RSS Feed

Tag Archives: article 6

No broad presumption in favour of a natural parent

The Court of Appeal in Re E-R (A child) 2015 had to deal with a very emotionally difficult case.  [Don’t ask me why they call the case “Re E-R a child, but then use T as the child’s codename throughout. I have no idea why, it makes no sense] 

 

T was five years and nine months old. She had lived with both parents until she was two and they separated, and from then on with her mother. Her mother sadly was diagnosed with cancer.  The separation from the father had been very acriminious and the father had drifted out of T’s life.

 

The mother had made a will appointing a friend SJH as testamentary guardian, wanting SJH to care for T after her death. She and T moved in with SJH, who provided the mother and T with care.  SJH made an application for a Special Guardianship Order whilst the mother was unwell but still alive.

 

His Honour Judge Vincent at the family court sitting at Truro on the 30th January 2015. The judge’s order provided for a little girl, T, born 22 July 2009 (5 years 9 months) to move to live with TR (her father), and JB (his partner) and, thereafter, to have extensive contact with the Appellants with whom T and SH (her mother) were currently living. The judge dismissed the Appellant’s application for a special guardianship order in respect of T. The unusual and tragic feature of the case is that the variation of T’s current living arrangements provided for by the order were to take effect only upon the anticipated death of T’s mother.

The principal issue in the appeal turns on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was “a broad natural parent presumption in existence under our law”. The Appellants appeal only the child arrangements order and do not appeal the judge’s refusal to make a special guardianship order.

 

Very sadly, the mother died before knowing the outcome of the appeal and thus without knowing whether her daughter would continue to live with SJH or whether she would be removed and placed with the father.

The Court note at the end, but I think it is very important, that everyone in this case struggled with the law (counsel in the first hearing and the Judge) and that father had not been able to be represented and had to represent himself in the Court of Appeal on extremely tricky points of law. A wholly unacceptable situation.

  1. This was a difficult case. The court was faced with making a decision as to what arrangements could best be made to ameliorate the loss to T following the death of her mother. The judge listened conscientiously and carefully to extensive evidence and made findings about the parties involved. He was however denied critical assistance in two respects:

    i) The relevant law was not brought to his attention; as a consequence his analysis was conducted on the basis that there was a presumption that T should live with her father. This was wrong in law and as already indicated, upon that basis alone, the appeal must be allowed.

    ii) The judge might nevertheless have been better able to analyse the complicated issues which were thrown up had he had the benefit of something more than the somewhat one dimensional and superficial reports which were available to him.

  2. The father has today once again been in a position of having to represent himself. This case is yet another example of the consequences of treating private law children proceedings, (in the absence of allegations of domestic violence), as being essentially straightforward matters in which parents are expected to “sort themselves out” and to make appropriate arrangements between themselves to enable their children to spend time with each of them without the necessity for, or entitlement to, legal representation.
  3. The challenges presented by this case are obvious and have been set out above; the difficulties have been demonstrated at every professional level in the case, from the reports being wholly unsuited to the complexity of the case to counsel being unaware of the legal issues thrown up. As a consequence, the judge was left having to deal with the case without the help he needed. If the complexities of the case proved too much for these skilled professionals, what hope was there for the father in trying to represent himself?
  4. Lord Justice McFarlane recorded, when granting permission that the issues raised in the appeal were principally a matter of law and that the father was to be given “every assistance” to obtain legal advice and representation. Unhappily the father appears before the court today once again unrepresented, although supported by JB. To his credit, the father has produced a skeleton argument for the court; his oral argument was courteous and moderate but inevitably did not touch upon the legal principle at the heart of the appeal. The father’s skeleton argument, far from addressing the point of law raised by the appeal, sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives

 

The Court of Appeal did overturn the order and send it back for re-hearing.  That does not automatically mean that the decision is that T will live with SJH, but just that in making the decision it is not a starting point or broad presumption that it would be better for a child to live with a birth parent.  The Court of Appeal were at pains to point out that just as there’s no starting point or broad presumption that natural parent should prevail, nor was there one that the status quo should prevail.

  1. The Law
  2. In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

    30. My Lords, the Children Act 1989 brought together the Government’s proposals in relation to child care law and the Law Commission’s recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

    “We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.”

    Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it “rules upon or determines the course to be followed”. There is no question of a parental right. As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

    31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92-421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92-415 and Re Evelyn [1998] FamCA 55:

    “I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved”

  3. In her conclusion Baroness Hale said:

    “44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.”

  4. In Re B (a child) 2009 UKSC 5; [2010] 1FLR 551 Lord Hope referred back to the passage in Re G set out above, saying as follows:

    This passage captures the central point in the Re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we’d wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in Re G, but the essential task of the court is always the same.”

  5. When granting permission to appeal McFarlane LJ said: “It is highly regrettable that the relevant case law was not drawn to the attention of the judge by counsel then instructed”. I respectfully agree. Had the two key authorities been put before the judge he would inevitably have approached his analysis from a different perspective aware that there is no “broad natural parent presumption” in existence in our law. Miss Renton who did not appear in the court below, on behalf of the Appellants submitted that had the judge approached the case from the correct legal perspective, he would not have fallen into error by elevating the father into a preferential position when he commenced his decision making process. The consequence of having done so, submits Miss Renton, is that whilst all the welfare factors properly analysed, pointed to the status quo being maintained, the biological link between the father and T had subverted the welfare factors in favour of a transfer of care to the father as a “capable father”.
  6. I accept Miss Renton’s submission that the judge wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent. On this basis alone the appeal must be allowed.
  7. In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father, In her grounds of appeal Miss Renton argued that the facts ‘militated strongly in favour of the status quo’, referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor – custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

    I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

  8. In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art “status quo” into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.
  9. In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

 

I’ll clarify this – this is the law for PRIVATE law proceedings, and in care proceedings, there is clear authority that the best person to bring up a child is the parent.

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided thechild’s moral and physical health are not endangered.”

Lord Templeman in Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139 at 141A.

This has been cited approvingly in dozens of cases and is a fundamental underpinning of public children law.  It at essence means that it is not the job of the Court when considering a Care Order application to think about whether the child might have a happier life, or better standard of living and better opportunities if they lived with foster carers or nice adopters, but to decide whether the parents care of the child was harmful to them in a way that could not continue. It is the bulwark against social engineering.

(Many would argue, and Owen Jones in particular has argued that a large part of the adoption system is social engineering, moving children from poor working-class families to middle-class ones, but if the Court does its job properly this ought not to happen)

There might well be some tricky decisions in future months when the options before the Court are not parent v foster care, but ‘good enough but not great parent’ versus ‘stellar grandparents’ – it must be very hard to resist the tempation to ‘fix’ the children’s lives by leaving them with far more capable grandparents. But that is a tempation that Lord Templeman warned us to avoid.

 

The LASPO safety net is a fig leaf

Oh, you’re going to like this one.

This decision from Mostyn J is quite involved, but significant. Even if you aren’t that interested in the very peculiar mechanics, what he had to say about LASPO (see title of the piece) is striking.

 

MG and JG v JF 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/564.html

 

To make it less alphabet soup, I’ll give people names (these are NOT their real names, I’ve made them up)

Jean Grey and Marie Grey were lesbian partners. They wanted to have a child and advertised for a man to provide gametes to make this happen. Jim Francis agreed to do this.

 

The child is born, and named John Fitzgerald Grey.

Jim Francis was having quite a lot of contact with little John, once or twice a month. This all changed when Marie Grey became pregnant with a second child (that donor thankfully isn’t involved in this case), and Marie and Jean stopped Jim’s contact.

 

Jim makes an application to court for contact. Jean and Marie learn that post LASPO they don’t qualify for legal aid. Jim on the other hand has some means and can pay privately.  [He could not be described as being wealthy – it is more comfortably middle class. His property is valued at £1.2 million and he earns £67,000 per year. Sufficient to pay his own legal fees – though probably not without a degree of wincing when he writes the cheques, but we are not in big money divorce territory here]

 

At some point, someone comes up with a cunning wheeze. An application can be made under Schedule 1 of the Children Act 1989 for some of Jim’s capital to be released to the child, and those funds can be used to pay for Marie and Jean’s legal costs.

That sort of thing isn’t that unusual in big money divorce cases where one person holds all of the assets – the Court order that they release some of the disputed funds to the other party to cover their legal costs and when the money is all divvied up at the end, that can be taken into account.

 

But this is a contact application – there isn’t going to be a share out of money at the end.  And as we know, the law in children cases is that each side pays their own costs, unless one party has behaved terribly badly. No suggestion of that here.

So this is in a sense, an application that Jim Francis uses his own money to pay for the other side to fight his application, even though he has done nothing wrong.  Unusual.

 

Firstly then, why shouldn’t Marie and Jean represent themselves, as envisaged by LASPO?

In this case it is my firm view that it is impossible for MG and JG to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights. So even though it cannot be said that JF has behaved reprehensibly or unreasonably he is the only realistic source of costs funding, subject to whatever contribution MG and JG should make from their own very limited resources. Some may say (and have said) that this is grossly unjust; I myself refrain from comment.

 

[I’m not quite sure it is accurate that Mostyn J refrains from comment. He doesn’t make direct comment, but I think the next section gives you a pretty clear idea of his thinking]

 

We add to the complexity that Jean and MArie split up with a degree of acrimony, and that the case also involved disputed about whether the child should be vaccinated.

Mostyn J is scathing here about the changes and the lack of foresight in seeing that cases are inevitably going to emerge where a lack of legal aid causes huge difficulties and unfairness.  This is a breathtaking and masterful dissection of the disaster that LASPO has been for individuals.

 

  1. With very few changes the government’s proposals were enacted in LASPO. A safety net was included by section 10(3)(b) which gave the Director of the Legal Aid Agency the discretion to award legal aid where “it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be …a breach [of Convention or EU rights].” As the President explained in Q v Q (No. 2) [2014] EWFC 31 at paras 6 – 8 the Lord Chancellor issued guidance concerning section 10(3)(b) which stated that it should be confined to “rare” cases which are of the “highest priority”. But this guidance has been quashed as legally defective by Collins J in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin). That decision is under appeal.
  2. As the President explained in Q v Q the number of annual cases where the safety net has been applied can be counted on the fingers of two hands. In the year to March 2014 there were 9. Indeed between December 2013 and March 2014 one solitary case was caught by the safety net. The President stated at para 14 “if the scheme is indeed working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than 8 or 9 cases a year.” Thus it would be perfectly reasonable to describe this “safety net” as a fig leaf. MG and JG have not applied for exceptional funding under section 10(3)(b), no doubt taking the realistic view that any such application would be rejected summarily.
  3. Since the reforms have taken effect there have been an appreciable number of cases which have demonstrated that the blithe assumption in the consultation paper (that the parties’ emotional involvement in the case will not necessarily mean that they are unable to present it themselves, and that there is no reason to believe that such cases will be routinely legally complex) is unfounded. This was entirely predictable. The cases are Kinderis v Kineriene [2013] EWHC 4139 (Fam) (18 December 2013, Holman J); Re B (a child) (private law fact finding – unrepresented father) [2014] EWHC 700 (Fam) (27 January 2014, Judge Wildblood QC); Q v Q [2014] EWFC 7 (21 May 2014, the President); Q v Q (No. 2) [2014] EWFC 31 (6 August 2014, the President); Re H [2014] EWFC B127 (14 August 2014, Judge Hallam); Re D (A Child) [2014] EWFC 39 (31 October 2014, the President); CD v ED [2014] EWFC B153 (14 November 2014, Judge Hudson); Re D (A Child) (No. 2) [2015] EWFC 2 (7 January 2015, the President); and Re K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1 (5 January 2015, Judge Bellamy). This is a formidable catalogue. Each case focussed on the gross unfairness meted out to a parent in private law proceedings by the denial of legal aid. I do not think it would be right to say that these were examples of the operation of the law of unintended consequences since, as I say, the problems were so entirely predictable.
  4. Also of relevance is JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 (21 May 2014) where the Court of Appeal held that the refusal of the (then) Legal Services Commission (LSC) to meet the cost of an expert report was unlawful. A district judge had ordered that the legally aided child, who was a party to the proceedings, should pay for that report. The order recorded that “the cost of the report to be funded by the child, the court considering it to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate.” In the face of a dogged refusal to comply with this order by the LSC the district judge later ordered that:

    “The cost[s] of the expert to be funded by the child the court considering them to be a reasonable and necessary disbursement under her certificate and the purpose of the report is solely to establish what arrangements are in her best interests. Furthermore, the court has carried out a means assessment of both parents and found that they are unable to afford any part of these fees. In reaching this conclusion the court considered the provisions of section 22(4) of the Access to Justice Act 1999.”

    Notwithstanding this ruling the Legal Aid Agency (as the LSC had become) persisted in its refusal, and judicial review proceedings had to be commenced. The Legal Aid Agency actually succeeded at first instance but in the Court of Appeal, despite elaborate and trenchant argument by it and by the Lord Chancellor, who had intervened, its decision to refuse to comply with the order and to fund the report was held to be unlawful.

  5. In Lindner v Rawlins [2015] EWCA Civ 61 the Court of Appeal heard an appeal by an unrepresented husband against a refusal to order police disclosure in defended divorce proceedings. The wife was neither present nor represented. Aikens LJ observed that the appeal was technical and unusual and that the husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. He bemoaned the lack of the legal assistance of counsel that the court should have.
  6. I need only cite a few of the judicial observations. In Kinderis v Kineriene Holman J described the position in which the unrepresented mother in Hague proceedings found herself as follows:

    “The present procedure operates in a way which is unjust, contrary to the welfare of particularly vulnerable children at a time of great upheaval in their lives, incompatible with the obligations of this state under Article 11(3) of the [B2R] regulation, and ultimately counter-productive in that it merely wastes taxpayers’ funds”

    In Re H Judge Hallam was dealing with an unrepresented mother with speech, hearing and learning difficulties. An official of the Legal Aid Agency stated that there would be no breach of convention rights were she to remain unfunded. Judge Hallam stated “I find that statement astounding”. In Re D the unrepresented father, who lacked capacity, had made an application to revoke a care order; the local authority had applied for a placement (for adoption) order. After heavy pressure from the President some legal aid was eventually awarded. At para 31(vi) of his first judgment the President stated:

    “Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention?”

    At para 21 of his second judgment he stated that “the parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.”

  7. In Lindner v Rawlins at para 34 Aikens LJ stated:

    “Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.”

  8. These are powerful criticisms. The President suggested that if the Legal Aid Agency would not award legal aid to an unrepresented parent facing serious allegations then the court might have to do so from its own budget. In Re K & H that was the course proposed. The Lord Chancellor instructed leading counsel who bravely argued that the President’s analysis of the existence of this power was “plainly wrong”. Judge Bellamy disagreed and awarded representation from the court budget. The Lord Chancellor is appealing that decision. It can safely be assumed that the criticisms I have recounted have fallen on deaf ears. Based on the decisions I have cited, including no fewer than four from the President himself, it can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the altar of the public debt. And based on the observation of Aikens LJ, it can reasonably be predicted that the phenomenon of the massive increase in self-representation will give rise to the serious risk of the court reaching incorrect, and therefore unjust, decisions.

 

Just in case you missed it, yes, that was a High Court judge saying that in private family law, the principle of individual justice has been sacrificed on the altar of public debt. And that LASPO is likely to lead to incorrect and unjust decisions.

That noise you can hear just to your leftmy applause echoing.

So, with legal aid not being available, and it being unfair for Jean and Marie to act in person, that was really only leaving Jim Francis as a source of funding.

How much money were we looking at?

  1. Decision
  2. In my judgment JF should pay 80% of each of the claims of MG and JG. Therefore he will pay MG £12,202 and JG £8,394. In addition he will pay 80% of all future professional costs in respect of therapeutic work and MG and JG will each pay 10% of such costs.
  3. Thus MG will have to find £3,050 and JG £2,098 and they will each have to find 10% of the future costs of therapeutic work. In my judgment they cannot reasonably or realistically be expected to find more. By contrast, I am satisfied that JF can find, without undue hardship, the share with which I have shouldered him.
  4. It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.
  5. This leaves the costs of expert evidence which will come into being between now and the IRH. The consent order provides for the educational psychologist to answer further questions and for the psychologist to file an addendum report. In my judgment these should be paid for by JFG and in my opinion such fees are a reasonable charge on his legal aid certificate, for the following reasons.
  6. In JG v The Lord Chancellor & Ors Black LJ explained at para 92 that when read with FPR rule 25.12(4)(a) (which provides that the court may give directions about the expert’s fees and expenses) rule 25.12(6) (which provides that provides that unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses) is not intended to be prescriptive and merely establishes a default position for financial responsibility for the expert in the event that the court does not direct otherwise. She stated: “I do not see it as setting up a ‘normal rule’ that the cost is to be apportioned equally.”
  7. She further explained at para 93 that in order not to fall foul of section 22(4) of the Access to Justice Act 1999 that:

    “It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.”

  8. I do not think that the imaginary scenario that I have to address assumes that everyone is of means. Rather, it assumes the facts as they are with the sole exception that the child is not legally aided but is funded from another source, such as his own means or the means of a relative of substance. Were that the position I would have no hesitation in making an order that JFG bear the costs of these further reports given that MG and JG do not, on my findings, have the means to do so, and given the burdens that I have already imposed on JF. Further, and in any event, it is just and reasonable that JFG bears these costs whether or not he is legally aided because at the end of the day these fees are being incurred primarily for his benefit.

 

 

And again, you read that right, that is a High Court Judge making a decision and saying that some could describe that decision as being grossly unfair but that this is the position that the Government have put this man in.

I partially wondered whether Mostyn J made this decision with a view to it being appealed and having the Court of Appeal rule that it would instead be right for the public authority (the Court) to fund the costs – at the moment, we only have the President’s hints that this is a route and His Honour Judge Bellamy doing it.  A Court of Appeal authority would be much more powerful. I’m not so sure though – an appeal (particularly paying the other sides costs) would run to more than this sum of money, and I think it is unlikely that Jim Francis would be tempted into appealing.

It is, as Mostyn J has said, a sorry state of affairs.

 

It makes uncomfortable reading for donors, or in fact any party in private law proceedings who is earning that sort of money (£67,000 is a lot, but it is not the riches of Croesus; it could easily bite on people who would much rather not spend half of their gross annual income on one court case)

 

 

 

 

 

 

Child giving evidence

Very quick one – this is an appeal just decided, about a 14 year old girl who wished to give evidence in care proceedings. She was saying that the allegations made against her father (about sexual abuse of her younger sibling) were not true, and thus the father was not a risk to her or her sister and her mother had not failed to protect.

 

The Local Authority and the Guardian were both saying that what the girl was saying was not correct  ( This might have covered either that she just didn’t know about the abuse or that she was lying to protect her parents) but that she should not give evidence and the trial Judge had agreed with that.

 

The Court of Appeal ruled that this decision was wrong – this was a witness who had capacity, who was willing to give evidence, she had filed a statement and the contents of that evidence was being challenged and it went to a material issue. The girl should have been able to give evidence, and if her evidence in her statement was not right for that to have been tested in cross-examination.

 

(Of course a Local Authority when bringing care proceedings on a child feels uncomfortable about cross-examining that child and causing them emotional harm, and similarly the Guardian is in a tough position cross-examining a child, but in a situation like this, the child has to be able to give evidence if she wishes)

 

Re R (children) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/167.html

 

  1. In civil litigation the general rule is that where a party witness provides an appropriately verified written statement of her evidence, and is willing to attend for cross-examination, the court cannot be invited by other parties to disbelieve that evidence on a matter within her personal knowledge, unless it has been tested in cross-examination. This is a basic and deep-rooted aspect of the fair conduct of a trial, and reflects the central role which cross-examination plays in the ascertainment of the truth.
  2. It is therefore very unusual to find, as in the present case, a situation where the parties who do wish to challenge verified statement evidence from a party witness with the closest personal knowledge of the relevant events, seek to persuade the judge not to allow that witness to attend for the necessary cross-examination, where the witness herself positively desires to do so. Of course the motivation for this persuasion is of the very highest, namely an understandable concern for the young witness’s welfare. But for that concern, one would expect it to be common ground that there was a need for the witness to attend for cross-examination, since she denies in her evidence the very thing which the Local Authority seek to prove, namely that both she and her sister have been sexually abused by their father.
  3. To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.

Judicial appointment is not a licence to be gratuitously rude

 

You may recall His Honour Judge Dodds, who has not had the best time with appeals in the lifespan of this blog.

https://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

where he made full Care Orders at the first hearing, when none of the parties were expecting that or asking for it.

 

and

https://suesspiciousminds.com/2014/07/02/go-on-then-appeal-me-i-dare-you/

 

Where the Judge refused to assess family members largely because they were in Poland and offered the remarkable sentence of “If you don’t like it, there is always the Court of Appeal”

 

And this is the one that I’ve been waiting for.

Re A (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed143386

 

This was an appeal, arising from the conduct of a hearing. The Judge was asked for several things at that hearing. The mother and father both applied to discharge the Care Order and for more contact. The child SA, asked for DNA testing, saying that she had always had doubts that the father was really her biological father.

It is quite a short judgment, and practically every line of it is remarkable. This is the sort of thing that people who disapprove of the family justice system can rightly point to and say “This is the sort of thing that goes on”

In this case, the appeal was probably the easiest that the Court of Appeal have ever had to deal with – every single aspect of the hearing was wrong and improper. So in this case, the system screwed up royally, but then worked because an appeal put things right. But what we can never know is how many times something a bit like this happens and the advocates don’t appeal. Either they can’t get funding, or their client doesn’t want to, or they take the view that appealing a Judge who approaches things in this way is going to be counter productive in the future  (the “don’t poke an angry bear with a stick” argument)

 

It is a terrible indictment and this case makes sorry reading. The only consolation really is that the child herself was not in Court.

 

5. The importance of and the right of children to know the identity of their biological father has long been recognised and has only recently been restated by the President in Re Z (Children) [2014] EWHC 1999 Fam. Para 5. An application under section 55A is the proper procedural route in order to determine the parentage of a child. It must therefore have caused Ms Roberts and Mr Saunders (who acted on behalf of the Local Authority), considerable consternation when the judge, having dismissed out of hand the father’s application to discharge the care order as, “Factious” and the mother’s as, “An affront”, turned to Mr Saunders and told him that in relation to the section 55A application, “You may want to put your crash helmet on”.

6. Mr Saunders and Ms Roberts valiantly tried to explain to the judge what they sought and why they sought it, only to be met with evermore intemperate responses from the judge. In relation, for example, to the cost of the DNA testing, Ms Roberts told the judge that Legal Aid would paid for it. The response was, “You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”. Judge Dodds continued, “If she (meaning SA) told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?” He continued: “The lunatics have truly taken over the asylum” and “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”. The judge went on to comment, “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”.

7. Finally, the judge in dealing with the actual application said, “There is not a syllable of evidence before me to warrant making the order you seek and so it is refused”. He went concluded:

“At lest there be a nanosecond’s doubt as to the application for an order under section 55A of the Family Law Act 1986, I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.”

 

 

The Appeal Court, as indicated earlier, had no trouble in deciding that the appeal had to be granted and the case sent back to a different Judge for re-hearing.

 

9. In my judgment, it is not necessary to consider the merits of the application itself. The submission that the hearing amounted to a serious procedural irregularity is unanswerable. Each of the points made in the skeleton argument are made good when the transcript is considered. The judge did not allow proper submissions to be made; the premature threat of costs inevitably, and rightly, gave the impression that the judge had a closed mind in relation to the application and no proper reasons were given for the decision to dismiss the application. The manner in which the hearing was conducted went far beyond anything that could be characterised as robust case management.

10. In the event, neither parent attended the hearing, fortunately, although not surprisingly, SA was not there either. Even so, the unrestrained and immoderate language used by the judge must, I am afraid, be deplored and is wholly unacceptable. Such bombast can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent and, rightly, as though their lay clients have been denied a fair hearing.

 

 

and

 

The transcript of the hearing makes embarrassing reading and I hope that Judge Dodds will read it for himself and be ashamed of his behaviour on that particular occasion. Appointment as a judge, at whatever level, is not a license for intemperate language or for being gratuitously rude to advocates and others appearing before you. Judge Dodds’ behaviour on that occasion was beyond what is permissible. It meant that there was a serious procedural irregularity. That particular hearing was not fair. I do emphasise that my remarks concern only that one particular hearing. However, this appeal must be allowed.

 

I am aware that the newspapers in Liverpool made enquiries about whether there was an investigation or complaint into judicial conduct as a result, and were told that there was not, because no complaint had been received.  One does not want to see judicial complaints made each and every time a Judge loses an appeal or gets something wrong, but you might think that an appeal judgment as serious as this might be a trigger for an investigation without a formal complaint being made.

 

[In case you are ever before a Court and this sort of thing happens, and I very much hope that it never does, there is a formal body who deal with complaints about judicial conduct, as a separate body to the appeal process which deals with the decision made.

 

http://judicialconduct.judiciary.gov.uk/making-a-complaint.htm

Re D (part 2) a damp squid

 

 

The President’s judgment in Re D  (part 2) is up.  The blog post about part 1 is here:-

https://suesspiciousminds.com/2014/11/03/everyone-really-ought-to-read-re-d/

Re D is the case in which parents had a care order at home, the LA removed under the Care order, there was no legal aid to challenge that decision despite father lacking capacity to instruct a solicitor. Then the LA lodged an application for a Placement Order, and as it was not joined up with care proceedings, there was no legal aid for THAT either.

Father’s legal team were not only acting for free, but they had to write the Official Solicitor an indemnity that if a costs order was made against the O/S they would pay it. Which is above and beyond.

So Part 2 is all about whether Legal Aid would be granted for the father under s10 LASPO (exceptional circumstances) and if not, what would happen.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/2.html

 

Annoyingly, as keeps happening before the President, the Legal Aid Agency eventually blinked and granted funding, thus avoiding a judgment that might declare that s10 LASPO as being practiced is incompatible with article 6.  So we don’t get a valuable precedent because there was no live issue to try. Grrrr.

 

However, note that the public funding granted here is still subject to an ongoing merits review  (that’s NOT what happens in care proceedings – even if your case looks hopeless you are still entitled to have a lawyer fight it for you)

 

The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows:

“The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place.

The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications, whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”

 

So it could be that if all of the professional evidence is against the parents, they will have no legal aid to have lawyers to challenge and test that evidence at a final hearing, although what is at stake is adoption.

 

The President has strong views about this (though note that parents routinely don’t get lawyers to help them on applications for leave to oppose the making of adoption orders, which also feels pretty shabby to me)

I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:

“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”

A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.

 

The really sad thing about this case is encapsulated by the mother

  1. This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
  2. I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:

    “The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”

    They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?

 

Hear hear.

Equally, it can’t be a decent solution to this situation that we have to get a case before the President before the Legal Aid Agency will blink and see sense. He can’t hear all of them.

The annexe is shocking- it has taken nine months of wrangling to sort out legal aid for something that most people would assume was automatic.

I completely agree with the position of the ALC (Association of Lawyers for Children) and ADCS  (Association of Directors of Childrens Services)  – parents facing an application for a placement order should get non-means, non-merits public funding regardless of when the application takes place.

 

…the ALC makes these two assertions:

    1. “Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
    1. Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”
  1. I draw attention to two of the points made by the ADCS. The first is that:

    “From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings

    In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.”

     

    [For the benefit of pedants, yes, I know it is ‘squib’, but I like that particular eggcorn. Actually, this case isn’t quite as damp as it appeared when I first read it, because there’s a rap over the knuckles for LASPO here, although it doesn’t end up being the declaration of incompatibility that many were hoping for]

Human rights claim – £12,000

 

This is the decision of Bellamy J, sitting as a Deputy High Court Judge.

 

Re H (A child) 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/38.html

 

In this case, the LA accepted that their actions had breached the parents article 8 and article 6 rights, and the only issue was whether there should be a financial penalty, and the scale of it.

 

I’ve rather given the whole plot away (in the style of a cinema trailer that shows you everything that happens in the film) in the title – the parents were awarded £6,000 each.

 

What was the nature of the breach? Well, in effect it was that the LA had obtained written consents from the parents for their child to be in voluntary care, but had not followed the principles of fairness in ensuring that the parents actually understood what they were signing up to and their right to say no.  (You will recall that the High Court gave a powerful precedent on this issue in Re C – particularly where a parent might be lacking capacity)

 

In this case, to be fair, the social worker picked up straight away that these parents might have some cognitive or learning difficulties.

  1. The local authority conducted an investigation pursuant to s.47 of the Children Act 1989. The assessment was completed on 29th May. The local authority considered that the parents had concealed the pregnancy. The local authority concluded that H was at risk of significant harm from her parents due to the concealed pregnancy, the parents’ learning needs and their limited support networks and that it would therefore be unsafe to discharge H into her parents’ care at that time.
  2. During the course of the assessment the local authority social worker noted that the parents’ learning difficulties were evident during discussions and that the parents appeared to have difficulty in understanding and processing information. She discussed her concerns with her manager. She did not take any steps to explore this issue further

 

Thus missing the boat. That would have been the time to get a cognitive assessment done, to establish what the parents issues were and find out the best way to work with them.  It didn’t happen, and arrangements were made for the child without any real consideration of whether the parents properly understood what they were agreeing to.

There is no record of the parents having been provided with an explanation of all of the available options or of the consequences if they did not consent to H being cared for by Mr and Mrs B or of there having been any discussion about how long this ‘informal’ placement might last. They were advised to seek legal advice if they were unhappy with this plan and were provided with a complaints leaflet. The parents did not seek legal advice.

 

 

The case moved to another social worker, who again picked up on the learning difficulty issue immediately.

 

The case was transferred to the local authority’s long-term childcare team in August 2013. The social worker later raised concerns with her manager about the lack of progress in completing an assessment of the parents. She suspected that this may be linked to what she believed to be the parents’ learning disability. The social worker was also concerned that the parents appeared not to have fully understood what they were agreeing to when H was placed with Mr and Mrs B. The parents were anxious to know when H would be returned to their care

 

Did that resolve it? Well, not quite.

  1. In October 2013 the Team manager sought advice from senior management. This led to a legal planning meeting being convened. The meeting took place on 12th November 2013. The meeting recognised that the placement of H with Mr and Mrs B was not a private fostering arrangement and yet was clearly a ‘placement’ as it was initiated by the local authority. The meeting decided,

    (1) that the parents should be asked to give their retrospective consent to the placement of H in the voluntary care of the local authority pursuant to s.20 of the Children Act 1989 with effect from the date she had been with Mr and Mrs B (7th June 2013);

    (2) that there should be an urgent cognitive functioning assessment of both parents in order to inform the local authority assessment and how best to work with the parents.

    (3) that if the parents refused to consent to H being accommodated under s.20 and placed with Mr and Mrs B and/or to co-operate with arrangements for a cognitive functioning assessment, then the local authority would commence care proceedings.

  2. It was also agreed that the social worker would meet with the parents to discuss the decisions made by the legal planning meeting. It was accepted that H, her parents and Mr and Mrs B had been subjected to unacceptable delay and uncertainty and that the need for conversation with the parents was now urgent.

 

 

Absolutely right that there should be a cognitive assessment. But to try to get the parents to sign a s20 agreement when there was a doubt as to their capacity can’t be right. This is of course after the Re CA decision, so obviously some people haven’t read it. Let me set out those principles again

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

IF YOU DOUBT that a parent has capacity, you really shouldn’t be getting them to sign ANYTHING, particularly not a section 20 agreement.

 

Back to the case – the cognitive assessment didn’t arrive until 1st April 2014 – yes, eleven months after the issue was first spotted, and six months after it was spotted the second time around and a Legal Planning Meeting recommended it.

 

Perhaps my experience is unusual, but having worked at seven local authorities, I’ve never had a difficulty in obtaining a cognitive assessment – they aren’t reports that take a long time to produce – you can normally get them within 2-3 weeks of asking the doctor to provide them.

 

Oh wait, I’m wrong. That was the date of the APPOINTMENT. The report itself didn’t turn up for another 8 weeks, at the end of May. So yes, a year had passed between thinking the parents had learning difficulties and getting a cognitive.

 

To paraphrase Edmund Blackadder, we may have been at home for Mr and Mrs Cock-up here.

 

Here’s what the cognitive assessment said

  1. It is appropriate to set out Dr James’ conclusions at this stage in the narrative though she did not, in fact, report until 27th May 2014.
  2. With respect to the mother, Dr James says that all of her scores fell within the borderline range, indicating consistently limited functioning across all areas. With respect to the father, Dr James says that:

    ‘While [the mother’s] scores give a consistent picture of Borderline abilities, the distribution of [the father’s] scores, ranging as they do from Learning Disability, through Borderline to Average, is unusual, and presents a complex picture. As a result of this intellectual profile, [the father’s] ability to understand, process and use verbally mediated information and concepts is significantly below what might be expected, given his ability in other areas. This is likely to present a very real limitation for him in everyday life. The most likely explanation for this very specific impairment is that it is related to his epilepsy.’

  3. Dr James gave advice on how the parents should be approached. With respect to the mother, Dr James said that:

    ‘As far as information and advice presented verbally are concerned, [the mother] has a reasonable ability to understand this, and I would expect her to be able to cope well with the kind of discussion likely to take place during a parenting assessment. She will seem at times to be a little slow to respond to what is said, but if you wait for an answer she will give it in a way which shows that she has understood the question.’

    With respect to the father, Dr James advised that:

    ‘Allowance will need to be made for [the father’s] specific difficulties with verbal comprehension…Of particular importance in the course of the assessment will be not expecting him to portray verbally what he is capable of, since he can evidence this more effectively through practical means. In other words, his behaviour rather than his descriptions will be the best guide to what he can achieve.’

  • In a subsequent letter, Dr James gave the following further guidance so far as the father is concerned. She said that, 

    ‘The following guidance is intended to help his Solicitor to support him to have full capacity in the Proceedings. At the beginning of an appointment, [the father] can present with rushed speech, and a jumbled account of recent events. He needs a little time to settle down, after which he will become more coherent, and can be systematically led through the information he wants to convey. He responds well to direct questioning. Advice given to him should be expressed carefully to avoid ambiguity. Ideally, each sentence should contain one idea only, with a pause at the end of the sentence for this to be absorbed, before offering the next piece of advice or information. It can also be helpful to specifically remind him to listen carefully to important points.’

 

But you know, maybe these parents were unknown quantities and that explained some of the problem. Nope.

 

  1. Given that the father was in the care of this local authority during his own childhood, much of this information about his presentation and functioning should have been contained in the local authority’s earlier case file and should, therefore, have been available to the local authority when it became involved with the father again following the birth of H.
  2. The local authority finally issued these care proceedings on 29th April, 2014. H was born on 16th May, 2013. She was, therefore, fast approaching her first birthday when these proceedings were issued. It took this local authority almost a year to issue these proceedings. That delay was unjustified and inexcusable.

 

Where the Local Authority did recover some mild credit was in ‘fessing up once these mistakes came to light, rather than trying to defend the indefensible.

  1. Sonia Grant, Service Manager in the local authority’s Children In Need Service, filed a written statement. Most of the narrative set out above is based on Ms Grant’s evidence. Ms Grant concedes that in this case the performance of this local authority has fallen below acceptable standards. She says,

    ‘4.1 The local authority’s review of the events surrounding both situations has identified serious practice issues relating to the identification of [the mother’s] capacity to give consent, particularly in respect of the placement with Mr and Mrs B in June 2013.

    4.2 The parents’ capacity to consent was not fully considered or explored at all the key stages of the assessment and decision-making process…

    4.5 The placement with Mr and Mrs B was clearly a ‘Section 20 placement’ made by the local authority, who would have had to place H in foster care and possibly initiate care proceedings if Mr and Mrs B could not care for her. The Legal Planning Meeting held on 12th November attempted to bring the matter back on track to avoid further delay, but there was a significant delay in arranging the cognitive functioning assessment which only added to the delays within the case.

    4.6 The local authority accepts that the social work judgments and decision-making within this case fell below what was required at key points, and failed to fully take account of the combined complexities of the parents and H’s competing needs in a timely and child-centred way.

    4.7 The issues about parental capacity to give consent that occurred within this case have highlighted the urgent need to ensure social workers are aware of their responsibilities in this area. Therefore, the local authority intends to urgently address this training issue to avoid this happening again.’

  2. It is against that background that the local authority accepts that it has breached the parents’ rights under Article 6 and Article 8 and that it is appropriate for the court to make declarations. With respect to the declarations sought by the mother, the local authority concedes that it has acted in breach of the mother’s Article 6 and Article 8 rights in that it:

    1. failed to issue proceedings in a timely manner;

    2. failed to involve the parents in the decision making process;

    3. failed to take steps to explore concerns regarding the mother’s lack of understanding [though making the point that at the meeting on 18th November 2013 the social worker was satisfied that the parents were able to provide informed consent to s.20 accommodation at that stage];

    4. should not have sought the parents’ consent on 31st May 2013 or taken their proposals of alternative carers as consent to the placement with Mr and Mrs B;

    5. placed insufficient weight on the parents’ clearly expressed wish to care for H themselves;

    6. failed to explain all available options, timescales and the consequences if they did not consent to H being cared for by Mr and Mrs B;

    7. should not have asked the mother to sign an agreement on 3rd June 2013 consenting to placement away from the parents;

    8. permitted H to be cared for away from her parents against their expressly stated wishes;

    9. failed to acknowledge that they had placed H with Mr and Mrs B or to undertake a written viability assessment of Mr and Mrs B [though noting that it did undertake routine checks, interviews and a review of the accommodation in the process of making a decision that it was a safe arrangement for H]; and

    10. significantly delayed in assessing the parents’ capacity to parent H.

  3. With respect to the declarations sought by the father, the local authority concedes that it acted in breach of the father’s Article 6 and Article 8 rights in that it:

    1. failed to provide him with appropriate information as to the consequences of not consenting to s.20 accommodation;

    2. failed to consider or explore his capacity to consent to s.20 accommodation before removing H from his care;

    3. permitted unacceptable delay and uncertainty in the assessment process; and

    4. by its flawed procedures, deprived the father of living with H for the first year of her life [though being of the view that both parents have complex histories and difficulties and that H’s removal pending assessment of the parents was necessary to ensure her safety].

 

Having established those breaches, the Court then turned to the issue of damages. It is too law geek for the general public, but the judgment does set out an helpful analysis of the law and judicial approach towards making punitive awards in family law cases. It would be a decent starting point for skeletons for and against the principle.

 

  1. In the case with which I am now concerned H is these parents’ first child. Whilst it may be the case that had the local authority issued care proceedings soon after H was born an interim care order would have been made, the fact is that proceedings were not commenced promptly. They were not issued until shortly before H’s first birthday. It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.
  2. I am in no doubt that, bearing in mind the guidance given in the authorities to which I have referred, this is a case in which merely to make the declarations set out earlier in this judgment would not provide just satisfaction for all that these parents have had to live through as a result of the conduct of this local authority. I am satisfied that an award of damages is ‘necessary to afford just satisfaction’ to these parents.
  3. Quantum
  4. The final issue is to determine the appropriate quantum of damages. There is little guidance in the authorities on the approach to be taken when quantifying an award of damages under s.8(2). If one looks at the authorities for appropriate comparators, again there is relatively little assistance.

 

It is worth noting the underlined passages – these parents were successfully reunited with their child, and had lost the first year of that child’s life due to these mistakes.

 

The Court looked at such historical precedents as there were for human rights act breaches and financial recompense and agreed with the parents that their claim for £6,000 each was fair.   (I think that’s probably a bit light, having read the case, but can you really be compensated for something as priceless as time with your child?)

 

To finish up, there was a film which had a very memorable strap-line, used in the trailers and on the posters. It was so memorable that everyone knows it, though hardly any of you will be able to tell me which film it was from. Let me know if you know it, or think you do.  Googling or such is cheating – you either know it, or you don’t. I know that you can type.

 

The strapline, apposite here was

 

BE  AFRAID

 

 

BE VERY AFRAID

if legal aid is being refused to people such as this mother I am satisfied that injustices will occur

This is a report of a short judgment from Her Honour Judge Hallam sitting in Middlesbrough, building on a decision from District Judge Reed in the same Court. Huge credit to both of them for calling out the Legal Aid Agency on this dreadful state of affairs   (the LAA in turn are just doing what they are told to do by our Lord  Chancellor)

 

Re H 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B127.html

 

 

This was a private law case, between a mother and a father. The father had legal aid, because the child was known to social services and they were supporting him. The mother did not.   [One could make far more sense of it if it were the other way around – the father had a lesser need of representation because his case was being supported]

 

At a hearing in May 2014, the Court picked up that this mother was not someone who was going to be able to represent herself – there was an assessment of her cognitive abilities that assisted with that

 

She is not sufficiently disadvantaged to say that she does not have capacity to litigate. She has capacity to litigate but in my judgment that is only with the assistance of a solicitor. She has difficulties in hearing, in speech and intellectual difficulties. She is unable to read or write. They are not fanciful difficulties. In previous public law proceedings there has been a report from Dr Cooper, who is a psychologist, informing the court of the mother’s cognitive difficulties and learning difficulties. Having seen the mother in court, I am satisfied that she would not have been able to represent herself in a case as complex as this and therefore, in my judgment, she was, to all intents and purposes, prevented from having access to this court

 

 

At that hearing, D J Reed gave these directions

 

The matter came before District Judge Reed in May of this year, on 19th May. As I say, it was apparent at that stage that the mother opposed the father’s application. Furthermore, it was apparent that the local authority supported the father in his application. There was a recommendation about contact. When the matter came before District Judge Reed, the local authority, Middlesbrough Council, were made a party to the proceedings. At that stage the mother was self-representing and the judge was clearly concerned about that and there is a lengthy preamble to the order that he made in May. That preamble recorded that the attendance of GHu in court to support the mother was not appropriate, given the issue in the case. He recorded that:

 

 

 

‘In the absence of legal aid to secure representation of the mother, it is inevitable that her article 6 and her article 8 ECHR rights will be at risk of being violated, given her evident speech, hearing and learning difficulties, if the case proceeds without further representation.’

 

 

That could not have been a clearer indication of the judge’s opinion and consideration of this matter and therefore he also said that:

 

 

 

‘On its facts and having regard to the surrounding circumstances and, in particular, the recent party status of Middlesbrough local authority, the criteria for assessing an exceptional grant of legal aid are likely to be made out.’

 

 

He went further and said that the local authority involvement in the current proceedings is based largely on public law and child protection issues relating to the respondent mother’s fifth child, subject to public law proceedings which concluded in 2014, resulting in both care and placement orders. He said there is considerable similarity and overlap in the issues which present in both sets of proceedings. That part of the preamble continues with:

 

 

 

‘Furthermore, in the circumstances of this particular case and those of the respondent mother, it would be unrealistic and potentially unjust to expect the respondent mother to be a self-representing person.’

 

 

Therefore he adjourned what was to be a final hearing on that occasion in order for a further application to be made to the legal aid authorities.

 

 

You might think that you could not have a clearer indication (particularly in light of Q v Q) that the State would be breaching mother’s article 6 and article 8 human rights by not allowing her to have free legal representation.

 

You will, however, not be surprised to know that the Legal Aid Agency did not grant her exceptional funding under s10 LASPO. Of course they didn’t. As part of that decision, they considered that there was no risk of article 6 or article 8 breach. Of course they are in a far better position to assess that than the Judge who is seized of all the facts and knows the stakes. Of course they are.

 

The second matter that I am told that Mr Keegan relied upon was that there would be no breach of Convention rights. I find that statement astounding. A district judge had already found, having seen the mother, that undoubtedly her article 6 and article 8 rights would be breached. When I pause to consider the article 6 first of all, which is to ensure that people have fair trials in the courts of this country, and in order to do that should have equality of arms, I cannot see how anyone can come to the conclusion that this mother’s article 6 rights were not in jeopardy. I repeat again the father has the support of a legal representative. The local authority, who are advancing a case contrary to that of the mother’s, has legal representation. Without legal aid, therefore, the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms. She is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation. She is faced with the father, who has the greater ability and the support of social services; as I say, both being legally represented. In effect, this vulnerable mother is faced with two advocates running a case against her and she does not even have one. I cannot think of a clearer breach of article 6. Article 8 – this matter is clearly about family life and the mother’s right to family life, whether the children should be in her care or not and what contact she should have. Again, I cannot see any conclusion other than that her article 8 rights were engaged, as the district judge said, in my view, properly, in the court below.

 

 

Fortunately for this woman, someone stepped in to represent her pro bono, but that doesn’t get away from the fact that we simply don’t have a system where s10 LASPO is the safety net that the MOJ claimed that it was when they were getting this awful legislation through Parliament.

 

If a Judge says that a person’s article 6 rights will be breached without representation, that’s a really really really good indicator that they would be. Judges don’t say these things for fun.

 

Ithas been fortunate that she has had the assistance of someone today because this matter has reached agreement. However, it is not right that legal professionals should have to attend a hearing, as complex as this one, without remuneration. The mother still has concerns about the father’s care for the children and many of those concerns are shared by the local authority, so she has not been running a fanciful case. The matter has resolved; it has resolved with an order and a very detailed working agreement. Again, I cannot see how this mother could have entered into that working agreement which has resolved this case without the assistance of Mr Nixon here to help her understand it, consider whether it was right and ultimately agree to it. Therefore, I have given this judgment because I am satisfied that this mother should have had legal aid and should have been represented. Mothers in her situation should have proper and full access to the court with the assistance of legal advice. As I have said, I am going to order a transcript of this judgment, both for the Legal Aid Board and also because I feel that it should be shown to the President of the Family Division to show what is happening in these courts. I am told that since April 2013 there have been only eight or nine cases where exceptional legal aid has been granted. I do not know if that is correct, but if legal aid is being refused to people such as this mother I am satisfied that injustices will occur. Had this matter proceeded without the assistance of Mr Nixon to a fully contested hearing, this court would have been put in an impossible situation. Having said that, I approve the order. I am grateful to everybody for the time they have spent and I am also, as I keep saying, very grateful to Mr Nixon for having attended today.

 

LASPO and article 6 – a huge case

The President has given his judgment in Q v Q, and it is a helluva read.

If you want the “Too Long: Didn’t Read” version – in a case where the Judge concludes that it is necessary for a party to be legally represented or to have the costs of an expert paid for and that failure to do so would be a breach of article 6, and the Legal Aid Agency refuse to use their power under s10 LASPO to grant exceptional funding,  the Court would be entitled to order that Her Majesty’s Court Service pay for the legal representation.

 

The original Q v Q I wrote about here :-  https://suesspiciousminds.com/2014/06/09/q-v-q-an-impasse/

 

The facts broadly are that a father was seeking contact with his child, an expert assessment as to future risk had been obtained, he disagreed with the conclusion and wanted to challenge it by way of cross-examination, but wasn’t in a position to do that himself, it was a task that would have been beyond him.  At the end of the judgment, the President floated the idea that if the Court considered that a party’s article 6 right to a fair trial was being breached, and the Legal Aid Agency wouldn’t pay for representation, then the Court Service might well have a duty to.  He didn’t finally determine that, giving the Ministry of Justice a chance to intervene and make representations as to why not  (they didn’t take that chance, because they are not the brightest crayon in the box)

 

The President also bundled up with Q v Q two private law cases where serious sexual offences were being alleged against the father and the Legal Aid Agency’s refusal to grant exceptional funding was going to place the Court in a position where the father might have to cross-examine in person the alleged victim. One of those,  D v K and B 2014   I wrote about here https://suesspiciousminds.com/2014/03/14/equality-of-arms-d-v-k-and-b-2014/

 

The judgment in Q vQ 2014 is here

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html

 

I have not been, over the last few years, the biggest flag-waver for the President – many of my grumbles are about his performance as a reforming administrator rather than a Judge; but he delivers for justice here.  And puts a target on his head, because this won’t be a popular decision in the Ministry of Justice, who are probably in a room now with a flip chart drawing up battle-plans and watching old episodes of  Judge John Deed to try to pick up some tips for when the MOJ are at war with a ‘rogue’ Judge.

 

Let’s have a quick look at why the MOJ, when placed on notice that the President was contemplating making a decision that would in effect be – “either the LAA write a cheque or HMCS write a cheque, but a cheque’s going to get written”, decided not to get involved

I decided to invite the Secretary of State for Justice (para 20) to:
 

“intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.”
On 25 June 2014 I received a letter from Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice in the Ministry of Justice. After an opening paragraph the letter reads as follows:
 

“I am very grateful for the opportunity to intervene but the Ministry of Justice does not propose to do so in this case.
Ministers have no right or power to intervene in individual legal aid funding decisions made by the Director of Legal Aid Casework. The independence of the Director is an important statutory measure, which ensures impartiality in decision making. From the information recorded in your judgment, it is clear that the father in this case failed to satisfy the statutory merits criteria required to access funding. The merits test is a fundamental and long established part of the legal aid system, and ensures that limited public money is focussed on sufficiently meritorious cases and is not available in cases lacking sufficient merit. It is clearly established that it is legitimate for the Government to focus limited public resources through applying a merits test.
As you record in your judgment, there is expert evidence in the case (one report plus addenda commissioned by the father and one plus addendum commissioned jointly by the mother and the father) which set out unequivocally that the son would not be safe in his father’s presence and that at the moment there should be no contact between the father and the son. There have always been litigants in person in family proceedings, whether because individuals do not qualify for legal aid or choose to represent themselves, and the Courts have been able to resolve such proceedings justly and fairly.
I agree with you that further delay should be avoided in this case and, in the absence of a mechanism for funding the appearance of the experts or representation for the father, you will have to decide this issue in the absence of the cross examination you refer to in your judgment.”

 

So, we’re not coming, and if you can’t find a lawyer to do the cross-examination for free, then you’ll just have to decide the case without any cross-examination.

 

Do you remember in 1984 how Orwell talks about the Ministries in Airstrip One being named for the opposite of what they really do? So their Ministry of Peace was really a Ministry of War and so on?   Ladies and Gentlemen, I give you the Ministry of Justice.  Bravo, bravo.

 

The President goes through the various options, looking chiefly at the cases involving an allegation of rape in private law proceedings which is challenged and where the ‘accused’ has no lawyer.  In short they are ‘pro bono’,  the Guardian conducting the cross-examination, the father doing it in person or the Judge doing it and shows why each are insufficient and flawed.

 

He then establishes that as a result of European jurisprudence, notably  Airey v Ireland, and the Human Rights Act, the Court itself is bound by article 6 and fair trial and would itself be breaching the person’s right to a fair trial if it were to conduct the trial in a way that it considers to be unjust

 

46. The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention. So far as is material for present purposes Article 6(1) provides that “In the determination of his civil rights and obligations … , everyone is entitled to a fair … hearing within a reasonable time”. Article 8, which guarantees “the right to respect for … private and family life”, also affords significant procedural safeguards in relation to the court process. As the Strasbourg court said in McMichael v UK (1995) 20 EHRR 205, para 87, “the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
 

47. It is necessary also to have regard to Article 47 of the European Charter of Fundamental Rights:
 

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”
I do not take up time considering whether this is applicable in cases such as those before me. In any event, it is not clear that it creates any greater right than arises under Articles 6 and 8 of the Convention: see Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin), paras 36-37.

48. Article 6 guarantees the right of “practical” and “effective” access to the court. In the case of a litigant in person, the question is whether, without the assistance of a lawyer, the litigant will be “able to present her case properly and satisfactorily”: Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, para 24. In that particular case, the court held that Ireland was in breach of Mrs Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge would afford to parties acting in person. In DEB v Germany [2011] 2 CMLR 529, para 46, the CJEU summarised the Strasbourg jurisprudence in this way:
 

“Ruling on legal aid in the form of assistance by a lawyer, the ECtHR has held that the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself effectively.”

49. Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.”

 

 

The President also looked at section 31 G (6) of the  amended Matrimonial and Famly Proceedings Act 1984

 

33….section 31G(6) of the Matrimonial and Family Proceedings Act 1984, set out in Schedule 10 of the Crime and Courts Act 2013, which came into effect on 22 April 2014:
 

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

 

And in conclusion

 

75…does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim’s rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.
 

76. The second thing which is unclear is this: what, in contrast to the word “put” in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J and Judge Wildblood said in the passages in their judgments (respectively, para 24 and paras 6(iii)-(v)) which I have already quoted.
 

77. The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are, as both Roderic Wood J and Judge Wildblood understandably pointed out, great difficulties in expecting the guardian or the guardian’s advocate to undertake this role – difficulties which were expounded also in the argument before me. I agree with what Judge Wildblood said (para 6(ix) quoted above). The point applies with equal force in the circumstances of both Re B and Re C.
 

78. What then is the court to do if the father is unable to pay for his own representation and “exceptional” legal aid is not available?
 

79. In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.

 

 

Now, some caveats  – the President is careful to say that these were cases with particular characteristics, each involving allegations of sexual offences and two involving allegations of rape, and that he had been looking at these cases in particular not s10 LASPO in general.   And also we need to bear in mind that  (a) the LAA might appeal this decision, as they are threatening to do with Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin),  and (b) hardly anyone at the LAA seems to have taken on board Gudanaviciene so far, as can be seen from the Smackdown judgment from HH Judge Bellamy I wrote about yesterday.     The criminal bar were all cock-a-hoop about the  Op Cotton judgment and the rug was pulled out from under them by the Court of Appeal.

 

Here are the President’s own caveats   (and if you are a Local Authority lawyer or budget-holder note the chilling implications of the LA funding intervenors or grandparents to litigate against them)

 

Three caveats

In this judgment I have been concerned only to consider the problems that may arise in private law cases. I have therefore not had occasion to consider any further the point I made in Q v Q (para 18), where I suggested that “In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay.” That is a matter for another day.
 

I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.
 

I emphasise also that the allegation in each case is one of sexual assault, in two of the cases an allegation of rape. It may be that a similar approach is appropriate in cases of serious non-sexual assault. It may be that it will not be appropriate in less serious cases. I express no concluded views, beyond drawing attention to the trite observation that everything will, in the final analysis, depend upon the particular facts of the specific case.
 

Concluding observations

The Ministry of Justice, the LAA and HMCTS may wish to consider the implications. That is a matter for them. For my part I would urge the early attention of both the Children and Vulnerable Witnesses Working Group and the Family Procedure Rules Committee to those aspects of the various matters I have canvassed that fall within their respective remits.

 

In both of the live cases, the Judge gave the Legal Aid Agency one last chance to see sense and grant the funding under LASPO, but gave the clearest of indications that to proceed without representation would be an article 6 breach and that the Court would have to consider its own duty to fund such representation.

 

Written Agreements

 

Written agreements in cases involving Social Services are always a tricky thing. It is important that the wording is clear about what is being asked of a parent and what is okay and what’s not. It is also important that they are fair and not  “setting a parent up to fail”

 

These would be my golden rules for parents about written agreements

 

1. Don’t sign one unless you understand every single bit, and you’ve been told clearly what will happen if you don’t stick to it

2. If you have a lawyer, you should ask for legal advice BEFORE you sign it.  If you don’t have a lawyer, say that you want the Local Authority to hold a Meeting Before Action, so that you can have free legal advice about the agreement.

3. If you think that something isn’t fair, say so

4. If you’re willing to do what is being asked, but you want help, ask for that help to be identified and put in the agreement

5. Never ever sign a written agreement if you don’t intend to stick to it – your position is made worse by signing it and not doing it than by not signing it.

 

 

And for social workers

 

1. Be clear

2. Be fair

3. Don’t try to solve every tiny problem – worry about fresh fruit and veg and home-cooked shepherd’s pie AFTER you’ve solved the violent partner hitting the children.

4. It should be a two-way street – what are you doing to help the parent?

 

The Court of Appeal touch on a particular aspect of Written Agreement in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

 

There are some important issues in this case, so I will do a follow-up post, but just on the Written Agreement issue.

 

In August 2012 a social worker, Ms Nesbitt, was appointed to the case and in October 2012 began work on a core assessment. On 12 November 2012 the mother and Ms Nesbitt signed a document which described itself as an “Agreement” made between the local authority, the mother and the paternal grandmother. So far as material for present purposes it read as follows:
 

“This is not a legal agreement however; [sic] it may be used in court as evidence if needed.
This agreement has been complied [sic] to ensure that [the mother] agrees for [the children] to remain in the care of paternal grandmother whilst further assessments are completed.
[the mother] agrees to [the children] remaining in the care of paternal grandmother whilst further assessments are completed.

 

[As one of my commentators once had a go at me for [sic]  I will point out that these are the words of the Court, not mine. I loathe the use of [sic], and it isn’t something I would ever do.]

 

Ryder LJ seems to have assumed, and I can well understand why, that the powers the local authority was exercising in and after July 2012 were those conferred on it by section 20 of the Children Act 1989. But the very curious terms of the “Agreement” dated 12 November 2012 give pause for thought. Why was it stated to be “not a legal agreement”? Why was it said that “it may be used in court as evidence if needed”? Whatever it meant, and whatever its true legal status, it was treated by the local authority as enabling it – I decline to say authorising it – in effect to control this mother and her children. And, moreover, to exercise that control without the need to commence care proceedings and hopefully, from its perspective, without exposing the local authority to the various obligations which arise in relation to a child who is or has been ‘looked after’ in accordance with section 20.
 

I express no view at all as to whether this was in law the effect of what was being done, a question on which my Lady’s judgment in SA v KCC (Child in Need) [2010] EWHC 848 (Admin), [2010] 2 FLR 1721, is illuminating (compare the facts in that case as analysed in paras 57-60, 72-74). See also my Lady’s judgment in Re B, Redcar and Cleveland Borough Council v Others [2013] EWCA Civ 964, [2013] Fam Law 1382, and the earlier judgments of Smith LJ in Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181, para 49, and of Baroness Hale of Richmond in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535, para 42, to which Mr Boucher-Giles referred us.
 

That is not all. I suspect that the reference to the “Agreement” being “used in court as evidence if needed” can only have been intended to have the effect of warning the mother that if she did not ‘toe the line’ the “Agreement” would be used against her in some way in any proceedings that ensued. I remark that, as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.
 

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?
 

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing.

 

There are two issues here :-

 

1. The use of the wording that “this is not a Legal Agreement”  and

 

2. Whether a written agreement that is signed as ‘mere submission in the face of asserted state authority’  is fair

 

On the first point, I’ve seen this wording crop up on Written Agreements, and I don’t care for it. It is factually true that the document is not a Legal Agreement – in the sense that the Local Authority can’t sue for compensation or breach of contract or go to Court to MAKE a parent give up heroin because they agreed to it in writing.  But as the Court of Appeal point out, it is a document that would be used in evidence if there was a breach. It is a document that HAS CONSEQUENCES if you don’t stick to it, and those consequences are legal ones.

 

Does writing ‘this is not a Legal Agreement’ on them assist a parent? Well, I think very few parents were signing under the impression that the document was a contract under Contract law.  Does it hinder a parent? Well, if any of them read that message to mean ‘you don’t have to stick to it’, then yes, it does.

 

I can only think that at some time in the distant past, someone or other has said “These Written Agreements have to have written on them ‘This is not a Legal Agreement’, and it got absorbed into practice or philosophy. It might even have been a Judge. I haven’t found an authority to that effect, but it could easily be a small line in a judgment.

 

On the second, the Court of Appeal don’t go as far as saying that written agreements signed in that way should be disregarded   (unless they are a section 20 agreement that the child should live elsewhere, in which case it is established law that this consent must be given on an informed basis and freely, not under duress.

But it raises an important point – if the Written Agreement, as so many of them are, is really a  ‘sign this and you get one last chance before we take the kids’ then is the consent to the written agreement just an extension of what the Courts have ruled wrong in s20 cases ?  Remember that the s20 cases are not about the wording of the Act, which doesn’t mention consent at all, but about the wider Human Rights Act principles of proportionality and fairness.

 

Written Agreements can be valid tools for helping a family to change, to solve problems and in some cases to remove the risks that would otherwise make the children unsafe at home, but a degree of thought has to be given about their construction and use if they are instead being ‘sign this or else’

 

The principles in Re CA would be a sensible way to look at Written Agreements  (even when they are not agreements that involve agreement that the child live elsewhere , section 20)

 

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

 

 

 

 

Vulnerable witnesses and parents article 6 rights

 

 

This is a big case anyway, but it particularly struck a chord with me having heard Penny Cooper speak very eloquently at the Westminster Policy Forum yesterday on the shabby way vulnerable witnesses are treated in care proceedings as compared to criminal proceedings.

 

The Court of Appeal in Re J (A child) 2014 overturned a finding of fact by Pauffley J that a vulnerable witness X had been sexually abused by the father in private law proceedings. This had become pertinent in the private law proceedings because X had contacted the mother and told her, and the mother had decided that if what X said was true, the mother didn’t want father around the children.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/875.html

 

The witness in question, X, had been the subject of litigation that went all the way up to the Supreme Court, on the issue of whether father was entitled to see the details of what the allegations were, you may remember it

 

Re A (a child) 2012   http://www.bailii.org/uk/cases/UKSC/2012/60.html

 

The lawyer representing her, Sarah Morgan QC was arguing there that the prospect of X giving evidence in her circumstances was so traumatic that it amounted to an article 3 inhuman and degrading treatment breach.

 

The expert evidence about X was this

“It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy.”

The Supreme Court didn’t go that far, but were sympathetic

 

This was what happened in relation to X’s evidence at the finding of fact hearing.

 

  1. In the light of the advice of Dr B, X gave evidence in the proceedings over a video link. Throughout she was supported by a trained registered intermediary who sat in the video room with her. It was planned that X would give oral evidence over the course of the Monday and the Wednesday during the first week of the hearing. However, for much of the morning of the first day X felt unable to contemplate answering questions and required discussion with and encouragement from her legal team assisted by the intermediary. Her evidence in chief, which was punctuated by breaks to enable X to re-gather her confidence, occupied the remainder of the first day and much of her second day in the witness box. Frustratingly, the first day of evidence coincided with what the judge described as “quite appalling noise disturbance” coming from road-works outside the video room window.

     

  2. During the morning of the second day a further difficulty occurred. One of the clear ground rules established for the giving of X’s evidence was that at no time should F see X on the television screen. F failed to abide by this ground rule and, on being spotted by the judge craning forward to see X, the evidence was abruptly curtailed. The effect of this event upon X is described by the judge as being “considerable” and that “thereafter, progress was painfully slow”. In the event the judge decided that F should leave the court room. However, by that stage X had become distraught and had locked herself in the lavatories in the court building and was refusing to come out. The court therefore adjourned for the rest of the morning hoping that X’s testimony could be resumed after lunch. X’s evidence in chief then continued until shortly before 3.30 p.m. Thereafter, following a short break, counsel on behalf of F cross-examined for something short of one hour. At 4.25 p.m. the judge concluded the process for the day and also concluded that “it would have been inhuman to have required X to return for a third day”. Cross-examination on behalf of F was thereby cut short and ended at that point. There was also no cross-examination on behalf of the guardian.

 

Clearly the process was pretty ghastly, and also it is clear that the father did not get to have all that he wanted to put to X in cross-examination put to her.

 

This is what Pauffley J said about X’s evidence

 

  1. Under the related heading of “X’s presentation at this hearing” the judge went on to describe X’s presentation during her evidence in striking terms:

     

    “I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme.”

  2. That observation, coupled with the detailed description that the judge gives in the ensuing paragraphs, is a matter to which I give the greatest regard. This court frequently, and rightly, reminds itself of the substantial premium that must attach to the analysis of a trial judge who has had the experience, not available to those who sit on appeal, of observing the key witnesses give their testimony live at the court hearing. When the judge in question is a tribunal of the experience and standing of the judge in the present case, the level of respect and the premium that attaches to her observations must be of the highest order.

 

When a High Court family Judge describes hearing evidence as harrowing in the extreme, that is not something one can take lightly. The tolerance that High Court judges have for hearing things that would make most people faint or run out of the room to avoid is very high indeed.

 

Sarah Morgan QC described the process of X’s evidence like this

Miss Morgan submitted, and I readily accept, that the transcript of X’s evidence gives no real impression of the quality of her presentation over the video link. She told the court, and again I accept this, that this case was one that would stay in the minds of all of the professionals who had been in the court room “for decades”.

 

The whole thing was rather compounded by the father not being able to get legal aid, for one reason or another, and then that the barrister paid for by the Local Authority to represent him  (as the alternative would have been him cross-examining X himself) not realising until very late on that she was in conflict and someone fresh having to pick up the papers.

 

During the fact finding hearing, the Guardian’s team took on an almost amicus role to assist with this, putting both sides of the case and making extremely detailed submissions of the pros and cons of the evidence and the considerations that the Judge had to make.

 

And did so similarly at the appeal

On behalf of the children’s guardian Mr Paul Storey QC and Ms Camille Haboo have, through their submissions, continued to provide the court with assistance which is of the highest quality. At the stage of the conclusion of their written submissions they retained a neutral position as to the outcome of the appeal. Their helpful oral submissions included the following points:

 

a) In a case where there is no direct physical evidence or other clear “diagnostic” proof of sexual abuse, the process of judicial evaluation requires great subtlety;

b) There was an inevitable imbalance in the court process as a result of the inability of any party to cross-examine X;

c) There was a need for the judge, who obviously found X to be a very impressive witness, to exercise caution in relying upon such an impression where the full process of ordinary forensic evaluation has not been seen through;

d) Where, as here, the process of cross-examination has been halted, it is incumbent upon a judge to explain the approach that she has adopted to that factor in her overall evaluation. That is especially the case where the alleged perpetrator is a litigant in person for much of the hearing;

e) The fact that F was a litigant in person meant that he had no one to call him to give evidence in chief, he had to undertake his own closing submissions and was therefore much more on display before the judge than would be the case if he were represented.

 

 

Where the Court of Appeal were critical of Pauffley J was that in her analysis of the factors, all of them were factors which were supportive of the findings being made and none setting out that counterbalance of the reasons not to make the findings and particularly not the difficulty in X’s evidence and the risk of placing weight on the emotional content and impact on it over and above the forensic issues.

 

  1. Despite the very valuable support given to X by NM, a registered intermediary, who was described by Pauffley J as extremely impressive, it is clear that X found the process of discussing these matters to be highly distressing. As I have explained, her evidence was halting, truncated by the need for breaks and, in the end, concluded in the early stages of questioning on behalf of F.

     

  2. Within this appeal, no criticism has been made of the sequence of decisions which led to the choice of these particular arrangements, as opposed to other less direct methods, for the court to receive evidence from X. As Baroness Hale explains, in any case there will be a scale of options, running from no fresh input from the witness into the proceedings, through written answers, video-recorded questioning by trained professionals or live questioning over a video-link, to full involvement via oral evidence given in the normal forensic setting. The aim, again as Baroness Hale says, is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It must be a given that the best way to assess reliability, if the witness can tolerate the process, is by exposure to the full forensic process in which oral testimony is tested through examination in chief and cross-examination. Just as the sliding scale of practical arrangements rises from ‘no fresh involvement’ to ‘the full forensic process’, there will be a corresponding scale in which the degree to which a court may be able to rely upon the resulting evidence will increase the nearer the process comes to normality. In each case, where a vulnerable witness requires protection from the effects of the full process, it will be necessary for the court to determine where on the scale the bespoke arrangements for that witness should sit with a view to maximising the potential reliability of the resulting evidence, but at the same time providing adequate protection for the particular vulnerabilities of that witness.  
  3. Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness’ evidence. Where, for example, the witness has simply been unable to play any active part, the court will be required to fall back upon hearsay records of what has been said outside the court context on earlier occasions and without any challenge through questioning.  
  4. In the present case it is clear that even the process of X giving evidence in chief encountered a range of difficulties, some entirely outside the court’s control, which made progress painfully slow and, at times, came to a halt. Cross-examination was very limited and was, for good reason, brought to a premature conclusion. Despite these difficulties, which the judge describes in full, the judgment does not contain any evaluation of the impact that this compromised process had upon the court’s ability to rely upon the factual allegations that X made within her evidence as a whole. This was a case where, partly as a result of the limitations on her ability to give evidence in the normal court process and partly because of the difficulty in fully understanding what she was explaining, the court only experienced X’s account ‘through a glass darkly’ because of the number of filters (both psychological and forensic) in place between X and the judge. In assessing the reliability of X’s account it was, in my view, necessary to acknowledge these difficulties and give them appropriate weight within the overall analysis.

 

 

 

The Court of Appeal felt that they had to overturn the findings

  1. It is with the heaviest of hearts that I now contemplate the conclusion that must inevitably flow from the serious detriments that I have identified in the fact finding analysis conducted by Pauffley J in this case. My reluctance arises primarily from consideration of what must follow from a decision to allow this appeal, thereby setting aside the judge’s finding of sexual abuse. I have also, at every turn, been acutely aware of Pauffley J’s enormous experience of conducting these exquisitely difficult cases.

     

  2. Despite giving every possible allowance for the factors that I have identified which either support the judge’s finding, or properly caution against the appellate court from interfering with that finding, for the reasons that I have given, the judge’s determination cannot be upheld. In summary the factors that have led me to this view, taken together, are:  

    a) The only evidence of sexual abuse came from X’s accounts given in 2009/10, as confirmed by her to be true during oral evidence. No other evidence directly supported or corroborated X’s allegation of sexual abuse. The evidence around the ‘trigger event’ established that, in at least one central respect, X’s accounts in 2009/10 were not reliable. Whilst the unsupported testimony of a single complainant is plainly capable of establishing proof of what is alleged, where, as here, there were a number of factors that detracted, or may have detracted, from the degree to which reliance could be placed on X’s testimony, a finding of fact should only be made after those factors have been given express consideration and due weight in the judicial analysis.

    b) X’s emotional presentation in 2009/10 and over the video-link was a relevant factor, but the weight given to the emotional presentation was unjustified and was disproportionate in the absence of a corresponding analysis of the detail of what she was actually saying together by undertaking a process, similar to that presented on behalf of the guardian, of balancing the factors either for or against the making of a finding.

    c) Once it was established that the ‘trigger event’ of X informing M had never occurred, despite being reported by X on a number of occasions in 2009/10, it was necessary to conduct a full appraisal of the impact of that highly material change in X’s account.

    d) The judge’s conclusion that the ‘prohibitions’ went so far as to provide a ‘complete answer’ to the lack in X’s account of any of the detail identified by Mr Storey was a conclusion that was unsupported by any expert evidence and was not open to the judge. This is particularly as the ‘prohibitions’ themselves were shadowy and only partially understood.

    e) In the light of the expert evidence concerning the difficulty encountered in determining a psychological link to X’s physical symptoms, and, particularly where some of those symptoms may be consciously generated, great caution was needed before concluding that X’s account provided a reliable foundation for the finding of fact.

    f) The judicial analysis should have included assessment of the impact of the lack of any ABE interview and/or narrative statement in 2009/10.

    g) The judicial analysis should have included assessment of the impact of the, necessarily, limited forensic process around X’s oral evidence.

  3. In the circumstances, the appeal must be allowed and the judge’s findings of fact set aside.

 

 

Lady Justice Gloster went even further and accepted the submissions made by father that the process had been a breach of his article 6 rights

  1. However I should also add that I accept Ms Branigan’s submission (as referred to at paragraph 52 above) that the trial procedure, so far as F was concerned, was unfair to him.

     

  2. The allegations being made against him were extremely serious. If established they might well have led to him being deprived of contact with his daughter, to the possibility of criminal proceedings against him, and resulted in an indelible scar to his reputation and character, with potential consequences for his future employment and personal relationships.  
  3. Whatever the difficulties surrounding X’s position as a witness, F was nonetheless entitled to a fair trial of these allegations. For the following reasons, in my judgment he did not receive one:  

    a) First, there was no equality of arms. For various reasons, he received no legal aid, and the only legal representation which the local authority agreed to fund was a barrister solely for the anticipated 3 days of cross-examination of X and her mother (see paragraphs 17 and 18 above). This might be thought to have been designed more in order to protect X from direct cross-examination by F, than for the purpose of assisting F in the presentation of his case.

    b) Second, because of the conflict of interest problem (see paragraph 19 above) his counsel was instructed on absurdly short notice for what was, necessarily, going to be an extremely difficult cross-examination.

    c) Third, whilst one can readily understand the reasons why the judge terminated X’s cross-examination, the consequences of that decision so far as F was concerned were clearly highly significant. In my judgment the judge should, at the very least, have considered whether in those circumstances, where there had been no full or adequate cross-examination of X on behalf of F, it remained possible to reach any fair outcome of the determination of the issue so far as F was concerned.

    d) Finally, F’s exclusion from the court room when X was being cross-examined, meant that it was extremely difficult for him, when he came to make his final submissions, to know what X’s evidence had been. I find it difficult to understand how he was expected to have successfully deployed what his counsel may have told him about X’s evidence in his own final submissions as a litigant in person. Whatever the perceived egregiousness of F’s conduct in “craning his neck” to see X on the screen, I cannot believe that practical arrangements could not have been made which would have enabled him to remain in the court-room but nonetheless would have prevented him from repeating his attempts to see X on screen. To exclude a litigant in person from the courtroom in such circumstances was a very serious step.

  4. It is obviously important in trials with vulnerable witnesses that the trial process should be carefully and considerately managed in such a way as to enable their evidence to be given in the best way possible and without their being subjected to unnecessary distress. But that should not come at the price of depriving defendants and others, who claim that they have been falsely accused of criminal conduct, of their right to a fair trial in which they participate and a proper opportunity to present their case in accordance with natural justice and Article 6 of the European Convention on Human Rights.  
  5. It does not surprise me that, in the light of the history of this litigation, F has on occasions, as set out in paragraphs 133-136 of the judge’s judgment, expressed his dissatisfaction with the court process in strong, emotional terms. That should not, in my view, have been relied upon by the judge (as it apparently it was at paragraphs 133-137 of her judgment) as a basis for reaching adverse findings as to F’s credibility. It is not difficult to see, given the long history of this matter and the actual and potential personal consequences for F, why he might have found it difficult to refrain from making comments of this sort, or might have behaved in an inappropriate manner in what no doubt he perceived to be a hostile court environment.  
  6. Whilst I consider that the trial process was unfair to F, it is not necessary in the light of the Court’s main conclusion in relation to the inadequacy of the evidence upon which the judge based her conclusions, to consider whether this ground alone would have sufficed as a reason for allowing this appeal.

 

 

The question then arose as to what the Court of Appeal should do. The idea that the case would be reheard seemed deeply unattractive to everyone – I’m sure that the advocates involved did not relish the idea of taking X’s evidence again

  1. Finally, there is a need to determine whether a re-trial of the issue of sexual abuse should now take place. For my part, and in the light of the material to which this court has now been exposed in full detail, and even allowing the fullest justifiable weight to X’s demeanour, I do not consider that a finding of fact against F was open to the court on the evidence as a whole.

     

  2. It seems highly unlikely that X will be able to engage to a greater extent in the forensic process than she did before Pauffley J; indeed powerful submissions were made by Miss Morgan and by M to the effect that it would be abusive and/or untenable to expect X to take part in a further hearing.  
  3. In the circumstances, and whilst fully accepting that this leaves A, M, and indeed F, in the very difficult situation that M so clearly described, I consider that no greater clarity is likely to be obtained by a retrial and that this court should therefore now put a stop to the evaluation of X’s 2009/10 allegations within these proceedings.  
  4. As a result, the private law proceedings relating to A must now proceed on the basis that there is no finding of fact against F (arising from X’s allegations). The Family Court will therefore make any determination as to A’s welfare on the basis that F has not engaged in any sexually inappropriate behaviour with X.

 

 

This all leaves vulnerable witnesses very erm, vulnerable. X was about as vulnerable as anyone could get, as a reading of Re A would show – she was almost suicidal at the idea of father even seeing what she had said about him, let alone giving evidence. She had strong expert evidence about the harm that the process might do to her. I never felt reading Re A that she would get anywhere near to giving evidence.

But she did so, and the measures that the Court put in place still weren’t enough.

Adding what we know about X from Re A with the judicial comments that the process of her giving evidence was harrowing in the extreme almost turns your stomach, even at this remove.

And the remarks of Lady Justice Gloster even call into question whether a Court can safely make those protective measures without risking an article 6 breach.

 

So where does this leave a vulnerable witness who doesn’t have such a compelling and rich case as to vulnerability as X did here? I know that the President has been speaking about this issue, and I’m sure that some guidance is going to come our way. (For once, this is a piece of guidance that I will welcome, as I think Re J throws huge doubt on where a Judge should draw the line between protecting the witness and protecting the article 6 rights of those accused)