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One of these nights you’re gonna get caught, It’ll give you a pregnant pause for thought

 

 (Always nice to sneak a bit of Billy Bragg into the blog.  My favourite Billy Bragg line is, of course, from Sexuality  “I had an uncle who once played / for Red Star Belgrade”)

This is a discussion of the extraordinary case of A Local Authority v S & O [2011] EWHC 3764 (Fam)

 

http://www.familylawweek.co.uk/site.aspx?i=ed102837

 

You know that something is peculiar when a High Court Judge begins with Even by the standards of the Family Court this is a strange tale.. 

 

And he is not wrong.

 

 

Mr and Mrs S were a Nigerian couple, living in England. They wanted to have a baby, and heard of a fertility clinic in Nigeria, Port Harcourt.  They paid a lot of money to this clinic, and the mother had treatment there. She returned to the UK and had tests and scans with her GP, which confirmed that she was not pregnant. She rang the Port Harcourt Clinic, who told her that this was not unusual with the process and that she should come over.  She visited Port Harcourt and was sedated and then presented with a baby.

 

Mr and Mrs S returned to the UK with the baby.  On visiting their GP, the GP considered that the care of the baby was very good, but having determined that Mrs S had not been pregnant, was deeply troubled by the story of the delivery and contacted the Local Authority.

 

A DNA test was done, showing that the child had no biological connection to either Mr or Mrs S.

 

Care proceedings were commenced, it being apparent to the Local Authority that this child had been removed from birth parents and brought into the country and was living with people who had no parental responsibility.

 

The issue that fell to be determined by the Court was whether Mr and Mrs S had been deceived and hoodwinked by the Port Harcourt clinic, or whether (as the LA asserted) it was inconceivable (pardon the accidental pun) that they had fallen for this and that they had either fully known or simply turned a blind eye to the obvious truth that this had never been their baby.

 

 

Here are the contentious findings sought

 

“(vii)  Mr. S knew or ought to have known that Mrs. S was not pregnant as asserted.

(viii)  Mr. S knew or ought to have known that O was not their biological child.

(ix)  On a balance of probabilities, Mrs. S and Mr. S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.

(x)  At the relevant date, O’s care arrangements had been based upon a fundamental deception to which Mr. and Mrs. S were knowing parties.”

 

 

 

Now, this is the bit I find significant, and appalling. As the DNA test had shown that this was not their child, Mr and Mrs S had no PR, and received no public funding. So, they were fighting to defend themselves against these highly damaging allegations and also seeking to care for a child who they had formed an emotional connection though not a biological one.   Whilst my gut instinct view of the allegations was that the LA were probably right, it seems to me manifestly wrong that Mr and Mrs S had no legal representation to fight this case, and it is one of those bureaucratic idiocies which makes me slightly ashamed to be British.

 

As luck would have it, a pro bono barrister came forward, Mr Nicholas Paul, and he clearly did an admirable job for his clients.

 

 

I think it is worth setting out the history of the matter given by the mother, as it is important in trying to establish whether this was a nod and a wink  “Oh, I’ll pay for ‘fertility treatment’ but we both know I’m actually buying a baby”  or whether the clinic was actually seeking to deceive naïve and desperate couples.

 

“I have been married to Simon S since 2002.  On 8 January 2011 I gave birth to O at God’s Gift Clinic Maternity in Port Harcourt, Nigeria.  The treatment started in December 2009 under Dr. Chineri Emica Precious who gave me a number of injections and tablets and capsules.

4.  In April 2010 I started to feel the symptoms of being pregnant such as bloated stomach and gaining of weight.  I returned to Nigeria in April upon Dr. Chineri Emica Precious’s request for a medical check-up and she confirmed that I was pregnant. 

5.  I returned to the United Kingdom and visited my GP, Dr. H, who was not convinced that I was pregnant in May 2010.  I asked her to reduce my blood pressure medication as I was now pregnant, but she declined until there was confirmation that I was in fact pregnant.  At this stage, my symptoms of pregnancy persisted.  I had another appointment with Dr. H in September 2010 where a body examination was done and she referred me to Homerton Hospital for a scan.

6.  On 16 October 2010 I attended Homerton Hospital for a scan and it showed no pulse or heartbeat from the baby.  This came as a great shock to me, bearing in mind what I was told in Nigeria, that I was pregnant.  I kept up my line of communication with Dr. Chineri Emica Precious in Nigeria, who assured me that it was not unusual for the baby not to be seen on the scan.  Also, I was reassured by the testimonies of others who had had the treatment before (my sister and a friend).

7.  I returned to Nigeria in October 2010 to see Dr. Chineri Emica Precious who informed me, conversely to what I was told in England by my general practitioner and scan results, that I was pregnant and she continued to treat me with injections and one big medication.  I assumed that this continued treatment was in order to maintain the pregnancy.  I had no reason to doubt her sincerity or expertise in this regard.

8.  In November 2010, Pastor B at my church in London, like other people around me, including my husband, asked me if I was pregnant as he saw that my stomach was bloated as if I was pregnant and I had gained a substantial amount of weight.

23  She continued at paragraph 13:

“In December 2010 I went to Nigeria for the yearly crossing over programme at the headquarters of MFM and later went to Port Harcourt.

14.  Soon afterwards whilst in Nigeria, I noted that I was bleeding from my back passage.  I recalled that when I was carrying E my previous pregnancy, that the baby and I were bleeding.  However, in that prior instance, the bleeding was internal and this tragically led to E suffering her disability, as this was not detected on the scan.

15.  In January 2011 during what I perceived to be the birth of O, I recall a doctor inducing labour through intravenous drip and I experienced what was labour, a very traumatic delivery and a baby was presented to me covered in blood as would have been normal in a delivery room.  I felt all the natural manifestations of labour and delivery and my baby, O, was presented to me in the manner described.  Subsequently, when both the Metropolitan Police and the Applicant suggested a DNA test, I fully cooperated and was not in any way concerned as to the outcome as I knew I had given birth to O.  I had named her as was customary and obtained a birth certificate for her.”

24  Paragraph 19:

“Since 21 March when we were informed of the DNA results that suggested that we were not the biological parents of O and she was removed from us, my whole life has been shattered and it was as if we had suffered E’s bereavement all over again.  In short, I have been depressed and traumatised.  We have struggled to maintain any level of sanity as I am now convinced that I have been a victim of a very serious fraud by those who have exploited my vulnerability and infertility for their own financial gain.  I had paid a total of 1.3 million naira (just under £6,000) to this medical practitioner at this stage for the fertility treatment.  I enclose for the consideration of this court an article in The Vanguard, a Nigerian newspaper, that clearly sets out in detail the type of scam that I have been a victim of.

21.  I have cooperated fully with the police and the Applicant in the course of their investigations into this matter.  As a family, we coped fully with E’s serious disability and maintained our composure and dignity throughout.  The fact that we have been exploited in this way and the consequent investigation, albeit legitimate, has dragged on and has been devastating for us as a family.  I categorically deny that we have been involved in any child trafficking, except to say that this is a tragic case in which we have been a victim.”

25  That ends the quote from her statement. They obviously had in fact filed an earlier position statement, I think without any benefit of legal advice, on 11 April.  In that they said this.  It was a joint statement produced by both Mr. and Mrs. S.  I read from it because it is of crucial significance:

“O was not deliberately removed from her parents in Nigeria.  She was brought into this country as I was made to believe that I gave birth to her as a result of the fertility treatment that I embarked on from December 2009.  During the treatment I went through gradual stages of pregnancy and was made to believe in the delivery procedure, under which intravenous drip and drugs were used to induce labour, that I gave birth to O.  My experience of the treatment and the testimony of others who had previously undertook the treatment built a very strong belief in me that O was my biological daughter, until the DNA test results concluded otherwise.  The strong belief in the pregnancy and birth experience led to O’s birth registration.  All due processes were followed to obtain travel documents for her to be brought to the UK as our legitimate daughter without any doubt.

The above beliefs were also responsible for us being so adamant that O was our biological child before we had the DNA results.  We complied throughout with the investigation in good faith with every assurance that the DNA results would vindicate us.  However, it was the DNA results that caused us to see ourselves as victims of crime or error.”

26  They carry on in similar vein, concluding in this way at paragraph six:

“Regardless of the DNA results, we genuinely love O as we would love our own child.  S, our nephew, has lived with us for over 11 years and we care for him and love him as our own child.  We would be heartbroken if the court allowed O to be abandoned into the hands of the social services to navigate her way through the care system.”

 

 

If what she says is right, and the clinic sedated her and gave her medical treatment intended to make her believe that she was in labour, and then presented her with a baby, then her ‘crime’ is really to have believed the clinic rather than her GP who was saying that she wasn’t pregnant.  You may think that she was gullible, foolish, perhaps even stupid; but that’s a distance from deceit and complicity.

 

 

The story seems utterly fanciful, however. A fertility clinic that goes to all the trouble of trying to make women believe that they have given birth as a charade for what is actually a straightforward sale of a baby? However…

 

35  Could this be a true story or is it an elaborate piece of invention?  On the face of it, the court’s first obvious and natural reaction to this very far fetched tale is to be highly sceptical, but for one crucial piece of further evidence.  It is in the form of a lengthy cutting from a newspaper, the Port Harcourt Vanguard, for 11 September 2011.  This is also available in fact on the internet.  Under the headline, “Baby Factories: how pregnancies/deliveries are framed”: “Vanguard’s investigation reveals more baby factories.”  There  appears a two full page article carried out by an investigative journalist which describes in elaborate detail the process largely described to me by the mother.  I shall read two sections from the article.  I have already read the banner headlines about baby factories and it contains a number of black and white photographs.  These passages are to be found in the article:

“Our findings reveal that the unpublicised native maternity homes use illicit means to procure babies for childless couples on the payment of huge amounts of money ranging from N750,000 to N1 million, depending on the sex of the baby.  We gather that twins go for about N1.5 million or more.  The delivery date depends on the baby seekers.  While some opt for a nine month period, some go for a fast deal of one month or two, also depending on the availability of the baby from the sources.  Investigations reveal that for those who go for a nine month period a pregnancy would be framed and a delivery date given.  The delivery date can be postponed indiscriminately based on the availability of the baby.  Their patrons are desperate women ranging from high society women, clergymen and women who most times hide the arrangements from their husbands.  Most of these centres are found in …”

36  It mentions three towns including Port Harcourt.  Then under the heading, “How Pregnancy and Deliveries are Framed” it reads:

“Investigations reveal that these clinics administer certain substances on the patients that form a sort of tumour in the womb of the expectant mothers, making them believe they were pregnant.  Occasionally, a movement is caused in the belly making it look as if a baby is kicking.  The women are warned not to go to any hospital or undergo ultrasound or any sort of scan as they would lose the pregnancy or baby in the process.”

37  It goes on in similar vein and it contains this passage further on:

“Further investigations reveal that when it is time for delivery another substance is administered on the woman which gives a false impression of labour.  Part of the growing tumour will come out through the vagina and it is cut to discharge blood and make it look as if there was an actual delivery.  A baby is then sneaked in and made to cry.  The woman is also made to believe she has been delivered of a baby.  In Precious Ogbana’s case, she told the reporter that when she had one of the babies it was recorded to a friend’s cell phone but she deleted the video a few days later.  She regretted deleting the stuff, fearing her husband would not like it, especially if the video got to a third party, adding that she went into labour and gave birth to the kids.”

38  There are a number of case studies set out in the course of that lengthy, double page article.  Having seen that article, there cannot be any doubt at all that this far fetched story is rooted most solidly in reality and that this kind of practice is common in certain parts of Nigeria.  I have described the process as a baby exchange.

39 So there can be no dispute now that the mother was indeed a participant in this elaborate scam but, as I said at the outset, the central question remains and has to be answered: was she a knowing and willing participant? 

 

 

 

The Judge then had to grapple with that central question, and reached these conclusions

 

50 How do I analyse the evidence to arrive at a conclusion in this mysterious case?  The following factors have guided my decision:

51  The mother is an intelligent woman who teaches at an adult literary college in London.  She is a God fearing practising Christian, as is her husband, to whom lying is complete anathema.  This factor has to count for something even in these cynical days in which we live.

52  The mother gave evidence to me at great length over two days and I found her to be impressive and unshakeable in relation to all important matters.  In all important respects, her versions both in writing and to the police have remained consistent.  In short, incredible though it seemed to me at the outset, by the end I was driven to believe her account.

53  By the same token, I found the husband, a responsible man in regular employment, to be a patently honest witness.  I do not think for a moment he would have gone along with knowingly assisting his wife in participating in a deception on the court. 

54  Both the mother and her husband have cooperated fully and willingly with the inquiry once they realised the circumstances of the arrival of the child and once they realised they were suspicious and they realised that these suspicions needed to be allayed.  They willingly took part in the two DNA tests. 

55  When conducting a fact finding inquiry, particularly one as strange as this, often the most important guide is to be found in the presence or absence of so-called “smoking guns”.  That is to say, factors which point to or are either consistent with or entirely inconsistent with one or other side’s version of the possible truth.  In this case, there are factors which, in my judgment, point inexorably to the conclusion that the mother is most likely to be telling the truth.  What are these factors?

56  The fact that during 2010 she went on visiting her GP, firstly to find out if she was pregnant and then to check whether she was and whether there might have been a mistake.  I find it to be unthinkable that she would have returned to the GP if she had knowingly become involved in this scam and after she had received negative tests in England.  To do so could only sensitise the GP to the possibility of something untoward happening when the child was eventually produced to the doctor later.  But that is precisely what did happen because the GP of course had the chance to examine the mother in the months preceding the so-called birth.  In my judgment, the last thing this mother would have done is to go back to the clinic to persuade the doctor to arrange a scan when she could only have known it would reveal nothing.

57  By the same token, why was the mother going backwards and forwards to Nigeria and seeing the doctor if she knew the pregnancy was an invention?  She would merely have gone out there in December, around the time of her expected delivery, and collected the child.

58  By the same token, it is unthinkable as I find that the mother would have produced the baby to the GP within three days after returning to this country if she had known the circumstances of her removal from her natural mother and Nigeria were highly suspicious or possibly criminal.  She produced the child to her GP in all innocence, expecting the GP to be delighted to be proved wrong.  Miss Watson, having to overcome this telling point, says that she took a calculated risk.  That, if I may say so, is a gross understatement.  It would have been sheer lunacy.  As Mr. Paul points out, there were other much less risky ways of proceeding which would have hugely reduced the risk of detection which, were she part of the scam, she must at all times have feared.

59  Then there is the short video clip arranged by the mother.  If there had been anything untoward going on which the mother realised, the video would have been set up and stage managed in a way which supported her having given birth.  In fact, it does nothing of the kind.  It merely shows the mother writhing in agony and a child lying in the vicinity, still attached to a placenta.  There is in fact no sign or real attempt to link the baby with the mother.  There is no sign of blood on the mother or indeed any sign that she had just given birth.  It would have been the easiest thing in the world to have linked the baby more directly with the mother to make it look as if she had just delivered.  Similarly, if this had been an elaborate deception, the camera would have had pictures of her arriving at the clinic and of the mother holding the baby etc., immediately following the supposed birth.  The video evidence is certainly excellent evidence of the scam disclosed by the newspaper article, but in my judgment it points away from the mother’s involvement.

60  I also think it is highly likely that, if the mother knew what had happened but nevertheless wanted to take her new baby to the doctor, she would not have gone armed with the camera and the clip ready to show the doctor the pictures if challenged.  In fact, the mother did not do so.  She only produced the pictures (potentially her best evidence if she was being deceptive) in response to questioning from the police and not as her first trump card and without being asked, as one would have expected.

61 All the mother’s actions, in my judgment, both in this country and Nigeria, are consistent with her evidence that she had no idea she was involved in this strange scam, designed to put together unwanted children with desperate, childless parents.  Her complete desolation when confronted with the reality, as attested to by both the police and the Guardian, further in my judgment supports her credibility.

62 What are the findings that I make based on this assessment of the evidence?  Firstly, most of the primary facts are agreed and not challenged.  Secondly, the mother was in a highly suggestible state, especially following the death of her disabled daughter at the end of 2009.  She is also, as the Guardian points out, immersed in a Christian religious environment where miracles are not regarded as impossible.  Thirdly, I am totally satisfied on an examination of all the evidence that this mother had no idea she was taking part in bogus fertility treatment, much less an elaborate and well tried system for selling unwanted babies to desperate parents in exchange for very substantial sums of money.  Fourth, both she and her husband were hoodwinked and are innocent victims so far as their involvement in these matters is concerned.  They neither knowingly participated in the wrongful removal of the child from her natural mother nor in the wrongful importation of her into this country. 

63 The highest it can be put, as I find it, is that the mother unwittingly took part in an unorthodox adoption process surrounded by an elaborate piece of play acting. 

64 Fifth, and for the avoidance of doubt, I find nothing concerning so far about the mother’s mental health any more than the general practitioner does or did.  It is perfectly plain the mother now fully appreciates what was going on and what she has been involved in.

65 Sixthly, on the face of it, the mother from what I know seems a good and experienced mother who has brought up her nephew impeccably and looked after her very disabled child over a very long period until her death. 

 

 

The Judge then invited the Local Authority to reconsider their view of the case and specifically whether Mr and Mrs S could be considered as carers. They declined to do so and an Independent Social Work assessment was therefore commissioned.

 

The mainstream media seem, to me, to have reported this case as being that Mr and Mrs S got the child back, and not that they had won the right to an independent assessment of whether they should.

 

A fascinating case, and one that I hope will be unique, although as our world gets smaller, the chances of unscrupulous practices playing a part in UK care proceedings must increase.

Once you have eliminated the impossible

 

Is Sherlock Holmes’ maxim applicable to fact finding hearings? The Court of Appeal take a look

 

A (Children) [2012] EWCA Civ 1278

 

As all Holmes fans know, the Great Detective opined  “Once you have eliminated the impossible, whatever remains, however improbable, must be the truth”  *    [see footnote]

 

 

[Gratuitous Cumberbatch photo, for the female followers of this blog, including the Great Fiancee]

In this finding of fact hearing, involving a fatality to a child, the father, who ended up with the finding of fact being made against him, appealed in part on the basis that the Judge had approached this sort of formulation.

 

http://www.familylawweek.co.uk/site.aspx?i=ed102912

 

The Court had determined that the child had, on the balance of probabilities, suffered an injury.

 

It had then determined that the only 3 possible perpetrators were the mother, the father or an elder child ‘C’.   

 

The father claimed that what then happened was in effect that the Court ruled out mother and C as potential perpetrators and thus came to the conclusion that the father, being the remaining suspect must be the perpetrator, rather than carrying out the identical form of scrutiny.

 

(i.e, that had the Judge considered the order of suspects differently, and approached matters with a fresh eye, he might have ruled out father, then C, leaving mother; or any other sequence.  And that it just so happened that this order of events left father as ‘last man standing’. It was unfair to father to not have the same impartial eye testing whether he should be ruled out, and the burden effectively shifting to being for him to provide evidence why he WAS NOT the perpetrator)

 

 

It is probably fair that I give you now, Lady Justice Black’s concluding paragraph

 

23. I simply add this: that this is a case which we have considered very much on its own facts; nothing that I have said should be taken in any way to alter the established formulation of the law applicable to cases such as this. 

 

So perhaps the case is useless for anything other than determining the appeal that was before them, but I respectfully think that it is of interest because the precise forensic approach of how the Court approach the ‘whodunnit’ element of a finding of fact hearing, having established that something was done, and who the potential perpetrators are, is very important, and anything that adds to our pool of understanding as to the right or wrong way to go about it is therefore useful.

 

 

This is how the Court of Appeal record the Judge’s decision-making process

 

4. So this was a heavy trial for the judge, and it is manifest that all its concentration was upon the facts, the investigation of all relevant facts and the establishing on the balance of probabilities of the crucial facts.  That the law played no great part in the process is, I think, demonstrated by the fact that the judge deals with it in two short paragraphs.  In paragraph 28 he said:

“In these proceedings a party seeking a finding of fact bears the burden of proving it on the balance of probability: Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.  Accordingly, where I record facts or make findings, I am satisfied that they are more probable than not.”

5. In he following paragraph 29 he only added:

“Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children [2009] UKSC 17.”

6. So, moving on from that early and brief direction, the judge explains himself essentially in paragraphs 170 and following under the subheading “Responsibility for B’s injuries”.  He considers first the position of B’s mother. He sets out in paragraph 170 under seven numbered paragraphs the matters that he was taking into account in reaching the conclusion that B was in good health when mother left the house and that he was injured in her absence. Having reached that conclusion it is not surprising that in paragraph 171 he said:

“I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred.”

7. In paragraph 172 he turned to consider the father’s position, saying:

“I turn to consider whether F’s explanation that C caused B’s injuries is credible.  If it is not, the inescapable conclusion is that they were caused by F.”

And then in paragraph 173 he set out what he described as being the combination of a large number of circumstances necessary for C to have injured B in the way that the father suggested.  There are 22 subparagraphs of such factors.

8. In paragraphs 174 and 175 he considered the father’s credibility generally as well as specifically, and he concluded that the father was an unconvincing witness.  However, in paragraph 176 he said:

“176. In assessing F’s evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries.  Lies may be told for other reasons.  The burden of proving responsibility remains on those that allege it.”

9. In paragraph 177 he considered possible explanations for untruthfulness that would not be in any way probative of causation.  In paragraphs 178 and 179 he then states and explains his fundamental conclusion.  He said:

“178. My ultimate conclusion in relation to C is that there is no real possibility that he caused B’s injuries.  A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole.  I reject F’s case.

179. I find that F caused B’s injuries.  I reach this conclusion by eliminating the only possible alternative and by rejecting F’s account.”

 

 

The father submits that paragraph 179 is effectively a reversal of proof, and placing the burden on the father to show that he was not the perpetrator, rather than on the Local Authority to prove to the requisite standard that he was.

 

 

The Court of Appeal considered that the argument was skilfully drawn, but rejected it nonetheless   (largely because of the way that the Judge at first instance had balanced matters)

 

10. Now Mr King’s principal criticism is of paragraph 172, which I have already cited.  He submits that this amounts to an implicit reversal of the burden of proof.  The submission is skilfully advanced and is certainly worthy of careful consideration, but it has to be taken in the context of the passage as a whole, all the paragraphs from 172 to 179, the relevant passages of which I have already cited.  It seems to me that what the judge was saying in paragraph 172 was that he had to consider whether the father’s explanation that C caused B’s injuries was a real possibility — was it plausible? — and that was certainly a permissible and indeed a sensible approach.

11. Mr King has submitted that essentially the judge has pinned the label of responsibility on the father by a process of elimination.  He has first eliminated the mother, then he has eliminated C, and therefore he has, as it were, reached the only remaining possible conclusion.  I see that that submission is also open to Mr King given that the judge has specifically said:

“I find that father caused B’s injuries. I have reached this conclusion by eliminating the only possible alternative.”

12. He might have put alternative into the plural but I do not think that that is fair to the judge overall.  He had to reach a realistic conclusion; he had to be as specific as the evidence permitted; and overall it seems to me that the conclusion was well supported by evidence and was acceptably reasoned.  Mr King has said that there was no medical evidence to force the judge’s conclusion and that there was no other evidence to force the judge’s conclusion, and that accordingly the judge should more safely have announced that there was a real possibility that the father committed the injury, but no more than a real possibility. 

13. That is essentially putting his primary submission in other words, and it does not lead me to doubt the conclusion that I have already expressed on his primary submission. 

14. It will be, I have no doubt, Peter Jackson J who conducts the second stage of this trial.  It may be that he will be persuaded to admit the police records that Mr King highlights.  In passing, I note that there seems as yet to be no explanation as to why they are belatedly produced.  That is something that requires no further speculation.  There can be no doubt at all that the kick injury inflicted by C on the carer is a subsequent development.  There can be no doubt at all on the authorities that the judge at the second trial is not only entitled but bound to have regard to that subsequent development.  Authority is equally clear that it is open to him to reconsider his earlier stated findings of fact, if he is persuaded that the subsequent development is sufficiently material.  With that observation I would dismiss this appeal.

 

It does seem to me, on the basis of that, that IF the Judge had approached it in the way father was suggesting of :-

 

  1. I have found that the child was injured
  2. I have found that this injury could only have been caused by M, F or C
  3. I have found that it could not have been caused by M
  4. I have found that it was not caused by C
  5. Therefore it was caused by F

 

(rather than 5 – “my analysis of the evidence given by F and the features of the case are such that I find F caused the injury”)

 

that this would have given rise to a successful appeal.

 

And therefore, the Holmes maxim DOESN’T apply to the law. The Court have to consider all of the various possibilities   (That it was M, that it was F, that it was C, that it is one of them but it is not possible to say whom, that it was one of two of them but that “X” is excluded)  and determine which is the correct finding, based on the evidence.

 

As we saw from Justice Mostyn’s decision earlier this year, https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/

   it is peculiarly lawful for the Court to examine the two possible explanations for the child’s injuries and to discount both as being inherently implausible and fall back on the burden of proof as being the determining factor.   The authority that gave rise to that, was of course, a shipping case. Shipping cases nearly always are at the bottom of any important legal principle  (that or runaway milk horses or pensioners consuming ginger ale)

 

[All of the principles in Re SB   http://www.familylawweek.co.uk/site.aspx?i=ed47645  still apply, of course – that it isn’t for the judge to dance on the head of a pin in trying to establish who caused the injury and if the evidence does not allow for a definitive finding, the Court should not exonerate one parent simply because another seems more likely. ]

 

i) “If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case”; ii) judges should avoid attributing the relative probability of who is responsible for harm where they are unable to identify a perpetrator and iii) when a perpetrator is identified there is a risk that the judge gets it wrong but that risk cannot be used to conclude that there is a risk to the child. However it was also

“Important not to exaggerate the extent of the problem. It only really arises in split hearings…… In a single hearing the judge will know what findings of fact have to be made to support his conclusions both as to the threshold and as to the future welfare of the child.”

 

 

 

 

* The Great Detective, when making this maxim, probably did not envisage just how improbable the improbable explanations for fictional crimes could become. My personal favourite, Harry Stephen Keeler, for example, managed to concoct an explanation for a murder that involved a strangler midget who disguises himself as a baby, and who descended in a portable personal helicopter to commit a murder in which a man was found dead in the middle of a field of fresh snow with only his own footprints leading to or from his body. 

 

http://home.williampoundstone.net/Keeler/Home.html 

 

I do heartily recommend Mr Keeler if you are a little jaded with traditional murder mysteries and want to glimpse what life would be like if you were somehow able to turn your brain to a totally different angle.

 

I am also reminded of the lovely Raymond Chandler anecdote, where in the midst of filming  “The Big Sleep”,  the director, Howard Hawks, telephoned him and frantically asked,  “Mr Chandler, I have a problem in the film. I simply can’t work out who killed the chauffeur”  and Chandler had to confess that he too had no idea either.  Read the book, it really is completely unresolved. Other than that, it is a flawless piece of writing, which dazzles on every page.

“When they begin, to intervene…”

Sorry, the titles just get worse.  (but I bet you’re humming it already)

 Two important cases on Interveners in fact-finding hearings, or  “Re T for two”

 

The first is the Supreme Court decision in Re T.

 

http://www.supremecourt.gov.uk/docs/UKSC_2010_0244_Judgment.pdf

 

 

This relates to an appeal from the Court of Appeal, which in turn considered an appeal from a County Court.  It related to the order at the conclusion of a finding of fact hearing (which took 5 ½ weeks) that one of the Interveners, who was not publicly funded and who was not found to have perpetrated the injury, should have his costs paid by the Local Authority, who had brought the care proceedings.

 

This was a very important case for both Local Authorities and those who represent Interveners, particularly those who would not financially qualify for legal aid.

 

The costs that the Intervener had to pay was £52,000 so one can see why the  Court of Appeal were looking around for someone to foot that bill, since the Intervener was found to be blameless.

 

The children had made allegations of a sexual nature against the father and six other men, all of whom intervened. Five received public funding, the sixth did not.

 

All of the interveners were exonerated at the finding of fact hearing.

 

4. It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents. The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based “on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs”.

The judge dismissed their application. He did so on the basis that it was not usual to order costs in a child case against a party unless that party’s conduct has been reprehensible or its stance unreasonable. In support of that proposition the judge cited authorities that included the judgments of Wilson J inSutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.

The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with “potentially life-changing allegations” without being able to gain some financial assistance from the State.

 

 

I don’t disagree with that at all, and I think the judge at first instance got this entirely right. It is deeply unfortunate that someone faced with allegations as grave as this, particularly where they are disproved has to pay their own costs, but that misfortune can’t extend to making the Local Authority pay unless their conduct in bringing the case is reprehensible or unreasonable.  Otherwise one runs the risk of very serious cases not being put before the Court as a result of fear of costs orders being made if the allegations are not established.

 

[Frankly, I think non means, non merits legal aid ought to be available to any party who is able to satisfy the Court that they should be involved within the proceedings, whether as an Intervener or a party given leave to make an application; but that was obviously beyond the scope of the Courts]

 

This is interesting, from paragraph 6  (and these were some heavy-hitters in the world of counsel)

 

It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono. We would like to express our gratitude for the assistance that they have given.

 

CAFCASS in the case submitted that the Court of Appeal decision was the first one where a Local Authority were ordered to pay costs where there was no criticism of its conduct of the litigation  (effectively adopting a civil – “loser pays” philosophy)  and that, of course, is why the case was important enough to make it to the Supreme Court.

 

Particularly, this passage at para 18 of Wilson LJ’s judgment in the Court of Appeal on this case  (the ‘general proposition’ being that costs orders shouldn’t be made in family proceedings in the absence of unreasonable conduct)

 

            “I consider that, where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of a fact-finding hearing the judge concludes that they have not established them, the general proposition is not in play.”

 

 

The Supreme Court sum up the issues admirably here:-

 

39. The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigant’s costs should be publicly funded. The former question is for the court; the latter for the legislature. Whether a litigant’s costs should be publicly funded involves issues in relation to access to justice and the requirements of article 6 of the European Convention of Human Rights. Mr Hale invoked that article in support of his argument that where allegations made against an intervener are not made out, the local authority which advanced those allegations should be liable for the intervener’s costs. We consider that this argument was misconceived. The requirements to provide public funding in the interests of access to justice and of compliance with article 6 apply at the outset of legal proceedings, not when they are concluded, in the light of the result.

 

40. The Funding Code prepared by the Legal Services Commission pursuant to section 8 of the Access to Justice Act 1999 makes provision for public funding in proceedings under, inter alia, section 31 of the Children Act 1989. The effect of the code is that children, parents and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings: see volume 3C-427 of the Legal Services Commission Manual. There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.

 

 

And I would suggest that the Supreme Court here were expressing a deal of sympathy for the suggestion that the LSC ought to be stumping up for interveners, but are obviously bound by the funding code  [in the absence of a judicial review challenge to the construction of that funding code or its exercise in a particular case]

 

 

And they conclude the case here:-

 

41. If in principle a local authority should be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded, then this liability should arise whether or not the interveners are publicly funded.

In the present case, the five men who intervened and were exonerated should also have sought and been awarded costs. The burden of costs awarded against local authorities in such circumstances is likely to be considerable. When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority.

 

42. In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.

 

43. Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate “in the vast run of these cases to make an order for costs in whole or in part by reference to the court’s determination of issues of historical fact”. But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing. The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact. The effect on the resources of local authorities, and the uses to which those resources are put would be significant.

 

44. For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse’s costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal.

 

 

I’m usually a believer in Kim Hubbard’s remark “Whenever someone says, ‘it’s not the money it’s the principle’ it is always the money”    but in this case, the Local Authority involved (Hull) have clearly taken this case up to the appropriate level of judicial decision-making as a matter of principle  (they’d already paid the grandparents their costs, and weren’t seeking to recover them), and I thank them for it.

 

 

Just when I thought I was out – they pulled me back in – Michael Corleone

 

 

The second case also involves a very heavyweight group of counsel, and a case involving an Intervener. 

 

Again, it is Re T  (how thoughtless)   but this time RE:  T (Children) [2011] EWCA Civ 1818

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed99436

 

(That also contains a very good summary of the case, and is indupitably going to be better than my attempt)

 

Within care proceedings, allegations were made of physical abuse and sexual abuse against one of their uncles ‘DH’  who was 18 by the time the appeal was heard, and one must assume an adolescent/child at the time the allegations were said to have occurred.

 

There were a raft of other threshold concerns in the case, and it was accepted that findings of sexual abuse, though capable of being made, were going to be challenging as opposed to straightforward.

 

The Local Authority sought, amongst other matters, a finding against the father that he had sexually abused DH and that it was this sexual abuse that had led to DH in turn abusing the other children.

 

 

At the pre-hearing review, DH did the smartest thing I have ever seen an Intervener do within care proceedings, and that is to say in terms “this doesn’t seem to be a very good idea for me to be involved in this, and I’m out”   (I hope he said it in a Duncan Bannatyne accent, but given that he was being represented by the splendid Rachel Langdale QC – my third favourite Rachel/Rachael, I somewhat doubt it)

 

The Judge agreed that he should cease to be an Intervener, and instead give evidence as a witness.  The Local Authority, supported by the father, appealed that decision.

 

The Court of Appeal determined that the appropriate decision on whether any particular allegation proceed to a finding of fact hearing is as set out in

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

And then went on to consider whether the allegations that the LA made that directly involved DH  (that he had abused the children, and that had arisen because he had himself been abused by father) were such that they needed to remain live issues in the case.  The resonant (though unpleasant to the squeamish) phrase “the allegations of sexual abuse have come dripping in during the course of the proceedings”  kept being used in the judgment.

 

The finding of fact hearing that was already listed was down for 20 days, and had five silks, six if Miss Langdale QC remained representing DH.

 

The father’s case was essentially that DH could not be relied upon as a witness and was of bad character – as a witness there would be limits in what could be put to him, whereas as an Intevenor, it would be possible to go further. There were, the father submitted, significant problems in the LA seeking a finding that the father had sexually abused DH without considering what was the root of that finding (the allegations that DH had abused the other children)

 

The Court of Appeal considered that it was a matter for the trial judge to determine what allegations it was appropriate to consider in a finding of fact hearing and which were peripheral, and therefore whether DH was required to be an Intervener, or whether he could be discharged as an Intervener and merely be a witness

 

24. The problem, therefore, is essentially one of case management.  Was the judge entitled to regard this as peripheral?  In my judgment, yes.  The main complaint is of emotional abuse.  The main complaint of sexual abuse lies at the door of M, not of P or DH.  The sexual allegations against them towards children of the family are not strong.  The sexual allegations relating to KE when he was nine or ten and she was five or six are buried in the dim depths of history. It is, it seems to me, quite unfair to charge a boy now 18, damaged as he may be by life’s experiences at his home and in care, with inappropriate sexual shenanigans between those young children.  And it may not be the best pointer towards his disposition or sexual tendencies as he grows up.  I think he has a girlfriend.  I know not.  The allegations against N are again the allegations made against a boy of 13.  And the extent, therefore, to which the local authority can rely upon findings of that kind to portray that this boy in his present condition is a danger to children is a matter upon which I for my part, though it will be a matter for the judge eventually, am rather sceptical.

25. So I agree this is a peripheral issue in the case and in the context of the case the judge is also entitled to think it is disproportionate to extend this already extended trial by raising three separate allegations or two other allegations, namely N and KE, as a complication to an already complicated case.

26. I said it was a matter of case management and it is.  As things stand at the moment, it would be for the judge to judge the credibility of this boy.  He may be able to say “I am not satisfied by him, therefore I cannot be satisfied that the complaint against the father is made out.”  That is the end of it.  He can, of course, come to a conclusion that, having heard DH, he is quite satisfied that DH has in fact abused KE and N and, although he said he is not intending to make findings, he may be driven not to make findings in the care proceedings as such, but to explain his judgment by expressing his conviction in that way.

27. In any event, he, the judge, will deal with this on the disposal.  He will have seen four weeks of this case.  He will know full well how much weight to place upon the various factors and how important it is in the life of these five children whether or not this boy has done what is alleged against him. 

 

 

Unfortunately, though the principles are interesting, it is quite case specific, and doesn’t really analyse whether an Intervener can actually bail out as a strict matter of choice, having seen the totality of the evidence and taking a view that he no longer wishes to participate. 

 

It is clear that someone cannot be compelled to intervene in proceedings or compelled to be a party, because we always ‘invite X to consider becoming an intervener’   but once they are in, are they in for the long-haul, or not?

 

I think that I would argue that since one cannot stop a father, say, in care proceedings from simply ceasing to give instructions or attend Court, and effectively playing no role  [save for the possibility of witness summonsing him to give evidence]  it cannot be right that someone is forced to continue as an Intervener against their will.  But it is of course an application for leave to withdraw, and with any application, it must be at least theoretically possible for a Judge to say ‘yes’ or ‘no’  since if not, it isn’t an application at all, but a rubber stamp.

 

In this case, if the Court of Appeal HAD considered that the allegations against DH did warrant a finding of fact hearing, they could have overturned the decision to give LEAVE for DH to withdraw as an Intervener, but the Court would have been fairly powerless had DH said “I am sacking my legal team, I will not file any statement and I will not attend the hearing or make any representations unless I am witness summonsed, whereupon I will attend only to give evidence”   – he would have been an intervener in name, but not in reality.

 

I had thought that I recalled a case that findings against a non-party could only ‘stick’ if they had been an intervener, but I can’t find it, and my memory of it is going back to the late nineties, so I am probably wrong.  [It did lead me down an interesting sideline of seeing just how many of the 1990s cases about inteveners were a judicial “I should coco, sunshine, on your bike” whereas we now have people intervening at the drop of a hat]

 

 [So the long and the short of it is – as an intervener, you won’t get your costs so you may as well ‘get your coat’]