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Failure to bury a child

 

 

 

Quick warning – this case is about a child who has died, and the issue in the case was disposal of the child’s cadaver. So it may be distressing or upsetting to some readers – I will do my best to treat the subject matter with gravity and sensitivity. There’s nothing intentionally detailed or gruesome within the piece, but obviously the central issue is upsetting.

 

Also, there’s a criminal trial pending, so please no speculation about the identity of the parents or what may or may not have happened to the child – nobody wants to run the risk of prejudicing a fair trial.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1083.html

Re K (A Child : deceased), Re [2017]

 

The child died in July 2016. The Coroner released the body in October 2016. In March 2017, the child had still not been buried and no arrangements had been made for a funeral. The child’s half-sibling had been involved in care proceedings and the Local Authority, having done all that they could to persuade the parents to make those funeral arrangements, sought permission from the Court to step in and arrange the funeral themselves.

 

 

 

 

 

 

 

 

5.It was common ground during the course of submissions that the starting point in establishing a jurisdictional basis for orders relating to the burial of a child is to be found in Buchanan v Milton [1999] 2 FLR 844 at 845/846 per Hale J, as she then was:

 

 

 

 

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson).”

 

 

  1. In Re JS (disposal of body) [2016] EWHC 2859 (Fam) Peter Jackson J observed:

 

 

 

 

“47. The law in relation to the disposition of a dead body emanates from the decision of Kay J in Williams v Williams [1882] LR 20 ChD 659, which establishes that a dead body is not property and therefore cannot be disposed of by will. The administrator or executor of the estate has the right to possession of (but no property in) the body and the duty to arrange for its proper disposal. The concept of ‘proper disposal’ is not defined, but it is to be noted that customs change over time. It was not until the end of the 19th century that cremation was recognised as lawful in the United Kingdom, and it was in due course regulated by the Cremation Act 1902. Nowadays cremation is chosen in about 3 out of 4 cases in this country.

 

 

  1. Thus, in English law, there is no right to dictate the treatment of one’s body after death. This is so regardless of testamentary capacity or religion. The wishes of the deceased are relevant, perhaps highly so, but are not determinative and cannot bind third parties. For discussion of the impact of the European Convention on Human Rights on the common law in this respect, see Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) and Ibuna v Arroyo [2012] EWHC 428 (Ch).”

 

 

[The Justice Peter Jackson case is one you might recall – where the teenaged child wanted to be cryogenically frozen after death, mum supported it and dad wasn’t keen. It was unusual.]

Whilst there is no legal ownership of a cadaver, the general principle is that the immediate family of the deceased have responsibility for arranging the funeral. What happens where, as here, the family do not take any action?

 

 

 

In Anstey v Mundle [2016] EWHC 1073 (Ch) Mr Jonathon Klein sitting as Deputy Judge of the Chancery Division concluded that the Court could not determine or direct where or how the deceased would be buried, but could declare who had the power and duty to bury the deceased, among the various contending parties. The judge adopted the reasoning of Ms Proudman QC, as she then was, in Hartshorne v Gardner [2008] EWHC 3675 (Ch).

 

“24. …In that case, Ms Sonia Proudman QC, sitting as a Deputy High Court Judge, was invited to exercise the court’s inherent jurisdiction to direct to whom the deceased’s body should be released for the purposes of its burial. The judge accepted, as Hart J had apparently done before her, that the court has such an inherent jurisdiction. In that case, the claimant and the defendant were equally entitled to a grant of representation. It is perhaps notable that the judge did not exercise any section 116 jurisdiction. In that case, the judge identified factors which were relevant to the exercise of the court’s jurisdiction, although she did not seek to limit the relevant factors to those she listed.

 

  1. The factors she identified were: one, the deceased’s wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment, “the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay”. I have concluded that in this case those are also the relevant factors which I should consider.”

10.Mr Sharp contends that the factors identified at points two and four above are plainly relevant here. I agree. I would also stress that I consider proper respect and decency is not presently being shown to K’s body. I would also emphasise that there has been wholly unacceptable delay. I note that the Births and Deaths Regulations 1987 Reg 51(2) provides that if the registrar learns (after a delay of 14 days from the date on which he should have received notification of the date, place and means of disposal of the body) that the body has not been disposed of he must, unless he is informed that the body is being held for the purposes of the Human Tissue Act 2004, report the matter to the officer responsible for matters of environmental health for the district in which the body is lying. This, to my mind, indicates that as a matter of public policy, a body should be disposed of with due dispatch.

 

 

This next statutory provision arises more often with deaths in the elderly community with those who have no relatives, and is for public health grounds

Section 46(1) of the Public Health (Control of Disease) Act 1984 provides:

 

 

 

 

“It shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority.”

 

 

 

Whilst this does not directly illuminate any of the issues that fall to be considered here it does indicate the general promotion of respect and decency for a body and the obligation for it to be disposed of with proper dispatch that is reflected in the case law that I have set out above

 

The Court here was asked whether under the inherent jurisdiction, the Court could authorise for the Local Authority to undertake the burial.

 

the concept of ‘a wise parent acting for the true interests of the [particular] child’ is integral to both the parens patriae and the inherent jurisdiction. It is, to my mind, axiomatic that a ‘wise parent’ would attend to the burial of a child. Thus having regard to the historical base and underlying philosophy of the inherent jurisdiction and the case law to which Mr Sharp has drawn my attention, I am satisfied that, pursuant to the inherent jurisdictional powers of the High court, I can authorise the Local Authority to make arrangements for the disposal of K’s body by way of burial or cremation, making the necessary funeral arrangements and if the body be cremated the disposal of the deceased remains. There are pressing practical reasons why this requires to be attended to expeditiously which are too distressing to incorporate within this judgment and need not be.

 

One of the obvious things that I wondered was whether there was some forensic reason connected with the criminal trial (i.e a second opinion autopsy or similar exercise) why the parents had been reluctant.

 

The Court was appraised of a letter from father’s counsel in criminal proceedings raising just that suggestion, but this is confused rather because there were representations from his criminal solicitor to a rather different effect. In any event, the Court was not satisfied that arranging a funeral would interfere with the parents right to a fair criminal trial.

In a postscript, the Court notes that the funeral took place and thankfully both parents attended

See-Saw

 

Although the President reads this blog or at the very least is aware that it is “a well-known and respected law blog”* :-

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1668.html

 

(*sadly that’s probably stronger empirical proof that he DOESN’T read it)

 

my beautiful piece of legislation, the Residence Schemesidence Act is still not on the statute books.  To gaze upon my works, ye mighty and despair, look here

 

https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/

 

Instead of which, we have this distillation of the many principles on habitual residence in family law, derived from a variety of judicial authorities.  Now, bear in mind that this distillation is the work of someone extremely dilligent and bright and who slaved long and hard to make the judicial authorities as SIMPLE as possible.

 

B (A Minor : Habitual Residence) [2016] EWHC 2174 (Fam)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2174.html

 

  • In her document Ms Chokowry distils a number of propositions that she contends can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered since 2013: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, sub nom Re A (Children) (Jurisdiction: Return of Child) [2014] 1 FLR 111 (“A v A”); In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2014] AC 1017, sub nom Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2014] 1 FLR 772 (“Re KL”); In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038 sub nom Re LC (Children) (Abduction: Habitual Residence: State of Mind of Child) (“Re LC”); In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76, sub nom AR v RN (Habitual Residence) [2015] 2 FLR 503 (“Re R”); Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 2 WLR 557 (“Re B”).
  • I think that Ms Chokowry’s approach is sensible and, adopt it here, with my own amendments:

 

i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test).

ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child’s life that is most likely to illuminate his habitual residence (A v A, Re KL).

iii) In common with the other rules of jurisdiction in Brussels IIR its meaning is ‘shaped in the light of the best interests of the child, in particular on the criterion of proximity’. Proximity in this context means ‘the practical connection between the child and the country concerned’: A v A (para 80(ii)); Re B (para 42) applying Mercredi v Chaffe at para 46).

iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (Re R);

v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child’s habitual residence which is in question and, it follows the child’s integration which is under consideration.

vi) Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B);

vii) It will be highly unusual for a child to have no habitual residence. Usually a child lose a pre-existing habitual residence at the same time as gaining a new one (Re B); (emphasis added);

viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move (Re B – see in particular the guidance at para 46);

ix) It is the stability of a child’s residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi);

x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R) (emphasis added);

xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day (A v A; Re B). In the latter case Lord Wilson referred (para 45) those ‘first roots‘ which represent the requisite degree of integration and which a child will ‘probably‘ put down ‘quite quickly‘ following a move;

xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (Re R).

xiii) The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child’s best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, “if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former” (Re B supra);

 

  • If there is one clear message emerging both from the European case law and from the Supreme Court, it is that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child’s day to day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties. It is all too common for the Court to have to drill deep for information about the child’s life and routine. This should have been mined to the surface in the preparation of the case and regarded as the primary objective of the statements. I am bound to say that if the lawyers follow this approach more assiduously, I consider that the very discipline of the preparation is most likely to clarify where the child is habitually resident. I must also say that this exercise, if properly engaged with, should lead to a reduction in these enquiries in the courtroom. Habitual residence is essentially a factual issue, it ought therefore, in the overwhelming majority of cases, to be readily capable of identification by the parties. Thus:

 

i) The solicitors charged with preparation of the statements must familiarise themselves with the recent case law which emphasises the scope and ambit of the enquiry when assessing habitual residence, (para 17 above maybe a convenient summary);

ii) If the statements do not address the salient issues, counsel, if instructed, should bring the failure to do so to his instructing solicitors attention;

iii) An application should be made expeditiously to the Court for leave to file an amended statement, even though that will inevitably result in a further statement in response;

iv) Lawyers specialising in these international children cases, where the guiding principle is international comity and where the jurisdiction is therefore summary, have become unfamiliar, in my judgement, with the forensic discipline involved in identifying and evaluating the practical realities of children’s lives. They must relearn these skills if they are going to be in a position to apply the law as it is now clarified.

The simple message must get through to those who prepare the statements that habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration.

 

 

I greatly admire Hayden J here for being able to spell out those THIRTEEN principles and then in the next breath use words like ‘clear’ and ‘simple’.

 

Anyway, with those 13 principles in our mind – we’re now super confident that we can deal with any question on habitual residence.

 

Let us examine the facts of the case at hand

 

 

  • Mr Gration, who appears on the half of the mother, has provided a convenient chronology setting out the extent of B’s travels. I pause to note that neither the mother nor the father seemed to have any sense that this level of chaos in their child’s life might be detrimental to her welfare. Indeed, the mother seems to have believed that the opportunities for travel, before she started school, were a good thing for her daughter. I emphasise that B is, at the time of this hearing, still only 3 ½ years old.
  • Another striking fact of this case is that both parent’s call their child by a different name. The father was asked, by Mr Gration, whether he thought that was a bad thing for his daughter. He responded that he had come to realise, during the course of these proceedings, that other people might think this was a bad idea and he volunteered, in future, to call his daughter by the mother’s chosen name. Mr Gration submits that this reveals little insight into the needs of a child. In addition I also note that when in her father’s care, B has found herself cared for, for quite long periods by babysitters that the father has engaged to look after her and who sometimes have been entirely unknown to her.
  • Mr Gration’s chronology, which is agreed, requires to be stated in full:

 

a) November 2014 – December 2014, to Amiens, France with the mother and the father;

b) 19th December 2014 – 21st January 2015 to London, England with the father;

c) 21st January 2015 – 24th January 2015 to Lille, France with the father;

d) 24th January 2015 – 9th February 2015 to Italy with the father;

e) 9th February 2015 – 16th February 2015 to Paris, France with the father;

f) 16th February 2015 – 18th February 2015 to London with the father;

g) 18th February 2015 in London with the mother;

h) 20th February 2015 – 6th March 2015 to Paris, France with the mother;

i) 6th March 2015 – 28th March 2015 in London with the father;

j) 28th March 2015 – 8th May 2015 to Senegal with the father;

k) 8th May 2015 – 5th June 2015 in London with the father;

l) 5th June 2015 – 22nd July 2015 to Paris, France with the mother;

m) 22nd July 2015 – 29th October 2015 in New York, USA with the mother;

n) 30th October 2015 – 31st October 2015 to Paris, France with the mother;

o) 31st October 2015 – 11th January 2016 in London, at times with the father but also being cared for by others;

p) 11th January 2016 – 13th March 2016 to Senegal with the father.

 

  • By way of completeness it should be added to the above that between the 13th March 2016 and 22nd April 2016 B was in London with the father.

 

 

Erm, yeah

 

 

With masterful understatement, Hayden J says this:-

 

It is obvious from the chronology that B’s habitual residence does not reveal itself instantly.

 

(I applaud, but ‘back it up’ also works)

 

Moving on to the see-saw

 

 

  • In my review of the case law I note the observations of Lord Wilson in Re B (a child) (supra):

 

“Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”

Well, you know, I’m the dude who explained adoption law with a riff about iguanadons, so I’m perhaps not the UK spokesman for simple analogies. But I have to confess that I’m not sure where the see-saw analogy gets us to with that sort of chronology.

The sensible conclusion, with that sort of chronology is that for the best part of 18 months, this child never had a settled COUNTRY never mind home. The longest B ever goes is about three months before moving across the Atlantic one way or another.

The Judge applies the 13 principles and comes down on London as being the habitual residence.  I think you could make a case for New York, London, Paris (not Munich, annoyingly) or Senegal.

Whereas on my rules, probably Paul Young gets some new fans, and the child is habitually resident in Dudley.  On the plus side, the complexity of habitual residence law now means that you can ALWAYS make some sort of argument and run up a huge legal bill and squander the scarce resources of the High Court. Oh wait, that’s not actually on the plus side column.

Er, okay, on the plus side, if you read out the case headnote, 2016 EWHC 2174 (fam), the last bit makes you sound ‘street’, because “Fam” is slang now.  (Like ‘blud’  or ‘bred’ren’ or ‘squad’ or indeed ‘homies’ if you’re taking it back to the old school).

Suesspicious Minds –  law blogger  (Fam)

 

 

Tape recording of an expert (a SHOCKING case)

Truly, absolutely shocking.

This was a set of care proceedings, transferred up to the High Court before Mr Justice Hayden. A  consultant clinical psychologist, Dr Ben Harper, was instructed by the Court to assess the mother. The mother unknown to him, tape recorded their sessions. After the report of Dr Harper arrived, containing words set out in quotation marks attributed to the mother that she says she did not say, those tape recordings were transcribed and showed that she was correct.

 

Re F (A Minor) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2149.html

 

Here are the findings that mother’s team invited the Court to make – you’ll see that they are very powerful  (perhaps even career-damaging stuff)

 

  1. Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:
    1. 1. Dr Harper has either misread or exaggerated the mother’s presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.

2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these ‘quotations’ by the mother to form his conclusions and recommendations.

3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.

4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.

5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.

6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.

7. Dr Harper inaccurately quotes other experts’ reports in a manner that presents a negative impression of the mother.

8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.

9. It is asserted that neither Dr Harper’s handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.

  1. As these findings were particularised it became clear that the allegations extended to: ‘false reporting’; ‘inaccurate quoting’ designed to present the Mother in a ‘negative light’; ‘fabrication of conversations’ and deliberate ‘misrepresentation’. In cross examination Ms Lee accused Dr Harper of ‘lying’.

 

 

Holy wow.

 

Dr Harper was invited to intervene in the proceedings, and was represented by Fenella Morris QC.

 

The Judge did not approach the matter on the basis of the schedule of findings drawn up  (that’s rather annoying for me, as it would have helped to look at such particularised findings, but that was a judicial decision)

 

  1. Whilst I am full of admiration for the industry which underpins the extensive schedule prepared by the Mother’s team and the equal energy expended in the detailed response document, I am bound to say that the two do not provide a user friendly framework to negotiate the contested issues. Partly for this reason but primarily because I consider it to be a distraction, I do not propose to address many of the minute allegations which, as I have indicated during the course of exchanges with counsel, are of varying cogency and forensic weight. What I propose to do is to analyse, in what I consider to be a proportionate manner, those allegations which it is necessary for me to determine in order properly to resolve the issues in the care proceedings. Thereafter I must consider a further important question: are the findings made out against Dr Harper sufficiently serious so as to render his evidence in these proceedings unreliable?

 

  1. Dr Harper’s report is dated 11th April 2016, it is 70 pages in length. At its conclusion it contains the following, now standard, declarations:
  2. i) ‘I have exercised reasonable care and skill in order to be accurate and complete in preparing this report’;

ii) ‘I understand that this report will form the evidence to be given under oath or affirmation’;

iii) ‘I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above’;

iv) ‘I confirm that I have acted in accordance with the Codes of Practice for Experts’.

  1. Finally, the ‘STATEMENT OF TRUTH’ appears at the very end of the report. Familiar though it is, it requires to be repeated here:
    1. “I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true”

 

Responding directly to the schedule of findings sought by mother’s team, Dr Harper said this

 

  1. Responding directly to the schedule Dr Harper makes this concession:
    1. 12. There are a number of occasions where I have referred to Mrs Mother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”

 

Yes, if I read a report from an expert that said

 

Mother said she was sorry for all the trouble she had caused

I would think that there was an apology along those lines but not that this represented a verbatim account but

 

Mother said “I’m sorry for all the trouble I’ve caused”

 

I would read as being, the expert is reporting the words that she used and is stating with confidence that she used those words.

So having remarks in quotation marks that mother did not actually say is a significant deficiency.

What did the Judge say about that?

  1. I have read this paragraph a number of times. It seems to me to do Dr Harper no credit at all. It is crafted in a way that seems designed to minimise the extent of the very significant failing it represents. When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such ‘quotations’ in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper’s experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of ‘a number of sentences’ is a complete distortion of the reality of the document. The report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus, the material supporting the ultimate conclusion appears much stronger than it actually is. Given the forensic experience of Dr Harper and his extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.
  2. In the course of the public law proceedings the Court authorised interviews between one of the children and Dr Harper. I very much regret to say that the purported quotations in that report i.e. presented as if they were the words of the child himself are also nothing of the kind. Dr Harper used the same approach there. They are in fact a jumble of phrases extracted from jottings and / or perceived recollection. Dr Harper voluntarily submitted his notes to scrutiny, they can properly be characterised as minimal. They prompted this submission on behalf of the children’s Guardian by Mr Cohen QC and Mr Edwards:
    1. “It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process.”

 

 

I am genuinely shocked by this. It undermines a lot of credibility of expert witnesses, if an expert attributes quotations to a parent and a child that they did not say, that were ‘impressions’ and that the note keeping was minimal.

 

As these ‘quotations’ were not present in the tape-recorded formal sessions, there was some consideration of whether they were instead conversations or discussions that took place at one meeting on 6th April, which appears to have been a contact session and two discussions on the way in and way out of the session

 

  1. Ms Lee and Ms Weir pitch the findings they seek very highly indeed, they are of the utmost gravity. It is for this reason that I required counsel to be very clear about the legal framework. Ms Lee has, in the proper presentation of her case, repeatedly impugned Dr Harper’s integrity and honesty during the course of her cross examination. It is alleged that he has fabricated the fact of the discussions between himself and the Mother and, says Ms Lee, where there is no written note of any topic of discussion it has been, in effect, invented by Dr Harper. There is no ambivalence in the way Ms Lee advances her case. In her closing written submission she asserts:
    1. “For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper’s account of the ‘discussions’ that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon.”
  2. Given that the earlier meetings were recorded and transcribed it must follow that the purported quotations from the Mother not covered on those sessions must therefore have taken place at the meeting at the contact centre on the 6th April 2016. This inevitably therefore has been the focus of the dispute at this hearing. The first conflict of evidence is as to the length of the meeting. There were in fact two meetings, one before the children arrived for an observed contact session and a second later encounter in the car park at the conclusion of the session.
  3. The 6th April was a day on which plans went awry. The Mother had been led to believe that her meeting with Dr Harper was to provide her with advice on how best to manage the eldest child’s challenging behaviour. On Dr Harper’s account he had decided to change the agenda and look at what he has referred to as ‘the inconsistencies of the Mother’s various narrative accounts’. He had, to my mind, settled on the view, for reasons that I will come to below, that this was the key issue in this case. The undoubtedly discrepant histories of her own childhood and relationships recorded from the Mother are, as Ms Morris QC (on behalf of Dr Harper) describes them, ‘polar opposites’ and ‘at a 180 degrees to each other’. Essentially, there is both a light and benign version of these issues alongside a dark and abusive account. In any event what is clear is that the Mother finds discussion of both these areas to be highly unsettling and distressing. That she would do so was anticipated by Dr Harper but nonetheless so important was this issue to him that he forced it through in circumstances which were, in my judgement, insensitive to the Mother. Of course it follows from this comment that I have accepted his account of the 6th April, at least in part. In fairness I should record that Dr Harper offered the Mother a further appointment which she did not take up.
  4. In addition, building work was being undertaken at the contact centre and it was necessary to shorten the contact. This had not been communicated to the Mother, Dr Harper or I assume the children either. The conditions both in which to observe contact and to undertake important features of the assessment of the Mother were inimical to constructive and fair assessment. I am satisfied that the Mother was understandably upset and that Dr Harper’s account of her as agitated is an honest expression of his perception.
  5. The second meeting in the car park was cursory and ended peremptorily in the rain. The first meeting was, on either party’s view no longer than 15 minutes. It is not necessary for me to resolve the conflict as to the duration of the meeting, there is very little between the Mother’s recollection and Dr Harper’s. What is significant is that in this period Dr Harper contends that he dealt with somewhere between 13 and approximately 20 significant points of assessment.

 

 

[That does not sound terribly plausible]

 

  1. From his notes of assessment it is clear that some of the issues were discussed. The notes are silent on other issues. In his analysis Mr Cohen submits that Dr Harper ‘has produced no satisfactory explanation of the inconsistencies nor is his credit enhanced by what seems to us to be an unwillingness to recognise the effect of his wrongdoing’. This leads Mr Cohen further to submit:
    1. “We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so.
  2. Ms Morris vigorously resists this approach, she contends that the burden of proof rests on the applicant and does not shift. I agree. Certainly Dr Harper’s admissions require him to explain his admitted misconduct but they do not cast upon him some additional burden of proving the accuracy of his notes of what he contends the Mother said to him in interview.
  3. I do not propose further to burden this judgment with a list of the various topics which Dr Harper contends were discussed on the 6th April. In response to Mr Cohen Dr Harper accepted that there were 13 topics. I simply fail to see how this range of challenging and difficult material could have been covered to the extent that Dr Harper purports in such a limited time. It would have involved rapid fire question and answer on each topic. Given the circumstances and the nature of the material, such a process would have also required a degree of brutality or at least gross insensitivity. The subject matters ranged across e.g. domestic abuse, childhood experiences, sexual issues. Having listened to Dr Harper in the witness box he does not strike me for a moment as a man capable of such crassness. His work has been widely respected. I do consider that there was an enthusiastic effort by him to cover some of the material that day. I entirely accept his evidence that his notes are genuine and not fabricated, as Ms Lee contends, but I find on the balance of probabilities that some, though not necessarily all, of the material which is not corroborated by the notes was most likely drawn from other sources and incorporated into the report again as if it were direct speech from the Mother to Dr Harper.

 

 

The Judge’s overall impression and his decision about whether Dr Harper’s report could be relied upon in the care proceedings :-

 

  1. The overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness. It simply cannot be reconciled with those duties which I have pointedly set out above at para 10 and 11. Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Ipso facto this is a case of unique gravity and importance. Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper’s professional failure here compromised the fairness of the process for both Mother and children. These are fundamental principles emphasised in Re B-S [2013] EWCA Civ 1146 and Re A [2015] EWFC 11.
  2. Mr Rowley, on behalf of the Local Authority, submits that Dr Harper’s central thesis is probably correct. He summarises it succinctly thus:
    1. “Dr Harper’s concern about the mother’s inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk.”
  3. Mr Rowley may very well be right. He goes on to suggest that notwithstanding the significant criticisms made of Dr Harper, his report should be allowed to stand, with the Judge who hears the case entitled to give it such weight, if any, as he thinks fit. I disagree. These are such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions. Furthermore, there is an inevitable risk that were I not to order that a new expert be instructed the Judge might at the conclusion of the hearing find a lacuna in the evidence in consequence of his being unable to rely on Dr Harper’s opinion. That would result in further delay for the children in a case where I have been told the final hearing is now unlikely to be effective in any event. The delay in this case in already unacceptable, the harm caused to the children because of it is the responsibility of the professionals not, I emphasise, the Mother.
  4. I should say that my conclusions here are predicated substantially on my evaluation of Dr Harper’s evidence and the available written material. I have found myself unable to place a great deal of weight on the Mother’s own evidence even where my findings are essentially in her favour. I agree with Ms Morris, who advances the point sensitively and elegantly, when she says that the issue in the Mother’s evidence is ‘reliability’ not ‘credibility’. Her reliability is sadly compromised by her inconsistent accounts which may well be, as Dr Harper has postulated, a facet of her psychological distress. I have in mind Re H-C ( Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720.
  5. Finally, there has been much discussion at the Bar as to how I should characterise Dr Harper’s professional failings. Ultimately I have come to the conclusion that the language or nomenclature is irrelevant. What matters is the substance of my findings and their impact on these children.
  6. Ms Lee is right to emphasise the observations of Butler-Sloss (P) in Re U: Re B (serious injury;standard of proof) [2004] 2 FLR 263 at para 23iv:
    1. “The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice”
  7. I do not consider that Dr Harper has developed a scientific prejudice nor that he is jealous to guard his amour-propre but I do consider that his disregard for the conventional principles of professional method and analysis displays a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.

 

 

[I’m not sure why the Courts have felt that amour-propre is an expression in common use, but basically ‘reputation’ would do the trick just as well – the self-esteem that comes from the opinion of others]

 

It is a bitterly ironic twist that part of the disputed attributed quotations were Dr Harper stating that the mother had been critical of other (past) experts, calling them liars.

 

This concept of an expert taking an impression but then attributing quotations to the mother that she did not say and that the notes could have given no indication of her having said is a truly shocking one.  As the Judge says, doing this gives the conclusions and recommendations of the report far more weight as it seems to come directly from mother, she condemning herself out of her own mouth, rather than the expert stating that he had the impression  (which of course can be cross-examined as to the forensic basis of this)

Let us be honest – if the mother simply asserted that she had not said this, and had not tape-recorded the sessions, who would have been believed? We have to be able to trust experts – they may genuinely form the wrong opinion, and may be shifted in cross-examination, but there has to be trust that if a report says  Mother said “X Y Z” that she actually said those things.  Future of children is at stake here.  We must demand higher standards from experts than we would of political journalists, surely.

 

(I’m reminded a little of the Overegging the Pudding case  https://suesspiciousminds.com/2014/11/28/over-egging-the-pudding/    though of course this goes still further, from cherry-picking only the negatives to flat out creation of quotations that the mother did not in fact say)

 

It is also an interesting comparison, given that both were Hayden J to the criticism he made of the ISW in the radicalisation case (which were about competence rather than integrity) and the fairer process here where the expert had the opportunity to be represented and respond to the criticisms – in both cases they could have a serious impact on livelihood of the experts, for whom reputation is a vital component in them obtaining future instructions.

“Fell far short of the promise foreshadowed in her CV” (radicalisation, Tower Hamlets)

This is the Hayden J judgment in the Tower Hamlets case involving the girl who had tried to go to Syria having been exposed to extremist videos and propaganda of the most alarming kind.

 

I wrote about the early stages of it here,   https://suesspiciousminds.com/2015/08/27/radicalisation-of-children-and-isis-jihadi-brides/    when Hayden J learned that the parents (who had been saying that they were shocked and appalled by what was happening to their daughter) seemed by the analysis by security services of what was being accessed in the home to be more implicated than one might imagine.

 

Part 2 is here : –  London Borough Tower Hamlets and B 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1707.html

 

It makes for extraordinary and shocking reading – and you will learn a LOT about radicalisation cases and how ISIS goes about manipulating and recruiting young people by reading this judgment. I could not recommend it more highly for any professional working within the field, any lawyer who thinks that radicalisation is a feature in one of their cases, or a concerned parent.

 

 

This is some of the material removed from the family home (bear in mind that by this stage, the girl had already made the attempt to go to Syria to become a jihadi bride)

 

 

  • The following material was removed from the household:

 

Document Title Device
“A Muhajid’s Guide to the West” this document contravenes section 58 TACT 2000
Chapter 1 “Hiding the extremist identity”

B’s SD card
“Miracles in Syria”
B’s SD card
“Hijrah to the Islamic State” B’s SD card
H’s Apple Mac Laptop
L’s hard-drive
“The Dust Will Never Settle Down” an audio lecture by Anwar Al-Awlaki est. 2008 B’s Sony Vaio Laptop
H’s Apple Mac Laptop
J’s Samsung Laptop
L’s hard-drive
“The Book of Jihad” an audio lecture by Anwar Al-Awlaki 2003 H’s Apple Mac Laptop
J’s Samsung laptop
L’s hard-drive
“44 ways to support jihad” by Anwar Al-Alwaki
B’s Sony Vaio Laptop
DABIQ and ISN publications H’s USB storage device
L’s hard-drive
Videos Exhibit IDK/36 ‘For the Sake of Allah – Fisabilillah’

Exhibit MAE/5 ‘Upon the Prophetic Methodology – AlFurqaan Media’

Video DSCN2418.AVI – Home video that shows an ALM march

 

  • Some of the material on these videos, all agree, depicts behaviour of appalling human depravity. It includes mass killings, sadistic torture (which I have been advised has symbolic significance and is not merely gratuitous), random killings by youths in a car by using AK47 machine guns, scenes of mass graves and bloodied lakes and killings videoed in such a manner as to create the impression that the viewer is the killer looking through the cross hairs of a telescopic sight attached to a rifle. The written material includes sinister polemics designed to rally ‘good Muslims’ to the cause of jihad. Some of these documents deliver sophisticated messages to the reader, advising them how best to create the impression of social compliance whilst participating in an anarchic agenda. I have personally read much of that material in order to try to equip myself to evaluate the evidence in an informed way, and to alert myself to any potential subterfuge. I cannot imagine how it is that the officers of the CTU manage to view the material I have described whilst remaining inured to it. I feel constrained to observe that which is obvious from the above, that the public owes them a debt of gratitude.

 

 

The girl’s own description of just one video.  (skip this if you are squeamish. In fact, just skip it. You don’t need to read it. You have my permission not to)

 

“I saw a video of men chained together one by one after what was said to have been a battle, who were said to be the prisoners they had taken. They took them to something like a dock/or a sea wall straight onto the sea. They unchained them one by one and shot them in the back of the head so they fell into the water. They sought to portray this like the story of Commander Khalid Bin Waleed who was fighting against the Jews and he made a promise that the river would run red with blood if he won. The water in this video by the end of it was red; they had killed so many people. I’m not sure they were even soldiers at all now, they may well just have been people, ordinary civilians, who didn’t agree with IS coming in and taking over. “

“I saw a lot of videos and scenes of violence. When I first started seeing them I was shocked at the violence. I didn’t like to watch it. I was also accessing a lot of video and other on line material that I now realise was just propaganda. “

 

 

 

First of all, the Court is scathing of the independent social worker who came with high recommendations to this field.  (I don’t want to wish any professional ill, so let’s say that she was perhaps out of her depth on this sort of case)

33.It was pressed upon me by all the advocates for the family, that Ms Rukhsana Thakrar should be appointed as an independent social worker. I was assured that she was well regarded and as a professional Muslim woman not associated with the Local Authority, or the Guardian for that matter, she seemed to me to be well placed to undertake what I identified in my earlier judgment as the need for an ‘intense, thorough and comprehensive assessment’. I must also admit to my aspiration that Ms Thakrar would provide an example to B of the opportunities open to independent Muslim women in the UK. Ms Thakrar has an LLB (Hons), a MA in social work, a CQSW and is an accredited social work practice teacher. She has also worked in the capacity of Guardian ad Litem, CAFCASS officer and asserts in her CV that she ‘specialises’ in ‘working with Muslim families’.

 

 

34.I very much regret to say that Ms Thakrar fell far short of the promise foreshadowed by her CV. In her very lengthy report, which is essentially simple reportage of what the family has said to her, Ms Thakrar missed the opportunity to confront them with my earlier findings and to challenge their various belief structures. Though I am satisfied that her instructions were clear and supplemented by a further set of instructions specifically directing her to the court’s concerns, she appeared to have very little understanding of the nature of the task she was engaged in. Her view of the family was expressed with fulsome positivity, though I have found it impossible to identify any analysis in her report upon which her optimism could be founded. More than that, within a report spanning over 130 pages I have struggled to identify any analysis of any issue in the case. Rather unusually despite the glowing conclusions she advanced, I had no sense that the family had forged any kind of constructive relationship with her either.

 

39.I am constrained to say that Ms Thakrar has fallen, by some distance, below the standard that this court is entitled to expect from an expert witness. In so doing she has failed the children (primarily), the parents and the other professionals in this case who have worked extremely hard to manage a very challenging situation. I have noted that Pauffley J made criticisms of equal magnitude and of similar complexion in Re A, B C & D [2009] EWHC 2136 (Fam) and Re S (A child) (Care Order) [2014] EWHC 529 (Fam).

 

 

(That case can be found here http://www.bailii.org/ew/cases/EWHC/Fam/2014/529.html    – some key extracts   It seemed to me that Ms Farooqi – Thakrar’s evidence was far from even handed and less than helpful.     

  • This aspect of Ms Farooqi – Thakrar’s recommendation seems to me to be extremely poorly thought through. There was a sense, as she gave her evidence, of her almost making it up as she went along

 

  • It was a further defect in the evidence of Ms Farooqi – Thakrar that she had failed to consider S’s considerable behavioural difficulties. When asked about that aspect, she simply said, `Well, all of this will just disappear when S has been reunited with her mother and I’ve seen it happen in other cases.’ I am surprised, even amazed, that Ms Farooqi – Thakrar was prepared to make forecasts about what would happen in this case relying exclusively upon her experiences in other cases. I do not share her optimism. Moreover I consider such an experiment would be thoroughly risky and altogether ill-advised at this juncture.

 

 

If you are unwrapping a brief tonight and underneath the pink tape is a part 25 application to instruct this ISW tomorrow, I’m sorry that I’ve just ruined your evening )

 

 

 

The Judge was, however, very complimentary about the social work evidence in the case

 

45.Ms Thelma Ukueku is the key social worker in the case, employed by Tower Hamlets. When the deficiencies in Ms Thakrar’s report came to light Ms Ukueku agreed, in the time remaining, to plan and undertake an assessment addressing the risk matrix referred to above. This report was undertaken with a Mr Brian Sharpe and a Ms Juliette Thompson. I heard from Ms Ukueku and Mr Sharpe in evidence. It is an unfortunate fact that Judges have, from time to time, to be critical, sometimes highly critical of social workers. Too often good social work goes without comment or commendation. This case provides some opportunity to remedy that. This family is extremely fortunate that Ms Ukueku was allocated to this case. She has shown unstinting commitment to them, she has been tireless in her determination to help them, she has unhesitatingly sacrificed her own personal time and displayed an impressive mix of intellectual rigour and compassion. Perhaps most importantly, whilst trying to work effectively with the family, she has not shied away from confronting them robustly and directly where she perceives there to be error or inappropriate behaviour. She has, in my view, ‘worked’ the case, in the sense that she has not merely recorded the attitudes or behaviours of the adults, rather she has actively intervened to try to change them where, in her assessment, they are contrary to the interests of the child.

 

 

46.I have mentioned above that I elected not to see the video material in this case. It is rarely necessary for the Judge or the lawyers to do so. It is probably desirable that we should not. The danger that we become inured to it is greater than might initially be thought. Some of the material here is, plainly profoundly shocking. Ms Ukueku took the view that if she were truly to understand what harm B had been subjected to she ought to look at some of the material herself. She told me that on reflection she wished she had not done so. It had caused her real, not merely superficial, distress. She told me how some of the images are lodged in her mind and have from time to time intruded unexpectedly into her thoughts. She twice needed to pause to maintain her composure, as she outlined this to the Court. She told me, at this point, slightly tearfully, that she had been terribly shocked and deeply upset that B had been regularly exposed to such images. It was a powerful and memorable moment in the hearing. I noted that it had some impact on B which seemed to me to be chiefly one of real surprise. I think this was both as to the effect the images had on Ms Ukueku as well as some realisation of the great effort made on her behalf.

 

Powerful stuff. You’ll note from the earlier portion that the Judge himself did not view the material – and I think that he was right not to. There were clear descriptions available from those brave souls in the police and counter-terrorism who did have to watch them. I myself would not feel the need to watch the videos, and if my social workers asked me whether they should, I would tell them not to. If they felt extremely strongly about it I would have asked the Court for an indication that they need not watch them and would not be criticised for failing to do it.  I say this not to make any criticism of anyone involved in this case – but to avoid the risk that because this social worker did so (and now regretting it) puts a benchmark up that others should be expected to do so. If there’s a description of the content of such material and that description is not disputed, I am with Hayden J that it is not necessary for professionals to see it and that it is desirable that we should not.

 

It became apparent during the hearing that the father, who had seen terrible attrocities in Gaza that had profoundly affected him, had shown his children images that they should not have seen.

 

  • It occurs to me that the reason that the father may be so eloquent in articulating the emotional harm caused by such images is that he sustained a similar kind of harm himself as a child. He told Ms Thakrar that as a Berber male from the Algerian community he held some negativity towards the French in their use of tanks in Algeria in the 1950’s. He explained that his family had shown him photographs of this period which he considered revealed French tactics to be ‘unjust and upsetting’ and which plainly had stayed in his memory. In evidence, he drew a comparison with these grainy, black and white photographs of a conflict which pre-dated his birth and the videos seen by B. The moving, ‘living’ pictures in colour and so much more clearly defined were, the father said, much more searing.
  • During the course of the Mother’s evidence the Local Authority applied for permission to produce material from social media. The application, which I granted, was made before the Father went into the witness box. The material included photographs of charred bodies and the cracked skull of a dead infant. These were produced into evidence, I think, during the course of the cross examination of the Father. In any event I did not look at them until the Father was asked to comment on them. I was not expecting to see the kind of images they contained, indeed it took me a moment or two, from the rather poor quality photocopies, to realise what I was looking at. I found them disturbing.
  • The Father told me that he was motivated by the photographs to participate in humanitarian work. I accept that he was. Nonetheless, I had the strong impression, as he responded to questions, that he too had, albeit in a different way to his daughter, become numbed to images of death. Such photographs may well have triggered moral outrage in him, an entirely different dynamic to B’s objectives in looking at the material I have considered above, but for all that I sensed that something of his own ‘pity’ and ‘mercy’, to use his expressions, had been compromised. I do not think that he contemplated that the image of the child might not merely shock people, but that it might provoke a simple human distress reaction for the child which eclipsed the underlying humanitarian objective that he intended. I consider that this resonates with something that he is reported as having told Ms Thakrar:

 

“He stated that when he was in Gaza he had watched what was going on in Gaza. This appears to have been a turning point for [the father]. He stated that he watched Aljazeera Arabic as he felt that Aljazeera gave an accurate picture of what was going on in the world. He also brought back videos and pictures of Muslims being killed and burnt alive. He stated that Palestines (sic) were being killed by Israelis. He found this very haunting and upsetting. He explained to me that his children saw these pictures and they were all upset and crying. It was very clear from his body language and how he spoke that these atrocities had left a deep and lasting impression on him. It also appears from his descriptions that all the children had been deeply moved and upset. Certainly they would have left a deep impression on [B].”

 

  • Once again the father challenges the accuracy of the ISW report, he denies that he told Ms Thakrar that he showed photographs or videos to his children, claiming that she has misreported him. I reject that. There is much in that passage which is plainly accurate. The father was fulsome in evidence about the atrocities in Gaza, as he sees them. He plainly, in my assessment, was affected by what he had seen. He confirmed that he watched Al Jazeera on the basis that he felt that was a reliable chronicler of world events and certainly accepted that he had brought back pictures. All of this is essentially accurately recorded. It is also very much of a piece with his evidence more generally. I may have been critical of Ms Thakrar’s lack of focus and forensic rigour but, as I have already said, I have no reason at all to doubt her integrity. Neither have I found evidence of regular misreporting, in what I remind myself were 84 hours of interviews.
  • I am satisfied that the father did indeed show these children videos or pictures of Muslims being killed and burnt alive. I consider that in the heat of his own outrage he was motivated to do so by what I have loosely referred to as humanitarian instincts. Having been shown disturbing photographs of death himself as a child I do not think that he has ever extrapolated from that, that it is entirely inappropriate to present children with such images. He does not appear to have absorbed that childhood innocence needs to be protected and that he as a father has that responsibility. His failure to rise to those obligations is, in my assessment of the evidence, critical to what has happened to B. I also consider that like B, he too has become desensitised, on a basic human level, to images of child and adult suffering. His response is ideological rather than visceral.

 

 

 

Hayden J also makes some important points about the standard of proof in these cases  (I think most readers know my views about the cases of radicalisation decided by other Judges, where admittedly the analysis and evidence done by the security services came nowhere near the amount of detail that Hayden J had available to him)

 

52.Cases involving allegations of radicalisation do not require any greater standard of proof than any other allegation in Family Law proceedings. Any impression to the contrary requires to be dispelled

 

 

 

56.In Re X (Children) (No 3) [2015] EWHC 3651 (Fam) the President said §110 ‘There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion.’

 

 

57.I am confident that the President was there intending to emphasise the importance of evidential discipline and forensic rigour. He was not, for a moment, suggesting that in the application of the civil standard of proof the Court is in anyway prohibited from drawing reasonable inferences from ascertainable facts. There is plainly an important distinction between suspicion and inference, the two should not be conflated.

 

 

It is pleasing to hear that this girl is drawing back from the extremist position that she was once being seduced by and was showing some insight and reflection into what was wrong with the material that she was seeing  (that has to be hedged by the knowledge that material was being accessed in that house that taught how to lie, conceal, suppress your views and pacify those investigating them, but let us be optimists rather than gloomy pessimists)

 

The Judge had the unenviable task of deciding where B should live. He looked hard at all of the issues (this blog doesn’t have space to go into all of it, but if you are having a reaction to his conclusion I would suggest that you take the time to read the judgment itself) and how B had fared in care over the last nine months.

 

 

  • Unsurprisingly, B wants to go home, she is rather desperate to do so. She is sad and lonely and misses her siblings, particularly her younger brother. She is being phlegmatic about life with Mr and Mrs J but I think she senses a loneliness for her there too. So do I. Mr & Mrs J have their own interests and commitments, these are understandably not structured around a teenage girl and will require much renegotiation in their lives. I was told that their commitments do not enable them to allocate a great deal of time to helping B make the transition to their home over the summer months, were that to be the plan.
  • Many teenagers of this age, who find themselves in the care system, simply take matters into their own hands or to use the term frequently heard in these Courts ‘they vote with their feet’. For the duration of the Care Order i.e. until she is 18 (in just over 12 month’s time) I think it unlikely that B would do so. To some extent, her experience of the Court system has been salutary. After that I do not know. She will be beyond my remit and able to exercise her own adult autonomy. Should she return to her parents home at that point and there may be pressure for her to do so, she will once again interrupt her education and potentially damage her academic prospects. Though it may not seem the obvious solution, in the light of my findings above, I have come to the conclusion that the plan most likely to meet B’s needs is to return her home. I identify the following reasons:

 

i) The circumstances of B’s radicalisation involved a combination of factors and influences unique to her situation;

ii) B’s brothers and sisters do not share her beliefs and are likely to be resistant to them;

iii) B is most likely to rediscover her own intellectual autonomy in a home environment where she is happy and loved;

iv) I think it likely that the siblings will challenge B’s extremist beliefs, even without intending to do so;

v) B will enrol in a local college if she returns home;

vi) I think it likely that B will respond enthusiastically to a wider social group at college, holding inevitably different opinions and beliefs. Her lively intellect is likely to be stimulated by the exchange of ideas. It is worth emphasising that B has never attended school before;

vii) Whilst I consider that B’s admissions in this court are driven by her pragmatic evaluation of the evidence against her, as she herself volunteered, there is nonetheless an underlying sincerity to her own description of the numbing effect that these awful videos have had on her. This has the potential to be a breakthrough in combating what she has described as her ‘addiction’ to violent and death related images;

viii) In the last 9 months the Local Authority’s Care Plan has been able to provide a sustained period in which B has not seen the kind of images that have caused her such harm. This occurred at a crucial stage in her development and has enabled her to gain the tentative insights I have referred to above. (As I know B will read this judgment carefully, I wish her to appreciate a simple and unvarnished truth: those who do not empathise with human pain and suffering will never make effective doctors, it is intrinsic to the core motivation of the profession);

ix) The family has a proactive social worker who has demonstrated that she will not be naïve and will not be deflected by controlling or manipulative behaviour. The plans for all the children should enable them to get space from their mother. In particular, the mother should not attend the children’s Prevent sessions and neither should she collect the children from school;

x) Having recognised the impact of death related images on his daughter, I have some confidence that the father will restrain from sharing such images with her in the future. This he might like formally to undertake to the Court, knowing that he might be sent to prison should he breach his own undertaking;

xi) I also consider that this family can be more easily monitored when together rather than separated. I have no doubt that the police and the social services will be vigilant concerning the use of computers in this household;

She was therefore placed at home under a Care Order. All we can do now is wish her and her family well and hope that their lives take a different course than might have developed by exposure to such dreadful, graphic imagery which would give the most robust adult terrible nightmares.

At the very end of the judgment, the Judge records the general advice given by Professor Silke and Dr Brown in radicalisation cases, and that’s really something to be circulated to absolutely any professional working in this area – it contains invaluable information and guidance, in a very clear and easy to follow style and language.

A sham of a mockery of a travesty of two mockeries of a sham (diplomatic immunity)

 

I always love a diplomatic immunity case.

This is the Court of Appeal’s decision in Al-Juffari v Estrada 2016

https://www.judiciary.gov.uk/wp-content/uploads/2016/03/approved_judgment_rhd_estrada_v_juffali.pdf

 

and is the one that sent our much-beloved (Subs, check this please) Foreign Secretary off crying to the Guardian and other places because we can’t have our naughty English Courts inconveniencing Saudi billionaires or where will it end?

http://www.theguardian.com/law/2016/mar/22/hammond-criticises-judge-for-stripping-diplomatic-immunity-from-saudi-billionaire

Anyway, this relates to the claim by the Wife for a divorce in this country, and for a financial settlement. As the one detail that leapt out at me was the value of the former matrimonial home being about £100 million, one can see why.

Mr Al-Juffari claimed that the Court had no jurisdiction, because he was appointed by Saudi Arabia as the Permanent Representative of St Lucia.

At first instance, Hayden J made two decisions – first that in looking at this diplomatic immunity, the facts were that Mr Al-Juffari had not actually ever carried out any functions AT ALL in this role and this it was an

 

“artificial construct” designed to defeat the jurisdiction of the court;

This seems on the facts, quite reasonable to me. If you’re relying on a job to be your get out of jail card, at least have the decency to actually be doing that job. Otherwise it’s like playing Monopoly with someone who has at their immediate beck and call a printing firm to produce facsimile Get out of Jail cards as and when required.

[As a little tip, just don’t play Monopoly with Saudi billionaires – they are in a position to buy up Waddingtons*, and demand an immediate rule change in their favour be hand-delivered to every owner of a Monopoly set if they are losing.   * Now Hasbro. Grrr. On the plus side, the Dubai version of Monopoly has some truly amazing hotels. ]

 

Having referred to a number of cases in which the compatibility of the grant of immunity from jurisdiction with Article 6 of the European Convention of Human Rights (“the ECHR”) has been considered, the judge concluded at para 34:

“The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the ‘functionality’ or ‘effectiveness’ of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If ‘functionality’ is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ’s terms, the diplomat is not ‘en poste’, there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction cannot be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W’s right of access to a court.”

21.

The reference to Diplock LJ was to Empson v Smith [1966] 1 QB 426 at p 429C. At para 35(vi) of his judgment, the judge found that since his appointment, “H has not undertaken any duties of any kind in the pursuit of functions of office”. He said that W had provided persuasive evidence that H’s health was such that he was not in a position at present to fulfil any ambassadorial duties. At para 36, he said:

“H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic precision required to support such a conclusion.”

22.

At para 40, he said that he was “not prepared to accede to H’s request to strike out W’s Part III claim on his spurious assertion of diplomatic immunity, as I find it to be.”

 

However, the Court of Appeal had to disagree  (not that it was an artificial construct, but that the English Court had jurisdiction to inspect what was going on, rather than just taking the word of the Foreign Office that a person has diplomatic immunity)

 

Section 8 of the 1968 Act provides that, if a question arises in any proceedings before the English courts as to whether a person is entitled to any privilege or immunity, a certificate issued under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. I have set out at para 18 above the facts the truth of which is conclusively proved by the certificate in the present case. If the immunity of a Permanent Representative or diplomatic agent depends on establishing whether he has in fact performed the relevant diplomatic functions, then the certificate issued in this case is of little value. It does not purport to say anything about the functions performed by H. That is not surprising. The policy reasons justifying the conclusiveness of FCO certificates has been discussed most frequently in the context of issues relating to State immunity. For example, in The Arantzazu Mendi [1939] AC 256, Lord Atkin said:

“Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.”

 

 

As the FCP had provided a certificate saying that Mr Al-Juffari had immunity, that was the end of it.

 

The second question that Hayden J had to decide was whether Mr Al-Juffari was permanently resident in England. Why is that important? Well, because the  Specialised Agencies Convention and the Headquarters Agreement which governs what rights, privileges and immunities a person who is a Permanent Representative has says this:-

 

“(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention].

and

(2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

but

(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions. “

So if Mr Al-Juffari was permanently resident in the United Kingdom, he would only be immune for actions undertaken as part of his official functions (and as we’ve already established, he hasn’t done any. He certainly didn’t marry his wife as part of those functions)

On the facts, it seemed to me rather dubious that he was permanently resident in the United Kingdom

H was born in the Lebanon in 1955. He is a Saudi national and domiciled in Saudi Arabia. He is a member of a large Saudi family of immeasurable wealth. The family has, throughout his life, had a close connection with the UK. In particular, a substantial property, Bishopsgate House, near Windsor Great Park was bought many years ago by H’s father as a family estate for use in summer holidays. The family also had a flat in London. For a time H attended Oxford University before going on to university in the US.

71.

For many years H has had a visa which enables him to spend 180 days in the UK each year without compromising his non-resident tax status. In common with men of his wealth and background, he crosses and re-crosses the world, largely by private jet, staying in properties in various countries owned by, or on his behalf, through elaborate financial structures. The figures produced by Mr Alammari show the division of H’s time over recent years to have been largely spent between Saudi Arabia, Switzerland and the UK; the majority of his time over the period being spent in Switzerland closely followed by Saudi Arabia.

Can one really be permanently resident in a country where the visa only allows you to spend 180 days there? Note also the lack of time in St Lucia…

However,

H has been married three times. His first marriage in 1980, was to Basma Sulaiman, a Saudi national. There were three children by that marriage, M, D & H; each of whom (in common with all H’s children) were born at the Portland Hospital in London. It is common ground that at least the eldest of those children has a British passport.

73. Critical to his ultimate finding that H was permanently resident in the UK, the judge found in relation to this marriage (as with each of his marriages) that ‘the family home was based in the UK’ and that the children were educated in England and speak English.

 

In his overall analysis, Hayden J reached this conclusion that the choice of Mr Al-Juffari as to where to raise his children was a magnetic factor, and thus he concluded that Mr Al-Juffari was permanently resident in England.  (I think he’s about as permanently resident in England as Sean Connery is permanently resident in Scotland, but the Court of Appeal say otherwise)

 

“65. In my survey of the background of H’s life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer’s team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK.

66. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is ‘unlimited in period’, to adopt Langton J’s phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H’s intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H’s appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the ‘but for’ test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence.

And thus, Mr Al-Jaffari does not get to hide behind diplomatic immunity to defeat his wife’s divorce claim. He won on the first point (where I think the facts were completely behind Hayden J but the law wasn’t) but lost on the second point (where I think the facts were pretty iffy but the law backed Hayden J up)

For the reasons that I have given, I consider that the judge was wrong to hold that H is not entitled in principle to immunity from W’s claim. But the judge was entitled to conclude on the facts that H is not entitled to immunity because he is permanently resident in the UK and the claim does not relate to any official acts performed by H in the exercise of his functions. I would dismiss the appeal. It is, therefore, unnecessary to consider the issues raised by the Respondent’s Notice.

 

The right outcome, although by a peculiar route. Having said that, I’m SURE Mr Al-Jaffari will appeal to the Supreme Court. The legal costs are miniscule compared to the sums that are being litigated here.

 

 

 

 

 

 

Mistaken identity

 

Readers may recall the case of Riaz , where Keehan J used the inherent jurisdiction of the High Court to make injunctions against a number of men, banning them from contact with any child under 18 and allowing them to be ‘named and shamed’ as people who may have sexually exploited or groomed children.  (They may also remember my doubts that the inherent jurisdiction, which is undoubtedly pretty elastic, stretched quite as far as Keehan J was deciding.   “I’m like a rubber band, until you pull too hard”, as Sia sings)

We then had the Redbridge case, in which Hayden J said just that, that the inherent jurisdiction could properly be used to protect a named child from harm from named individuals, but not to protect ALL children against such men.

Both of these Judges are High Court Judges, so the conflict between Riaz and Redbridge will have to be decided by a more senior Court if at all.

Birmingham City Council vand SK 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/310.html

In this case, however, Keehan J made a “Riaz” style injunction against a man, only to later have the Local Authority who asked for it to come back rather sheepishly to say that they had obtained such a serious injunction against the wrong man.

[Hopefully this time the “Riaz” injunction didn’t end up with the national or local press ‘outing’ this man as someone who exploits or grooms children. Am wondering what the remedy would be if so – you can’t sue for defamation for something that is said in Court so the LA telling the Judge that the man LG posed a sexual risk would be protected, a newspaper reporting the Court order would be protected.  I guess it would have to be a claim for negligence?]

  1. SK, from the age of 13, was absenting herself form the family home. It was discovered that she was keeping the company of much older men. She was beyond the control of her parents. Her case came to the attention of the local authority and of the police. Hence the care proceedings were issued and an application for an injunction was made against an individual, LG, who it was believed was sexually exploiting SK.
  2. There was a meeting of MASE on 5 October 2014 when he was mentioned as a possible perpetrator of child sexual exploitation against SK.
  3. The local authority thus made the application for a Birmingham City Council v Riaz and othrs [2014] EWHC 4247 (Fam) [2015] 2 FLR 763 (‘Riaz‘) style injunction against him. On the basis of the information then before me on 24 March, I granted the injunction as sought.
  4. Within days of making that order, however, it became evident that there had been a serious lack of communication and/or a misunderstanding between the police and the legal department of the local authority. It also became clear that LG had quite wrongly been identified as a possible perpetrator of a child sexual exploitation of SK at the multi agency meeting held on 20 January 2015.
  5. Quite properly the local authority immediately applied to me to discharge the injunction against LG. I granted the same but required a detailed explanation from the local authority and from the police as to how such a serious mistake had been made. I was promptly provided with an explanation which I accept. I do not propose to lengthen this judgment by reciting the same save that I accept it was a genuine and unintended error borne of lax and less than rigorous procedures.
  6. The local authority and the police, with the court’s approval, wrote an entirely suitable and regretful letter of apology to LG. The material passages of that letter are:

    “… The order had been granted by the High Court on the basis of evidence and information gathered by the local authority in the exercise of its safeguarding duties. The information that indicated that you might have involvement with the individual named in the order was provided to the local authority by West Midlands Police at a meeting on 23rd September 2014, again as part of safeguarding procedures….

    ….On the 27th March 2015 information was received by the local authority legal department from West Midlands Police. That information made clear that it was not thought that you were in fact involved with the child in question….

    ….The reason that Birmingham City Council sought an order against you was that information was received from West Midlands Police (WMP) at a social services meeting in September 2014, that there was a log connecting you to a relevant address and potentially to the child in question.

    However, a break down of safeguarding procedures within the local authority meant that this link with LG was considered to be accurate even after, at another safeguarding meeting on the 20th January this year, West Midlands Police made it clear that LG was not thought to be involved with the child.

    Prior to the hearing at court on the 24th March 2015 the local authority sought to ensure that the information it relied upon remained accurate. However, the steps taken failed to highlight that you were not involved with the child…..”

  7. The positive outcome of this most serious and unfortunate set of circumstances has been the creation of a Protocol devised by the local authority and the police. It is an extremely helpful document which is the result of many, many hours of discussion and debate between the various agencies engaged in the field of child sexual exploitation.

 

The misidentification of LG as a potential perpetrator of child sexual exploitation was, to put it mildly, extremely unfortunate. I am satisfied that the same resulted from a series of unintended errors and misunderstandings, of greater importance, however, for the conduct of future cases is the Protocol agreed between the local authority and the police. It provides a clear and detailed procedure for the steps to be taken in cases of actual or suspected child sexual exploitation. The protocol is the result of careful consideration over many months, by a number of agencies, with the benefit of counsels’ advice and drafting.

 

You can find the Protocol laid out in the judgment, if you are interested.

What is perturbing me, however, is how the Judge came to make the “Riaz” injunction without it coming to light that LG had been wrongly named as a sexual risk.  That suggests strongly to me that LG was not present at the application – since if he was, surely he would have been saying that there had been a terrible mistake. So did Keehan J make such a serious order ex parte?  (without LG being present to oppose it?)

We can’t be sure of that, since the judgment doesn’t explicitly say so, or set out what evidence was presented, but it is surely a lesson for the Courts as much as the LA?  In all other applications, there is clear guidance and case law as to the risks of a hearing taking place with only one side present and the very limited circumstances in which that can occur, the caution that the Court needs to take and often the very high evidential bar that the applicant needs to surmount before an order can be made.

Given the huge implications of a “Riaz” style injunction (let’s not forget that the subject would be barred from any contact with children, and might be placed in very awkward situations having to explain that they cannot visit family or friends who have children, let alone the publicity issue), surely the very high evidential bar that exists with say Emergency Protection Orders ought to be in place. Particularly given that there’s some doubt about the jurisdictional issue.

I could be wrong. Maybe LG WAS present at the injunction application and either didn’t say that this was mistaken identity or wasn’t believed.

On a broader issue, we do need the conflict between Riaz and Redbridge to be resolved. We all know that different Judges approach things in slightly different ways and as human beings bring their own experience to bear, but it cannot be right that a person like LG faced with an application of this kind would have some Judges who would absolutely not make the injunction and some who would, on exactly the same facts. That cannot be right or fair.

 

 

Guardian neutrality at fact finding hearing – is it right, wrong, or are you neutral about that?

A twitter follower, @dilettantevoice put this one in front of me.

Cumbria County Council v KW 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/26.html

It is a case of a suspected head injury, with the usual classic triumvirate signs.  The case is interesting, from a legal perspective, because of paragraph 58

Having considered the legal framework and surveyed the broad landscape of the evidence I turn now to my findings. I record that the Guardian has thought it appropriate not to advance any submissions on the findings sought by the Local Authority. This is a wide spread practice which I would, for my part, strongly deprecate, in most cases. The importance of strong, intellectually rigorous representation on behalf of the child’s lawyer and his Guardian, has been emphasised regularly see: GW and PW v Oldham MBC [2005] EWCA Civ 1247; Re U (A Child) [2005] 2 FLR 444; Islington LBC v Al-Alas and Rway [2012] 2 FLR 1239. These principles apply just as vigorously, in my judgement, to the fact finding process. A position of neutrality motivated solely by desire to appear independent and objective in the eyes of the parents loses sight of the primary professional obligation to the child. I am aware that others take a different view

 

That isn’t part of the ratio, so isn’t a binding proposition, and you can see that Hayden J even says at the end that he knows that others take a different view.  It is a tricky issue. I’m firmly of the view that the Guardian has an important part to play in a fact-finding hearing, and it isn’t (as some think) a “Deckchair brief” – the Guardian and their representatives have to make sure that they do whatever they can to assist the Court in establishing the truth of what happened to the child – to make sure that the right documents are obtained, that the right experts are asked the right questions, and that all of the proper issues are investigated by the Court. It can, therefore, be a very tough brief, since rather than having a set of questions prepared in advance, the lawyer has to be flexible and fluid and extremely on top of all the detail and attentive to how the evidence develops.

It is vitally important for the child, and their siblings, that the Court comes to the right conclusion – either because the child has been harmed and needs to be kept safe OR because the allegations are not correct and the parents don’t pose a risk and there’s a danger of the child being wrongly separated from a parent. In representing the child, you obviously want that decision to be right and for all the important evidence to be drawn out.

Whether at the conclusion of all of the evidence and in making submissions,  as the Guardian here felt the Guardian should stay neutral, or whether as Hayden J thought the Guardian should pin their colours to the mast, is very difficult.

Looking at things logically, if the Guardian hasn’t played a part in the direct collection of evidence (i.e is not a witness of fact, but of opinion), then is his or her view actually significant? On causation, I mean. Clearly on what risks flow if the allegation is proven, and what should happen next, the Guardian’s opinion is vital. But if all the Guardian is doing is saying, having heard all of the evidence, I believe that mother didn’t do it, or that mother did it, how does that really help the Judge?  So, I’d tend to agree with the Guardian here. I’m sure if the Guardian had very strong views either way and wanted to put them in submissions, that would be okay too, but just of limited evidential value.  Is it wrong to remain neutral though, if that’s the Guardian’s preference?   At a fact finding stage, I’d say that it isn’t wrong.  You can follow the professional obligation to be the voice of the child without making your own quasi-judicial view of the evidence.

 

[If the Guardian is a witness of fact – i.e he or she has some factual information to provide about parental presentation or the relationship observed between parent and child or inconsistencies in accounts they gave to the Guardian, then I think it is more incumbent to come off the fence]

 

In broader terms, this is a case where the medical opinion was that the medical evidence alone would not determine the case. The medical evidence alone could not rule out non-accidental injury, nor could it rule out a benign explanation.  (As the Judge later explained, that did not mean that each of those possibilities was equally possible just that neither was impossible)

 

“All counsel agree that the Court should approach any findings it may make in this case by having regard to the broad canvass of the evidence i.e. the medical evidence; the lay evidence; the social work assessments etc.

In this exercise the Court is entitled to conclude that the medical evidence from each of the disciplines involved may, both individually or collectively, support either of the findings contended for by the parties ( i.e. accident or non accidental head injury).”

There have been quite a few reported cases where the medical evidence points to non-accidental injury but the Court is satisfied from the parents explanation that the parents did not injure the child and makes no finding of abuse. This one is the other way, where the parental evidence  particularly the mother’s evidence and the text messages that she was sending, led the Judge to conclude that the child had been injured by the mother.

An unusual element is the raising of the Japanese Aoki research on head injuries. This is research suggesting that the classic triumvirate can present in an accidental fall from a fairly small height and is thus generally accidental.  This research is not accepted by experts outside of Japan (even the many doctors who suggest that shaking injuries are caused by less trauma than commonly supposed don’t subscribe to it.)

  • as the medical profession has also impressed upon me in the past, if low level falls in infants were associated with SDH, retinal haemorrhages and/or transient cerebral irritation or encephalothopy then such might be seen clinically, they are not. This is the primary basis, as I understand it, upon which the medical profession considers it unlikely that low level falls cause fresh subdural and retinal haemorrhaging. Moreover, as Mr Richards identifies, the scanning of children following relatively minor trauma supports the opposite view, i.e. that such is unlikely to cause retinal or subdural bleeding. Mr Richards develops his analysis thus:

“On the basis of the appearances of the subdural haemorrhage, the acute traumatic effusion and, although I would defer to an ophthalmologist, the retinal haemorrhages, I do not from a neurosurgical perspective think it is possible to determine which is the correct answer. Infants cannot be experimented on in laboratories to determine what forces are required to cause subdural haemorrhaging, acute traumatic effusion and retinal haemorrhaging. Studies where infants are routinely scanned even if there is no clinical indication to do so have not been carried out. It is therefore possible that acute subdural haemorrhage and retinal haemorrhaging following very minor trauma is more common than we think. Nobody knows. On the basis of those children who are scanned following relatively minor trauma it is thought unlikely to cause fresh subdural bleeding, acute traumatic effusion and retinal haemorrhages. However, we do not know this with scientific certainty.

2.8 There has been some publications from Japan where children who are alleged to have fallen backwards from Japanese floor-based changing mats have suffered significant head injury with severe brain disturbance, seizures, subdural haemorrhages and retinal haemorrhages being identified (Aoki 1984). Many outside of Japan consider these publications as indicative of a cultural resistance to accepting the concept of non-accidental inflicted injury and that the cases described as occurring as a result of low level falls were, in fact, missed cases of non-accidental injury. However, the Japanese authors maintain their position that the significant injuries were caused by low level falls. Similar publications have not been generated outside of Japan.”

  • It is my understanding that the Aoki (1984) research is regarded by mainstream medical practitioners as deficient in its technique, methodology and professional objectivity. I can think of no case in the last 20 years (in the UK) where this research has been relied on. Mr Richards articulates the central criticism made of the research as a cultural resistance, in Japan, to the very concept of non accidental injury. He does not, however, directly associate himself with those criticisms. Indeed he asserts that the Japanese authors maintain their position. I am surprised that this paragraph has been included within the report neither can I understand what it is intended to establish by scientific reasoning.

 

I haven’t seen the Aoki research cited in any shaking injury or head injury case either, so it was new to me.  It didn’t go down very well.

 

Whilst there is undoubtedly a place to stimulate dialectical argument on these challenging issues, it is not in an expert report, in proceedings where the welfare of children is the paramount consideration. Whilst the Court must review the differential diagnostic process in order to reach its own conclusion i.e. ‘diagnosis by exclusion’ based on ‘the complete clinical scenario and all the evidence’ (see Dr. Newman, para 14 above) and though it is important to recognise the inevitable ‘unknowns’ in professional understanding, these important points are weakened, not reinforced, by elliptical references to controversial research. In addition, there is a danger that social work professionals and others might misinterpret the information in such a way as to grant it greater significance than it can support. Ms. Heaton QC, on behalf of the mother, distances herself from this paragraph entirely and places no reliance on it. She is right to do so.

 

 

Though the Judge made the findings of fact against mother, he declined to make final orders in this case, allowing instead a window of opportunity for work to be done with the parents and specifically for mother to have the chance to reflect and potentially make admissions that would reduce the risks to a manageable level. I think that’s the right approach – I worry about the rigidity of 26 week limits being applied in these cases, just as I worry about Judges rigidly following Ryder LJ’s Court of Appeal line about not having fact finding hearings separately to final decision in all but the most serious of injuries. A reflective space can make a significant difference for families in such cases.