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What price the 350 page limit?

 

I have talked about the 350 page bundle limit before, and how a “one-size fits all” regardless of the nature of the case is a blunt instrument which does not always work.

 

This is a case in point.

Local Authority A v N and others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1301.html

 

Very sadly, the father in the case was displaying pronounced symptoms of mental health difficulties but would not engage in any assessment process, which might have enabled him to get a diagnosi and treatment.  He had placed 3 supplemental bundles of his own construction before the Court, consisting of around 1,400 pages, and insisted on those documents being read.  These matters related notionally to the father’s deep-seated belief that there was a secret conspiracy at the highest levels and permeating almost every strata of society about fostering and adoption.  Whilst even national newspapers routinely publish articles hinting or claiming such a thing, here the father’s beliefs had taken a complete hold of him and almost any fact or newspaper article no matter how tangential, was woven into his belief system.

 

[This is not an attack on those who believe and espouse their views about corruption and bad practice in the family justice system – this man was going far far beyond that sort of thing. For example, the critics of the family justice system that I spend time in discussions with would be unlikely to perceive that seeing a social worker in MacDonalds with some children unconnected to the case would warrant writing to MacDonalds about social workers ‘infiltrating’ MacDonalds or to accuse the children of being child-actors; nor would they be anything like so fixated on Ringo Starr’s role in the forced adoption industry – given that he doesn’t have one.  This is not a man being penalised for exposing corruption or challenging a flawed system, this is a man with considerable mental health problems.

No doubt it would be possible for an unscrupulous journalist to turn the story into “Man loses children for daring to speak out about corruption in secret family Courts’, but there’s no such thing as an unscrupulous journalist, so that will never happen.]

 

 

  • After considering everything I have read, heard and seen during this hearing I make the following findings. They are additional to the findings that I have already made whilst going through some of the issues above.

 

(a) I accept, as I said at the outset, that when D was living at home and when she lived with her mother at her grandparents home in 2012, she was much loved and well cared for. I also accept that C was much loved when she was living at home, although I cannot comment meaningfully on the quality of her care, because in the nature of things it has not been examined at this hearing. D was physically well and attended all her immunisations and health visiting appointments. She attended the nursery properly and the parents would phone in to say if she was ill. I repeat that the numerous photographs which the mother has asked me to look at and the eighteen DVDs (which includes the two about the European Parliament) put in by the father show both girls interacting happily within their family. I accept that the father and the mother are non-drinkers and non-smokers. There are no criminal convictions in the family. The grandparents too are decent people who love their grandchildren, who brought up their own children, who worked hard until retirement and who would never have expected to become involved with Social Services; nor for that matter to be contemplating the care of two children when in their seventies.(b) Unhappily, however, I am satisfied on the expert evidence and on everything I have seen, heard and read, that the father has been and is now mentally unwell. He does not recognise this, nor does the mother, nor do the grandparents. There is, however, abundant and solid evidence for that conclusion. Specifically I refer to the opinions of Dr. Mumford, Dr. Pilgrim, Dr. McGeown and Professor Mortimer. I also refer to the contents of Supplemental Bundles 1, 2 and 3. Initially the contents of those three lever-arch files seem sometimes completely incomprehensible. This is partly because of the father’s idiosyncratic writing style and partly, as I have said, because many of the attachments are missing. However, I have come to realise as the case has gone on, particularly on hearing the father, that there is underlying his tortured logic a just about intelligible reason for why he fires off most of the complaints and demands which he does. Most emails, with some exceptions, can be seen to relate essentially to his sense of grievance about the loss of the children and his obsessive but unsupported beliefs that this is based on multiple conspiracies, malpractices, lies and hidden agendas. Unfortunately, these paranoid and distorted beliefs have led him to overreact beyond the bounds of reason with cross-references in his mind to other people, organisations and events having in reality nothing to do with his children. They, the children, become joined into his whistleblowing-type campaigns, because his mental ill-health distorts his ability to see things in proportion and to distinguish as regards the children the relevant from the irrelevant. Through his distorted thinking, much of his time must have been taken up with researching supposed culpabilities and pursuing them, often in a grandiose manner, without apparent empathy for those on the receiving end, nor for the inconvenience which he may have been causing to third parties. These suspicions and beliefs have unhappily been fuelled by the coincidence of Local Authority B having been placed by the government into a form of trust and by [certain] scandals emerging locally in places like [named], as extensively reported in the media.

(c) I find that the contents of Supplemental Bundles 1, 2 and 3 justify the use of the words ‘distorted’ and ‘grandiose’ in the last paragraph. Just to give a flavour of what I mean, they contain the following sorts of things: sent to Her Honour Judge L, a newspaper item about women with hourglass figures having brains to go with their curves; to Local Authority A, accusing Kerry Chafer of running paedophile activities and money laundering; to Local Authority A, declaring Kerry Chafer to be ‘linked to’ dwarfism and gross obesity; sent to the Children’s Guardian’s solicitors, various press cuttings including, ‘Commons to get in-house mental health clinic for MPs suffering from depression’ and ‘One in five struggle to have a baby’; complaints about Local Authority A Social Services running with an imbalance of female and male social workers, making it dysfunctional; complaining to the Royal Mail that it had illegally delivered to him a notice which had arrived late about a parenting education meeting; asserting that the children’s guardian’s solicitor has a ‘gross and autistic daughter’; to the European Parliament about Tesco’s selling a hi-fi system with some label or leaflet promoting adoption; to Professor Mortimer, threatening to report her to the police; to [named] University concerning Professor Mortimer and reminding them that ‘the case is listed at the International Criminal Court in the Hague’; reference to an article about prisoners in cages; to Zurich Insurance PLC concerning an ex-employee of theirs’ who was ‘linked to’ Local Authority B’s street window display promoting adoption; to Amazon concerning a former Mayor of Local Authority B, because they were selling a book which he had written; to the publishers of that book, telling them to end their contract with the author and saying that the subject matter of the book (a very prominent politician) would himself be served with court notice about it; to Ofsted about its former female chair five years previously who had recently made sexual disclosures about herself in the newspapers; to the college or academy where that woman now works, advising them to remove her from her Chair, with reference to ‘child trafficking, money laundering, forced adoption, birth parental suicide and genocide’ and with references to the Crown Prosecution Service and the European Parliament; to Local Authority A, complaining about a social worker having ‘infiltrated’ McDonald’s by having an interview with a child (not connected with this case) and the child’s mother there; to the website ‘Just Giving’ about the Mayor of [town named], who had posed for a nude charity calendar, requesting details of the publishers and distributors of that calendar; a complaint about a prominent cabinet member who had publically said something about people coming to London for sex, stating that he must step down or be removed; to Ofsted requesting the arrest of ‘named social workers’; to the Electoral Commission about its alleged link with a television programme on adoptions and with a particular trades union; to a sign manufacturer complaining of signs on a local roundabout encouraging fostering and adoption, referring to a claim for substantial compensation and mentioning the international criminal court; a ‘To Whom it May Concern’ about the ‘continual adverse, unnecessary abuse holocaust distribution of NHS medication to hundreds of thousands of UK civilians’; to the Archbishop of Canterbury about ‘a named social worker’ not taking Easter gifts to D; to two librarians at a local library, complaining about posters there encouraging people to foster or adopt, saying that he had given them several days to remove those posters and that they would be ‘challenged to the Press Complaints Commission and others’; to [the] Police requesting consideration of the arrest of the art therapist at the H Children’s Unit and H’s directors on the grounds of fraud and embezzling up to £300,000 from the public purse; to Sports Direct because it had announced that it had entered into a ‘put option agreement’ relating to Tesco PLC shares. I have noted more than fifty individuals and organisations (ignoring just copying in) to whom the father has sent correspondence, including by way of example [named] University, [named] University, [named] University, the Parliamentary Ombudsman, the International Criminal Court at the Hague, the police, the DPP, the Leadership Foundation for Higher Education, the RSPCA, News Corporation, Zurich Insurance, the Criminal Cases Review Commission, Tesco, the British Humanist Association, and so on. By way of further example, one or two of the newspaper articles annexed to his communications have the following headlines: ‘Born junkies. Three babies hooked on heroin or crack are delivered every day’; ‘Children of obese Mums likely to die younger’; ‘Labour and NHS stitch-up’; ‘Council anger over naked town mayor’ (a charity calendar); ‘Cameron’s attempt to do God faces test of faith by electorate’; ‘Labour reforms fail to convince voters’; and ‘Ministers ask Charles: Can we take away your powers?’

(d) It is not only the contents of the father’s Supplemental Bundles 1, 2 and 3 which demonstrate his abnormal thinking process and ability to see things in normal proportion, but almost more so his insistence that I should read those bundles as being supportive of his case in respect of his children. The reality is that they help to justify and support the conclusions of Professor Mortimer. Her Honour Judge P QC made the same point (at paragraph 72 above) in April 2009. Professor Mortimer told me in evidence that although she had not read all the father’s documents in the three bundles, she had read enough to recognise them as being ‘… typical of the sort of material produced by persons with this type of mental disorder.’ When it was put to her by Mr. Godfrey on instructions that she had given ‘totally false and biassed weight’ to the cases of the local authorities and had ignored the father’s case, she disagreed, saying that she had not ignored the father’s material, but on the contrary had ‘… used it in arriving at her professional diagnosis and conclusions.’

(e) Unhappily both the mother and the grandparents have been so influenced by the strength and persistence of the father’s beliefs about the targeting of the family, conspiracies and fabrications that they have come to absorb these beliefs which have become part of their own respective mindsets. This has been painfully but abundantly obvious (i) from everything which each of them has said to the social workers, (ii) from the questions which they have caused to be put in cross-examination (or in the grandparents’ case have put themselves) to the local authorities’ witnesses and (iii) from their evidence in the witness box. They have become embroiled with the father’s views and beliefs, however improbable and however lacking in evidential support.

(f) The father’s refusal to cooperate in an up-to-date psychiatric examination, as strongly advised by McFarlane LJ in October 2014 and repeated by myself in January 2015, and his refusal to speak to the Children’s Guardian, have greatly diminished his prospects within these proceedings. I doubt that this is a product of stubbornness, for I can see that he can be a pleasant and cooperative person. I suspect it is more a product of his mental ill-health and his complete inability to see that there would be a benefit to him (and thus to all the family, including the children) from an up-to-date psychiatric diagnosis, coupled with whatever medication or other help a consultant psychiatrist might offer. The mother too has diminished her prospects by refusing to have an up-to-date psychological assessment, or to meet with the children’s guardian. An up-to-date psychological assessment of her would have been invaluable as to whether she has fully and truly embraced the father’s beliefs, or whether she is simply unable to confront and challenge him. These refusals by both parents demonstrate a lack of insight into what materials a court needs to determine a difficult case like this in the best interests of the children.

(g) I accept the diagnosis by Professor Mortimer, albeit limited to being a paper exercise, that there does exist a ‘folie à deux’ between the mother and the father. I further accept the Professor’s view, as to which she is in agreement with the previous psychiatric and psychological experts, that the father will stay as he is without treatment. She gives the opinion that there is ‘… no hope at all of any spontaneous resolution’. I accept that opinion. She advises that the natural course of untreated schizophrenia is a gradual, slow cognitive decline, with the defects tending to be in reasoning, judgment, memory and concentration. This is a sad prognosis, but that is what it is.

(h) I am satisfied from everything I have seen and heard that those social workers, health visitor, nursery school workers, care home staff and contact supervisors who have made statements and/or whom I have heard in evidence have carried out their duties and functions with due professionalism, without dishonesty or fabrication and in pursuit of what they have considered would best serve the welfare of the respective children. The proposition only has to be stated that all these professionals have been drawn into a conspiracy involving dishonesty and perjury by a wish to get back at the parents for some complaint the parents made about C’s school in 2005, to realise how fantastic it actually is. Yet the family members have become blind to this and in the case of the mother and grandparents have become disabled from critically examining or challenging it. As Miss Stanistreet put in cross-examination, the father’s case involves professionals in every discipline involving three counties over ten years having actively lied and made things up in order to get the children into care: yet that is the case relied on by the family members.

(i) I find that whilst, as seen on the DVDs, the father can be pleasant and charming, there is also a blustering and domineering side to him, when he can be insistent on getting his own way over things which he sees as important. On occasions I find that he has behaved in intimidating ways, as appears in places throughout the evidence, including with professionals such as social workers and at the nursery. This makes it extremely difficult to reason with him or to discuss things usefully with him: reference for example Rachel Payne’s efforts to discuss with him Dr. Melia’s psychological report, in respect of which she effectively had to give up. Further, the mother and the father have had a habit of simply not turning up on occasions for meetings about the children.

(j) I find that, although D did eventually have the various recommended and clearly necessary assessments (first advised by Dr. Knight-Jones in November 2010 and as mentioned in the contracts of expectation of February 2011 and February 2012), the mother and father were mainly oppositional to them. They did not think they were necessary. They refused to go along with social work and nursery advice about SEN funding for extra one to one help, on the illogical basis that this would ‘label’ D, when the whole idea of such extra help was that she would then keep up with her peers when moving on to her first school. It took the interim care order in mid-2012 before the extra funding could be obtained. When Mrs. Monks explained her observation of D’s delay at the nursery to the father, he called them ‘rubbish’. He said in cross-examination that the one to one help eventually obtained for D by the professionals had not helped her at all.

(k) I find that the situation when the mother and D lived with the grandparents was an increasingly difficult one and I accept that the grandparents admitted as much to Miss Chafer. It is quite understandable why this should have been so. I find, however, like Mrs. Recorder Q, that the tensions have (as happens) been minimised in the minds of the mother and the grandparents. It was not a situation which would indefinitely have continued to provide D with a calm and stress-free environment. I accept that the grandparents told Kerry Chafer that the father was overstaying his contact at times (not just being allowed to make up lost time when public transport made him late) and that they found it difficult to challenge him. It is clear that they were told by Social Services after the mother’s 999 call on 21st August 2012 not to leave the mother alone with D, but that they did so (ie did leave the mother alone with D) in the firm belief that this was justified, as there was no way the mother would harm D. This must raise serious concerns if D were to be in the grandparents’ care about their ability to protect D against the emotional pressure likely (as I find) to be imposed on them by the mother and father’s strong views about getting the children back to their home.

(l) It is a fact, and I so find, that all the family members have an antipathy to the Social Services with whom (along with other agencies) there would absolutely have to be cooperation if D lived within the family. Even putting the family’s case at its very highest, no outcome could reasonably be countenanced without at the very least a supervision order. The father stated in his most up-to-date statement (23rd February 2015): ‘… I do not like the local authorities and do not want their involvement in my family.’ The mother told me that she sees the children and the family members as ‘victims’ and that ‘… I want nothing to do with the Social Services any more. I want no involvement with them, because I hate them.’ The grandfather spoke in his evidence of anyone having dealings with the Social Services as being ‘in for a life of hell.’

(m) I find it to be extremely likely, indeed virtually unavoidable, that any child living with the father and mother would be exposed to their distorted views and beliefs across a wide range of areas. It would involve such a child being brought up in an ethos where those in positions of a sort of authority (schools, social workers, health visitors and so on) are seen as conspiring, lying and acting with motives of personal gain or promotion. There would be surrounding such a child a sense of the morality of ‘whistleblowing’ in respect of persons with whom one has no particular relationship or connection and of the appropriateness of setting oneself up as a sort of guardian of public probity. There would be an absence of inhibition in expressing hurtful views about others, for example that another person is an ‘obese dwarf’. (Both children incidentally have issues with eating). This lack of normal inhibition and of empathy for others would be harmful to an impressionable child, all the more so given Professor Mortimer’s prognosis that the likely prognosis of the father’s mental health is downhill.

 

 

Very sad situation.  Towards the end of the judgment, the Judge provides a summary of the matters contained within the father’s Supplementary bundles, and they are a sad insight into how consumed he had become by these beliefs.

 

 

 

Bodey and DoLs

Mr Justice Bodey, sitting in the High Court dealt with a case involving a 93 year old woman with severe dementia, and had to resolve whether the protective mechanisms that had been put in place by the Local Authority amounted to a deprivation of liberty (or DoLs).  And if so, whether the Court would authorise those.

 

W City Council v Mrs L  2015

http://www.bailii.org/ew/cases/EWCOP/2015/20.html

 

This might have wider implications, because the Court were being asked specifically about two issues :-

 

1. The deprivation was in the woman’s own home, rather than in accommodation provided by the State.

2. The woman herself was not objecting to the restrictions, or kicking against them.

Unusually here, it was the LA who were saying to the Court that their actions amounted to a deprivation of liberty, and the family were saying that it wasn’t.

Here’s what the restrictions amounted to:-

  1. As I have said, Mrs L is 93. She was widowed in 1976 and has lived since about that time, 39 years, in her current home, the upper floor flat in a 2-storey building. She has 4 adult daughters, 3 of whom live in England and one abroad. Her daughter PC is, as I have said, her litigation friend. If I may say so, the family seem to have done extraordinarily well in caring proactively for Mrs L, who was diagnosed with dementia in 2004. Since that time, her condition has deteriorated, and understandably is deteriorating. Her family have adapted her furniture and routines to take account of all her needs. She fell twice in 2013, the first time injuring her hip and requiring an operation. The second time in November 2013 she suffered no injury, but became disorientated and wandered away from her home very unsuitably clothed into the local town. She was returned home by the Police or Social Services. This event led to the involvement of the Local Authority.
  2. At that time, the garden at Mrs L’s home was not enclosed. In the light of Mrs L’s having wandered off, the family arranged for a fence and two gates to be erected, and for the garden to be generally improved. The gates are side by side: one to use on foot, and the other a double gate to admit vehicles, presumably for the benefit of the young couple who live with their children in the ground floor flat. The pedestrian gate latch is of the kind often seen on bridleway gates, having a vertical metal lever on the gate, which is pulled away from the gate post to open the gate, and which springs back to engage with a clip on the gate post in order to re-close the gate. The double gates are secured by a metal throw-over loop, which holds the two central uprights together. The front door of Mrs L’s flat which leads into this garden area is locked with a Yale lock, which Mrs L can and does operate herself. This enables her to have access to her garden as and when she wishes it. All agree that she gets great pleasure from being able to go out and enjoy the garden.
  3. The Local Authority have undertaken assessments of the safety of the above arrangements. They have concluded that whilst neither of the gate latches lock, they are quite stiff and heavy to operate. There was an occasion when Mrs L was observed to open the pedestrian gate when asked to do so. This was before a wedge was added to the gate by Mrs L’s downstairs neighbours (to stop their young children getting out) which has made the gate more difficult to open. The garden is felt by everyone to be sufficiently secure, although with an unavoidable risk that someone might leave the gate open. At night, there are door sensors which switch themselves on in the evening and off in the morning. They would be activated if Mrs L were to leave the property at night, although she has not in fact done so in the 6 months or so since they were installed. An alarm call would automatically be made to one of her daughters, who lives nearby. If that daughter were not available, the call would re-route go to the emergency services. This would enable Mrs L to be guided safely back home.
  4. Mrs L is happy and contented where she lives. A care package is provided for her by the Local Authority’s specialist dementia carers, who visit her 3 times a day. She is orientated within the property, steady on her feet, motivated to engage in simple activities, and has a clear interest in her garden. There is a documented history of her strong sense of belonging in her current home, and of her fierce sense of independence. She displays an acceptable level of mobility. Her immediate environment can be seen to give her significant pleasure and stimulation. She is able to enjoy the company of her cat. All agree it would cause her distress to be moved to residential care. All agree too that the current arrangements of family and Social Services working together are in Mrs L’s best interests and work well.
  5. The facts on which the Local Authority relies in particular for saying that the arrangements amount to a deprivation of Mrs L’s liberty are: (a) that the garden gate is kept shut, thereby preventing or deterring Mrs L from leaving the property unless escorted; (b) that the door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and (c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat. These arrangements are said by the Local Authority to be integral to its care plan for Mrs L, which is overseen by her social worker. The Local Authority thus asserts that it is responsible, as a public body, for a deprivation of Mrs L’s liberty.

 

This is a good illustration of how unsatisfactory things are at present with DoLs.  On those facts, my gut feeling would be that it ISN’T an article 5 deprivation of libery. BUT, given that if you get this wrong, compensation is payable to the person being deprived of their liberty (and at least one Judge has ordered that that is on a daily rate), would I be sure? Or even fairly sure? I can absolutely see why this LA wanted to make the application and have a Judge decide.

 

Mr Justice Bodey sets out the law very well (this would be a good “go-to” judgment for these issues)

 

On the two key issues in the case, Bodey J said that both were relevant factors in weighing up whether the restrictions amounted to a deprivation of liberty, but neither of them were determinative (i.e a person CAN be deprived of liberty in their own home and a person CAN be deprived of their liberty even if they seem perfectly happy about it, but whether or not they ARE being deprived of their liberty depends on the facts of the case)

 

23. ..it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.

  1. The fact of Mrs L referring to, and demonstrating by her demeanour, this continuing contentment in her home is not in issue. It is right that she is of course not capacitated. Otherwise, this case would not be happening. But I do find that she is capable of expressing her wishes and feelings, as is referred to in the documents and shown in such things as for example her choice of clothes, the choice of what she does around the property, and in her going in and out of the garden at will. Although I accept the general need for the caution which Miss Hirst urges me to exercise, this consideration must be relevant in the evaluation of whether Mrs L is being ‘deprived’ of her ‘liberty’ within Article 5.
  2. This case is thus different from one involving institutional accommodation with arrangements designed to confine the person for his or her safety, and where that person, or someone on his or her behalf, is challenging the need for such confinement. At paragraph 38 of Cheshire West Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. As I have said, the range of criteria to be taken into account includes the type, duration, effects and manner of implementation of the arrangements put in place. The fact that those criteria are prefaced by the words ‘such as’ demonstrates that they are not intended to be exhaustive. It is a question of an overall review of all the particular circumstances of the case.
  3. I observe too that Article 5 refers to everyone having a right to ‘liberty and security of person’ [emphasis added]. Mrs L’s ‘security’ is being achieved by the arrangements put into place as being in her best interests, even though involving restrictions. Such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes, and the carer’s visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects.
  4. This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the State? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.
  5. In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did. The question of Mrs L’s up to date best interests is better considered back in Birmingham by the District Judge, and I anticipate that it should be capable of being dealt with by consent.

 

 

Even Professionals can find it difficult to know if a person is being deprived of their liberty…

Even Professionals can find Deprivation of Liberty confusing

Hearing an appeal in private

 

 
The Court of Appeal were asked to rule, as a preliminary issue, whether the mother’s appeal should be heard in private

Re DE and AB 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1064.html
Even though a family Court hearing is held in private (or secret, depending on your standpoint), where only those directly involved – or the Press by application, can attend, if the case gets appealed, the appeal hearing is usually heard in public.

It always throws you a little when you are in the Court of Appeal, dealing with incredibly sensitive and delicate matters and there are thirty bored law students and two Roy Cropper types with  tartan thermos flasks sitting on benches behind you, but that’s the way of it. Anyone can walk into the Court of Appeal and watch a hearing.

In reality what they get to hear is two hours of this sort of thing

“I see at paragraph 14, subsection (v) of your document that you make reference to Lord Butter’s decision in Re K – can you take me to the relevant passage?”

“My Lords, yes, in the bundle of precedents, that is at page B92, and it is the third paragraph from the top, beginning ‘it is well-established that’…”

And the prospects of anyone being able to make sense of, follow or enjoy that whole affair are pretty limited.
Anyway, the main dispute in Re DE was the claim by a mother that the father should make financial payment for a child – this is under Schedule 1 of the Children Act. This is usually (but not necessarily limited to) for cases where the parents weren’t married to each other and it is a way of getting one parent to make a financial contribution to the other, where the Child Support Agency can’t help (because the case is more about capital than income, or one parent is effectively a millionaire)
In the High Court, Mr Justice Bodey refused the mother’s application, and made an order restricting the reporting of the case – i.e that the parties and the child could not be named.
The father asked for the appeal to be heard in private, in large part as a result of this:-
The father applies for the proceedings to be heard in private on the basis that the mother, in a telephone call she made to the father on 2 July 2014, has threatened him with ‘maximum publicity’ by ensuring that as many journalists and members of the public as possible attend the permission hearing. The father contends that the publicity of the appeal process is being used to bring undue pressure on him and to defeat the administration of justice by publicising in open court matters and information that are currently restrained by injunction (the ‘prohibited information’). Indeed, during the 2 July telephone call the mother allegedly informed the father that the risk of the prohibited information coming to the attention of the public could be avoided if he made a payment of £250,000 to her and also guaranteed that he would meet certain financial requirements set by her. In layman’s terms, if that allegation were to be proved, the precipitating circumstance would not have been a negotiation, it would have been blackmail
[Nicely put, that last sentence]

Followers of the super-injunction scandal of a few years ago may remember that some of the super-injunctions were granted on the basis of an allegation of blackmail – i.e give me compensation/a cheque and we’ll leave the papers out of it. So, one has to be wary – just because father makes that assertion doesn’t mean that it is true, and likewise just because the mother denies it doesn’t mean that father made it up. Just don’t take it as being settled either way.

Of course, the loophole here, is that by appealing the decision of Mr Justice Bodey, the case goes into the Court of Appeal, and the Press and public can attend that hearing.

Father’s preliminary application, therefore, was that if the appeal was open to the press and public, then all the benefit to him of Bodey J’s judgment would be lost BEFORE the Court of Appeal decided whether he was right to have given the father that protection. The Press and public would already be in the court room, hearing all of the juicy details.
The Court of Appeal therefore had to weigh that point (in essence, there’s no point arguing about whether something should be secret if you tell everyone the secret before you have the argument) against the wider public interest of appeals being heard in public.

I heard the father’s preliminary application before coming to a decision whether to adjourn it as requested by the mother. I did not need to decide the truth or otherwise of the allegation that the father makes as the trigger to the application given the stance taken by the mother before me. The mother makes it clear that she wishes the detail of the prohibited information to be discussed in open court, indeed that is the purpose or one of the purposes of her appeal. I make it clear having listened to her at length that I came to the very firm conclusion and I find as a fact that although she asserts that the prohibited information must be discussed in public so that on behalf of the public she can ensure that ‘secret justice’ is subjected to scrutiny, her overriding intention is to extract revenge on the father, if needs be at the expense of the child.
Despite the entirely adverse view that I formed of the mother, it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a very rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to decide to do so on the application made in this case because a more proportionate mechanism was available.
As I shall explain, the court was able to use its powers to prevent publication of the prohibited information while continuing to sit in public. Even if it had been necessary to sit in private I would have done so with representatives of the media being present and able to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice. The circumstance that permitted this solution to be easily applied to this case was that no member of the public save for a pupil member of the Bar chose to attend the hearing, let alone the allegedly threatened supporters who might have been intent on publication rather than scrutiny.

[The last bit is saying, in essence, that this might have been difficult had there been members of the Press and public there to throw out, but in reality, there was just one pupil barrister, who politely made their excuses and left]
But the Court of Appeal still had to follow the principles and precedents and come to the right decision in law. In case the issue comes up again, it is helpful that the case sets those principles out

Legal submissions on the law – power to sit in private
The father submitted that it was necessary to seek an order that the hearing take place in private on the basis that (a) publicity would defeat the object of the hearing; (b) a private hearing was necessary to protect the interests of the child; and (c) it was in any event necessary in the interests of justice.
A court hearing an appeal or an application for permission to appeal may sit in private if the court whose decision is being appealed had the power to sit in private during those proceedings. But the appellate court must give its decision in public “unless there are good and sufficient grounds” for giving it in private (in which case the court must state those grounds in public): see section 1 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968.
Though a case was heard in private, it does not follow that the Court of Appeal will sit in private, on the contrary. Hearings in family cases in the Court of Appeal are open to the public, save on very rare occasions where the court orders otherwise: see The Family Courts: Media Access & Reporting, published by the Judicial College and Society of Editors in July 2011.
It is axiomatic that the starting point for this court’s consideration of the preliminary application is that open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders made, are public: see, for example article 6(1) ECHR, CPR 39.2 and Scott v Scott [1913] AC 417.
Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising its wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury observed at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:
“As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.”
A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:
“But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”
After citing the dictum of Viscount Haldane, Lord Devlin continued at p 239:
“That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”
More recently the importance of the common law principle of open justice was emphasised by nine Justices of the Supreme Court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society at [2]. He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.
The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].
The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417 at 438 – 439, 463 and 477 and JIH v News Group Newspapers [2011] EWCA Civ 42 (JIH) at [21].
When considering the imposition of any derogation from open justice, the court must have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.

 

It is also worth noting that unless the Court of Appeal make a specific order (which they have the power to do), then all of the restrictions on reporting and naming the parties which would apply in the Family Court do not apply.

Specifically

Section 12(1) a of the Administration of Justice Act 1960 will not apply to the present hearing if it is to be heard in public. As a consequence, any matters discussed in open court at the permission hearing can be freely reported.
Reporting is prima facie not restricted unless the Court of Appeal makes an order in the proceedings. In children cases, s. 97(2) Children Act 1989 does not apply in the Court of Appeal: see Pelling v Bruce Williams [2004] EWCA Civ 845; [2004] Fam 155; [2004] 2 FLR 823 at [53]).
This Court has observed that it is necessary to analyse whether, on a consideration of the competing rights in each case, anonymisation of proceedings and judgment is necessary: Pelling v Bruce-Williams at [49]. Reporting may be restricted under the inherent jurisdiction or the Children and Young Persons Act 1933 section 39, if applicable.

 

So the Court of Appeal had to decide whether to exercise that power in this case. They did, on the basis that given that the mother was seeking publicity in this case, and that there was an anonymised judgment giving lots of details about the case (but no names) out in the public domain, it would be simple if this appeal was using real names to link the two cases together and for a lot of sensitive and delicate information to be in the public domain.
the fact of the existence of the anonymised judgment of Bodey J significantly enhances the risk that if the parties are named prior to the outcome of the hearing or any permitted appeal, that the information restrained would in any event enter the public domain through jigsaw identification. This court finds itself in the position encountered by Bodey J, that is if during the hearing information currently subject to the injunction is discussed in open court and is rendered reportable, “it would effectively be to give the mother everything she seeks, something which [I] think she realised during the course of the hearing, and would undermine the balanced decision taken by DJ Waller not to permit disclosure to the Police and/or the FCA”.
Accordingly I shall order that the proceedings be held in public but subject to immediate and continuing publicity protections so as to prevent withheld and prohibited information from being disclosed into the public domain without the permission of the court. There shall be anonymisation of the reporting of the identities of the parties and the child and any information likely to lead to the identification of the child and the order made by Senior District Judge Waller shall be extended to cover this hearing.
At the conclusion of the permission hearing and after permission had been refused and further argument heard, I extended the orders made during the proceedings to protect any prohibited information inadvertently disclosed during the hearing. For the avoidance of doubt, the injunction made by SDJ Waller continues to have effect. The precise terms of the orders that I made are annexed to this judgment.