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Angola – gross, inexplicable and unjustifiable delay

Posted on May 5, 2015 by suesspiciousminds

 

This is a judgment by a circuit Judge, His Honour Judge Wood, sitting in Newcastle. It is not binding precedent, but I think that it illuminates some important issues.

 

The mother in the case was Angolan, born in 1977. The eldest child had been born and raised in her early life in a refugee camp in Angola. The family came to England in 2005. It was sadly and brutally apparent that this mother had seen and experienced things that you would wish on no human being, and that obviously as a result, she had severe and serious need of help that she did not receive.

 

 

Re N (Children) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/37.html

  1. I have found this case simultaneously to be very difficult, very sad and also to have made me very angry. In reverse order, the anger flows from the failure of this Local Authority to meet these children’s needs in a significant way. First, the gross, inexplicable and unjustifiable delay, the breach of statutory duty under section 1(3). Secondly, this is a family with, if not a unique background, a relatively unusual and extraordinarily difficult one, which until Mrs Louw reported does not seem to the court to have been really considered at all and even following her report I question the extent to which it was properly embraced. The search for suitable cultural support has come really very late indeed.
  2. Thirdly, the likelihood of the parenting course that the mother was sent on barely scratching the surface was evident before the mother even went on it. I do not say that she learned nothing from it, she was able to explain what she had learned and spoke to me in quite complimentary terms about it, but the real difficulty identified by Mrs Louw was completely beyond its scope. Fourthly, the delay in obtaining the evidence from Mrs Louw was caused entirely by the Local Authority not identifying that need until these proceedings were issued. It was ordered at the earliest point at the case management hearing but by then 17 months had elapsed since the children went into care.
  3. Fifthly, the Local Authority knows about this mother’s isolation. It is apparent on all of the evidence. She belongs to a church but does not mix with other families, at school or elsewhere. She has, on her account, maybe one or two visitors from her church to her home but she does not visit the homes of her visitors and she has no other family or friends, certainly locally. As an asylum seeker from a war-torn country but with children brought up in a western educational system, the potential for cultural issues and expectations to give rise to conflict ought to have been obvious. I do not underestimate the difficulty of finding appropriate help. Even at the end of this hearing it is not clear what does exist but no real attempt was made even to mount a search until much too late. To criticise the mother for not having learnt from five group sessions of an effective parenting course is really just not fair.
  4. Sixthly, the background of being a refugee, particularly from Angola, even with an elementary knowledge of recent Angolan history and absent that an enquiry just on the internet, should have alerted the Local Authority to the likelihood that this mother had experienced real trauma likely to be of a severe kind which should have set alarm bells ringing as to her likely needs. On all of these scores the President’s textbook example of how not to conduct a care case seems to the court to have been met.

 

The Judge was rightly scathing about the delay between the Local Authority taking these children into care and issuing proceedings, some 17 months. With all of the features of this case, it should have been apparent that section 20 would not be sufficient and that proper plans for the long-term future of these children was needed.  Even worse than the delay was that the Local Authority took SEVEN MONTHS to issue the proceedings from the date that they wrote to mother’s solicitors saying that they were going to issue.  As the Judge points out – if the LA had issued when they said they were going to, the proceedings would have been concluded a month earlier than when they were actually issued.

[Even worse than this, the children had been taken into Police Protection a year before the section 20 accommodation, as a result of a physical assault, and then returned home, so the LA were seized of the issues and concerns for some 29 MONTHS before care proceedings were issued]

 

5. I want to say at the outset that the course that this case has taken in the hands of this Local Authority has been deeply unsatisfactory. Following a precipitating event in the middle of June 2013 the children were accommodated with the mother’s consent under section 20 of the Children Act 1989. Despite taking a decision in January 2014 that the plan was to be long term foster care and the Local Authority writing to the mother’s solicitor in March of that year to the effect that proceedings would be issued within seven days, they were not issued for another seven months on 22nd October 2014. As I observed when Miss Woolrich on behalf of the Local Authority addressed me, had the proceedings been issued when the Local Authority said that they were going to issue, they should have been concluded before the date when they were, in fact, issued. That they were not is bad enough but that bald fact ignores the period of nine months that preceded that statement of intent. Thus, these children were voluntarily accommodated for 16 months prior to the issue of proceedings and can properly be said today to have been in limbo now for 21 months.

  2. It is difficult to avoid a direct application of the words of Sir James Munby P in the recent Darlington Borough Council case reported at [2015] EWFC 11 in which he described that case as being, “Almost a textbook example of how not to embark upon and pursue a care case.” A specific criticism from that case that applies directly in this case is, “The misuse and abuse of section 20”, that the President said could no longer be tolerated endorsing, as he did, the observations of the Court of Appeal in Re W [2014] EWCA Civ 1065 and Northampton County Council v AS [2015] EWHC 199 quoting with approval the remarks of Keehan J recorded at paragraphs 36 and 37 of that latter judgment.
  3. This all lies entirely at the door of the Local Authority and requires addressing at the highest levels within Children’s Services and their legal advisors. That said, no parent in such circumstances is left without a remedy. Legal advice is available from the outset of notification of proceedings and it is a matter of both surprise and disappointment that the mother here was not encouraged to force the point as she was perfectly entitled, and I would say bound, to do in the circumstances of such gross delay by withdrawing her consent. I want to emphasise I do not blame this mother personally but it is the fact and a matter of regret that this did not happen long before the Local Authority belatedly got round to issuing proceedings. The effect of delay varies from case to case but in no sense could it here have been described, using the now disapproved term, as being purposeful. It served no identifiable purpose, it has delayed the outcome inordinately for young children wanting their futures decided and, as a matter of law, it has amounted to a complete and inexcusable breach of the statutory delay principle enshrined in section 1(2) of the Act.

 

The Judge sadly had to make Care Orders – one will never know whether if during those 17 months of drift the mother had been given the right help whether the outcome would have been different.

He decided that these failings were not solely those of the social worker but of the organisation and system as a whole, so followed the President’s decision in Darlington not to name and shame the individual workers

 I make a disclosure order to the head of service and to the independent reviewing officer in respect of this judgment which will be transcribed as anonymised, the cost of which to be shared equally by all parties. I should say that for the avoidance of doubt for the reasons that the President gave in the Darlington case itself, I have also directed that the two social workers who have been involved should be anonymised as well because it seems to me entirely unfair that, whatever individual shortcomings may have arisen, the criticisms that have been levelled against the Local Authority should be laid at their door or that they should be identified as responsible.

 

It also seems to me that with all of the demonisation of asylum seekers that goes on in both political discourse and the media reporting, it is worth reading this little passage and remembering that asylum seeker ought not to be used a synonym for ‘sponger’

The mother was born on 23rd October 1977 in Angola. By then the brutal civil war that shocked the outside world had been underway for two years. G was born in a refugee camp in Zambia in 2002 just after that war ended. The psychologist who reported in this case makes the point that the mother grew up and came to maturity in a war-torn country. The central province where she lived is said to have been devastated. The mother herself reports that there came a day in 1999 or 2000 when they “all ran different ways” and she thereby lost contact both with her parents and her sister. She has no idea where they might be – that is to say, assuming they are still alive – and somehow she ended up following a convoy of complete strangers that took her to Zambia. Little more than that is known, albeit the expert assessment of her presentation was consistent with her affirmative nod in answer to a direct question as to whether she had been jailed and/or tortured. She is likely to have experienced first hand, or at least witnessed, extreme brutality that has traumatised her to this day.

 

 

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section 20 and Brussels II

Posted on April 7, 2015 by suesspiciousminds

 

If section 20 voluntary accommodation has been the Wild West for most of the 25 year duration of the Children Act 1989, then in the last few years the Courts have been polishing up the sheriff badges and bringing law and order to the Wild West.  As a result, the territory that remains wild and lawless is shrinking, and may in a few years be limited to a bare patch of land with tumbleweed and old-timers chewing tobacco and relaying curious yarns of how things used to be, way back when.

[If you want to sing that every cowboy has a sad sad song, just as every rose has its thorns, now would be the time]

 

We have had:-

 

Re CA (A baby) 2012  http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

  1. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.
  2. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights.
  3. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.
  4. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers

Re C (a child) 2014  – dealing with parents who were deaf and had cognitive issues  http://www.familylawweek.co.uk/site.aspx?i=ed128597

there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the Children Act. To rely upon the mother who, even if she did not have the unfortunate cognitive disability she has, to interpret complicated matters such as section 20 of the Children Act and the authority being given to the local authority to the father was to put an undue burden on her. Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that crucial meeting

Re P (A child: Use of section 20) 2014 http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.

Northamptonshire and DS 2014 http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html   :- The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

 

We can add to that now, this important passage from Hayden J in  RE SR (A child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/742.html

I must emphasise that where there is, as here, obvious potential for a jurisdictional issue, protracted periods under section 20 voluntary arrangements are highly undesirable. For my part, I simply cannot see how it was ever thought that such an arrangement was appropriate in this case. It has led to avoidable delay and has proved to be inimical to SR’s welfare. Moreover, the objective within care proceedings must always be to consider any conflict of jurisdiction at the earliest stages and, if the matter needs to be tried, it should be so expeditiously.

 

In this case, there had been a very difficult argument about whether the child was habitually resident in England or Morocco. As you can see, the view of Hayden J was that section 20 was inappropriate in a case where there was a real issue about whether the English legal system had jurisdiction.

If you do Brussels II work, there is some very helpful advice about the Moroccan legal system as it relates to children, that would save hours of painful research.

I was persuaded, on the 12th January 2015, to permit instruction of an expert in Islamic and Middle Eastern Law to address key legal and cultural features of the Moroccan care system. Mr Andrew Allen was instructed, an expert in Islamic and Middle Eastern law, a practising barrister, formerly a Deputy Director of the Centre of Islamic and Middle Eastern Law at the University of |London. The child’s solicitor took the lead in Mr Allen’s instruction. Nine questions were identified which were answered succinctly in summary following, a more detailed exegesis of the law. They were ultimately non contentious. To complete my summary of the competing jurisdictional frameworks I set them out in full:

1. What are the principles that determine an application under Moroccan law for the following orders in relation to a child:

(i) Parental responsibility or rights;

(ii) Custody; and

(iii) Access.

Both parents have parental responsibility. No application is required.

The basic principle applied in custody and access applications is the interests of the child.

2. Does Moroccan law provide as a matter of right or custom for custody changing from one parent to another or to another person during the course of a child’s childhood?

There is no shift from mother to father at a certain age, as is the case in some Muslim countries (unless the mother re-marries)Article 171 of the Mudawana provides that priority in terms of child custody goes first to the mother, then the father, then the maternal grandmother, unless a judge determines otherwise “in view of what would serve the interests of the child”. Applications can be made during a child’s minority and custody can shift. Article 170 states that “The right of custody shall be restored to the person entitled to it when the grounds for its withdrawal no longer exist. The court may reconsider custody when it is in the interests of the child.” Once a child is 15, the child may chose which parent to live with under Article 166.

3. Is there any form of public funding or legal aid available for making any application for orders identified in (1) above?

Public funding is theoretically available. I would tentatively suggest that the practicalities of finding a sufficiently informed lawyer to take on a case for a foreigner, under the Moroccan legal aid system are probably insurmountable.

4. Do the Moroccan courts have experience of recognising and enforcing orders between the UK and Morocco under the 1996 Hague Convention?

The Mudawana is drafted with express reference to Morocco’s international treaty obligations. I am unaware of any Moroccan case applying the 1996 Hague Convention in relation to the UK but the convention does apply as between Morocco and the UK. The existence of the Convention is not known by all Moroccan family judges. Its application is not uniform.

5. How long would it take for a Moroccan court to recognise and enforce an order made in England and Wales?

A Moroccan court would not simply ‘recognise and enforce’ a UK court order. It would give it due weight (in particular if the order is provided in Arabic translation). If Morocco became the habitual residence of SR, then the Moroccan Courts would have jurisdiction and will apply Moroccan law, taking into account UK law (or a UK court order) if appropriate. I do not have knowledge of how long any Moroccan family court process would typically take.

6. Can proceedings be initiated, and if they can which body would initiate them, in respect of a child who is suffering or may suffer significant harm in Morocco?

There is a child protection system in Morocco and the government of Morocco operates a child protection policy. However most child custody issues are sorted out within the family. There have been criticisms of the Moroccan child protection system as it has been applied to returned asylum seekers from mainland Europe (specifically Spain).[1] Under Article 177, the Office of the Public Prosecutor (which despite its name is a part of the judiciary and deals with civil, family and criminal matters) would initiate any court action necessary. Article 172 of the Mudawana states that “The court may resort to the assistance of a social worker to prepare a report on the custodian’s home and the extent to which it meets the material and moral needs of the child.”

7. In what circumstances would the proceedings contemplated in (6) be initiated?

In any of the situations covered by Article 54 of the Mudawana (as set out above).

8. Prior to the mother’s removal of SR from the jurisdiction of Morocco what rights did the father have under Moroccan law in relation to SR?

The father had obligations towards SR as a parent rather than rights. Custody would have gone to the mother under Article 171 of the Mudawana. The father would have had the right to contact under Article 180 and the right referred to in the question below.

9. Did the father have any right, without applying to court, to object to the removal of SR from Morocco by the mother?

Article 179 of the Mudawana gives the court the ability to impose restrictions. In the absence of a court order, the commentary that I have read appears consistently to state that a father must approve a child’s departure from Morocco. I have been unable to locate a specific statute or other piece of legislation confirming this point.

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Unfortunate and woeful – Local Authority failings

Posted on February 3, 2015 by suesspiciousminds

 

This is a High Court case in which the Judge (Keehan J) was very (and rightly) critical of the Local Authority, including criticism that when they were asked for explanations of their conduct prior to and during the proceedings those explanations were not satisfactory and amounted to not much more than attempts to defend the indefensible.

 

Northamptonshire and DS 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html

 

The case ended with a child, DS, being placed with his maternal grandparents in Latvia.

 

It began, as cock-ups so often do, with a section 20 agreement. There were some legitimate concerns that DS would be at risk in the care of his mother and his mother was asked to agree to place him in ‘voluntary’ foster care. This happened when he was 15 days old.

 

The Local Authority did not properly think about care proceedings until five months later, and even worse than that, having decided that care proceedings were the right thing to do, did not then issue them until five months after that.

 

The care proceedings were plagued by delay, most if not all being ascribed to the Local Authority, ending up with a child spending nearly two years in foster care when there were grandparents who were eventually able to care for him.

 

The Guardian and mother issued claims for Human Rights damages on behalf of the child, and the LA by the time of the final hearing were accepting that they had violated the child’s human rights in all of these human rights claims:-

 

 

(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

(b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights. *

(c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights.

(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights.

(e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights.

(f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.

 

 

*you don’t often hear of article 13 rights, but it was a good call in this case:-

 

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

 

There wasn’t an effective remedy until the LA issued the care proceedings that should have begun in February at worst, but instead started in November.

 

A package amounting to £17,000 was agreed by the Local Authority and approved by the Court.

 

Looking at some of the particular criticisms made by the Court:-

 

 

Inexperience of the worker and delay in issuing

 

 

I cannot begin to understand why an inexperienced social worker who was not familiar with care proceedings was allocated as a social worker for a 15 day old baby. I do not understand why it took until August to provide her with support or why senior managers did not intervene in this case. It is wholly inexcusable for a local authority to take three months to decide to issue care proceedings in respect of a very young baby and then a further five months to issue care proceedings. The fact that the parents are Latvian and that close family members lived abroad, provides no explanation less still an excuse for the extraordinary delay in this case.

 

 

The changes in social worker

 

I appreciate that social services’ departments have difficulties recruiting and retaining social workers but it is deeply worrying that over the course of these proceedings DS has been allocated no less than eight different social workers. It is evident to me that neither the social workers, nor the senior managers at Northampton Children’s Services Department had DS’s welfare best interests at the forefront of their minds. Worse still they did nothing to promote them. Their chaotic approach to this young baby’s care and future life was dismal.

 

 

The section 20 agreement

 

The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

 

The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.

 

 

Whether the s20 ‘consent’ was really meaningful consent

 

On 30 January the local authority concluded that DS was at risk of harm in the care of his mother and secured her agreement to him being placed with foster carers. I question how effective that consent was when it was sought without the mother having the benefit of an interpreter.

 

And overall

 

The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.

 

 

 

None of this is good. It is, in fact, deeply bad.

 

Critics of the family justice system, and there are many, are entitled to point to a case like this and say that this is what goes on. The parents in this case, and the child in this case, were badly let down by professionals and there were systemic failures to put things right.

 

It is only a small crumb of comfort that this was a case in which the Judge dealing with it was prepared to be tenacious and forensic about those failures, with a view to preventing them happening to other unfortunate families.

 

As the Judge says at the end

 

I trust that the events of the first 23 months of DS’s life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so.

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