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Separate representation of a child – a thorny problem

Posted on September 20, 2018 by suesspiciousminds

 

It is well-established that in care proceedings, if a child is capable of instructing a solicitor and disagrees with the recommendations or conclusions of the Guardian that they can be separately represented, and have their own lawyer, who takes instructions directly from them.

You don’t get many cases which describe what happens where there is a disagreement about whether the child SHOULD be separately represented  (in my experience, when the child’s solicitor says that the child has capacity and disagrees with the Guardian, it is accepted by everyone and the Court that the Child should be separately represented)

So this is a case where there was such a dispute, and the Court gave a decision, and also summed up some useful guidance. It is a CJ decision, so NOT BINDING, just informative.

 

Re Z (A Child – care proceedings – separate representation) 2018

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B57.html

First things first. It was VERY very clear that the child was extremely bright. He wrote a letter to the Court setting out a table of balancing factors in the case (a task which is beyond many of the other stakeholders in the family Courts…) and he absolutely had intellectual capacity to instruct a solicitor.  One of the barristers instructed in the case described the child as having a ‘fierce, analytical intelligence’ and that seems to me absolutely on the nose.

 

  1. To assist the experts, Z prepared a detailed ten-page statement setting out his account of what has happened in the past and his wishes and feelings so far as concerns his future.
  2. The first point to make about this letter is that it bears eloquent testimony to this young man’s considerable intellect. The quality of his writing and of his arguments suggest a maturity beyond his years.
  3. In his letter Z describes the years of abuse he suffered whilst in the care of his parents and the domestic abuse he observed between his parents. He talks about the impact all of this has had upon him, especially upon his emotional well-being. He says he finds it very difficult to understand his emotions and deal with them. He has self-harmed and explains why. He describes his mother’s mental health problems and the impact they have had on him. He says that he vividly remembers ‘trying to stop my mum from killing herself’.
  4. In his letter, Z makes it clear that the outcome he seeks is to return to the care of his parents whom he forgives for the past. He does not believe there would be a risk of further abuse if he returns home. Adopting a balance sheet approach, he analyses what he considers to be the risks and benefits of returning home. He adopts the same approach to analyse the risks and benefits of remaining with his grandparents. Finally, again adopting the same balance sheet approach, he analyses the risks and positives of him remaining either in long-term foster care or in a residential placement. So far as this last option is concerned, he argues that there are no positives. On the contrary, such a placement would damage both his mental health and his education. That could make him suicidal. He says he would run away from home.

 

It was also very clear that he disagreed with the Guardian and had his own case to run.

 

  1. Z has also written a much briefer letter to the guardian and to his solicitor, Kerry Boyes. He makes the same key points made in his letter to the experts. This, though, is a more emotional letter. He says,

‘I would like it to be known that I am going to do absolutely everything in my power to make sure that these recommendations do not happen and that I hopefully move back to my parents. If not then I stay with my grandparents…Because of the present situation, I am going to obtain proper legal advice as to what I should do next. I am going to fight to get back to my parents’ care, no matter what. Every child deserves the chance to get a proper education, feel safe and secure and feel loved and cared for. Therefore, I would think it is your duty to properly review these recommendations based upon this and really think about what is in my best interests. Is it really a good idea to take me kicking and screaming away from my grandparents’ house and into a house full of strangers.’

 

  1. After these letters, on 5 th June Z wrote a letter to me. In his letter he pleads not to be ‘kidnapped’ into foster care. If the court approves a placement in foster care or residential care, Z says,

‘I would categorically refuse to go. I would not get into the car…I would run away back to my grandparents as many times as would be needed for people to listen to me. Foster care or residential care is not the right environment for me to be in.’

 

  1. Z is particularly concerned about the possibility that a move into long-term foster care or residential care would mean that he would need to change school. He says that,

‘By moving my school, you would destroy my only support network. At school…I have the support of teachers, who at times have become like second parents, and what’s more, it is one of the only places that I can be truly happy…if you forced me to move school it would do catastrophic damage to me both emotionally, socially and developmentally.’

 

That seems, therefore, to meet the two criteria for separate representation.

The argument was whether Z had the emotional capacity to instruct a solicitor and be involved in the proceedings, and what caused particular anxiety was him having unfettered access to the court documents and papers.  I haven’t seen this argument being run, so it is interesting to see how it plays out.

The Judge, His Honour Judge Bellamy, set out the principles that he had derived from statute and authorities. (Selfishly, I think it is a shame that they are not annotated to show where each principle is derived from, but you can’t have everything)

(I have put some particular interesting elements in red for emphasis)

 

  1. In deciding whether Z has sufficient understanding to instruct his solicitor directly, the solicitor (or the judge if the issue is being decided by the court) will find guidance given by senior judges in previous cases. In particular, the solicitor must have in mind:

(1)           that the child has the right to express his views freely in all matters affecting him and the right to be heard in any judicial proceedings affecting him;

(2)           that the child has the right to respect for his private and family life;

(3)           that the decision to be made relates to this child;

(4)           that the fact that the child’s views are considered to be misguided in some way does not necessarily mean the child does not have sufficient understanding to instruct a solicitor;

(5)           that the fact that the child is unwilling to accept findings already made by the court does not mean that he does not have sufficient understanding to instruct his solicitor;

(6)           that the fact that a child disagrees with an independent professional assessment of what is good for him is not sufficient to lead to a conclusion that the child lacks sufficient understanding to instruct his solicitor;

(7)           that whether the child has the capacity to instruct his solicitor will depend, in part, upon the issues involved and the child’s capacity to give reasonable and consistent instructions on those issues;

(8)           that the child’s direct participation may pose a risk of harm to him and, if it does, the solicitor must consider whether the child is capable of understanding that risk;

(9)           that a child’s understanding increases with the passage of time;

(10)       that a child’s age is not the only relevant consideration;

(11)       that not allowing the child to participate directly in the proceedings by instructing his solicitor may itself cause the child emotional harm;

  1. If the solicitor decides that the child does not have sufficient understanding to instruct his solicitor direct, the court can be asked to review that decision. The judge will come to his own independent decision after taking into account the points just made.

 

 

Those bits in red are important – a person or young person can have capacity to instruct a solicitor and tell them what to fight for without having to be dispassionate or reasoned – you can make an emotional decision rather than a coldly logical one, as long as you have the capacity to understand the facts and that there are pros and cons to your decision. Just as a parent can decide not to follow their legal advice and to instruct their lawyer to present a different case (including one that their lawyer considers is foolish), so can a young person.

 

At the actual hearing, none of the parties were supporting Z being made a party. The LA and Guardian were against it, and the parents were essentially neutral – seeing that Z had capacity but being worried about the emotional impact on him.

 

The conclusions – red is mine for emphasis.

 

  1. All three parties accept that if the test to be applied were based solely on intellectual capacity then Z should be given permission to instruct his own solicitor. All three parties express concern about Z’s emotional capacity to be able to instruct his own solicitor and about what they perceive to be the risks of allowing him to do so. All three raise a particular concern about the likely harmful impact on Z’s emotional well-being of him having access to the court documents.
  2. Z clearly has the intellectual capacity necessary to give him the ‘understanding’ required by the rules, though I accept that intellectual capacity is not the only relevant factor the court must consider when deciding whether a child should be allowed to instruct his own solicitor.
  3. Z well understands that the ultimate welfare decision which the court must make is a decision that may have a profound impact on the future direction of his life. However, the reality is that even with the help of the best professional guidance available (and that is the position I am in) neither the professionals who give that advice nor the court can be absolutely certain of the impact decision-making today will have on the future course of Z’s life. Making decisions about Z’s future involves an element of risk. Z is as aware of the reality of that as I am.
  4. In making decisions the court will have in mind the approach required by the law that Z’s welfare must be the court’s paramount consideration. The court will also have in mind that Z has the right to respect for his private and family life
  5. Concern has been expressed in the experts’ report that Z’s wish to instruct a solicitor direct ‘is part of his bid to regain control in a system populated by adults he does not fully trust to represent his needs’. In my judgment the fact that an intelligent, articulate teenager wishes to have some control of decision-making that could have a profound effect on the future course of his life is hardly surprising. Z is astute enough to realise that as matters stand at the moment, although his Children’s Guardian will faithfully represent his views to the court she will also set out her own assessment of what the appropriate welfare outcome should be. She will make it plain that she does not agree that Z’s clearly expressed wishes and feelings accord with his best interests. She is likely, therefore, to recommend to the court that Z’s wishes and feelings should not be followed. Currently, Z does not have an advocate who will not only inform the court of his wishes and feelings but will seek to persuade the court that an outcome that accords with his wishes and feelings will meet his best welfare interests.
  6. One of the reasons why the experts do not agree that Z should be able to instruct his solicitor direct is because ‘it is our assessment that Z is profoundly confused about his own mind and about his best interest’. In my experience, that confusion and uncertainty is experienced by many adolescents who are the subject of care proceedings. I am doubtful that that is a factor which should be considered, of itself, to make it inappropriate for that young person to be given permission to instruct his own solicitor. In this case, I accept that Z himself has said that he finds it very difficult to understand his emotions and deal with them. In my judgment, that does not mean that he lacks the emotional ‘understanding’ to instruct his solicitor. On the contrary, it could be said that the fact that Z recognises his emotional challenges means that he would be able to engage in an open discussion with his solicitor about the case he wishes to put before the court.
  7. All three parties express concern about Z having access to court papers in the event that he is allowed to instruct his own solicitor. In my judgment, that concern is misconceived. Z is already a party. The decision I am called upon to make has nothing to do with the issue of party status. As a party, the rules already give him a conditional right to have access to the papers. As I noted earlier, the rules require the guardian to advise the child of the contents of any document received so long as the guardian is satisfied that the child has ‘sufficient understanding’. Whether the child should be allowed to see a particular document or simply be given a summary of that document is, for understandable reasons, a matter that is left to the discretion of the guardian. The rules impose a similar duty on the solicitor. In my judgment, that duty arises whether the solicitor receives his instructions through the guardian or direct from the child. In each case the solicitor is not under a duty to allow the child to see documents that have been served upon him but, rather, ‘if the child is of sufficient understanding [to] advise the child of the contents of any documents’ received. It is for the solicitor to come to a judgment about whether the child has ‘sufficient understanding’. If the solicitor is uncertain whether the child has ‘sufficient understanding’ and whether the child should be allowed to read a document or simply be given a summary of the contents of that document, the solicitor should seek guidance from the court. The ultimate responsibility for deciding whether a child or young person should have access to the court papers is, always, that of the court.
  8. As I noted earlier, in this case the experts have prepared for Z an excellent age-appropriate summary of its report. The authors are of the opinion that it would be detrimental to Z’s welfare for him to be allowed to read the full report. For the reasons I have already given, in my judgment, if the court were to allow Z to instruct his solicitor direct it does not follow, as a matter of law, that Z then becomes entitled to unfettered access to all of the documents placed before the court. Deciding precisely what Z should be allowed to see is a matter for the exercise of discretion and is a decision in which some regard must be had to his welfare.
  9. Mr Johal expresses concern ‘about the risk of full participation’ by Z. He submits that Z lacks the insight to fully appreciate the risks of participation. The risks he refers to are the risk arising from access to the court papers (to which I have just referred) and the risk that participation ‘has the potential to significantly contribute to Z’s documented emotional and psychological difficulties and limit the future success of any therapeutic treatment.’ He does not set out in what way there is a risk to the future of any therapeutic treatment. Z has made it very clear that he is willing to engage in therapy. I do not read the experts’ report as highlighting such a risk.
  10. Set against those risks, the decisions made by senior judges, to which I referred earlier, highlight the risk of emotional harm being caused to a young person by not allowing him to participate more fully by means of having his own solicitor. In this case, Z is very concerned indeed to ensure that his voice is heard and, in particular, to ensure that his wishes and feelings about his education are understood and respected. I am in no doubt that if he were not allowed to have his own solicitor there is a real risk that that decision would cause him emotional harm.

Conclusion

  1. I have come to the conclusion that in this case Z does have the ‘understanding’ required by the rules to enable him to instruct his own solicitor. There are no sufficient welfare reasons why that should not happen. I shall therefore order that Z has permission to instruct his own solicitor. It is important that the solicitor appointed is appropriately experienced and skilled for the task in hand. That is an issue I will return to when judgment is formally handed down.

 

 

A lot of useful content there, particularly for Guardians and children’s Solicitors.

 

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Parents refusing to participate

Posted on July 3, 2018 by suesspiciousminds

 

 

This decision of the Family Division of His Honour Judge Bellamy, sitting as a Deputy High Court case has a lot of unusual features.

Ian, you’re going to love this one.

 

O (A Child : Fact Finding Hearing – Parents Refusing to Participate) [2018] EWFC 48 (29 June 2018)

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/48.html

 

At risk of spoilers, I’ll give the conclusion of the case, because that sums up why this case has unusual elements

 

 I find that O’s injuries are non-accidental injuries caused by either the mother or the father. In making that finding I acknowledge that had the parents engaged with these proceedings, including giving evidence at this finding of fact hearing, and had they taken advantage of their entitlement to specialist legal representation provided at no cost to themselves, the outcome of this hearing could conceivably have been different. However, the court can only arrive at its conclusions on the basis of the evidence before it. I am satisfied that the decision I have arrived at is the correct decision on the basis of the totality of the evidence before me.

O was less than 6 months old when he was admitted to hospital in Derby. He was found to have suffered bilateral parietal skull fractures with associated swelling of his scalp. The doctors considered this to be a skull fracture caused non-accidentally. Care proceedings were issued and an Interim Care Order made, placing O in foster care.

 

The parents decided not to instruct solicitors, despite being told that they could have solicitors of their choice without paying a penny for them and the difficulties of representing themselves in hearings that would involve complex medical evidence – and of course because they didn’t have lawyers or legal aid, they were not able to seek their own second opinion of the medical evidence.

 

During the course of those hearings the parents have attended, for the most part the mother has remained silent. She has spoken when spoken to. She has been monosyllabic. I formed the view that the decision that both parents should be unrepresented was a decision taken by the father and that it was a decision the mother has felt obliged to accept. Although she may understand that her interests would be better served by being legally represented, the father’s domination of her has meant that she has been unable to act in her own best interests.

 

The parents also, unsuccessfully, issued judicial review proceedings against the Hospital and the Local Authority, naming the Court as an interested party.

 

They also sought an injunction quashing the interim care order, deploying the unusual argument that once the care proceedings went beyond 26 weeks (someone having forgotten to formally extend them), they were over and the interim care order would cease and there could be no final hearing. That was refused and they appealed that refusal.

 

 

 

  1.        Section 32 of the Children Act 1989 requires the court to draw up a timetable ‘with a view to disposing of the application…within 26 weeks’. The section also gives the court the power, in certain circumstances, to extend the 26 weeks. In this case, as a result of an oversight, notwithstanding that the case has exceed the statutory 26 weeks no order of the court was made authorising that extension. The parents contended that as a result of that oversight the proceedings automatically came to an end when the 26 weeks expired and that as a consequence the interim care order also came to an end. It followed, submitted the parents, that since the 26 weeks had ended the local authority had wrongfully and unlawfully continued to place O in local authority foster care. The sought O’s return to their care immediately.

 

  1. I heard the parents’ submissions on 13th March. I concluded that the failure to make an order extending the 26 weeks did not have the effect of bringing the proceedings to an end and that the interim care order therefore remained in force. The parents have not attended any hearing since 13th March.

 

  1. The parents applied to the Court of Appeal for permission to appeal against my decision of 13th March. On 18th May, on consideration of the papers, McFarlane LJ refused the parents’ application on the basis that it was ‘wholly misconceived and is based upon a fundamental misunderstanding of Children Act 1989, s 32’. He concluded that,

 

‘It follows that neither the fact that the proceedings have lasted well beyond the 26 week deadline nor the fact that, for a period, no advance extension order had been granted, invalidate the current interim care order or mean that the case can no longer proceed to a final hearing.’

 

 

There was then a curious interlude when O’s social worker, in visiting the family inadvertently left his notebook behind, said notebook including details of other families and having tucked within it a draft statement, heavily annotated, relating to another family. The father returned the notebook, having read it. He was asked to sign an agreement not to distribute the information he had received from reading it and refused to do so.

 

 

 

  1.    Ms Walker [Social work manager] contacted the father. He confirmed that he had read the documents. She sought to persuade him to sign a written undertaking not to breach the confidentiality of the material he had read. Ms Walker says that the father,

 

‘21. …informed us that he was not willing to sign a written undertaking. He confirmed that he had taken copies of the court report and refused to delete the images stating: “I am not condoning this. The information is of public interest. I am a victim of the same situations as that victim. A child is in the system for no reason. There is significant public interest here, it appears to be a pattern.”’

 

 

 

  1. On 21st May the local authority issued proceedings seeking an injunction against the father to restrain him from publishing the material he had wrongly copied. An injunction was granted by Her Honour Judge Coe QC on 29th May

 

The parents played a very limited role in the care proceedings

 

27…..I called on the care case. Although the father was still in the court building at that point, and was well aware that the court was about to hear evidence from Dr Keillor, he left the building. The mother was not present at court.

 

  1. The father did not attend either of the two hearings listed on 18th June. In the civil proceedings I made a final order. In the care proceedings I continued the hearing in the absence of both parents.

 

  1. Not only have the parents failed to attend hearings they have also refused to accept documents served upon them. In a statement dated 14th June 2018 a local authority solicitor sets out the difficulties she has encountered in her attempts to serve documents on the parents. For example, she says that on 5th June she sent letters to both parents enclosing copies of the hearing bundle for use at this finding of fact hearing. The letters were sent by special delivery, guaranteeing delivery the next day and requiring the recipient to sign to acknowledge receipt. The solicitor say that the letter sent to the mother was returned to the local authority with the words ‘return to sender’ written on the package. This is not an isolated occurrence. The father has been equally difficult.

 

  1. The parents have also engaged in public protests relating to the actions taken by the local authority. In a second statement the local authority solicitor records that on 14th May she,

 

‘observed the Respondent Mother standing outside the Council House at the bottom of the steps on Corporation Street holding a placard which read “The Derby City Council and Royal Derby Hospital tortured me and stole my baby for adoption”. She wandered quietly up and down the pavement…Later that day the Respondent Father joined the Respondent Mother.’

 

 

 

  1. The solicitor observed the mother walking up and down outside the Council House again on 23rd May. Following liaison between herself and staff at Derby Royal Hospital she believes that the parents have undertaken similar protests at the entrance to the hospital.

 

  1. The solicitor goes on to say that the parents’ protest was reported on the website of the Derby Telegraph. She exhibits a copy. The article appears under the headline ‘Protesters with placards vow to stay outside Derby City Council’s HQ all week’. The article names the parents but goes on to say that, ‘The Derby Telegraph has decided not to reveal the exact details of the complaint for legal reasons’.

 

  1. On Monday 18th June, effectively the second day of the finding of fact hearing, the father attended at the council offices and returned the hearing bundle for this hearing.

 

  1. The hearing on18th and 19th June was in Derby. The final two days of the hearing took place in Chesterfield. This was a late change of venue. The allocated social worker met with the parents on 20th June. He provided them both with travel warrants to enable them to attend the hearing in Chesterfield. Neither of them attended.

 

 

HOWEVER, within the care proceedings, there was not unanimity between the instructed experts as to whether the account given by the parents for the injury (O falling off a bed onto the floor from about 2 ½ feet whilst father was bending down to get a nappy) was inconsistent with the injuries, or potentially consistent with them if the Court was satisfied that the account was truthful.

 

The authorities are very plain that the Court is allowed to take account of the medical evidence and has to give reasons for disagreeing with it, but is not bound to follow the medical evidence slavishly and can take into account the broader factual matrix including the Court’s assessment of the parents and their evidence. That’s even more important where there is a disagreement between the experts as to the explanation given.

 

Dr Kalepu’s conclusion was unequivocal. In a written report dated 30th May she opines that,

 

‘The changing history from the father and the history of fall from a 2½ feet high bed onto a carpeted floor is not compatible with the swelling identified with an underlying bilateral parietal fractures…

 

The finding on the CT scan with bilateral parietal skull fractures and associated small subdural haemorrhage on the right is not compatible with the history of falling off a bed onto a carpeted floor. As the impact of such a fall from a small height would not be enough to sustain bilateral skull fractures in an immobile infant with normal bone density.

 

Though he has low vitamin D levels, this does not cause bilateral skull fractures in this child, because the bone density is normal. Hence it is consistent with non-accidental injury.’

 

 

 

  1. In a subsequent report dated 14th June 2017, Dr Kalepu remained equally unequivocal. She says,

 

‘I would like to clarify that I have not asserted that the injuries were caused by one event in my medical report. The history given by father of O falling off the bed on to carpeted floor was inconsistent with the bilateral parietal skull fractures. To sustain bilateral skull fractures it would need a significant amount of force. A fall on one side of the head would not cause skull fracture on the opposite side. Although a call would involve more than one impact, the force on the second impact during a fall would not be enough to cause a skull fracture.

 

The skeletal survey did not show any other bone injuries other than the bilateral parietal skull fractures.’

 

 

 

  1. The expert medical evidence does not support the robust and unequivocal conclusions arrived at by Dr Kalepu.

 

 

  1. Dr Stoodley said that in his view a fall from the bed as described is a possible cause for the fractures, ‘albeit unusual to see such injuries (particularly bilateral skull fractures) as a result of such domestic type trauma’. He agreed that it is possible for a single impact event to give rise to bilateral skull fractures. Though unusual, ‘such an outcome is a recognised outcome of a single impact event’. Dr Stoodley is unable to exclude the explanation given by the father as a reasonable, as opposed to a fanciful or merely theoretical, possible explanation.

 

  1. In his oral evidence Dr Stoodley said that the causative event is likely to have occurred during a window beginning 7 to 10 days prior to the date of the CT scan. In other words, the causative event did not necessarily occur on the day of O’s admission to hospital. It could have occurred earlier.

 

  1. Dr Stoodley considers the father’s explanation to be a reasonable explanation though in his opinion for that event to cause bilateral parietal fractures would be very unusual. He conceded that doctors do not know all the answers. He referred to an unpublished study undertaken by the biomechanical laboratory at Cardiff University. The study, undertaken using computer modelling, suggests that impact at certain points on the head can create forces within the skull which lead to bilateral parietal fractures.

 

 

Dr Ward

 

  1. Dr Ward’s report is thorough and detailed. Having reviewed the evidence, including Dr Stoodley’s report, and having referred extensively to relevant research literature, Dr Ward opines that,

 

‘A history of a fall is common in a child presenting with a skull fracture. In this case although there was some initial variation in the history offered (falling off the bed versus being dropped by the father) it was consistently stated that the child fell in the course of changing a nappy. The father stated on one occasion that he dropped the baby but at other times in his statement he said that the child who was on the edge of the bed fell to the floor when he bent down to get a nappy from the floor. The preponderance of literature on childhood falls indicate that short falls rarely result in serious or life-threatening head injuries despite their frequency. Each credible study supports the conclusion that severe head injuries reported to be accidental unless related to a moving vehicle accident or fall from a very significant height are very likely to be the result of abuse particularly if the injuries are ascribed to falls from short heights that occur at home unwitnessed by objective observers. However, fractures may rarely result from short falls onto carpeted floors.’

 

 

 

  1. Dr Ward later goes on to say that,

 

‘The clinical findings in O suggested impact more than one would expect as a result of a simple fall onto a carpeted floor. Nevertheless there are examples of fractures resulting from low level falls and the scenario of bilateral skull fractures has been described as a result of a single impact.’

 

 

 

  1. Research suggests only 1 to 2% of falls from a low height, such as falling off a bed, cause skull fractures. The figure is even lower for such an event causing bilateral parietal skull fractures. For the incident described by the father to have caused these injuries would, therefore, be a highly unusual occurrence. However, as the research indicates, such events do occur. The father’s explanation is, therefore, plausible.

 

  1. As I have noted, Dr Stoodley’s opinion is that the window within which these fractures were sustained is during the period between the date of the CT scan and a date between 7 and 10 days before that scan was undertaken. Dr Ward’s evidence on timing is that,

 

‘It is not possible to accurately date skull fractures on the basis of the radiological appearance of the fractures; skull fractures do not go through the changes associated with callus formation seen in long bone and rib fractures. If one accepts that the soft tissue swelling to the scalp was associated with the fractures this would suggest that the fractures are recent. Soft tissue scalp swelling associated with fractures usually occurs over a period of hours or days after the injury and resolves within around 7-10 days. Therefore in this case it is likely that the fractures occurred no more than around 10 days before presentation. However there is no scientific basis for dating fractures on the basis of scalp swelling and it is not possible to use this as an indicator as to whether the two fractures occurred simultaneously or at different times within the timeframe.’

 

 

 

  1. Dr Ward highlighted a number of positive ‘red flags’ that support the father’s explanation. O had no other injuries. On admission to hospital he appeared to be a healthy, well-cared for baby who was developmentally normal. There were no intra-cranial injuries. There were no retinal haemorrhages. There was no evidence of a shaking injury. There were no rib fractures and no metaphyseal fractures. To Dr Ward’s list it would also be appropriate to add that if the father’s account is true then he sought medical advice promptly and acted immediately on the advice received, taking O to hospital straight away.

 

  1. Dr Ward sets out the results of the various tests carried out when O was in hospital. She notes that at the relevant time O had a biochemical deficiency of vitamin D. She says:

 

‘Biochemical vitamin D deficiency or insufficiency in the absence of radiological features of rickets has not been found to be associated with increased risk of fractures. However biochemical vitamin D deficiency in the presence of radiological changes of rickets is considered to be associated with an increased risk of fracture therefore I would recommend expert paediatric radiological review of O’s skeletal survey.’

 

Vitamin D deficiency does raise a red flag in a case of suspected non accidental injury, and an expert was instructed to look at that.

As I have just noted, O was found to have a Vitamin D deficiency. That raises a question about the possibility of him suffering from an underlying condition leading to easy fracture. Having examined the imaging, Dr Landes says that, the bone density appears radiographically normal and there are no features to suggest an underlying bone fragility disorder. In particular, Dr Landes is clear that there are no radiological features of rickets or of osteogenesis imperfecta.

 

  1. Agreeing with Dr Stoodley, Dr Landes goes on to say that,

 

‘these fractures may have occurred as a result of a fall from the height of a bed. I agree that it is also possible that these fractures may have occurred as a result of one or more than one other event.

 

It is not possible to determine, from the imaging alone, which of these possible scenarios is the more likely.

 

In the absence of a clear and satisfactory account of the mechanism of trauma or a medical explanation for the fracture, the most likely explanation for the presence of bilateral skull fractures in an infant of this age is non accidental injury,

 

My quick and dirty analysis of the medical evidence is that a fall from a bed is an UNLIKELY but POSSIBLE cause for the skull fracture.

 

Of course, the parents not being represented (so that the experts could be challenged and perhaps increase the level of possibility of it being an accidental injury, or consider the clinical features that could support that or diminish the counter proposition of it being inflicted) and not giving evidence (so that the Court could assess their credibility and whether they were consistent and honest) makes the Courts task harder.

 

What we end up with here is the Court making findings that the child on the balance of probabilities suffered non-accidental injury BUT accepting that the outcome might have been different if the parents approach to the care proceedings had been different. That’s very hard to swallow, but I think it is a realistic appraisal. Had these parents been represented by Paul Storey QC or Jo Delahunty QC or John Vater QC or a handful of other top NAI family law experts, I don’t think the findings would have been made.

 

 

 

 

  1.        Before I consider each of those proposed findings, it is necessary to say something about the way the parents have approached these proceedings. At the hearing on 2nd June 2017, at which the court made an interim care order, the parents, were legally represented. Since that hearing (and, as it would appear, as a result of the outcome of that hearing) the parents have represented themselves. That was an unwise decision. Worse was to come. At the end of the hearing on 13th March 2018 the father indicated that the parents did not intend to take any further part in the court proceedings. The justification for that decision is unclear though according to the ‘Grounds of Claim’ prepared in support of the parents’ application for judicial review it would seem probable that their decision is based upon their conviction that these proceedings (including my oversight of the proceedings as the allocated case management judge) have been unfair and that O has been unlawfully removed from their care.

 

  1. Notwithstanding my own efforts and those of O’s social worker, the parents now steadfastly refuse to engage in these proceedings. I echo the sentiment of the social worker, Gideon Zeti, who in his statement dated 30th April 2018 said,

 

‘While I can see such lovely parent to child interaction via contact, it makes me sad and frustrated that I cannot support these parents to engage with me, so that we can work together to ensure O’s needs are met’

 

 

 

  1. The parents’ failure to engage defies all logic. The effect of their failure to engage could prove to be catastrophic for them and for the son whom they clearly love very much indeed. I share Mr Zeti’s sense of sadness.

 

  1. I turn now to the findings sought by the local authority. It is appropriate to deal with the first and second findings together:

 

‘1. O suffered a single impact event or alternative mechanism such as separate impact events on both sides of the head or a crush injury, by an application of force which would suggest that trivial head trauma is unlikely, in the care of the Mother and/or Father.

 

  1. As a result of the assault(s) at 1 above, O suffered serious inflicted injury including:

 

  1. Soft tissue scalp swelling in both parietal regions which is more extensive on the right.

 

  1. Bilateral parietal lucencies consistent with linear fractures in both parietal bones.

 

  1. Very small collection of extra-axial acute blood on the right-side swelling.’

 

 

 

  1. These two paragraphs require the court to answer two questions, First, has O sustained any injuries? Second, if he has sustained injuries, are those injuries accidental or non-accidental in origin? In using the expression ‘non-accidental injury’ I have well in mind the cautionary words of Ryder LJ in Re S (A Child) [2014] EWCA Civ 25 at §19 concerning the use of that expression, to which I referred earlier.

 

  1. Has O suffered an injury? More particularly, has he sustained bilateral parietal fractures? In light of the medical evidence referred to earlier in this judgment the answer may seem to be obvious. However, it appears to be the parents’ primary position that O has not sustained any skull fractures.

 

  1. Two of the treating clinicians and two of the medical experts have given oral evidence at this hearing. Notwithstanding the absence of the parents, that evidence has been appropriately tested in cross-examination by the solicitor for the child. In my judgment, the medical evidence makes it plain that O has indeed sustained bilateral parietal skull fractures with associated swelling to his scalp and a very small collection of extra-axial acute blood beneath the right-side swelling. I am satisfied on the simple balance of probabilities that that is indeed the case.

 

  1. The parents’ secondary position is that the skull fractures are birth-related. Once again, there is nothing in the medical evidence before me to support a finding that these injuries are birth-related. On the contrary, Dr Stoodley is very clear that they are not birth-related. I am satisfied on the simple balance of probabilities that these injuries are not birth-related.

 

  1. Either O’s injuries have been caused accidentally or they are non-accidental. The parents’ position appears to be that if the court does not accept their primary and secondary positions (i.e. that O has not sustained bilateral skull fractures or if he has then they are birth-related) then the only other explanation is that they were caused when he accidentally fell onto the floor on 27th May 2017. The mother says that she was downstairs when this incident occurred. She did not witness it. The only witness is the father.

 

  1. Were the injuries caused as a result of an accident? There are a number of factors that support the parents’ contention that O’s injuries are the result of the low-level fall described by the father. The positive factors which appear to make the parents’ explanation credible are that,

 

(i)                There is research evidence that between 1% and 2% of falls from a low height cause skull fractures. That evidence also suggests that low-level falls have on occasion caused bilateral skull fractures, though the incidence of bilateral fractures is lower than the figure for single fractures. Dr Stoodley and Dr Ward are both agreed that although the parents’ explanation is an unlikely mechanism for the causation of O’s injuries, their explanation provides a possible and not merely a fanciful explanation.

 

(ii)               A skeletal survey did not disclose any other fractures.

 

(iii)             At the time of O’s admission to hospital he was noted to be well-cared for, well-nourished, putting on weight at an adequate rate (he was on the 25th to 50th centile) and developmentally normal. Save in respect of the head injuries, there was nothing in O’s presentation that gave cause for concern.

 

(iv)             Both in hospital and subsequently during contact, both parents have been observed to be loving, caring and capable of meeting O’s needs. It is clear that O is the apple of his parents’ eyes.

 

(v)               Whatever may have happened on 27th May and whether or not they did, in fact, call 999, it is clear that the parents contacted the hospital for advice, that they did so promptly and that they acted on the advice they were given by taking O to hospital immediately.

 

  1. Against those points, there are other issues which raise concerns about the parents’ explanation and their reliability as witnesses.

 

(i)                 The father’s account of O falling onto the floor is not consistent. When he telephoned the hospital he told Staff Nurse Young that he had dropped O. When he gave a history to Dr Keillor, initially he said that O had fallen off the bed. Given that O was a wholly immobile child, that would appear to be an unlikely explanation. Later in that same interview the father said to Dr Keillor ‘actually I dropped him’. Later, when giving a history to Dr Kalepu, he said that O had fallen from the bed onto the floor.

 

(ii)               The parents say that they called 999 but the East Midlands Ambulance Service has no record of the call. Production of the parents’ mobile phone records may have confirmed their account. Despite being ordered to do so the parents have failed to produce those records.

 

(iii)             The parents were not wholly cooperative at the hospital. They were asked to give their consent to a skeletal survey being undertaken. Initially they refused. They later consented.

 

(iv)             The father was not open with the police when interviewed. During his interview the father repeatedly said, ‘I choose not to answer that question at the moment’.

 

(v)               Notwithstanding their entitlement to non—means and non-merits tested legal aid (i.e. they were entitled to free legal aid) the parents chose to act as litigants in person, a decision that was irrational and counter-productive in equal measure.

 

(vi)             I have earlier expressed concern that the mother’s decision to act as a litigant in person was a decision imposed upon her by the father and not a decision that was freely made.

 

(vii)           In issuing proceedings for judicial review and in taking, copying and threatening to publish confidential information which he had obtained in circumstances which bordered on the dishonest, the father demonstrated that he is not focussed on the needs of his child. This impacts on my assessment of his credibility.

 

(viii)         The expert medical evidence is to the effect that there is a window of time within which these injuries may have occurred and that window began 7 to 10 days before the CT scan was carried out on 27th May. Dr Ward’s evidence is that the swelling to the scalp ‘usually occurs over a period of hours or days after the injury’. The parents have not provided any account of the events of the days leading up to O’s admission to hospital.

 

  1. In addition to all of the factors outlined in the last two paragraphs is the fact that the parents’ have chosen not to give oral evidence at this hearing. Although the burden of proof rests upon the local authority and although the parents do not have to prove (whether on the simple balance of probability or otherwise) that their account of a low-level fall is the causative event, their failure to give evidence means that their credibility simply cannot be tested.

 

  1. As Baker J aid in Re L and M (Children) [2013] EWHC 1569 (Fam), the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. In this case the court has been denied that opportunity. What is the consequence of that failure?

 

  1. In Re O (Care Proceedings: Evidence) [2003] EWHC 2011 (Fam). Johnson J was very clear. He said, that ‘As a general rule, and clearly every case will depend on its own particular facts, where a parent declines to answer questions or, as here, give evidence, the court ought usually to draw the inference that the allegations are true.’

 

  1. I have come to the conclusion that I am satisfied on the simple balance of probabilities that O’s injuries are non-accidental injuries. The expression non-accidental injuries covers a spectrum from the negligence to the deliberate infliction of injuries. Although the parents have not given evidence at this hearing, the totality of the evidence before me leads me to the conclusion that I am satisfied that these injuries are the result of an incident that falls at the lower end of that spectrum.

 

  1. I turn next to the third finding sought by the local authority:

 

‘3. The assaults and injuries were inflicted by:

 

  1. The Mother, or

 

  1. The Father, or

 

  1. The Mother and the Father, or

 

  1. The Mother and/or the Father’

 

 

 

  1. The window of time within which these injuries were sustained commences 7 to 10 days before the CT scan. The parents do not live together. The mother is O’s primary carer. For most of the time during that window O was in her sole care. The father only had care of the child on the days when he visited the mother from his home in Liverpool. Much of that care will have been in the presence of the mother, though it is clear that during those short contact periods there were times when O was in the father’s sole care. The father describes such an occasion on 27th May 2017.

 

  1. I have come to the conclusion that it is not possible, on the simple balance of probabilities, to identify the perpetrator. The perpetrator is the mother or the father. The evidence, and not least the parents’ failure to give oral evidence, does not enable me to go further.

 

I think it is very likely that there will be an appeal of this decision, and it will be very interesting to see how the Court of Appeal approach it. To borrow from criminal law, it seems that this has the hallmarks of an ‘unsafe conviction’ yet the reason for that is the parents unwillingness to participate in the process. That poses a massive and difficult question for the Court of Appeal – do they approach it on the basis that the parents made their bed and must lie in it – which runs the risk of unfairness and the incorrect conclusion OR overturn the decision and send it for re-hearing, which opens the door for any parent to have a second bite of the cherry by stymieing the process by non-engagement, which surely the Court of Appeal would be wary of doing.

 

It’s a very tricky one. If I knew these parents, I’d be telling them to get lawyered up as soon as possible.

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Wasted costs orders against everyone!

Posted on March 5, 2016 by suesspiciousminds

I don’t think I’ve ever seen anything quite like this. It raises some massive points of financial implications for solicitors, particularly when agreeing to take on a case involving medical or police disclosure.  It places on them a financial risk that might very well not be worth taking, given the narrow margins on which businesses are currently operating. The Judge did not, it seems to me, take proper account of the public policy implications of this decision.

A public law case was listed for a 2 day finding of fact hearing. The Local Authority had been ordered to obtain police and medical disclosure. It appeared that some things which clearly by close reading of other documents were known to exist within the police possession had not found their way into police disclosure. When this came to light, the hearing had to be adjourned.

The Court then embarked on an exercise to see who was responsible and considered the making of costs orders.

Re L (Case Management : Wasted Costs) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B8.html

 

What makes it quite remarkable is that in most wasted costs cases what happens is that one side is assessed to be responsible for the mix-up or failure, and the other parties get their costs paid by them. Here, the Judge determined that whilst the Local Authority was chiefly to blame, all of the parties had to bear some of the blame.

 

Non-compliance with case management directions – who is at fault?

 

  • In this case,[2015] 1 FLR 1092 case management orders were made promptly (on day 14) for the disclosure of medical records and police records. The medical records were disclosed promptly save for the photographs. The failure to disclose the medical photographs was not identified by any party until 20th January 2016.
  • The police responded promptly to the disclosure order but failed to disclose the audio recordings of the parents’ police interviews. The first approach to the police for ‘further disclosure’ was made by the local authority on 14th October. The first time the lack of this material was raised by any other party was in an e-mail from the mother’s solicitor to the local authority on 2nd November.
  • Who is responsible for these failings? Is the failure to disclose the medical photographs the responsibility of the hospital or of the local authority for not going back to the hospital to ask where the photographs were, or of the other parties for not raising this issue either with the local authority or with the court? Is the failure to disclose the audio recordings of the parents’ police interviews the responsibility of Leicestershire Police (who were ordered by the court to disclose ‘witness statements, interviews, photographs and medical reports in respect of the injuries’), or of the local authority (to whom the police were ordered to make disclosure and upon whom was laid the obligation of disclosing the police material to the other parties), or of the other parties for their delay in raising this issue either with the local authority or with the court?
  • Leicestershire police were ordered to make disclosure to the local authority. The local authority was ordered to disclose to the other parties the material received from the police. It was also ordered to obtain and disclose medical records. Is the scope of the local authority’s duty limited to forwarding on to the other parties the material received from the police and the hospital? In my judgment, it is not so limited. The local authority is not providing a postal service. It is under a duty not only to disclose what it receives but also,

 

(a) to consider with care the material received from the police and hospital;

(b) to satisfy itself that the disclosure complies with the terms of the relevant case management direction; if it does not comply then,

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to contact the police/hospital promptly seeking immediate disclosure of the missing documents; and if disclosure of the missing documents is not made promptly then,

(e) to inform the court and seek urgent directions; and

(f) to keep the other parties informed.

 

  • Whilst the primary duty for obtaining and disclosing police and medical records rests with the local authority, it is clear from the rules to which I have referred that the other parties also have a responsibility. They, too, are under a duty to assist the court in the process of active case management and to inform the court of any non-compliance. With respect to police and medical disclosure there is a duty,

 

(a) to consider with care the material disclosed by the local authority;

(b) to satisfy itself that the disclosure complies with the terms of any case management direction relating to that disclosure;

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to inform the local authority promptly with respect to any gaps in the disclosure; and, if the missing documents are not provided promptly,

(e) to inform the court and seek urgent directions.

 

  • In my judgment it is clear from the rules and authorities to which I have referred that these duties exist. They are a necessary part of the process of enabling and assisting the court to comply with its duties to further the overriding objective and to complete care cases within 26 weeks.
  • In the circumstances of this case I am satisfied that the responsibility for the failure identified rests primarily with the local authority. However, I am equally satisfied that the solicitors for the parents and the guardian also bear some responsibility.

 

Well, that’s all lovely in an ideal world, but do solicitors have the time to inspect each and every document with a fine-toothed comb, particularly in a case where counsel are instructed? They certainly don’t get paid for such a task.

So what happens then? Well, one sensible approach would be for the LA to pay some of the costs but not all of them, given that there were failings on the part of the other parties. That’s not what happened here.

 

The Court was actually considering punishing the solicitors involved by disallowing a share of their costs. The Legal Aid Agency were strongly suggesting that this was not a power open to the Court unless they were carrying out their function of assessing the public funding certificates by way of taxation (which would come at the end of the case)

 

Disallowing costs payable to a legally aided solicitor

 

  • Navigating one’s way around the labyrinthine complexities of the current legal aid scheme is a significant challenge. For present purposes it is necessary to have regard to the Legal Aid Agency’s Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), to the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment), to the Civil Legal Aid (Remuneration) Regulations 2013 and to the Civil Legal Aid (Remuneration) (Amendment) (No2) Regulations 2014.
  • The solicitors for the legally aided parties contend that disallowing part of a standard fee payable to a legally aided solicitor pursuant to the provisions of s.51(6) is not simply inappropriate but that it is not possible. The basis of that submission is that the standard fee for legal representation is a fixed fee payable irrespective of the amount of work undertaken (subject to the right to ‘escape’ from the standard fee to which I referred earlier). It follows, therefore, as a matter both of logic and of law, that so far as concerns the costs of any solicitor entitled only to the standard fee there cannot have been any ‘wasted costs’. In this case, even if a solicitor entitled only to the standard fee undertook work on 20th, 21st and 22nd January which would not have been necessary had the failure of police disclosure been identified at the time it arose, that solicitor will receive no extra payment for that work but will simply receive the fixed fee to which he or she would in any event have been entitled. A letter to the court from the LAA supports that argument,
  • The position would appear to be different so far as concerns the costs of a solicitor who ‘escapes’ the standard fee. As I noted earlier, that solicitor is entitled to be paid for the work undertaken on an hourly rate basis (the hourly rate being that prescribed in the Civil Legal Aid (Remuneration) Regulations 2013 as amended). In those circumstances it is clear that the argument set out in the previous paragraph does not apply. Even if the court does not have the power to make a wasted costs order against a solicitor entitled only to the standard fee (a proposition about which I am doubtful) there would seem to be no reason why the court could not make a wasted costs order against a solicitor who ‘escapes’ the standard fee.
  • However, the LAA raises a second issue and that relates to its power to act on an order made by the court under s.51(6) disallowing all or part of a legally aided solicitor’s entitlement to remuneration. In its letter to the court, the LAA asserts that,

 

‘The court could only disallow a solicitor’s costs under their contract with the LAA where the court is performing a detailed assessment pursuant to that contract (see paragraphs 6.37 – 6.38 of the Standard Contract Specification…) However, you could make observations to help the assessing authority (whether that is the LAA or the Court) in its assessment.

‘Where legally aided work falls under one of the Standard Fee Schemes, the LAA usually would have no choice but to pay the standard fees, unless the claim is not true, accurate and reasonable. The nature of the standard fee scheme is that in some circumstances a legal aid provider may receive a relatively high payment for not necessarily doing a large amount of work, whilst in the circumstances of a different case, the same standard fee may be considered to be relatively low. However, if you do make any observations on the amount of costs claimed and suggest that some costs should be disallowed, the possibilities, within the fixed fee scheme would be as follows:

1. Claims can ‘escape’ the fixed fee where, if paid at hourly rates the solicitors would be paid more (i.e. for Legal Representation, where costs on an Hourly Rate basis would exceed twice the Standard Fee, the solicitors would be paid at hourly rates). If in the circumstances of this case the solicitors have escaped the fixed fee and are to be paid at hourly rates, any disallowance (or recommended disallowance) of costs on assessment could reduce the amount payable to the solicitors;

2. The costs of the case can be disallowed in full, which would lead to a nil payment to the provider irrespective of the fixed fee scheme;

3. If the solicitors have breached some term of the contract, such as the requirement to carry out all contract work in a timely manner and with all skill and care, and as a result caused the LAA a loss (for example if a further hearing were required because of the solicitor’s default which has led the LAA to make further payments), then the LAA could set off the loss it has been caused against any payment due to the solicitors (i.e. the fixed fee they would be due to receive)’

 

  • Paragraphs 6.37 and 6.38 of the Standard Contact Specification provide that:

 

Court assessment

6.37 Except where:

(a) it is or may be necessary for the court to carry out a detailed assessment of costs payable to the Client by another party to the proceedings; or

(b) having regard to interests of the Client and public funds, the weight or complexity of the case and all the other circumstances, we consider it appropriate to direct that the costs be subject to detailed assessment,

your Claim for payment for Licensed Work will be assessed by us.

6.38 A direction under Paragraph 6.37(b) may relate to an individual case or to any class of case, identified by the level of costs to be assessed or otherwise. In cases where costs are to be subject to assessment by the court, detailed assessment proceedings must be commenced within the time specified in the Civil Procedure Rules.

 

  • If the LAA’s submissions are correct then that would seem to represent a significant narrowing of the scope of s.51(6) in a case involving a legally aided solicitor. It would mean that although under s.51(6) the court could order a legally aided party’s solicitor to pay another party’s wasted costs, the court would have no power to disallow any wasted costs incurred by that same solicitor.
  • I note that neither the Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), or the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment) refer to the court’s powers under s.51(6). With all due respect to the LAA, it seems to me that the key to understanding paragraphs 6.37 and 6.38 of the Standard Contract Specification is to be found in the heading: ‘Court assessment’. Those paragraphs deal with the question ‘who should assess my costs’. Section 51(6) addresses a completely different issue. Section 51(6) provides a power to penalise a solicitor as a result of whose conduct ‘wasted costs’ are incurred (whether another party’s costs or his/her own costs).
  • It is my preliminary view that the court’s power to make a wasted costs order is not confined in the way suggested by the legally aided solicitors and by the LAA. However, I am satisfied that in this case it is possible to dispose of the wasted costs issue without determining those points. That said, in my judgment the LAA’s arguments do raise important issues which need to be authoritatively addressed.

 

This disallowing of costs to a publicly funded solicitor can easily move a case from barely profitable to making a loss for the firm. Not to mention the absolute headache with the Legal Aid Agency in recovering the money. Does anyone actually benefit from this at all? Haven’t we just spent a huge amount of money arguing about this issue? Not to mention any costs of a potential appeal, given the wider implications for solicitors across the country?

In a concluding paragraph, the Judge bemoans the increase in demand by additional care proceedings on the Court service and that no additional resources have been provided, whilst ignoring that the very same thing applies to all of the other parties to the case.

 

Conclusion

 

  • Statistics show that in recent months, nationally there has been a significant increase in the number of new care proceedings issued. Cafcass statistics show that over the ten months from 1st April 2015 to 31st January 2016 the number of new care proceedings issued was up by almost 13% on the previous year. During that same period The Family Court in Leicester experienced a 39% increase in new care cases – three times the national average. That increase in workload has not been matched by any increase in court resources. I make that point simply to underline the fact that court time is a precious resource. The court can ill-afford contested hearings being vacated because of the failure of one or more of the parties to comply adequately with the obligations placed upon them by the rules and by case management orders made by the court.
  • In this case I am satisfied that the solicitors for all four parties are responsible for the errors identified. All four were responsible for the wasting of court time and for the wasting of costs. I have identified wasted advocacy costs incurred by the legally aided parties amounting to £5000. I shall make a wasted costs order against the local authority requiring it to pay 50% of that sum, £2,500. I have also identified that the local authority has incurred wasted advocacy costs of £1950. I shall make wasted costs orders against the solicitors for the legally aided parties jointly to pay 50% of those costs (£975 i.e. £325 per solicitor).

 

Of course there were failings here, and it would have been markedly better had the Local Authority involved raised with the Court and the parties their concerns that the police disclosure was incomplete and missing important documents. Was this, however, a proportionate response to the difficulty? I am sure that all lawyers have experience of arriving at Court for a final hearing with time and money spent in preparing a case only to find that the case is double-listed or insufficient time is available – the parties in those cases – of which there were very very many, did not attempt to demand that the Court Service pay their wasted costs.

 

I note that the Judge here refers to the Norgrove report on Family Justice.  Perhaps it is useful to bear in mind this passage of the report.

 

Our recommendations are intended to restore the respective responsibilities of courts and local authorities. But to change the law does not tackle the root cause
of the difficulties. This stems we believe from a deep rooted distrust of local authorities and unbalanced criticism of public care, as discussed in paragraphs
3.21 – 3.26 above. This in turn fuels dissatisfaction on the part of local authorities with the courts, further damaging relationships.
3.46.The result is that the relationship between local authorities and courts can verge on the dysfunctional. For the system to work better it is not acceptable for each
group to sit on the sidelines and criticise the other. A failure in one part of the system must be seen to be a failure of all. Courts and local authorities, and other
professionals, should work together to tackle this at a national and local level.
The report was published in 2011.  When one reads the judgments over the last few years, 2011 starts to look like a golden era of co-operation and trust between the different stakeholders in Family Justice. I would gladly roll the clock back to 2011 in that regard.

[I would also deprecate the habit in this judgment of the use of (sic) for what are clearly utterly minor typographical errors in emails sent by the Local Authority – emails are documents which are typed in haste, particularly when trying urgently and desperately to resolve a pressing problem and (sic) is an uncalled for dig. I also note that the Judge did not apply the same (sic) standard to emails received from counsel, which had similar minor typographical errors.  I also note that this case was listed for a fact finding hearing despite the allegations being substantially short of the Court of Appeal guidance as to when a separate fact finding hearing should be heard…]

 

 

 

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Funding of intermediaries

Posted on September 25, 2015 by suesspiciousminds

[See last blog]

 

An email came to me suggesting that it could be argued that rather than the Legal Aid Agency paying for the intermediary, it could come from HMCTS. I.e the Court pays.

Thinking of it in that way, it occurred to me that the President had floated in Q v Q the idea that HMCTS paying for a lawyer for an unrepresented person was analogous to HMCTS paying for interpreters or intermediaries. But I knew that the final conclusion in Q v Q was appealed when HH J Bellamy made such an order in Re K and H. So, does perhaps the Court of Appeal decision in Re K and H 2015 give us an answer on this?

I think that it does.

 

http://www.familylawweek.co.uk/site.aspx?i=ed145039

 

  1. As we have seen, in reaching his conclusion, the judge was influenced by the fact that HMCTS meets the cost of interpreters, intermediaries and the preparation of court bundles under the Financial Resources Regulations. He said that these are “aspects” of “representation” within the meaning of section 42 of LASPO. Section 42 defines “representation” as meaning “representation for the purposes of proceedings” and includes “the advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings”. He considered that by analogy, HMCTS has the power to meet the cost of legal representation.

 

  1. I do not accept that interpreters or intermediaries are “representatives” within the meaning of section 42, still less that they provide the services of a legal representative. In In the Matter of D (a child) (No 2) [2015] EWFC 2, Sir James Munby said at para 17:

 

“The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27.”

 

  1. I agree with this. Nor do I see how the fact that HMCTS funds the preparation of court bundles from time to time sheds any light on whether the court has power to require HMCTS to fund the cost of legal representation.

 

 

For me, that seems to settle it. The LAA should not be asked to fund an intermediary, but instead it should fall on HMCTS. Re D is binding on most Courts as a High Court authority, and given that the Court of Appeal looked at it in Re K and H and agreed, it binds just about everyone.    The Court of Appeal specifically AGREED that the cost of funding an intermediary in Court properly falls on HMCTS.

 

So having identified a problem, I’ve accidentally solved it.

What I don’t yet know is whether the Court has a duty to provide the intermediary once a recommendation is made or whether the Court could press on without one. (remembering that whilst an expert recommends something, it is ultimately a matter for the Judge whether to accept that recommendation).

I don’t think that a Judge could say “I agree with Dr Nolan that an intermediary is required, but I am not going to order one because of X”  but that a Judge COULD say “Dr Nolan says that an intermediary is required – I have decided that it is not required because of X”.     It always makes me a bit uncomfortable the notion that a Judge (who is ultimately employed by HMCTS and to some extent accountable to them) has to decide whether HMCTS should incur expenditure.

 

 

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Who has the burden of proof?

Posted on May 25, 2015 by suesspiciousminds

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

https://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?

 

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Passage to India (and laying the smackdown on the Legal Aid Agency)

Posted on August 5, 2014 by suesspiciousminds

There seems to be increasing amounts of litigation about children being taken on holiday to countries outside of the Hague Convention, particularly when the children are the subjects of private law dispute about contact and residence (or as I now have to call it but won’t ,  “Child Arrangements”)

 

[If you want to skip to the bit where the Judge rips the LAA a new one, I’ll understand, you can come back afterwards if you’re interested in the background. Scroll down to the bit that says “SMACKDOWN!”]

There was one about Iran recently,  Re H (a child) 2014   http://www.bailii.org/ew/cases/EWCA/Civ/2014/989.html

 

This one is about a trip to India that the mother wanted to make with the children.  Re AB (A child: Temporary Leave to Remove from the Jurisdiction : Expert Evidence) 2014   heard by His Honour Judge Bellamy sitting as a High Court judge.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/2758.html

 

Why this particular case is helpful is that the Court managed to get some expert legal advice from the Indian jurisdiction, notably on what might happen if the mother refused to return the children. This might save others in the same position hours of difficult research, so it is useful that the Court set it out here:-

 

ANSWER TO QUERIES

(i) What is the legal position in India if the Mother does not return to the United Kingdom with the child and remains instead with her in India? What impact, if any, would be made by pre-existing orders from the High Court in England making declarations of habitual residence in England and mandatory orders in relation to the return of the child by a certain date?
Answer

If the mother does not return to the United Kingdom with the Child, the father will have to bring a claim for custody in India under provisions of Hindu Minority and Guardianship Act 1956. The pre-existing orders from the High Court in England making declaration of habitual residence in England and mandatory order in relation to the return of child by a certain date will only be one of the factors to be considered and court will draw up independent judgment on merits having regard to welfare of the children.

(ii) What legal remedy would the father have, and what procedure would apply if he found himself having to take steps to effect the return of the child to the United Kingdom? What would be the likely timescale, cost and likelihood of success?
Answer

Father would have to file an application for custody of children under the provision of Hindu Minority and Guardianship Act. The proceedings may take from 1 year to 2 year and likelihood of success cannot be predicted as it will be dependent on Court’s fact finding to ascertain best interest and welfare of the children in deciding the custody rights.

(iii) As India is not a signatory to the Hague Convention, is there any other Agreement or Treaty in place with the United Kingdom which would assist in alleviating the Father’s concerns or in assisting if the child was not to be returned?
Answer

No there is no other treaty except treaty to enforce judgements passed by reciprocating courts in UK and India, however in matters of child custody, courts will not pass summary judgements and will pass independent judgement considering welfare of the children.

(iv) Is there scope for the mother obtaining a Mirror Order on her arrival in India? If so, what is the relevant procedure and what protection would such order give in ensuring the return of the child to the United Kingdom?
Answer

No, Courts in India will not pass mirror orders but will pass independent orders considering welfare of children.
 

(v) Are there other practical or legal safeguards which could be put in place before or on the Mother’s arrival in India? For Example (sic), requiring family members to take oath in relation to not assisting in the retention of the children, or lodging the children’s passport with a British Embassy or another place?
Answer

Since the foreign custody orders cannot be enforced mechanically, it is suggested that in the event of any litigation in the foreign country of habitual residence, a letter of request be obtained from the UK court in which litigation is pending for incorporating safeguards and conditions to ensure the return of the minor child to the country of normal residence.
This letter of request should be addressed by the UK court to the Registrar General of the High Court within whose jurisdiction the estranged spouse is residing with the minor child. It should also be specifically mentioned that the passports of the parent and the child should be deposited with the Registrar General of the state High Court to ensure that the child is not taken away from the jurisdiction of the [state] where he or she is confined.’

 

The answers are both technical and practical, so useful to others in the same position.

 

You might remember in the distant past, His Honour Judge Bellamy encountering much the same issues and having the ridiculous position of the Legal Aid Agency refusing to pay for the expert to answer those vital questions (presumably on the basis that English lawyers could magically find the answer to these questions in any other given national jurisdiction)   Re R (children : temporary leave to remove from the jurisdiction)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

 

So, it is impressive that the report was produced here. Let’s have a look at how.  Clue – it was not done simply, and the Legal Aid Agency showed a painful lack of knowledge of the Court of Appeal’s decision that their previous policy of insisting that they would only pay for reports if EVERYONE was paying an equal share was unlawful.

 

42. This is the second time this year that it has been necessary for me to consider the conduct of the Legal Aid Agency when dealing with an application for prior authority to incur the fees of an expert in an application for the temporary removal of a child to a non-Hague Convention state – see Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam). In that case I was critical of the LAA (see paragraphs 81 to 97). Before deciding whether further criticism is merited it is necessary to consider the history of the application for prior authority.
 

The mother’s application for prior authority

43. As I have noted, the expert proposed by the mother was Mr Ravindra Kumar. Mr Kumar is a legal associate with Singhania & Co, a firm of ‘Solicitors & Indian Advocates’ with offices in India and London. In his curriculum vitae Mr Kumar says that he is ‘a consultant in Singhania’s litigation group, concentrates his practice on handling litigations in UK and in India. He has advised clients on Indian laws and India-specific issues including family laws and matrimonial laws issues. Maintenance and Adoption Laws issue. Mr Kumar had given expert witness evidence on issues pertaining to India laws on matrimonial matters, wills and contacts issues. Affiliations: Supreme Court Bar Association [SCBA], India. Delhi High Court Bar Association [DHCBA], India’.
 

44.  I heard the mother’s application for permission to obtain expert evidence on 13th June. I was satisfied that expert evidence was necessary and that Mr Kumar was an appropriately qualified expert. I decided that the cost of the expert evidence should be borne by the mother. In an extempore judgment I said,
 

8. There can, in my judgment, be no doubt as to the need for an expert’s report in this case. The law relating to the reliance upon expert evidence in Children Act proceedings is now to be found at s.13(6) of the Children and Families Act 2014 of which reads:
‘The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.’
There is in this case absolutely no doubt that expert evidence is necessary.
9. The issue that then arises is who is to pay. The mother is publicly funded and the father is a litigant in person. The father’s means are extremely straightened. He works for [a supermarket] and has an income of £1,200 per month out of which he has mortgage repayments of £500, car insurance of £28, fuel of £300, a mobile phone contract of £42, electricity of £76, food of £178 and finally a debt management payment of £76. The father has produced evidence from a debt management company which shows that the £76 per month that he is paying is for the payment of some eight debts which together amount to around £6,500. There can be, in my judgment, not the slightest doubt of this father’s inability to be able to afford to pay.
10. If the father cannot pay, is it appropriate to require the mother to pay for the whole of the costs of this report? In my judgment it is, and for two reasons. The first reason is the obvious one that it is her application for the temporary removal of AB from the jurisdiction. It is she who wants to do something that potentially could cause the breakdown of contact between AB and his father, and could potentially leave the father in an extremely difficult position in trying to right a wrong. Therefore, it is only just, in my view, that she should bear the costs of paying for that report, and that would be the case even if she were not publicly funded. The second reason why it is appropriate for her to pay the costs is because the father simply cannot afford to pay, of that I am in no doubt.
11. The position with respect to the Legal Aid Agency funding the entirety of the costs of an expert under one party’s public funding certificate is an issue that has been considered by the court twice over the course of the last twelve months. Firstly in the decision of Ryder J (as he then was) in JG v The Lord Chancellor & Ors [2013] 2 FLR 1174 and more recently by the Court of Appeal overturning the decision of Ryder J in that same case in JG v The Lord Chancellor & Ors [2014] EWCA Civ.656. In that case it was argued on behalf of the Lord Chancellor and the Legal Aid Agency that the normal rule was one of equal apportionment of expert costs amongst all parties to proceedings. At para.86 of the judgment of Black LJ in the Court of Appeal, she said this:
‘I do not accept that there is a normal rule of equal apportionment of the costs; in my view, like so many of the issues that arise in this appeal, it all depends on the particular circumstances of the case.’
At para.90, having referred to three authorities, she said this:
‘What I draw from the three authorities to which I have just made reference is that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings and that that discretion must be exercised bearing in mind all the circumstances of the particular case.’
Then at para.93, she said this:
‘None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to “the principles on which the discretion of [the] court is normally exercised” in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor’s submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of s.22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the costs of the expert. In such circumstances, s.22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.
The reference in her Ladyship’s judgment to s.22(4) is to s.22(4) of the Access to Justice Act 1999.
12. In light of her Ladyship’s comments, I am in no doubt at all that it is right to say in this case that even leaving to one side the ability to fund the costs of an expert report, the cost of the expert report proposed in this case should be borne entirely by the mother. The fact that she is publicly funded makes no difference to that conclusion. There is, as I have already said, the subsidiary point that the father simply cannot afford to pay.
13. It is my sincere hope that the problems encountered by the court and the parents in Re R (Children: Temporary Leave to Remove from Jurisdiction) will not be visited again upon this mother in this case. I shall make the order giving permission for the expert’s report. I approve the draft letter of instruction, and the costs will be limited to £1,000. The costs will be met by the mother and I deem that to be a reasonable and proportionate expense on her public funding certificate. I direct that there be an expedited transcript of this judgment at public expense to assist the mother in obtaining prior authority.
45.The Court of Appeal’s decision in JG v The Lord Chancellor & Ors was handed down on 21st May. The mother’s application for prior authority was sent to the LAA a month later, on 20th June. The application was made in the LAA’s prescribed form APP8A and was submitted together with relevant supporting documents. Following an enquiry as to progress, the application was re-sent by e-mail on 3rd July.

 

It seems pretty obvious that following JG v Lord Chancellor, that the Legal Aid Agency would have notified their front line staff that the previous policy was not going to fly anymore, and that a stock refusal to fund assessments that the Court had deemed necessary just because there was another party who wasn’t paying an equal share would not do at all. But no

 

46. An e-mail response from the LAA on 3rd July suggests that the writer of that e-mail was unaware of the Court of Appeal’s decision in JG v The Lord Chancellor & Ors. The e-mail reads:
 

47. ‘I can confirm on the information provided we would expect the costs to be apportioned between the parties as per S22(4) AJA 1999 which expects all parties to bear an equal share in the costs of an expert. The costs were originally being shared between the parties therefore it is not considered reasonable to transfer the burden of costs onto the publically (sic) funded party. We will need to see evidence to satisfy itself that the father should share in the costs and the court will need to undertake a robust assessment of the father’s means.’
The mother’s solicitors replied on 8th July. By then they had received the transcript of my judgment of 13th June and attached it to their response. Initially, it appeared that my judgment would help to resolve the issue. On 11th July an e-mail from Ann Davies, a senior caseworker at the LAA, said,
 

48. ‘Thank you for your e-mail and confirm I have reviewed our earlier decision. An authority will be issued in this matter however, despite my search of our completed applications I have been unable to find your APP8A…Please e-mail me a copy to enable me to consider this properly…’
The mother’s solicitor had already sent the LAA an application for prior authority in form APP8A on 20th June and on 3rd July. Form APP8A was sent to the LAA for a third time, by e-mail, on 14th July.

49. The optimism generated by Ms Davies’ e-mail was misplaced

 

The LAA refused the assessment, and refused it again, and again, and a fourth time. They moved on to a whole new area to get bogged down in, which was that the expert was a qualified solicitor, and thus wasn’t an expert.  The Judge disagreed

 

Is Mr Kumar an expert?

56. In proceedings in the Family Court, the position concerning expert evidence is clear. The Family Court Practice 2014 states (p.2009) that.
 

‘The general rule is that a witness may only give evidence as to fact observed by them. That rule is overridden in the case of opinion evidence given by a person whose expertise justifies the court in receiving that opinion.’
Hershman & McFarlane Children Law and Practice states (C3057) that,

‘It is for the court to determine in each case that the witness has the necessary expertise to come within the exception to the normal rule that opinion evidence is not admissible.’
Section 3(1) of the Civil Evidence Act 1972 provides that,

‘Subject to any rules of court made in pursuance of…this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.’

57. Section 4(1) of the Civil Evidence Act 1972 is also relevant. It provides that,
 

‘It is hereby declared that that in civil proceedings a person who is suitably qualified to do so on account of his knowledge or experience is competent to give expert evidence as to the law of any country or territory outside the United Kingdom, or of any part of the United Kingdom other than England and Wales, irrespective of whether he has acted or is entitled to act as a legal practitioner there.’

58. In the circumstances of this case I am in no doubt that Mr Kumar is ‘qualified to give expert evidence’ (s.3(1) of the Civil Evidence Act 1972) and is properly to be regarded as an expert in Indian law.

 

I don’t know what the Latin for ‘stick that in your pipe and smoke it is’, but it probably should be inserted at the conclusion of this section.

 

[The joy of google – it is  Habeto eas solus, qui in vobis est, ut fumo et tibia canentium  – feel free to sprinkle that into your skeleton arguments if you feel bold ]

 

With all this in mind, those of us who read H H J Bellamy’s judgment in Re R are waiting for him to Etiam iuvat asinis  or indeed  ut in Republica, asini eorum,    [either  Apply Boots to Asses, or Get Medieval on their ass, depending on your preference]

 

I was not disappointed

 

 

SMACKDOWN  SMACKDOWN SMACKDOWN !!!!

 

Discussion and conclusions

It is a matter of concern that two months after the Court of Appeal handed down its decision in JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 a senior case worker and a Director should both reject an application for prior authority by advancing arguments based on an interpretation of s.22(4) of the Access to Justice Act 1999 which had been so roundly rejected by the Court of Appeal. That, though, is not the only concern about the approach of the LAA in this case.
 

As I noted earlier, the 2013 Standard Civil Contract does not define the word ‘expert’. That is unsurprising. The determination of whether expert evidence is necessary in order to resolve a case justly and whether a particular witness ‘is qualified to give expert evidence’ (s.3(1) of the Civil Evidence Act 1972) are issues for determination by the court not by the LAA. I am concerned that in this case the LAA should have disregarded a decision by the court that Mr Kumar is an expert. In my judgment it was not open to the LAA to disregard a judicial decision on this issue.
 

The Standard Terms of the 2013 Standard Civil Contract define the term ‘Approved Third Party’ as someone engaged by a party to the Contract ‘to undertake non-legal work ancillary to Contract Work, including experts’. The expression ‘non-legal work’ is not defined. In my judgment, it includes giving expert advice on the law of any country or territory outside the United Kingdom. Whether the ‘expert’ is an academic specialising in that area or a person who is a practitioner in that foreign state is immaterial. It is equally immaterial if such a practitioner happens to have dual qualification enabling him also to practice law in England and Wales. I reject Ms Davies’ analysis and interpretation of the 2013 Standard Civil Contract.
 

I also reject Ms Davies’ attempt to pray in aid the provisions of the Civil Legal Aid (Remuneration) Regulations 2013. The regulations do not define the word ‘expert’. Ms Davies refers to the 63 different categories of expert set out in the Table which follows paragraph 1 of Schedule 5 of the regulations. The point made appears to be that there is some significance in the fact that nowhere in this list is there ‘provision for legal work’. It is clear from Schedule 5 paragraph 3 that the list of experts in the Table is not intended to be either an exhaustive list of the categories of experts for which fees will be paid by the LAA or an indicative list of the categories of expertise in which expert evidence will be funded.
 

All of the issues I have raised so far give rise to concern about the adequacy of training for those members of LAA staff responsible for determining applications for prior authority.
 

In addition to these particular issues I also have two general concerns. Firstly, I am concerned that the mother’s solicitors had to submit their application for prior authority three times before the LAA finally acknowledged that it had received a complete set of documents. I am also concerned that to arrive at the stage at which the LAA appeared to agree in principle to fund a non-solicitor expert in Indian law took more than four weeks and in excess of 20 letters and e-mails between the solicitor and the LAA. In Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) I expressed concern about a similar state of affairs in that case. I said that,
 

’95. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.’
When considered alongside Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) the facts of this present case strongly suggest that, administratively, the LAA is disorganised. The consequences of this for litigants and their hard-pressed solicitors are matters of concern.

Secondly, I am concerned about what appears to be resistance by the LAA to the granting of prior approval for the use of an expert as to the law of a foreign state in connection with an application for temporary leave to remove a child to a non-Hague Convention country. In Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) the correspondence between the LAA and the mother’s solicitor suggested that the LAA was highly resistant to meeting the cost of such an expert The correspondence between the LAA and the solicitor for the mother in this present case gives the same impression.
 

In light of my further criticisms of the LAA I direct that the mother’s solicitor shall forthwith forward a copy of this judgment to the Chief Executive of the LAA.

 

 

I will add, simply Solum versus est, et ut ‘quia, ut dicit Bellamy saxum iudicis gelu

 

 

[For non-wrasslin’  fans or non-Latin speakers  –  “And that’s the bottom line, cos Stone Cold Judge Bellamy says so” ]

 

Can I get a "Hell yeah!" ?

Can I get a “Hell yeah!” ?

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