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Don’t turn around

 

I’m going to write about the appeal reported on Friday which revolved around judicial misconduct.  I’ve been beaten to it by both Pink Tape and Civil Litigation blog here http://www.pinktape.co.uk/rants/judicial-conduct-what-about-the-context/    and here  https://www.civillitigationbrief.com/2019/10/25/appeal-allowed-when-the-trial-judge-overstepped-the-line/  respectively.

 

So I’m not going to go into as much detail on the background as they do.  Their pieces are both very good, so read those when you’re done.

C (A Child) (Judicial Conduct) [2019] EWFC B53 (16 October 2019)    

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B53.html

 

 

A District Judge (DJ Mian) in Birmingham decided a care case after a 5 day final hearing. The Judge granted an placement order for the child, M, who was 1.   M had an older sibling, N, who was already the subject of a Care Order (to a different Local Authority) and was in residential care though possibly moving to a grandmother in due course.

At the hearing, the parents accepted that they could not care for M.  The only options were adoption or placement with the grandmother.  The placement with the grandmother was complicated, because it depended in part as to whether N was going to go to live with her.

The judgment was 38 pages and very detailed. The Judge hearing the appeal, HHJ Rogers   (one of the most courteous barristers I’ve ever met, a really lovely man)  noted that the judgment was thoughtful and careful and

The legal exposition, read in isolation, could not possibly support an arguable case that there was a misdirection.

 

The appeal, however, was largely based on judicial misdirection that the Judge had really been deciding about the plan for M whilst thinking too much about the plan for N (a child with whom she was not charged with considering) and judicial misconduct.

In essence, the Guardian had been saying at final hearing, you shouldn’t rule out placing M with the grandparents just because N is going there, because N  has problems that might mean the plan to put him with grandparents never happens.

  1. In the course of the Guardian’s examination in chief the Judge intervenes (E222):
  2. “No, there are two things going on here and this is what has, forgive me, with the greatest respect, seems to have, confused the front bench completely. There are two things going on here. One is the actual plan for N and that is to return home. And there were several attempts to go behind that plan which I have fairly robustly drawn an end to on the basis that you cannot go behind that plan. There are three ways of looking at it. The second is the reality and, as I said to everybody, in particular the grandparents, they may be absolutely right that N never comes home. But because we have the plan for him nobody can say that with any certainty.”
  3. Mr Bainham submits, in my judgment, with great force that if the Judge herself acknowledged the uncertainty of the situation, it was wrong of her to assume the absolute position of the care plan without exploring the contrary and worse it was wrong of her to shut down and ultimately extinguish argument on the point. The explanation, he submits, is that the Judge became distracted by N’s position to the point where she felt it her responsibility to promote it over M’s. In my judgment, there are many examples in the evidence of the Judge’s approach becoming less focussed on M’s welfare than it should. At E230, the Judge intervenes in the questioning of the Guardian again and in a lengthy passage she speaks of “competing plans” and sets out forcefully the implications for N if his plan is overridden. Later at E242, still ostensibly in the course of the Guardian’s examination in chief and clearly exasperated the Judge says:
  4. “No. No. No. Oh my God, I am sorry. I am sorry. I am really sorry. I am going to try one more time and then we are just going to carry on with the hearing. I do not know how many ways in which to say this. I cannot interfere with N’s plan.”
  5. The difficulty with that interjection, as Mr Bainham submits, is that no party was suggesting the Judge could or should interfere with the plan. Simply she was being asked to bear in mind the reality that there was credible evidence (counsel refers to it in his Skeleton Argument in detail) that the likelihood was that the plan would never be implemented.

 

[By the time the appeal came about, the LA responsible for N had changed their plan from placement with grandparents to accepting that his needs were such he needed to stay in residential care – the outcome posited by the Guardian and rejected by the Judge had come to pass]

However, more than this, it appears that the Judge just became increasingly exasperated by the position of the Guardian and was unafraid of showing it.

 

  1. It is axiomatic that a trial should be fair. That is at the heart of our system, is common sense and is enshrined, in any event, in Article 6. Fairness does not mean that a Judge should indulge every point and should never intervene to clarify or curtail as appropriate. Care proceedings can quickly become unwieldy with large amounts of unnecessary or marginal material in documentary form. Issues are often imprecisely defined so that analysis becomes vague, repetitive or incoherent. It is the Court’s duty to identify the key issues and to focus attention on them. Oral testimony can easily become unfocussed with a mixture of fact, assertion and opinion. Time estimates can become quickly untenable if a firm hold is not maintained. In short, the need for firm case and trial management is not only desirable but essential.
  2. In every case there is a line which should not be crossed. It is difficult, in advance, to identify the precise position of that line but it may be easy to see when it has been crossed.
  3. The criticism of the Judge is really two-fold. Not only, it is said, she shut down consideration of a central issue rendering it impossible to have a fair hearing but, further, that her conduct of the hearing and her own demeanour in Court made the atmosphere so difficult that all of those involved in the process were prejudiced.
  4. I have already dealt extensively with the Judge’s erroneous approach, as I have found it, to the central issue. She effectively prevented a proper debate. By intervening as she did, she distracted everyone from the proper focus. Even if she had her misgiving about the relevance or practicality of the discussions, she should, in my judgment, either have held back expressing a concluded view until her judgment or resolved the matter, subject to appeal rights, at an interlocutory stage. What actually happened was the worst of all possible worlds as the point was debated over and over, mainly by the Judge and Ms Hobbs, with no satisfactory resolution.
  5. Of much more worrying effect are the criticisms of the Judge’s demeanour. I do not regard it as necessary or fruitful to read significant amounts of the transcript into this judgment. In her Grounds of Appeal Ms Hobbs refers expressly to the Judge’s improper conduct as being exemplified by “blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.
  6. I could analyse each of the matters referred to but need not as, sadly, I am satisfied they are all well-founded. I myself listened to the recording and heard, with dismay, the anger and tension in the Judge’s voice. I also heard her banging her desk. Her exchanges with Ms Hobbs were sharp and substantially inhibited counsel from doing her job.
  7. The Judge’s frustration, to use a mild word of description, seems to have stemmed from her view that the Guardian’s analysis was non-existent or deficient. The Judge felt that the Guardian had not grappled with the central issue of the case, namely the interplay of care plans. Whether this is right or wrong, Ms Hobbs submits that her treatment of the Guardian was unacceptable. The matter came to a head when the Guardian gave her evidence. The Judge permitted examination in chief but then effectively prevented counsel from conducting it. It was, in my judgment, wholly unsatisfactory and degenerated into a critique of the Guardian’s perceived failure of approach. Perhaps a good example of what went wrong is to be found at E245-247. Over the course of those 3 pages the Judge effectively cross-examined the Guardian as if she were representing another hostile party. In my judgment, there and in many places elsewhere the Judge went far beyond clarification or amplification and descended into the heart of the arena.
  8. In her judgment (A33, para 135), the Judge records the Guardian’s recommendation as a final care order and placement order. That is in contrast to paragraph 134 where she said she stood by her recommendations. In my judgment, it is clear that the Guardian was inhibited from explaining her position fully because of the Judge’s apparent hostility. In the end the Judge stated (A41, para174) that “I do not take into account the evidence of the Guardian”. Read literally that is a clear error. Even if she does not precisely mean what she appears to say, she plainly discounted the view of the Guardian. I am driven to the clear conclusion that, ironically, the quality of the Guardian’s evidence was severely diminished by the Judge’s own interventions.
  9. Family proceedings should not be unnecessarily adversarial. One important function of a Judge, in a quasi-inquisitorial jurisdiction, is to help the witnesses give their evidence in a clear and unflustered fashion. Of course, points can be questioned and tested but not, in my judgment, to an extent that a witness is unable properly to fulfil his or her role. This, it seems to me, is all the more so in care proceedings when a Guardian is trying to explain her professional view to the Court. Here, Ms Hobbs reported that the Guardian felt considerably stressed and upset to the extent that her answers towards the end of her evidence became flat and virtually mono syllabic. It seems to me that the transcript broadly bears that out.

 

Just to repeat the key passage here

 

“blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.

 

I think over the course of a long career in Court, everyone has the experience of inadvertently exasperating or irritating a Judge and it always makes you feel dreadful.  I had a time practising in the West Midlands, and there were certainly Courts in Birmingham where I would feel apprehensive, nervous and sometimes physically unwell before going in, knowing that the judicial style amongst certain Judges was overly robust  (for those who know, the words “Humpty Dumpty” will ring vividly in the memory) so advocates in Birmingham don’t tend to be thin skinned, but this is unspeakable and unacceptable.

 

[In another part of the country and a very long time ago, I’ve had a Judge throw volume 2 of Hershman’s at me during a hearing. It is quite a thick volume, in a hard cover.  Thankfully he missed and it hit my completely innocent opponent]

The grandparents, who were in person during the hearing, were rightly appalled by what was happening.

  1. Equally worrying is the letter that the grandparents sent to the Guardian before judgment was delivered which is reproduced at A53. I suspect the grandparents anticipated the probable outcome of the case, but I get no sense that the letter was written with any ulterior motive or to gain strategic advantage. The material passages read:
  2. “1. I would like to recognise and give thanks for the care and consideration we received from Judge Mian whilst dealing with us personally throughout the week. However, we found the rest of the hearing highly distressing.

3. I wish to object to the constant barrage of interruptions aimed at professional witnesses and barristers questioning them………This in my mind brings into question the impartiality of the proceedings.

4. The way the Children’s Guardian was questioned by the Judge for most of the day was in my view very wrong and particularly harrowing for both her and us. This seems particularly unprofessional.”

  1. This letter encapsulates the tragedy in this case. I have no doubt that the Judge was desperately trying to move a difficult case forward. I am sure she believed that the family members and the Guardian had missed the point about N’s care plan and hoped to persuade them to see the reality as she perceived it. I am also sure, as the Judge said more than once and as the grandparents seem to have appreciated, that she had nothing but sympathy for their position. Yet, by the insistence of her position and her apparent refusal to listen to the contrary arguments before making a reasoned judgment, she not only derailed the substance of the hearing but created an atmosphere where completing a fair hearing became impossible. She seems to have alienated even those whom she sought to praise and encourage.

 

Counsel for the Guardian had attempted, during the hearing to draw attention to the problem that was developing, but was given short shrift.  (Has anyone ever been given ‘long shrift’? I wonder idly)

 

The difficulties surrounding this hearing must have been obvious. It is of significance that they were mentioned explicitly. At E247 Ms Hobbs says “Madam, if I am frank, I am a little concerned about the atmosphere in the Courtroom. I really am and I do not know………”. The Judge intervenes; “Well, please do not be.” Later, Mr Bainham, although acting for the mother, informs the Judge on behalf of the unrepresented grandmother, who he has been told is highly distressed and will not re-enter the room, at E265

 

 

The Local Authority stance at the appeal was of interest

 

 Birmingham City Council (LA B) takes a more nuanced approach. But for the factual change of circumstances, to which I will turn, it would have been inclined to resist the substantive appeal. As to the procedural appeal, it indicated it preferred to make no detailed submissions, adopting a broadly neutral position. I expressed mild surprise at that stance but, upon reflection, having heard Ms Julyan SC explain the sensitivities and importance of the working relationship between LA B and the Court, I understand why it does not wish to associate itself proactively with the more severe criticisms of the Judge’s conduct of the case.

 

 

The appeal was granted, the Judge would have directed a re-hearing, but because the position with N had changed, by the time of the appeal the LA were no longer seeking a placement order for M and thus the plan became placement of M with the grandparents. So a happy ending.

Tag -you’re it (or not)

 

 

This is a Court of Appeal decision in which the Court of Appeal were asked to find that the Judge had been wrong to make Interim Care Orders rather than the option of placing an electronic tag on father to keep him away from the children and also to give general guidance on the applicability of electronic tagging in care proceedings.

 

J-S (Children) [2019] EWCA Civ 894 (24 May 2019)    

https://www.bailii.org/ew/cases/EWCA/Civ/2019/894.html

 

  1. On 15 March 2019, Oxfordshire County Council removed five children from their mother under an emergency protection order. Interim care orders were then obtained and the case was listed for a contested hearing before Her Honour Judge Owens on 10 April. The threshold for interim orders was not disputed, but the local authority’s plan to keep the children in foster care was. The judge continued the interim care orders and listed a fact-finding hearing for three days on 29 May. The father of the youngest child challenges that outcome on two grounds. The first concerns the justification for making the orders: the judge refused permission to appeal, and this court’s permission is now sought. The second ground of appeal, for which the judge herself gave permission, concerns the power to order electronic tagging in a case of this kind.
  2. The background is that in 2009 the father (as I shall call the appellant) was found to have caused 17 fractures to a baby son by a previous relationship. In 2012, he was sentenced to 33 months imprisonment for inflicting grievous bodily harm on the child and for neglect. In mid-2017, he began a relationship with the mother of the older four children. The local authority told the mother about the father’s history and a written agreement was made which barred him from attending the family home. In January 2018, a psychiatric report advised that the father posed a serious risk to any child and that he is not treatable. In May 2018, the local authority issued proceedings in relation to the older four children on the basis of neglect and failure on the mother’s part to protect them from unsuitable adults. That summer, the youngest child was born. In October 2018, a social work report on the father referred to his “eruptive anger”. In December 2018, the court made a supervision order for 12 months on the basis that the children would remain with their mother. The parents and the local authority made a written agreement that the father would have no unsupervised contact.
  3. In March 2019, two of the children made statements that the father had been staying at the family home, and this was apparently corroborated by one of his former partners. The children were then removed under the emergency protection order. The parents accepted that the threshold for intervention was met because there were reasonable grounds for believing that the father had been at the home, but they denied that it had in fact happened. That issue, which is central to the current proceedings, will be resolved at the imminent fact-finding hearing.
  4. Ahead of the contested decision, both the mother and the father offered to be tagged so that their physical separation could be monitored, allowing the children to return to their mother. Information from Electronic Monitoring Services, the agency responsible for tagging, was gathered. The matter came before the judge on 5 April, when there was no time for it to be heard. It was appreciated that only a High Court judge could make a tagging order, but Judge Owens directed that at a hearing fixed for 10 April she would conduct the welfare evaluation and refer the making of a tagging order to a High Court judge if she concluded that such an order should be made in principle –a course of action that was in itself not without potential difficulties in my view. She also invited the Ministry of Justice to attend the hearing, or to provide written submissions on the question of who would bear the costs of tagging.
  5. By agreement, the hearing on 10 April was decided on submissions. The parents pressed the issue of tagging, saying that it would sufficiently mitigate the risk of what was accepted to be severe harm. The local authority argued that the risks were not manageable because, even with tagging, the father could lose his temper quickly and before help could be mobilised. A letter was received from HM Prison and Probation Service (part of the MoJ) explaining the parameters and procedures for tagging. The author stated that the MoJ would not be responsible for the costs of tagging and monitoring and expressed the view that the case was for a number of reasons unsuitable for a tagging arrangement.

 

 

Obviously if the MOJ aren’t paying the costs of tagging, you can’t conceive of the Legal Aid Agency agreeing that tagging constitutes an assessment so the legal aid certificates can’t pay for it.  That leaves everyone looking meaningfully at the Local Authority, who at that point slap Kent County Council v G 1996 on the table and say “well, if you think this is an assessment whose primary focus is the child, so it comes within s38(6) good luck with making that argument’

 

Anyway, the Court of Appeal decided that there was no question of the Judge having decided the ICO wrongly

 

Ground 1

  1. The first matter for decision is whether permission to appeal should be granted on ground one. As to that, Mr Devereux submits that the judge’s overall assessment of risk was flawed. She directed herself with reference to authority on the need to consider the gravity of the likely harm, the likelihood of harm occurring, and the availability of protective measures. She was entitled to find the gravity to be serious, but she did not properly consider the likelihood of it occurring. She placed too much weight on the threshold concession, and did not take account of the fact that the parents denied breaking the agreement. Nor did she properly weigh up the protective possibilities of tagging. Had she done so, she would have been bound to refuse the application for interim care orders. Instead, she was unduly influenced by expressions of opinion in the letter from the MoJ.
  2. In response, Mr Geekie and Ms Scriven argue that the judge was right about the risks and the inability to mitigate them.
  3. I am in no doubt that the judge was right to refuse permission to appeal and that we should do likewise. The judge approached the issue correctly in law in a case in which the threshold was crossed. Moving forward, she carefully evaluated the risks and was fully entitled to find that even if tagging could be put in place it would be insufficient to mitigate them. Reading the judgment as a whole, it is plain that she considered that there was a significant likelihood of unsupervised contact taking place in the future. The evidence for that was amply sufficient for a risk assessment at the interim stage. There is no sign that she placed undue weight on opinions expressed in the MoJ letter, as opposed to its basic factual contents. Furthermore, this court will rarely interfere with an interim order, all the more so where in this case the central disputed issue is just about to be resolved. There is no prospect of this court finding the interim care orders were wrongly made. We therefore informed the parties during the course of the hearing that permission to appeal on this ground would be refused.

 

On the issue of an appeal for the Court to give general guidance, i.e an academic appeal, the Court of Appeal say “mmmmm, no”   and tell us about a case called  “Popdog”, which is my new favourite case name – replacing     Wombles v Womble Skip Hire (skips for collecting rubbish branded Womble, injunction refused) [1975] FSR 488

 

https://suesspiciousminds.com/2015/01/23/rihanna-youre-a-womble/

 

Ground 2

  1. Turning then to the appeal on ground two, the local authority and the Guardian submit that the court should not entertain it as it is academic in the light of the judge’s core decision that she would not order tagging in any event. For his part, Mr Devereux advanced this ground of appeal with moderation in the light of the outcome on ground one.
  2. In relation to academic appeals, we have been referred to the statement of principle in Hutcheson v Popdog Ltd. (Practice Note) [2012] 1 WLR 782, where Lord Neuberger MR held that, save in exceptional circumstances, this court may only entertain an academic appeal where three conditions are met: (1) where the appeal raises a point of some general importance; (2) where the respondent agrees to it proceeding, or is at least completely indemnified on costs or is not otherwise inappropriately prejudiced; and (3) where the court is satisfied that both sides of the argument will be fully and properly ventilated.
  3. Here, none of the conditions for hearing an academic appeal is satisfied. In the first place, this court is not aware of any pressing request from judges or practitioners for further guidance at this stage on the availability of tagging in cases of the present kind. In Re X & Y (No. 1) [2015] 2 FLR 1487, Sir James Munby P reviewed the availability of tagging in a case involving feared travel to Syria. At paragraphs 80-85 and 100 he referred to previous authority and to the HMCTS guidance, which notes that orders may only be made in the High Court and that states the question usually arises where there is a real risk of abduction. He noted that cases raising the issue of tagging are infrequent. At this hearing, we were referred to just four reported cases since 2003 and an anecdotal account of one other case. I do not consider that there is a pressing need for guidance on electronic tagging from this court at the present time. Cases where the issue may arise will be unusual and the decision will be case-specific.
  4. As to Lord Neuberger’s second requirement, the local authority and the Guardian do not consent to the appeal going ahead and there is no realistic form of costs protection that could be devised. Mr Geekie argues with good reason that it would be particularly inappropriate for guidance to be formulated without a real-life context that raised the hard practical issues that would have to be confronted.
  5. Thirdly, for the issue to be fully argued out, the court would need to hear submissions from the Ministry of Justice and the Legal Aid Agency and possibly from other organisations as well. The expense and delay of an adjournment for this to happen would be disproportionate.
  6. Returning to the present case, the priority now must be to further the children’s welfare by conventional means, rather than digressing into subsidiary issues such as tagging.
  7. For all these reasons, as we informed the parties at the conclusion of the hearing, we decline to offer further guidance on electronic tagging and we dismiss this appeal.

 

If you are going to proffer electronic tagging as your solution in care proceedings, you’re going to need to show

 

(a) How you will get one and how you will pay for it

(b) How it will work – i.e who is up 24-7 monitoring it and sounding the alarm bells if the two tags begin beating with just one mind

 

 

Good luck.

 

 

[Quick edit- the Court of Appeal also remind the judiciary that whilst it is right and appropriate that the trial Judge is asked for permission to appeal, the Court of Appeal greatly prefer that they say ‘no’ and leave that up to the actual permissions judge at the Court of Appeal.

  1. Lastly, I note that after what was otherwise a very proper decision, the judge was persuaded to grant permission to appeal on the basis that there was a compelling reason for the appeal to be heard. The outcome of the appeal shows that it would have been preferable for the judge to have left the issue of permission to appeal on ground 2 to this court, as she did with ground 1.
  2. CPR r.52.3(2) and its equivalent for appeals within the Family Court, FPR 30.3(3), provide that an application for permission to appeal must be made to the lower court at the hearing at which the decision to be appealed was made or to the appeal court in an appeal notice. It is good practice to make the initial application to the lower court: Re T [2003] 1 FLR 531. Under CPR r.52.6(1) and FPR 30.3(7) permission to appeal can only be given where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason for the appeal to be heard. So there is no doubt that the father was right to apply to the judge and that she had the power to grant permission to appeal. However, permission is rarely granted by the trial judge in a family case and there are good reasons for that. As Thorpe LJ put it in Re O (Family Appeals: Management) [1998] 1 FLR 431:
        1. “Exceptionally, there are family appeals that raise a difficult point of law or principle. There the judge at first instance may well wish to grant leave himself. But if the proposed appeal seeks only to challenge the exercise of his judicial discretion in a family case, it would generally be helpful to this court if the judge at first instance was to leave to this court the decision as to whether or not the appeal should be entertained.”

A similar point was made by Butler-Sloss LJ in Re R (A Minor) [1996] Lexis Citation 2264:

“This was undoubtedly a very difficult case. But in an impeccable judgment, the Judge was in error on one matter only. He should not have granted leave to appeal. … In this sort of case it is particularly important that leave to appeal should not be granted because it only gives to the appellant a false hope in a hopeless appeal.”

  1. Here, the judge gave permission under the “compelling reason” limb. In my view, there is a need for at least as much, and possibly more, caution on the part of a first instance family judge when deciding whether to grant permission to appeal under that limb as under the first limb, particularly where there is a possibility that the appeal may turn out to be academic. Overall, judges should not be deterred from exercising their power to grant permission to appeal in a proper case: where, for example, the decision has turned on a choice of conflicting authorities, or where for some reason it is likely that this court would grant permission to appeal itself, or where an immediate permission decision has clear advantages. But in most cases it would be better for a decision to grant permission be left to this court as, apart from anything else, significant and avoidable costs may be run up by the parties having to prepare for a full appeal.

 

Not a vacuum but a low pressure vessel

 

The case of

            CS v SBH & Ors [2019] EWHC 634 (Fam) (18 March 2019)    

https://www.bailii.org/ew/cases/EWHC/Fam/2019/634.html

is the most complicated argument that I have read in a family law judgment that doesn’t contain the words “Brussels II” at some point.  It also involves David Burrows in some capacity in the litigation, and David is an assiduous and careful legal commenter and one of the most precise human beings I’ve ever known, so that adds to my pressure in trying to simplify and clarify the decision without getting it wrong.

 

In case that’s prompting you to close the browser and eat some biscuits instead – it is an important decision for any solicitor representing a child, or Guardian, or a parent’s lawyer giving advice as to whether the child could be separately represented.  It also involves two children’s solicitors duking it out over which of them would represent the child, which is not something I’ve ever seen before. Read on.

 

At essence, it was an appeal from a private law order that the child should live with the father, the child expressing that she wanted to live with the mother.  The child lodged the appeal, but one of the solicitors for the child was actively opposing the appeal.  (Yes, that dull pain around your temples is normal at this point)

The child had two solicitors.

One instructed by the Guardian, who considered that the child did not have capacity to instruct a solicitor (and hence could not bring this appeal properly, as the Guardian had not given instructions to lodge such an appeal)

One instructed by the child directly (and who was acting pro bono (for free) , because she was concerned that the original proposal was that the mother was funding the child’s legal fees) who considered that the child DID have capacity to give instructions, wanted to appeal the order and so the appeal should be heard.

So the first thing for the Court to work out was which of these two solicitors was actually representing the child. If the child had capacity, it would be Ms Hopkin.  If the child lacked capacity, it would be Ms Coyle.

 

But even beyond that, the Court had to at great length decide whether an appeal was a continuation of existing proceedings or fresh proceedings.

 

  1. After all those preliminaries we were able to get onto the question of the preliminary issue. I had thought that some oral evidence from Ms Hopkin and Ms Coyle might be desired but in the event Ms Hopkin was appearing as the advocate and in any event no party wished to put questions to either Ms Coyle or Ms Hopkin and so the matter proceeded on submissions. As arguments developed this appeared to boil down to two particular issues:
  1. i) Firstly whether an appeal constituted new proceedings, such that the provisions of FPR 16.6 (3) applied, in which case Ms Hopkin’s opinion on whether the child was able having regard to her understanding to give instructions in relation to the appeal appeared to be determinative.

ii) Secondly if the appeal was part of a continuation of proceedings whether pursuant to FPR 16.6 (5) and (6) the court considered that the child has sufficient understanding to conduct the appeal concerned without a children’s Guardian. This involved consideration of both the law and the evidence.

  1. As I shall return to later this apparently clear delineation between the role of Ms Hopkin and the role of the court turns out not to be so following a deeper dive into the authorities.

 

(I’m pleased that it was ‘apparently clear’ to Williams J, because this caused me such pain in my cortex that I had to contemplate an MRI scan before moving on.  But joy, it turns out NOT to be so ‘clear’)

 

In a nutshell, if the case is new proceedings, then the child instructs a solicitor Ms Hopkins, and if Ms Hopkins thinks the child can give her instructions well then what Ms Hopkins says effectively goes on capacity. But if it is a continuation of proceedings, the Court has to consider whether the child has sufficient understanding to instruct solicitors.

So is an appeal new proceedings, or a further stage in existing proceedings?

 

  1. The following matters suggest that an appeal is fresh proceedings:
  2. i) The appeal is made in the High Court not in the family court and is allocated a specific number. It is made by an Appellants Notice not a C2 ‘Application in existing proceedings.’

ii) Legal Aid treats proceedings with a different case number as ‘new proceedings’ and an appeal after a final order is not covered by the same certificate.

iii) Cost are dealt with separately.

  1. The following matters suggest that an appeal is part of a continuum of proceedings:
  1. i) An application for permission to appeal may be made in either the lower court or the appeal court. This suggests the appeal process is linked as between the lower court and the appeal court.

ii) The appeal court has all the powers of the lower court (FPR 30.11)

iii) The appeal court’s powers directly affect the order made by the first instance court, including the power to vary any order or judgment, refer any application or issue for determination by the lower court, order a new hearing (FPR30.11 (2) and stay the order of the first instance court. These all suggests a direct jurisdictional connection.

iv) The appeal court’s function is identified at FPR 30.12 is reviewing the decision of the lower court unless it considers it to be in the interests of justice to hold a rehearing.

v) The appeal court powers include substituting its own decision or exercising its own discretion fresh rather than remitting the matter to the first instance court; Fallon v Fallon [2010] 1 FLR 910 CA. The court may also admit fresh evidence and may hear oral evidence.

vi) The respondents to the appeal are the other parties to the proceedings in the lower court (see FPR 30.1 (3)) and the appellant’s notice must be served on any children’s Guardian.

vii) Where a child is a party to the first instance proceedings they are automatically a party to the appeal proceedings the rules do not provide for the court to reconsider their party status or whether they will be represented by a Guardian and who will be appointed as the solicitor.

 

  1. Notwithstanding the points which point towards an appeal being separate proceedings I conclude that the factors pointing in favour of an appeal being a continuation of proceedings are far more compelling. In particular the seamless continuation of party status and the powers of the appeal court all point to an appeal being another stage of proceedings; albeit different in nature. I don’t consider that the use of an appellant’s notice, rather than a C2, shed much light on the issue. Applications in existing proceedings can also be made by the use of other forms under the part 18 procedure. Seems to me the appellant’s notice and the giving of a separate case number are administrative matters rather than affecting the substance of the proceedings. Nor do I consider the rules relating to the availability of legal aid shed much light on whether the proceedings are separate or part of a continuum. The rules applied by the Legal Aid Agency are a matter for that agency.
  2. For all of the reasons identified above I conclude that an appeal is a continuation of the first instance proceedings. It is another step or stage in those proceedings and thus the provisions of FPR 16.6 (5) apply.
  3. That being so it is for me to decide whether the child has sufficient understanding to conduct the appeal proceedings without a Guardian.

 

 

(The Court also took the view that as a result of Re CT the Court ultimately had discretion anyway, so all of that was rather academic, but at least we all now know that an appeal is a continuation of existing proceedings, not new proceedings)

In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA Court of Appeal (Sir Thomas Bingham MR, Waite and Staughton LLJ) specifically considered the effect of the identically worded predecessor to FPR 16.6 (3) (b)(i) namely FPR 1991 9.2A (1) (b) (i). The Court of Appeal considered that taken together with FPR 1991 9.2A (10) that the court retained the ultimate right to decide whether a child required a Guardian or not. Lord Justice Waite said

‘…if the rule is to be construed according to the whole tenor of the Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor’

 

 

Moving on then, as the Court had to decide whether the child had sufficient understanding to instruct a solicitor, what did they take into account?

 

 

 

  1. Having regard to the jurisprudence I consider that Lady Justice Black’s summary in paragraph 36 of her judgment in Re W (highlighted above) draws together much if not all of the earlier observations on the issue. What is clear is that there has been a shift away from a paternalistic approach in favour of an approach which gives significantly more weight to the autonomy of the child in the evaluation of whether they have sufficient understanding. Thus the earlier authorities need to be approached with a degree of caution in terms of the level at which they set the ‘bar’ of understanding. The autonomy issue sounds both in pure ‘understanding’ terms and in welfare terms.
  1. i) In assessing understanding the court is likely to attribute more weight to the child’s views of the issues and the reasons they give for wishing to be involved amongst others. The expression of a wish for an objectively ‘unwise’ (or unsound) outcome might now not undermine the evaluation of sufficient understanding in the way it might have in 1993. It is perhaps also likely to hold the child to a somewhat lower expectation of understanding of the litigation process than emerges from Booth J’s judgment cited in Re N (above) which appeared to contemplate an ability to negotiate complexities of litigation which many adults might struggle with.

ii) In so far as the welfare of the child is a primary consideration in the decision-making process (Art 3 UNCRC and Mabon suggest it is) the welfare of the child sounds both in favour of their involvement (recognising the value they may add to the process and their rights as a person significantly affected by the decision) and against (where involvement may expose them to harmful emotional consequences).

  1. Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including
  1. i) The level of intelligence of the child

ii) The emotional maturity of the child.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. Some degree of influence is a natural component of decision making but the closer to the ‘parrotting’ end of the spectrum one gets the lower the level of understanding there is likely to be. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.

  1. Ideally the assessment would be swift and pragmatic without too deep a dive into the issues in the case and the competing analyses of the solicitors involved. In some cases, an expert assessment might be required in particular where the solicitors assessments are relatively evenly balanced or the court is otherwise unable to reach a clear view

 

 

In this case, the Court had two solicitors, both experienced at representing children, and both with competing views as to whether the child had capacity to instruct them.

Discussion

  1. Each case must be approached on its own facts. The stage at which I am assessing the issue of sufficiency of understanding comes relatively late in these proceedings where an experienced family court circuit judge has already determined the substantive issue and made findings which are relevant to my evaluation of the sufficiency of the child’s understanding.
  2. The views of Ms Hopkin on the one side and Ms Coyle on the other are diametrically opposed. There is however an immediate and obvious difference between them. That is not the age and experience of the solicitor conducting the evaluation but rather the extent to which the evaluation is an informed evaluation. Ms Hopkin’s evaluation is based primarily on her meeting with the child supported by what she can glean from communications that she has had with the child or which she has been sent by the child and some other modest exposure to information. Although her evaluation has not taken place in a vacuum it is very much in a low pressure vessel in terms of the material that has been available to her to assist in the evaluation. Ms Coyle’s evaluation has been taken with exposure to the full atmosphere of information which bears upon the issue. As Ms Hopkin accepted in submissions, an initial evaluation of a child may very well have to be reassessed the light of further information that becomes available. This is far from a simple case given the history of it. Thus initial impressions almost certainly would have to be reassessed.
  3. Turning thus to some of the factors which I need to weigh in the balance in making my own evaluation of whether this child is of sufficient understanding to conduct the appeal without a children’s Guardian my conclusions are set out below and draw upon all that I have set out in this judgment as well as what I have read and heard.
  1. i) The level of intelligence of the child: she has the intelligence of or slightly above her chronological age.

ii) The emotional maturity of the child: she lacks emotional maturity, this being evidence by an inability in particular to hold a balanced view of her father or an understanding of her position.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state: the extent of her enmeshment with her mother and the emotional harm that she had suffered from that is likely to diminish her ability to understand the true nature of the issues.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role: I accept that the child has felt her voice has not been listened to or heard but that actually does not reflect the reality given that she has had a Guardian and solicitor both in the original proceedings and recently. Whilst inevitably her reasons for wanting to have a solicitor and appeal will be mixed, arising at least in part from the fact that her solicitor and Guardian did not achieve the outcome she desired I consider that it is also likely that her position has been influenced by her mother and maternal family either directly or indirectly. Although every child is of course different the fact that this child has not been in direct contact with Mr Burrows or Ms Hopkin pushing for information, seeking answers or otherwise proactively pressing her case indicates to me that her desire to have her own solicitor in Ms Hopkin and to pursue the appeal is not particularly strong. Her acceptance of the possible withdrawal of proceedings in summer 2018 is further evidence of this.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position: the child’s lack of a full appreciation of the reasons for living with her father in part at least arises from the fact that the issue has not been addressed in therapy although I note that the Guardian understood that the child had knowledge of the reasons but had not processed it. The child’s wish to live with her mother was accepted by the Guardian and HHJ Meston QC as a genuine one. Inevitably it is in part a product of influence (whether direct or indirect and see HHJ Pearl’s conclusion) but all our views are in part a product of influence of others views. The child’s wishes in this case are closer to the authentic end of the spectrum than the parroting end although they probably fall closer to the middle.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation: Ms Coyle’s analysis but also the contents of some of the child’s expressed views whether in letters or to the Guardian do not indicate much of an understanding of the court process, the functions of a solicitor, the role and function of a judge or the consequences of having a solicitor acting directly. They emerge as very simplistic and unrealistic. Although neither Ms Hopkin or Ms Coyle specifically addressed the question of the child’s understanding of the appeal process, the nature of an appeal is in many ways harder to understand than the first instance process given it is a review of the judge’s decision rather than a rehearing of the application.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm: both the Guardian and HHJ Meston QC considered that the child would accept an outcome that was contrary to her expressed wishes. It is clear from the Guardian’s report that continued litigation is contrary to the child’s welfare. In particular the burden that it is considered that she carries to promote the mother’s position is harmful. Further involvement in litigation in this appeal or otherwise will likely be contrary to her welfare interests. Exposure to sensitive information to a child of this age and with this history will be harmful. Although her actual involvement in this appeal might be limited the process of challenging the judgment would inevitably involve detailed discussions with the child about the evidence. On the other hand, she has expressed a desire to have Ms Hopkin act for her and to appeal. This has endured since HHJ Meston QC’s adverse judgment. However it is not pressed proactively and the Guardian and Ms Coyle did not detect any real desire to appeal in any event. Thus preventing the child from engaging directly in this litigation with the effect that it would very probably bring the appeal to a juddering halt is not likely in my view to be perceived by the child as a significant insult to her autonomy as an individual.

  1. Giving all due weight to the child’s personal autonomy and having regard to the welfare implications of her not being able to instruct a solicitor to pursue her appeal overall and taking account of all of those matters which weigh in favour of the conclusion that she does have sufficiency of understanding I am quite clear that the factors which support the conclusion that the child does not have sufficient understanding substantially outweigh those pointing the other way. Inevitably the evaluation is more an art than a science and the weight to be given to each component cannot be arithmetically totted up. The overall impression that clearly emerges is one of a child who does not have sufficient understanding to conduct the appeal without a children’s Guardian. That is not to say that Ms Hopkin’s initial evaluation was wrong; it has to be looked at in the light of the totality of the material available. The test in FPR 16.6 (6) is not met. My conclusion would be the same as if I were considering the test under 16.6 (3) as to whether the child is able having regard to her understanding to give instructions in relation to the appeal.

 

 

Extension of the proceedings for 6 months

 

I have to say that when I first read Re P (A child) 2018  I thought it was of limited interest and value and incredibly fact-specific, but I am aware that this is not how it is being viewed by some, and therefore felt it might warrant a blog post.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1483.html

 

This is a Court of Appeal decision from an original decision from Her Honour Judge Probyn (who used to sit in my local area, and whom I like)

 

At the time of the final hearing, the child was 7 months old.  There were two older children who had been removed as a result of mother’s alcoholism and findings that the mother had told significant lies during those proceedings.

 

The mother, who had been a long-standing alcoholic, was seeking an extension of the proceedings for six months.  HHJ Probyn refused that and made a Placement Order,  mother appealed.  It is a very unusual set of facts, in that by the time of the final hearing, the mother had been abstinent for 13 months  (i.e she had got dry when she learned of the pregnancy and was still dry at the time of the final hearing.  The expert in the case had spoken about having a reasonable degree of confidence that abstinence could endure after an 18 month period (which is not that uncommon, and hence why mother was seeking a further 6 months to show that she could continue to maintain abstinence)

 

My immediate ball-park feeling is that the right outcome in the care proceedings would have been to make a Supervision Order, with further testing, and the case to be brought back to Court if mother relapsed, rather than continue with ICOs for a further 6 months.  I can’t think of a case I’ve ever had where a parent had 13 months of abstinence where a plan of adoption would have been granted.

 

(Hence my original view that the case was so fact-specific that it would be of no wider value)

 

By the time the appeal was heard, the 6 months had passed (of course) and mother had maintained her abstinence, so the appeal was always likely to succeed (and appealing on ‘give me more time’ became rather nugatory).

In terms of the adjournment

  1. For the purposes of considering whether or not the mother could make the necessary changes within the child’s timescale, the period in question is a delay of six months in relation to a baby of seven months of age.
  2. The courts are often faced with cases where the judge is told that some sort of therapy may result in a mother being able to parent her child, which therapy has not yet begun and will take an indeterminate period, often 18 months to 3 years. I accept that in such a case a plea for ‘more time’ by a mother serves no purpose but to put off the inevitable, to the detriment of the child in question.
  3. This court was faced with a very different situation. Not only had the mother been abstinent for 13 months but, in contrast to her earlier period of abstinence, she was, even on the local authority’s own case, now energetically cooperating with the follow-up. More importantly, there was an a new, and genuine, acceptance by her and insight on her part into both her alcoholism and its impact upon her child’s welfare.
  4. This proposed adjournment therefore not only tests out the mother’s ability to remain sober for the further six months, but also to judge her continued commitment to AA and the specialist rehabilitation service and to see whether the personality stability which had come with sobriety would be maintained. Most importantly from the local authority’s point of view, the adjournment would give the local authority and Dr Hallstrom an opportunity to see if the developing insight shown by the mother was capable of developing into an honest working relationship with the local authority such that, in the event that the mother has a “setback”, (which is by no means to be ruled out) she could be trusted to seek help in the interests of L.
  5. In my judgment there was a clear purpose in the adjournment, namely whether, within L’s reasonable timescales, the mother could capitalise on the considerable progress she had made such as to allow L to live with her mother. The outcome at the end of a further six months was not as the judge believed, inevitable and I am satisfied that, on the evidence before the court, there was a sufficient prospect of the court being in a position to decide that L could be safely placed with her mother to justify the adjournment.

 

The Court of Appeal considered that given the progress mother had made, a Placement Order was not the right order.

 

  1. That therefore leaves the question (Question 3) as to whether there was a “solid” evidence based reason to believe that the parent would be able to make the necessary changes within L’s timescale. It goes without saying that one “necessary change” would be the ability of the mother to satisfy the court that the combination of sobriety and further insight would allow the court to be satisfied that the risk to L, in the event that the mother has a relapse is manageable, and that the mother would be honest with the local authority and in such circumstances seek help at the earliest possible opportunity. In my judgment there is indeed ‘some solid evidence based reason to believe that the mother will be able to make the necessary changes within the child’s time scale”.
  1. In my judgment, had the judge, even in a couple of paragraphs, once she had rejected the application for an adjournment, gone on to consider all circumstances of the case by reference to the law in relation to placement orders that she had so carefully set out earlier in her judgment, she may well have hesitated again before concluding that L’s welfare “required” the severing of her relationship with her mother without more ado.
  2. I for my part, whilst fully accepting the legitimate concerns and doubts expressed by the local authority and the Children’s Guardian, cannot see how at that stage, L’s welfare required the breaking off of all L’s ties to her mother and full sister and in my judgment, the making of a placement order was a disproportionate outcome in all the circumstances of the case.

 

The wider point is made by the Court of Appeal at the end, being critical that the LA went ahead and reduced contact from four times per week to once per month and ended their support and assessment – the Court of Appeal suggest that once permission to appeal had been granted, the LA would have been wiser to have been active in the case and engaged with the mother.

 

  1. In conclusion, I note that by the time the appeal came on last week, the six month period sought by the mother had been and gone. The mother has remained sober throughout. The local authority, as already noted, has provided no support to the mother in the interim period and more particularly has not carried out any form of updating assessment of her because, Ms Connell told the court, their case remains that the mother cannot be trusted to be open and honest and the risk to L in the event of a relapse is therefore too great to allow them to reconsider their position, even now. They have, they said, shown good faith in reducing contact from four times a week to once a week rather than once a month which had been their original plan pending placement.
  2. I hope that the local authority may, on reflection, regret that approach and on reviewing the case conclude that in the interests of L, once Moylan LJ had granted permission to appeal, the better way would have been once again to have become active in the case, and to have engaged with the mother in order to see whether, their worst fears about the mother continued to be justified such that in the best interests of L the last resort of adoption remained the only option.

 

 

Now, I shall come to the passages which are attracting some attention beyond the very fact-specific elements of this case. It is obviously unusual to seek a 6 month extension to care proceedings, particularly post the Children and Families Act 2014   (I still think making a Supervision Order was the right approach, rather than adjourning for 6 months), but there are passages here dealing with that, and which some might suggest have broad applicabililty.   (I think not, but we shall watch and see)

 

  1. It is undoubtedly the case that all this was very recent, but it is important to note that the judge did not find that the mother was simply saying what the judge wanted to hear. The judge [107] accepted that the mother was showing insight and that there were ‘green shoots’. One can quite see that had the only options facing the judge been immediate rehabilitation or a placement order, then she may well have been driven to conclude that it was too little too late. It is however hard to see how, given that sobriety and honesty are inevitably intrinsically woven in together, a period of six months would have done other than to allow the local authority and Dr Hallstrom not only to see if she remained sober, but also whether the “green shoots “and developing insight could now lead to the sort of working relationship, co-operation, and therefore trust, that the local authority rightly regard as essential if the risk of a future relapse is properly to be managed.
  2. In my judgment the appellant is correct in her submission that whilst the history is of considerable importance, too much emphasis was placed on the historic lies to the extent that the judge seemed to regard this feature alone as determinative of the case. There was, as a consequence, a failure properly to set those undoubted and serious concerns against the genuine and significant progress made by the mother. If this progress was maintained the mother’s likely future level of honesty could be assessed in the context of sobriety and with a developing understanding and insight as against her historic drunkenness and lack of insight.
  3. Similarly in [111] the judge factored in, without more:
  4. (i) the “risk of serious emotional and physical harm to L,” but the risk of emotional and physical harm would only arise in the event that L was rehabilitated to the mother. It was therefore not a factor at this stage, namely the consideration of the application to adjourn, but would become important only at final care order and placement order stage.

(ii) the “risk of further damage to her attachment needs” The evidence in relation to attachment is recorded by the judge in her judgment at [91] namely that:

“…L is a baby of some six months and who over the coming months will be at a crucial stage in terms of her attachment development”

  1. Contrary to the judge’s judgment, there was no evidence that L had suffered attachment damage. On the contrary, the Children’s Guardian had observed L to be well attached to the foster carer and therefore able to make secure attachments in the future. Whilst delay is always inimical to a child’s interests, there is nothing in L’s history or life experiences to date to suggest that her position is any different to any other child of 6 months. The sooner L (in common with all children in her position) is settled with a permanent primary carer the better. However, the generally accepted critical period for forming long term secure attachments would not have been be fatally compromised in L’s case to such that delay had, in her interests to be, to all intents and purposes, the determining factor. This was particularly so in circumstances where it was common ground that adopters could be identified quickly following the making of a placement order (and indeed following the making of the placement order now challenged, prospective adopters were identified within a matter of weeks).
  2. In weighing up the issue of attachment the judge in my judgment fell into error in that she did not mention the fact that the mother was having good quality contact 4 times a week, or to the high praise given to her by L’s very experienced foster carer, evidence in my judgment of considerable significance when considering L’s timescales and that the alternative was adoption

 

There is some school of thought that paragraph 47 opens the door wide for extensions of care proceedings beyond 26 weeks when dealing with an infant, because unless there is specific evidence of attachment problems, the crucial window of attachment development is not fatally compromised by extending proceedings.  And thus, delay arguments are greatly diminished.

 

I instead read that to be  that when balancing the two factors, in this fact specific case of a mother who had been abstinent for 13 months, a delay of 6 months was better for this child and a realistic option to be preferred to the most dramatic and permanent order of adoption. Delay in this case was not and should not have been the determining factor. I don’t think that Re P bears that weight that some might put upon it , that it is carte blanche for extensions of proceedings if the child is under 1 and showing no attachment damage. Both of the Acts still stand. Delay generally is harmful to children and must be justified and extensions beyond 26 weeks must only take place if to resolve the proceedings justly.

 

Expect, however, to see Re P wending its way into skeletons and position statements, and there being yet more boilerplate passages in judgments.

 

(I hope I’ve made it plain that my view is that Placement Order was not the right order in this case – I just don’t think paragraph 47 can be lifted wholesale into other cases where the facts are so different.  It clearly has very direct application to a case where a parent has a substantial period of abstinence under their belt pre-dating the proceedings and it is being argued that because more time is needed to be sure the abstinence will last the child should not wait.

 

 

 

“I completely forgot”

 

This is a successful appeal (indeed fairly unusually it was an appeal that by the time the Court of Appeal came to look at it, all four parties were in agreement should be granted) about a decision in the High Court to make a finding of sexual abuse against a child, T, who had just turned 16 when the High Court considered the case. T had been the subject of a Care Order and Placement Order when she was six, then placed for adoption.

 

(Bit nervous about this one, as I know that 75% of the silks in the case read the blog… and I have a mental crush on all three of them. And because I also have a lot of respect for the High Court Judge who gets monstered in the appeal judgment)

 

The adoption got into difficulties, and T went into respite care for a short time in May 2014. She went back to her adopted family at the end of May and that carried on until the end of August 2014, at which point the adopters agreed a section 20 arrangement – the social work team wishing to remove T as a result of her allegation to a CAMHS worker. The allegation was that during that period from May 2014-August 2014 when she was with her adopted family, the adoptive father had sexually assaulted her, including one allegation of rape.

P (A Child), Re [2018] EWCA Civ 720 (11 April 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/720.html

 

The section 20 arrangement continued. It was obvious to all that T would not be going back to the adopters. (Listen, I know that at this point, the adopters are legally her parents and I don’t seek to diminish that, but I think to understand the case it is easier to say adoptive parents and birth parents). The s20 continued until the Local Authority issued proceedings in April 2016. By that time, T had given an ABE interview, made further allegations and declined a second ABE interview and made partial retractions of the allegations. Her behaviour had deteriorated and by the time of the Court case, had been detained under the Mental Health Act 1983. (which is rare for a child)

 

The first question the case raises then, is why this child was under a section 20 arrangement for so long, rather than proceedings having been issued?   I’ll preface this by saying that obviously a case involving an allegation of rape against a child – particularly rape where the alleged perpetrator is an adopter and someone still approved to adopt children, ought to have been placed before the Court. Very quickly after those allegations were made – perhaps allowing a short period of time for the investigation to take place.

(I can’t lay my hands on the authority at the moment, and Hershman McFarlane is being uncooperative, but I’m fairly sure that there is a mid 1990s authority that says where the LA believe the child has been the subject of serious sexual or physical abuse, they ought to place it before the Court by issuing proceedings… I wish I could find the authority. Perhaps one of my illustrious silk readers can illuminate us.  The Act itself just says that the LA can’t issue proceedings unless they believe the threshold criteria to be met – so it says that there are situations where they shouldn’t, it is silent about the circumstances in which they should. The LA don’t have to issue proceedings on every child where the threshold is met. )

 

So what follows is not a justification or excuse for the delay, but an attempt to consider the context.

 

Here are some possible reasons why proceedings were not issued :-

 

  1. It just never got considered (prior to April 2016), and it wasn’t a conscious decision not to, so much as just nobody thinking about it.
  2. The adoptive parents were not asking for T back, T didn’t want to go back, T was in what was considered to be a safe place, and so there was a thought process that nothing was to be gained by going to Court. T wasn’t going to be adopted by anyone else and a Care Order would add nothing to the situation on the ground. Perhaps people even actively thought about the ‘no order principle’ and considered that it wasn’t possible to make out a case that the making of a Care Order (as needed by article 8) would be ‘proportionate and necessary’
  3. This was happening BEFORE the s20 drift was coming to judicial attention and prominence as an issue, and when those s20 cases did emerge, that’s when the LA did take action.
  4. Perhaps everyone was caught up in the day to day management of T and what she needed in terms of placement and stability, and overlooked the bigger picture.
  5. Let’s be quite honest – there’s the potential that the parents in this case were treated differently (because they were adopters) to the way they would have been treated as birth parents.

 

However, ALL of those issues are hard to excuse the fact that T’s sister, X, remained with the adoptive parents. So the LA had an allegation of rape by T, known about for over 18 months, and knowing that a younger sister was still living with the adopters.

 

(So either they didn’t believe T’s allegations OR they thought for some reason that X was safe, but the point is they couldn’t know for sure either way)

Anyway, the Court of Appeal were critical of the delay

 

12.Unfortunately, and to my mind inexplicably, the state of affairs whereby T was accommodated under CA 1989, s.20 was maintained from August 2014 until the institution of care proceedings in April 2016, notwithstanding the clear and stark issue of fact created by T’s allegations and the father’s wholesale denial. Irrespective of the fact that T’s mental health and presenting behaviour may have rendered it impossible for her placement in the family home to be maintained, the need to protect and have regard to the welfare of the younger sibling, X, who remained in the family home, required this significant factual issue to be determined

 

The next issue in the case is that the adoptive parents agreed that the threshold was met for T, because she was beyond parental control. The LA, however, sought a finding about the sexual abuse allegations (five findings in all). That obviously makes sense given that X wasn’t beyond parental control, and there was a need to establish what happened to T, to decide if X was at risk of sexual harm. That makes sense to me. (I can’t, so far, make sense of why it appears that the proceedings were about T, and not T AND X – and the Court of Appeal say that

 

 

50.So far as X is concerned, although she has been the subject of arrangements made under the Pre-commencement Procedure operated within the Public Law Outline, no proceedings have ever been issued with respect to her since the making of the adoption order )

 

The High Court heard from 16 witnesses at the finding of fact hearing. Things went wrong when Parker J came into Court to deliver her judgment

 

 

 

 

The judgment

17.The oral evidence had been concluded on 18 November 2016 and closing submissions were delivered on 18 and 25 November. The case was then adjourned to 8 December 2016 for the delivery of judgment. On that occasion, however, the Judge explained that she had been occupied with other cases and had been unable to prepare a written judgment. She had, however, reached “some conclusions” and, with the parties’ agreement, she stated what those were in the course of a short judgment which runs to some 6 pages in the agreed note that has been prepared by the parties. In short terms, the Judge rehearsed a number of the significant points in the case, for example, T’s mental health, the recording of her allegations and the ABE interview process, any evidence of inconsistency and T’s overall reliability, and an assessment of the father’s credibility before announcing her conclusion in the following terms:

 

 

 

“I have come to the conclusion therefore, and I am sorry to have to do so as I thought the mother and the father were the most likeable people, but during the course of 2014, there was an attempt at least, it may have been more, of sexual congress between the father and T.”

18.The case was then adjourned to 30 January 2017 for the delivery of a full judgment. A note of what had been said in court on 8 December was agreed between the parties and submitted to the Judge. On 30 January the Judge again indicated that, due to pressure on her time as a result of other cases, she had not been able to prepare a full judgment. Instead the Judge gave a lengthy oral judgment, seemingly based on prepared notes.

 

 

19.On 30 January, when the Judge had concluded her judgment, counsel for the father immediately identified a number of aspects in which, it was submitted, the judgment was deficient. The Judge directed that an agreed note of what she had said should be prepared and submitted to her within 7 days, together with requests from each party identifying any suggested corrections or requests for clarification.

 

 

20.The parties, in particular those acting for the parents, complied with the tight 7-day timetable. The Judge was provided with an agreed note of judgment which runs to some 115 paragraphs covering 42 pages. In addition, counsel submitted an annotated version of the note indicating possible corrections, together with a list of more substantial matters which, it was claimed, required clarification. In doing so those acting for each of the parties were complying precisely with the process originally described by this court in the case of English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 and subsequently endorsed in the family law context by this court on many occasions.

 

 

All of this was compounded then, because despite knowing that the case was going to be appealed, following the judgment in January 2017, the transcript of the judgment wasn’t made available. The transcribers sent it to the Judge on 18th March 2017 – the Judge sent an approved copy back to them SIX MONTHS later, September 2017, but that approved copy never got sent to the parties or the Court of Appeal.

 

The Court of Appeal (at the time of hearing the appeal) were therefore working from an agreed note of the judgment rather than the transcript

The Judge’s decision

26.Early in the judgment of 30 January the Judge records the decision that she had already announced at the December hearing in the following terms (paragraph 17):

 

 

 

“I have decided that she has been sexually interfered with by her father and that she has been caused significant emotional harm by reason of her mother’s disbelief in telling her so, although my criticism of the mother was highly muted in the circumstances for reasons I will come back to.”

27.After a summary of the evidence the Judge stated (paragraph 58):

 

 

 

“It is against that background that I need to assess the threshold.”

 

She then set out the content of the local authority fact-finding Schedule introducing it with the following words:

 

“I am asked to make findings in terms of:”

 

Unfortunately, the judgment does not record the Judge’s decision on any of the five specific findings of sexually abusive behaviour alleged in the local authority Schedule save that, at paragraph 71, the Judge stated “I also find that the description T gives of her father attempting to penetrate her is wholly believable”. Whether that statement amounts to a finding is, however, not entirely clear as it simply appears as a statement in the 8th paragraph of a 40 paragraph section in which the Judge reviews a wide range of evidence.

28.The basis of the appeal is that the Judge’s judgment fails sufficiently to identify what (the local authority would submit, if any) findings of fact the Judge made.

 

 

29.Before leaving the 30 January judgment, it is necessary to point to 2 or 3 other subsidiary matters that are relied upon by the appellants as indicating that the judgment, substantial though it may be in size, is inchoate:

 

 

 

  1. a) Prior to listing the witnesses who gave oral evidence the Judge states “I think I heard the following witnesses”. The list of 13 witnesses is said to omit 3 other individuals who also gave oral evidence.

 

  1. b) In the closing stages of the judgment the Judge makes one additional point which is introduced by the phrase “one thing I forgot to say” and a second which is introduced by “also one thing I have not so far mentioned, and I should have done”.

 

  1. c) At the very end of the judgment, and after the Judge has gone on to deal with procedural matters unrelated to the findings of fact there appears a four paragraph section dealing with case law related to the court’s approach to ABE interviews where it is asserted there has been a breach of the ABE guidelines. That section is preceded by the phrase “I completely forgot”.

 

There are of course, all sorts of different styles and approaches one can adopt to delivering a judgment and the Court of Appeal are not trying to be prescriptive or to fetter a Judge’s discretion of   stylistic delivery. Having said all that, if the immediate comparator that comes to mind is Columbo talking to Roddy McDowell, that’s not a good thing.

 

Have I ever been happier to be able to get a particular picture into the blog? Maybe Kite-Man, but I am VERY pleased about this one

 

The appeal itself

30.Two notices of appeal issued on behalf of the father and mother respectively were issued in August 2017. Although this was many months after the making of the care order and the delivery of the oral judgment in January 2017, I accept that the delay arose because the parties were waiting for the Judge to engage in the process of clarification that she had directed should take place and, thereafter, the production of a final version of the judgment. There were also considerable difficulties in securing legal aid, caused at least in part by the absence of a judgment. At various stages the Judge’s clerk had given the parties some hope that a final judgment might be produced. The notices of appeal were only issued once the parties were forced to conclude that a final version of the judgment was unlikely to be forthcoming. Following the failure of the efforts made by the Court of Appeal to obtain a judgment, I granted permission to appeal on 16 November 2017.

 

 

31.The grounds of appeal and skeleton arguments that argue the cases of the father and of the mother from their respective positions engage fully with the underlying facts in the case in addition to arguing that the process as a whole has been fatally compromised by the court’s inability to produce adequately precise findings and to do so in a judgment which sufficiently engages with the significant features of the evidence. As it is on this latter basis that the appeal has preceded by consent, my Lords and I have not engaged in the deeper level, granular analysis of the evidence that would otherwise be required.

 

 

32.In terms of the English v Emery Rheimbold process, those acting for each of the two parents submitted short (in the mother’s case 3 pages, in the father’s case 5 pages) requests for clarification on specific issues. Each of those requests is, on my reading of the papers, reasonable and, even if a specific request were unreasonable, it was open to the Judge to say so.

 

 

33.The resulting state of affairs where the only record of the Judge’s determination is imprecise as to its specific findings and silent upon the approach taken to significant elements of the evidence is as regrettable as it is untenable.

 

 

34.That the state of affairs that I have just described exists, is made plain by the stance of the local authority before this court. Rather than simply “not opposing” the appeal, the local authority skeleton argument, as I will demonstrate, specifically endorses the main thrust of the appellant’s case. Further, we were told by Miss Hannah Markham QC, leading counsel before this court, but who did not appear below, that the local authority’s position on the appeal has been approved at every layer of management within the authority’s children services department. For one organ of the state, the local authority, to conclude that the positive outcome (in terms of the findings that it sought) of a highly expensive, time and resource consuming, judicial process is insupportable is a clear indication that the judicial system has, regrettably, failed badly in the present case.

 

 

35.Against that background it is helpful to quote directly from the skeleton argument prepared by Miss Markham and Miss Grieve on behalf of the local authority:

 

 

 

“5 At the heart of the appeal are findings that (father) behaved in a sexually inappropriate way towards his daughter T. The findings are set out in this way, as it is accepted by the respondent local authority that the judgment given by Mrs Justice Parker does not particularise the findings made nor does it cross refer findings to the local authority Schedule of findings. As such the findings have not been accurately recorded or set out.

 

….

 

“14 The local authority does not oppose the appeal for reasons set out below.

 

15 However the local authority does not accept that all grounds as pleaded would be matters or arguments which the local authority would either not oppose or indeed agree, if taken in isolation. The focus in approaching this appeal has been to stand back and have regard to the fairness and integrity of the judgment and the process taken by the parties to try to clarify the judgment and in particular the findings made.

 

16 It is submitted that it must be right and fair that a party against whom findings are made should know the actual findings made and the reasons for them. It is submitted that reasons on reasons are not necessary, but clarity as to findings and a clear basis for them is a primary requirement of a Judge.

 

17 It is significant that the learned Judge has resisted requests of her to clarify her judgment and that in particular she has not taken opportunities to set out the findings she has in fact made.

 

18 Dovetailing into that error is the argument that flows from that omission; absent clear findings it is impossible to see, understand and argue that the Judge formulated her findings on clear, understandable and right reasoning.

 

 

21 In this instant case it is submitted on behalf of the parents that the judge did not even set out the findings, not least allow them to see whether she fairly and with significant detail set out her reasoning for coming to the findings she then made. Further requests of the Judge were properly made and the learned Judge has neither responded to them nor clarified why she is not engaging in the requests of her

 

 

23 (Having listed the short specific findings made by the Judge) It is acknowledged that these matters are the most detail (the Judge) gives to her findings. Whilst it is asserted by the local authority that the learned Judge was able, within the ambit of her wide discretion to make findings, it was incumbent upon her to set out with clarity what those findings were and how she came to make them.

 

24 It will be apparent from the matters set out above that she failed in this task and that she failed to cross refer back to paragraph 59 (where the Judge listed the content of the local authority Schedule of findings) and set out what she had or had not found proved.”

36.The local authority identified two specific grounds relied upon on behalf of the father, one asserting that the Judge rejected the father’s case on the deficits on the ABE interview, against, it is said, the weight of the evidence, but provides no analysis for coming to that conclusion. Secondly the local authority accepts that there were many examples of inconsistency within the accounts that T had given. In both respects the local authority expressly acknowledged that the Judge failed to engage with these two important aspects of the case and failed to set out her findings in respect of each.

 

 

37.The local authority, rightly, argue that a Judge has a wide discretion to accept or reject evidence in a case such as this and that the Judge does not have to refer expressly to each and every detail of the evidence in the course of their judgment. The local authority’s skeleton argument, however, accepts “that a fair and balanced assessment of the cases advanced and evidence for and against said cases is necessary, proportionate and fair and has not occurred sufficiently in this complex case.”

 

 

38.Miss Kate Branigan QC, leading Miss Lianne Murphy, both of whom appeared below for T, acting on the instructions of the children’s guardian adopt a similar stance to that taken by the local authority. In their skeleton argument (paragraph 10) they state:

 

 

 

“Albeit T maintains that the allegations made against her father are true, the children’s guardian has had to conclude that the judgment as given by the court on 30 January 2017 is not sustainable on appeal and that inevitably the appeals on behalf of both appellants must succeed.”

 

Later (paragraph 14) it is said:

 

“Regrettably we accept that it is not possible from the judgment to identify what findings the court has made. At paragraph 59 of the judgment note, the court sets out the detail of the findings it is invited to make, but at no stage thereafter does the learned Judge indicate which of the findings she has found established to the requisite standard nor does she attempt to link what she is saying about the evidence to the specific findings sought….On this basis alone the judgment is arguably fatally flawed.”

 

And at paragraph 15:

 

“We further recognise in certain key respects the court has failed to engage with the totality of the evidence to the extent that any findings the court has purported to make are unsustainable in any event. In particular, we accept the arguments advanced on behalf of the appellant father… that the court failed to undertake a sufficiently detailed analysis of the context in which T’s allegations came to be made, failed to engage with the professional evidence which called into question the reliability of those allegations and did not weigh appropriately in the balance the inconsistencies which were clearly laid out on the evidence in relation to T’s accounts.”

39.In the light of the parties’ positions, the oral hearing for this appeal was short. All were agreed that the appeal must be allowed with the result that, at the end of a process which started with allegations made in August 2014, and in included a substantial trial before a High Court Judge, any findings of fact made by the Judge and recorded in her oral determinations made in December 2016 and on 30 January 2017 must be set aside and must be disregarded in any future dealings with this family.

 

 

40.For our part, my Lords and I, rather than simply endorsing the agreed position of the parties, had, reluctantly but very clearly formed the same view having read the note of the 30 January judgment and having regard to the subsequent failure by the court to engage with the legitimate process of clarification that the Judge had, herself, set in train

           41.Before turning to the question of what lessons might be learned for the future and offering some guidance in that regard, a formal apology is owed to all those who have been adversely affected by the failure of the Family Justice system to produce an adequate and supportable determination of the important factual allegations in this case. In particular, such an apology is owed to T, her father and her mother and her younger sister X, whose own everyday life has been adversely affected as a result of professionals justifiably putting in place an intrusive regime to protect her from her father as a result of the statement of the Judge’s conclusions 16 months ago.      

 

    

The Court of Appeal were asked to give some clarifying guidance in relation to the issue of what happens where the parties ask (as they must) for the Judge to clarify flaws in the judgment and after a period of time the Judge has not done so. For a start, when does the clock for the appeal start to tick? After judgment, or after the request for clarification, or after receipt of such clarification?

 

 

 

42.Whilst it is, fortunately, rare for parties to encounter a situation such as that which has arisen in the present case, such circumstances do, however, occur and we have been invited to offer some limited advice or guidance.

 

 

43.The window in which a notice of appeal may be issued under Civil Procedure Rules 1998, r 52.12(2) is tight and is, in ordinary circumstances, limited to 21 days. It is often impossible to obtain a transcript of a judgment that has been delivered orally within the 21 day period. Unfortunately, it is also the experience of this court that not infrequently problems occur in the five or six stages in the administrative chain through which a request for transcripts must proceed and it may often be months before an approved transcript is provided. Whilst it is plainly more satisfactory for the judges of this court to work on an approved transcript, and that will normally be a pre-requisite for any full appeal hearing, the Lord or Lady Justices of Appeal undertaking evaluation of permissions to appeal in family cases are now more willing to accept a note of judgment (if possible agreed) taken by a lawyer or lawyers present in court in order to determine an application for permission to appeal rather than await delivery of an approved transcript of the judgment. It is therefore important for advocates attending court on an occasion when judgment is given to do their best to make a full note of the judgment so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed.

 

 

44.The observation set out above requires adaptation when a party seeks clarification of the Judge’s judgment. In such a case, it must be reasonable for the party to await the conclusion of the process of clarification before being obliged to issue a notice of appeal, unless the clarification that is sought is limited to marginal issues which stand separately to the substantive grounds of appeal that may be relied upon.

 

 

45.Where, as here, the process of clarification fails to achieve finality within a reasonable time, it is not in the interests of justice, let alone those of the respective parties, for time to run on without a notice of appeal being issued. What is a reasonable time for the process of post judgement clarification? The answer to that question may vary from case to case, but, for my part, I find it hard to contemplate a case where a period of more than 4 weeks from the delivery of the request for clarification could be justified. After that time, the notice of appeal, if an appeal is to be pursued, should be issued. The issue of a notice of appeal does not, of itself, prevent the process of clarification continuing if it has not otherwise been completed. Indeed, in some case the Court of Appeal at the final appeal hearing may itself send the case back to the Judge for clarification. The benefit of issuing a notice of appeal, apart from the obvious avoidance of further delay, is that the Court of Appeal may itself directly engage with the Judge in the hope of finalising any further outstanding matters.

 

 

Whilst the Court of Appeal say that because of the administrative nightmare that is obtaining an approved transcript, they will accept an agreed note from the lawyers I wonder how on earth that is going to work with cases involving only litigants in person (eg about 90% of private law proceedings)

Cringe

 

This judgment is an appeal, where nobody involved comes out of it well.  There were moments when reading it where it was SO awkward that I felt each individual vertebrae try to leave my body so that they could stop dealing with the level of “awkward! warning awkward!” nerve signals that they were sending hither and thither.

Let us begin by saying that I don’t know ANY of the individuals concerned in the case, and I think in the interests of fairness it is best to read this whole thing on the basis that everyone involved on that day was just having one of those bad days and that succession of individual bad days cascaded and collided into a day so bad that it almost reads as though the Court had been the subject of some form of hallucinogenic gas attack.

A v R & Anor 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/521.html

In very broad terms, this was a private law case, in which father was asking for contact with his 13 year old daughter T – with the sadly too familiar backdrop of a long history of Court dispute and litigation.

A psychologist, Mr Clowry, had been instructed to assess the child. The child had decided not to participate in the assessment. It is fair to say that nobody was enamoured of the report prepared (though it is obviously tricky to do a psychological assessment of a child if you don’t get to meet them).

  1. When the final hearing came before the court on 28 November 2017, it did so initially before a District Judge, for reasons I will come to, before latterly being placed before the learned Judge. As noted above, the order of 15 September 2017 made no provision for statements of evidence to be filed and served for the final hearing on 28 November 2017, nor for the filing and serving of a final report from the Children’s Guardian. In the circumstances, on 28 November 2017, the court was without up to date sworn evidence from the parents or a report from the Children’s Guardian on the issues that fell to be considered at the final hearing. For the reasons I have already set out, the expert report that had been produced the evening before the final hearing to inform the same was deficient by reference to the terms of the letter of instruction.
  2. At the hearing the Mother and the Children’s Guardian argued that the proceedings should be concluded. Both sought an outcome that provided for no order to be made with respect to the time the father spent with T. The Guardian’s Position Statement also urged the court to make an order pursuant to s 91(14) of the Children Act 1989 in respect of the father for a period of 12 months. However, no application had been issued. The father sought permission to instruct a replacement expert or an adjournment of the final hearing to permit him time to make a properly constituted application under FPR 2010 Part 25 for permission to instruct a replacement, with a view to him pursuing his argument for a far greater level of contact at an adjourned final hearing. In any event, the father sought a final child arrangements order that provided for a much greater level of time spent with T than was then taking place. The final hearing was, therefore, contested.
  3. Within this context, the learned judge proceeded, following submissions by counsel initially in front of the District Judge and then before the learned Judge, and contrary to the arguments of the father, to refuse the father’s application for permission to instruct a replacement expert or for an adjournment to allow the preparation of such an application. Further, and contrary to the varied positions of the mother, the father and of the child, the learned Judge proceeded to make a final child arrangements order. The final order made by the learned Judge in respect of the time the father would spend with T reflected the level of contact that was then said to be taking place. Accordingly, the order provided for the father to spend time with T for at least 2 hours once per month, with an additional 2-hour periods during the holidays, together with indirect contact.

 

Those of you who go to Court will be aware that the proceedings are tape recorded. Sometimes if the case is appealed, a transcript of the tape recording is made for the appeal Court. That’s what happened here, so these exchanges are exactly what was said in Court.  Prepare to cringe, and also prepare to have anxiety nightmares over the next few days of everything you’ve ever said in Court.

 

Make it stop, make it stop Prince Adam

 

  1. As I have noted, the final hearing on 28 November 2017 did not initially commence in front of the learned judge on 28 November 2017, but rather in front of District Judge Abigail Smith. The reason for this appears to have been that, whilst the learned Judge had reserved the matter to himself, he was very heavily listed on the day in question and the matter had therefore been placed in District Judge Smith’s list. The matter remained before the District Judge for approximately half an hour. During that time the parties made substantive submissions on the adequacy of Mr Clowry’s report and the proper course of action in respect of the report. The District Judge having expressed “severe concerns” regarding the report of Mr Clowry, counsel for the father, Ms Sarah Cooper, proceeded to make submissions in support of the continued need for expert evidence, a course opposed on behalf of the mother by Mr Persson and on behalf of T by Ms Topping.
  2. It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other. Ms Cooper’s submissions on the fate of Mr Clowry’s report were interrupted by Mr Persson, without demur from the District Judge. Mr Persson was in turn interrupted by Ms Topping, again without judicial demur. Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.
  3. The learned Judge agreed to take the matter and proceeded to hear the case, which had been given a three-hour time estimate, at 2.20pm. As I have noted, in summary the father’s first ground of appeal includes the complaint that the learned Judge had not properly prepared for the hearing. The father also complained before me that the Judge appeared, from his initial comments, to have reached a settled judgment from the outset. The opening statements of the learned Judge, who had had long involvement with this case, form the basis of the father’s contentions in this regard:
    1. His Honour Judge Scarratt: Yes well, I’m sorry you’ve had a bit of wait. The fact of the matter was this morning I had a one-day case with five applications and this three-hour hearing.

Miss Cooper: Yes.

His Honour Judge Scarratt: And so District Judge Abigail Smith’s diary emptied yesterday and I’m afraid this happens. Cases are moved about. Not ideal but as it happens I have finished my five applications and given judgment so I’m, I’m now free to deal this but you’ve really got limited time because I have to be at a meeting at 4 o’clock. I’ve got bundles here, I’ve not looked at them –

Ms Cooper: Yes.

His Honour Judge Scarratt: I mean I’m just going to go on what I know about the case and well I gather Brendan Clowry’s report was a nonsense so Judge Abigail Smith tells me.

Miss Cooper: Certainly the District Judge was not impressed.

His Honour Judge Scarratt: Yes, well I, I’ve, I have looked at that, eating my sandwich at lunch.

Miss Cooper: Yes.

His Honour Judge Scarratt: He’s gone completely off piste.

Miss Cooper: Well it, it is right to say –

His Honour Judge Scarratt: Well he’s gone off piste.

Miss Cooper: Yes.

His Honour Judge Scarratt: I’m putting it to one side and I doubt whether he’ll get paid.

Miss Cooper: Yes, well no doubt —

His Honour Judge Scarratt: So where are we now, that being the case.

Miss Cooper: You Honour, we are at the following bit of the case. What he had done was he had interviewed my client and my client and the mother had paid him quite a lot of money. The mother, I don’t know if you’ve seen, I did a further very short position statement, could I just briefly hand that up because I did it last night once the report had come —

His Honour Judge Scarratt: I mean at the end of the day your client’s got to accept that [T] has had enough. There’s a very poignant note to Mr Gaye, a very experienced Guardian, and last, I don’t think you were here last time.

Miss Cooper: No, I wasn’t your honour.

His Honour Judge Scarratt: No. Well can I tell you and this is the benefit of having me, judicial continuity.

Miss Cooper: Yes.

His Honour Judge Scarratt: That really last time, the application made by the Guardian being repeated today was made last time, but I felt your client should have a chance and that Clowry, who has now thoroughly blotted his copy book, I shan’t be having him again in these Courts, your, and, and I gave the chance for this to happen, but it’s not happened but, but at the end of the day I’ve got a 13 and a half year old girl there who’s saying actually, let’s have the contact, let’s have the drinks and the teas and the lunches or whatever, which have gone on. This is not a case where there’s no contact. So I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents. Does he agree that?

Miss Cooper: No, Your Honour.

His Honour Judge Scarratt: Well, I’m not having a final hearing with this little girl dragged in now. Have you read the letter from her?”

  1. Following this opening exchange, the learned Judge went on to conduct a hearing over the course of the next hour and a half. As I have noted, in his first ground of appeal, the father also contends that during this hearing the learned Judge proceeded to make final orders without any proper consideration of the arguments being advanced by the parties with respect to that issue. Within this context, the father also complains before me in support of his grounds of appeal that the hearing descended into what the father termed a “shouting match“. The genesis of these complaints by the father is apparent from the transcript.

 

Part of the father’s appeal was that the Judge was unprepared for the hearing. Given that he was only doing it because the hearing before the DJ had gone so wrong that it was moved to a different Judge on the same day, it wouldn’t be surprising if the Judge was unprepared.  Nor, given that he candidly says that he hasn’t read the bundle and has read the expert report ‘over a sandwich’ reaching a conclusion that it was ‘nonsense’  would it be surprising for the Appeal Court to agree that the Judge was unprepared.

The conclusion of the Appeal Court is, perhaps, surprising though.

 

  1. I am not satisfied that the father has made out his complaint that the learned judge had not prepared adequately to deal with the matter on 28 November 2017, nor am I satisfied that the father has made out his complaint that the learned Judge pre-judged the matter.
  2. As is clear from passages quoted above, it can perhaps be seen why the father, as a lay person, drew these conclusions from the statements made by the learned Judge at the outset of the hearing. However, with respect to the issue of preparation, whilst the learned Judge indicated he had not looked at the bundles, he had long experience of this matter, having dealt with it on numerous occasions previously. He was therefore well versed in the key issues before the court. Whilst the learned Judge’s announcement that he had read Mr Clowry’s expert report over his sandwich at lunchtime may suggest to a lay party a certain informality of approach, the need for judges to work through lunch in order to get through the work in their extremely heavy lists is the modern reality for judges up and down the country. Within this context, the fact that the learned Judge combined eating and reading is not an indication of a lack of diligence or preparation. Rather, it is quite the opposite. The learned Judge worked assiduously through his lunch break to ensure he had considered the material relevant to the hearing he was about to conduct.
  3. In relation to the father’s complaint that the learned judge had pre-judged the matter, the learned Judge did say at the outset that “I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents“. After asking Ms Cooper whether the father agreed with this analysis, and being told he did not, the learned Judge did respond, “Well, I’m not having a final hearing with this little girl dragged in now“. It is clear from the transcript that the learned Judge also continued, throughout the hearing, to press the then current contact regime as the appropriate outcome.
  4. Within this context, it is the case that the learned Judge expressed himself in robust terms early on during the hearing and I can understand why the father raises this issue before me. However, I also bear in mind that the matter was listed on 28 November 2017 for a final hearing rather than a preliminary case management hearing, at which final hearing the learned Judge was required to adopt an essentially inquisitorial role in pursuance of his duty to further the welfare of the child as his paramount consideration. Within this context, at least on one reading, the learned Judge was simply exploring at the outset of the final hearing the extent of the issues between the parties at the final hearing and inviting the father to consider a reasonable view on the information available to the court. Finally, as Mr Persson points out, upon being told that the matter was contested by the father, the learned Judge did go on to conduct a hearing and to listen to certain submissions from the parties.
  5. In the foregoing circumstances, I am satisfied that it cannot be said that the learned Judge failed to properly prepare himself to conduct the hearing. I am also satisfied that, whilst perhaps falling somewhat closer to the line marking the boundary between a robust, inquisitorial approach and premature adjudication (to adopt the phrase utilised by McFarlane LJ in Re Q) than is often the case, within the context of the case being listed for final hearing, the learned Judge was not guilty of pre-judging matters.

 

And yes, I did contemplate “premature adjudication” as the title of this post, but there’s no way I’m typing THAT into Google Images.

 

The Guardian also gets a rebuke (which might ordinarily be stinging, but in the face of everything else going on in the case is mild) for promising the child that the next hearing would be the last one, which was of course outside of her control and a promise which should not have been made.

 

  1. The email from the Children’s Guardian of 4 October 2017 is, in many respects, carefully drafted. It is of concern however, that the Children’s Guardian also informed T in that email that the learned Judge had “promised” that the proceedings would end on the next occasion. This is not an accurate reflection of what the learned Judge had said and, in any event, is not a promise he could have made, not least having regard to the right of a party to appeal. The email from T of 1 October 2017 appears to have been disclosed to the father’s legal team some time after it was sent, even though it was plainly relevant to the question of expert evidence.

 

MacDonald J is critical of some drafting, in the order authorising the instruction of an expert – where the wording is reminiscent of ‘mission statements’  in that nobody could ever actually believe in or support the opposite

 

  1. The letter of instruction to Mr Clowry is contained in the appeal bundle before me, dated 18 September 2017, which letter provides as follows with respect to the instructions to Mr Clowry:
    1. “Pursuant to the order of His Honour Judge Scarratt dated 15 September 2017, you are instructed to meet with the parties and the child, as set out in your letter dated 25 August, to prepare a report setting out a robust, clinically legitimate and reputable plan of clinical work for the sound and lasting advancing of contact between T and her father.”
  2. Leaving aside the rather peculiar terms in which the instruction is couched (parties to proceedings would hardly wish a report that was not robust, clinically legitimate and reputable), the term “Pursuant to the order of His Honour Judge Scarratt” at the beginning of the instructions to Mr Clowry is a potential cause of confusion. Whilst the letter of instruction limits the instructions to Mr Clowry to the preparation of a “robust, clinically legitimate and reputable plan of clinical work”, the permission given in the order of the learned Judge is in somewhat wider terms, namely “to prepare a report in respect of the time that T should spend with her father.”

 

 

Now the expert.   We remember that the Judge had said he’d gone off piste and his report was nonsense… well, he had been asked to attend, so the Judge got him in.  Oh God, this is hard reading.

 

  1. in the context of the District Judge having expressed “severe concerns” regarding the report of Mr Clowry, and the learned Judge having stated that his report was “nonsense“, that Mr Clowry had “gone off piste“, that he had “thoroughly blotted his copy book” and that the learned Judge would be putting the report aside, and despite strenuous objection from Ms Topping, the learned Judge decided to hear from Mr Clowry, who was invited into the courtroom. His opening gambit to Mr Clowry was as follows:
    1. His Honour Judge Scarratt: Afternoon. Just, just come and sit there for a moment will you. Everyone is thoroughly disappointed with this work you’ve done. When I say everyone, I mean everyone. It not what we asked for at all.”
  2. Notwithstanding the views expressed by the learned Judge during the course of the hearing, and his level disappointment stated directly to Mr Clowry, the learned Judge then proceeded to enquire of Mr Clowry when the work he had been instructed to undertake could be completed if his instruction was continued. Mr Clowry having stated his work would not be possible if T would not agree to see him, the learned Judge also put to Mr Clowry that forcing T to see a psychologist would not work, in respect of which Mr Clowry responded as follows:
    1. Mr Clowry: Well, with respect to the language I think if that were the attitude and the way in which it was manage, forcing putting great pressure on a child but I think encouraging a child would not, might be productive.

His Honour Judge Scarratt: Well to be fair that’s exactly what the Guardian has done in a response, in a, in an email response. He has encouraged her, really, really encouraged her to go.

Mr Clowry: But, I would tend to see situations like that Your Honour not in terms of black and white. Sometimes in a preliminary meeting a child who has never seen psychologist or social worker might, perhaps if I saw the child with the mother, feel then on the basis of evidence having met the person reasonably inclined to continue. If the child is caught up in a very powerful adversarial situation there’s a high probability the child is going to reflect certain of the adult attitudes and opinions. If the child were enabled to meet the psychologist whether it be me or anybody else the child might then be prepared to reconsider. I don’t know, I don’t know the child.

His Honour Judge Scarratt: So you could, you could have a plan of work available by the end of next week could you?

Mr Clowry: Yes, indeed.

His Honour Judge Scarratt: Provided the mother and [T] saw you in the week?

Mr Clowry: Yes indeed Your Honour”

  1. Whilst having heard from Mr Clowry the learned Judge told him that he was “released”, this appears to be a term of art as there is no indication that Mr Clowry was sworn, and no party was permitted to cross examine him. The status of the information Mr Clowry provided to the court is, accordingly, unclear. He did not give evidence and his report was, by common acclaim, considered deficient by all parties. However, at one point during the hearing, and despite the criticisms levelled at the report of Mr Clowry by the Children’s Guardian, Ms Topping was permitted to rely in her submissions on that self-same report as evidence that the father had not reflected on his behaviours, whilst almost in the same breath stating the report was deficient and could not be relied on.
  2. Within this context, it is also unclear what status the learned Judge attached to the report, and to the contribution of Mr Clowry at the hearing when considering his decisions with respect to the instruction of a further expert and with respect to whether to conclude the proceedings. However, immediately before giving judgment the learned Judge said:
    1. His Honour Judge Scarratt: Yes well, I’ll, on the basis no wants to say anything else I’ll, and having now heard from Mr Clowry about what he can and cannot do, I’ll make a decision.”

 

 

MacDonald J, hearing the appeal was very critical of the way counsel had dealt with their submissions. My mental picture is of a Chimps Tea party, where the tea was laced with PCP, re-enacting an episode of Jeremy Kyle, but that may be too harsh.   Like I said earlier, anyone can have a bad day, and this is best chalked off as just being one of those rather than be taken as being representative of how anyone involved generally conducts litigation.

 

  1. During the course of the unstructured and unfocused submissions regarding expert evidence, at times the Judge appeared to be dismissing the question of a further expert out of hand. At other times, the learned Judge appeared to indicate it was an issue he was prepared to decide. The precise ambit of the issue the parties are addressing in respect of expert evidence is only belatedly defined and no party ever got to the point of concluding their submissions on the question of further expert evidence, although Ms Cooper made a valiant effort to conclude organised submissions to the Judge in support of permission for a further expert or a short adjournment to allow the preparation of a properly constituted Part 25 application.

 

  1. At this point, discipline in the hearing appears to have broken down entirely. The father himself begins to make submissions to the learned Judge, Miss Cooper, Mr Persson and Ms Topping continue to make points with little order, structure or focus, and even Mr Gaye enters the arena at one point. All this occurred as the learned Judge continued to propound his view that a final order should be made at the hearing, reflecting the then current level of contact, and sought repeatedly to press the parties to agree to that course of action.
  2. Within the foregoing context, it is of particular note from the transcript that no party was ever able during the hearing to get to the stage of making submissions on the key issue before the court, namely the question of whether, if the court decided to proceed to conclude the proceedings, a final child arrangements order should be made and, if so, the nature and extent of the contact in any final child arrangements order. Whilst counsel were able, up to a point, to make submissions on the question of whether the learned Judge should proceed with the final hearing or adjourn it, the increasingly unstructured nature of the hearing meant that, as conceded by Ms Topping and Mr Persson before me, no party ever reached the stage of making submissions, nor did the learned Judge invite submissions, on what outcome with respect to contact was in T’s best interests if the learned Judge determined, against his initial instinct, that it was right conclude the proceedings then and there. This was the case even though Miss Cooper had made clear on behalf of the father that the matter was contested, and that the father would be seeking more extensive contact in any final order than that then taking place, and even though Ms Topping’s instructions from the Children’s Guardian remained that there should be no order as to contact and an order pursuant to s 91(14) of the Children Act 1989 with respect to the father for a period of 12 months.
  1. In allowing the appeal, it is difficult not to have a good deal of sympathy for the learned Judge. He sought to assist the parties by taking the matter at short notice into an already busy list after the final hearing had already commenced before a different judge. Having done so, the learned Judge tried to further assist the parties by attempting to cut through a protracted dispute between two parents in what, on any estimation, was a long running case involving a young person with her own strongly held views about the way forward.
  2. Within this context, I make one additional observation. As I have already pointed up, the transcript of the hearing demonstrates that the learned Judge was not assisted in his difficult task by the approach of the advocates in this case. Both the transcript of the hearing before the District Judge, and the transcript of the hearing before His Honour Judge Scarratt, record each of the advocates, although counsel for the father a good deal less so, regularly interrupting each other. The net effect of that approach was that, as I have observed, neither judge received properly structured submissions, in the proper order on the points that were in issue between the parties, and no issue was ever fully run to ground. It is quite clear from the transcript why the father chose to describe the hearing as having descended into a “shouting match“.
  3. I am satisfied that this unfortunate situation before the learned Judge materially contributed to the primary reason this appeal has been successful, namely that, before making a final child arrangements order, the learned Judge did not hear submissions on the key issues before the court at the final hearing of the need for a final child arrangements order and the appropriate level of contact between father and daughter if such an order were made.
  4. FPR r 12.21, deals with the order in which a court hears submissions or evidence at a hearing and confers on the court a discretion in that regard. FPR r 12.21 reflects the fact that properly sequenced submissions constitute a vital constituent of a fair hearing. The requirement for submissions to be made in a clearly defined order aims to ensure that each party has a fair opportunity to present their case on the issues that are before the court for determination. A failure by advocates to assist the court in adhering to this requirement is corrosive of that aim. In this case, the reception by the court of properly sequenced submissions was rendered extremely difficult by a concerning tendency on the part of the advocates simply to interrupt each other in an effort to advance their competing submissions. It should go without saying that this mode of advocacy does not assist the court and is to be deprecated.

 

The appeal was allowed, and sent back for rehearing.

 

  1. As I have set out above, the transcript of the hearing makes plain that, notwithstanding that the hearing was contested on the central issue of whether a child arrangements order was appropriate and, if so, what arrangements for contact were in T’s best interests, no party ever got, during the hearing, to the stage of making submissions on those key issues before the court. The increasingly formless and fractious nature of the hearing meant that no party made submissions on the need for an order or the appropriate level of contact before the learned Judge gave his judgment on those central issues, nor did the learned Judge invite such submissions. The substantive submissions made by counsel were limited to the procedural question of whether the learned Judge should deal with the final hearing or adjourn it.
  2. In the circumstances, and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard submissions on the issue of whether to proceed to determine whether to make a final child arrangements order but not on the issue of the merits of a final child arrangements order. Notwithstanding this, in his judgment the learned Judge determined both issues. Accordingly, even if one accepts that the learned Judge was operating within the wide ambit of his procedural discretion in dealing with the final hearing summarily on submissions, he dealt with the matter without hearing submissions on the merits. Even though Ms Cooper had made clear on behalf of the father that the matter was fully contested with respect to child arrangements, and that the father would be seeking more extensive contact in any final order than that then taking place, the father never got to argue that case at the final hearing, whether on submissions or otherwise, before the final order was made.
  3. The consequences of this situation are clear from the learned Judge’s judgment. In examining the judgment delivered by the learned Judge I have, of course, taken into account that it was delivered ex tempore at the end of an extremely busy list and in the context of the considerable burden of other responsibilities that routinely fall to be discharged by a Designated Family Judge at the end of the court day. I note that the learned Judge expressly states in the final paragraph of his judgment that, at “the end of a long and hard day“, he would have wanted to have time to hand down a judgment but that he felt it was important for the parties to know the outcome. One can only have sympathy with that view. Within this context, it is not the job of this court, with the greater time available to it, to undertake an overly fine textual analysis of the learned Judge’s ex tempore judgment.
  4. However, reading the transcript of the hearing and the judgment together, it is clear that the learned Judge was not able to rehearse the father’s substantive arguments on the merits for a greater level of contact in any final order, or indeed the substantive arguments of the Children’s Guardian that there should be no order for contact and an order pursuant to s 91(14) of the Children Act 1989, or the mother’s substantive arguments with respect to the nature and extent of contact moving forward, as he had not heard any of those arguments.
  5. In the foregoing circumstances, I am satisfied that there is force in the father’s complaint that the learned Judge proceeded to make a final child arrangements order without proper consideration of the arguments. Indeed, I am satisfied that, as is clear from the transcript and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard no substantive submissions on the merits of the father’s case, or indeed the case of the mother or the Children’s Guardian before making final orders. Within this context, the learned Judge moved to make a final child arrangements order in a case that remained contested without hearing submissions on the issues at the heart of the case.
  6. I accept that, in line with the judgment of the Court of Appeal in Re C (Family Proceedings: Case Management), a judge is fully entitled to deal summarily with a final hearing in an appropriate case. However, even where the court determines that it is appropriate to deal with the case in this manner, it is equally clear that in doing so, each party must first have a fair opportunity to put their case to the court before the court moves to make final orders. Within this context, even if he or she elects to determine the final hearing summarily following oral submissions, the judge must be careful to ensure, with the assistance of the advocates, that each party has had a fair opportunity to make their respective cases by way of submission on the issues that the court is required, albeit summarily, finally to decide. Issues that may often include, as in this case, whether to make a final order and if so, which order in the best interests of the child. In this case, such an approach was even more important where, as I have noted, the learned Judge did not have the benefit at the final hearing of final witness statements from the parties, nor a final report from the Children’s Guardian, and in circumstances where the expert report that had been considered by the court prior to the final hearing to be necessary to resolve the proceedings justly was deficient having regard to the terms of the letter of instruction.
  7. Within the foregoing context, I am satisfied that the fact that the father, and indeed the other parties, did not have a proper opportunity to put their case to the court by way of submissions on the question of whether a final child arrangements order should be made and if so, what order was in the best interests of the T, before the court moved to make a final child arrangements order, amounted to a serious procedural irregularity. In the circumstances, I am satisfied that the appeal must be allowed on that ground alone.

An utterly misconceived application

Hi everybody !

 

I always like when the President opens a judgment with

 

“1.This is another utterly misconceived application”

 

Because it lets me know that this one has potential. It is Re SW (no 2) 2018

http://www.bailii.org/ew/cases/EWCOP/2017/30.html

 

And Re SW was one of my favourite weird cases (an application in the Court of Protection to have a best interests decision that a woman, SW, should undertake surgery in order to give a bone marrow transplant to her adopted brother. The applicant was the son of SW, asking that the surgery be carried out by husband of SW, also coincidentally a surgeon, also coincidentally who had been stuck off as a surgeon, also coincidentally he also had a friend who would assist him, also coincidentally his friend had also been struck off. Link below.  Oh, they also failed to show that the brother needed the surgery, or that SW actually lacked capacity to agree to it or refuse it.  It is fantastic in every regard)

 

 

I dismissed a previous application on 12 April 2017: Re SW [2017] EWCOP 7. Of that application, I said this (para 33):

 

 

 

“As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.”

 

https://suesspiciousminds.com/2017/04/12/bone-marrow-transplants-and-struck-off-doctors/

 

 

 

This time around, SW’s son was applying to the Court of Protection for a best interests decision that the Inland Revenue be prohibited from coming into SW’s home or taking any action against her.

 

 

 

3.The present application was issued by the son on 15 September 2017, supported by his witness statement dated 6 September 2017. P was named as the applicant’s mother, who I shall continue to refer to as SW. The respondent was named as the Commissioners for Revenue and Customs (HMRC), who were described in the application as being “Competent Authority”. The relief sought was, and I quote:

 

 

 

“A Declaration from the Court, under its inherent jurisdiction, that it shall be unlawful for the Respondent to effect forced entry of the property of P or to restrict P’s liberty of movement without permission from the Court of Protection.”

4.The son’s witness statement and the various exhibits attached to it make clear that the complaint arises out of the execution on 29 September 2016 by officers of HMRC of search warrants under section 8 of the Police and Criminal Evidence Act 1984 authorising the search of two properties owned by SW and in one of which SW was living at the time. The searches were in connection with suspected VAT frauds relating to companies of which the son and his father, Dr Waghorn, were directors. The son was subsequently arrested on 27 October 2016, according to a witness statement of the arresting officer “on suspicion of submitting false documentation to HMRC in order to reclaim VAT repayments contrary to s 72(1) of the Value Added Tax Act 1994 and the subsequent money laundering offences under sections 327 and 329 of the Proceeds of Crime Act 2002.”

 

 

One might cynically think that this application benefits the son and his father more than SW, since they are the people under investigation for VAT fraud, and that they are just using the mother/wife SW as a shield or device to escape prosecution for VAT fraud. You dreadful cynic.

 

 

5.The son’s witness statement is explicit that he was not present at the events on 29 September 2016. Having set out extracts from various statements which, he says, were “given as evidence in prosecution at the Crown Court”, and exhibited documents relating to a complaint he made to HMRC and to a complaint made by Dr Waghorn to the Independent Police Complaints Commission in relation to the actions of HMRC, the son concluded his witness statement as follows:

 

 

 

“I am unaware that the Authority has obtained any authorisation, either urgent or standard, from the Court of Protection to control and manage the property of P nor to restrict P’s liberty of movement.”

6.On 22 September 2017 District Judge S Jackson struck out the application. The District Judge’s order read as follows:

 

 

 

“Upon considering an application for an order under the inherent jurisdiction of the Court of Protection and upon the court not having an inherent jurisdiction and upon the court considering that the application and statement in support is incomprehensible and therefore without merit.

 

IT IS ORDERED that:

 

  1. Application struck out

 

  1. This order was made without a hearing. Any person affected by it may apply (on form COP9), within 21 days of the date on which the order was served, to have the order set aside, pursuant to rule 89 of the Court of Protection Rules 2007.”

7.By an application dated 1 October 2017 and received by the court on 3 October 2017, the son sought an order that the District Judge’s order be set aside and that the court grant a declaration in the terms previously sought. His grounds were as follows:

 

 

 

“1) Parliament has granted jurisdiction to the Court of Protection in Deprivation of Liberty cases by introducing into the Mental Capacity Act 2005 safeguards through the Mental Health Act 2007 (which received Royal assent in July 2007), in order that those who lack capacity have the protection of law which will comply with Article 5(1) and 5(4) of the European Convention of Human Rights (“ECHR”).

 

2) P’s determination of her protected rights is envisaged in Article 6(1) of the ECHR and guaranteed in the EU Charter of Fundamental Rights (Article 47 – Right to an effective remedy and to a fair trial).”

 

He submitted no further evidence.

 

 

The President was able to deal with the appeal fairly simply

 

 

 

10.I can deal with the matter briefly. I agree entirely with both the decision and the reasoning of the District Judge. I add three points.

 

 

11.First, a ‘best interests court’, in which I include the Court of Protection, the Family Court and the Family Division of the High Court of Justice, has no power to regulate or adjudicate upon the decision of a public authority exercising its statutory and other powers: see, generally, A v Liverpool City Council and Another [1982] AC 363, (1981) 2 FLR 222, and, specifically in relation to the Court of Protection, Re MN (Adult) [2015] EWCA Civ 411, [2015] COPLR 505, appeal dismissed N v ACCG and Others [2017] UKSC 22, [2017] COPLR 200. But that is precisely what the son is seeking to persuade the Court of Protection to do here. He is seeking an order, albeit in declaratory form, to prevent HMRC exercising its powers “without permission from the Court of Protection.” The appropriate remedy, if one is needed, is by application to the criminal court, in a case such as this, or to the Administrative Court. I make clear that I am not to be understood as suggesting that, in the circumstances, any application the son might make to either court stands the slightest prospect of success; my view, for what it is worth, is that it would not.

 

 

12.Second, there is, in any event, no evidence before the court to demonstrate SW’s incapacity, which alone can give the Court of Protection jurisdiction.

 

 

13.Third, on the basis of the evidence which the son has put before the court, there is simply nothing to support any contention that HMCR has acted unlawfully or that it either has in the past done, or that it threatens in future to do, any of the things apparently alleged by the son: that is, to effect forced entry to SW’s property, to control and manage her property, or to restrict her liberty of movement. The son has placed before the court a number of witness statements prepared for the purpose of the criminal proceedings by officers of HMRC. He has not sought to challenge any of the facts asserted by those officers – indeed, he seeks to rely upon parts of their witness statements. And since, as I have said, he was not present, he is in any event hardly in a position to gainsay what they assert. The simple fact is that there is nothing in any of this material which even begins to suggest that what the son is asserting is even arguably right. On the contrary, what the material demonstrates is the seeming propriety with which HMRC obtained and executed the search warrants, the very proper concern which the HMRC officers involved had for the potential impact on SW of what was going on around her while the relevant search warrant was being executed, and the very proper steps which they appropriately took to protect and safeguard her welfare.

 

 

14.The son’s application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge’s order striking out the original application remains in place.