need

 

  1. Section 17 services to meet their needs
  2. Section 20 accommodation of children who have to live away from their families for whatever reason.

 

Most lawyers are dimly aware that the Children Act has in it tucked away the POWER to make charges for section 20 placements, but the Act actually goes further than that.

 

Surprisingly, despite all the vitriol that Worcestershire’s mooted policy has caused them, they are actually just complying with the Children Act 1989

 

 

     Schedule 2 para   21. —(1) Where a local authority are looking after a child(other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute(“a contributor”)

See that word ‘shall’ there? That means it is a mandatory duty. The Local Authority are legally obliged to consider whether to recover financial contributions from a parent where the child is in voluntary foster care.  (para 21 (7) prohibits doing so where the child is in compulsory foster care i.e an interim care order, for obvious reasons). They HAVE to consider whether they should try to recover the costs from the parent.

 

What Worcestershire’s maligned policy goes on to say is that such charges wouldn’t be imposed on any parent in receipt of benefits  (which the Act already says in Schedule 2 para 21(4) ) and that they would only ever recover those financial contributions where it is reasonable to do so (which the Act already says in Schedule 2 para 21 (2))

 

So Worcestershire could simply have told everyone that their intention was to comply with their duties under the Children Act 1989.  Job done.

 

Of course, although those duties exist, they are one that most authorities overlook, just as (cough cough) many of the OTHER duties in Schedule 2 get overlooked from time to time.

 

This is really more of a corporate decision that where a parent is working and has financial means, that the Local Authority would genuinely look at the issue of charging them for accommodating their children  i.e they would ACTUALLY give it consideration under Schedule 2 para 21;  whereas most Local Authorities, if they have thought about para 21 at all, it is that they would not ever try to recover such contributions.

 

One can see why, as soon as one looks at para 22’s provisions as to how such charges would actually come about

 

 

      22. —(1) Contributions towards a child’s maintenance may only be recovered if the local authority have served a notice(“a contribution notice”) on the contributor specifying—

 (a)  the weekly sum which they consider that he should contribute; and

 (b)  arrangements for payment.

(2)  The contribution notice must be in writing and dated.

(3)  Arrangements for payment shall, in particular, include—

 (a)  the date on which liability to contribute begins(which must not be earlier than the date of the notice);

 (b)  the date on which liability under the notice will end(if the child has not before that date ceased to be looked after by the authority); and

 (c)  the date on which the first payment is to be made.

 

 

Para 22 also caps the contributions to be no more than the actual cost of foster care.  That of course, prevents the Local Authority blessed with affluent parents with stroppy teenagers from propping up their budgets by charging Mr and Mrs Moneybags £10,000 a week to look after young Tony Moneybags.

 

 

Okay, well having :-

 

(a)  Found a parent who has some means and isn’t on benefits, whose child is voluntarily accommodated

(b)  Decided whether it is reasonable to ask them for a contribution

(c)  Set that amount at what it is reasonable for them to pay – that being no more than the foster care allowance

(d)  Drawn up a Contribution Notice

 

 

What happens when the parent doesn’t pay the money?

 

Well, para 23 kicks in

 

23. —(1) Where a contributor has been served with a contribution notice and has—

 (a)  failed to reach any agreement with the local authority as mentioned in paragraph 22(7) within the period of one month beginning with the day on which the contribution notice was served; or

 (b)  served a notice under paragraph 22(8) withdrawing his agreement,

the authority may apply to the court for an order under this paragraph.

(2)  On such an application the court may make an order(“a contribution order”) requiring the contributor to contribute a weekly sum towards the child’s maintenance in accordance with arrangements for payment specified by the court.

(3)  A contribution order—

 (a)  shall not specify a weekly sum greater than that specified in the contribution notice; and

 (b)  shall be made with due regard to the contributor’s means.

(4)  A contribution order shall not—

 (a)  take effect before the date specified in the contribution notice; or

 (b)  have effect while the contributor is not liable to contribute(by virtue of paragraph 21); or

(c)     remain in force after the child has ceased to be looked after by the authority who obtained the order.

 

 

See that last little paragraph that I’ve underlined? That means that the order that the Court can make (but won’t) doesn’t have any effect once the child stops being looked after.

 

So what, you say?

 

Well, once you realise that the Local Authority HAVE to stop accommodating a child voluntarily once the parent objects (s20(7) , but that they HAVE to provide accommodation for any child who meets the criteria in s20(1), which includes “the person who has been caring for him being prevented (whether or not permanently or for whatever reason) from providing him with suitable accommodation”

 

(Lightbulb)

 

It is pretty clear that the wealthy parent, served with a contribution notice, who ignores it, and is then taken to court, can simply declare as soon as the Contribution Order is made that they object to the child being accommodated.

 

That ends the accommodation and the Contribution Order.  The parent can then notify the LA that the child needs to be voluntarily accommodated all over again.

 

And note that the Contribution Order doesn’t compel any payments HIGHER than the original weekly amount in the contribution notice, so it doesn’t provide for recovery of the previous weeks missed. (that’s the net effect of reg 23(3) (a) )

 

In those circumstances, the Contribution Order will net the Local Authority not one shiny penny, and will lose them all the legal fees and costs in the meantime. 

 

 

So, just running things through in my own mind :-

 

  • A policy of charging middle to high income parents for voluntarily accommodating children would be politically unpopular

 

  • It would garner very negative publicity (as we have seen, just saying that you are considering it makes things get ugly)

 

  • Probably only covers a small proportion of the children who are voluntarily looked after in any event 
  • Has the possibility of discouraging parents who are not coping temporarily and need a break from seeking that help

 

  • It almost certainly inhibits the working relationship between the Local Authority and the parent aimed at fixing the problems so that the child could go home.

 

  • It would be administratively expensive – someone has to do financial assessments (and how do you get a parent to tell you their income anyway? What’s in it for the wealthy parent to tell you?), someone has to draw up Contribution Notices, someone has to collect the money and keep track of it

 

  • Any attempt to enforce it would be incredibly vulnerable to a side-step using the interplay of s20(7) and para 24 (4) (c), as outlined above

 

  • It would be unlikely to actually recoup any income

 

 

 So, ending with Alan Partridge again, I’m not sure that this policy is “back of the net” material

 

Of course, all Worcestershire have done so far is remind themselves that they have a statutory duty to CONSIDER this and all that they have done is complied with their duties under the Children Act 1989.

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Guidance to Local Authorities where one parent murders the other

Posted on August 13, 2013 by suesspiciousminds

Thankfully such cases are relatively rare – not perhaps as rare as one would hope – a third of female homicide victims are killed by their current or former partner (the figures for male homicide victims are 6% – males can of course be the victims of abuse, not just the perpetrators).

Dreadfully, the Home Office crime statistics reflected in 2001 and 2005 that this represented two women per week.   (And even worse, if that is possible, the statistic that treating the physical injuries from domestic violence accounts for 3% of the annual NHS budget – Wellby 2004)

In such a case, what ought the Local Authority to do about it?

The High Court addressed the issue in Re N v B and Others 2013

http://www.familylawweek.co.uk/site.aspx?i=ed115442

The children’s father had killed the mother and was imprisoned as a result. The children went to stay with their maternal grandmother, who in due course applied for an adoption order in relation to them. There was considerable debate before the Court as to whether adoption or Special Guardianship was the right order to make – there being no dispute whatsoever that the placement with grandmother was the right one.

The Court analysed the issues to be taken into account when making such a decision very carefully

22. The paramount consideration of the court when considering this issue is the welfare of the child throughout his life, in accordance with section 1 Adoption and Children Act 2002 (‘ACA 2002’). The court must consider which order will better serve the welfare of the particular child (per Wall LJ Re S (Adoption Order or Special Guardianship) [2007] EWCA Civ 54 at para 47 (iii)). There is no presumption in favour of one order or the other, each case turns on its own facts. In accordance with ss 47 and 52 ACA 2002 in considering an adoption order the court needs to consider whether the welfare of the child requires the consent of the father to be dispensed with.

23. One of the relevant considerations in this case is whether an adoption order would skew the family relationships in the grandmother’s home. The grandmother’s brother is the father’s father; the children’s parents were first cousins. The children live with the grandmother and maternal aunts and uncles. They have contact with another maternal aunt who lives nearby with her husband and son, and their great maternal aunts who also live nearby. In the event of an adoption order their maternal grandmother would become their adoptive mother. Their aunts and uncles would become their legal half siblings. The paternal grandfather would become their paternal uncle and the father their first cousin. Following the death of the mother the grandmother has severed all contact with her brother and his family.

24. This shift in family relationships, in the event of an adoption order being made, was explained in some detail to the grandmother by a Senior Practitioner in the Local Authority Adoption Team, as described in the special guardianship report. She notes the grandmother had an understanding of the consequent shift in legal relationships throughout the family in the event of an adoption order being made.

25. InS v B and Newport City Council: Re K [2007] 1 FLR 1116 the impact of an adoption order in family placements was considered important by Mr Justice Hedley, when refusing to make an adoption order in favour of a special guardianship order. At paragraph 22, following a review of the underlying policy for adoption, he stated

‘One purpose of adoption is of course to give lifelong status to carers where otherwise it would not exist. In familial placement, that is not necessary because family status exists for life in any event. That is not to say that a familial placement may never be secured by adoption. One can imagine cases where the need for security against aggressive parents, including forensic aggression, may be overwhelming.’

26. The skewing of familial relationships is clearly an important factor to put in the balance.

27. Another important factor is the concern the grandmother has about the father seeking to exercise his parental responsibility.

The last point was a particularly significant one here, since under a Special Guardianship Order, the grandmother would have found herself in the position of having to regularly consult with the father (who was after all, the man who killed her daughter) about the children’s upbringing, whereas an adoption order would end his parental responsibility.  The counterpoint to that is that it alters legally the relationship between the children, such that their grandmother becomes in law, legally their mother, their aunt becomes their sister, any cousins would become their nieces and nephews (and oddly, that their birth mother, becomes legally their deceased sister)

The Court concluded that in the circumstances of this case, the advantages of adoption far outweighed those of Special Guardianship

31.  I have reached the clear conclusion, in the particular circumstances of this case the welfare of each of these children throughout their lives can only be met by an adoption order being made rather than a special guardianship order. I have reached that conclusion for the following reasons:

(1) What both children need now and for the rest of their minority and beyond is a secure home. That is what their grandmother can provide, supported by the maternal family who live there or nearby. They wish to remain in her care. As the Children’s Guardian submitted there is no birth parent that can care for them.

(2) Although it is right that an adoption order would skew family relationships I am confident that despite the shift in family relationships that would follow, the children will know the realities of the relationships within the family. That is clear from the grandmother’s recent statement and the observation in the special guardianship report that the grandmother and the family are ‘secure in their knowledge of the children’s identities and they know the children’s histories’.  This view is supported by the conclusions of the Children’s Guardian at paragraphs 24 – 26 of his report.

(3) In this particular case a powerful consideration is the need for the grandmother not to have to share parental responsibility with the father. Particularly in circumstances where I am satisfied, from what the father has said, that he is likely to try and exercise it, even with a restriction under s 91 (14) and other restrictions under s 8. As recently as December 2012 he was declaring that it was unfair for him not to have contact with the children; that he will keep trying and will not give up; he seeks to maintain parental responsibility and will be able to carry on seeking contact with the children. The spectre of such applications will undermine the security of the placement that is so essential to the children’s future stability.

(4) Bearing in mind the background to the criminal offences the maternal family fear manipulation by the father, directly or indirectly, so that he could control the children’s lives. In the circumstances of this case that fear is very real due to the background of the father’s behaviour, and is confirmed by the papers in the court bundle from the criminal proceedings. In particular the psychiatric report, the pre-sentence report and the sentencing remarks from the Crown Court. He was described in the pre sentence report as being extremely controlling and highly dangerous. From what I have read I wholly agree with that description. I am satisfied that a special guardianship order, even supported with orders made under s 8 and 91 (14) CA 1989 severely controlling the father’s ability to exercise his parental responsibility, will not, in the circumstances of this case, provide the lifelong security that these children need in being securely placed with their grandmother.

(5) The grandmother has carefully considered the consequences of adoption and the lifelong nature of adoption. They have been explained to her by the senior practitioner from the adoption team, as set out in detail in the special guardianship report. She understands the change to the children’s birth certificate would mean that the mother’s name and details would be removed. She does not plan to change the children’s names.

(6) In her most recent statement the grandmother deals with the religious objections raised by the father to an adoption order. She sets out very clearly how she sees the adoption of the children by her in the circumstances of this case (where she does not intend to change the names, and where any limited inheritance consequences can be covered by putting arrangements in place). She is satisfied, in the circumstances of this case, with the arrangements that would be put in place by her, that adoption is acceptable under Islamic law. I agree. This is endorsed by the Children’s Guardian, who says he is confident the family can manage this with sensitivity and support.

(7) I agree with the recommendation of the Children’s Guardian that permanence and long term safeguarding for the children can only be guaranteed through the making of an adoption order. For the reasons outlined above it is the order that best meets their long term welfare needs.
In those circumstances, I will dispense with the father’s consent as the welfare needs of each of the children, in my judgment, demand I do so.

The Court was very critical of the Local Authority, who had been directed to file a section 37 report and did so very very late  – 3 ½ months late (despite the circumstances of the case being one that an outsider might imagine that the LA would take seriously)

I imagine that this sentence may crop up in submissions in family law cases (in combination with the recent decision of Mr Justice Cobb that a Local Authority can be hit for costs when failing to undertake a proper s37 report)

I am quite satisfied the obligation is on the party seeking an extension of time to apply for one (in the absence of any other direction being given by the court). The court had made an order and the expectation is that it will be complied with.

(i.e, don’t just submit the report late, seek permission of the Court to do so in advance of the report being late. )

But then this bit is particularly important for Local Authorities

35.  I wholly endorse the guidance given by Mrs Justice Hogg in Re A and B [2010] EWHC 3824 (Fam) in particular paragraph 2 which provides

“The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings immediately, it should appoint a social worker specifically for the affected sibling group who should offer immediate practical help and keep the decision under constant review in conjunction with the local authority’s legal department.”

And this bit from the same case is important too

 In the majority of cases the surviving parent with parental responsibility will be in custody or otherwise unable to exercise parental responsibility. In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is critical therefore that the local authority is able to undertake that function.  Any dispute regarding the responsible designated authority should be resolved at an early stage and should not cause initial assessments to be delayed. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the relevant local authority

My initial thought was that it might not be utterly straightforward to establish that the threshold criteria was made out, and I had quite a long rambling discussion about that, which I can spare you all from.

The other reported case of Re A and B 2010  http://www.familylawweek.co.uk/site.aspx?i=ed82613  initially did not seem to help, as the threshold was dealt with by this single line

All parties agreed that the threshold criteria set out in Section 31 had been crossed in that the children had suffered significant harm by reason of their mother’s death at the hands of their father.

But the High Court later go on to say :-

Threshold
1. In all cases where one parent has been killed by the other the threshold criteria will be met.

And thus, no further enquiry into the nature of the harm is needed. One does not need to explore how that harm is said to have manifested or would need to be evidenced. I can’t actually think of any other situation where threshold is so black and white – there’s no mitigation, no case specific issues, threshold is simply met in those circumstances.

(That of course, inadvertently means that a parent who kills the other in self-defence, perhaps during a violent assault by the other, has crossed the threshold and has significantly harmed the child; but crossing the threshold does not of course mean that the children would be removed. What about where one parent is driving, perhaps drunk and the passenger is killed? The surviving parent might well be charged with Causing Death by Dangerous Driving – it seems that the threshold would be crossed there as well)

Whilst one immediately thinks that it is one of the gravest offences that a human can commit and thus of course threshold is met, we know from many authorities, most recently Re J that being responsible or jointly responsible for the death of a child does not mean that the threshold is met in relation to other children in the future.

Local Authorities would need to be alert to cases where a parent murders the other, to ensure that they seize themselves of the matter and provide services and support to help meet the children’s needs at this dreadful time.

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