Eating cabin-boys and instructing experts

Posted on June 14, 2013 by suesspiciousminds

What do eating cabin-boys and instructing experts have in common? Well, it seems that the law frowns on both, and queries whether either was necessary.

The Court of Appeal have given judgment in the much trumpeted issue of what the word ‘necessary’ means in the context of the new requirement in the Family Procedure Rules that before an expert can be instructed in a family case, the Court must determine that their instruction is necessary.

 Re H-L (A Child)  2013

 http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/h-l-judgment-13062013.pdf

In the current context and climate, the Court of Appeal were clearly keen to tackle this issue and give a steer on it as soon as possible. This is how the President opened

 

 

1. In this appeal we have to decide the point left open in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250.

2. In Re TG, in which judgment was handed down on 22 January 2013, I drew attention to the important change to rule 25.1 of the Family Procedure Rules 2010 due to be implemented with effect from 31 January 2013. Whereas previously the test for permitting expert evidence to be adduced was whether it was “reasonably required to resolve the proceedings”, the test now is whether it is “necessary to assist the court to resolve the proceedings.” I said (para [30]):

“It is a matter for another day to determine what exactly is meant in this context by the word ‘necessary’, but clearly the new test is intended to be significantly more stringent than the old. The text of what is ‘necessary’ sets a hurdle which is, on any view, significantly higher that the old test of what is ‘reasonably required’.”

We now have to decide what is meant by ‘necessary.’

 

Game on, as they say. So, what does necessary mean?

The short answer is that ‘necessary’ means necessary.

 

 If you are thinking, crikey, was there something good on television or for lunch and the Court of Appeal just wanted to get this whole thing done, don’t worry, we develop the short answer a bit.  (not much, I am trying not to give this a huge build-up)

 

 

If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. This court said it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

 

 

So a spectrum somewhere between indispensable and useful/desirable, but much more towards the indispensable side of the scale.

 

The Court allowed the geneticist and upheld the refusal for the other two experts (a paediatrician and a haemologist)

 

The President also used the case as a reminder that the appellant Court will strive to uphold reasonable and robust case management decisions  (no doubt being mindful that a lot of the current problems that are striving to be unpicked are due in part to the Court of Appeal knocking back any Judge who actually tried to follow the principles of the current Public Law Outline)

 

As this is so short, permit me a digression.

 

That’s rather better than I envisaged, when I mockingly suggested that we would be incorporating the Dudley and Stephens opinion of  necessity into care proceedings.  For those of you who didn’t study law, or did so a long time ago, Dudley and Stephens was the case of shipwrecked sailors who being both marooned and peckish, killed and ate their cabin boy. In mixed blessings for them, they were then rescued (hooray!) but then tried for murder.

 

http://www.justis.com/data-coverage/iclr-bqb14040.aspx

 

The sailors pleaded that they had to kill the boy and eat him or they would all have perished and therefore it was necessary to eat him. This was an attempt to introduce a doctrine of necessity into the criminal law as a defence. The jury could not decide what to do and the case was referred up to the Court of Appeal for guidance.

 

This doctrine of necessity defence was rejected by the Court, in a lovely passage by Lord Coleridge

 

From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother’s notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that “if the men had not fed upon the body of the boy they would probably not have survived,” and that “the boy being in a much weaker condition was likely to have died before them.” They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him

 

 

And then

 

It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder

 

 

This is a lovely judgment, bringing in all sorts of ideas and references, and interesting to me as a law geek particularly because the Court recognise that the case is a real-life version of a hypothetical example given in legal textbooks of the time of two sailors on a plank and would it be lawful for one to eat the other to prevent them both starving. The authors of the legal textbooks had suggested that it would be, but the Court disagreed.

 

The sailors were found guilty and hanged.   [The whole set up reminds me of those Fortunately-Unfortunately-Fortunately-Unfortunately games/stories we used to tell at school  http://en.wikipedia.org/wiki/Fortunately,_Unfortunately ]

 

[I recall, as I once had to research this, that there is no offence of cannibalism per se in English law – the crime would be either bringing about the death, or if the person had died naturally, a pretty minor Common Law offence of conspiring to prevent a decent and legal burial]

 

So the lessons for today are – if you are applying for an expert make sure you lay on with a trowel how close to indispensable this instruction is and if you are going to eat a cabin boy, wait till he dies of natural causes.      [Which further digresses me to Vic Reeves’ sterling words of advice “If you DO get trapped in your flat…try NOT to get trapped in your flat”]

 

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Emotional wrecks

Posted on June 13, 2013 by suesspiciousminds

Following the Supreme Court decision in Re B yesterday, which we hoped would tackle the four issues on which leave to appeal was granted :-

(i) the meaning of significant harm;

(ii) the relationship between the nature and gravity of the harm which is feared and the degree of likelihood of that harm being suffered in the future;

 (iii) the proportionality of a care order with a care plan for adoption in a case such as this; and

(iv) the proper approach of the Court of Appeal to a finding that the threshold has been crossed, and (although this was not expressly referred to) to the issue of proportionality.

 

And I shall leave it to others to debate whether or not they successfully clarified those points (save for (iv) which they undoubtedly did tackle, some might say at the expense of the 3 more important issues)

 

But it made me think about emotional harm post Re B, and some hypothetical examples to debate.  In each of these hypothetical examples :-

 

(i)                 The child is well fed, well cared for, their basic needs are met

(ii)               They are not hit, or sexually abused or neglected

(iii)             The parents are not drug addicts or alcohol abusers

(iv)              The parental behaviour complained of is just simply as is set out baldy and nothing else

(v)                All efforts to divert them from this behaviour has been unsuccessful to date

 

I make those caveats so that it is clear what we are debating is ‘pure emotional harm’, not the emotional harm that accompanies neglect, or physical or sexual abuse.

 

Have a look at the examples, if you would and consider whether you think (a) that it is appropriate for the State to intervene in this family’s life by issuing proceedings (b) whether the section 31 threshold is crossed and (c) whether the Court might consider it proportionate to make an order, if – as in Re B, all prospect of the parent being able to address that behaviour were not successful.

 

 

Example 1

 

 

The parent routinely tells the child that they are worthless, that they will never amount to anything, that the parent is ashamed of them, that they are fat and ugly and unloveable,  that even their parents don’t love them, that they will be a failure in life.

 

Example 2

The child wants more than anything to grow up to be a professional footballer, and the parent routinely tells the child that they are no good at football, that they aren’t getting any better at it, that they have no chance of becoming a footballer and that they are not going to be able to do it for a living.

 Example 3

The parent routinely tells the child that once you are an adult, “you shouldn’t knock it till you’ve tried it” and that they should try cocaine, heroin, amphetamines for themselves once they become an adult. The parent also makes it plain that once the child is an adult, if they want to try drugs, they do so with parental blessing and the parent will provide them with funds if they wish to do so.

 

Example 4

The parent has strong Marxist beliefs/no conscience about personal property, and regularly tells the child that “all property is theft” and that once the child reaches adulthood, it is perfectly legitimate, if they so wish, to steal things if they want them or need them. They make it clear that their view is that only a fool would work and save up for something when it is so easy to just take it from someone else.

 They themselves steal to supplement their lifestyle, and the home is full of luxury goods that they could not afford and they make no secret of how they obtained them. They do, however, not involve the child in any theft (either as witness or accomplice) and stress to the child that until they reach the age of 18, they should not steal anything.

 

Example 5

The parent routinely tells the child that the Holocaust never happened. They make it plain that Jewish people have lied about it, and that any small number of Jews who did die deserved it. They communicate to the child that books and television programmes or films that claim otherwise are lies and that the creators of such material cannot be trusted.

 

 

Example 6

 

The parents believe in reincarnation and karma, and routinely tell the child that people who die of terminal illnesses or have disabilities have these problems because they did bad things in a former life and are paying for them.

 

 

[I will stress that none of these are actual cases or even small features of actual cases, they are purely hypothetical examples of ways that a parent could behave which may lead the State to question whether the behaviour amounts to significant harm. I also stress that I am not attempting to claim that post Re B, all of these examples WOULD meet threshold or that a Local Authority would issue on them even if they did, rather to simply debate whether they are CAPABLE of meeting threshold and whether there is consensus about which that do or not, or whether there is uncertainty. ]

 

 

Do any of them, on their own, cross threshold?

 

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Supreme Court and emotional harm

Posted on June 12, 2013 by suesspiciousminds

The Supreme Court judgment in Re B is out, and can be read in full here:-

 

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf

For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.

There was an excellent preview of the case by Celtic Knot over on Pink Tape, here

http://pinktape.co.uk/cases/rescuing-children-from-significant-harm-looking-forward-with-trepidation-and-hope/

and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that  (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child.  Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.

Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]

 

I think the closest it came to threshold was in this passage here

It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond  abnormal personality traits and in additi on to, and more significantly than, her  somatisation disorder, M suffers a factitious  disorder of mild to moderate intensity.

This is a related psychiatric disorder in  which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.

There is therefore a deceptive dimension to  the disorder which was replicated in a  mass of other evidence before the judg e, unrelated to M’s medical condition,  which raised questions about  her ability, and for that matter  also the ability of F, to behave honestly with professionals. Dr Bass  stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken  only if she were to acknowledge the problems and to engage honestly with the therapist.

 

 

Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with.  The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?

 

The original trial judge said this:-

The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence  clearly demonstrates is that these parents do not have the capacity to  engage with professionals in such  a way that their behaviour will be  either controlled or amended to  bring about an environment where  [Amelia] would be safe… In short I cannot see that there is any  sufficiently reliable way that I can fulfil my duty  to [Amelia] to  protect her from harm and still place her with her parents. I  appreciate that in so saying I am depriving her of a relationship  which, young though she  is, is important to  her and depriving her  and her parents of that family life which this court strives to promote.”

 

Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.

But did we ever cross the threshold on the facts as reported?

My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I  haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]

 

One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm”  and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.

 

If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.

 

Here is what the Supreme Court have to say

26.  In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the  gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from  the word itself. Nevertheless it might be worthwhile to  note that in the White Paper which preceded the 1989 Act, namely The Law on  Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:

“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”

The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order.   [I can’t say that i am happy about THAT either]

 

The second matter relates to Mr Feehan’s submission that the threshold set  by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is  that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if,  in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character

and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional

 

This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC  – I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)

The Supreme Court rejected this anyway.  

 

One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong”  or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”

it is generally better to allow adjectives to speak for themselves without adverbial  support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.

Like all other members of the court, I  consider that appellate review of a  determination whether the threshold is crossed should be conducted by reference  simply to whether it was wrong.

 

 

I think they may come to regret that formulation.

 

Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong

The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,

(b) “concerns … about the parents’ personality traits”,

(c) “her mother’s lying”,

(d) her father’s “active, but less chronic, tendency to dishonest

y and vulnerability to the misuse of drugs”, and

(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.

As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”

to Amelia “to protect her from harm and still place her with her parents”.

 

66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they

are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based

on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge

as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are

evaluations which are also plainly dependant on the Judge’s overall assessment of  the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.

 

Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark.  I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.

 

Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order,  sets out what practitioners felt was the key issue in the case in her opening paragraphs

 

143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.

 

How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?

 

144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?

 

Hear hear

 

 

Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B

The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.

 

The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

 

 

Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.

 

190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify

191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.

 

For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.

I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.

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Supreme Court to give judgment on emotional harm case on 12th June

Posted on June 7, 2013 by suesspiciousminds

An interesting report from Family Law Week, confirming that the Re B case will be determined by the Supreme Court on 12th June, and I will write about it as soon as I get the judgment

 http://www.familylawweek.co.uk/site.aspx?i=ed114264

 The Court of Appeal decision is one that I blogged about here :-

 https://suesspiciousminds.com/2012/11/16/lies-and-the-lying-liars-who-tell-them/

 The reason that the case is important is that the threshold in the case was based entirely on emotional harm. I disagree with some of my readers about how prevalent that is  (my own experience of many, many Local Authorities over many, many years is that whilst emotional harm is a facet of lots of cases, I have NEVER picked up a case where the threshold contained nothing other than emotional harm. Ian Josephs says fairly that the people who come to him are invariably emotional harm cases). 

At the very least, it is plain that emotional harm is a controversial basis for separation of families, and it is probably the greyest area that we currently have, so it is good to see it being tackled.

 On the facts reported in Re B, I thought that the Court of Appeal were wrong in finding that the threshold was made out, and wrong further in moving to the conclusion that this meant that permanent separation was justified.  My heart is with the parents on this one, I have to say.

 There were certainly issues with the parents and there was certainly a suggestion that there would have been unusual features of the way the child would be brought up, but I did not see in the judgment I read evidence that the child was being harmed or likely to be harmed by it.

 

A classic bit of Hedley J, as far as I was concerned

 

Re L (Care threshold criteria) 2006  ”Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

 

As some people remarked to me at the time, there must have been more to it than came out in the Court of Appeal judgment. That might be the case, but in which case, I consider there to be a fault in the judgment  – if a parent is to be separated from their child by the State, the least we can offer them is a fair judgment that sets out plainly why that has to be the case.

 I think it is important that if the State is removing children for emotional harm, which is such a slippery concept to pin down (as opposed to fractures, sexual abuse or even neglect), it is important to have some parameters as to what that might mean, and where the bright line is between unusual and eccentric parenting and harmful parenting.

I will be interested to see what the Supreme Court makes of this, and as an incidental, I think Lord Clarke of Stone-cum-Ebony has a great, great title.  I have vowed, and will hold to it, that in the vanishingly unlikely event that the Government go bananas and make me a peer of the realm, I shall go by the name of Lord Vader, but that title does tempt me. Perhaps I could be Lord Ebony-cum-Ivory…

 

 

 

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“Tales of the Un-experted” (sorry)

Posted on June 7, 2013 by suesspiciousminds

CAFCASS have just published a study looking at experts – their use in proceedings, what type is being used, who asked for them, were they helpful?

 http://www.cafcass.gov.uk/media/149859/cafcass_expert_witness_research_6.2013.pdf

 It is interesting, although on their study of whether the use of the expert was beneficial, I think it would have been amazingly helpful, rather than just asking the Guardian in the case if they found them to be beneficial (which is in itself a huge leap forward, we’ve never even done that before)  the study or a subsequent one could ask the Judge

 

  1. Did you find that report helpful in reaching your conclusions?
  2. Looking at things now, after the conclusion, was the obtaining of that report worth the waiting time?  [ie, was it “value for time”]

 

 

This is what I found interesting about it though, in the Guardian’s analysis of whether the report was beneficial or not

 100% of the drug and alcohol tests obtained were found to be helpful

100% of the paediatric reports obtained were found to be helpful

But only 75% of the psychological reports obtained were found to be helpful

 Given that psychological reports are the most cash-expensive AND time-expensive, the fact that even Guardians (who in my view were being a bit generous with how useful they found reports) found only 3 in 4 of these reports to be helpful is STAGGERING

 The report also headlines that since 2009 there has been a massive drop in the instruction of independent social workers – from about 33% of cases then to about 9% now.  (That is probably a lot more to do with them being starved out of doing the job and thus not being available than any reduction in need for them, rather than, as some of the reporting I have seen of the report, that it shows how we have been busy embracing the Family Justice reforms)

 The study also shows that, so far as Guardian’s were concerned, the quality of the pre-proceedings work done by the LA, or the prior involvement of the LA had no impact on whether or not an independent expert was instructed.

 [The report goes on to cite 3 individual cases where Guardian’s had felt that poor social work had been the cause of the instruction, but of a survey of 184 cases this is statistically not significant]

 

Actually, the Court was rather more likely to instruct an expert if there had been historical social services involvement than in cases where little was previously known about the family prior to proceedings. (still scratching my head about that one)

 

The other interesting piece of information from the study (given the drive to cut down experts) was the breakdown of what discipline contributes what proportion of the assessments commissioned

 

The largest by far was psychologists, accounting for 35% of the experts instructed  (and we know now that this means that about a quarter of those were unhelpful, or nearly 9% of all expert reports commissioned by the Courts. You’re welcome)

 

The next largest group was adult psychiatrists – coming in at 20%.  I would suggest that this is going to be a difficult group to screen out of the system. One tends to go to an adult psychiatrist because there is a mental health or substance misuse issue that requires expertise over and above that that a social worker or Guardian can give. Even a talented and skilled Guardian or social worker can’t tell you what the prognosis for mother’s bi-polar disorder will be now that she has switched to different medication.

 

 

[Honestly though, I think that gathering this information has been a really useful start, and I would really really welcome a follow-up study where the Judiciary are asked on those sample cases, whether the expert report was beneficial and represented “value for time” for that child, submitted of course in an anonymised way so that we get the statistical information but that the judical feedback is kept apart from the actual case]

And in case my clunky pun has got you hankering after seeing a silhoutted woman dancing in front of a roulette wheel whilst playing cards are thrown about, and you have been singing “doo-doo-doo, noo-no0-noo doo-doo-doo” during your reading, here it is :-

http://www.youtube.com/watch?v=Oc46Gk-6qrA

 

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Headlines, deadlines, outlines (but not hemlines)

Posted on June 6, 2013 by suesspiciousminds

The revised Public Law Outline was published last week, and I hadn’t yet blogged about it.

You can find it here

http://www.familylawweek.co.uk/site.aspx?i=dl114192

Lucy Reed over at Pink Tape has also blogged about it, and you can read her bit here:-

http://pinktape.co.uk/legal-news/new-plo-published/

 

There’s some jaunty young fellow-me-lad writing about it for Family Law Week, which you can find here,  though without as much ‘snark’ as suesspiciousminds would apply to it.

http://www.familylawweek.co.uk/site.aspx?i=ed114224

I go back to one of my earliest ever blog posts, quoting the German military strategist Helmut Von Molke

“No battle plan ever survives contact with the enemy”

and we will have a much better idea in the autumn (or more accurately, by the end of next spring, when all these 26 week cases OUGHT to be concluding) how it operates when moved from the field of theory into practice.

 

[And just to save me having to do a whole separate blog post, because I wanted to tell everyone how much I love THIS picture, which shows Mick Jagger at the very height of his rock-God powers, enjoying the cricket AND carrying a pint of bitter  (in a dimpled glass no less) . I don’t think I have seen a picture that quite makes me feel so utterly English as this one]

Mick gets some satisfaction

 

 

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“I hope he gets to / baptising me soon”

Posted on June 3, 2013 by suesspiciousminds

An interesting case, on a topic I don’t think has been previously adjudicated on.  The case was dealt with by the Romford County Court, and I think handled with a great deal of sensitivity by the Judge, and who did something at the end of the judgment that I thought was quite quite excellent.

 

Re C (A Child) [2012] EW Misc 15 (CC)

 http://www.bailii.org/ew/cases/Misc/2012/15.html

 The child, C, was 10 ½ years old. Her parents were separated. Both had been of the Jewish faith, although the father underwent a religious experience and converted to Christianity. All four grandparents were Jewish.  The parents following the separation had arrived at a shared parenting arrangement, alternating care on a weekly basis.

During some time with her father, C went to a Christian festival and on her return told him that she too had had a religious experience and wanted to be baptised as a Christian.

 There was a dispute in the evidence about this as to whether father was pushing the child into it and making secret arrangements  (mother’s case) or whether he was cautious and careful and wanted C to spend some real time thinking about it and discussed it with the mother (father’s case)

 In any event, the mother made an application for a Prohibited Steps Order.

 A CAFCASS officer reported, and ascertained that C had thought about things very carefully and had very firm and clear wishes about wanting to be baptised. The report was something of a curate’s egg, recommending both that C’s wishes be listened to and that the decision be postponed for two years.

 The Court rejected all of the assertions that mother made that the father had been ‘brainwashing’ the child or taken secret steps to arrange a baptism class behind mother’s back.

 One of the issues the mother cited was this text message from father, which she claimed was proof that the baptism issue was being driven firmly by father

 

23.   “Can I suggest that you speak to C thoroughly before you write your statement to the court and consider how you (and your parents) actions will sit with her before you continue with this. I re-spoke with her a few times and she is absolutely adamant that she wants to be baptised. If she wasn’t I would not have continued, but she is absolutely dead set. Don’t damage your relationship with her any further by being the mother who didn’t talk and listen to her.

I’m asking you to consider this for C’s sake and also for your sake (by which I mean for the sake of your relationship with her). I have made a promise to C that I will fight for the right for her to practise and grow in her faith, and so can’t back down. …”

 

I have to say that mother’s reading of that text was not mine, and it was not the Judge’s either

 

I do not accept that the text message from the father which the mother has exhibited to her statement shows that it is the father who is driving this application and that it is his idea that C should be baptised. Of course as a committed Christian he wishes to do all he can to support her wish in this regard. That is only natural, but I accept his evidence that faith is a free gift from God to his daughter and not something which he would ever try to force upon her. His cautious, patient and sensitive approach to dealing with C’s request over the past nine months strongly supports his case on this point.

 

 The Judge was critical of mother making the application for Prohibited Steps as an ex parte application – she had claimed that there was about to be a secret baptism and thus she had to rush to Court. (There is a nice exchange of letters between the Rabbi and the Minister about this, set out within the judgment)

 I do not accept the validity of the reasons put forward by the mother for making her without notice application. It was wholly wrong for her not to have checked either with the father or with his Minister to discover the truth before applying to the court. There simply was no immediate danger. This has had serious consequences. She obtained her order on an assertion of fact that both children has secretly been enrolled in baptism classes without her knowledge or consent which was simply untrue.

 

 On the issue of whether a decision should wait for two years, the Judge decided this

 

  1. I have made it clear to the parties that I have no power to order C to be baptised. That is as decision for the Minister of her church to take in the light of his evaluation of her understanding and commitment, so far as he judges those criteria to be relevant. My powers are limited to considering whether the father should be prohibited from taking any positive steps towards his daughter’s baptism and in terms of any specific issues order directing that such steps may be taken without the consent of the mother.
  1. The issue of delay is an important factor in this case. Since C herself first raised the issue ten months has passed and just over five months since the issue came to a head in November 2011. That is a long time in a child’s life. The court has received all the relevant information to make an informed decision but is now being asked by the Cafcass officer to delay that decision for a further two years with no guarantee then of a decision being appropriate to be made. The court is also being asked by the mother to delay making that decision for a further five and a half years when C will be sixteen.
  1. The only possible justification for that delay would be that the court is not satisfied that C has sufficient maturity and understanding to take such an important step in her life. I could see some justification for taking that course if the court could be sure that at age twelve and a half C will be sufficiently more mature to make a decision which her parents would have to respect. But that is not the mother’s primary position. She in effect reserves her position to continue to argue that even at that age C will still be too immature to decide. If the court is against her now on waiting to age sixteen she reluctantly accepts the Cafcass recommendation.
  1. The advantage of any delay has in any event to be weighed against the risk of further emotional harm being suffered by C waiting for the decision to be made.
  1. I am satisfied that a decision must be made now for two reasons. The first is that in my judgment a decision to delay carries a significant risk of emotional harm to the child. The second is that upon consideration of all the evidence there is no proper purpose in any delay. I am satisfied that C has already reached a sufficient degree of maturity and understanding to make a properly informed decision. In this respect I disagree with the Cafcass recommendation so I must explain why.
  1. The first reason is that the author of the report does not herself make any recommendation. Since the report was specifically directed towards ascertaining the wishes and feelings of the child I make no criticism of the author on that account. The suggestion for delay comes from her line Manager who has never herself met or spoken to the child. The second reason is that the report gives no reason why the decision should be delayed.
  1. The third reason is that the report writer gives no indication of any concern on her part about the lack of maturity of the child. On the contrary she notes, as confirmed by the parents, that C is a bright articulate child who was able clearly to express her views and give reasons for them. The final reason is that C has maintained a consistent wish to be baptised for over ten months in the face of opposition from her mother and has been able to give age appropriate reasons for her decision, a factor which the line Manager does not appear to have taken into account

 

 

The Court also took into account that the baptism would not have any irrevocable impact on C’s ability to follow her Jewish faith in later life  (it would have been interesting had the roles here been reversed)

 

And thus the Court declined to make the Prohibited Steps order and indicated that there was no reason why C could not be baptised if that was what she wished and that the Minister who would be undertaking the ceremony was content (he ordered that the judgment could be disclosed)

 

The very last part of the judgment was, I think, a very nice touch, and something worth considering for other cases with children of this age and understanding  – the Judge wrote an open letter to the child

 

80.   Dear C,

It must seem rather strange for me to write to you when we have never met but I have heard a lot about you from your parents and it has been my job to make an important decision about your future.

Sometimes parents simply cannot agree on what is best for their child but they can’t both be right. Your father thinks it is right for you to be baptised as a Christian now. Your mother wants you to wait until you are older so they have asked me to decide for them. That is my job.

I have listened to everything your mother and father have wanted to say to me about this and also to what you wanted to tell me. You have done that by speaking to the Cafcass lady and she has passed on to me what you said to her. That has made my job much easier and I want to thank you for telling me so clearly why you want to be baptised now. It is important for me to know how you feel.

My job is to decide simply what is best for you and I have decided that the best thing for you is that you are allowed to start your baptism classes as soon as they can be arranged and that you are baptised as a Christian as soon as your Minister feels you are ready.

Being baptised does not mean that you give up your Jewish heritage. That will always be part of you and I hope that you will continue to learn more about that heritage and about you mother’s faith. Even after you are baptised you are still free to change your mind about your faith later when you are older. Finally, and this is the most important thing, both your mother and father will carry on loving you just as much whatever happens about your baptism.

I understand that the past few months have been a difficult time for you but that is over now and the decision is made. I send you my very best wishes for the future.

Yours sincerely,

Judge John Platt

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“The peril of Auntie Beryl”

Posted on June 3, 2013 by suesspiciousminds

As the 26 week time limit comes upon us (being introduced by Parliament, the President’s revised PLO guidance and behind the scenes pressure on Courts and Local Authorities via the “Stick of Statistics” TM   – not necessarily in that order), I have been musing about the elephant in the room, of what happens when late in the proceedings, the Court is presented with a suitable relative, Auntie Beryl.

 For what it is worth, I think delays in court proceedings are caused by one or more of these things :-

 (a)   Parties (including the LA) being late in filing documents and this having a domino effect

(b)   The expert report being late, and the whole carefully built timetable collapses round people’s ears

(c)   There is a material change in circumstances  (an unexpected dad emerges, or a relationship ends or begins, or someone you thought was going to be fine relapses into drug misuse, or falls pregnant, or has some sort of unpredictable illness or disease)

(d)   A relative comes forward at the eleventh hour and has to be assessed

(e)   The evidence is all ready, but the combination of accommodating social worker, Guardian, expert and more importantly Court time, means that you have to wait 3 months for a hearing

 I think the intention of the revised PLO  (which you can find here http://www.adcs.org.uk/news/revisedplo.html  )   is to try, as much as one can, to eliminate (a) and (b), and the hope is clearly that if you have much crisper and tighter and fewer Court hearings, there will be less backlog and more judicial availability for (e)    – though it would have been nice to see something spelling out exactly what the Court service is going to do about (e)  – save for having Listings offices run by Capita…

 (c )  is probably the stuff that ends up coming into the bracket of exceptional cases that get an extension to the 26 week limit, or at least where this is actively considered.

 So that leaves the elephant in the room, where it looks as though a child MIGHT be able to be placed with a family member, but doing that assessment will take the proceedings outside of the 26 weeks, because the family member has been put forward late on.

 I suspect, and am already seeing this, that the Courts will try to tackle this by very robust directions at early Court hearings, along these lines :-

“The parents shall, by no later than                       , identify in writing to the Local Authority (to be copied to all parties) the names and contact details of any person that they put forward as a potential permanent carer of the child. Any person put forward after that date will ONLY be considered with the leave of the Court and the parent would need to apply to Court for leave for such assessment evidence to be filed and would need to provide VERY cogent reasons as to why they were not put forward within the deadline period set out in this paragraph”

 

 That looks pretty strong, and will no doubt be backed up by the Court leaning forward and stressing to the parents just how important it is to focus their minds right NOW on who might be able to care for the children, if the assessments of them are not positive.

 But, human nature being what it is, at some point, lawyers and parents and Judges will be faced with an Auntie Beryl coming forward at week 18 or 19, when the LA have announced that they won’t be rehabilitating to parents and will be seeking an adoptive placement. Auntie Beryl, on the face of it, seems like she might be suitable – she doesn’t have any convictions, or history of children being removed, or any major health issues, she has a house in which the child could live, and so forth. So there is a positive viability assessment, but still a lot to be done – more than could be done in the time we have left.

 The six million dollar question, which the Court of Appeal will be grappling with pretty quickly after the revised PLO comes into force I suspect, is

 When a parent puts forward a family member late, and the assessment of that family member would push the case outside 26 weeks, what does the Court do?

 

The immediate “26 weeks or bust” approach suggests that the Court will say, “too late, you had your chance, you had the stern warning on day 12 to cough up the names, you can’t leave it until the assessments are in and the LA are talking about adoption”

 So, what happens if they do that?

 For these purposes, we will assume that the assessment of the parents is negative (since if it were positive, there would be no need to delay matters to assess Auntie Beryl) and that we are dealing with a child under six.

 The alternative care plan is therefore adoption. 

Can an application for a Placement Order be made when there is a viable carer who has not been assessed?

 

The Local Authority have a duty, pursuant to section 22(6) of the Children Act 1989

 s22 (6)  Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—

 (a)  a person falling within subsection(4); or

 (b)  a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare.

 

The LA can’t, it seems to me, determine that placement with Auntie Beryl isn’t consistent with the child’s welfare if all they have is a positive viability assessment, they have to go on to do something more, EVEN IF the Court has made a Care Order.

 Before the adoption agency can decide that adoption is the plan for the child, and thus make the application for a Placement Order, they have this duty under the Adoption and Children Act 2002

 Section 1 Considerations applying to the exercise of powers

 (4)The court or adoption agency must have regard to the following matters (among others)—

 (f)the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

And again, how can the adoption agency decide that Auntie Beryl can’t provide the child with a secure environment if all they have is a positive viability assessment? They have to have a full assessment.

 Thus, even if the Court determined that they were not going to allow time for Auntie Beryl to be assessed, because she has come late into the proceedings, that won’t allow the LA to simply discount her and issue a Placement Order application.

 Unless they have done sufficient to satisfy themselves that Auntie Beryl is NOT suitable, they can’t commit to a plan of adoption and no such plan could be put before the Court. Neither can they commit to “Placement with Auntie Beryl” until they have sufficient information to be satisfied that this has good prospects of success.

 Therefore, the Court cannot have a hearing by week 26 at which a Placement Order could be made.

 

 If the Court can’t consider a Placement Order application, what can it do?

 

The Court would be left, I think, with these three options :-

1. Taking the information that is available about Auntie Beryl and taking a punt on her, by making a Residence Order (or an SGO – but bear in mind that the Court cannot make a Special Guardianship Order without a Special Guardianship report   – and the Court won’t have one of those between week 18 and 26    RE S (A CHILD) NO.2 (2007) [2007] EWCA Civ 90 )

 

2. Adjourning the proceedings in order for a Special Guardianship report to be filed and served, which will push the proceedings outside of 26 weeks.  

 

3. Determining that the Court is in a position to make a Care Order, with the care plan being that the Local Authority will assess Auntie Beryl and the child will remain in foster care pending that assessment.

 

[And of course option 4 of placement with parents, but we are dealing here with those cases where the Court has the material to determine the issue of rehabilitation to parents, since in those cases Auntie Beryl isn’t important]

 

My concern is that option 3, in a post PLO world (and more importantly a world where the Judges know that their performance on timescales is being gathered and measured), becomes superficially attractive. The case concludes, it concludes in time, the Care Order is made, and Auntie Beryl becomes the Local Authority’s problem.

 Of course, it doesn’t actually resolve the future for the child, or end the proceedings with the parents knowing what will happen, and it almost invariably will lead to satellite litigation   (either the assessment of Auntie Beryl is positive, whereupon the LA will want to shed the Care Order and get an SGO or residence order made, OR it is negative, in which case the LA will put the case before their Agency Decision Maker and in due course make an application for a Placement Order)

 The only advantage option 3 has over option 2 is determining the proceedings within a 26 week timetable. There might have to be a judgment that works hard to say that the no delay principle is more important than the no order principle  – but that isn’t the only problem.

 

Get your inchoate, you’ve pulled

 

Is a care plan which at heart is “either this child will be placed with a family member OR adopted, and we don’t yet know which”  actually a legitimate care plan? Is it in fact, an inchoate care plan?

 Inchoate care plans are bad, m’kay? Not good for the Court to hand over the keys to that sparkling vintage E-type Jag to the Local Authority without having a clear idea of where they intend to drive it.

It seems so to me, even on the new Children and Families Bill reworking of care plans as being  “don’t sweat the small stuff”    model

 Section 15 of the draft Children and Families Bill

 

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section  31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A  plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long- term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other  member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

 

And it does not seem to me that even with that more limited scrutiny, a care plan which doesn’t identify whether the plan for the child is to live with a family member or in an adoptive parent, is sufficiently clear.

 Let’s see what the law says about inchoate care plans (underlining mine) and from Re S and others 2002:-

 99. Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time. This is necessarily so. But making a care order is always a serious interference in the lives of the child and his parents. Although article 8 contains no explicit procedural requirements, the decision making process leading to a care order must be fair and such as to afford due respect to the interests safeguarded by article 8: seeTP and KM v United Kingdom [2001] 2 FLR 549, 569, paragraph 72. If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.

    100. Cases vary so widely that it is impossible to be more precise about the test to be applied by a court when deciding whether to continue interim relief rather than proceed to make a care order. It would be foolish to attempt to be more precise. One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child’s upbringing is likely to prejudice the child’s welfare: section 1(2) of the Children Act.

    101. In the Court of Appeal Thorpe LJ, at paragraph 29, expressed the view that in certain circumstances the judge at the trial should have a ‘wider discretion’ to make an interim care order: ‘where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future’. In an appropriate case, a judge must be free to defer making a care order until he is satisfied that the way ahead ‘is no longer obscured by an uncertainty that is neither inevitable nor chronic’.

    102. As I see it, the analysis I have set out above adheres faithfully to the scheme of the Children Act and conforms to the procedural requirements of article 8 of the Convention. At the same time it affords trial judges the degree of flexibility Thorpe LJ is rightly concerned they should have. Whether this represents a small shift in emphasis from the existing case law may be a moot point. What is more important is that, in the words of Wall J in Re J, the court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of ‘over-zealous investigation into matters which are properly within the administrative discretion of the local authority’. This balance is a matter for the good sense of the tribunal, assisted by the advocates appearing before it: see [1994] 1 FLR 253, 262.

 

 It seems very clear to me, that waiting for the assessment of Auntie Beryl removes that obscurity and uncertainty in the case, and that this uncertainty is NEITHER inevitable or chronic – it can be resolved by making a direction for the filing of the report.

So, the revised PLO doesn’t erode this, nor would the introduction of the Children and Families Bill as currently drafted – the Court still have a duty to look at the ‘placement’ aspect of care plans, and it appears very strongly that a care plan that is “either Auntie Beryl OR adoption” is inchoate.

 Well that’s fine, we can just overturn the decision about inchoate care plans, and say that it is fine to have “either or” care plans.  Just let’s not worry about inchoate care plans anymore, we’ll just airbrush the whole concept out. The slight stumbling block there is that the passages above are from the House of Lords, and thus it isn’t open to lower Courts to overturn it.

 Oh-kay, so we are just going to interpret Re S very widely, to mean that a Court can and should think about whether it is right to make a Care Order rather than an interim care order where the care plan is inchoate, BUT it is not a prohibition on making a Care Order where the plan is inchoate, they don’t go that far.

 And, you know, before Re S, the former President (Wall LJ) had made Care Orders in a case where he declared the care plans to be inchoate but still decided that making care orders was the right course of action RE R (MINORS) (CARE PROCEEDINGS: CARE PLAN) (1993) [1994] 2 FCR 136 

 

Although that predates Re S, it was specifically referred to by the House of Lords (though they call it Re J, it is the same case) and endorsed, so it is good law for the proposition that a Court is not BARRED from making a Care Order with an inchoate care plan.   [Or is it? The House of Lords seem to draw a slight distinction between inchoate care plans, and care plans where the future is not certain because there are things which can only be resolved after the care order is made]

 

This is what the House of Lords say about Re R/Re J

 

  97. Frequently the case is on the other side of this somewhat imprecise line. Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented. This was so in the case which is the locus classicus on this subject: In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. There the care plan envisaged placing the children in short-term foster placements for up to a year. Then a final decision would be made on whether to place the children permanently away from the mother. Rehabilitation was not ruled out if the mother showed herself amenable to treatment. Wall J said, at page 265:

‘there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown … provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.’

In that case the uncertain outcome of the treatment was a matter to be worked out after a care order was made, not before.

 I suspect there may be dancing on the head of a pin to try to make ‘auntie beryl cases’ the Re J style of uncertainty, rather than the Re W style of uncertainty that is neither inevitable nor chronic.

It seems then, that it is POSSIBLE for a Court to make a Care Order, even where the care plan is “either Auntie Beryl OR adoption”  and even though it achieves nothing of value for the child  (since the uncertainty is there, the timing of the assessment and any applications will be no longer controlled by the Court, there will be the inevitable delay of reissuing and listing for the second wave of litigation  – whether that be for SGO or Placement Order application.

 But even more importantly, and from an article 6 point of view – how certain is the Court that the parents  (who would be represented and able to challenge the making of SGO or Placement Orders if the care proceedings continued, under their existing certificates) would get public funding in “stand-alone” applications for an SGO or a Placement Order?

 My reading of the Funding Code  (and I am not a “legal aid” lawyer) suggests that it might well not be a “non-means, non-merits” certificate for a parent faced with an application for Special Guardianship or Placement Order that is a “stand alone” application, rather than one taking place within ongoing care proceedings  -where the public funding, or “legal aid”  is covered by non-means non-merits certificates  – for the uninitiated, “non-means, non-merits” means that a person gets free legal representation in care proceedings by virtue of the sort of proceedings they are NOT based on what money they have (means) or the chances of them being successful (merits) 

 Again, underlining to assist with clarity, mine

 

20.28 Other Public Law Children Cases

1. Other public law children cases are defined in s.2.2 of the Funding Code Criteria. The definition of these proceedings excludes Special Children Act Proceedings and related proceedings. The fact that proceedings involve a local authority and concern the welfare of children will not, of itself justify the grant of Legal Representation. The Standard Criteria and General Funding Code (as varied by s.11 of the Code and including criterion 5.4.5) will apply. The proceedings include:

a) appeals (whether against interim or final orders) made in Special Children Act Proceedings;

b) representation for parties or potential parties to public law Children Act proceedings who do not come within the definition of Special Children Act proceedings in section 2.2 of the Funding Code – this includes a local authority application to extend a supervision order (which is made under Sch.3 of the Children Act 1989);

c)other proceedings under Pt IV or V of the Children Act 1989 (Care and Supervision and Protection of Children);

d) adoption proceedings (including applications for placement orders, unless in the particular circumstances they are related proceedings); and

e) proceedings under the inherent jurisdiction of the High Court in relation to children.

 

(d) seems to me to cover stand alone Placement Order applications, and they would be a matter for the discretion of the Legal Aid Agency  (oh, also, they wouldn’t be a devolved powers application, where the lawyer can just say “yes” and get on with it, it would need to be a full-blown application and waiting for the Legal Aid Agency to say yes or no)

 

Special Guardianship orders as stand-alone would be classed now as private law proceedings, and I think you can guess how the parents funding on that would go

 20.36 A special guardianship order is a private law order and the principles in s.1 of the Children Act 1989 will apply as will the Funding Code criteria in 11.11. This includes the no order principle which will be taken into account when considering prospects of success. Regard will also be had to the report of the local authority prepared in accordance with s.14A of the Children Act 1989 when considering an application for funding. When considering an application for funding to oppose the making of a special guardianship order, the way in which the proposed respondent currently exercises their parental responsibility and how this will be affected by the making of an order will also be considered.

 

 To quickly sum up then :-

 (a ) Declining to extend the timetable to assess Auntie Beryl won’t let the Court go on to determine a Placement Order application

(b) The Local Authority would be legally obliged to assess Auntie Beryl before they could even ask their Agency Decision Maker to make a decision about adoption

(c)  Making a care order with a care plan of “Auntie Beryl OR adoption” is almost certainly inchoate

(d) It almost certainly opens the door to parents to challenge that decision, given what the House of Lords say about inchoate care plans and  specifically “If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.”

 

(e) There seems to be a very foreseeable chance that if the Court make the Care Order, the parents may not get the public funding to be represented to subsequently challenge or test any application for SGO or Placement Order, funding that they would have had as of right if the Court had made Interim Care Orders and had the assessment of Auntie Beryl before considering those orders  

 (f) There must be scope for an article 6 claim that losing the ability to be legally represented to challenge whether your child might be adopted PURELY so that the Court could make a care order (on an inchoate care plan) just to satisfy the 26 week criteria is, you know, slightly unfair.

 (g)     Changing this so that it is workable only requires changes to  – a House of Lords decision,  two pieces of Primary legislation (maybe 3, if you just want to allow Courts to make SGOS in cases where they feel it is right without having a full blown SGO report), the private law funding code and the public law funding code. 

 So, job’s a good un.

 [If you are representing someone in a case where the Auntie Beryl issue crops up, “you’re welcome!”  I think the answer for the Court is to identify what issues it would need the LA to deal with in a report on the carer and to get this done as swiftly as is fair and reasonable]

 

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“Don’t put your daughter on the stage – if you want to claim Disability Living Allowance for her”

Posted on May 30, 2013 by suesspiciousminds

The High Court have just published twin judgments on an interesting case, relating to reporting restriction orders – Re Z  v News Group Newspapers 2013

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/1150.html

 Is the first one, at which the Reporting Restriction order was sought and obtained  (I think with a late sitting hour)

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/1371.html

 Is the second one, at which the Court determined how that Reporting Restriction Order would be altered if the outcome of the criminal trial was that mother was convicted.

 It is a peculiar one, since although the children in the case were pivotal to the offences, they were neither victims of the alleged offences, nor witnesses in the criminal trial, which meant that all of the restrictions on reporting from the criminal trial which would otherwise ensure the anonymity of the children were dislodged.

 It became apparent to the children’s father that the national press were interested in the story (for reasons which will become apparent) and he therefore made a stand-alone application to the family courts for a Reporting Restriction Order.   These two cases are a very good summary of the competing interests of article 8 privacy, and article 10 freedom of the press.

 Why was the Press interested?  Well, this background  (and the current context of ‘benefit cheats’ ) explains why

  1. Mrs Z is the mother of eight children. They are A (aged 23), B (aged 21), C (aged 19), D (aged 16), E (aged 15), F (aged 12), G (aged 9), and H (aged 7).
  1. The Applicant is the father of D, E, F, G, and H. It is the Applicant’s case (see para.4 application) that the oldest six children (A, B, C, D, E and F) all have special needs. Five of the mother’s children, A, C, D, E, and F are cited in the indictments to which I have referred (and which I discuss more fully below); of those, three of them (D, E and F) are currently minor children.
  1. The trial of Mrs Z focuses on a number of claims for Disability Living Allowance (DLA), Carer’s Allowance (in respect of the child C) and other tax credits which Mrs Z is alleged to have made in respect of a number of her children, over an extended period of ten years.
  1. The prosecution case, in summary, is that Mrs Z was not entitled to those non-means tested benefits, and she knew that she was not so entitled. It is alleged that Mrs Z had made these claims based on the assertion that five of the children “suffered from problems with their speech and language, physical disabilities, mental health problems and severe learning disabilities and behavioural problems” (§1.4 prosecuting opening note) including “handicaps, phobias and intolerances e.g. ‘difficulty with walking’, ‘poor co-ordination’, ‘poor spatial awareness’, ‘unclear speech’, ‘fear of crowds’, ‘difficulty following instructions’, ‘difficulties getting dressed’, ‘cant wash or bathe’ and ‘needs help with toilet’” (§1.4 ibid.). These claims were reported to be independently verified, including (in some respects) by a consultant paediatrician, Dr. K.
  1. Proof of the falsity of the claims, asserts the prosecution, is that the disabilities and problems which Mrs Z claimed her children were suffering were not compatible with their various activities and other achievements. In particular, for periods of time when Mrs Z was asserting (for the purposes of the benefit claim) that the children suffered “various disabilities and conditions which materially affected their care and/or mobility needs” (see §1.3 prosecuting opening note), they were (according to the Crown) all in mainstream school, successful in their academic subjects, and apparently able to undertake physical exercise in school.
  1. Perhaps most notably, it is said that three of the children attended a specialist theatre school, became successful child actors/actresses and appeared in amateur and professional productions in regional theatres, and even on the West End stage, including appearances in a number of well-known and successful productions; they appeared on the television. In their theatrical and public roles they were said to be involved in acting, dancing, and singing – “wholly inconsistent” (says the Crown: §1.9) “with the care and mobility needs described by the defendant“.

 

 

Yes, one can see in the light of that, and the information that the total sum of alleged fraud with which mother was charged amounted to £365,000 , why there were print journalists at the trial, frantically licking their pencil tips and writing punning headlines   (for shame, punning headlines are a dreadful sin)

 So, the competing interests here were in the press being able to report on a criminal trial   [see the quotation below from the Trinity Mirror case] and on the protection of children who were, although not victims per se of the alleged offences, were certainly innocent of them and who might very well be stigmatised were their identities made public

 

  1. “In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill’s memorable epithet, is the defendant’s “birthright”. From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case“.

 

 

 

The Court were unsurprisingly taken to a very recent authority balancing article 8 and article 10, particularly on preserving anonymity of children in a case where their mother was convicted of remarkable offences clearly in the public interest to report  – the case bears careful reading, if you have not already encountered it

 

 

  1. The application of the balancing exercise can be found in a number of cases in the Family Division, and increasingly in the Court of Protection. One of the most recent decisions is that of Peter Jackson J in A Council v M, F, and others [2012] EWHC 2038 (Fam) in which he said this (at §82-84):

82. The resolution of this conflict of legitimate interests can only be achieved by close attention to the circumstances that actually exist in the individual case. As Sir Mark Potter has said, the approach must be hard-headed and even, from the point of view of this jurisdiction, hard-hearted.

83. Rights arising under Art. 8 on the one hand and Art. 10 on the other are different in quality. Art. 8 rights are by their nature of crucial importance to a few, while Art. 10 rights are typically of general importance to many. The decided cases, together with s.12(4) HRA, act as a strong reminder that the rights of the many should not be undervalued and incrementally eroded in response to a series of hard cases of individual misfortune.

84. On the other hand, there is no hierarchy of rights in this context and there are cases where individual rights must prevail. In highly exceptional cases this can even include making inroads into the fundamental right to report criminal proceedings, but only where that is absolutely necessary.

 

I respectfully adopt this analysis.

 

 

The Court tried very hard to balance what could or could not go into the public domain, and recognised the legitimate public interest in the public knowing that taxpayers money earmarked for the most deserving and needy of families had been diverted by means of fraud.   Whilst the criminal trial was pending, a widely drawn Reporting Restriction Order was in place.

 

The Press, understandably, wanted to test whether this would be more narrowly drawn if the mother went on to be convicted at trial, hence the second judgment.

 

The Judge did indeed draw the order more narrowly, whilst still striving to protect the anonymity of the children,

 

  1. In reaching conclusions on the supporting information, I have sought to strike the appropriate balance between competing Convention rights, guarding against disproportionate interference with each. In this respect I have concluded that if, but only if, such publication is likely to lead to the identification of the children, adult children, or Mr Z as being involved or named in the criminal proceedings heard at the named Crown Court, and/or as being the children of the defendant (hereafter Mrs Z):

i) There shall be no publication or broadcasting of the forenames of the children, including the adult children, so as to protect, as far as I am able, some cherished rights to privacy; this applies particularly for the child E, and to a lesser extent D and F, but in view of my intention to reduce identification and unwarranted intrusion into family life for their sake and generally, the other children too;

ii) For the same reason, there shall be no reporting of any picture being or including a picture of either the children, the adult children, or the Applicant Mr Z;

iii) Given that the Applicant, Mr Z, is likely to be assuming the care of the younger children in the event that Mrs Z receives a custodial sentence, there shall be no reporting of his forename, consistent with my desire to respect so far as is possible some Article 8 privacy for the children;

iv) There shall be no reporting of any medical conditions or disabilities which the children (whether adult or minor) are said to suffer other than those conditions or disabilities which were said to have been reported by Mrs Z in the context of her claims for benefit; for the avoidance of doubt, there shall be no public reporting of the contents of the recent CAMHS letter concerning child E;

v) There can be identification of the Crown Court (and the trial Judge) at which the trial has taken place, and the County in which the family live. No more specific information relevant to the address or location of the family is justified;

vi) There will be no restriction on reporting of the fact that the children concerned are a sibling group of eight. In reaching my conclusion on this aspect, which I found less easy than other aspects to resolve, I took the view that this information did not of itself materially add to the identification of the family in such a way as to interfere with their Article 8 rights, given the general availability of other information which will be available in accordance with my order.

 And you will note that this obviously allows the naming of Mrs Z, and publication of photographs of her, allows for the facts outlined in the background already included to be published.

 The Judge ends with a very pithy conclusion

 In my judgment, those who cheat the over-stretched resources of the welfare state can neither generally nor reasonably expect to escape the proper reporting of their wrongdoing, or hope to achieve the concealment of their identities. It is with considerable regret that in varying the Reporting Restriction Order in the event of a conviction, I will expose the children of Mrs Z to the risk of identification. A guilty verdict would reflect the jury’s satisfaction that Mrs Z had improperly used her children as innocent instruments of her crime; if this is the outcome of the criminal process, then it is she alone who has unhappily heaped upon her family the misery, shame and disadvantage, which is the inevitable consequence of her offending.

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You already know Spotify – now meet “Justify”

Posted on May 30, 2013 by suesspiciousminds

The Minister speaks

 

Ladies and gentlemen, you will by now have seen my leaked proposals for introducing the benefits of private sector enterprise to every part of the Court system save for the judiciary, and I know that you are thinking to yourselves,  “Minister, such timidness! Why can’t you bring the world of commercialisation to the judiciary too?”

Well believe me, we tried hard. Our original proposal, to make judicial robes available for sponsorship much like the overalls of the Formula One drivers, was not popular. But we now have a better approach. You already know Spotify – now meet “Justify”

Just as Spotify delivers its service (delivering music) in two forms – one where a fee is paid and you just get what you want, and one where you pay no fee and have your service but interrupted frequently by advertising, so Justify will do the same. Of course rich people and firms will get their judgments as nature intended, advert free, but the vast majority of cases will know come with short advertisements interposed, being triggered by key phrases which the judiciary will be… ah encouraged to use.

By way of example, take this pilot judgment, delivered recently by Mr Justice League.

 

“This is a case involving two children, A (aged 4) and B (aged now nine months). B was presented to hospital with suspicious injuries, and the issue for this Court to determine is whether those injuries were caused by one or other of his parents, or by accident  [IF YOU’VE HAD AN ACCIDENT IN THE WORKPLACE, AND IT WASN’T YOUR FAULT, INJURY LAWYERS FOR YOU CAN HELP] . In doing so, it will be important to consider the accounts given by the parents with the analysis of the medical experts instructed in the case, and to carefully compare them [GO COMPARE, GO COMPARE, GOLLY GOSH, SAVE YOUR DOSH AT GO COMPARE] .  In cases of this kind, small factors, the minute detail can become important, every little fact can help the Judge reach a conclusion  [TESCOS – EVERY LITTLE HELPS].  The Court is aware, from the clear and precise timing of events, that in this case there was a window of time between the parents saying that they discovered the child was unwell, and them deciding to seek medical attention, that window was fifteen minutes [WONGA.COM CAN GET YOUR MONEY INTO YOUR BANK ACCOUNT IN JUST FIFTEEN MINUTES] and it may be that only later on in the consideration of the totality of the evidence that the Court can decide what this means [BEANZ MEANZ HEINZ].  There are complexities to the medical evidence, there are non-accidental cases that are complex, and there are others which are  [SIMPLES! ] and this is one of the former.

When the Court considers any serious injury, whether that be bruising, a skull fracture, or as in this case, they take into account a break  [TAKE A BREAK MAGAZINE – AMAZING STORIES AND JUST 99p] they have to consider the factual matrix extremely carefully, we know from the authorities that people, particularly children are beautifully and fragily made, and that Mother Nature can be strange indeed  [DON’T LET MOTHER NATURE RUIN YOUR DAY – USE TAMPON PEARL] . The Court approaches all of these difficult tasks having in mind that the welfare of the child is paramount, although I know to parents going through this ordeal, that fact comes as little comfort [COMFORT FABRIC SOFTENER – BRING SOME MOUNTAIN AIR FRESHNESS INTO YOUR DAY] “

 

Now, I know that you barely noticed those, but rest assured, we will endeavour to get more value for money into the next tranche, by expanding the keywords and interposing more advertisements, the pilot showing that we had if anything not been sufficiently bold  [DON’T JUST GET CLEAN, GET REALLY CLEAN WITH BOLD TWO IN ONE]

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