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High octane conflict and Gordian knots

Posted on October 29, 2021 by suesspiciousminds

This is a judgment from care proceedings, but it may also be of interest to Court of Protection practitioners. It does not reach binding precedent, or even guidance, but it does set out how in a particular case a different approach paid dividends.

http://www.bailii.org/ew/cases/EWHC/Fam/2021/2844.html

W (A Child), Re [2021] EWHC 2844 (Fam) (25 October 2021)

The Judge is Mr Justice Hayden, who is always worth reading.

It relates to a child who was very ill

W has serious disabilities arising from a genetic defect. He requires the use of a wheelchair at all times. He has several diagnoses which include epilepsy and a condition known as Aerophagia, a swallowing disorder. W has been known to self-harm and occasionally to hold his breath to the point where he loses consciousness. This raft of disabilities necessitates W having one to one care at all times during the day and two to one care for moving and handling. P’s breath holding sometimes causes hypoxic episodes. He also has a Mic-key button device (gastrostomy feeding tube) to his abdomen.

And over a period of time there had been conflict between the parents and the medical professionals over W’s treatment.

  1. A private care group were responsible for delivering professional care to W. However, they encountered a great deal of resistance and what they perceived to be combative interference with their staff, by W’s parents. In particular, it was said of them:
  2. On 4th March 2021, the agency indicated that they would no longer be prepared to offer a service to W, due to the magnitude of these identified difficulties. This decision was triggered by an incident the day before when W had experienced a hypoxic episode. W’s parents are said to have refused to allow the care staff on duty to call for an ambulance immediately which had the consequence of placing him at risk as his saturation levels fell below the key threshold. W’s mother, M considered the readings normal for W. When the ambulance service attended, they found W to be well. There was a planned admission for W to Alder Hey Children’s Hospital to investigate the hypoxic episodes. The parents were said to have been distrustful of the care staff who felt “undermined and belittled”. The parents’ behaviour at Alder Hey was also said to be “highly concerning” although they were described as “appropriate and respectful on the ward”.
  3. The parents were, in my assessment, genuinely shocked when the care agency withdrew. They considered that they had an excellent working relationship. M acknowledged that she had been very emotive, but she emphasised her concern and passion. She also recognised that she was a prolific emailer. When W was born, he was given a limited life expectancy which he has already vastly exceeded. M believes that her advocacy of W’s interests and rights has played a large part in W thriving to the extent he has. I have no doubt that, at least to a very significant extent, she is correct.
  4. It is a sad fact that the Family Court, from time to time, encounters parents of profoundly sick children or children with disabilities who become drawn into high octane conflict with the raft of professionals who seek to support their child’s care. Many judges, over the years, have speculated why this scenario arises with such regularity. Sometimes, it may be a displacement of loss and accompanying anger which lands upon the medical and other professionals in the absence of any other target. Often, it may reflect a parent’s sense of powerlessness

In this case, an expert Dr Hellin, a psychologist who is about to get extremely busy, was instructed to assist the Court.

  1. Dr Hellin was clear that the court would not be best assisted by evaluating the issues in terms of the parent’s perceived failures or any mental health difficulties. It requires a recognition by the professionals that these are ordinary parents dealing with extraordinary circumstances. Dr Hellin considered that the entire aetiology of these challenging circumstances is better understood within “a different paradigm” and should be considered from “a systemic or organisational perspective”.
  2. Ms Cavanagh QC and Ms O’Neil, on behalf of F, submit that this assessment has unlocked this case. It is rare for one assessment to change the landscape so comprehensively, but I entirely agree with their submission. Dr Hellin’s conclusions have been conveniently summarised thus:

“There are certain features of the system around [W] which make it more, rather than less, likely that problems will arise in it. First, it is a very complicated system.
Second, the stakes are very high. Ultimately, this is about keeping a child alive and ensuring his best possible quality of life.
Third, commissioners face what many would consider to be impossible decisions about resource allocation.
Fourth, care work is intrinsically stressful, and the pressures on health professionals and care staff have been vastly increased by the Covid-19 pandemic.
These factors all affect the emotional climate of the system around [W] and the relationships between those components of the system.
The system around [W] has become sensitised and inflamed. Feelings have run high and perspectives have become polarised and entrenched.
[M] and [F], individual professional staff and their organisations have become stuck in polarised beliefs about each other.
It has become difficult for the parents and for professionals to respond moderately in ways that sooth rather than exacerbate the dynamic tensions between the different parts of the system.
I hope it will be apparent that this analysis does not apportion blame.
The family, commissioners and health and social care providers are all affected by the dynamic context in which they are trying to do their best.
Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory.
The intervention would assist all agencies and the parents to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system. (my emphasis)
I recommend that an organisational or a systemic supervisor/consultant is employed to work with the system and facilitate systemic meetings within which the aims set out in the paragraph above would be addressed.
The involvement of the Court has radically shifted the dynamics of this system.
The involvement of their legal representatives and of the Court, a neutral authority, has diluted the emotional intensity of the polarised “them and us” dynamic which previously existed between the parents and the health/care providers.”

  1. Already it is clear to me, before any work is undertaken, that this exposition of the dynamic has helped both the care workers and the parents better to understand the challenges that each face. The Court is all too acutely aware of the colossal pressure placed on limited resources. This is a day to day reality for the medical and caring professions. It has endured for many years but has been cast into stark relief by the pandemic. Dr Hellin considers this backdrop serves further to inflame the environment around W. Perspectives had become polarised and difficult to placate. Dr Hellin’s proposals are predicated on promoting mutual understanding and diminishing mutual blame. At risk of repetition, I emphasise that even though work has not yet started, the manifest sense of the approach is compelling and has already diluted the emotional intensity and significantly bridged the polarity that has impeded progress in this case for many months and which has undoubtedly been inimical to W’s care.

As I said at the outset, this case doesn’t purport to tell other Courts that this is the approach to be adopted or that a one-size-fits-all approach would be right – it is dealing with the particular circumstances of this individual case, but it is certainly an approach that is interesting and may be worth people thinking about.


  1. It is important to emphasise that the provision “not being what it would be reasonable to expect a parent to give” is not to be regarded as an abstract or hypothetical test but must be evaluated by reference to the circumstances the parent is confronting i.e. what would it be reasonable to expect of a parent in these particular circumstances, recognising that in a challenging situation many of us may behave in a way which might not objectively be viewed as reasonable. The test is not to be construed in a vacuum nor applied judgementally by reference to some gold standard of parenting which few (if any) could achieve. On the contrary, it contemplates a range of behaviour, incorporating inevitable human frailty. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child.
  2. I would add that a similar dynamic and frequently for the same reasons identified here, arises in the Court of Protection when dealing with incapacitated adults. This is a particularly common situation in the context of young adults in their late teenage years and early twenties, but by no means confined to it.

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Turns to dust – vaccinations and confusion

Posted on February 10, 2020 by suesspiciousminds

This is YET another judgment in the Cestui Cue Vie litigation, this time about vaccinations.  And it has made my head hurt.

http://www.bailii.org/ew/cases/EWHC/Fam/2020/220.html

 

T (A child), Re [2020] EWHC 220 (Fam) (07 February 2020)    

 

The previous law on vaccinations of children who are in care, where parents object, is  “Don’t do it under section 33 of the Children Act 1989, make an application and let the Court decide”

 

[Section 33 basically allows a Local Authority who hold an Interim Care Order or Care Order, to take actions that they think are necessary to safeguard or promote the welfare of the child. In effect a veto/overule to parental objection]

MacDonald J in Re SL (Permission to vaccinate) [2017] EWHC 125 (Fam):

 

 

“33. In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order

 

 

Vaccination is a hot-button topic, though not QUITE as much as it is in America, but still something that some people hold very strong views on, particularly the MMR vaccine and the theory (well and truly debunked) that it causes autism or can cause autism.  Still, it is something that parents often feel very strongly about.

 

In this case, the LA made such an application

Hayden J says

 

I have no doubt at all that if the Local Authority had signalled its intention to have T vaccinated under the authority of s.33(3) CA, this would have led to an immediate application on behalf of the parents to invoke the inherent jurisdiction. Nonetheless, I, for my part, can see no reason why what are ultimately routine vaccinations should not fall within the scope of the interventions contemplated by s.33(3) CA. Indeed it strikes me as disproportionate to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination

and

I consider that this question of immunisation properly falls within the Local Authority’s remit, as prescribed by s.33(3) CA.

 

He considers the application anyway, because he identifies that if the LA had proposed to authorise vaccinations under s33, the parents would have made an application to block it under the inherent jurisdiction.

 

Why has this made my head hurt? Well, because we now have two High Court Judges, one who says ‘Oh, you HAVE to apply to Court, you can’t do it under s33’ and the second who says ‘you shouldn’t be bothering the Court with this, do it under s33’

 

So, if a parent in a case says  “I don’t want my child to have the MMR” and the child is subject to an ICO or a Care Order, what do you do?

 

I’m very grateful to Chris Barnes and David Burrows for helping me get this straight.  As best as I can tell, Hayden J’s decision that you should do it under s33 and NOT make an application binds Justices, District Judges, Circuit Judges. Court of Appeal or Supreme Court could overturn it.   And a High Court Judge should stick with Hayden J’s decision unless persuaded that a key binding or persuasive authority that should have been shown to Hayden J wasn’t.

If I had to guess at what would happen if the issue comes up before MacDonald J again, I imagine that he would agree that he is bound by Hayden J but without a deal of enthusiasm. I’d try to avoid it if possible.

(It is a bit like Referees and the FA Disciplinary Panel – if the Referee sees the scything tackle and gives a yellow card, the video panel can’t give a ban, but if the ref says he didn’t see it then the video panel can ban the naughty player.  Here, because Hayden J was taken to all of the relevant authorities, everyone else OUGHT to follow his decision. This arises from Colchester Estates v Carlton Industries 1984)

 

Where a decision at first instance has itself been considered by a second judge at first instance, I do not regard myself as free to depart from the second decision (unless persuaded that some binding or persuasive authority has been overlooked): Colchester Estates v Carlton Industries [1984] 2 All ER 601. 

 

From Futter v Futter and Others 2010   paragraph 3 https://www.bailii.org/ew/cases/EWHC/Ch/2010/449.html

 

So, the state of play is, vaccines are now authorised under s33, and the Court will only get involved if the parent makes an application under the inherent jurisdiction to prevent it.

 

Moving away from the big picture, I always find that a Hayden J judgment contains at least one masterful piece of prose, and this doesn’t disappoint.  Poor counsel for mum is faced with making an anti-vaxx argument based on research that has clearly not quite stood up to rigorous scrutiny.

  1. In his position statement, Mr Bailey, on behalf of M, particularises her views, in relation to her other children, in order to establish what he terms to be “the potential impact on T“:
      1. “(i) X (22) was in pain for many years after receiving the Gardasil vaccination (HPV), and also led to her being hospitalised for a week. No diagnosis was ever made and still suffers pain today. She was also given 5 doses due to a nurse telling us it was perfectly fine to have extra doses. The recommended dose is 3.

(ii) After receiving vaccinations Y’s (11) development was delayed which has led to him having to receive growth hormone replacement. It was ruled out that his condition was genetic and to this day it remains a mystery as to why this has happened.

(iii) U (18), F’s son, was in good health growing up but now has a condition called Russell-Silver syndrome (SRS-a congenital condition). This was diagnosed when he was 8 years old;

(iv) V (16), F’s son, began fitting a week after having the first set of MMR vaccinations. He was subsequently diagnosed with West syndrome (severe epilepsy). V’s IRO has informed the parents that V no longer has this condition and no other diagnoses have been made. Currently, V is in a wheelchair, cannot walk, talk, or do anything for himself. He wears nappies 24/7 and self-harms by punching and biting himself. He is said to have a developmental age of a 6 month-old baby.

(v) Research (undisclosed for the purposes of this Position Statement) indicates that a. some vaccinations contain aborted human foetus matter and b. some vaccines contain other ingredients that the mother objects to.

(vi) If T is to have vaccinations then the mother would want these to be given separately as research (undisclosed for the purpose of this Position Statement) shows that multiple vaccines at the same time shock the system and some children go on to develop autism and other conditions. The mother believes that it is safer for T to be given vaccinations separately.

(vii) T is now 10 months old and is in very good health. Apart from a few colds (in foster care) he has not had any childhood illnesses in spite of not being vaccinated and has a strong immune system. Research (undisclosed for the purposes of this Position Statement) shows that babies and children who have a good healthy balanced diet with the correct nutrition build a healthy immune system and do not need to be injected with viruses and heavy metals.

(viii) The Local Authority once informed M than T had contracted measles, but to date this has never been confirmed. If this was in fact the case then M will say that this shows that T’s immune system naturally fought of the virus and his immune system is strong.”

  1. Very properly, Mr Bailey highlights, at (v) and (vi) above, that the research said to support these submissions is “undisclosed for the purposes of this position statement.” By this, Mr Bailey was signalling, I think, that he had not seen any such research. In any event, he did not produce any during the course of his oral submissions. Though attractively presented, the submissions are both tenuous and tendentious. They were supported by F, who read from a document which purported to say that some of the vaccinations contained “MRC-5, the genetic code of a human male.” I pressed F on this, as to what it actually meant, and, in particular, I asked him whether this was the point raised on behalf of M to the effect that some vaccinations contained “aborted human foetus.” He agreed that it was.

 

 

The representations continued, with mother’s counsel arguing that the LA had just taken a pro-vaccination stance generally, and had not applied thought to whether it was necessary in the case of this individual child

 

  1. Mr Bailey argued that the Local Authority had advanced its application by supporting the principle of immunisation generally. That approach would be misconceived. It was deprecated in Re SL (supra); in Re C and F (supra); and in LCC v A and Ors (Minors By Their Children’s Guardian) [2011] EWHC 4033 (Fam). Mr Bailey queried whether Dr Douglas had seen T’s medical records. Whilst the inference of his report was that he had seen the records, it was certainly not explicit. This led Mr Bailey to submit that Dr Douglas and, by implication, the Local Authority itself had not approached the issue with the necessary “individuation.” By this he meant that the merits and demerits of vaccination had been considered theoretically rather than with specific focus on this child.
  3. With respect to Mr Bailey, this point turns to dust in the face of the adoption medical report, which reveals Dr Douglas, in my judgement, to have a detailed and empathetic understanding of his patient. The report highlights:
      1. “2. Growth and development. T was born with moderately low birth weight (between 2 and 2.5kg) which is probably due to maternal smoking in early pregnancy. Low birth weight can be associated with poor growth and delayed development although he has shown good catch-up growth since birth and his development is within normal limits at present. However, his growth and development need ongoing monitoring and recognition of any problems such as decreased growth velocity, motor delay or speech and language delay should prompt early referral for assessment

 

 

I’m sure that there have been many occasions when I have been striving to make what I hoped was a good point, or at least a point, and the Judge could have retorted that my point has turned to dust.  (I can think of a hearing I did last year where Mr Braithwaite of counsel helpfully pointed out that I’d got something wrapped entirely round my neck, but in his usual charming way).  I hope that I never have to hear that being said in a judgment.

 

Is this the end of the Cestui Cue Vie case? Surely not.

 

 

 

 

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Say you will , say you won’t, say you’ll do what I don’t, Cestui Cue Vie

Posted on January 27, 2020 by suesspiciousminds

This case follows on from

https://suesspiciousminds.com/2019/06/21/all-at-sea-2/

in which it emerged that according to a legal argument, all of us are declared legally dead after the age of 7 and thus laws no longer apply to us. Citing the Cestui Cue Vie Act of 1666. [Hint, we are not]

That was a hearing as to whether the father should register the name of his child, this is the final hearing of the care proceedings.

http://www.bailii.org/ew/cases/EWFC/HCJ/2020/4.html

T (A child), Re [2020] EWFC 4 (23 January 2020)

The bit that is useful to family law practitioners and Judges who are dealing with the whole category of ‘I say the Children Act doesn’t apply to me because of X’ arguments is this:-

1. I am concerned here with T, a male child born in the Spring of 2019. The mother (M) is represented by Counsel and solicitor. The father (F) has elected at this final hearing, as he has done throughout the proceedings, to act as a litigant in person. This decision is driven by his fundamental belief that neither the Court nor the State, through the arm of the Local Authority, has any jurisdiction to take decisions in relation to his children. He invests great belief in the scope and ambit of The Cestui Cue Vie Act 1666. I have addressed this in an earlier judgment [2019] EWHC 1572 (Fam). However, when F came into the witness box to give evidence, he requested that he take his oath based on an embossed document, which he had prepared, emphasising his “decree of divine sovereignty”. I permitted him to do so, for entirely pragmatic reasons. He has requested that I determine as a preliminary issue whether he, as a “Sovereign being” can be required to answer questions in these proceedings and, if not, he seeks an immediate order for the return of all his children.

2.Whilst I recognise that F’s beliefs are strongly held and, I believe, genuinely so, I have little hesitation in concluding that he is required to engage as fully as possible in these proceedings, brought by this Local Authority to protect T from what they contend is ‘significant harm’, as contemplated by Section 31 (2) Children Act 1989 (‘the Act’). Parliament has enacted the legal framework by which vulnerable children are protected and provided scope for parental rights and responsibilities to be evaluated in the application of the criteria within Sec 1 (2) of the Act, ‘the welfare check list’. In that process it is in the parent’s interest to give evidence and to advance their case. Inferences may be drawn from any failure to do so. It requires to be stated that this is also and manifestly in the best interests of the child subject to the proceedings

Thank you very much Hayden J. Despite these cases being more and more frequent, there is a lack of reported caselaw saying ‘no, this is wrong’ (you really have to go back to when Wall LJ was the President, and paras 24 and 37 of Doncaster MBC and Watson 2011 http://www.bailii.org/ew/cases/EWHC/Fam/2011/B15.html  for anything useful in Freeman of the Land type cases)

There seem to have been all sorts of shenanigans in this case, including the father having (by way of a trap) removing crucial documents from the Court bundle to prove a point as to how easy it was, him interrupting counsel’s cross-examination, mounting personal attacks on counsel for the LA (for which he later apologised), faking a claim that a previous Judge had not seen relevant documents because the LA were suppressing them – when it was proved that the Judge had indeed seen them.

This is the paragraph that stood out to me from the body of the judgment, however.

56.Earlier this year F pleaded guilty to an offence of outraging public decency. He received a conditional discharge. This incident involved his receiving oral sex from a prostitute in his car in the Bethnal Green area. Initially, F gave some rather ludicrous explanation suggesting that the police officer had mistaken the sexual act for discovering F “urinating into a bottle”. I note that M stood by F’s explanation. However, when I indicated a degree of scepticism at a Directions Hearing, F amended the account. In many ways I have to say that I consider the altered explanation to be equally odd. F says that he encountered the woman in Bethnal Green entirely by chance. She had recently been “beaten up” and her bruises were evident. She had cuts to her face to which she had applied a plaster. As I understand it, blood was still visible. F told me that he felt sorry for her. He explained that he had oral sex with her because he had a long-standing difficulty with erection dysfunction and he wanted to “experiment” with another woman to see if the difficulty was localised to his partner or a more general problem

 

Perhaps it is better to make no comment in relation to this.

 

 

The Judge observed that a lot of leeway had been given to the father, who was in person, and that the Judge had perhaps allowed the father’s tone in cross-examination of the Guardian to go too far. It is a reminder how easy it can become for a powerful personality to dominate the court room and how easily the norms are shifted.

 

46… Most strikingly, the conduct of F towards the professionals is, as they have described in evidence and I have witnessed in this court room, both contemptible and iniquitous. The impact on HHJ Atkinson of the campaign of harassment against her was, as I have read, alarming.

47.So too, in my assessment, has been the impact on Mr Hill, the Director of the unit. F’s modus operandi is to “research” material that might be available, either by way of general gossip or on the internet and to deploy it, when an occasion arises, against those who have crossed him. Given F’s perspective on the world, which perceives a hostile and corrupt state, it is inevitable that this is potentially a wide group.

48.In his cross examination of Mr Hill, which I address further below, F made references to his wife, his culture, his daughter. In evidence, he took Mr Hill, in detail, through the negatives of the Ofsted report, overlooking the fact that the overall assessment was a positive one. He was critical, directly and inferentially, of the building and the staff. I also note, in passing, that F was somewhat disdainful of the other residents. The manner of F’s questioning can best be described as bombastic and, on occasions, bullying.

49.With great respect to Mr Hill, who had held this post for eighteen years, it struck me that F had eroded something of his professional self-confidence. Later, when F came to give evidence himself, I asked him if he recognised that he had this impact on Mr Hill. He told me that he did recognise it. He also acknowledged that he appreciated the real distress he had caused to Judge Atkinson. In addition, towards the end of the case, F proffered an apology to Mr Barnes to whom he has been extremely discourteous and, on occasions, belittling. In what it will be seen is something of a pattern, F speculated adversely about Mr Barnes’s personal and family life. Mr Barnes, like Mr Hill, bore the onslaught with dignity and professionalism. It is necessary to state that this behaviour has taken place in front of me in a court room. I had a strong sense of F endeavouring to rein himself in. I infer that in different circumstances he would have unleashed his invective more freely. I record that F expressed some remorse for his behaviour to Mr Barnes, which I consider, on balance had, at the time it was given, some sincerity to it. What F lacked, however, was any even tentative understanding of why he behaved in such a way.

50.Tellingly, F’s cross examination of the last witness, the Guardian, was, particularly and especially towards its later stages, offensive. Even allowing for the fact that she is the professional representing F’s child and recommending an adoptive placement and might therefore expect a degree of robust questioning from a father acting in person, F’s treatment of her was overbearing, oppressive and bullying. The Guardian should not have had to endure such an onslaught. I was, on reflection, rather too slow in closing down F’s behaviour towards her. This was, I think, a reflection of the distorted dynamic that F creates.

51.It is also important to record that M rarely seeks to rein F in. Indeed, she is often voluble and highly critical of the professionals in her own right. This said, as F himself stated, the couple’s behaviour in this court has been greatly moderated from the behaviour exhibited before HHJ Atkinson. In that court F told me that M, at times, charged around shouting and upturning chairs.

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a Hayden to nothing – or “has a Judge just decided that a man has a right to sex with his wife?”

Posted on April 3, 2019 by suesspiciousminds

 

There isn’t a judgment on this, because it is a case that has not yet been decided, but given that it was the number one article on most viewed on the Guardian this morning (and it is still top ten) and my twitter stream is full of very outraged people  (some of whom know why they are outraged and are right, and some don’t know why and are outraged for the wrong reasons), I thought I’d write about it.

https://www.theguardian.com/law/2019/apr/03/english-judge-says-man-having-sex-with-wife-is-fundamental-human-right

 

It involves a Court of Protection case in which a woman with learning difficulties is facing a deterioration in her ability to make decisions, and may have reached the stage where she can no longer consent to sex  (The legal test for an adult to consent to sex is whether they understand, or are capable of understanding, three things. 1. The mechanical process. 2. the risk of pregnancy and how to avoid that. 3 the risk of STDs and how to avoid that.  So it is a low bar, and if someone is as an adult a person who used to be able to consent and now there are doubts, that must be a horrendous situation for her and everyone who cares about her. Note that the Court have not YET decided whether she lacks capacity, from the Press report)

 

The husband said that he would agree not to have sex with his wife whilst all of this was looked at, and was willing to give an undertaking to the Court (a promise that he could be sent to prison for if he breached it). Social workers wanted there to be an order instead.

 

The Judge, with a Press Association journalist present, was considering the case. Mr Justice Hayden said “I cannot think of any more obviously fundamental human right than of a man to have sex with his wife – and the right of the State to monitor that. I think he is entitled to have it properly argued.”

 

Now, I personally would have said something like “It is important that a Judge, before allowing the State to control and monitor what goes on in the bedroom between two adults in a relationship, should carefully consider the evidence and hear proper argument about that”

And that wouldn’t, it seem to me to be controversial.

 

So, if you are annoyed because

 

A) A Judge has ruled that the old setting of ‘there’s no rape in marriage, men are entitled to sex from their wives regardless of the wife’s feelings’ has come back

 

then you can stop being annoyed about that, because that hasn’t happened. And also couldn’t happen, because the decision to overturn that barbaric proposition was in an Act of Parliament and the Courts have no power to overturn Acts of Parliament.

 

If, however, you are annoyed because

 

B) Language has power, words have power, ideas have power, and the old law that allowed wives to be raped under the guise that they were property of men and men were entitled to complete autonomy over their body is such a barbaric and not that old view that it is necessary to be very mindful of the sensibilities of language when thinking about any wording that implies that a man has rights over a woman’s body EVEN WHEN YOU DON’T MEAN THAT

 

then you are fully entitled to be annoyed about that, and it is a subject well worthy of debate.

 

I think the Judge could have expressed his thoughts much more clearly, and been alive to the landmine of ‘conjugal rights’ and women as chattels that was in his path, and been very very clear that he was talking about the rights of both men and women to have respect for their private life from the State and the State should only interfere where it is necessary and proportionate to safeguard others.

I fully accept that my view of his words has to be coloured by the fact that I am a man and not a woman and so I need to check my privilege – I’m sure that I would have a different perspective to bring to this issue if I were female. You might well end up thinking that there’s not a chasm of difference between A and B, and that to say B you must have thoughts in your mind that A is not that bad. I don’t know that I’d go that far, but I accept that others might.

 

I hope there’s going to be some judicial clarification published. My twitter feed is awash with people thinking A) or if not A) that this is a Judge who wishes he could do A) and is probably going to let some awful rapist off.

 

It is worth remembering that in all of this, there is a man and a woman, who are already going through a dreadful ordeal that you wouldn’t wish on anyone, and the Press coverage is probably making that even worse. If you are that man and you wanted to talk to a friend or colleague about what is happening to you, you probably can’t do that today.

 

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Committal to prison – making false accusations

Posted on July 20, 2017 by suesspiciousminds

Gibbs v Gibbs 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1700.html

This was an application by the father of a child (who by 2017 had turned 18) to commit the mother to prison for breaching court orders, notably about publishing allegations that mother had made within the private law proceedings but had never been found to be proven.

The private law proceedings have a dreadful history, set out by Hayden J, going back to 2001 and only ending in 2004.

A Consent Order was placed before the Court which was scrutinised by the Judge in a short judgment which has been transcribed and filed in this application. The preface to the order records that it was acknowledged specifically by the mother ‘that she was afforded the opportunity to pursue the allegations but did not seek to do so’. Secondly, it was recorded that the mother:

“accepts that by not raising any allegations of emotional, physical or sexual abuse against Mr Gibbs the contact between [B] and her father should proceed on the basis that all the allegations are unfounded”

6.Thirdly, the Order recorded that the mother ‘should not seek to raise any allegations of emotional, physical or sexual abuse against the Reverend Gibbs in any other forum with any other person or body and specifically including Mr Gibb’s employers’, the Methodist Church. Finally, it was expressly acknowledged that ‘contact between the younger child B and her father should proceed on the basis of the concessions made by the mother that day’.

7.Though the case had in effect settled, by the agreement of the parties, Mr Justice Munby nonetheless delivered a short judgment. Aspects of that judgment require to be highlighted:

“The advice which mother has received and the decision which the mother has taken seem to me to be entirely appropriate in the circumstances. These matters must now once and for all finally be laid to rest. That, as I understand it, is the basis on which I am being invited to approve this order. I am sure that I do not have to say this, but it is important for the parties to appreciate that this is intended to be a final order which maps out into the foreseeable future the pattern of father’s contact with B and, equally importantly, B’s contact with her father.”
8.Later the Judge recorded that both the mother and father:

“have taken a brave decision, and a decision which in many respects and for different reasons must have been difficult for each of them, [they] are to be congratulated and thanked for agreeing to this order. I hope that each of them will join with me in thanking the lawyers collectively, and indeed the other professionals involved, whose input and assistance I have little doubt has done much to bring this about. ”
9.There was therefore no doubt that the mother had received clear advice, that it was identifiably, on the available evidence, correct, and that the understanding of the parties as to the significance of the order was investigated and established to the satisfaction of the Judge.

At the end of the proceedings in 2004, Ryder J (as he then was) made a Prohibited Steps Order that prevented the mother publishing her allegations about the father (she having had ample opportunity to present those allegations before the Court and seek findings and having always declined to do so – almost certainly because they had no substance or merit and were utterly incapable of being proved) and attached a penal notice to them.

It appears that in 2017, the mother realised that the Prohibited Steps Order and penal notice were no longer in force, as the child was now 18, and thus sent out thousands of emails making allegations about the father.

17.From early in 2017 and perhaps for a little time before that, the mother had begun to step up her campaign of vilification against the father. She issued a raft of emails to thousands of individuals all of which either accused the father directly of physical, sexual and emotional abuse or inferred in the most unsubtle of ways that he was an abuser. The father had undoubtedly become used to his character being traduced by the mother in this way but this bombardment against his reputation was, as the mother herself frankly acknowledges, beyond anything that she had undertaken before. She had, she told me, visited her lawyer ‘some time in approximately 2014’. She discovered that the prohibited steps order made in the Children Act proceedings was not life long, as she had understood it to be but in fact expired when B turned 18 years of age. This in part explains, in my view, the liberation she felt in being able to pursue her campaign more vigorously.

18.In contemporary society it is difficult to think of any allegation against a man or a woman which attracts greater public opprobrium than one of sexual abuse against a child. Where these allegations are proved that public censure is entirely understandable. Here allegations are not proved. The responsibility of mature adults is to take such complaints seriously, but to avoid rushing prematurely to judgement. The Reverend Gibbs believes that, faced with the onslaught of his ex wife’s allegations, his Church, his friends and his colleagues have done precisely that, moved ultimately to judgement against him. They have, he believes, succumbed to the openly malevolent objectives of his ex wife to discredit him publicly and to attack his position in the Church.

19.Mrs Gibbs does not deny any of this. She accepts that she sent the emails, she asserts, unequivocally that she does not think her husband should be part of the Church. She believes that there has been ‘perjury’ and ‘sexual abuse’ and she believe it is her bounden duty to expose that, notwithstanding the history of the litigation that I have taken time to set out.

20.Like DJ Hayes, now 16 years ago, I have no doubt that the mother has come to believe that what she asserts is true. Again, it requires to be said: neither of the party’s children, both well into adulthood, has ever made a complaint to the police or been subject to investigative ABE interview; neither has appeared before, or presented written evidence to a Court alleging abuse. There is no extraneous medical evidence pointing to abuse. Mrs Gibbs, when represented, as I have said, by experienced counsel before a judge of this division, readily accepted that the evidence before the court could not, even on the civil standard of proof, establish a finding. At risk of repeating myself: there has been no finding of sexual abuse; no finding of perjury against the father; no evidence produced either in 2003 or in the years that followed that would be likely to establish such findings.

The father made an application to the Family Court, both for permission for he himself to be able to produce material from the family Court proceedings to show that there had been no suspicion or findings that he had abused his children, and also to obtain an order to make the mother stop doing this.

Up to that point, the mother had cleverly exploited a loophole and could not be punished for her behaviour. But once the order was made, she had to then comply with it because the loophole had been closed. This is where mother made a dreadful error, because within 24 hours of Roberts J making an order to stop mother’s behaviour

On 19th June Mrs Gibbs appeared (in person) before Roberts J in response to the father’s application for permission to disclose material from the Children Act Proceeding into the public domain and to prohibit the mother from further defamatory publication. Paragraphs 10 and 11 of the Orders made that day, which were reinforced by penal notices, state:


10: Until further order, the Respondent must not disclose, disseminate, or publish any information about these proceedings concerning the Applicant, or any proceedings in the Family Court that have involved the parties, and any allegations made within the context of proceedings in the Family Court, whether by print, electronic form, or on the world wide web and should not instruct, encourage or in any way suggest that another person should do so.

11: Until further order, the Respondent shall not copy any third party into her correspondence with the Applicant’s solicitor, save her own legal advisor.

She had breached that order

22.These provisions make it clear that the respondent (mother) must not disclose or publish any information generated from any Family Court proceedings. The objective of the order was to disable Mrs Gibbs from further denigrating the father’s reputation. She is unapologetic about what happened thereafter. Within 24 hours of Roberts J’s order Mrs Gibbs was barraging rafts of individuals with her unsubstantiated allegations. There were, by 6.45am on 20th June, a hundred further recipients to her allegations. The schedule below sets out the breaches of the order, each of which is admitted by Mrs Gibbs.

In respect of paragraph 10

i) Email at 06:45 on 20.06.17 to circa 100 recipients (at C309-C310);

ii) Email at 07:08 on 20.06.17 to Rev Horton and copied to circa 100 others (at C311);

iii) Email at 20:11 on 20.06.17 to Mrs Poxon and copied to circa 100 others (at C332-C333);

iv) Email at 20:16 on 20.06.17 to President of Methodist Conference and copied to circa 100 others (at C334-C335);

v) Email at 06:56 on 21.06.17 to Prof Jay and copied to circa 100 others (at C324-C325);

vi) Email at 07:05 on 21.06.17 to George Freeman MP and copied to circa 100 others (at C326-C327);

vii) Email at 22:58 on 21.06.17 to President of the Methodist Conference and copied to circa 100 others (at C336-C337);

viii) Email at 08:43 on 22.06.17 to circa 100 recipients (at C338-C339);

ix) Email at 02:39 on 23.06.17to circa 100 recipients (at C340-C341);

x) Email at 03:00 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C342-C344);

xi) Email at 06:47 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C344-C345);

xii) Email at 11.23 on 24.06.17 to Rev Horton and copied to 100 others (at C346-C347);

xiii) Email at 16:45 on 24.06.17 to Mrs Poxon and copied to 100 others (at C348-C349);

xiv) Email at 05:57 PM on 24:06.17 to circa 100 recipients (at C329-C330);

xv) Email at 17:36 on 25.06.17 to circa 100 recipients (C355-C356);

xvi) Email at 17:43 on 25.06.17 to Mrs Poxon and circulated to circa 100 others (C357-C358);

xvii) Email at 18:42 on 25.06.17 to circa 100 recipients (C359-C360);

xviii) Email at 06:14 on 26.06.17 to circa 100 recipients (C352-C354).

In respect of paragraph 11

xix) Email at 20:00 on 20.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C321);

xx) Email at 06:41 on 21.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C322-C323);

xxi) Email at 07:36 on 22.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C328);

xxii) Email at 17:57 on 25.06.17 to Applicant’s solicitor and copied to 105 others (at C350-C351).

That put her at risk of a custodial sentence. Hayden J told her that she was entitled to free legal representation, and she declined it. He told her that he did not want to send her to prison and that an alternative would be for her to genuinely promise not to do this in the future and stick to it, she refused.

23.Mrs Gibbs appears before me today unrepresented. I have advised her at least twice that I have it within my power to order that criminal legal aid be provided so that she can be represented by counsel. She does not, she tells me, wish to be represented by counsel. She only wants to explain to me that it is her duty to stand up to what she perceives to be perjury. She has looked at the core material with me, she has been sent the bundle of documentation in advance, though she has not brought it with her to court. She tells me, she hardly needs it for she ‘has lived it’ and most of the documents relate to material drafted and sent by her.

24.This is an application to commit her to prison for breach of those orders. The breaches are not contested. Instinctively, the last thing I would want to do would be to send Mrs Gibbs to prison. I advised her of the options available to this court, one of which was to suspend a sentence of imprisonment on her undertaking that she would comply with Roberts J’s order. She declined to do so unless, as she put it, and I repeat verbatim, “This court could give assurance that it can require a judicial review of the background facts of the case.”

25.This case has been exhaustively litigated. Three senior judges have reviewed the scope of the protective framework, and Mrs Gibbs has flagrantly undermined or actively disobeyed Court Orders. She tells me that she has come to Court expecting to go to prison and is ‘happy, proud, and completely at peace to be in contempt of court’. In an email directed to the President of the Family Division she states ‘short of killing me or having me killed, you will not silence me…’

Even after sentencing her to prison for 9 months, Hayden J explained to her that she could apply to purge her contempt (i.e say sorry, promise not to do it again and go free) and she declined
this. Hayden J says “I do not find it necessary to repeat her defiant response”


[I know that I’m going to get comments about ‘gagging’ and ‘free speech’ and that she was sent to prison for speaking ‘the truth’ and for trying to protect her children. I would have no love for father if he had done what mother accused him of. But he obviously hasn’t. IF HE HAD, there’s no way that the mother would have agreed over and over again to drop the allegations against him. Please read the portions of the judgment that make it really clear that this mother had had many opportunities to place evidence of abuse before the Court and failed to do so time after time. And imagine for a moment being in the shoes of a father who has done nothing wrong, but is finding thousands of poison pen letters circulating to almost everyone he has ever met accusing him of the most dreadful things you can contemplate. You can accuse anyone of anything in a Court hearing and be free of libel – make your allegations and have the evidence for them tested. But don’t pass up that opportunity and write poison pen letters]

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Reid ’em and weep

Posted on May 26, 2017 by suesspiciousminds

The peculiar goings-on in the case of Westminster v Associated Newspapers Ltd

 http://www.bailii.org/ew/cases/EWHC/Fam/2017/1221.html

This was a specific hearing arising from a set of care proceedings in which both parents were asserting forcefully that their son H was very ill indeed. The Court, having heard a great deal of evidence and had that evidence tested by lawyers, including lawyers acting for the parents, decided otherwise

 

I found, firstly, that the parents had misreported and exaggerated H’s medical symptoms. I concluded that this had led not only to his emotional harm but to his physical harm. In consequence, particularly of the exaggerated gastrointestinal pain, there was the unnecessary insertion and thereafter the prolonged use of a Hickman line, which exposed H not merely to the risk of short-term infection, but to the risk of liver failure in the long term. It perhaps requires to be underlined that in consequence of his parents’ actions H’s life was placed in peril.

 

 

 

4.I went on to find that the mother, through bullying and bombastic behaviour, had intimidated medical professionals and others to the extent that she confused and undermined their confidence in their own professional judgement. In the hospital it generated a febrile atmosphere in which there was an elevated risk of clinical error, I found this compromised H’s safety.

 

 

 

5.In particular, and this requires perhaps to be emphasised too, in April 2016, on the most compelling of evidence, I found that both parents had, on separate occasions, tampered with H’s TPN pump. The effect of this, though it did not immediately threaten H’s health was, again, to cause confusion and alarm on the ward and jeopardise professional objectivity.

 

 

 

6.The father has both directly and passively acquiesced in the mother’s distorted perspective of H’s health and medical needs. The mother presented H to the world as dying, in extremely alarming e-mails. Moreover, on the evidence, she inculcated in H himself, a view that he was dying. The parents’ actions led to prolonged stays in hospital, the consequence of which was that H has been robbed of much of his childhood and teenage years.

 

 

 

 

7.This is of course a desperate situation made all the more depressing by the fact that H has an outstanding, lively, irrepressible intellect and a keen and zany sense of humour. It is a tragedy that these talents have not been allowed to flourish and grow as they ought to have been. I reiterate, in order that the point is not lost in the detail of my judgment, the harm caused to H by his parents, protracted over many years, exposed him to significant harm at the most serious end of the spectrum, ultimately risking his life.

 

 

The parents, not being in agreement with the judicial decision, sought to involve some crusading journalists to fight their case in the court of public opinion. The Telegraph and the Mail ran sympathetic pieces.

 

I wrote a long passage here, but actually I’m not going to bother with it. My readers already know whether they think Christopher Booker is a champion for justice or something else, and they are all entitled to their own views.

So instead of the long passage where I try to be balanced and reasonable and just annoy everyone on both sides of the argument, here’s a a photo of a young Cat Stevens tasting some food. I can’t tell if the food in the pan is fish, chicken or even pigs (the curly bits could be tails?).   If you are only familiar with beardy old Cat Stevens, DAMN he was a handsome young fellow.

 

My own recipe for rough emotional week – First Cut is the Deepest swiftly followed by Father and Son, get it out and move on

Anyway, this secondary decision was as a result of the child being visited in hospital by a journalist and interviewed by said journalist, who had not been open and transparent about who she was when making the visit.

 

 

 

15.I was informed during the course of the hearing, by the local authority, that it suspected that a reporter from The Daily Mail had visited H in ‘Unit A’ on 8th May. That reporter, I was told, was thought to be a Ms Sue Reid, though the visitor book bore an inscription that a Susan Odette Brown, recorded as ‘a friend’, had visited that day. I indicated to the local authority that they should make inquiries to establish such facts as they could. In pursuance of that, they drafted the following questions which were relayed to The Daily Mail. They are succinct questions and they are responded to with equal clarity. They require to be set out:

 

 

 

 

 

“Do you (i.e. The Daily Mail) employ or commission a journalist called Sue Reid or Susan Odette Brown? Answer: yes.”

 

 

 

 

“Did this journalist visit [the unit] on 8 May 2017 or at all? Answer: Yes.

 

 

 

 

What was the purpose of this visit? Answer: Miss Reid has confirmed that she visited in order to see H and see his social situation.

 

 

 

 

How was the visit arranged?”

 

 

The response was as follows:

 

 

“A campaign group alerted Miss Reid to H’s living arrangements and asked her to pay him a social visit. H’s parents also wanted Miss Reid to visit him and accordingly they passed on H’s mobile phone number. Miss Reid rang the number and spoke to H, who invited her to visit him and gave her a suitable time to do so.”

 

 

The final question was framed thus:

 

 

 

 

“Did you have permission to talk to H, a young person aged 15, and if so who gave you permission? Answer: Yes, H and his mother.”

 

16.These questions had in mind the protection afforded to young people and particularly to those who are vulnerable, by the Codes of Practice (2016), Independent Press Standards Organisation (IPSO). It is convenient that the relevant guidance be set out here:

 

 

 

 

 

“Clause 8 protects patients in hospitals and similar institutions from intrusion. It requires journalists to identify themselves and to obtain permission from a responsible executive to enter non-public areas. The clause applies to all editorial staff, including photographers.

 

 

The clause covers the newsgathering process, so the Code can be breached even if nothing is published. The clause also requires that, when making inquiries about individuals in hospitals and similar institutions, editors need to be mindful of the general restrictions in Clause 2 of the Code on intruding into privacy.

 

 

[Some readers may remember certain press scandals about Russell Harty, a celebrity whom certain sections of the Press believed was hospitalised because of AIDS and reporters donning medical gowns in order to gain access clandestinely to the hospital. ]

 

Of particular relevance is:

 

 

 

 

Identification and permission

 

 

 

 

Journalists must clearly identify themselves and seek permission from a responsible executive to comply with the Code. The use of the term “executive” implies that permission can be obtained only from a person of sufficient seniority. A journalist who attended a London hospital after the Canary Wharf terrorist bomb photographed an injured victim in the company of a relative and another person who he thought had obtained permission from hospital staff.

 

 

When medical staff complained, the PCC found the Code had been breached. It said: “The Commission was not persuaded the reporter in this particular case had followed the provisions of the Code: it was not enough to assume that his identity was known or to rely on the comment of an individual who was clearly not a responsible executive, although the reporter had done so in good faith.” Hutchison v News of the World: http://www.pcc.org.uk/cases/ adjudicated.html? article =MTkwMA

 

 

What the Code says

 

 

  1. i) Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries.

 

 

  1. ii) The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions. A public interest exemption may be available.

 

 

 

 

Non-public areas

 

 

In most cases, what constitutes a non-public area will be clear and will certainly include areas where patients are receiving treatment.

 

See: Stamp v Essex Chronicle

A man v Daily Mail

 

 

17.The code purposefully set a strong objective to safeguard children. The following requires emphasis :

 

Clause 6

 

Children

 

The Code goes to exceptional lengths to safeguard children by defining tightly the circumstances in which press coverage would be legitimate. For the most part, this applies up to the age of 16 – but the requirement that pupils should be free to complete their time at school without unnecessary intrusion provides a measure of protection into the sixth form. In the absence of a public interest justification, pupils cannot be approached at school, photographed or interviewed about their own or another child’s welfare, or offered payment, unless consent is given by the parent or guardian.

 

 

The welfare of the child includes the effect publication might have.

 

 

A complaint from an asylum seeker was upheld after a newspaper interviewed and identified some of his children. The PCC said the article was likely to provoke a strong reaction in readers, which might affect the children’s welfare.

 

 

Kenewa v Sunday Mercury

 

 

There is a public interest defence available to editors, but here again the bar is raised in favour of protecting children and the Code states that “an exceptional public interest” would need to be demonstrated.

 

 

 

 

What the code says

 

  1. i) All pupils should be free to complete their time at school without unnecessary intrusion.

 

 

  1. ii) They must not be approached or photographed at school without permission of the school authorities.

 

 

iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

 

 

  1. iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child’s interest.

 

 

  1. v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life.

 

 

A public interest exemption may be available. See Page 96.

 

Consent

 

 

The press has to establish which is the competent authority to grant consent in each case.

 

See: A woman v Derby Telegraph

Brecon High School v Brecon and Radnor Express

 

 

 

18.In order to advance their own explanations, the parents both filed statements in which the broad thrust of the answers given by The Daily Mail were or appeared to be disputed. It has been necessary for me today to inquire as to what in fact led to the visit, which all agreed took place, between Ms Reid and H at the unit on 8th May.

 

 

 

19.As the evidence has unfolded it has funnelled into a very narrow area of agreement and disagreement. Today there were filed, on behalf of Ms Reid, a number of e-mail communications, which have been helpfully set out by Mr Browne QC and Mr Wolanski, who represent her through Associated Newspapers Limited. A key communication is an e-mail sent at 18:30 on 6th May by H’s mother to a Miss Miray Kester, whom she describes as a friend. It is clear from that email and the earlier discourse that it was intended to provide a summary of H’s situation from the mother’s own perspective. It is, characteristically, a gross distortion of the facts. It presents H, in melodramatic terms, brutalised and neglected by the system. Yet again the mother describes H as suffering from serious illness. As those reading my earlier judgment will appreciate and as time has now borne out, H is not suffering from any serious illness. Those conditions which he does have are not seriously debilitating.

 

 

 

20.It is unnecessary for me further to burden this judgment with the details of the email communications because a number of factors are clear. Firstly, I am satisfied that, in the context of the email communication as a whole, the email I have referred to above was written by the mother as a briefing document for the press. The document, which I do not propose to read into this judgment, speaks for itself. Secondly, Ms Reid obtained H’s telephone number and spoke to him directly before she spoke to the mother. This she agreed in evidence. Thirdly, Ms Reid later spoke to the mother on the telephone and the conversation lasted some 40 or so minutes. In that conversation Ms Reid plainly formed the view that the mother was at her wits’ end, very distressed and agitated. Much of the content of the e-mail of 6th May seems to have been replicated in that conversation, which Ms Reid agrees took place.

 

 

 

21.The mother asserts that the move to the unit is a tragedy for her son. As she puts it, it is ‘a violation of his human rights’. She refers to his ‘being locked away’ and she caricatures it as a focus on ‘mental disorder’ rather than the contemplated across the board evaluation of his needs that I have described. This is all deep-seated, the mother has been hostile to Great Ormond Street now for many years. It was very much a feature of her evidence in January and February of this year. The mother denies giving Ms Reid permission to speak to her son. However, she says: had this journalist asked me directly if she could have permission to speak to my son, I would have said yes. But, she says, ‘it was never asked’.

 

 

 

22.It is plain, having listened to the mother’s evidence and Ms Reid’s evidence, that the mother not only was enthusiastic about H having an opportunity to meet a journalist but never at any point in the conversation gave Ms Reid even the slightest suspicion that she had the remotest anxiety about it. The mother is highly manipulative, as Ms Reid has now plainly found out. I think it unlikely that she gave her express permission but I am quite clear that she enthusiastically contrived with Ms Reid to facilitate the interview. Ms Reid told me, and I accept, that the mother gave her the address and details of the unit.

 

 

 

23.In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

 

24.The facts are now, as I see it, uncontroversial. Ms Reid went to Unit A. She did not make herself known to the staff. She did not identify herself as a journalist and she did not seek permission from a responsible executive to enter these non-public areas. It is also clear and again she accepts that she was aware that H was subject to a Care Order (in fact it is an Interim Care Order but that is of no consequence here).

 

 

I’m going to repeat paragraph 23, because I think it is significant

 

In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

Long carefully balanced paragraph removed, because it even made me throw up a little.

 

Instead, who would like to see a picture of Cat Stevens and some kittens? Of course you would.

 

 

There are dog photos too, but this blog has been dog-centric, and time for cat-rebalancing

 

 

Only click on the link if you’re comfortable with being a bit sad for a few minutes whilst simultaneously awestruck. (And see – handsome…)

 

 

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Failure to bury a child

Posted on May 12, 2017 by suesspiciousminds

 

 

 

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

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See-Saw

Posted on September 5, 2016 by suesspiciousminds

 

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)

 

 

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Tape recording of an expert (a SHOCKING case)

Posted on August 23, 2016 by suesspiciousminds

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:
  3. 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.
  3. 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.”
  3. 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.
  5. 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.
  7. 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.
  9. 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.“
  3. 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.
  5. 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.
  3. 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.”
  5. 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.
  7. 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.
  9. 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.
  11. 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”
  13. 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.

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

Posted on July 19, 2016 by suesspiciousminds

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.

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