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Absconding and secure accommodation

This Court of Appeal decision hasn’t come up on Bailii yet, and I’m grateful to Graham Cole from Luton’s LA legal team for alerting me to it.

 

RE W (A CHILD) (2016)

 

[2016] EWCA Civ 804

 

A lawtel link is here, but that’s only good if you have access codes to it. Will keep an eye out for it on Bailii.

 

https://www.lawtel.com/MyLawtel/Documents/AC0151488

 

It relates to an application for a Secure Accommodation Order for a girl who was 17 years and 8 months old.  There’s a common misconception that you can’t have a Secure Accommodation Order on a child over 17  (in fact, what the Secure Accommodation Regs prohibit is secure accommodation for a child accommodated under s20 (5) of the Children Act 1989.

 

Secure Accommodation Regulations 1991

Children to whom section 25 of the Act shall not apply

5. –

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983(1) or in respect of whom an order has been made under section 53 of the Children and Young Persons Act 1933(2) (punishment of certain grave crimes).

(2) Section 25 of the Act shall not apply to a child–

(a)to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

 

So a 17 year old accommodated because of a Care Order, or under s20(3) is okay.

However, when you look at the definitions of s20(3) and s20(5) side by side

 

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

 

and

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

Then you can see that determining which one was used for any given young person is tricky, as there’s a waffer-thin mint between them, AND it all hinges on what was in the LA mind at the time of accommodation and whether they correctly alloted the young person to the (reasonable and proportionate) type of accommodation.   IF the accommodation is to stop their welfare being seriously prejudiced, then they can securely accommodate. If the accommodation was just to safeguard or promote welfare, they can’t.

 

Initially, I thought “Well, any s20 where the concerns are sufficient to want to go for secure, will trigger s20(3)”  but remember, one is looking at the reason for the provision of accommodation in the first place, not necessarily immediately before the secure accommodation application. If a young person leaves home and is accommodated under s20(5)  to prevent them having to sofa surf or be homeless, then when there’s a later deterioration in behaviour that triggers the secure criteria, the option wouldn’t be open to the LA.   Can the LA discharge the s20(5) and immediately convert it to s20(3) ?  That sounds a bit iffy to me.  (My legal summary of ‘a bit iffy’ is not necessarily the way I would express it in the Court of Appeal. Let us instead say “has the hallmarks of an abuse of process)

 

Be grateful I went for THIS image rather than the many others available

Be grateful I went for THIS image rather than the many others available

 

What has always been a bit dubious/uncertain, if you don’t have a Care Order on the 17 year old, is the power of the LA to accommodate a young person against their will, and specifically by then locking them up, if accommodated under s20(3) and a Secure Accommodation Order is obtained.

The statute doesn’t say anything about a young person’s capacity to discharge THEMSELVES from s20 accommodation. It says specifically that a parent has the right to discharge them by objecting or removing, and it says specifically that post 16 a parent can’t do that if the young person wants to remain in s20. But it says nothing about a young person saying “I don’t want to be here, I’m checking out.”

Well, maybe you can check out any time you want, but you can never leave….

 

W’s lawyers were saying that W DID NOT consent to being accommodated under s20(3), and thus could not be accommodated, and if she wasn’t accommodated, she couldn’t be SECURELY ACCOMMODATED.

The LA lawyers said, the statute doesn’t say that W has to consent.   (It doesn’t say that the parents have to consent either, but that particular ship has sailed with the caselaw on s20 over the last year)

The Court of Appeal on this point said  (and curse it not being on Bailii, because I’m having to TYPE this rather than cut and paste it as normal)

 

“A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a Local Authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child’s consent is not a pre-requisite of the making of a secure accommodation order”

They also indicate that for secure based on s20(3), the parents have to be consenting to the s20 accommodation  (the s20(11) provision that a 16 year old can block parents removing them from s20 if they want to stay there doesn’t apply, because it is not removal but entry that is up for debate)

The Court of Appeal also had to look at whether the secure accommodation criteria were met, and there’s a novel argument there.  W’s lawyers argued that W was not ‘absconding’ from placements. She was absenting herself and then returning, whereas absconding carries the connotation of ‘escape’  and this was developed into ‘escape’ has a connotation of an intent to be absent indefinitely.

 

Now, that’s very very important. An awful lot of the ‘absconding’ that you see in application for Secure Accommodation Orders is a young person going missing for a few days and coming back of their own free will – and them putting themselves in danger in the interim. You do see some absconding which fits the classic ‘escape with intent to avoid recapture’ where the child is missing for weeks or even months and generally gets picked up by the police not entirely voluntarily, but those are rarer.   The very modern post Rochdale phenomenon of Child Sexual Exploitation leading to secure is very much a young girl not returning to placement after school and staying away for a few days (with abusive and exploitative men) and then returning home.  This case is raising the important issue of whether that actually IS absconding.  If it ISN’T, then the first of the two possible limbs to satisfy the Secure Criteria is not made out.

 

25 Use of accomodation for restricting liberty.

(1)Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—

(a)that—

(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii)if he absconds, he is likely to suffer significant harm; or

(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

 

So if the Court of Appeal rule that ‘absconding’ for s25 means some intent to escape with intent to stay away, then ground (a) can’t be made out for a lot of young people in Secure, because although they are AWOL a lot, and missing a lot, they are coming back and intended to, rather than had the intent to ‘escape’.   Ground (b) might still apply, but most Secures are dealt with on ground (a).

 

This could be very big.

What did the Court of Appeal decide?

 

21. Miss Judd QC’s arguments in relation to the Judge’s definition of ‘absconding’ arose in the fact-specific circumstances of the case and did not persuade us that it was necessary to define the term beyond its everyday meaning.

 

[That noise you just heard was 500 LA lawyers breathing out. Don’t jump the gun – the Court of Appeal might SAY that they don’t think it’s necessary, but they are probably still about to do it anyway]

 

Munby J (as he then was)

 

[500 LA lawyers just said ‘oh god, no’]

 

in Re G (Secure Accommodation Order) 2001 FLR 884 at 895 relied on the definition of ‘abscond’ found in the Concise Oxford English Dictionary. This accords with the usual application of the term to connote the element of ‘escape’ from an imposed regime.  Mr Tyler QC’s reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps borne of the need to support his argument that Keehan J’s approach to the issue was correct.  Although trite to say, the facts will speak for themselves.  As it is, we are satisfied, as we indicate below, that the Judge wrongly categorised W’s absences from the Unit in which she had been placed since January 2016 as absconding.

 

This particular girl had NOT absconded.

 

We don’t have Keehan J’s judgment to look at the facts, but the Court of Appeal say at para 7 that she has from a variety of placements and units, absented herself at all hours to pursue her own ends and has not followed the rules in any of the placements, when absent she has been with risky adult males and come back with sums of money. It looks, therefore like the sort of CSE case I discussed earlier.  Lots of short-lived absences without leave, which the Court of Appeal concluded did not amount to absconding.

Eep.

22 . In determining that W had absconded, Keehan J invoked the facts that W had ‘disengaged’ with the Unit, returning “not just a few hours later but well into the following day”.  I do not consider that this meant that W was ‘absconding’ from the Unit, in terms of  escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.

 

The Court of Appeal went on to say that in W’s case, they considered that the second criteria (b) was made out in any event and thus a Secure Accommodation Order could legitimately be made.

 

But the first criteria is now in tatters for a lot of cases  –  the Court of Appeal are looking for evidence that the young person ‘escaped indefinitely from an imposed regime’   rather than ‘deliberately absenting themselves for  limited period in breach of rules.  Obviously, the shorter the period of absence the harder it will be to prove that the young person ‘escaped indefinitely’, particularly if they return of their own volition.  Ground (b) will be the criteria to inspect chronologies for in the future – the absconding ground just became very tough to prove in 80% of cases.

 

 

If you enjoyed this piece, or like the blog generally – my novel which is set in a Children’s Secure Accommodation centre, is available to pre-order and should be out around Christmas time.  I’d LOVE your support, which you can provide by pre-ordering here

 

https://unbound.com/books/in-secure

 

Re W – no presumption for a child to be brought up by a member of the natural family

 

This was a Court of Appeal case decided today.  It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.

 

Re W (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/793.html

 

The facts

A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made.  A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.

In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.

They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them.  [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]

The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.

 

A powerful comment

 

This is not legally significant, but it was very punchy and wise, from Jackson LJ

 

 

  • As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

 

i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or

ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?

 

  • If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
  • I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
  • I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
  • The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

 

Powerful stuff.  I hope that heed is taken of it.

 

Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much.  So HOORAY for this

 

 

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

 

Issues for the appeal

 

 

  • This appeal raises the following issues which may be of general importance:

 

a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’   (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled  “WORMS, Do not open”

Because they can can can

Because they can can can

The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?

All of them had approached the case in this way :-

A) This is an adoption application

B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job

C) There is nothing to rule them out as a carer for A

D) To make the adoption order, the Court must be satisfied that “nothing else will do”

E) Unless the risks of moving A are too great, she should be moved

I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters.  And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible.  (That’s exactly the way that Bodey J –  one of the smartest men I’ve ever been in a room with – looked at it as well)

The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals.    [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one.  If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]

So these are the critical passages. They need a LOT of careful reading

“Nothing else will do”

  • Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

  • Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Natural family presumption/right

  • With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
  • The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.

[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test.  My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]

  • In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
  • It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
  • The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
  • As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

The problem with that formulation, of course, is that ‘necessary’  in the context of Adoption, means  “nothing else will do”  or to put it fully from Re B  “We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.  ”      .    It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption.  If there’s not that overriding requirement, the child would be with the birth family.

One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order.   Para 74  iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

 

After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.

 

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales.

 

At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or  presumption)  – but all things being equal, the scales will tip that way.  However, AFTER a Placement Order has been made and the child is placed with prospective adopters

 

Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

So in a post placement case, the issue becomes that of welfare of the child  with both sides to be weighed in the balance.  (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. ..   Possibly the last sentence  of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible.  Man, that’s a LOT of weight to carry.)

 

 

The Court of Appeal also looked at the article 8 issues

 

 

  • The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
  • If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

 

[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]

 

 

So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.

 

And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?

The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.

 

What's in the box, Jokey? What's IN THE BOX?

What’s in the box, Jokey? What’s IN THE BOX?

 

 

Ellie Butler – Court of Appeal overturn decision to keep family Court judgment from Press

Just after the Ben Butler conviction about Ellie Butler’s murder, the family Court decided that the judgment of King LJ about Ellie’s death would remain confidential. At the time, nobody quite understood why.  And it was a very unpopular decision, many people feeling that the family Court had misjudged the public mood for openness and learning lessons from the case.

 

Then Pauffley J’s judgment was published and it transpired that the decision was largely about making sure that if Ben Butler appealed and got a re-hearing he couldn’t use the publication of the judgment to get off on a technicality that it had stopped him having a fair trial.

I wrote about that here

Judgment on Reporting Restriction on the Butler/Gray case

 

The Press appealed that decision and the Court of Appeal overturned it

Re C (A child) 2016

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/798.html

 

 

  • The central issue that arises on this appeal is whether the judgment given by Eleanor King J on 30 June 2014 (“the Judgment”) in care proceedings in respect of a child to whom I shall refer as “C” and which were conducted in private and subject to reporting restrictions should be put in the public domain. C is the younger sibling of Ellie Butler. The parents of the two children are Mr Butler and Ms Gray. On 28 October 2013, Ellie died as a result of catastrophic head injuries at the family home.
  • Following her death, Mr Butler was arrested on suspicion of her murder. C was removed from the care of Ms Gray and placed into police protection and care. Public law care proceedings were commenced and thereafter orders were made from time to time prohibiting any publication that would enable C to be identified. The first of these was made by Hogg J on 30 October 2013.
  • In the Judgment, Eleanor King J found that (i) Mr Butler had caused Ellie’s death; (ii) Ms Gray had failed to protect her from Mr Butler; and (iii) C had been the victim of physical and emotional abuse.

 

That information that Ellie’s younger sibling had been the victim of physical abuse had not been in the public domain until today. The emotional abuse we could have guessed at – given that Ben and Jennie made C find Ellie’s body as part of the cover-up, but the physical abuse is new information, and obviously significant.

 

 

  • In what follows, like the judge I shall only refer to Mr Butler. So far as I am aware, Ms Gray has not indicated that she is intending to seek leave to appeal. The letter from Bindmans was written on behalf of Mr Butler. In balancing the article 6 rights of Mr Butler against the public interest in open justice and the article 10 rights of the applicants, I am in no doubt that the judge reached the wrong conclusion. If she had made a proper assessment of the risk that there would be a violation of Mr Butler’s right to a fair trial, she would have been bound to conclude that the risk was minimal and was plainly outweighed by the countervailing considerations to which I have referred.
  • First, she made no assessment of the likelihood of a retrial. This was not the judge’s fault. It is a striking feature of this case that no attempt was made on behalf of Mr Butler to demonstrate that he had real prospects of being granted permission to appeal, still less that any appeal would be likely to succeed. In these circumstances, the judge should have approached the article 6 issue on the basis that there was at best a speculative possibility that there would be a retrial.
  • But the second and decisive reason why the judge reached the wrong conclusion is that, even if there is a retrial, there is no real possibility that the publication of the Judgment will prejudice the rights of Mr Butler to a fair trial. This is clearly demonstrated by both our domestic jurisprudence and the jurisprudence of the ECtHR which are entirely harmonious with each other on this point.
  • Our domestic law is heavily influenced by section 4(2) of the CCA which provides that an order postponing the publication of a report of proceedings can only be made “where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice”. Such an order should only be made as a “last resort”: R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979 per Lord Judge CJ at para 13.
  • In assessing whether there is a “substantial risk of prejudice”, it is necessary for the court to have regard to three matters in particular. First, juries “have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial”: Re B [2007] EMLR 5 at para 31. The importance of trusting a criminal jury to comply with directions made by the trial judge has been underlined repeatedly. For a recent example, I refer to Taylor [2013] UKPC 8 at para 25. Criminal Practice Direction 26G.3 identifies what judges should cover in their opening instructions to jurors. This includes that the jury should try the case only on the evidence and no other material. In particular, juries are directed to make no internet searches relating to the trial and to avoid discussing the case with anyone outside their number, including on social media.
  • Secondly, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice: Re B at para 25.
  • Thirdly, the “fade factor” that applies in news cases. The “staying power of news reports is very limited”: Judicial College Guidance on Reporting Restrictions in the Criminal Courts, revised in May 2016 at p 29. The significance of this factor may have reduced a little in view of the staying power of the internet. But in my view, it remains a highly relevant factor.
  • It is clear from the Strasbourg jurisprudence that, even if there were a retrial of Mr Butler, his article 6 rights would not outweigh the article 10 rights of the applicants.
  • In Beggs v United Kingdom (app. No. 15499/10), the ECtHR adopted an approach which is entirely consonant with that adopted in our domestic jurisprudence: see paras 122 to 129. It noted, in particular, in cases concerning the fairness of criminal trials, the importance of directions given to juries. In that case, there had been a “virulent and prejudicial press and media campaign” against the applicant before his criminal trial took place. The complaint that the impugned publications had influenced the jury was declared inadmissible for a number of reasons. These included that in his directions the judge had warned the jury to disregard the prejudicial material and that it was reasonable to assume that the jury would follow the directions given.
  • Abdulla Ali v United Kingdom (App. no. 30971/12) was a similar case. There was what was described as “an avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. The court said at para 89 that a direction to the jury to disregard extraneous material “will usually be adequate to ensure the fairness of the trial, even if there has been a highly prejudicial campaign….”. At para 91, the court said that “it will be rare that prejudicial pre-trial publicity will make a fair trial at some future date impossible.” The applicant had not pointed to a single case where the ECtHR had found a violation of article 6 on account of adverse publicity affecting the fairness of the trial itself.
  • The judge acknowledged that, in the event of a retrial, the risk of prejudice to its fairness occasioned by the publication of the Judgment was “small”. In my view, it was so negligible that it should have been given little or no weight in the balancing exercise. The judge failed to take into account (i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) the fade factor (it would be many months and possibly more than a year before a retrial would take place). If she had properly taken these factors into account, she would have been bound to conclude that the Judgment should be put into the public domain. Mr Bunting makes the further valid point that it is difficult to see how the publication of the Judgment could create a separate substantial risk of prejudice given that much of what appears in it is already in the public domain. But I do not need to examine this point in detail since the Judgment should be put into the public domain for the reasons that I have already given, subject to the redactions necessary to protect the interests of C. These redactions have been the subject of further submissions and the Court has made an Order determining the way in which the Judgment should be redacted.

 

Conclusion

 

  • For all these reasons, I would allow this appeal and permit the Judgment to be published with the approved redactions.

 

 

As far as I understand, the King LJ judgment is now in the hands of the Press, some redactions to it having been made (to preserve C’s anonymity, no doubt). It is not at the time of writing, up on Bailii but I will keep an eye out.

 

 

Lost suitcase Judge admonished by Court of Appeal (but not biased this time)

Some of you might remember the case where a High Court Judge, involved in a big money commercial trial where British Airways was a party started to conduct his own inquiries of BA’s Silk into what had happened to his suitcase which BA had lost on a flight.

 

If you haven’t, then I suggest you read it, because it is a cracker.  (It isn’t my writing that makes it funny, the situation is just ludicrous)

Judicial baggage

 

If you are unaware of the previous history with this Judge and the Court of Appeal, here is another to read

http://www.bailii.org/ew/cases/EWCA/Civ/2007/720.html

 

[The Judge had been involved in communication with partners of a law firm about an employment opportunity for himself, those communications had broken down and the Judge had sent an email to the Senior Partner expressing considerable disatisfaction and annoyance. When that firm next had a case before him, they invited him to recuse himself and he refused. The Court of Appeal decided

 

It may well be that the judge became somewhat carried away in the heat of the argument. But for the reasons I have given, I would hold that his attitude throughout, from the emails at the end of May, during the hearing on Friday and in his judgment show that the test for apparent bias is satisfied. As the reviewing court, this court is in a position to form its own view. I have concluded that in all the circumstances, a fair-minded and informed observer would conclude that the judge was biased against AG and its partners, including Mr Howell. It was for that reason that I concluded on Monday that the appeal should be allowed.

 

But if you can, read the judgment, because the transcript of the poor barrister trying to make the recusal application and the Judge getting crosser and crosser is quite remarkable]

 

Following the BA suitcase debacle , the Judge’s conduct attracted quite a bit of attention in the Press, including an article written by Lord Pannick of Blackstone Chambers. Lord Pannick has been involved in some very intriguing cases that I’ve written about on the blog – often involving overseas Royalty or diplomats, and has also been a trenchant critic of the legal aid reforms, so I like him a great deal.  [In fact, he was in this very case in this blog article https://suesspiciousminds.com/2014/06/09/a-court-may-look-at-a-king/  ]

 

 

  • On 3rd September 2015, an article (“the Article”) appeared in The Times newspaper with the headline “A case about luggage that carries a great deal of judicial baggage”. It was written by Lord Pannick QC (a member of Blackstone Chambers) who had, at an earlier stage of Mrs. Harb’s claim, represented the Prince on his CPR Part 11 (sovereign immunity) application. The Article stated:

 

“On July 22, 2015, Mr Justice Peter Smith stood down from hearing a complex commercial case in which British Airways is a defendant. The airline asked the judge to recuse himself after a dispute about what happened to the judicial luggage on a trip home from Florence. How we laughed. But the case raises serious issues about judicial conduct that need urgent consideration by the Lord Chief Justice. …

The judge sent a number of emails to the chairman of BA complaining about the incident. He said there was “plainly a deliberate decision to leave a whole flight’s luggage behind”. He suggested that lucrative commercial freight may have been loaded “at the expense of passengers who could go to hell at the expense of profits.” BA applied to the judge to recuse himself because the case against the airline that he was hearing raises allegations similar to those he was making, and conclusions similar to those he was asserting, in the correspondence.

The transcript of the recusal application is extraordinary. Jon Turner, QC, for the airline, began by politely stating his client’s concern. The judge intervened: “Right, Mr Turner, here is a question for you. What happened to the luggage?” Mr Turner responded that his clients would deal with such a personal complaint in the ordinary course of business and not in these proceedings. The judge was not satisfied: “In that case, do you want me to order your chief executive to appear before me today?”

Mr Turner patiently replied (his submissions were a model of courtesy and focus in very difficult circumstances) that if the judge would permit him to develop his argument he would contend “that that would be an inappropriate mixture of a personal dispute…”. The judge interrupted: “What is inappropriate is the continued failure of your clients to explain a simple question, namely what happened to the luggage?” After a lot more of this, the judge reluctantly agreed to stand down from the case. He said that there were no grounds for BA’s application but its “attitude” left him with no alternative.

There are a number of troubling features about this unhappy episode. First, the transcript repeatedly confirms what the judge refused to acknowledge: that his personal irritation (perhaps justified) was affecting his judicial responsibilities and made it impossible for him fairly to hear the BA proceedings. The judge said in his judgment that he wanted answers from BA simply because if there were an innocent explanation for the delayed luggage, then he could put the incident to one side and hear the case. But BA’s concern was the strong allegations and concluded views expressed by the judge on personal issues similar to those raised in the litigation. In any event, if BA had offered an explanation for his treatment, was the judge to rule on its adequacy?

Second, there is the inexcusably bullying manner and threats: “What has happened to the luggage? … I will rise until 12.45 and you can find out… Do I have to order you to do it, then?… I shouldn’t make any preparations for lunch because you are going to be sitting through.”

Third, there are the judge’s arrogant comments concerning the decision of the Court of Appeal in 2007 to remove him from an earlier case in which he had been unable to recognise that his personal interests made it inappropriate for him to sit in judgment. Mr Turner, QC, referred to the case for the legal principles. Mr Justice Peter Smith responded that he had “no regret” about his decision, but “plenty of regrets about the way in which the Court of Appeal went about their decision”, but he was “no longer surprised by what happens in the Court of Appeal”. That was a case where Sir Anthony Clarke, MR, described Mr Justice Peter Smith’s conduct of the proceedings as “somewhat extraordinary” and “intemperate”. Sir Igor Judge added that Mr Justice Peter Smith’s conduct of the hearing demonstrated that he “had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity.” Mr Justice Peter Smith was not listening.

On hearing about this latest episode, no one at the bar or on the bench would have said, “What, Mr Justice Peter Smith? Surely not?” Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.”

After that article (which remember, was complaining about a Judge acting injudiciously, and blurring his judicial functions with his personal circumstances or views) appeared, the Judge wrote to the Head of Blackstone Chambers

  • By a letter dated 1st December 2015 (“the Letter”), the judge wrote to one of the two joint Heads of Blackstone Chambers, Mr. Antony Peto QC, in these terms:

“I refer to our conversation a couple of weeks ago. I am disappointed not to have heard from you.

The quite outrageous article of Pannick caused me a lot of grief and a lot of trouble. I will be taking that up with the requisite authorities in due course.

You said that you would get back to me and you have not. This has meant even more trouble for me because his article has been used as the basis for several lay people to make complaints about me. Fortunately he has never appeared in front of me so his opinion is not worth the paper it is printed on. It has caused me great difficulties in challenging it but fortunately again I have letters of support from no less than 24 Silks, 4 High Court Judges and 1 Court of Appeal Judge all of whom appeared in front of me and do not share his views of my abilities and the way I perform in Court. Some of the letters have been extremely critical of Pannick’s article. Others have commented adversely in terms I would not wish to print.

The article has been extremely damaging to Blackstone Chambers within the Chancery Division.

I am extremely disappointed about it because I have strongly supported your Chambers over the years especially in Silk Applications. Your own application was supported by me and was strongly supported by me to overcome doubts expressed to me by brother Judges concerning you. I have supported other people. It is obvious that Blackstone takes but does not give.

I will no longer support your Chambers please make that clear to members of your Chambers. I do not wish to be associated with Chambers that have people like Pannick in it.”

Unfortunately for the Judge, although Lord Pannick has yet to appear before him post article, other members of his chambers did, on this case. The letter emerged as part of the appeal.

Joshua Rozenberg’s piece about Lord Pannick’s article and the Judge’s response are very worth reading.

http://www.lawgazette.co.uk/analysis/comment-and-opinion/a-judge-needs-judgement/5050805.fullarticle

Anyway, the case has now come before the Court of Appeal, who were no doubt sharpening their pencils and rolling up their sleeves in readiness for this one.

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 (16 June 2016)

http://www.bailii.org/ew/cases/EWCA/Civ/2016/556.html

 

The Court of Appeal granted the appeal for other reasons, so did not technically have to give a judgment on the bias point that had been raised, but in the unusual circumstances of this case, you can see why they would. They say that the Judge’s behaviour was regrettable, but did not satisfy the test of bias.  (some readers might find that surprising, so I will include the totality of their judgment in this regard)

 

 

  • There is no dispute as to the test for appearance of bias. In Porter v Magill [2002] 2 AC 357, Lord Hope said at para 103:

 

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

 

  • The Letter has assumed significance in this appeal because the Prince was represented at the trial by Mr. Ian Mill QC and Ms. Shaheed Fatima QC, both of whom were (and still are) members of Blackstone Chambers. It led to the Prince amending his grounds of appeal to add a fifth ground alleging apparent bias.
  • The following particulars of alleged apparent bias are relied on. First, a fair-minded and informed observer would conclude that there was a real possibility that the judge became biased against the Prince after the publication of the Article because it was critical of him and he knew that the Prince had been represented by Lord Pannick and was continuing to be represented by Mr. Mill and Ms. Fatima. Secondly, the content of the Letter would cause such an observer to conclude that there was a real possibility that the judge harboured a personal animus against all members of Blackstone Chambers. Thirdly, the observer would conclude that there was a real possibility that the judge’s apparent bias against Blackstone Chambers might have affected his decisions in relation to this claim because, as a matter of timing, the Article preceded (a) the date on which the draft judgment was sent to the parties (21st October 2015), (b) the date on which the judgment was handed down in its final form (3rd November), and (c) the date on which the judge determined costs (9th December). Fourthly, the observer would conclude that there was a real possibility that the judge was biased because he refused to correct a material inaccuracy in the draft judgment even after it had been drawn to his attention. The particular inaccuracy relied on is the judge’s failure to correct the statement at para 106 of the judgment that “it was not put to the claimant” that she had been aware of the Prince’s capacity as the agent of his father, King Fahd. Fifthly, the observer would conclude that there was a real possibility that the judge had been biased against the Prince because his judgment is in key respects inconsistent with the evidence, the inherent probabilities and, in particular, his questions and observations during the trial. There was a change of stance by the judge after the hearing which it is impossible to explain except by attributing bias to the judge. This submission is founded on a detailed analysis of the judge’s interventions during Mrs. Harb’s evidence. These are said to demonstrate hostility by the judge towards her and incredulity about her evidence at that time. Sixthly, the observer would conclude that there was a real possibility that the judge became biased against the Prince in view of his change of mind regarding the explanation given by the Prince during the trial for not attending to give oral evidence. This is the subject of the fourth ground of appeal.
  • It is necessary to have in mind some key aspects of the chronology. The starting point is that on 23rd July, after the conclusion of the evidence, the judge asked the parties whether they wished him to give an indication of his provisional views. In response to their request that he should do so, he said:

 

“on the evidence at the moment I am of the provisional view that there was an agreement as the claimant alleges. However, the question of the capacity of the agent I find very troubling at the moment, the capacity of the agreement. I suspect, I have not looked into it, there is some law about whether or not an agent, [where there] is an undisclosed principal, can assume personal liability under the contract.”

 

  • The parties then made their closing submissions and the judge reserved judgment. He dictated his judgment during the last week of July and first week of August. On 5th August, a written note was submitted on behalf of the Prince commenting on the authorities relied on by Mrs. Harb in relation to the agency issue. The judge says that he dictated a short addendum to the relevant section of the draft judgment relating to the agency issue, but that the draft was not otherwise materially altered.
  • He handed the tapes to his clerk for typing later in August. On 21st August, there was a further hearing before the judge to purge the Prince’s contempt for failing to attend the hearing. The judge said that he had hoped to release his judgment in draft form that day. He was on leave between 2nd and 16th September. As we have already stated, the Article was published on 3rd September. The judge’s clerk started typing the judgment on 6th October. She believes that she completed transcribing the tapes on 14th October. She says that she printed off a hard copy of the judgment for the judge to check and approve and that she made the amendments required by him on 19th October. The draft judgment was circulated to the parties on 21st October. It was handed down on 3rd November.
  • The judge spoke to Mr. Peto QC in about mid-November and complained about the Article. Having not received an answer from him, he wrote the Letter on 1st December.
  • To meet the point that the judge had indicated a provisional view in favour of the claimant before the parties made their closing submissions and before he drafted his judgment, Lord Grabiner says that the judge made some amendments to his draft judgment after reading the Article and before handing down the judgment. We do not know the nature of the amendments. We do not know what the judge’s thinking was in relation to this case after the publication of the Article. In short, he submits, the fair-minded observer would consider that there was a real possibility that the final judgment was influenced by the Article, if only by the judge’s refraining from making changes that he might otherwise have made.
  • More broadly, in his oral submissions Lord Grabiner illustrated his case in this way:

 

“If I were a client and I was using a Blackstone Chambers barrister to argue a case for me and these facts were drawn to my attention, I would be very concerned indeed about who the trial judge was going to be. If I were told the whole of this story, my reaction to that—and I am simply saying that as a reasonable client, given the knowledge of all the facts—the question for this court is: what would be the reaction of that reasonable client?

In my submission that is susceptible of only one answer. He would say—particularly if he were a foreign client who the reason that he comes here in the first place is because he holds the English court system in such high regard. To be given this story, he would be astonished and he would say ‘Well I must say I hope there’s some other judge who can hear my case’, and he would be right” (Transcript 1/107-108).

 

  • In response to Lord Grabiner’s submissions, Mr. Hollander makes a number of points. First, although he accepts that it is possible for a bias for or against an advocate to be sufficient to give rise to a case of apparent bias against the client, of its nature this is likely to be exceptional. It should be borne in mind that the judge has sworn a judicial oath.
  • Secondly, the Letter was a complaint in relation to an article by Lord Pannick, and not against Mr. Mill or Ms. Fatima. These are two of 100 self-employed barristers practising at Blackstone Chambers. They are not in partnership. Nor is there any suggestion that Mr. Mill or Ms. Fatima had any involvement in the writing of the Article. If the appellant’s argument were accepted, it would follow that in any case at any time in which any of the 100 barristers of Blackstone Chambers appeared before Peter Smith J, the fair-minded and informed observer would take the view that the client could not expect a fair trial because of the prejudice of the judge through the advocate’s membership of Blackstone Chambers. That would be the case irrespective of the advocate’s lack of involvement in the Article or the date of his or her joining those Chambers. The fair-minded observer would not take such an extreme view.

 

 

[I am obviously not a fair-minded observer, because I did take that view…]

 

  • Thirdly, what irked the judge and provoked him into writing the Letter was the failure of Mr. Peto to provide a considered response to his oral complaint some two weeks earlier rather than the Article itself.
  • Fourthly, there was no change of mind by the judge in his assessment of Mrs. Harb’s evidence. The informal indication at the close of the evidence that, subject to the agency issue, he was minded to accept that there was an agreement “as the claimant alleges” is a complete answer to the allegation of change of mind.
  • In summary, Mr. Hollander submits that it is fanciful to suppose that, in these circumstances, the fair-minded observer would consider that there was a real possibility that the judgment that was handed down on 3rd November was infected by bias as a result of the Article.
  • In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

 

Shocking and disgraceful is very strong stuff to say about a Judge’s behaviour.

 

  • As we have said, the legal test is not in doubt: see para 54 above. We would, however, emphasise two important points. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The “real possibility” test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias: see Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at para 2 per Lord Hope. As Lord Hope also said in Porter v Magill at para 103, the “real possibility of bias” test “is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias” (emphasis added). We mention this because it demonstrates that the approach urged on the court by Lord Grabiner is incorrect. The court does not ask whether a litigant who is being represented by a member of Blackstone Chambers and knows of the Article would be content to have his case heard by Peter Smith J. We have little doubt that most, if not all, litigants represented by a member of Blackstone Chambers, knowing of the Article, would prefer to have their case heard by another judge. We are prepared to accept that some, indeed many, might have very strong feelings on the subject. But the litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.
  • The facts of Helow illustrate the point well. The petitioner was a Palestinian refugee living in Lebanon. She claimed asylum in the UK on the ground that she feared that, if she were returned to Lebanon, she would be attacked by Lebanese and Israeli agents on account of her Palestinian ethnicity and political opinions. Her claim was refused by the Secretary of State, whose decision was upheld by an adjudicator sitting in Glasgow. Her petition to the Court of Session was dismissed by the Lord Ordinary, who was a member of the International Association of Jewish Lawyers and Jurists, whose magazine had carried a number of extreme pro-Israeli articles. The petitioner sought to set aside the Lord Ordinary’s decision on the ground that a fair-minded and informed observer would have concluded that there was a real possibility that she was biased by reason of her membership of an association which was actively antipathetic to the interests with which the petitioner was identified. The House of Lords dismissed the appeal. In doing so, it conducted a detailed examination of the facts to ascertain the nature and significance of the Lord Ordinary’s membership of the association and its published aims and objectives. The House also said that it could be assumed (and took into account) that the judge was able to discount material that she had read and reach an impartial decision according to the law. We expect that the petitioner would have been very unhappy that her petition had been determined by the Lord Ordinary. No doubt she would have preferred a judge who had no involvement with a body like the association. From her subjective point of view, it might have appeared that there was a real possibility that the judge had been biased. But the test is an objective one and the focus is on the fair-minded informed observer. The approach advocated by Lord Grabiner fails to draw that critical distinction.
  • It also fails to take account of the important point that, even if a judge is irritated by or shows hostility towards an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedings. From time to time, the patience of judges can be sorely tested by the behaviour of advocates. Sometimes, a judge will overreact and unwisely make an intemperate comment. But judges are expected to be true to their judicial oaths and not allow their feelings about an advocate to affect their determination of the case they are hearing. The informed and fair-minded observer is to be assumed to know this.
  • Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of these: see Competition Commission v BAA Ltd and Ryanair Ltd [2010] EWCA Civ 1097 per Maurice Kay LJ at paras 11 to 13 and the authorities cited there. It is common ground before us that the relevant circumstances in this case include all the facts set out at paras 57 to 59 above, although some of these were not in the public domain. It was held in Virdi v Law Society [2010] EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available. Stanley Burnton LJ gave a number of reasons for this conclusion at paras 43 to 48 of his judgment. This reasoning is binding on this court. In any event, we are satisfied that it is correct.
  • With these introductory comments in mind, we can now deal with the allegation of apparent bias in this case quite shortly. We start by saying that we do not accept the submission of Mr. Hollander that the Letter was merely a complaint about Mr. Peto’s failure to respond to the judge’s earlier oral complaint. It is true that the third paragraph complains that Mr. Peto “said that you would get back to me and you have not”. But the rest of the letter is about the “outrageous” Article and his reaction to that. It is impossible to describe the Letter as confined to a complaint about Mr. Peto’s failure to respond.
  • We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

 

Let me just quickly try to count the number of angels dancing on the head of this pin. An informed and fair-minded observed would conclude there was a real possibility that the Judge was biased against all members of Blackstone Chambers, but NOT that this would affect the outcome of any hearing in which they were involved. Okay….

 

  • But there is a further reason why this ground of appeal must fail. The assessment of whether an informed and fair-minded observer, having considered the facts, would conclude that there was a real possibility of bias depends on an examination of all the relevant facts. It is fact sensitive. In our view, the facts in the present case show that the possibility that Peter Smith J was actuated by bias against the Prince is unrealistic. We accept the submission of Mr. Hollander that the chronology of events is very powerful. The judge indicated in open court immediately after the conclusion of the evidence that he was of the provisional view that “there was an agreement as the claimant alleges”. This was despite his (at times) aggressive questioning of Mrs. Harb. The only caveat he entered was in relation to the agency issue. But his concern in relation to that issue seems to have had nothing to do with the credibility of the witnesses. Rather, at that stage it concerned a question of law as to whether an agent may be liable where there is an undisclosed principal. That may be an elementary question (as Lord Grabiner suggested), but that is neither here nor there.
  • The critical point is that the question whether a binding agreement was concluded at the meeting on 20 June 2003 was at the heart of the case. It turned to a large extent on the credibility of the oral evidence of Mrs. Harb and Mrs. Mustafa-Hasan and the witness statement of the Prince. We are not persuaded that there is a real possibility that the judge changed his mind about their evidence after reading the Article. It is true that the judge could have amended his draft judgment after reading the Article so as to make findings favourable to Mrs. Harb which were not contained in the original draft. But the judge said that the only amendments that he made were to deal with the note on the agency authorities and otherwise the amendments were not material. We see no reason to disbelieve this and we did not understand Lord Grabiner to submit that we should do so. More fundamentally, we think it fanciful to suppose that the judge made major changes to his assessment of the evidence simply as a reaction to the Article or that his decision on the agency issue owed anything to a bias against the Prince. There is no evidence to suggest that he did so. In our view, the informed and fair-minded observer would not conclude that there was a real possibility that the judge behaved in this way.
  • For all these reasons, regrettable though the judge’s conduct was in writing the Letter, we reject the allegation of apparent bias.

 

 

Whilst Judges can get things wrong and make mistakes, we do have a system that allows those mistakes to be put right on appeal.  (Even then, we probably don’t get everything right, and not every mistake is corrected and not every appeal succeeds)

 

 

Achieving best evidence – a very critical examination

 

The Court of Appeal in Re E (A Child) 2016  were addressing an appeal from findings of fact that the father had sexually abused all of the children, including making them have sex with a dog, and of having taken them to hotels given them drugs and pills and allowed other men to abuse them or watch them. (I apologise for that graphic opening, I will try to keep the graphic content out of the rest of the post)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/473.html

 

Quick history lesson – ABE, or Achieving Best Evidence, is the guidelines that were drawn up (and occasionally refreshed and honed) as to the police interviewing of children where allegations of abuse are being investigated. They came about as a result of the Cleveland scandal, where many children were removed into care for allegations of sexual abuse and the investigation process was flawed and nearly all of those children had been wrongly removed. When you think of the “Show us on this dolly where daddy touched you?” style of interviewing, that’s what ABE was aimed to stamp out.  The interviews are video-recorded and can be used as evidence in criminal proceedings and care proceedings – with the idea being that if the guidance is followed in spirit and to the letter, the chance of the child’s evidence having been contaminated or influenced by the person asking questions is reduced to a minimum. It’s really important.  I’m glad that the Court of Appeal are looking at this.

 

Let us start with  the delay between the allegations being made and an ABE interview being conducted.

  1. On 20th May 2015 the youngest child, D, then aged 7 years, made allegations to her foster carer implicating both Mr E and young A as having sexually abused her and her brothers. Further allegations were made to the foster carer by D on 25th May and these were in part supported by allegations subsequently made by her older brothers.
  2. All three complainant children were ABE interviewed by police on 27th May 2015. The reason for the delay between the initial complaint and the ABE interview was that the foster carer took the children away on a pre-arranged holiday during the intervening days. The process adopted by the foster carer, social workers and police, together with the content of the ABE interviews themselves, have been the subject of sustained challenge by the Appellant and those supporting the appeal before this court.

 

I have scoured the remainder of the judgment, but it does not seem to me that the delay forms part of the Court of Appeal’s criticism – there are MANY many others. It might, as a practitioner, have been helpful for the Court of Appeal to have been firm about the passage of time that ABE’s are taking – this one, in my experience, proceeded at rocket-lightning pace compared to the average ABE.  Sometimes, that passage of time reduces the chances of an accurate and reliable account being obtained – sometimes that account would rightly exonerate a parent and remove restrictions that are impacting on their family life, sometimes it would point strongly that there’s a case to be answered.

 

When should the Judge in the case see the ABE interviews?

 

In this case, the Judge had not watched the ABE interviews prior to the trial beginning. That, the Court of Appeal suggest, made the decisions she made at the start of the trial less solid (whether police officers should be called, whether the children should be called etc)

Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

  1. It is apparent from the transcript and from the fact that the first day of the main hearing was spent in viewing the ABE material, that the judge had not viewed the videos prior to determining the Re W application on 3rd November. Although it may onerous to do so, it is necessary, before reaching a conclusion on an application for children to be called, for the court to gain a considered view as to the strength of the existing evidence. Sub-paragraphs 9(f) to (j) are plain on this point and require to the court to have regard to:
      1. ‘(f) whether the case depends on the child’s allegations alone;

(g) corroborative evidence;

(h) the quality and reliability of the existing evidence;

(i) the quality and reliability of any ABE interview.’

So the Judge needs to see the ABE interviews before the trial, in order to have a properly informed view as to whether the children should give evidence.

Fast-track interviews

Within this police investigation, the police officers went to see the children AFTER the ABE interviews were made, and conducted interviews with them to obtain more detail / to check their account. Those fast-track interviews were not recorded.

In early June the police log records that the officer in the case “has since the ABE-s in an attempt to get some clarity from the child[ren] about their disclosure, been to the home address and completed a series of fast track questions with the three children to assist in forming a chronology.”

  1. Although not formally part of the ABE interviews themselves, Mr Tyler also submits that the judge should have been extremely concerned that the same police officer had subsequently visited the three children to conduct a ‘fast-track’ interview with them. The concept of a ‘fast-track’ interview involving child complainants in a sexual abuse inquiry has not been encountered before by any of the very experienced counsel in this appeal or by any of the members of the court. Brief notes of the fast-track interviews are contained in the police computer log. B had compiled a handwritten note following his ABE interview and the officer ‘went through’ each point in the note with him, subsequently making a brief summary record on the computer log of what B may have said. Such a process is wholly at odds with the ABE guidance. The record contains the officer’s subjective summary of what the child may have said in response to direct questioning. There is no record of the questions that were asked or of the child’s actual responses. With C the officer ‘went through what C had disclosed to [the foster carer]’; again there is simply a short summary made by the officer of what C may have said.
  2. Mr Tyler’s case is that the fact that the ‘fast-track’ interview took place, without any apparent regard for due process or the potential effect on the ability of the evidence of any of these children to be relied upon in any subsequent criminal proceedings, indicates a need for great caution in placing any reliance on the validity of the earlier process conducted by the same officer(s).

 

(Whilst I haven’t come across “fast-track interviews” taking place AFTER the ABEs, it has become common and in my view sloppy practice, that they happen beforehand, often as a sifting or viability assessment to see if the child will make any disclosures at the ABE.  They are often labelled as Q and A’s. And I think that they are wrong, for all of the reasons above)

  1. However, Mr Tyler has succeeded in demonstrating the following significant departures from recognised good practice by those undertaking the ABE interviews:

c) The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.

d) The short summary note of what each child may have said during the fast track process is wholly inadequate.

[We’ll come back to the many other flaws. Again, I wish that the Court of Appeal had condemned the process of police interviewing children either before OR after the ABE process, but one can read between the lines]

Phase one of the interview not being filmed

Phase one is of course a very critical part of the interview – it is where rapport is built, and any observer can see how it established that the child understands things and understands the difference between truth and lies.  I have never heard of this not being filmed before.

Mr William Tyler QC, leading Ms Jennifer Steele who appeared for the appellant before the judge, has identified a number of potential flaws in the ABE process. The first relates to “Phase 1” as described in the ABE guidance in each of the three interviews. “Phase 1” is the preliminary part of the interview in which the interviewer establishes a rapport with the child through the discussion of neutral, non-relevant topics after a preliminary description of the room and the identity of each of those present. Phase 1 should also include a discussion of the “ground rules” and an attempt to establish the degree to which the child understands the importance of telling the truth and the difference between truth and lies. It is apparent that, whatever process was undertaken with each of these three children with respect to the Phase 1 matters, it occurred off camera. The absence of recorded information as to this important early stage is compounded by the fact that no written record was kept of these interviews, as is normally required within the ABE scheme or, if any written record was maintained, it has not been disclosed into the family proceedings. It is therefore plain that the interviewer had some discussion with each child before entering the video suite, but there is no evidence of what was said. Mr Tyler submits that this gap in the evidence is important and can only reduce the potential for a judge to rely upon the answers given by the children in the subsequent stages of each interview which were recorded. 

The Court of Appeal add that to the list of findings about flaws in the ABE process.

a) The introduction and ‘truth and lies’ aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.

What came across as the purpose of the ABE

  1. Moving on, Mr Tyler submits that each of the three interviews is of a very poor quality in that the interviewing officer, with each child, uses blatantly leading questions during which elements of the narrative, not previously referred to by the child, are introduced. A most striking example of this is at the very start of the taped part of D’s interview, less than one page into the transcript where the officer says:
    1. ‘Okay I think that’s about it for me isn’t it we’ve done the intros. So obviously we know why you’re here today about what we’re going to talk to you about, yes, and I think it’s something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what’s been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?’

D is unresponsive to this and similar requests, which then leads the interviewer to add:

‘[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E’s first name given] and [incorrect name for A given], do you remember that now?’

This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.

  1. Mr Tyler took us to TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597 in which this court was highly critical of the ABE process that had been undertaken in that case. At paragraph 52 Sir Nicholas Wall P said:
      1. ‘As we have already pointed out, the [ABE] Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we are left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.’ [Emphasis in original]

It is a very easy trap to fall into during an ABE interview, which is precisely why there is so much guidance in Achieving Best Evidence, and why it requires specific training to be able to do it properly, and why sloppiness and deviation from the Achieving Best Evidence guidelines is so important. This is classic Cleveland Enquiry stuff.

I am not attacking these individual officers, I think it is a national malaise that Achieving Best Evidence isn’t as integral to the process as it needs to be.  And of course, police officers are fundamentally trained to investigate a crime and get the evidence of it happening. In an ABE, the fact that there may have been no crime and there may be evidence from the children of that, is just as important.

 

The hour-long break in the interview

 

For one of the children, the interview paused in the middle for an hour. When it resumed, the child was substantially more forthcoming. The obvious question is, what EXACTLY happened in the interim?

 

As I have already indicated, the interview with D was interrupted at that point for approximately one hour during which time the child was elsewhere in the police station. On returning to the interview room her demeanour is markedly different from the unresponsive presentation previously demonstrated. Again, no written record has been provided of what transpired during this interval. Mr Tyler submits that the judge should have permitted the police officer to be called to explain events during the missing hour. The only evidence available came from the foster carer who claimed that she said no more to D than “you need to say all the things while you are here, D”.

 

The Court of Appeal accepted this as a significant flaw

b) No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.

 

The Judge’s refusal to call the police officer

 

Given the identified flaws, the Court of Appeal felt that the Judge was wrong to have refused the application by the parents to have the police officer attend Court to give evidence. And of course she made that decision not having seen the ABE interviews themselves.

The absence of information as to the Phase One process, the need to understand from the police officers what, if anything, they had said to D during her one hour absence and the need to understand in greater detail than the computer log provided what occurred during the fast-track interviews, made it necessary, in my view, for the police officer to be called. In the context of an 8 day hearing, the judge’s refusal of the application to call the officer on the basis that it was too late was, on the information given to this court, wrong in the absence of clear evidence that it would not be possible to call the officer at some stage in the hearing (either in person or over a video or telephone link).

 

Judicial analysis of the ABE interviews

  1. The conclusion that I have reached to the effect that it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure, renders it unnecessary to undertake a full description of the various criticisms that Mr Tyler makes of the judge’s evaluation of the children’s evidence. The key matters raised are, however, important and are as follows:
    1. a) The judgment opens, after four short introductory paragraphs, with the judge’s summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.

b) No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.

c) In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.

d) There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.

e) The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.

  1. Although I consider that there is some validity in each of the grounds of challenge that Mr Tyler has raised, the most significant, in my view, is the first relating to the judge’s analysis of the content of the ABE interviews and the last relating to inconsistencies. I do not propose to say anything more as to the content of the ABE material and I will deal with the point about inconsistency very shortly.
  2. Mr Tyler’s skeleton argument plainly establishes the following propositions on the available evidence:
  1. i) each child gave a different account to that given by his or her siblings;

ii) each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and

iii) B effectively made no allegations of sexual abuse in his ABE interview.

  1. The judge’s approach to inconsistencies is seen at paragraph 16 of the judgment:
    1. ‘D’s account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script.

Later, at paragraph 28, she states:

‘There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.’

Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:

‘The inconsistencies in the children’s ABE interviews are addressed.’

  1. I am afraid that I consider that the judge’s approach to the many inconsistencies within the children’s accounts falls well short of the level of analysis that this evidence required. Without descending to detail, three short points can be made. Firstly, whilst it is correct that the inconsistencies did not demonstrate that the children were trotting out a script, that observation could not, at a stroke and without more, obviate the need for the judge to evaluate the inconsistencies in more detail. Secondly, it is simply not possible to hold that each child giving a different account in his or her ABE interview in some manner corroborates the account given by one or both of the others. As the judge observed, D’s account in her ABE interview was different to her brothers. B’s ABE interview was effectively devoid of any positive allegation being made at all by him. That is not corroboration. Thirdly, this broad brush and superficial approach to the inconsistencies was carried forward by the judge when making her detailed findings which include a number of specific allegations which were only made by one of the children on one occasion and neither repeated by them subsequently nor supported by a similar account from either of the other two children.

 

 

The children giving oral evidence – the Judge’s decision

 

  1. The question of whether or not any of the children should be called to give live evidence was considered by the judge at the IRH on 3rd November 2015. Prior to that hearing Ms Steele, on behalf of the Appellant, had filed a six page position statement in support of the formal Re W application that had been made on behalf of her client. In her document Ms Steele makes detailed submissions relating to the evidence in these proceedings under the various headings identified by Baroness Hale in Re W and supplemented by guidelines issued by the Family Justice Council Working Party on Children Giving Evidence (set out at [2012] Family Law 79).
  2. The transcript of the hearing on 3rd November 2015 did not become available to the court and the parties until the morning of the oral hearing of this appeal. Prior to that stage each party had referred to the judge giving a very brief judgment prior to dismissing the Re W application. The transcript, however, shows that, in fact, no judgment of any sort was given by the judge on that day. During the course of the ordinary business of the IRH the judge made the following references to the topic:
    1. “[the presence in court of the Guardians in the F Children’s case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decision that I made earlier.” (Transcript page 7).

“Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…”

Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:

“JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, ‘You’re lying aren’t you’.

MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.

JUDGE WATSON: Yes.

MS STEELE: My client or me on my client’s behalf have to be able to, in my submission, not put to them that they’re lying but be given the opportunity to put to them the contradictions in their evidence.

JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children-

MS STEELE: I of course-

JUDGE WATSON: -and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.

MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can’t put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me.

JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.

MS STEELE: No.

JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.

MS STEELE: My Lady I don’t think there’s very much else that I can add-

JUDGE WATSON: No.

MS STEELE: -with what I’ve already said in there and what I’ve said to you.

JUDGE WATSON: Yes.

MS STEELE: There’s really nothing else I can add.

JUDGE WATSON: No.

MS STEELE: Unless you would like me to attempt to-

JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has.”

 

I found the underlined exchange quite extraordinary. Of course a great deal of care needs to be taken in asking questions of a young child and of course a “gloves-off” attack on inconsistencies that just muddles and mixes up the child is going to be abusive and not advance the case, but the judicial suggestion here that this would be counsel’s agenda is extraordinary. Just my personal view.

 

The Court of Appeal’s view

  1. Having considered the transcript of the hearing of 3rd November, Mr Tyler made the following submissions:
    1. a) The judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;

b) Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;

c) In the circumstances the judge’s consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.

  1. Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

Note particularly this paragraph of the judgment

 

It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights.

 

  1. In any case where the issue of children giving oral evidence is raised it is necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue.
  2. It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.
  3. The court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79. The Guidelines, which were specifically developed to assist courts following the decision in Re W, contain a list of no less than 21 factors to which the court should have regard when determining whether a child should give oral evidence in the context of the principal objective of achieving a fair trial [paragraph 9(a) to (v)]. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:
    1. i) the possible advantages that the child being called will bring to the determination of truth balanced against;

ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence.’

  1. Whilst not all of the elements described by Baroness Hale in Re W or in paragraph 9 of the Guidelines will be relevant in every case, it is plain that the court undertaking a Re W determination will need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-service to Re W is not acceptable. By ‘full’ I do not wish to suggest that a lengthy judgment is required, but simply that the judge must consider each of the relevant points with that process recorded in short-form in a judgment. Such a detailed process is in my view justified given the importance of the decision for the welfare of the child and for the fairness of hearing.
  2. It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.
  3. Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation. In some cases, despite the negative factors, it may nevertheless be in accordance with the wider welfare interests of the child for him or her to be called to give evidence. Each case will be different, but even where the child may suffer some emotional harm from the process, if such harm is likely to be temporary and where the quality and potential reliability of the other evidence in the case is weak, it may (in addition to any fair trial issues) nevertheless be in the child’s best interests to give oral evidence. If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
  4. The observations made in the previous paragraph are intended only to make the point there made; they are not intended to establish any new test or template for decision making over and above what is said in Re W and the Guidelines to which recourse should be had as a matter of routine in every case where there is a Re W application.
  5. Turning to the present appeal, it is unfortunately plain that the consideration given to the Appellant’s Re W application by the judge fell well short of what was required. I have set out the relevant passages from the transcript in full (paragraph 50 above). No formal judgment was given. At no stage in the hearing did the judge even refer to the factors set out by Baroness Hale in Re W or to those listed in the Guidelines.
  6. It is of concern that the judge suggested, during submissions, that the court, assisted by the guardians, would keep the issue of oral evidence under review during the main hearing itself. The question of whether or not a child is to give oral evidence should be determined well in advance of the hearing at which she or he may be called. To contemplate deciding, at a later stage and once the hearing itself has started, to call them is likely to increase the potential for the process to impact upon the child in a harmful manner and would allow little or no time to prepare the child and those caring for them.

 

 

Child’s article 6 rights

 

In this case, one of the children, A was 15 although with some learning difficulties – he was not capable of instructing a solicitor and was so represented by the Guardian and the child’s solicitor. When the Guardian and solicitor met with him, the allegations were discussed. The Judge directed that a note of those discussions be filed and served.

  1. A has never made any allegation of sexual abuse against his father or of being incited or encouraged by his father to abuse others. He did not admit that he had himself committed any act of sexual abuse on others. On 29th May 2015 he was interviewed by the police. This was not an ABE interview, but an interview under caution which took place after he had been arrested on suspicion of having committed rape. The interview lasted for one hour. A engaged with the process throughout by answering factual questions. When sexual allegations were put to him he was clear and plain in his complete denial of being involved in any sexual behaviour. An audio recording of this interview is apparently available, but no party invited the judge to listen to it.
  2. On 27th October A’s social worker visited him in order to ascertain his ‘wishes and feelings in respect of the upcoming fact finding hearing’. The social worker’s statement records that A asked what a fact finding hearing was and that she explained that the allegations that had been made against him and his parents would be put to the judge, along with other matters that concerned the local authority. She states, ‘A nodded as I spoke, suggesting that he understood’. He was then told that the judge would consider the evidence and make a decision on the likelihood of the allegations being true or not. A’s question following this explanation was about the options for his placement in the event that the allegations were found proved or not proved. The social worker records that when she explained that if no facts were proved she would work with A and his parents to determine how best to move him back home at a pace that he was comfortable with, ‘again A acknowledged this and nodded as I spoke’.
  3. The social worker went on to record that she discussed the allegations that had been made against A and that throughout this discussion he maintained eye contact with her and had open body language. When she explained to A that, with regard to allegations made by D against him, there were only two people who are aware of what, if anything, took place, ‘A nodded at this statement, however did not offer any discussion around this.’ When the social worker asked if A had ever seen behaviour such as that which had been alleged, A’s body language was said to change in that he responded with short answers and began to fidget with his hands, he was, however, still engaging with the conversation. A worker from the unit then joined the conversation and, after trying to explain to A what ‘learned behaviour’ was, he asked A if ‘there was anything he wanted to share at this point’ to which A replied ‘not right now’. When asked whether he might do so later, A said ‘yes, I think so’.
  4. On the 2nd November 2015 A’s CAFCASS guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit, ‘G’). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.
  5. The statement goes on to state that the solicitor explained to A that only A knew if anything sexual had happened involving him and that the solicitor and guardian needed a ‘steer’ from A as to whether there had been anything sexually inappropriate which had happened to him in the past or not. A did not respond to this request and the statement describes time passing with breaks for tea and others matters being discussed before continuing:
    1. “I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.

When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …

G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.

[Solicitor] and I did not question A or G further. G stated he would inform A’s key worker when he took over at 3pm.

I was aware that A’s information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …”

 

The Court of Appeal point out that A had legal professional privilege relating to that visit and had not been asked to waive it. His lawyer was present, rather than just the Guardian.

 

  1. The first relates to the professional responsibilities of A’s solicitor and guardian during the process of trying to obtain his instructions on the allegations that were to be made against him in the proceedings. A, as a party to the proceedings who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly. The importance of legal professional privilege was plainly stated by Lord Taylor in the House of Lords decision of R v Derby Magistrates’ Court, ex parte B [1996] AC 487:
    1. ‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’
  2. The express purpose of A’s solicitor and guardian visiting him on 2nd November was to go through the evidence against him for the purposes of the forthcoming hearing. It is not apparent from the guardian’s statement or any other material that we have seen that the question of legal professional privilege was considered or discussed with A. The following day the fact that the visit had occurred was made known to the court and the judge directed the guardian to file a statement giving an account of it. There is no indication that that direction was contested or that the solicitor and guardian expressly purported to waive A’s legal professional privilege on his behalf. At the hearing of this appeal Miss Meyer did not argue that the issue had been addressed at all. The result was that the full details of A’s meeting with his solicitor to discuss these allegations, such as it was, became fully known to the court. In the event A had said very little of note during this meeting, but in another case the situation may be very different. It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client’s rights are properly acknowledged and protected.

 

[This all VERY important for children’s solicitors]  The Court of Appeal actually found that A’s article 6 rights had been breached by this procedure.

 

Obviously with all of these flaws, the findings were overturned, and the case sent back for re-hearing.

  1. In conclusion, I am satisfied that this appeal must succeed on the following broad bases:
  1. i) The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.

ii) The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).

iii) The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.

iv) The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.

v) A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.

vi) The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

Given that all of the police investigations came up with no corroborative evidence and the case was based almost entirely on the children’s allegations and the ABE interviews, the LA will have an uphill struggle at that re-hearing.

Coal Board and Age Assessments

 

It has been a very long while since we had a piece of case law on age assessment. If you are already saying “I bet it involves Croydon”, then gold star for robot boy, well done!

London Borough of Croydon v Y 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/398.html

Y turned up in this country from Nigeria. He claimed to have been born in 1999, and that he had been trafficked here. If true, that would mean that he was a child and entitled to accommodation via Croydon’s social work department and services and would be able to stay until 18. If not true, he would be an adult, and would probably be liable for deportation. [In this case, he absolutely would have been deported, it was the age argument that was putting that process on hold]

There’s therefore quite a vested interest in people who are not under 18 claiming that they are.

A number of individuals arrive in this country seeking asylum and claiming to be under 18. Most are males and have entered or have sought to enter by clandestine means. They are referred to as Unaccompanied Asylum Seeking Children (UASC). That description includes those who assert that they are under 18. Many who travel from countries where they allege they are being persecuted such as Afghanistan or Iraq will have been assisted by agents and in any event the advantages of persuading the authorities that they are under 18 are well-known. Those advantages include the automatic grant of leave to remain until aged 18 coupled with the inability to return to Member States of the European Union if the individual would otherwise be returnable in accordance with the Dublin Regulations. In addition, as children they will usually be entitled to the care and accommodation which a local authority is obliged to provide to children in need. Thus the assessment of their age is most important.

 

[Collins J in A v London Borough of Croydon [2009] EWHC 939 (Admin), ]

 

In this case, Croydon’s age assessment was based largely on Y’s physical appearance (as it was in a case I once had where the alleged 16 year old had a beard that Captain Birdseye would have been proud of). Y judicially reviewed that decision.

The Court gave some directions

 

5.On 1 September 2015, UT Judge Allen gave directions in the age assessment challenge proceedings. These included (i) that the matter be listed for a 4 day fact-finding hearing in order to determine Y’s date of birth; and (ii) that Y be granted permission to rely on reports by Dr Juliet Cohen, a forensic physician, Dr Susannah Fairweather, a child and adolescent psychiatrist and Ms Christine Beddoe, specialist adviser on human trafficking and child exploitation.

  1. The trial was fixed to start on 8 February 2016

 

Croydon then made an application to strike out the claim

 

On 20 November 2015, Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray) by Professor Roberts, (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision of this court in Starr v National Coal Board [1977] 1 WLR 63 to which I shall refer in some detail later in this judgment

 

[I’m not QUITE sure why that was an application to the Upper Tribunal Asylum and Immigration Chamber, rather than to the Judge who had given case management directions in the judicial review. It rather seems to me that those were applications for case management directions /orders in the judicial review fact finding, but the Court of Appeal don’t take up that point, so perhaps it is just a bad one on my behalf]

You’ll have seen the reference to Starr v National Coal Board 1977. It is not the same National Coal Board that comes up very infrequently (in judicial bias cases or recusal cases, citing Lord Denning’s remark that the Judge had intervened too much and ‘descended into the arena’)

 

The Starr principles

  1. The case of Starr concerned a claim in negligence for damages for personal injury, namely ulnar nerve compression. It was conceded by the plaintiff that it was necessary for the defendant, in preparing its defence, to be advised by a consultant neurologist who had had the opportunity of examining him. The defendant had nominated Dr X for that purpose. The plaintiff objected to examination by Dr X without stating his reasons. But he said that he was willing to be examined by any other consultant neurologist of similar qualification and experience to Dr X. The defendant applied for a stay of all further proceedings until the plaintiff submitted to an examination by Dr X. This court upheld the stay that had been granted by the judge.
  2. At p 70H, Scarman LJ said that in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court”. The first is the plaintiff’s right to personal liberty. The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. He went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant. Applying these principles to the facts of the case, Scarman LJ said at p 72H:
    1. “I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence.”
  3. At p 75H, Geoffrey Lane LJ said:
    1. “…the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.”
  4. Cairns LJ said much the same at p 77C.

 

It is a damn clever argument, and ’nuff respeck to whoever at Croydon came up with it. Essentially, relying on these Starr principles to say “If we are having to defend a case, but the person bringing it refuses to cooperate with assessments that we reasonably ask him to participate in, the case should be thrown out”

The Tribunal disagreed, and hence Croydon went to the Court of Appeal.

 

The decision at first instance

 

  1. The application was refused by UT Judge McGeachy on 8 December. He gave a short ex tempore judgment which included the following:
    1. “My decision is this. Although I have some considerable sympathy with the application made and I think it is most unfortunate that the applicant’s representatives have come to the conclusion that they will not cooperate I consider that the order sought is too draconian for me to either stay the proceedings or to dismiss the proceedings at this stage.

2. I consider that the fact that the applicant’s representatives have decided that he should not cooperate with a dental examination, which I consider might well have been useful, let alone the further age assessment to be carried out by Croydon is a matter on which it may well be that you would wish to address me at the hearing. I presume that is what you would want to do but I am not prepared to bring the proceedings to a halt now.”

  1. Further light is shed on the judge’s thinking by his decision of 16 December in which he explained why he refused permission to appeal to this court. He said:
    1. “(2) The grounds of appeal assert that I had failed to give reasons for not granting the application given the terms of the judgment in Starr v NCB [1977] 1 WLR 63. In my oral judgment I gave reasons for my decision. While I did not specifically refer to the judgment in Starr the reality is that that case can be distinguished from the present. It is of note that in Starr it had been conceded that it was necessary for the defendants, in preparing their defence to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff. That is different from a case such as the present in which there is a challenge to a decision which has already been made. Moreover, while the case in Starr was a private law matter this is an action in public law where there is a public interest in the efficient disposal of the application, particularly as it relates to the age of the applicant who claims to be a child.

(3) I was entitled to take into account the efficient disposal of that application and that is why I stated that staying the proceedings at this stage was a decision which was too draconian: staying the proceedings would not resolve the issue before me. Given that the matter was to proceed to trial at the beginning of February 2016 it was appropriate that satellite litigation should be discouraged.

(4) I consider that my decision was an appropriate use of my case management powers in that it is a clear aim of those powers to ensure the efficient disposal of an application.”

The grounds of appeal

  1. Mr Holbrook submits that the judge erred in holding that the Starr principles did not apply in respect of Y’s refusal to consent to (i) an age assessment by two social workers employed by Croydon, (ii) a dental age assessment by Professor Roberts and (iii) a psychiatric assessment by Dr Tony Davies. He should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon’s application to stay or strike out Y’s claim unless he consented to each of the three assessments sought.

 

The Court of Appeal concluded that the Starr principles DID apply  (this was something of a shock to me when I was reading the case, though not an unpleasant shock) and that thus the appeal must succeed

 

Discussion

  1. It is unclear whether the judge addressed the Starr principles or not. It would have been surprising if he had not considered them, because they had been the subject of full argument before him. Paras 1 and 2 of the judgment might suggest that he accepted that they did apply, but that he was not willing in the exercise of his discretion to strike out the claim or order a stay because such a remedy was too “draconian” or in modern parlance “disproportionate”. On the other hand, in his reasons for refusing permission to appeal, he sought to distinguish Starr on the grounds that (i) it had been conceded in Starr that it was necessary for the defendant to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff; and (ii) Starr was a private law claim, whereas the present claim was a public law claim.
  2. On balance, I incline to the view that the judge did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff. Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon’s application was an appropriate use of his case management powers to ensure the efficient disposal of the application.
  3. I would reject these reasons and substantially accept the submissions advanced by Mr Holbrook. As regards the first reason, the fact that the plaintiff in Starr conceded that it was necessary for the defendant to be advised by a consultant neurologist who had had the opportunity of examining the plaintiff was not essential to the reasoning of the court. The concession meant that the court could proceed on the basis that the medical examination was necessary for the proper conduct of the defence. If that had not been conceded, the court would have had to decide for itself whether the examination was necessary. The concession is a basis for distinguishing Starr from the present case on the facts. It cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence. It would seem that the judge was probably satisfied that the dental examination and the examination by the two social workers were reasonably necessary because he said in his judgment that he had “considerable sympathy with the application”; he thought that it was “most unfortunate that [Y’s] representatives have come to the conclusion that they will not cooperate”; and he considered that a dental examination “might well have been useful, let alone the further age assessment to be carried out by Croydon”.
  4. As regards the second reason, there is no basis in principle for confining the Starr principles to private law litigation. I accept that there are important differences between private and public law litigation. These differences are, for example, recognised by the fact that they are subject to different procedural regimes. In most judicial review litigation, the court does not hear oral evidence or make findings on disputed questions of fact. That is why there is little scope for the application of the Starr principles in public law cases. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred applies in any litigation. In a case where one party wishes to have an examination of the other party, the other fundamental common law principle identified by Scarman LJ comes into play. That is so whether the case involves a private law or a public law claim. Although the age assessment issue in the present case arises in judicial review proceedings, it is common ground that the issue is one of fact for the court to determine on the evidence adduced before it: see R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2537. It follows that there is no reason to hold that the Starr principles do not apply merely because the issue arises in public law proceedings.
  5. The third reason is quite difficult to pin down. Mr Berry makes much of the point that this was a case management decision involving an exercise of discretion in respect of which this court should allow the judge a generous ambit: see, for example, Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at para 38 per Chadwick LJ and Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33 per Lawrence Collins LJ.

 

Given what is said here, the door is at least ajar for people arguing that the Starr principles that a person is entitled to insist on another party being assessed by an expert of their choice should apply to private law family cases, where two parents are arguing about who is suitable to look after their child and how much time the child should spend with the other. I think that it is more of a stretch for care proceedings (the Local Authority, who want the parent to undertake an assessment, are the applicant, not the defendant)

This part of the Starr principles though, I can see being deployed

 

The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant.

 

Not perhaps so much with whether there should be an expert assessment at all, since that is rather covered by the Children and Families Act 2014 which sets out the ‘necessary to resolve the proceedings justly’ test, and Starr as case law can’t override later statute. But in a case where a Local Authority want the father to be assessed by Dr Leighton Buzzard, and the father would prefer Dr Ashby De-la-Zouch, then Starr (and this case) might be usefully deployed. The strong suggestion is that the witness should be of the defendant’s own choosing.

 

[I can also immediately sense that Ian from Forced Adoption will be wanting to deploy Starr and this case to say that a parent should be entitled to call evidence at a final hearing from whatever witnesses they choose – usually character witnesses, and it will be interesting to see how the Courts deal with that sort of argument]

Many of you who are familiar with age assessment cases are pondering the use of dental X-rays, which are pretty controversial in age assessment determination (in terms of reliability, efficacy and ethics of undertaking an X-ray when there is nothing medically wrong with a person for purely forensic purposes many dentists are unhappy about it). The Court of Appeal acknowledged those issues, but concluded that it wasn’t a reason for refusing to undertake the assessment.

it is said that the method of assessing age using mean data taken from dental x-rays is controversial and unreliable. But it is impossible for the court to reach a conclusion on whether this is correct or not. In my view, it cannot be a reason for refusing the order. No doubt, the reliability of the assessment based on dental x-rays will be investigated at the hearing.

 

 

Preacher and Cyanide

 

This was a Court of Appeal decision about whether a parent can be prevented from giving their children names of their choosing. In this case, the mother had chosen the names “Preacher” and “Cyanide” for her newborn twins.

Could she be prevented from officially registering these names?

Unlike France, where Registrars themselves have a right of veto, British Registrars can raise eyebrows and gently persuade, but they have no power to prevent a parent giving a name that they consider unsuitable.

Do the Courts have power to stop a parent doing so? Does a Local Authority?

http://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html

The Court of Appeal ruled that the answer was yes, but that the correct route to follow was more complex than one might first think.

 

  1. The issue to be determined is whether there is power in this jurisdiction to prevent a parent with parental responsibility from registering a child with the forename of his or her choice. If the answer to that question is ‘Yes’, the second question (and one which rather unexpectedly requires a detailed consideration of somewhat labyrinthine technicalities) is by what procedural route the court should exercise that power.
  2. For reasons set out below I am entirely satisfied that the court has such a power. I am equally satisfied that it is a power which should be used only in the most extreme cases and only with the sanction of a High Court Judge.

 

Re C (Children) 2016

There were going to be care proceedings in any event, due to the mother’s background of mental health difficulties, and the Local Authority in this case applied to the Court under the Inherent Jurisdiction. The Judge at first instance said that they were wrong to do this, and ruled that if they had Interim Care Orders (which they did), then naming a child was a function of parental responsibility, and the LA could overrule this, using the powers in section 33 of the Children Act 1989.

The parent’s protection about the LA using this power of veto would be to make an application under the Human Rights Act that the power had been used disproportionately.

The Court of Appeal took the view that whilst this was technically correct, that blocking the parents choice of name was such an unusual and important decision that it was best for the matter to come before a Court, and thus that inherent jurisdiction actually was the right step.

 

  1. In my judgment:
    1. i) the choosing of a name (forename and surname) for a child by a parent with parental responsibility and

ii) thereafter the act of complying with the duty of the mother and the father to give to the registrar ” information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register” (section 2(1) BDRA 1953)

are each acts of parental responsibility.

  1. The route chosen in the present case by the judge – section 33(3)CA 1989 supported by an injunction under section 37 SCA 1981 – is superficially attractive, the more so, if Baker J is right, that the mother has a safety net in that she may apply for an injunction under section 8 HRA 1998 where : (i) the proposed course of action by a local authority falls foul of section 33(4) CA 1989, in failing to promote the welfare of the child in question and (ii) where it can be shown to be a unjustifiable interference with the family’s Article 8 rights.
  2. In my judgment, notwithstanding the possible availability of such ‘tit for tat’ injunctions, the use by a local authority of section 33 CA 1989 in relation to the registration or change of a child’s forename has at least two significant problems:
    1. i) if the judge is right and the inherent jurisdiction has no role in a case such as this because section 33 CA 1989 provides the complete answer, then, unless a local authority needs to apply for an injunction under section 37 SCA 1981, this comprehensive invasion of the mother’s Article 8 rights will require no prior sanction from the court.

ii) The matter came before the court only because an application was made under section 100 CA 1989 and not by way of an application under section 33 CA 1989. Section 33 CA 1989 provides for an application for leave to be made to the court with regards to the changing of a child’s surname. There is no similar provision in relation to a forename. There is therefore no procedural route within section 33(3) CA 1989 (or by way of a general “catch all” within the Act) whereby a local authority can bring before the court that exceptional case where the court’s guidance is needed as to the use by a local authority of its powers under section 33(3)(b)(i), in respect of the decision itself (as opposed to seeking the protection of the local authority’s powers by way of injunction).

  1. In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court.

(Whilst the provisions of s33(7) prevent the LA changing a child’s surname without permission of the Court, there is no such ban on forename)

It does seem that it must be right for such a serious step to be aired before a Court and debated properly, rather than a Local Authority using their powers under an ICO under s33 to change the name without the opportunity for the Court to properly consider it, and a parent trying to fix it after the event.

Inherent jurisdiction of course requires that the provisions of section 100 apply (that the desired outcome cannot be achieved by any other statutory order, and that significant harm will arise if inherent jurisdiction is not used)

  1. I am satisfied that the result which the local authority wish to achieve cannot be achieved either:
    1. i) through the making of an order to which section 100(5) CA 1989 applies in the absence of a provision (or requirement) in section 33 CA 1989 for the local authority to make an application in relation to the giving or changing of a forename of a child or

ii) by way of a prohibited steps order or a specific issue order.

  1. That leaves the question of “whether there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm”?
  2. The judge reached the conclusion that section 100(4)(b) CA 1989 was not satisfied; in his judgment, the giving to the babies of the names contemplated by the mother did not give the court “reasonable cause to believe that if the court’s inherent jurisdiction is not exercised” they would suffer significant harm. Further, the judge appeared to be of the view that a single issue relating to the naming of a child, is not, without more, capable of satisfying the section 31 CA 1989 threshold criteria. With respect I disagree; in my judgment, although it will only rarely be the case, the giving of a particular name to a child can give a court reasonable cause to believe that, absent its intervention, the child in question is likely to suffer significant emotional harm. In my judgment this is one such case and there is every reason to believe that if the court’s inherent jurisdiction is not invoked in order to prevent the girl child from being named ‘”Cyanide”, she is likely to suffer significant harm.
  3. In my judgment, the local authority took the correct procedural route when they made an application under section 100 CA 1989 seeking ” the intervention of the High Court in order to exercise its powers pursuant to section 100 Children Act (CA) 1989 and/or its Inherent Jurisdiction” (sic).

 

The significant harm issue is obviously tricky. The Court were satisfied here that the choice of the name “Cyanide” was such that would cause the child significant harm.

Let’s look at the mother’s reasoning

 

“6. I confirm that I believe it is my right to name the children the names that I have chosen as their mother and I believe it is my human right to exercise my right to choose their names and register my children’s names without the interference of the local authority.

7. I confirm that I have chosen Preacher for my boy child as it is a strong spiritual name. It is a name that suggests proclamation and advocacy and being able to communicate with a wide community.

8. I also consider that Preacher is a rather cool name which will stand my son well for the future and I do not consider that it will impact on his development, emotionally, physically or mentally.

9. I confirm that I have chosen the name Cyanide as I believe that it is a lovely pretty name.

10. I further confirm that the name is linked with flowers and plants, that elderberry, hydrangea, cherry laurel and roses all have compounds of Cyanide found in the leaves and the fruits.

11. I believe that Cyanide will be a strong name that will stand my daughter well for the future and that I believe that it is a poison that has been used since the ancient Egyptians and it is derived from the Greek meaning dark blue.

12. I also consider that Cyanide was responsible for killing Hitler and Goebbels and I consider that this was a good thing and therefore Cyanide can be considered as a positive name, reflecting positive action that destroyed very bad people in the war.

13. I do not accept that it will have an adverse impact on my daughter during her formative years or later in her life.”

 

 

The Court of Appeal said this about names generally

 

What is in a name?

  1. One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity. The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of ‘belonging’ which will be invaluable throughout his or her life.
  2. If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity. That remains the case, even if the name used in his or her new family and thereafter throughout their lives, is different from that given to him or her by their birth mother.
  3. The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her.
  4. The judge recognised both the importance of a forename, and the fact that, ordinarily a choice of name for a child, even one which many would regard as outlandish, would not provide a reason for the interference by the state in private family life. The judge said:
    1. “A name is a direct link with the parent who chose the name……A name is also a badge of association, sometimes reflecting cultural identity, nationality, tribal heritage or religion. Above all a name is a gift a parent gives to a child, reflective of personal wishes and traditionally unconstrained in its choosing by legal restriction.

Notwithstanding the above it is not unknown to those working in the Family Court to encounter children whose parents have chosen to give them forenames which can most kindly be described as unusual, idiosyncratic or even eccentric bordering on the bizarre and more accurately be regarded as an act of parental selfishness or thoughtlessness and wholly lacking in consideration of the impact upon the child.

The choice of such names may well be reflective of a general failure to adopt a child centred approach to their responsibilities in meeting the child’s welfare but in my experience that choice of name has never been in of itself a reason for the involvement of the state in private family life.”

  1. The judge went on to consider how taste and perception can change and that a name which “is considered by a child to be an embarrassment at one age on account of it being different or unusual may well, as they get older and begin to assert their individuality, become a badge of pride for those very same reasons.”
  2. The judge correctly identified the important issue in the context of the care proceedings before him as being “the extent to which the local authority can or should exercise its shared responsibility in order to determine the name that a child in their care should be given…”.

 

In relation to the possibility of names being given which could be harmful, and “Cyanide” particularly :-

 

Discussion

  1. I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority’s powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination.
  2. It follows that I am also satisfied that there may be rare cases, where a local authority believes that the forename chosen by a parent, and by which he or she intends to register a child, goes beyond the unusual, bizarre, extreme or plain foolish, and instead gives the local authority reasonable cause to believe that by calling him or her that name he or she is likely to be caused significant harm. In those highly unusual circumstances, the proper route by which the local authority seek to ensure that the course it proposes is necessary and in the child’s interests is (as was held by Butler-Sloss LJ in Re D, L, and LA supra) by putting the matter before the High Court by way of an application to invoke its inherent jurisdiction.
  3. Cyanide
  4. The judge at first instance found that, even allowing for changes in taste or “developing individual perception”, the name “Cyanide” was not “obviously indicative of a parent who is acting so as to contribute or otherwise secure the welfare of her children” and made the order sought preventing the mother from calling her Cyanide or registering her birth in that name. As already recorded, the judge reached that decision notwithstanding that he had held that the issue of the naming of the children was not, in itself, capable of satisfying a court that the child in question was likely to suffer significant harm.
  5. As set out at paragraph 103 above, I disagree with the judge’s conclusion as to availability of the court’s inherent jurisdiction, although not with the ultimate decision he made. For myself, I cannot (at present) envisage any circumstances in which an order preventing a parent from giving its child the forename of its choice could, or should, be made absent the court being satisfied that failure to intervene is likely to cause the child in question significant harm.
  6. In my judgment, giving this child the name “Cyanide” as her forename is capable, without more, of giving the court reasonable cause to believe that she would be likely to suffer significant emotional harm:
    1. i) in relation to her sense of identity and self-worth, particularly here as a child who cannot be brought up by either of her own parents. It is hard to see how (regardless of what justification may be given to her by loving carers) the girl twin could regard being named after this deadly poison as other than a complete rejection of her by her birth mother; a rejection not replicated, in her eyes, in respect of her twin brother.

ii) to her in her day to day life as a child. Whilst teasing and ridicule are a natural part of childhood and, in moderation, help to develop resilience, such a name potentially exposes the girl twin to treatment which goes far beyond acceptable teasing. Further it would be wilful of the court to fail to factor into its consideration the power of social media and the very real danger that a child called “Cyanide” would soon be a victim of “cyber bullying”

  1. In my judgment this is one of those rare cases where the court, in the exercise of its inherent jurisdiction, should intervene to protect the girl twin from the emotional harm that I am satisfied she would suffer if called “Cyanide”.

 

That left “Preacher” – it would seem to me that if there had only been one child that “Preacher” comes under the category of unusual or idiosyncratic names, but could not be said to actually be capable of causing the child harm. The children’s Guardian in this case urged the Court to prohibit “Cyanide” but allow “Preacher”  (and I have to say that I tend to agree)

 

However, the Court of Appeal did not think that the Judge had been wrong to prohibit both names. In essence, they say that the female child, whatever she would be named, might later learn that her name was not given to her by her mother whilst her twin brother had got the name his mother had given him. As a result, she might find out (probably by googling “Boy named Preacher”) that her mother had wanted to call her Cyanide. The Court of Appeal felt that it would be better for both children to have names chosen by others, rather than one by their mother and one by the Local Authority

 

Preacher

  1. In her written submissions, the Guardian submitted that the interference in the mother’s right to name her child was only necessary and proportionate in respect of calling the female baby “Cyanide”. Her argument was that the two names fell on either side of the ‘significant harm’ threshold – “Cyanide” on one side of the threshold – that of being harmful, and “Preacher” on the other – unusual, but not harmful.
  2. The local authority’s application under section 100 CA 1989 was made in respect of both children. The Guardian’s approach whilst understandable, arguably places the twins in conflict, with the boy child growing up with the name chosen by his birth mother whilst his twin does not.
  3. In the case of Birmingham City Council v H (No 2) [1993] 1 FLR 883, Balcombe J described the balancing exercise to be carried out where a conflict arose between the separate interests and welfare of two children in one application in the following way:
    1. “You start with an evenly balanced pair of scales. Of course, when you start to put into the scales the matters relevant to each child – and in particular those listed in s 1(3) – the result may come down in favour of the one rather than the other, but that is a balancing exercise which the court is well used to conducting in cases concerning children.”

At 899E – G, Evans LJ put the matter like this:

“But the welfare of the two individuals cannot both be ‘paramount’ in the ordinary and natural meaning of that word. If that is the requirement of s 1(1) in the circumstances, then the Act presents the court with an impossible task. For this reason, I agree with Balcombe LJ that the requirement must be regarded as qualified, in the cases where the welfare of more than one child is involved, by the need to have regard to potential detriment for one in the light of potential benefit for the other. Only in this way, as it seems to me, can the subsection be applied and the manifest objects of the Act achieved.”

  1. In my judgment the potential benefit to the boy twin in having a forename chosen by his mother is more than outweighed by the potential detriment to the girl child of them having forenames names given to them from two different sources – namely their mother on the one hand and their half siblings on the other.
  2. It is not unusual for a child, with even the most commonplace name, to ask how his or her name was chosen. This is made more likely in the case of an unusual name, such as “Preacher” and in circumstances where the children concerned are not living with their natural parents. The only possible response that his carers would be able to make in response to such a question, would be to tell the boy twin that it was the name that his birth mother had chosen for him. This would lead to the inevitable question from the girl twin as to whether her name had also been chosen for her by her mother and, if not why not? She would undoubtedly ask what name her mother had given to her and why it had been changed. The outcome of such a predictable conversation would be to expose the girl twin to a significant part of the very harm the court seeks to prevent; she would know not only that her mother had chosen to call her “Cyanide”, but also to have to come to terms with the fact that she was to have been named after a notorious poison, whilst her twin brother was to be given the name of a respected member of society, “Preacher”.
  3. I accept the Guardian’s basic submission that the name “Preacher” in itself would probably not have led a court to conclude that he would be likely to suffer significant harm if that was the forename he was given. However, upon carrying out the BCC v H balancing exercise, and having put into the scales the matters relevant to each child, I have reached the conclusion that the girl twin’s welfare can only met by neither she nor her brother having the names chosen for them by their mother. I am reinforced in this view by the fact that, whilst “Preacher” in itself might not be an objectionable name, there is considerable benefit for the boy twin to be in the same position as his sister and for them each to grow up knowing that their half siblings, with whom they live, chose both of their names for them.
  4. I would not therefore conclude that the judge had erred in deciding that it was not in the best interests of the boy twin to be called “Preacher” although for rather different reasons.

 

It would be a very exceptional case where this occurs – even more so if the choice of name was the ONLY matter which went to threshold. Such cases would have to go to the High Court for determination.

 

[I’m sure that all lawyers working in this field have a string of very unusual names that have been given to children within care proceedings. I’m fairly sure that by now, someone will have had a “Hashtag”.  The test is much higher than just a whacky or idiosyncratic name, and into something which could be shown to be actually harmful ]

 

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