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

Posted on March 23, 2016 by suesspiciousminds

 

I always love a diplomatic immunity case.

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

Click to access approved_judgment_rhd_estrada_v_juffali.pdf

 

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

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

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

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

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

 

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

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

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

 

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

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

21.

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

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

22.

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

 

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

 

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

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

 

 

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

 

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

 

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

and

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

but

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

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

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

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

71.

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

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

However,

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

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

 

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

 

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

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

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

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

 

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

 

 

 

 

 

 

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

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Mistaken identity

Posted on February 23, 2016 by suesspiciousminds

 

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

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

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

Birmingham City Council vand SK 2016

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

 

 

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

Posted on January 24, 2016 by suesspiciousminds

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

Cumbria County Council v KW 2016

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

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

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

 

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

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

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

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

 

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

 

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

 

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

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

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

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

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

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

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

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

 

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

 

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

 

 

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

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Cracking a case at IRH without father present – robust case management or jumping the gun?

Posted on November 23, 2015 by suesspiciousminds

 

This is a Court of Appeal decision

 

RE v North Yorkshire County Council and Others 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1169.html

 

(Making me wonder if it is going to get shortened to “Re RE”)

It has an unfortunate typo in the very first line of the case report which will delight those like me with a childish mind – you really do need to be very careful with the spelling of the word “Public” in Public Law Outline.

 

Though this version has a certain aptness – in many parts of the country it doesn’t really exist at all, in some areas only a sliver of it can be observed,  everyone can agree that some pruning and trimming is wholly desirable, and nobody really pays it much attention until a bit gets stuck in your throat…

 

Anyway, the nuts and bolts of the case. The parties attended an Issue Resolution Hearing. The father was not in attendance – he was in prison and a production order was not sought.  [As a person in prison is not in a position to simply saunter out and wander down to Court of their own volition, what needs to happen is for their solicitor to apply to Court for a Production Order so that the prison staff know that the person is required in Court on that date and must be brought there. Without a Production order, the prisoner won’t be produced. With one, they will be produced two hours later than you asked for…]

 

The Court made a series of final orders

 

i) A Care Order in favour of the Local Authority, North Yorkshire County Council;

ii) Permission to the Local Authority, to refuse contact between the child (A) and his father (F) pursuant to section 34(4) of the Children Act 1989;

iii) Leave to the Local Authority to apply for a declaration removing responsibility to consult F in relation to A;

iv) A declaration that the Local Authority should be absolved from the statutory responsibility of consulting F in relation to A’s care and their obligation to involve him in the Looked After Children (LAC) consultation process;

v) A non-molestation order (granted until further order) prohibiting F from:

a) Contacting M, A or the maternal great grandmother (MGGM) either directly or indirectly or through any third party except through lawyers or through the Local Authority for the purpose of the letterbox contact;

b) Attending within 100 metres of any address where he knows M and A or MGGM are living;

c) Should F meet M in any public or private area he is ordered to leave immediately to a distance of at least 100m away.

A power of arrest was attached to the non-molestation order.

 

 

The father appealed the order, on the following grounds

 

  1. The Grounds of Appeal have been drafted in very general terms (even as amended) but the thematic basis, which embraces each of the orders set out above, is identified in Ground 1 of the Appellant’s Amended Grounds of Appeal:

    “The Judge was wrong to have made final orders at interim hearing which:

    1. Prevent a child from maintaining personal relations with a parent; and

    2. Prevent a child having a future determined by which both parents have played a part.”

    It is argued that at the IRH the Judge was not in a position to conduct the ‘holistic analysis’ of the available options that was required in order properly to do justice either to the interests of the child or the father. In particular, at Ground 3, which is really an amplification of the same point, it was contended:

    1. Before reaching the determination that it was necessary and proportionate to the identified risks, that ‘nothing else would do’ the Judge needed to be sure that all the evidence was before the Court. The Judge was wrong to have proceeded to make Final Orders at an interim hearing;

    i. Without the court bundle;

    ii. Without the father having had notice that the IRH might be dealt with as a final hearing;

    iii. Without the father having been produced from prison

    iv. Without having heard any evidence or allowed father the opportunity to properly challenge the evidence of the Social Worker and Children’s Guardian;

    v. Without some form of contact being tested, the father, having made requests for contact, photographs and for the Social Worker to visit him, had the father having never met A or received any update in respect of his developments except the redacted Care Plans when the child was nearly 5 months old.

    vi. Where despite a large number of concessions and acceptances by Father, enough for a court to consider the Threshold Criteria for making s.31 orders was crossed, the Threshold Criteria annexed to the order had only been agreed by the Mother and not by Father,

    vii. Without having proper evidence before the court as to the impact upon the child of having no contact with the paternal family.

  2. Further, the Declaratory Relief granted by the Judge is attacked on the separate ground that the Judge lacked a jurisdictional basis to grant such relief and accordingly exceeded the ambit of her lawful powers. No party now seeks to uphold these declarations recognising and conceding their lack of jurisdictional foundation. The Appellant however goes further and contends that ‘even had there been jurisdiction, it would have been wrong to make the orders’. Furthermore, it is asserted ‘the declarations were in breach of the F’s Article 6 rights and were unlawful.’

 

 

The Court of Appeal tackled the declaration first, and had no difficulty in saying that it ought not to have been made. Firstly, the Judge had not been sitting in the High Court or as a s9 Judge and had no jurisdiction for a declaration of that type,

 

As I have already foreshadowed, none of the advocates seek to salvage the declaration releasing the Local Authority from its obligation, pursuant to statute, to consult F in relation to A’s care and to involve him in the Looked After Children (LAC) consultation process. I propose therefore to address this point first. HHJ Finnerty was sitting as a Judge of the Family Court. Though she is an experienced Judge who sits regularly as a Deputy High Court Judge of the Family Division, she was not sitting in that capacity in this case on the day of the IRH. No application had been made for her to seek permission from her Family Division Liaison Judge or other Judge of the Division to sit as a Section 9 Judge of the High Court. It is plain that, through oversight, no thought was given to the jurisdictional basis of the declaration by either Counsel or the Judge. Such declarations are made pursuant to the inherent jurisdictional powers of the High Court, they have no other foundation. If this had been the sole difficulty here and had they been otherwise sustainable I would, for my part, have been prepared to investigate some pragmatic resolution, perhaps a speedy remission to the Judge inviting her to reconstitute herself in the High Court to authorise the declarations on a free standing application pursuant to the inherent jurisdiction. It may well be that there is no such solution. However, it is unnecessary for me to investigate further as I am of the clear view that the declarations are more generally flawed.

 

  1. There are sound reasons why declarations are required to be made under the Inherent Jurisdiction and commenced in the High Court. Frequently, as here, they involve authorisation of actions which fall outside statutory obligation or may, again as here, be directly contrary to it. Thus, these are invariably complex issues which require to be dealt with in the High Court. This is given effect to, unambiguously by Rule 12.36 (1) and PD 12D.
  2. In Re B [2013] EWCA Civ 964, the Court of Appeal considered whether there needs to be a formal transfer where the Circuit Judge is authorised to sit as a s.9 Judge. At para 7, Black LJ observed:

    ‘Where a circuit judge is to sit as a High Court judge, it seems to me that this needs to be arranged deliberately, with the proceedings commenced in or transferred to the High Court. The mere fact that the judge who has heard the case happens to be authorised to sit as a High Court judge or to try Administrative Court cases might not redeem a failure to observe proper practice.’

  3. I note that Black LJ does not completely exclude some pragmatic resolution, limiting herself to the observation that the matter ‘might not’ be capable of being redeemed. Here, as I have stated, Counsel on behalf of the Respondents all agree that the declarations cannot be sustained for these jurisdictional reasons.

 

Secondly, that a declaration of that seriousness could not be made lightly and not on the sort of facts that this case presented

  1. Ms. Bazley submits the case law establishes that a Local Authority may only be absolved from its duty to consult and to provide information to a parent in ‘exceptional circumstances’. I agree.
  2. The duty, pursuant to s.26, is directory not mandatory. But, as Ms. Bazley submits, the result of non-compliance is treated as an irregularity: Re P (Children Act 1989, ss22 and 26: Local Authority Compliance) [2000] 2 FLR 910. Ms Bazley further directs this Court’s attention to Re C (Care: Consultation with Parent not in Child’s Best Interests) [2006] 2 FLR 787; [2005] EWHC 3390 (Fam). There Coleridge J granted a declaration to the effect that the Local Authority was absolved, in what were described as ‘exceptional circumstances’, from any obligation to consult the father. In that case the father was serving a lengthy sentence for raping the child, who did not wish the father to be informed or consulted at all in relation to her future. The child had applied, successfully, to discharge the father’s Parental Responsibility. The applications were decided on the basis of C’s best interests. The Court concluded that the father’s total disregard for C’s best interests in committing the offences, coupled with her consistently and strongly articulated wish that he be excluded from her life entirely, led to a clear conclusion that he should not participate in any discussions about her future welfare. Nonetheless even there, the court directed that he would be informed if the Local Authority intended to make significant changes to the Care Plan, such as applying for adoption. Coleridge J observed:

    “[30] The conclusions that I have come to are really these: the considerations which govern the dismissal of this father from further involvement in the proceedings, and the granting of the declarations seem to me to be the same. Indeed, there is little point in him remaining a party if he is not going to be given any information; indeed, it would be impractical for him to remain a party if he was not going to be given information.”

    [31] The second pivotal point, of course, is that this application is decided, first and foremost, on the basis of s 1 of the Children Act 1989 – that is to say, what is in S’s best interests. Of course, hers are not the only interests, but they are the ones which are of paramount concern to the court.

    [32] The third factor, self-evidently, is that it is a very exceptional case only which would attract this kind of relief. Self-evidently – and it hardly needs the human rights legislation to remind one – a parent is entitled to be fully involved, normally, in the decision-making process relating to his, or her, child, and if not to be involved, then at least informed about it. However, insofar as that engages the father’s rights to family life, then by the same token it engages S’s right to privacy and a family life.”

  3. The factual background, giving rise to this appeal, though undoubtedly very troubling does not, in my judgement, amount to ‘exceptional’. It is not difficult to contemplate strategies which enable the privacy and security of the placement to be protected by a far less draconian level of intervention. Accordingly, Ms. Bazley submits and I agree that: ‘even had it been lawful to make the declaration, the circumstances of this case were not so exceptional as to justify it being made‘.

 

 

The appeal was granted and the declaration set aside.

Next, the substantive part of the appeal – was it wrong for the Judge to have made final orders, particularly final orders which in effect ended the father’s relationship with the child when the father had not expressly agreed, had not attended Court (as a result of Production Orders not having been obtained) and had not had the opportunity then to oppose those final orders?

That may seem something of a no-brainer, but bear with me.  All advocates will need to be aware of particularly paragraph 49 and the duty that this places upon them

 

  1. The following uncontentious facts require highlighting:

    i) The Care Plan provided for mother and baby to remain together;

    ii) No Party opposed the plan;

    iii) It was agreed by all the parties that the question of A’s direct contact with F was not an issue for the final hearing, in consequence of F’s incarceration;

    iv) All agreed that a Care Order was the appropriate order;

    v) All agreed as to the extent to which F should be able to provide photographs / cards to A;

    vi) All Parties and the Judge were aware of the indeterminate Restraint Order passed by the Crown Court preventing F from having contact with M (and others);

    vii) F had not asked to be produced from custody at any stage in the case.

  2. It is axiomatic that this was precisely the kind of case that had every potential for resolution at the IRH. It was the professional duty of all concerned to ensure that it did. I regret to say that the profession fell short in that duty. The Judge had done everything she could. By contrast, the Advocates’ Meeting appears to have been formulaic and ineffective. It was plain that F wished to have photographs of his son. F’s solicitors had not obtained a Home Office Production Order to facilitate F’s attendance at Court. Accordingly, F’s counsel was not in a position to take instructions on last minute and important details. Ms. Bazley asserts that F repeatedly elected not to come to court because he considered his presence to be an impediment to the mother’s case. The obligation of his lawyers here was to ensure that F’s own case was not compromised by his non-attendance.
  3. It requires to be stated that Court Orders are there to be complied with, they are not aspirational targets. I strongly suspect that if the advocates’ meeting had absorbed the true objectives of the IRH, and F produced at court, this case would have resolved by agreement. Moreover, I have no doubt at all that had there been proper thought given to concluding the case, the advocates would, at the final meeting, have paid greater attention to the legal basis of the Local Authority’s application for a declaration.
  4. I agree with King LJ in Re S-W (supra) that a Final Order at a CMH will be appropriate only occasionally. However, the message must go out loudly and clearly that the Court will and must always consider the making of Final Orders at the IRH. It must be understood that it is the professional duty of the advocates and all the lawyers, in every case, to direct their attention to the obligation to achieve finality at the IRH wherever possible. It follows that the lay Parties are always required to attend. If a Party is in custody a Home Office Production Order should be obtained and, if necessary, at the instigation of the Judge.
  5. In granting permission to appeal Ryder LJ considered that this case raised an important issue. Though the Court of Appeal has considered these points before it has been in the context of Judges who have been too robust in concluding cases where evidence required to be tested. This case, for the reasons I have set out, is one of wholly different complexion. It provides an opportunity to signal the cultural shift brought about by the Family Justice Reforms and the particular responsibilities on all involved at the IRH.
  6. Though I regret to say it, where the Judge’s objectives (i.e. to facilitate the potential for resolution of the case) are thwarted by non-compliance with Case Management Orders then this may in future have to trigger the consideration of appropriate sanctions in costs. Such orders are counterintuitive in a court arena where much reliance is placed on cooperation and common endeavour. However, the Family Justice Reforms are not merely administrative; they are designed, as I have emphasised above, to reconnect the profession with a core welfare principle: the avoidance of delay.
  7. The approach of the first instance Judge has been entirely vindicated in this Court. The Parties have been asked to consider whether the key issues were capable of resolution given the very narrow ambit of dispute. It struck me that it would have been hugely disproportionate to adjourn them for hearing before a High Court Judge, as it was submitted the outcome should be.

 

In the event, the parties at the Appeal hearing were able to reach agreement on indirect contact and Christmas cards etc, so in part the appeal fell by the wayside. But putting that to one side, was the Judge wrong to have made final orders when father’s attendance had not been facilitated, or was this robust case management?  It seems from my reading that the Court of Appeal would have backed the trial Judge here (other than on the declaration) and the appeal if it had been on those grounds alone would have failed. The responsibility here was with the advocates for not ensuring that either father’s position was entirely in keeping with the orders sought or to obtain a Production Order so that negotiations / representations could have been dealt with at the IRH.

 

The Court of Appeal put down a marker here that advocates must always be alive to the possibility that the case may be concluded at IRH and turn their minds to the final orders.   [They didn’t actually expressly deal with some of the important issues in the appeal – to whit, whether this Judge had made such serious final orders without a Court bundle i.e reading all of the papers, and the threshold having been finally determined taking into account mother’s concessions but including within it matters that father disputed without the Court hearing evidence about the disputed matters and making findings]

 

 

 

 

 

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Removal of a child from prospective adopter

Posted on September 2, 2015 by suesspiciousminds

 

I have written about a few of these cases since Holman J’s decision in December 2014, but this one is rather out of the ordinary.

 

RY v Southend Borough Council 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2509.html

 

Hayden J was dealing with two applications. The first was an application by RY, an approved adopter, to adopt a child who is about 2 1/2, a little girl named SL.  The second was the application by the Local Authority  (Southend) to remove the child from RY’s care, under section 35 of the Adoption and Children Act 2002.

Cases about section 35 are rather rare, and this one raises some unusual issues.

First things first, what does s35 say?

 

“35 Return of child in other cases

(2) Where a child is placed for adoption by an adoption agency, and the agency –

(a) is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion, the prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency.

(5) Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order (including a Scottish or Northern Irish adoption order), special guardianship order or residence order, or for leave to apply for a special guardianship order or residence order, was made in respect of the child, and

(c) the application (and, in a case where leave is given on an application to apply for a special guardianship order or residence order, the application for the order) has not been disposed of, prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders”.

In plain English, where a Local Authority have placed for a child for adoption, if they ask for the child back, the adopter must hand the child back within 7 days.  UNLESS the adopter has already made an application to Court for adoption, or a Special Guardianship Order or a residence order (Child Arrangements Order), in which case it is up to the Court what happens.

In this case, RY had lodged her application to adopt SL BEFORE the LA asked her to hand the child back, so it was for the Court to decide.

By way of important background, SL was a very ill child.

  1. At birth SL was pale, floppy and had no respiratory effort or heart rate and required intensive resuscitation. Her first gasp was not until 20 minutes into life. Dr. Daniel Mattison, Consultant Paediatrician, identifies that SL had experienced hypoxic-ischaemic encephalopathy. This can result in a wide spectrum of disability and in SL’s case she has been left with a raft of problems. Firstly, quadriplegic cerebral palsy, which means that she has impaired movement and stiffness of all her limbs as a direct result of brain damage to the parts of the brain involved in movement, tone and posture.
  2. Secondly, she has global developmental impairment. Thirdly, she has gastro-oesophageal reflux disease. That is a condition where the stomach contents pass into the oesophagus causing symptoms. The stomach contents are acidic so the symptoms include pain from the acidic contents coming into contact with the oesophagus and the throat. They also include vomiting, feeding difficulties and respiratory problems if the stomach contents irritate the top of the windpipe or if small amounts enter the lungs. Gastro-oesophageal reflux disease is more common and may be more severe in children with severe neuro-disability like SL.
  3. Finally, Dr. Mattison considers that there is visual impairment as a result of the deprivation of blood and oxygen to those parts of the brain involved in vision.

One can see that absolutely anyone would have faced challenges in caring for SL and meeting her needs.

What the Judge found, by careful consideration of the facts, was that the matching process of RY and SL was optimistic.

RY had some considerable issues of her own, having been diagnosed with Ehler-Danloss syndrome, occasionally needing to feed herself through a gastrostomy tube and being in a power chair needing to use hoists to move herself out of the chair.  She also stated that she had been diagnosed with Asperger’s Syndrome when she was 19.

None of that, of course, means that she is excluded from being a carer for a child, or from being an adopter, but it does mean that there were medical issues that needed some careful consideration in the assessment and matching process.

The fact that the assessment process identified that there had been views that RY’s physical problems were emotional or psychological in nature, at the very least ought to have meant that the adopter’s medical records would have been needed to be seen and commented on by a medically qualified professional.

I am not myself at all clear as to why that wasn’t the case.

 

12…the assessment report more generally – poses a number of questions. Most importantly, it does not address RY’s capacity physically to parent a disabled youngster as the child got older and heavier. It also has to be said that the possibility that RY’s health difficulties might have a psychological component were evident. It is easy, of course, to be wise with the benefit of hindsight, but nonetheless it seems to me that the enquiries made into RY’s physical and mental health were less than satisfactory.

  1. A number of reports were requested, including one from RY’s general practitioner and rheumatologist, but the nature of that enquiry appears to have been very limited and as RY on her own account has had very little recent contact with either in recent years, it is not surprising that little constructive information was forthcoming.
  2. Ms. Frances Heaton QC and Mr. Shaun Spencer, who appear on behalf of Southend Borough Council, absorb this criticism without demure. In their closing submissions they state as follows: ^

    “With regard to its own failure to consider these records, the adoption agency is cognisant of the fact that although not signposted in the regulations, a review of RY’s medical records is likely to have been beneficial during the adoption process”.

  3. They continue:

    “Where an adoption agency has referred a proposed placement to the adoption panel, the panel must consider the proposed placement and make a recommendation to the agency as to whether the child should be placed for adoption with that particular prospective adopter pursuant to regulation 32(1) of the Adoption Act Regulations 2005.

    In considering what recommendation to make the panel, (1), must have regard to the statutory duties imposed on the agency; (2), must consider and take into account all information and reports ^ passage of it; (3), may request the agency to obtain any other relevant information which the Panel considers necessary; and (4), may obtain legal advice as it considers necessary in relation to the case. Thereafter, in coming to a decision about whether a child should be placed for adoption with a particular prospective adopter, the agency decision maker must take into account the recommendation of the adoption panel and have regard to the child’s continuing welfare, pursuant to regulation 34(4) of the Adoption Act Regulations 2005″.

  • 16.Ms. Heaton and Mr. Spencer also identified the most recent Department of Education Statutory Guidance on Adoption, July 2013, drawing my attention particularly to para.4.15, which states:

     

      1. “Agencies have a duty to satisfy themselves that prospective adopters have a reasonable expectation of continuing to enjoy good health. The medical adviser should explain and interpret health information from the prospective adopter, their GP, and consultants if relevant, to facilitate panel discussion. The opinion of the prospective adopter’s GP and the agency’s medical adviser about the health status of the prospective adopter needs to be given sufficient weight by adoption panels and agency decision-makers. Mild chronic conditions are unlikely to preclude people from adopting, provided that the condition does not place the child at risk through an inability to protect the child from commonplace hazards or limit them in providing children with a range of beneficial experiences and opportunities. More severe conditions must raise a question about the suitability of a prospective adopter, but each case will have to be considered on its own facts …”

 

 

That seems to me very clear that an adoption medical of the prospective adopter would be required and that in a case where medical issues arise, the records would be needed.

 

This next part, for my mind, is the most worrying aspect of the case  – that these important aspects had not been properly considered because of the pressures on Southend (and one assumes other Local Authorities) to move adoptions through the system quickly to satisfy the Government driven statistics. But even more seriously, that where a Local Authority does not properly satisfy the Government as to performance, there are ‘penalties’

I have to be candid, I do work for a Local Authority. I don’t know about penalties for failure to meet the thoughts that Central Government have about performance (and frankly I wouldn’t know how to find out). The common-sense reading of this portion is that there are financial implications for a Local Authority who doesn’t get their adoptions through as quickly as Central Government thinks that they should.  Perhaps that is right, in which case it would be very worrying.  Perhaps someone has got the wrong end of the stick here.

  1. Counsel seek to explain the deficiencies of this agency’s process in these terms, they state:

    “The agency appreciates the strength of an argument that it failed to have sufficient regard to the matters required of it both by the regulations and the statutory guidance. In the context of that argument, the court understands the pressures on agencies quickly to match children with approved adopters as a result of government measures”.

  2. Ms. Heaton and Mr. Spencer say:

    “It is a reality of the situation that adoption agencies are being judged and measured by government departments on the speed of time taken to match children, poor performance leads to penalties”.

  3. They conclude:

    “This adoption agency recognises that these pressures may have resulted in proper scrutiny not being fully implemented in this case. I am offered reassurance that the agency recognises that a request to consider our wide medical records would have been beneficial to the matching process. I have been told that they intend to address this failing for the future by ensuring that the agency is more ready to be resistant to pressures and to identify at an early stage those cases which it considers to be exceptional where a ‘longer matching process is required’.”

 

The Judge was also perturbed about this :-

 

  1. I am not in any way in any position to evaluate the explanation proffered in the authority’s fulsome explanation. I was not, for example, aware that government departments were subjected to penalties where there had been too much delay in the time taken to match children, I confine myself entirely to observing what is little more than a statement of that which should be obvious.
  2. Children like SL are profoundly vulnerable. Social services and society more generally must be sedulous in its protection of them. The fact that there may be fewer welfare options available for such children must never mean the criteria for matching carers to them can ever be compromised. On the contrary, the obligations should be seen as even more rigorous. The matching of RY to SL was undoubtedly ambitious.

 

 

In any event, things became more serious, because what was asserted was that RY’s care was not merely deficient but actually harmful and indeed that the care of SL had reached the point where significant harm had been caused.

There were many issues in this regard, and the Judge was also critical that the document provided to RY that set out what portions of parental responsibility she was allowed to exercise and what she was not was a stock document and was ambiguous

 

  1. What is contemplated here is the granting of some but not all parental rights. The focus is on the child with the objective of permitting the prospective adopter to take day-to-day decisions in the sphere of health, education, religion, holidays and social activities. Here this local authority, in common with many others, I am told, issued a standardised pro forma document.
  2. In relation to health issues, it permitted RY to consent to emergency medical treatment. It did not permit her to consent to treatment including operations that require anaesthetic. It did permit her to take decisions in relation to any prophylactic treatment, including immunisations, decisions in relation to involvement in counselling or therapeutic services, agreement to school medical appointments and decisions in relation to dental treatment. It also provided for her to have decision making responsibility across a range of issues relating to education, day-care, religion, holidays and contact, had that been relevant. I need not look at those wider issues and I concentrate entirely, because it is in focus here, on the provisions relating to health. I have, to say the least, been greatly exercised by them. They are not to my mind a model of pellucid clarity.
  3. There has been much confusion by the professionals as to what the scope and ambit of RY’s parental responsibility powers in fact were. Having read the document I am not surprised. This document, particularly if it is, as I am told, issued widely, really requires refinement. Again I am reassured that Ms. Heaton has this in her sights. She submits that the adoption agency recognises that on reflection and with the benefit of hindsight, (a recurrent phrase) the use of this local pro forma document was not suited to the facts of this case. It is now, she says, recognised that what was required – and is likely to be required in cases such as this concerning any child with complex care needs – is “a bespoke s.25 parental responsibility document tailored to the individual circumstances and needs of the child being placed.”
  4. She goes on to offer the reassurance that in the light of this acknowledgement this Adoption Agency intends to review its own practices and procedures in relation to the identification of appropriate restriction on parental responsibility and to introduce bespoke PR documents in appropriate cases. It also intends to raise the issue with the British Association of Adoption and Fostering so that other adoption agencies may benefit from learning from the experience of this case. I would add to that my own view that the standardised document is itself lacking in clarity. The first two requirements permitting consent for emergency treatment and refusing to bestow consent to treatment including operations are not immediately capable of easy reconciliation and generate, to my mind, inevitable confusion. As I have said, they require some refinement though, of course, I recognise, in many cases, issues such as this will simply not arise.

 

 

The crux of this case was as to how RY behaved whilst SL was in hospital, which sadly given SL’s considerable health needs was something that happened often and would be likely to happen in the future. It was asserted that she was obstructive about the child’s feeding, resistant to medical advice, over-reporting of medical concerns, requested sedation for the child, adminstered oxygen when she was not trained to do so and discharged the child against medical advice.

 

  1. The local authority’s schedule posits six findings and four supplemental findings. The first is that during SL’s hospital admission, which commenced on 26 September 2014, RY repeatedly refused nursing observations such as taking blood pressure or temperature. The second is that RY repeatedly refused to allow medical advice in relation to SL’s dietetic requirements. The third is that RY repeatedly stopped or refused medication and treatments. The fourth is that RY demonstrated an inability consistently to accept medical advice. The fifth is that RY repeatedly requested treatments of her own motion or insists on treatment methods. And the sixth is that due to RY’s anxieties, she tends to focus her attention on unnecessary medical procedures or extreme outcomes.
  2. The four additions are that RY suctioned SL unnecessarily too vigorously and in an inappropriate manner. Secondly, that she repeatedly requested sedation medication for SL despite being told by at least two health professionals, Dr. Court and Sally Deever, that such may compromise her breathing. The third is that RY gave SL oxygen unnecessarily and inappropriately when she was not trained to do. And fourth, that SL suffered harm in RY’s care and was likely to do so if she were to return to her care. That last finding being essentially a composite of the earlier allegations.
  3. As I have already said, it is really a very striking feature of this case that so much of what is set out in that schedule is factually uncontentious. It is the gloss or interpretation that is put on it that has become the focus of disagreement during this case. In, for example, the first finding, namely that during SL’s hospital admission in September 2014 RY repeatedly refused nursing observations, there is agreement that she did indeed make such refusals.

 

 

Most of the factual matters, being supported by the medical reports provided by the hospital treating SL, were not in dispute. What was disputed was the interpretation to be placed on them, or whether they amounted to harmful behaviour rather than just genuine concern about a child who was undoubtedly very unwell.

  1. RY told me that she derived some satisfaction from the preparation of the food for her daughter that it was instinctive to her to want to do that and that I certainly understand, but as time passed it became all too clear that this preferred method of nutrition not only was unsatisfactory, it was falling manifestly and demonstrably short of meeting SL’s needs. The doctors and nursing staff and dieticians were plainly highly agitated that SL should have good quality calorific and nutritional food, particularly when recovering from her operation, and RY undoubtedly resisted it in the face of her own obviously inadequate regime long after it would have become obvious to the reasonable carer that this was simply not meeting this little girl’s needs.
  2. So obvious was it that, in circumstances which I really find to be truly extraordinary, the hospital required RY to sign a waiver abdicating their responsibility to her for providing SL’s proper nutrition. What I find so deeply alarming is that in this instance and in the other instance that I have just looked at, that is to say the failure to let nurses take temperature, blood pressure, routine tests, et cetera, how it was that RY’s will prevailed to the extent it did. I can only assume that her behaviour was as described so bizarre that it caused confusion in the ward and led to poor clinical judgments to be taken contrary to SL’s interests.
  3. Ms. Heaton put to RY directly on this point, “In those circumstances, how could RY be said to be putting SL’s interests first?” And to that, in my judgment, RY had no satisfactory answer. I simply do not believe that she has understood or is now able fully to understand why it was she behaves in that way, but there is no satisfactory explanation when properly analysed for this failure to meet that most basic of SL’s needs, her need for nutrition.
  4. As I have said, I do not find it necessary to work through each of the many examples contended for in the Scott Schedule of, for example, RY’s refusing medication and treatments, chiefly again because it is not disputed. One such example which stood out to me in the evidence was RY’s refusal to permit SL to take oramorph when moved onto the ward when in the intensive care unit. Oramorph, I was told, is a morphine-based medicine the objective of which was to downscale gradually the pain relief from the higher dosage that she hitherto had been receiving.
  5. RY told the hospital – and indeed told me – as Ms. Walker emphasises in her closing submissions, that SL “didn’t need anything for break-through pain”. It is one of a number of responses that causes Ms. Walker to comment on what she contends to be RY’s arrogance towards medical staff for how, says Ms. Walker, could RY possibly have been in a position to gainsay the medical advice and to assert from the basis of no medical knowledge at all and in a highly specialised area of medicine that this little girl did not need anything for break-through pain. Once again it was RY’s wish and not that of the doctors that prevailed. I agree with Ms. Walker that the evidence in relation to this can properly be described, as she does, “overwhelming”.
  6. I would also like to highlight the incident set out in the unchallenged statement of Ms. Leanne Mulholland, who is a Senior Sister at the Paediatric Emergency Department at the Royal Manchester Children’s Hospital. In her statement of 7 May 2015, Ms. Mulholland tells me that she was the nurse in charge on the early shift of 14 July. Four areas of concern were handed over to her from the night staff.
  7. Firstly, there was the transfer of SL to the Paediatric Emergency Department in RY’s car directly contrary to the advice of the paramedic. A process which in and of itself caused a significant delay in admission as Mr. Unwin emphasises as a convenient forensic illustration of harm. Secondly, on arrival there was concern that RY simply refused initially to allow a full respiratory assessment to be performed. I am still unclear why that was, but it was ultimately completed as it manifestly needed to be. There was reported to Sister Mulholland a concern about the ambit of parental responsibility, which I have already looked at.
  8. Then there was the final area of concern; active discharge from the hospital against medical advice. That RY should do this at all, that she should feel knowledgeable and empowered enough to do it, even before she had been granted the Adoption Order and full parental responsibility, is profoundly troubling. This episode illustrates to my mind that RY had gone beyond behaviour that was merely capable of being categorised as bizarre but had, in truth, spiralled out of control. I find her judgment and her behaviour, was irrational, unstable and she had become, I am truly sad to say, a real risk to SL

 

 

There really was no way that Hayden J would have been able to grant RY’s application for adoption. He is very kind in his conclusions

 

  1. Ultimately, balancing what I have sought to identify as some really clear, captivating and obvious strengths that RY has and balancing those against the harm I have just outlined in summary, does not present to me a remotely delicate balance in determining the future for SL. The way ahead for her, whatever it may hold, is clear. The risk RY presents of harm or significant harm to SL is so real and serious and the potential consequences so grave that I find them to be wholly inimical to her welfare. It points clearly and determinatively in support of the local authority’s application under s.35(2) in effect refusing return to RY’s care. It follows, therefore, that I dismiss her application for adoption.
  2. In my lay view, RY has plainly some real emotional and psychological issues to address. I hope she is able to do so. I hope her family are able to help her to do so. In the meantime, it would not be safe, in my judgment, for her to be involved in the care of any child or vulnerable adult with disabilities.

 

 

Transparency

 

Hayden J recognised that this was a case, where the system had not worked as it should and that a very vulnerable child had been exposed to more harm in the adoptive placement that had been intended to meet her needs, and there was thus a public interest in the case being reported

 

Cases of this kind generate real public concern and rightly so. In the past a judgment such as this would not have entered the public domain. It is hardly surprising therefore that public understanding of the Family Court process and confidence in it’s system had begun to erode. The Practice Guidance of the 16th January 2014 was intended to and has achieved immediate and significant change in practice in relation to publication of judgments in the Family Courts and the Court of Protection. In April 2013 Sir James Munby P issued a statement, View From the President’s Chambers: The Process of Reform, [2013] Fam Law 548 in which he identified transparency as one of three central strands of reform which the Family Justice System is currently undergoing. This is an ongoing process in which a balance between freedom of expression, protected by Article 10 ECHR and the rights of vulnerable children to privacy and security, protected by Article 8 is often a delicate one.

 

The fundamental argument was as to whether RY’s name should be reported.  Unlike a case where identification of a parent who has harmed the child inextricably identifies the child as well, and thus should not happen, here RY and SL did not share a name and identifying RY would not also identify SL.

The Court had come very close to identifying RY in the judgment, and the single factor which mitigated against it was RY’s intention to seek help for her own problems.

  1. I have already expressed my clear view that the link between publication of the identity of the carer and any adverse impact upon the child subject to these proceedings is tenuous. However, I think RY’s entitlement to the opportunity of therapeutic support, in private, which gives the process much greater prospects of success is so manifestly in both her own interests and those of society more widely that it weighs heavily in the parallel analysis of competing rights and interests in which the starting point is ‘presumptive parity’.
  2. In my judgement the need to protect RY’s privacy while she embarks on what I have no doubt will be a difficult and challenging therapeutic process is to recognise an important aspect of her own autonomy and dignity

 

 

That does obviously raise the prospect that in a similar case, where the adopter’s conduct was not as a result of psychological difficulties or there was not a recognition of those difficulties and an intention to seek help, that an adopter who harmed the child could be publicly named in a judgment. There would be reasonable arguments that this would be the right thing to do.

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Radicalisation of children and ISIS – Jihadi Brides

Posted on August 27, 2015 by suesspiciousminds

 

This is a very powerful and disturbing case. As Hayden J says, this is a whole new category of child abuse which professionals and Courts are learning about very quickly, it just wasn’t something that had even entered anyone’s thinking two years ago.

 

London Borough of Tower Hamlets and B 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2491.html

 

It has a somewhat stellar line up of advocates,  indicative of the serious nature of the case.  In broad terms, the issue was this :-

 

Was a 16 year old girl being radicalised to prompt her to travel to Syria and became a “Jihadi Bride”,  if so, were the parents to blame in any way, and what should happen to her and her brothers?

 

In this case, the girl had been caught at the airport trying to catch a plane with that intent – rather like the recent cases before the President that resulted in ankle-tagging.  Unlike those cases, where the President was satisfied that there had been no overt or abusive radicalisation of the child, in this case there was plenty of evidence.

 

14. I have already referred to a very significant amount of what I will for shorthand call ‘radicalising material’ being removed from the household. During the course of this hearing before me I asked Mr. Barnes, on behalf of the Local Authority, to distil the material that had been removed into an easily accessible schedule identifying to whom the material was attributable. The schedule, which has not been disputed, requires to be summarised in detail.

  2. There were a number of devices attributable to B herself:

    (1) A document headed “44 Ways to Support Jihad” with practical suggestions as to the support of terrorist activity;

    (2) “The Macan Minority” urging participation in Jihadi activity;

    (3) Internet searches relating to terrorist manuals and guides to terror activities. That also included queries as to the response times of the Metropolitan Armed Response Team and the Queen’s Guard;

    (4) Internet searches as to the preservation of on-line anonymity, including, as confirmed by a police officer at an earlier hearing, the downloading of software to hide the IP address of the user’s computer when on-line;

    (5) A downloaded version of “Mujahid Guide to Surviving in the West”. Possession of that document is, of itself, a serious criminal offence. It gives guides to weapon and bomb making and to “hiding the extremist identity”.

    (6) “Miracles in Syria”. This contained information as to how to get to ISIS territory and many photographs of what are referred to as “Smiling corpses”.

    I had not understood what that meant, but I have been informed that it involves photographing the corpses of fighters whose faces are set in a smiling repose and said to reveal pleasure at their glimpses of eternal reward

    (7) “Hiraj to the Islamic State”. This contained information and advice as to how to avoid airport security. It had particular advice in relation to females intending to travel to ISIS territory via Turkey.

    (8) Footage of attacks on Western Forces in the Middle East.

  3. On one of the siblings devices there was the following:

    (1) Numerous articles, some in what are referred to as “glossy magazine format” urging flight to ISIS territory and recommending its “lifestyle”.(2) An edition of Islamic State News showing men being prepared for execution and asserting community support for it.

    (3) An edition of Islamic State News showing before and after shots of human executions.

    (4) A video of terrorist training.

    (5) A video containing images of actual executions and beheadings.

  4. On another sibling’s devices there were the following:

    (1) A number of lectures and video biographies encouraging support for ISIS activities, including videos of attacks upon Western Forces in the Middle East.(2) ‘The Maccan Minority’, seen earlier in B’s own devices, suggesting that files had been shared between the siblings.

    (3) A document called “The Constance of Jihad”. This was a five hour lecture on the need to participate in fighting against non-Muslims.

  5. Finally, from the parent’s own devices:

    (1) Lectures encouraging participation in armed attacks on non-Muslims.(2) Issues of Islamic State News showing the same executions as those seen on the devices attributed to one of the siblings, again suggesting file sharing.

    (3) Photographs of teenagers holding grenades.

  6. Reducing the material in this way to this stark list was, at least to my mind, an important exercise. The impact of the material set out in this way is both powerful and alarming. It requires to be stated unambiguously, it is not merely theoretical or gratuitously shocking, it involves information of a practical nature designed to support and to perpetrate terrorist attacks. I have noted already bur reemphasise that it provides advice as to how to avoid airport security, particularly for females. In addition, the videos of beheadings and smiling corpses can only be profoundly damaging, particularly to these very young, and in my judgment, vulnerable individuals

 

 

Deep breath. You can see therefore that the material was far beyond a ‘come to syria for a life of glamour’ blandishments that anyone could come across on the internet  – there were very strong and graphic images and terrorist manuals. You can also see that the parents’ electronic devices also contained this sort of material.

 

Importantly, much of this material involved how to conceal extremeist views and that was certainly something which had played out with these parents, who had previously come across as concerned and anxious about their daughter’s actions.

 

20. It is not uncommon in my experience, which I am confident is shared by the experienced advocates in this case, for adults in public law proceedings or child protection proceedings more generally to seek to deceive social workers. Sometimes it can be successful for protracted periods. They may conceal a drinking habit, substance abuse, or a continued relationship with a violent partner. Usually these come to the surface eventually. I am bound to say I do not recall seeing deception which is so consummately skilful as has been the case here. I have found myself wondering whether some of the material may have educated this family in skilful concealment of underlying beliefs and activities.

  2. The parents’ joint statements require revisiting. Thus:

    “We are a very strong family unit and we are doing our very best to help prevent such a situation from reoccurring. We are keeping extremely close eyes on B and trying to be encouraging of her moving without ridiculing her for her actions to the extent that this incident forever haunts and affects her day to day living. I, the mother, am particularly sensitive of how we manage the situation which we view as very serious due to my work…
    I understand how to empathise and assist those in need of support through open questioning techniques and motivational encouragement, and have done this with B at great length since the incident to help understand what went wrong. We had thought that we were nearing a stage of putting the incident behind us, having worked together as a family, convening weekly family discussions and opening up about how to move on…”

    “The police officer ‘x’ offered a piece of technology costing £79 which allows complete monitoring of the computers in the house. The instructions were followed and it was bought and a friend who is technologically minded (which neither if us are) installed it for us. The children are not aware of it. We completely understand the police and Social Service’s concerns, but we don’t want any intervention to further impact our family lives for the unforeseeable future. The risk in our minds is not high at present of B leaving the UK, particularly given that all of our passports are being held by our solicitors. We would agree with whatever measures are deemed necessary to prevent risk to B and following the explanation given at the initial child protection conference have agreed, or already carried out, the protective tasks itemised in the assessment report.”

    They were fulsome too in their praise for the social worker:

    “The new social worker explained her role and again seemed very sensitive to the need to limit and time her visits according to B’s studies. We have readily accepted the recommendations of the conference. We were impressed by the thoughtful and specific thought all there gave B. She did not feel like she was lumped together with other girls for no clear reason. The professionals at the meeting voiced confusion themselves about an initial child protection conference being held whilst the child is warded. The Chair expressed concern that it seemed a decision had been made that there must be a child protection done before the conference. In fact following the open and frank discussion at the conference, all professionals voted unanimously for a time limited Child in Need plan. We were very relieved, and repeat, we will grab with open arms practical and genuine offers of help in getting past this terrible event provided we think they will help. We also repeat we are so grateful to those who stopped S getting to Turkey.”

  3. Evaluating those passages alongside the material that was discovered in this household reveals that much of what was said was in fact an elaborate and sophisticated succession of lies.

 

 

It was a very difficult situation for the Court to deal with. There had been limited opportunity for professionals to talk to the boys.  It is worth noting here that Hayden J acknowledges that Courts are often obliged to take social workers to task for poor practice, but here the work that the social worker had done was to be commended.  Hayden J felt that there was no alternative but to remove the girl, B.  He makes a comparison with the nature of the abuse she was suffering which is a strong and powerful one. I will leave it to others to consider whether they think it is too strong or about right.

 

The decision for the boys was much harder.

 

  1. The police found it necessary, as a precaution, to limit professional access to this family. The need for that, to my mind, was self-evident. It has, however, meant that I have limited information into the lives of the male children.
  2. The Local Authority apply to remove each of the children from the household; not just B but the boys too. So corrosive and insidious are the beliefs in this household, it is argued, so pervasive is the nature of the emotional abuse, so complete is the resistance to intervention, and so total the lack of co-operation, that the emotional safety of the boys, the Local Authority says, cannot be assured. I have some sympathy for that view. Nonetheless, in exchanges with Mr. Barnes on behalf of the Local Authority the following, to my mind, important facts have emerged. Firstly, it is conspicuous that radicalised material was not found on the boys’ devices. Secondly, the boys, through a variety of sporting interests, have a much wider integration into society more generally and, on my, as yet, superficial assessment, a healthier range of interests. Between sport and study there is, I suspect, little room in their lives for radicalised interests. Thirdly, it was one of the boys who first sounded the alarm about his sister’s flight. The exact account of that, like everything else this family says, must now be viewed with very great caution, but I strongly suspect there is a core truth that it was the action of one of the brothers that foiled B’s flight to Syria. Fourthly, two of the older boys will be starting 6th Form education at college very soon, and accordingly they will be more exposed to professional scrutiny.
  3. I will require a thorough intense and comprehensive social work assessment of the boys’ circumstances. I will then be able better to decide whether their situation in this household is sustainable or not. Until I have the information I am not prepared to sanction their removal. It may or may not be necessary in the future. The balance of risk, it seems to me is, significantly different in the cases of the boys, at least at this stage. The Guardian supports such a course. Though I hope she will forgive me for saying so, I have not placed very much weight on her view. She was only appointed a few days ago. She has not had any opportunity to meet the children at all. She has an inevitably incomplete knowledge of the background of the case, and virtually no understanding of the wider issues, having, as she told me, never been involved in a case of this nature before. She is in an entirely invidious position. I am sympathetic to her and I do not intend these simple statements of facts to be construed by her in any way as a criticism. They are not.
  4. The social worker appointed in this case, by contrast, has in my assessment
    a deep, well informed and intelligent understanding of the issues. She has been working this case and with this family now for some time. It is in the nature of the proceedings that come before this court, in particular, that the actions of social workers often fall to be scrutinised and are from time to time found to be wanting and deprecated in judgments. The opposite situation arises here. This social worker has, in my judgment, made an outstanding contribution to the case. All those who have encountered her, the lawyers, the police, the guardians, have been impressed both by the extent of her knowledge of this family and by her professionalism. She has formed a very important, and in my judgment, highly effective link between social work and police operations. She has had to absorb and re-analyse her work in a dramatically changing landscape. She gave evidence. She told me she had forged a strong, open, working relationship with B, as she thought. She had been convinced, and she is not, I suspect, unhealthily sceptical, that she had achieved, in effect, a professional result with B.
  5. It is obvious listening to her that despite everything that has happened, she has some affection for B and her professional concern remains. Now, she told me, B will not sit near her or talk to her. The social worker is not deterred. She continues to work to try to engage B in a meaningful dialogue. As she gave evidence, I took the view that this social worker, though saddened by the deception on a personal level, had merely girded her loins and resolved to try to re-forge the relationship. I am not able to identify her by name in this judgment, though I should like to have done so. To do so would only risk compromising the anonymity of the children. I have not lightly rejected her social work assessment in relation to the boys. Her understanding of B is considerable, as I have emphasised, but I have the strong sense, which to her credit she readily acknowledged, that her knowledge of and assessment of the boys was far from complete. As I have said, the balance of risk, at least for the present, is different.
  6. I have no hesitation in concluding that B has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent’s care. I can see no way in which her psychological, emotional and intellectual integrity can be protected by her remaining in this household. The farrago of sophisticated dishonesty displayed by her parents makes such a placement entirely unsustainable.
  7. I return to the comparator of sexual abuse. If it were sexual risk that were here being contemplated, I do not believe that any professional would advocate such a placement for a moment. The violation contemplated here is not to the body but it is to the mind. It is every bit as insidious, and I do not say that lightly. It involves harm of similar magnitude and complexion.
  8. I approach the Local Authority’s proposals by considering B’s needs at this juncture. I am required to do so by Section 1(1) of the Children Act 1989. What she needs, I find, is to be provided with an opportunity in which she can, in a peaceful and safe situation, be afforded the chance for her strong and lively mind to reassert its own independence. An environment in which there are the kind of vile images that I have described and the extreme polemic I have outlined, can only be deleterious to her emotional welfare. I hope she can be provided with an opportunity where her thoughts might turn to healthier and
    I hope happier issues. I have no doubt, as has been impressed upon me by her counsel, that she will find separation from her parents, particularly her siblings, to be distressing, though I note she was prepared to leave them to go to Syria. I do not doubt that the social worker will struggle to find a placement which meets the full panoply of her welfare needs which has been emphasised on behalf of the guardian, but I entirely see why the Local Authority plans or proposals are, of necessity, only general in outline and, to some extent, inevitably inchoate. However, I am entirely satisfied that this social worker will make every effort to ensure the best possible option is achieved for B. That is the Local Authority’s responsibility.

 

 

I note that the parents in this case have been charged with an offence,

 

On 12th August the parents and other siblings were arrested on suspicion of “possessing information likely to be useful to a person committing or preparing an act of terrorism.” That is an offence contrary to s.58 of the Terrorism Act 2000 and carries a substantial custodial sentence.

 

 

What this case really shows is just how sophisticated the grooming process for radicalising young people and families can be, and that over and above the grooming and information about going to Syria and practical arrangements there is sophisticated material and advice on deceiving professionals and allaying professional suspicion.  These things represent completely new challenges and Tower Hamlets (amongst some other authorities) have got really valuable insights and experiences to share with other agencies who might encounter these issues. I hope that there are some joined up discussions to take place about the best way to share these insights and new found expertise.

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High Court expresses doubt that the inherent jurisdiction covers the ‘name and shame’ CSE cases

Posted on July 21, 2015 by suesspiciousminds

 

Readers will probably be familiar with the case of Riaz, where Keehan J was invited to use the inherent jurisdiction to make injunctions preventing a group of men who were believed to pose a sexual risk to children from associating with children, and also allowed them to be named in the national press.

https://suesspiciousminds.com/2014/12/16/child-sexual-exploitation-birmingham-injunction-case/

 

At the time and still, I have mixed feelings about that case.  As a society, we do desperately want to do something to protect children from Child Sexual Exploitation, and we have to face the reality that criminal prosecutions often cannot get off the ground where the child does not want to make the complaint or give evidence. And at the moment, the only remedy to protect such children is Secure Accommodation – i.e locking them up for being victims, which doesn’t sit well with anyone.

 

Therefore, when Keehan J announced that he was using the inherent jurisdiction to make injunctions that would prevent men suspected of sexually exploiting children from spending time with children, in a ‘bold and innovative’ move, I was really hoping that it would be a robust mechanism that could be deployed by Local Authorities.

 

However, when I saw the judgment, I was concerned that it was placing a great deal of weight on the concept that inherent jurisdiction has theoretically limitless powers. I wondered whether it was robust enough if the men who were being subject to the orders sought to challenge the power to make them.

And so it has proven

 

London Borough of Redbridge v SNA 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2140.html

 

The London Borough made their application, before Hayden J, set out that they relied on the Riaz case as authority for making the application and no doubt confidently thought that if they could persuade the Judge to the civil standard of proof that these men were more likely than not to pose a risk to children, the order would be made. However, the power to make the order was challenged.

 

The limit that Hayden J draws is the one that myself and Martin Downs of counsel observed at the time – the inherent jurisdiction has powers to make orders to protect a particular named individual child from such men, but the Riaz order was drafted broadly to protect all children. Hayden J feels that this went too far.

 

 

  1. It is easy to see why the Local Authority has brought this application. Indeed, given the emphasis in Dr. Parsons’ report on the risk to adolescent females the Local Authority may very well have faced criticism for failing to act, given the apparent jurisdictional basis on which to do so highlighted in the Birmingham case. If I may say so Mr Lefteri has advised the Authority entirely properly and has prosecuted his case succinctly and effectively. In the course of exchanges however, he could identify no jurisdictional basis for the order he sought other than the Birmingham case.
  2. Mr Lefteri concludes his supplemental submissions thus:

    “It is respectfully submitted that the use of injunctive orders pursuant to the inherent jurisdiction should be perceived as a deterrent to dissuade abusive and exploitative practices of the perpetrators of sexual abuse, not to dissuade Local Authorities from adopting the “bold and innovative” approach of Birmingham City Council for the protection of children.

    The Local Authority does not suggest that the use of injunctive orders should be used as a substitute for the Police actively pursuing Sexual Risk Orders. Indeed, multi-agency cooperation and sharing of information should be strongly encouraged by this Court, irrespective of the outcome. It is respectfully suggested that as a matter of good practice, Courts in care proceedings (or indeed any other family proceedings) where findings of sexual abuse or harm are made, should immediately direct the disclosure of the Court’s judgment to the relevant Police department.

    The purpose of keeping the remedy open to the High Court is to provide potential relief to Local Authorities under the inherent jurisdiction in the future, to account for transitional protective arrangements or where Sexual Risk Orders are inappropriate, delayed or unavailable. The Court will undoubtedly consider each case on its facts and circumstances and consider the implications of such an order on the Convention Rights of each individual against whom such remedy is sought.”

  3. These are important issues and I reserved judgment to reflect on the arguments. The concept of the ‘inherent jurisdiction’ is by it’s nature illusive to definition. Certainly it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’. But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited. Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.
  4. The point is illuminated by considering the fetters that exist on the scope of the inherent jurisdiction in those cases where the needs of an individual child are in issue. In Holmes-Moorhouse v Richmond Upon Thames London Borough Council [2009] UKHL 7 the House of Lords emphasised that a child who is a Ward of Court cannot be regarded as having special privileges, nor has the High Court any power to obtain access to resources for a Ward which would not be available otherwise. The same principle is reflected in the situation of the incapacitous adult see: Aintree University Hospitals Foundation Trust v James and Others [2013] UKSC 67.
  5. Not only is the scope of the inherent jurisdiction restricted but the interface between the Family Court or the Court of Protection and Public Authorities is subtle. Thus the High Court may try to persuade a Public Authority to act in a way which the court considers to be in the best interest of the child but it must not allow itself to be utilised to exert pressure on a public authority see: R v Secretary of State for Home Department ex p T [1995] 1 FLR 293.
  6. The development of Judicial Review, as illustrated by ex parte T (supra), has also served to curtail the exercise of the powers of the inherent jurisdiction. No power be it statutory, common law or under the prerogative is, in principle, unreviewable. The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the Judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.
  7. Whilst sympathetic to the objectives of this Local Authority and indeed to those of Keehan J in the Birmingham case, I think Ms. Johnson is correct when she says that to extend the scope of the inherent jurisdiction to children who are neither known nor subject to any proceedings, is to go beyond the parameters of it’s reach. However well intentioned the ambition to prevent child sexual exploitation generally, this is ultimately to make a utilitarian calculation of social policy. The framework within which such children should be safeguarded and protected is for Parliament to create and for the Courts to enforce.
  8. Certainly, a survey of the case law reveals that however creatively the jurisdiction may have been implemented it has always been deployed to protect or promote the best interests of an identified child or vulnerable adult. The most recent consideration of the jurisdiction was by Sir James Munby, the President of the Family Division, in Re M (children) [2015] EWHC 1433 (Fam). In considering whether to grant leave pursuant to s100 (4) the President addressed the application in this way:

    “27. The local authority has turned to the court inviting its assistance and proposing recourse to the inherent jurisdiction, to wardship. That requires consideration of section 100 of the Children Act 1989. There was, in my judgment, reasonable cause to believe that, if the court’s inherent jurisdiction was not exercised, the children were likely to suffer significant harm, as that expression is defined in section 31 of the 1989 Act: see section 100(4)(b) of the Act. I had no doubt that this is a case in which I should give the local authority leave in accordance with section 100(3) of the Act. I was satisfied that each of the conditions in section 100(4) is met. Quite plainly I should exercise my powers under the inherent jurisdiction. The questions was, can I and if so how?”

  9. Answering the question posed in that final sentence, the President sets out his reasoning thus:

    “29. The Crown – I put the matter generally and without descending into detail or identifying any qualifications to what I am about to say – has a protective responsibility for its subjects wherever they may be, whether in this country or abroad. The correlative of this, as both Casement and Joyce ultimately discovered to their cost, is the subject’s duty of allegiance to the Crown wherever he may be, whether in this country or abroad: see The King v Casement [1917] 1 KB 98 and Joyce v Director of Public Prosecutions [1946] AC 347. As Darling J said in Casement (page 137), “the subjects of the King owe him allegiance, and the allegiance follows the person of the subject. He is the King’s liege wherever he may be”.”

    “30. Now the significance of this in the present case – I say nothing whatever of its significance (if any) in relation to the children’s parents – is that the Crown’s protective duty, as parens patriae, in relation to children extends, in the case of a child who is a British subject, to protect the child wherever he may be, whether in this country or abroad.”

  10. The emphasis in bold above is my own. What is plain is that the President is contemplating the inherent jurisdiction in the context of an individual child, casting his language in the terms of the Practice Direction 12 D (see para 17 above).
  11. In Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, Thorpe LJ made the following observations in relation to the scope of the inherent jurisdiction:

    “42. The first is that in my opinion the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. Parens patriae jurisdiction has a fine resounding history. However its practical significance has been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation, so vital with the steady increase in mobility and mixed marriage together with an equal decrease in the significance of international frontiers, we must refrain from exorbitant jurisdictional claims founded on nationality. To make a declaration of unlawful detention in relation to a child of dual nationality cared for by a biological parent in a jurisdiction whose courts have sanctioned the arrangement by order is only to invite incomprehension, and perhaps even stronger reactions, in that other jurisdiction.”

  12. Later, Thorpe LJ reviewed the existing case law and observed:

    “I accept Mr Everall’s submission that the decision nearest in point is the judgment of Ward J in F v S (Wardship: Jurisdiction) [1991] 2 FLR 349. In that case Ward J held that where the court in wardship did not have jurisdiction under the Family Law Act 1986 to make an order in relation to a child’s care and control it should not assume inherent jurisdiction to make an order for the recovery of the child. In his judgement he categorised such an order as ‘a devious entry to the court by the back door where parliament has so firmly shut the front door’. Although his judgment was subsequently reversed on the facts, his conclusions on jurisdiction were not criticised. In my opinion by analogy there is equally no jurisdiction to make a declaration of wrongful detention in similar circumstances.”

 

 

He refutes any notion of sharp practice by Keehan J

 

I would wish to make it abundantly clear that I do not consider Mr. Lefteri’s application here to be ‘a devious entry to the court by the back door where parliament has so firmly shut the front door’. I most certainly do not suggest that of Keehan J either. I am, as I have been at pains to stress, entirely sympathetic to their respective objectives but as Thorpe LJ emphasises this is a jurisdiction that should be used with ‘extreme circumspection’ respectful of the role of Parliament.

 

 

But decides that use of the inherent jurisdiction to protect all children or a raft of children rather than individual named ones has finally found a limit to the inherent jurisdictions theoretically limitless powers

 

Cumulatively therefore, reviewing the relevant law, statute and practice directions, I have come to the clear conclusion, for the reasons I have set out above, that the injunctive relief sought on behalf the London Borough of Redbridge is outwith the scope of this Court’s powers. I recognise that in this and on this point only I disagree with the approach taken by Keehan J in the Birmingham case.

 

 

Hayden J also points out that at the time Riaz was decided, the Sexual Risk Orders hadn’t come into force  (they’d been in the statutory powers for nearly a year but hadn’t been implemented, and they now have). So from this point on, you can use the inherent jurisdiction to protect AN individual child from risky persons, but if you want to stop those risky persons being around children, you’ll need to use the criminal jurisdiction (which is going to be the police making these applications  – underlinign as ever, mine)

 

  1. Serendipitously, at least for the purposes of my analysis, Parliament has now amended parts 2 and 3 of the Sexual Offences Act 2003 and the Anti-social Crime and Policing Act 2014. Section 122 A provides for the making of ‘Sexual Risk Orders’ (SRO) and outlines the Grounds on which they may be obtained and their effect:

    Sexual risk orders (England and Wales)

    122A Sexual risk orders: applications, grounds and effect

    (1) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the chief officer or the Director General that the following condition is met.

    (2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

    (3) A chief officer of police may make an application under subsection (1) only in respect of a person—

    (a) who resides in the chief officer’s police area, or

    (b) who the chief officer believes is in that area or is intending to come to it.

    (4) An application under subsection (1) may be made to any magistrates’ court acting for a local justice area that includes—

    (a) any part of a relevant police area, or

    (b) any place where it is alleged that the person acted in a way mentioned in subsection (2).

    (5) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (1).

    (6) On an application under subsection (1), the court may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—

    (a) protecting the public or any particular members of the public from harm from the defendant, or

    (b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

    (7) Such an order—

    (a) prohibits the defendant from doing anything described in the order;

    (b) has effect for a fixed period (not less than 2 years) specified in the order or until further order.

    (8) A sexual risk order may specify different periods for different prohibitions.

    (9)The only prohibitions that may be imposed are those necessary for the purpose of—

    (a)protecting the public or any particular members of the public from harm from the defendant, or

    (b)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

    (10)Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

  2. When Keehan J heard the arguments in the Birmingham case these provisions had not come into force and accordingly, the protection that they offer was, at that stage, not available. I have been told by Mr Lefteri that an application has been made to a Magistrate’s Court in respect of SNA it is believed that the conditions for the making of such an order are met. That will ultimately be a matter for the Magistrates Court. It would seem therefore, that the protection contemplated in this application may, in due course, be available. Recognising this from the outset Mr Lefteri sought orders in this Court in an attempt to ‘hold the ring’ until orders have been made in the criminal courts.
  3. There are sound reasons why the criminal courts are the correct venue to consider the making of these orders. Firstly, and most obviously, Parliament, after proper scrutiny, has carefully defined the scope and ambit of the provisions. Secondly, notwithstanding the considerable advancements made in achieving much greater levels of transparency in the Family Court, a judge sitting in this jurisdiction will invariably have to protect the identity of the child and in order to do so, preserve, by a side wind, the anonymity of a perpetrator. I do not believe any right minded person having read my short review of the facts of this case (above) would consider it appropriate to expose this young girl to the inevitable harm of publicity. The Press, in my experience, have been assiduous in their respect of this principle.
  4. In the Criminal Courts however, the focus is different. There is now, rightly, much greater emphasis on the ‘victim’ but that is wholly different to the range of the enquiry necessary in the Family Courts. In the Criminal Court, where the liberty of the individual is in issue, the public interest in the administration of the criminal justice system must always weigh heavily. The Criminal Courts are now, frequently, able to conduct trials entirely in the public domain whilst at the same time protecting the identity of the Complainant and, where necessary, his or her relationship to the Defendant. Certainly, where the Complainant is a minor, society recognises the necessity of this measure. The family justice system is unlikely to replicate this. Thirdly, the responsibility for the policing of such orders rest with the police who are far better equipped than social services to monitor compliance

 

 

 

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Irn Brouhaha

Posted on July 16, 2015 by suesspiciousminds

 

I apologise to any readers north of the border for that dreadful gag.

 

Re M 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/2082.html

 

The quick summary on this was “mother applies to discharge care order and in the alternative for more contact” so I wasn’t expecting much out of the case when I opened it up. But then I saw four Silks in the case and I thought “oh hello”

 

In very brief summary, His Honour Judge Dowse made findings that a father (F1) had sexually abused a child. The mother’s resistance to accepting those findings and her continuance of a relationship with father led to a series of care proceedings, ending up with seven children being permanently placed away from the mother.  The oldest C1 is subject to a Freeing Order but has not been adopted, the next oldest C2 is placed with an aunt, C3-C7 have all been adopted.

 

And then there is child C8, who is presently living with mother and her new husband (F2) in Scotland, under no orders.

This is the Irn-Brouhaha  –  the Scottish equivalent of care proceedings was brought in Scotland in relation to child C8 and the Court there concluded that there had not been any sexual abuse, and thus no failure to protect.

That was all well and good for the mother and C8, but raised obvious questions of what should happen with child C1 and C2.  If a Court rules that there was no abuse and there is no risk, should they come home?

 

As you may know, I am no admirer of the 350 page limitation, so I had to smile at this particular line from Hayden J

So scrupulously have the documents been pared down for the application before me, in compliance with the President’s Guidance, that it is not possible to track the evolution of these proceedings clearly from the papers filed.

 

 

The big argument for the case was therefore – what legal status does the Scottish judgment on C8 and the sexual abuse allegations have on the English Courts dealing with C1 and C2?

 

  1. In the course of the proceedings in Scotland the Court was persuaded to re-open the findings of HHJ Dowse. At the conclusion of the Scottish hearing, before Sheriff O’Carroll, the court reached a very different conclusion. In his judgment of the 30th October 2013 the Sheriff found that he was unable, on the evidence before him, to find that the Reporter (whose status is similar to that of the Local Authority in England) had discharged the burden of proving, to the civil standard, that M and F1 had been involved in the sexual abuse of any of their children. The allegations, on this aspect of the case, had been placed before the Scottish Court in this way:

    “2. On various occasions between 22 February 1998 and 1 October 2005, at various addresses in the north of England, exact addresses meantime unknown, M and F1 caused C1, C3 and C4 (who were all under the age of thirteen at the relevant times) to participate in sexual activity and caused them to touch, with their hands or their mouths, the genitals, anus and breasts of M and the penis of F1.

    3. Statement of fact 2 demonstrates that M committed an act of lewd and libidinous practices and behaviour. This an offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995.”

  2. In respect of these allegations the Sheriff stated in his judgment:

    “320. […] However, I am unable on the evidence before me to find that the reporter has discharged the burden of proving to the civil standard that statement of fact 2 is proved. It follows that SoF 3 is not proved.”

    By contrast Judge Dowse found:

    “Both parents were involved in explicit and inappropriate sexual behaviour with C1, C4 and C3 and neither protected the children from the other.”

     

 

It is always curious to see how wording differs in other countries – the ‘lewd and libidinous’ adds something here, I think.

 

Non lawyers may not be aware that Scotland has an entirely separate legal system to England and Wales – the statutes are different, the process is different and they have their own case law. The only time that the cases cross over is when the Supreme Court has to decide a case, when the Supreme Court (which is full of English Judges) has to apply Scottish law to the case and reach a decision.  This means establishing whether the Scottish judgment has any legal weight is not a simple task.

 

 

25. Mr Tyler and Mr Booth have drawn my attention to: Stare Decisis and Scottish Judicial Decisions, J.K. Bentil, [1972] Modern Law Review 537. They adopt the analysis of the legal status of Scottish judgments on the law in England and Wales set out in that paper:

    1. “Apart from the fact that some Scottish judicial decisions which go on appeal to the House of Lords may create binding precedents for the English Courts, the effect on English courts of certain Scottish judicial decisions in their own right appears to have received little or no attention this side of the border. Theory has it that generally Scottish judicial decisions are not binding on the English courts but have persuasive effect only. But in actual practice, the weight of authority on this side of the border tends to suggest that certain Scottish judicial decisions, notably those concerned with the interpretation of statutes of common application on both sides of the border, are indeed binding on English courts.”

The ultimate conclusion reached is as set out in paragraph 20 of their Skeleton Argument:

“Although we cannot assert the Sheriff’s judgment to have a formal (in the sense of automatically enforceable) status, it is clear that it has some status, or perhaps better worded, a ‘real significance’.”      

 

 

 

 

 

 

 

I always dread to type the words Brussels II  in a blog post, but I have to.  (It always makes me think of Stephen Hawking’s publisher telling him that every equation in “A Brief History of Time” would cut sales in half. He only actually used one, in the final version)

Very briefly, if the Scottish judgment here had been in Lithuania, or France, or Portugal, the English Court would have to take it into account, and of course, mother could argue that under article 15 the case ought to be dealt with entirely by Scotland.  but Brussels II specifically does not apply to cases between England and Scotland.

In Re PC, YC & KM (Brussels II R: Jurisdiction Within the United Kingdom) [2014] 1 FLR 605 Baker J observed at para 16:

“It is widely recognised that the provisions governing conflicts of jurisdiction in children’s cases within the UK are, in the words of Thorpe LJ in Re W-B, supra, at paragraph 29, “difficult and complicated.” He was referring in particular to the provisions of the Family Law Act 1986, but as Miss Green has demonstrated, there is similar difficulty and uncertainty as to the applicability of BIIR to the allocation of jurisdiction within the UK.”

Nonetheless he went on to conclude at para 18:

“Given the clear view expressed emphatically by the Court of Appeal very recently in Re W-B, I reject Miss Green’s submissions and adopt the orthodox view that BIIR does not apply to jurisdictional disputes or issues arising between the different jurisdictions of the United Kingdom. Article 15 could not, therefore, be used to transfer these proceedings from England to Scotland.”

 

So the nutshell answer, after four QCs have sweated over it and a High Court Judge have looked at it is, “the Court don’t HAVE to consider it, but probably best not to just ignore it”

We then get into the law on re-opening cases.

Hayden J sets out all of that law very beautifully, but I think that I will cut to the chase, which is Lady Hale’s line In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11.”  about situations in which a party wants to challenge findings that had been made by an earlier Court.

“In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”

But also

    1. “(a) that there is a public interest in an end to litigation – the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; [1997] 1 FLR Hale J Re B (CA Proceedings) (Issue Estoppel) (FD) 295”
    1. (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but
    1. (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and
    1. (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 947, ‘must be applied so as to work justice and not injustice’.
  1. In a further passage that I find has particular resonance to the issues in this case Hale J observes:

    “(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone.”

     

It is ultimately a matter of Court discretion to decide whether to re-open previous findings, but a Court is allowed to consider that there’s limited value in re-running the case unless there’s a decent chance of arriving at a different outcome.

Of course here, we have two judgments, in different countries, which reach diametrically opposite conclusions. That led to some of the barristers having to argue that the Scottish judgment was an exemplar model of the way these things should be done and that HH J Dowse’s judgment was so flawed it ought to have been appealed anyway  (so the Scottish judgment is so superior it establishes a reason for re-hearing) and others having to argue that they were merely Judges reaching different conclusions.

I myself rather liked Mr Howe QC’s approach for the Guardian  (but the Judge did not)

  1. Mr Howe QC, on behalf of the children, engages with these factors in a rather different way and comes to the following conclusion:

    “The Guardian has taken into account the impact on C1 of the court concluding that the allegations were not proved but on balance, and for the reasons given, it is submitted that the balance falls in favour of the court permitting some reconsideration of the findings made by HHJ Dowse on 17th October 2007.”

  2. Mr Howe also submits:

    “the weight to be attached to the Scottish judgment does not arise from any assessment of its merit as an expression of the forensic exercise undertaken. The weight of the Scottish judgment is in its effect. Looking at these circumstances from C1’s perspective, it would be incomprehensible to her that the English court did not ‘think again’ and reconsider, not necessarily overturn, but at least take another look at the allegations given what was found in the Scottish court and how the findings there have enabled a relationship between C8 and M and F2 that, on the evidence before this court, appears to be entirely appropriate and beneficial for him.”

  3. Finally, Mr Howe comments:

    “It is submitted that C2 has to be granted the possibility of some relationship with her sibling and mother by the court agreeing to reconsider the previous findings.”

     

I know that not everyone is fluent in Elegant, so to translate  “It is really important for these children to get to the truth, whatever that might be, and whichever of these judgments is right the fact that they directly contradict each other means that at the moment there is doubt, which can only be eradicated by a re-hearing”

[I  agree with Mr Howe QC here. But as I told you, the Judge did not.  And he was not shy about saying so]

  1. It is self-evident that the interests of neither child is served by an erroneous determination of fact. Such a statement is platitudinous out of context. More than that it can be a dangerous, siren call unless it is considered carefully alongside the other features identified by Hale J in Re B. It is important to recognise that the factors she there identifies are inevitably interrelated. Thus: the insidious dangers of delay have to be considered alongside the more obvious damage caused by erroneous findings of fact. These tensions are notoriously difficult to reconcile and are ever present in family law.
  2. As the President identifies in ZZ (supra), the court’s discretion has to be applied so as to work ‘justice and not injustice’ and so the starting point is, again as he identifies, whether there is ‘some real reason to believe that the earlier findings require revisiting’. That seems, to my mind, to resonate closely with the observations of Hale J: ‘whether there is any new evidence or information casting doubt on the original findings’ (Re B supra). With respect to the Guardian, her views as to the value to C2 of ‘having another look’ lose focus on these important principles and fail to give sufficient weight to the real impact on these children of once again re-opening litigation, which itself may fail to resolve the present situation.
  3. Moreover, I am not prepared to draw the inference, suggested by Mr Howe, that because C1 instigated a further interview, following the Scottish Judgment, she therefore should be taken as signaling a willingness to participate in further litigation. She does not know, for example, what the reach of further litigation might be, nor does she yet have the maturity to understand what its impact on her could be. Before concluding that an issue should be reheard there must really be a substantial reason to believe that further litigation will achieve some clarity. In the light of my view of the validity of each of the respective judgments and finding myself un-persuaded that there are any other solid grounds for believing that a rehearing will result in any clarification of the present position , I can see no basis upon which to grant the application for a rehearing of the English proceedings.

 

[There is a lot in the judgment about a factual comparison between the judgments, and the basis on which the Scottish courts reached a different conclusion. I’m afraid that you would need to read that to fully grasp why on the facts the Judge felt that a re-hearing of the allegations was unlikely to reach a different result.  In very brief terms there were two major issues – that the Scottish Courts had relied on an expert doing something like a ‘veracity’ assessment which is out of favour here and the issues that came up in it were things that HH Judge Dowse had taken into account anyway, and that reliance had been placed on the children saying different things in an ABE interview done years later and the Court felt that this was not unexpected.   I wouldn’t say that I end up wholly agreeing with the conclusions, but because the decision here is largely fact-specific, you do need to read those sections to form your own conclusion about whether the Judge here was right. ]

And finally – wider interest

    1. Finally, I very much regret the delay involved in delivering this judgment. The case provides a powerful reminder of the consequences that ensue when the advocates fail to allow sufficient time in their estimates of hearing for a judge to write and deliver a judgment. The provision of one day to write this judgment is, I hope, self evidently inadequate. All counsel must regard it as a professional obligation to factor time for the judge to write and deliver a judgment into their time estimates. This is a professional duty which should be seen as a facet of the requirement to avoid delay in proceedings concerning the welfare of a child. I take the opportunity here to highlight a pervasive problem which requires to be addressed more widely.

 

It must certainly be the case that a judgment which requires a Judge to look at the intersection of Scottish and English law, Brussels II and all the law on issue estoppel was foreseeably going to take more than a day to write.   I wonder how in a more normal case, counsel are to arrive at a time estimate for a Judge to write the judgment, presumably at IRH so that time can be allocated within the Court listing for the final hearing    (Those advocates who feel the case is a slam-dunk are likely to be estimating 2-3 hours, those who are hoping to persuade the Court that the case is finely balanced before tipping in their favour are likely to be estimating 2 days so that the Court can see that this is a really tricky case which will need very long thought)

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section 20 and Brussels II

Posted on April 7, 2015 by suesspiciousminds

 

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

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

 

We have had:-

 

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

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

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

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

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

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

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

 

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

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

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

 

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

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

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

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

(i) Parental responsibility or rights;

(ii) Custody; and

(iii) Access.

Both parents have parental responsibility. No application is required.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Children travelling to join ISIS

Posted on April 1, 2015 by suesspiciousminds

The Tower Hamlets case attracted quite a bit of media attention, and the judgment is now out. It contains quite a bit of practical guidance for all agencies where there is a concern that a child is going to be sent or going under their own volition to a country such as Syria with an intention that they join a terrorist organisation such as ISIS.

Tower Hamlets v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/869.html

The case was heard, alongside another one mentioned in paragraph 6, by Mr Justice Hayden.

The Judge recognised that the seizure of the children’s passports did not require any evolution or extension of the law, but could be done under existing provisions, but did set out some practical recommendations to be followed.

 

  1. This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
  2. Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
  3. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.

 

The Judge went on to explain that by candour, he did not just mean honesty and that this was a given, but that the evidence presented to the Court for such an application must be the fullest possible, and that even evidence that would seem to be harmful or hinder the application must be shared with the Court.

  1. Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
  2. This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
  3. Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.

There were a couple of points in the Tower Hamlets case that prompted that – the first being that the orders made necessarily required the police to take a number of actions – the Court had understood that the police were aware and supportive, only to learn at a later stage that the police were unhappy about some of the things they had been asked to do.

This was very serious. Counsel for the Local Authority had specifically addressed the Court on this, and his instructions had been plain that the police supported the Local Authority applications and said so unequivocally to the Court twice. [I will make it really plain that the Judge was satisfied that Counsel had been sold a pup, rather than was intentionally misleading the Court]

 

  1. I had been told by Mr Barnes, counsel who appears on behalf of Tower Hamlets, at the first hearing, on 20 March, when the Local Authority appeared alone, that the police supported the Local Authority’s actions. In fact, I twice asked whether that was the case, and twice Mr Barnes reassured me, unequivocally, that it was. I have no doubt at all that those were his instructions.

Hoerver, after the orders were made, it had become obvious that the police had not been as involved in the process as the Court had been led to understand. To the point that the police had been liaising with the High Court tipstaff about wanting to see if the passports could be handed over voluntarily by the families, and the Judge suspended his orders.

 

  1. However, on Saturday afternoon, I received a telephone call from the High Court Tipstaff to inform me that the police considered that they had not had proper chance to evaluate the risk identified in the Local Authority’s application. And insofar as they had, they considered that enforcement of the orders might not be required.
  2. In essence, I was told, they wished to see if it might be possible to secure the surrender of the passports, as contemplated by the orders, by cooperation with the families.
  3. In view of the fact that this information, given to the High Court Tipstaff, came from a team specialist in counter terrorism, and I have been told authorised at very senior level, I ordered the immediate suspension of my earlier order.

 

That is obviously extremely serious, and the Judge rightly explored it further on the return date.

  1. However, during the course of that hearing, Mr Barnes confirmed that a misleading impression had indeed been given by the Local Authority to the court on 20 March.
  2. Whilst it is correct to say that the police had been informed of the applications, as I was told, investigation of how and when they were told, undertaken at my insistence, revealed that they had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response.
  3. I pause to say that by 3.30 that afternoon the Local Authority were already before me.
  4. I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.

Very serious indeed.

 

The second was that there had been an issue over whether one of the children’s passports was (a) missing and (b) whether it was expired in any event. This was obviously a very critical point, given that what was being sought was orders to prevent the children leaving the country. The Court had been given information about this, in good faith, that later turned out not to be accurate. (It is all set out at the end of the judgment if you want to know more)

 

I should like to take this opportunity to distil a number of core principles.

(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;

(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;

(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;

(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;

(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be ‘hard’ evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;

(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;

(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the ‘jigsaw effect’. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;

(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with whom they interact more generally;

(ix) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. An ongoing dialogue in which each party respects, and I make no apology for repeating the word respect, the contribution of the other, is most likely to achieve good and informed decision making.

 

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