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What this judgment is not

Once in a while, I come across a line in a judgment that makes me pull up sharply. Whilst my eyes rove over the screen full of Brussels II and run of the mill sets of care proceedings, every now and then you find a diamond in a sea of coal.
This is one of those.

18.What this judgment is not – Although I realise it may seem somewhat odd to include a paragraph under that heading I consider that it is necessary to do so.

Okay, you had me at hello.

This is a judgment by His Honour Judge Wildblood QC

Re ABC (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B75.html

So, what is this judgment not?
Therefore this judgment is not:

i) A determination by me of the merit of the grandmother’s complaints. The Local Authority, in its submissions, stresses that point whilst, at the same time, having made submissions and filed evidence to suggest that the complaints are not valid (see the submission and the social worker’s statement that were filed for 20th October 2017). I also note that, in the case of re B [2004] EWHC 411 (Fam) the now President, Sir James Munby was in a not dissimilar position (see para 49 of the judgment). As I stressed on 20th October 2017, the issue is not whether the grandmother’s complaints are correct for I am not in a position to decide that. The question is whether the grandmother should have the right to tell her story and now, whether as part of the telling of it, the Local Authority should be named.

ii) A means of stimulating public debate. My job as a Circuit Judge is to apply the law to the facts that are relevant to the issue before me. I have read the whole of the judgment in very recent case of Re B [2017] EWCA Civ 1579 and note, in particular, what is said in paragraph 27.

iii) An attempt by me at setting any sort of precedent or guidance even on a local scale. Not only would general guidance be way beyond my station or pay-grade. It would also be presumptuous and wrong. There is no new point of law or principle that arises in this case and my decision is entirely case specific. The decision that I have to make requires a very careful judgment call. As the President himself said in A v Ward [2010] EWHC 16 (Fam): ‘The present dispute is only part of an on-going debate as to where in the family justice system the lines should be drawn, where the balance should be struck, as between the often starkly opposed arguments, on the one side in favour of preserving the traditional privacy and confidentiality of family proceedings and on the other side in favour of greater ‘transparency’, to use the vogue expression. My duty here is to determine the present case according to law – that is, the law as it is, not the law as some might wish it to be’.

iv) An attempt by me to push or contain the boundaries of transparency. Not only do I have no interest in doing that but it is not for me to do.

Flipping that question round, it appears that what the judgment IS is a decision about whether a grandmother in care proceedings who put herself forward as a carer should be allowed to publish her complaint about her allegations of mistreatment by the Local Authority AND subsequently whether the Local Authority should be named.

2.At a hearing on the 6th October 2017 I made a special guardianship order in favour of a grandmother in relation to her grandchild. At that hearing she expressed profound dissatisfaction about the way in which she had been assessed and treated by the Local Authority during the currency of the proceedings. The parents each supported the grandmother in what she said. The guardian had filed a report supporting some of the points that the grandmother raised also. The Local Authority did not agree with what the grandmother said.

3.The grandmother, who is a litigant in person, stated that she wished to make her story known to others. I explained to her the availability of the complaints procedure under Section 26(3) of The Children Act 1989 but explored with her whether she was seeking to publish an anonymised account of the statement that she read out in court that day. She told (the Court) that she was.

So the complaint, if allowed to be published, must be read in the context that the Court have not resolved one way or the other whether it is a justified complaint. The Court have not had to rule on whether she is right or wrong. The Court did place the child with her, and made a Special Guardianship Order, but did not give a judgment about her specific complaints.

The Judge did rule that the Local Authority in question were wrong in their analysis of the legal position. It’s quite common for Local Authorities to operate under the same misconception (in fact, if you don’t actually have the authorities in front of you to analyse, I’d say that conservatively 95% of Local Authority lawyers (including myself from time to time) would have fallen into exactly the same trap. It is one of those areas where what we all think the law is does not equate with what the law actually is.

19.The law that applies – As the Local Authority submission suggests, the answer to the issues before me do not lie in statute. Although there are statutory restrictions on the publication of information from family proceedings heard in private (e.g. in section 12 of the Administration of Justice Act 1960 and section 97 of The Children Act 1989) those restrictions are, in any event, subject to any specific leave given by the court in a particular case. The same applies to the resultant restrictions that arise under Chapter 7 of Part 12 of Family Procedure Rules 2010 and PD 12G of those rules.

20.Where proceedings have come to an end Section 97 (2) of the 1989 Act does not operate and Section 12 of the 1960 Act does not operate to prevent disclosure of the names of parties to proceedings held in private. In the case of Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2FLR 142 (which I cite below) there is an analysis of just this very point but I do wish to cite paragraph 24 of the decision of the President, as he now is, in A v Ward [2010] EWHC 16 (Fam) immediately:

‘It is convenient to start with what I said in British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at para [12]: “It was – correctly – common ground between counsel that: (i) The care proceedings in relation to William having come to an end, the restrictions imposed by s 97(2) of the Children Act 1989 no longer operate: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. (ii) The only relevant statutory restrictions are those imposed by s 12 of the Administration of Justice Act 1960. (iii) Section 12, although it … imposes restrictions upon discussion of the facts and evidence in the case, does not prevent publication of the names of the parties, the child or the witnesses: Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. (iv) Accordingly, unless I agree to exercise the ‘disclosure jurisdiction’ (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at [84]) [nothing] … (to the extent that it contains … material the disclosure of which would otherwise constitute a breach of s 12 of the Administration of Justice Act 1960) can be published, and unless I decide to exercise the ‘restraint jurisdiction’ there will be nothing to prevent the public identification of the social workers, the police officer, the treating doctors and the expert witnesses.” [25]. No-one dissents from what I went on to say (at para [13]) namely that: “both the disclosure jurisdiction and the restraint jurisdiction have to be exercised in accordance with the principles explained by Lord Steyn in In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, sub nom Re S (Identification: Restrictions on Publication) [2005] 1 FLR 591, at [17], and by Sir Mark Potter P in A Local Authority v W, L, W, T and R (by the Children’s Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, at para [53], that is, by a ‘parallel analysis’ of those of the various rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention), which are engaged, leading to an ‘ultimate balancing test’ reflecting the Convention principle of proportionality’.
21.I cite that passage (and more, later, from Re B) because the Local Authority’s submission appears to me to be advanced on a fundamental misunderstanding of the law as it applies to the naming of the Local Authority. The Local Authority submitted, on that and the other issues, that ‘these proceedings were brought under The Children Act 1989 and were heard in private. Publication of information relating to the proceedings, unless specifically authorised by a court, is a contempt of court’. The whole of the submission that was written by the Local Authority appears to be based on that erroneous contention and, further, makes no mention of the point that arises from the above passage from A v Ward and the passages that I cite below from Re B and other cases. As was the case in Re B, the boot has been put on the wrong foot by the Local Authority.

And therefore there was no reason why the grandmother could not share her story. The sole issue for litigation was whether she should be prevented from naming the Local Authority concerned.
Why in general should local authorities be named in judgments? The press made the following representations


29.I also find it very helpful that the officers of the press have made the following submission: ‘The case of B: X Council v B is also relevant – see http://www.familylawweek.co.uk/site.aspx?i=ed866 In that case [at para 14 onwards] Mr Justice Munby said as follows:

14 “There will, of course, be cases where a local authority is not identified, even where it has been the subject of stringent judicial criticism. A recent example is Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. But current practice shows that local authorities involved in care cases are increasingly being identified. In addition to the two cases I have already referred to, other recent examples can be found in British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y [2005] EWHC 2862 (Fam), [2007] 1 FLR 101, Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) and Re Ward, British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam). No doubt there are others.

15. I propose to adopt the same approach here as that which I set out in Re B. Is there some proper basis for continuing the local authority’s anonymity? In my judgment there is not.

16. In the first place, as the local authority very frankly accepts, whatever anonymity it enjoys is somewhat precarious, given the fact that the solicitors in the case have all been publicly identified. More importantly, however, I cannot see that there is any need to preserve the local authority’s anonymity in order to protect the children’s privacy and identities. Disclosure of the name of the local authority is not of itself going to lead to the identification of the children. In this respect the case is no different from Re B and Re X.
17. The real reason why the local authority seeks to perpetuate its anonymity is more to do with the interests of the local authority itself (and, no doubt, the important interests of its employees) than with the interests of the children. That is not a criticism of the local authority’s stance. It is simply a statement of the realities.

18. I can understand the local authority’s concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [166].

19. Moreover, and as Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at page 126, freedom of expression is instrumentally important inasmuch as it “facilitates the exposure of errors in the governance and administration of justice of the country.” How can such errors be exposed, how can public authorities be held accountable, if allowed to shelter behind a judicially sanctioned anonymity? This is particularly so where, as in the present case, a public authority has been exposed to criticism. I accept, as the local authority correctly points out, that many – indeed most – of the matters in dispute in this case were never the subject of any final judicial determination, but the fact remains that in certain respects I was, as my judgment shows, critical of the local authority. And that is a factor which must weigh significantly in the balance: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [174].

20. In my judgment the balance here comes down clearly in favour of the local authority being identified.”
30.Further, they submit as follows: ‘As recognised in section 20 of the President’s Practice Guidance of January 2014 – Publication of Judgments, where a judge gives permission for a judgment to be published the public authority should be named in the judgment unless there are compelling reasons why they should not be so named. We would therefore wish to make the point that in published family judgments, it is highly unusual for a council not to be named’.

31.Finally, there are many other points of assistance from the decision of A v Ward [ibid] but I would wish to make mention of the following:

i) Professionals who give evidence, including social workers, cannot assume that they will do so under a cloak of confidentiality. There are very obvious reasons why that is so. Balcombe LJ said in Re Manda [1993] Fam 183 at p195: “if social workers and others in a like position believe that the evidence they give in child proceedings will in all circumstances remain confidential, then the sooner they are disabused of that belief, the better.”

ii) Proceedings where there are suggestions that a child might be adopted (as there were here) raise issues of exceptional gravity which are of great public interest and concern. ‘It must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever’ – see Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, at para [150].

iii) In Para 133 of the judgment, the President said this: ‘the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Article 6 and Article 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise. And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at page 77: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.

In the particular case, the arguments against naming the LA were as follows:-

The principal arguments that have been advanced are these:

i) Naming the Local Authority will increase the risk of the family being identified. The guardian, without analysing the point at all in any of the submissions, relies on this point. The Local Authority relies on it heavily. On behalf of the guardian it is submitted: ‘The Guardian’s view on balance is that disclosure of the identity of the local authority in this case will increase the risk of so called “jigsaw identification” of the child and its family’. She does not evaluate the risk. Nor does the Local Authority.

ii) The grandmother has a right of complaint under section 26(3) of the 1989 Act. The guardian submits: ‘The Guardian questions the motivation and proportionality of naming the local authority in this case. The grandmother of course has an avenue to complain about specific issues through the complaints procedure under S.26 of the Children Act 1989. She feels that the issue of assessment of Special Guardian’s is an issue of national public interest and that there is a need to open up the dialogue regarding assessment of kinship carers generally in respect of transparency, support and preparation through the assessment process. It is not an issue confined to this local authority’.

iii) On the facts of the case, one of the family members involved, it is said, is unlikely to be able to understand the need for confidentiality and would be likely to respond indiscreetly to press enquiry.

iv) A refusal to allow the Local Authority to be named is a ‘minor interference with Article 10 rights and is consistent with existing legislation’.

v) Disclosure of the identity of the Local Authority would lead to the Local Authority having to issue a response and that, in turn, would lead to ‘an unseemly and unhelpful trial by media’ and an ‘increased risk of jigsaw identification of the child’.

vi) Adverse publicity when no findings have been made against the Local Authority ‘would run the risk of making retention and recruitment of social workers more difficult and, therefore, of damaging the service provided for children in the area’. Although I was not referred to it, I do bear in mind what is said by McFarlane LJ in Re W [2016] EWCA Civ 1140 at paragraph 88 and onwards.

vii) The points of principle of public importance are those that the grandmother wishes to raise in relation to how family members are treated when they seek to care for family children in care proceedings. The naming of the Local Authority is not necessary for those issues to be aired.

And the arguments deployed in favour OF naming the Local Authority


The main arguments advanced are:

i) Those that arise from the authorities that I set out above. I will not repeat them. Within the submissions of the press was this: ‘The clear starting point is that a public body can have no expectation of anonymity in any reports that are permitted unless there is some justification for departure from the default position – it is for the Local Authority to make out a case, not for a journalist to establish a positive public interest in identifying the LA. Local Authorities are routinely identified in judgments’.

ii) The arguments about the suggested risk of jigsaw identification are advanced without analysis of fact or research. The reality is that, in the immediate locality of the grandmother, it will be easy for those who know the family to identify it even on the basis of the anonymised statement; the identification of the Local Authority will add nothing to that. The further reality is that, amongst the grandmother’s close friends and family, her story will already be apparent. For others, living in other areas of the Local Authority (e.g. the north of the Local Authority area) the naming of the Local Authority will not help at all in identifying the family. On a national level, naming the Local Authority area will be a matter of no significance at all to people from other areas (e.g. Birmingham or Newcastle-on-Tyne) and could not be taken as identifying the family. Given the demography, geography and population of the Local Authority identification is unlikely to take place beyond those who are likely already to know the family’s identity. I note this submission of the Press officers (which shows the extent of their researches in my opinion): ‘The fact the infant will be in the care of its grandmother is also not significant enough to identify this family. Such an arrangement is neither unusual, nor unexpected in this country. The 2011 census puts the number of children in England being cared for by a family member at 153,000, and of those, around 76,000 are being looked after by a grandparent (https://www.grandparentsplus.org.uk/kinship-care-state-of-the-nation-2016). In 2017, it was reported in Community Care magazine that since 2010 there had been a 220% rise in special guardianship orders (http://www.communitycare.co.uk/2017/04/27/special-guardianship-orders-used-safely/). It is, we suggest, safe to assume that a good proportion of those being appointed as special guardians are grandparents’.

iii) The difficulty that the member of the family may have in dealing with the issues discreetly will arise whether the Local Authority is named or not. Naming the Local Authority does not increase or decrease the risk that the family member will be identified within the local community.

iv) It is utterly wrong in fact and principle to say that the non-disclosure order sought is only a minor interference with the grandmother’s Article 10 rights. The Local Authority’s approach seems to be based on its misunderstanding of the principles of law (i.e., in Re B language, on which foot the boot is) and also its failure to consider any of the relevant decisions of the President that I have set out above. To say to this grandmother that she was not allowed to name the Local Authority involved would be a very major interference with her right to expression under the Convention.

v) Insofar as there is a risk of identification, that risk is outbalanced by the importance of the freedom of expression enshrined by Article 10 (1). Further, the grandmother (who will be caring for the child and is an intelligent woman) and the mother both support that identification. I consider that their submissions about the Article 8 rights of their own family carry significant weight.

vi) There is a real and genuine interest within the local community in knowing how its Local Authority is acting. That is part of the democratic process. Members of a local community, like this grandmother, should be able to raise their complaints and concerns about local institutions.

vii) It would be quite wrong to try to limit the grandmother to the use of the procedure under Section 26(3) of the 1989 Act or any other complaints procedure. It is for the Local Authority to justify non-disclosure of its name and it is not for the Local Authority to dictate the means by which the grandmother exercises her Article 10 rights. By way of example – could it really be said in the Crown Court that someone who wished to complain about the treatment she had received in a prosecution must exhaust the police complaints procedure first?

viii) The suggestion that naming the Local Authority will result in a trial by media is riddled with errors of principle and fact. First, the press are the eyes and ears of society and press reporting cannot be swept aside on the basis of trial by media. Second, the emotive term ‘trial by media’ is not apposite – the issue is whether a member of the public should be able to voice a complaint against a local and public institution. Third, the extent to which there is a dispute within the public domain will depend on how the Local Authority chooses to conduct any response within the ambit of the law. Fourth, even without naming the Local Authority, it is highly foreseeable that some form of response will be made by the Local Authority and any response that is given should not be conducted by it behind a veil of anonymity.

ix) The court must not be seen to act as a shield for other public institutions.

x) There is no attempt by anyone involved in this case to identify specific social workers in the material that is made public. Naming the Local Authority does not mean that it becomes necessary to name the individual social worker and I have had no requests or suggestions that this should occur.

xi) The issues of importance are not confined to those relating to the treatment of family members in care proceedings. The issues that arise will be of most interest to those who live in the locality of this Local Authority and relate to how the authority is performing. Local issues matter (see the passage in from Re S above).

The Court felt that the case for naming the Local Authority was overwhelming (and having allowed a brief period to allow them to consider whether to appeal) and therefore named them.

36.Opinion on naming the Local Authority – In my opinion the arguments in favour of naming the Local Authority are overwhelming. I do not think that the Local Authority has got anywhere near justifying the non-disclosure of its identity. I accept each of the arguments advanced in support of that disclosure in the terms that I have set out above and consider that the authorities that I have cited point very strongly to it being ordered. I depart from the views of the guardian and of the Local Authority for the reasons stated within the accepted arguments that I have set out above in favour of disclosure. I do not think that the Local Authority or the guardian has given the issues or principles covered by this judgment sufficient or correct analysis.

The grandmother’s statement is appended to the judgment – again, the caveat is that these are the things that she wished to say about how she felt she was treated, and they are not a set of judicial findings.

Contextual statement as drafted by the parties

This statement is written by a capable and educated grandmother who has successfully raised her own family as a single parent and recently put herself forward to be assessed as a Special Guardian for her infant grandchild. The circumstances were such that it was not going to be possible for the parents to care for the baby and the alternative would have been an adoptive placement.

It can be seen that she felt unsupported through the assessment and that it was a difficult and protracted process. While rigorous assessment is of course important in the process of considering family members as prospective special guardians, what this grandmother writes raises important questions about whether there needs to be a re-evaluation by local authorities nationally of how family members putting themselves forward in these situations can be better prepared, informed and supported through the process.

The grandmother’s statement

These are the facts that I would like to disclose to the press, concerning my experiences during the assessments for a Special Guardianship Application and the events that have followed.

This has been an extraordinary experience to me, even though in the course of my life I have previously had to face some remarkably difficult challenges .It is important to me that some good should come from what has happened in this case, to this baby, her parents and to me.

It has seemed that the local authority is unused to being questioned or called to account for their conduct, decisions or even their misinformation. Emails are frequently not acknowledged, questions not answered most of the time. When false information or advice is given it leads to a great deal of anxiety and sometimes extra costs. This has happened throughout this process. Yet no one takes responsibility for their actions. It struck me that social workers are unused to the clients they work with demanding to be treated with respect, honesty and efficiency. There is a reliance on procedure without examining the particulars of a situation.

The reasoning which led to the local authority initial decision to contradict their very positive first report about me was a very narrow interpretation of my character and behaviour. It seemed there was only one way to show commitment and as I had expressed it a different way I was not committed. It was put to me that I had failed because I had not wanted to take the baby straight home from hospital. That I ought to be expressing that I wanted her. I reason that this is a vast decision for anyone to make, and that to respond purely emotionally or instinctively would be a less appropriate way to decide. I have been very open about my deliberations and judged negatively for that. Instead of helping to explore and understand, pejorative notes were taken and not discussed with me to further understand. I was even required to sort out all the typo errors in the first report which is most unprofessional.

I have responded robustly to the addendum report. I would add, however, that I was shocked by the references to identity and attachment, which do not bear examination. Indeed, I felt obliged to explain the meaning of a smile in small babies to the independent social worker such was the degree of her misunderstanding of this. As a final flourish, it was put to me by her that I ought to express commitment in the absence of clear health understanding or a financial assessment, which I felt was an outrageous transfer of responsibility from the local authority to me for their failings.

A complex issue which I feel has been inappropriately dealt with is the baby’s health. Both her parents have health difficulties which may complicate her future health. They may also have a huge impact on my capacity to cope in the future. The local authority followed their set routines in this area and failed completely to respond to my concerns that I needed to have as much knowledge as possible. This desire to have information was to guide my decision but also to ensure the best care now for this vulnerable child. Early investigations would have led to greater understanding. For example, a simple blood test could have been informative on one aspect of this. I fail to believe that this is not possible in complex cases.

A financial assessment is an integral part of this process. I have been given numerous accounts of how this works, how no finance would be offered, that I was ineligible even for assessment. I had to use voluntary agencies and research on line for the facts. The first social worker simply failed to turn up for an appointment to assess me. The baby’s social worker took a few notes and didn’t tell me the outcome though indirectly I was informed I was ineligible as I have some savings, which is completely incorrect. Ultimately, after explaining the process to the uncommunicative unit responsible, I have been offered some support. Following further unacknowledged emails to add information to my case, which explained my understanding of the assessment guidelines, further support has been offered. Is this an acceptable way for this to be conducted? It has led me to have to delay giving notice to my employer until I had discussed the outcome with a solicitor, leaving the baby in care for weeks longer.

There have been unexplained delays, which cannot be helpful for a baby awaiting a permanent placement. Weeks would pass without explanation, or even communication. Was this a suitable case for a newly qualified social worker who would move on, to be followed, by a part time person who would be away on leave without informing those concerned?

I have wondered how this would have ended if I had been a less vocal, expressive or determined person. I am under no doubt that this baby may have been adopted, that others may be, because many people who find themselves in this position do not have the personal resources to cope effectively. It has left me utterly exhausted and feeling shattered by the lack of kindness and understanding I experienced in such a painful context. To add insult to injury, I am accused of being problematically subject to stress by the social worker for the baby in her final statement.

I need to put this process behind me. I will, but I would hope that by airing these facts that those concerned might improve their practice. The central cog in this process needs to be well informed, efficient and dare I say kind, in such a sensitive situation. Their actions have cost me around £700 in legal fees which ought not to have been needed. I could have left this court with no financial support if I had not undertaken to investigate independently and share my knowledge with the local authority, to press for adherence to the D of E guidelines.

Ultimately, and above all, this baby has remained far longer than was justifiable, in foster care. Her parents have experienced a protracted agony of uncertainty. And, we go forward without full medical understanding. I would like to pay tribute to the exemplary care of the foster mother who has loved and cared for this baby and to the Guardian for her faith in my integrity.

The Order of Special Guardianship has now been made. I will love and care for this baby in every way. She will enjoy contact with her parents and develop a positive sense of Identity, drawing on the love of her family and our wonderful friends.

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Bad week for Gloucestershire continues to get worse

I wrote on Wednesday about Gloucestershire social workers getting a hard time from His Honour Judge Wildblood QC, and it is only Friday and they are getting another. For many of the same issues

 

 

C1 and C2 (Children :Section 20 of the Children Act) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B149.html

 

  1. This is the third case that I have seen this week where this Local Authority has allowed there to be protracted use of the accommodation of children under section 20 of The Children Act 1989. Without descending into full legal analysis of the statute ‘section 20 accommodation’ arises when a parent agrees that a Local Authority should arrange where a child is to live. With their mother’s agreement, therefore, the two children involved in this case went to live with foster carers in September 2013 and have remained with the same carers for over two years. In its own case summary the Local Authority says: ‘the Local Authority is aware that there has been delay in bringing this matter before the court and entirely accepts this is inappropriate and will attract judicial criticism’. It does.
  2. The one saving feature of this case is that the foster carers, through their dedication to these children, are now offering them a permanent home. However, initially, they were short-term carers for the children and there is still no certainty about where the children will live because, as yet, there is no agreement about the orders that will be made. It appears that the mother may agree to the children remaining with the foster carers. It also appears that the putative fathers may also agree to this. The guardian has proposed that there needs to be further assessment of the foster carers before orders are made (and I deal with that point later).
  3. The upshot is that, for two years, nobody has been able to tell these children where they will be living and that remains the current state of affairs. The only way that certainty can be achieved is by making court orders. For some inexplicable reason the Local Authority chose not to bring the case before the court until now.
  4. Over the past year I have i) met with this Local Authority on a number of occasions to discuss the issue of the protracted use of s 20 accommodation, ii) attended conferences in this area at which I have spoken on this issue, iii) issued newsletters where I have written about it, iv) placed judgments about it on the Bailii website, v) spoken to other judges and magistrates in this area all of whom seem to share my opinion and are also trying to combat what is happening and vi) raised the issue with the Local Family Justice Board.
  5. Where this type of very bad practice arises it is not possible for a judge to undo the past. The only thing that I can do, now, is to publish judgments where this occurs so that the public know what is being done in its name by this Local Authority in a bid to prevent other children experiencing the same procedures. The firm drive of the courts to deal with cases expeditiously in accordance with 32 of The Children Act 1989, as amended, (i.e. keeping cases to no more than a 26 week timetable) is of no benefit to the child if the delay during the overall period of state intervention remains the same because of procedures that are followed before the case is brought before the court.
  6. The effect of this type of procedure is not only that it is patently wrong from the point of view of the welfare of children and in the full spectrum of family difficulties that it creates for foster carers. It also means that limited resources and money are being taken up in a way that expedition would avoid. In the plainest possible language it takes much more time and money for a delayed procedure to be followed than an expeditious one. Inefficiency costs more than efficiency and takes up more time. It also means that the task of sorting out what is best for the children becomes even more complex than it would otherwise be with repeated episodes of crisis management.
  7. For these children not to know for two years where they will be living, who will be caring for them, where they will be going to school, with whom they can make friends and when decisions will be made about them is bound to have a profound effect on their emotional welfare. It is inevitable that the children form attachments to their current carers and do so without knowing whether those attachments will persist.
  8. The guardian says this in her initial assessment: ‘as a consequence of the significant delay to issuing these proceedings the two children have been deprived of having care that could be regarded by them as permanent. It is likely that this has had a significant impact upon the children’s ability to feel secure and this combined with the children’s early experiences had an impact on their personality development and attachment style. This I believe will impact upon their ability to regulate their emotions, feel secure and develop a sense of self-worth. They and any carer are likely to require support with this impact…the children were accommodated under section 20 on 2/9/2013. I am unable to evidence any reason or explanation for the delay in issuing proceedings’.
  9. Over the past two years when these children have sought comfort or reassurance about the future nobody will have been able to tell them what the future holds. In my experience schools do excellent jobs when this type of issue arises but the burden that this type arrangement places on teachers is immense – for instance, how can schools or nurseries protect the emotional welfare of children in these circumstances and what happens when there are discussions or projects at school about families, holidays or future plans?

 

 

[Also note, that despite a period of nearly two years in section 20 foster care  The putative father of the eldest child underwent DNA testing only yesterday ]

 

Powerful words.  The Judge here is quite right – the delay in section 20 cases coming before the Court is one that harms children.  The Government have tackled the delay that occurs within proceedings (firstly by the clause in the Children Act 1989 that specifically says that delay within proceedings is harmful to children and to be avoided if possible, and latterly by introducing the Children and Families Act 2014 to try to make care proceedings be resolved within 6 months).

 

The delay BEFORE proceedings are issued though, has not been tackled. It may even be that the introduction of the Children and Families Act actually made it worse – because there’s a relatively short space of time once the care proceedings start for the social worker to get absolutely everything done and the case can be finished, it can be tempting to not start the case until almost all of that is done. Which can mean, in a case where parents aren’t demanding the return of the child or their lawyer sending angry letters, that there’s delay for the child.

It may be that all that the Children and Families Act 26 week edict has done is “Shift the Drift” so that most of it happens before Court proceedings. Which is worse, because at least when the case is in Court, everyone has a lawyer and knows their rights and a Judge can control the timetable. Section 20 drift is a real problem.

 

Here, this was a case that was inevitably going to need care proceedings. The children were 3 years old and 15 months old when they came into foster care, and they came into foster care as a result of suspicious bruising.  And there was a background of concerns that went back to 2010. That was always likely to need to be resolved by a Court, and it was always the case that decisions needed to be made for these children quickly, so that wherever they were going to live permanently that could be done and the children settled.

It isn’t a problem that only happens in Gloucester, not by any stretch of the imagination. But Gloucester have a Judge who has realised the scope and nature of this problem and is going to express displeasure about it each and every time.

 

What would be some practical proposals, if one was to legislate to fix it?

 

Well, I would start with the requirement that any use of section 20 where the child is in care for more than a fortnight must go through the PLO procedure – that means the parents get sent a letter about the concerns and future plans and more importantly attend a meeting and get legal advice. That means that they will absolutely know that they have the right to remove the child from section 20 and can make the Local Authority ‘put up or shut up’ – either take the case to Court and persuade a Judge that the child needs to stay in foster care or to return the child.

Another helpful addition might be to incorporate into legislation that a Local Authority can’t take a section 20 consent given in September 2013 and be still relying on it in March 2015. What would be wrong with saying that section 20 consent must be obtained afresh after 20 days, then 3 months after that, and then every 6 months thereafter?   [That is the same timing as LAC reviews, and thus the IRO can be charged with establishing at the LAC review whether there is genuine and informed parental consent to the next period of section 20 accommodation, and if not the LA are to ‘put up or shut up’]

 

Could a Judge impose such stipulations on a Local Authority without legislation?   I don’t think that even the President would have such power by way of Practice Direction – those powers really only extend to what happens within care proceedings – a Judge can’t really fetter what a Local Authority can do before care proceedings are initiated.

 

An option available to parents is to make a claim under the Human Rights Act – as can be seen from the last blog, even if the section 20 consent is given freely and on an informed basis, there is the possibility of a claim on the basis that the State’s actions in using section 20 to keep the child in care rather than working actively on either rehabilitation or putting the matter before the Court are not proportionate.

 

[In the Hackney case in the last blog, the parents would have lost on the ‘proportionality’ argument based on the facts in that case, but the section 20 was only for two months, not nearly two years as here]

 

 

The other noteworthy element of this case was the Guardian’s tentative suggestion that there be a psychologist to assess the children. I wholeheartedly agree with the judicial approach here.

 

The guardian has suggested that she may seek an order for a psychological assessment of the attachment of the children to the foster carers; I have made it very plain that, having regard to the necessity test in Section 13 of The Children and Families Act 2014, I think it highly unlikely that I would make an order to that effect since the attachment between the children and the foster carers: a) is obvious; b) can be dealt with by evidence from schools, nurseries, health authorities, social workers and the guardian c) does not raise any evident psychological issues that could not easily be dealt with by the social worker and guardian. Further, by the time that a psychological report had been produced (e.g. in 3+ months time) and the case has come back to court the children would have been with the foster carers for at least two years and about four months so I cannot begin to imagine that psychological evidence would add anything to what was obvious about the attachment between the foster carers and the children by then.

 

 

I think I might be taking this to Bristol Family Court if I was cursed with having to do a section 20 drift case next week.

 

 

Your Honour, I represent the Local Authority. Did you get the exhibit to my position statement?

 

 

 

And I’m all outta bubblegum

 

 

It is always enjoyable for me to receive a judgment from His Honour Judge Wildblood QC.  I expect that there may be a slightly different qualitative experience between reading one at a safe geographical distance and being physically present to receive it on a case you’re involved in.

 

My mental image of His Honour Judge Wildblood QC is that of a kindly man who nonetheless would be able to come into his Court room and open with the Rowdy Roddy Piper (God Rest his soul) line

 

“I came here to chew bubblegum and kick ass… and I’m all outta bubblegum”

 

[Incidentally, the fight scene in this movie, They Live, which is between two characters, one of whom wants the other to put on a pair of sunglasses and the other who is reluctant to don said sunglasses, is so epic that my dad came and got me out of bed to come and watch it at about three am, when he was watching this film on TV. And I was glad that he did. It is marvellous.  In case you are in any doubt – when I compare HH J Wildblood QC with Rowdy Roddy Piper it is intended as high praise]

This case does not disappoint on that level. There was clearly a deficiency of gum that day, but no deficiency of kicking ass.

 

Gloucestershire CC and M 2015

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B147.html

I am publishing the judgment in this case because it is an example of the following:

i) The unnecessarily protected use of accommodation of a child under section 20 of The Children Act 1989. This child was accommodated with short term foster carers for 12 months before these inevitable proceedings were issued and has now been with them for about 16 months.

ii) The delayed identification of the need for therapeutic intervention for this mother. 19 months after the Local Authority intervened in a family where the mother had obvious difficulties it was identified that the mother needed therapy. It was then said that, by then, the benefit of therapy was ‘outwith the timescales of the child’. If psychological evidence was to be obtained with the invariable recommendation of therapy (and I have never known a psychologist not recommend therapy in a report) I cannot understand why it was not obtained much earlier.

iii) Failure to identify realistic options leading to the adjournment of this final hearing and a consequent inability to meet the timetabling demands of section 32 of The Children Act 1989, as amended.

 

Section 20 drift has been something of a theme of the Courts and hence this blog, for some time now.

As a quick rule of thumb for a social worker thinking about a case in their cabinet/caseload where there’s a section 20 agreement, ask yourself this question

 

If the mother or father rang you this afternoon and said “I want the child back” would you be ?

 

(a) Perfectly fine about that and make the arrangements

(b) Okay about it, but suggest that the move take place over the next 2 days to make the preparations

(c) Concerned and thinking that the child would not be safe at the moment, if they went home

(d) In a blind panic, and wanting to do anything to stop that happening

 

If your answer is (c) or (d), then it isn’t really a proper use of section 20 any more. The section 20 here is a very short holding position until you can either have a Meeting Before Action at which the parents will have lawyers, or care proceedings at which the parents will have lawyers.

 

 

  1. C grew up in the primary care of his mother until 28th May 2014 when, at the age of 5, he was removed from the mother under police powers of protection and then accommodated by the Local Authority with foster carers. The mother does not accept that the threshold criteria in s31 (2) of The Children Act 1989 are fulfilled and has also issued a claim for damages under The Human Rights Act 1998 in relation to the circumstances in which C was removed from her care and the manner in which the Local Authority has conducted itself in relation to C. On the same day in May 2014 A went to live with Mr D.
  2. For no valid reason it took the Local Authority a year, that is until 15th May 2015, to issue these proceedings. In its application the Local Authority said at B9: ‘C was the subject of a child protection plan from August 2013 until 19th May 2014 as a consequence of neglectful parenting. The concerns related to the dirty and unhygienic home conditions and the mother’s mental health and its impact upon her parenting and capacity to meet her child’s needs. A week after de-registration a further child protection referral was received. C was accommodated on 29th May 2014 following police powers of protection being used on 28th May 2014. The police removed C as a consequence of a person known to be a risk to children continuing to have contact with him (against professional advice) and because of the unsuitable home conditions. On 29th September 2014 the mother was evicted from her flat which had been significantly damaged. The mother was sofa surfing. Roger Hutchinson, psychologist, completed a report on the mother on 9th March 2015. This concluded that the mother experiences social anxiety and schizoid and paranoid traits with poorly developed social, functional and adaptive skills. Therapy is indicated over a nine month period’.
  3. C has therefore been with his current foster carers for 16 months of his life, has settled with them and is integrated into life with them. His mother has been having contact with him twice a week for sessions lasting one hour and although there have been inevitable niggles about that contact, a condensed analysis of that contact could not express it as falling below the grasp of the adjective ‘reasonable’ on my current reading of the papers and submissions that were made at the IRH. C’s educational and social connections, at an important time of his life when he is settling into school, have all been made from the base of his current foster home. The foster carers have done an excellent job in caring for him and, in his letter to the judge, C says ‘my family is [the foster father, the foster mother and their cat]‘ and draws the foster father with a big smile on his face. The guardian reports that C is making ‘greatly improved progress at school and his health has improved’ since living with them [A14].

 

 

These three paragraphs of background raise the three obvious questions

 

  1. What the hell took the LA so long to issue?
  2. Is it fair for the LA to have delayed so long in finding out that mum needed 9 months of therapy – because if they’d found out earlier, she’d have had it by now
  3. IF the child can’t go and live with mother, surely this child is going to stay with the current carers if humanly possible

 

However, the LA in this case had delayed for so long, were saying that the child couldn’t wait for mum to have therapy, and had ruled out the current foster carer as an option.

 

Taking these in turn

i) Having been involved with this mother since August 2013 and having accommodated this child in May 2014 it is inexplicable that it took a year for the Local Authority to issue these proceedings. That has absolutely nothing to do with limited resources. It is simply bad practice.

 

On the issue of therapy :-

 

ii) The Local Authority knew the mother’s level of functioning but still took until 9th March 2015 to identify that this mother needed therapy. Knowing the mother’s level of functioning why did it take 19 months (from August 2013) to do that? How can it be regarded as satisfactory for the Local Authority now to say that the mother needs therapy which is outwith the timescales of the child? For instance, if a psychologist’s report had been obtained within three months of C being accommodated (i.e. in August 2014) there could have been 13 months of therapy by now at far less expense than the cost of these proceedings leading to the possibility that the consequences of this mother’s unfortunate background could have been mitigated with the child receiving an upbringing with her

 

[I have a bit of sympathy with the LA here –  I’m not sure whether anyone actually argued that as a result of House of Lords authority Kent County Council v G, it is not within the Court’s powers to compel the provision of therapy, that therapy thus has to be resourced through the NHS and the NHS aren’t going to provide therapy without a clear diagnosis and recommendation, at least not without a huge waiting list. So tempting as it is to just start the therapy whilst waiting for the expert report, that isn’t how the real world works.  It is fair enough to say that the real world in this regard sucks and it needs to change.   There is possibly a big argument to come as to whether the House of Lords settled position that “there is no article 8 right to be made a better parent at public expense” is compatible with what Baroness Hale says in Re B about the State needing to provide the resources to do just that, but that’s a debate that can only be resolved by the Supreme Court. ]

 

On the last issue, why the current foster carers had been rejected in favour of adoption by the LA.

 

  1. At the IRH, on 8th September 2015, I was told that the current foster carers were not offering C a long term home. The guardian says in her position statement: ‘since the IRH on 8th September 2015 the guardian has spoken to C’s current foster carers. They have confirmed they have never said they would not keep C long term as foster carers. They would not wish to consider special guardianship or adoption because they see themselves as foster carers and may well wish to foster another child and would wish both children to be placed with them on the same basis. The foster carer has also informed the guardian that Mr D has on a number of occasions said that he would be prepared to care for C if there were no other options’.
  2. It is right that, on 27th August 2015 there was a discussion between the adoption social worker, TG, and the foster carers. I have the case note in relation to that. This conversation therefore took place six days after the placement application had been filed by the Local Authority (so the Local Authority had already ruled out long term fostering then). The foster carers were saying at the time of that note that they did not feel able to adopt C. They are not recorded as saying that they would not foster C. It took one conversation between the guardian and the foster carers to clarify matters. When asked directly by the social worker on an unspecified date (but after the IRH) ‘the foster father confirmed that he and the foster mother would have C for as along as is needed in long term foster care with a care order if they were supported by the Local Authority’. The clear impression that I have, having read the papers, heard the IRH and listened to submissions today, is that the Local Authority did not consider the possibility of long term fostering with the foster carers and, once it regarded the mother as ruled out, its linear analysis took it to adoption.

 

So the child’s current foster carer, who everyone involved would agree had done a marvellous job, was willing to be a permanent carer for the child, just that he didn’t want to adopt the child. The LA had approached this on the basis of “our plan is adoption, you don’t want to adopt, therefore you are out”, rather than looking at whether the child could remain with the carer on a different basis THUS avoiding the need for adoption.

 

The case simply could not be concluded, as there were too many unknowns.

Following a heavy IRH on 8th September 2015 the case is listed before me for final hearing for the rest of this week. That final hearing cannot proceed because there are realistic options in relation to the future care of C that have not been assessed by the Local Authority. That means that large amounts of public money and time have been wasted in a Local Authority involvement that has spanned 16 months. All parties now say that the case has to be adjourned. Eventually, I have had to give up my attempt at keeping this case on the rails of this final hearing and have had to accede to adjournment. To adjourn a case where there has been lengthy Local Authority involvement with a family in a straightforward case is absurd but now unavoidable.

 

 

and in conclusion

  1. What are the options that need to be considered? They are these:

    i) That C should be rehabilitated to his mother. Of course, nature, law and common sense require that it be recognised that the best place for a child to live is with his natural parent unless proven and proportionate necessity otherwise demands. As matters stand the professional evidence is all stacked up against this mother but her case will require very careful consideration at a final hearing.

    ii) That C should continue to be a child fostered by Mr and Mrs B. If the Local Authority will not support this the only way in which C could live with the foster carers would be through private law orders. If special guardianship orders were to be proposed there would need to be a report under s14A(8) of The Children Act 1989. Therefore I need to flush out what the Local Authority is saying. If it will not agree that C should remain with the foster carers (should the court so recommend on the making of a care order and a rejection of the placement application), I will have to give directions for a special guardianship application to proceed (a written application is not necessary if I so determine – s14A(6)(b) of the 1989 Act). The possibility of C remaining with the foster carers is unassessed by the Local Authority and there has not been sufficient discussion with them.

    iii) That C should live with Mr D and A. This is also unassessed. There is no blood relationship between Mr D and C but there is a blood relationship between A and C. They have a clear fraternal attachment (in which C is A’s big brother). That possibility remains unassessed also.

    iv) That C should be placed for adoption. That is an option upon which I have already commented. I am not suggesting that there are difficulties about that option on the basis of age alone. I say that there are difficulties about it because of the particular circumstances of this child.

  2. Therefore today I have had to give directions for the future of these proceedings. By the time that the case comes back the new baby will have been born, and I wish the mother well with the birth. However, the advent of the new baby will mean that there are additional complications that will arise in ensuring that the best solution is found for C.
  3. I have given this judgment in writing so that there is a formal record of what has gone wrong in this case and how matters must now be put right. The Local Authority must consider the realistic options that arise and must put its case into order.
  4. Proper plans must be put in place for the birth of the baby and where the inevitable assessment of the mother and the baby will take place. That should have been done already. The mother is in and out of hospital at the moment and it is manifestly unfair that, as well as dealing with the physical demands of impending birth and repeated hospital appointments, she is also having to deal with the uncertainties of these proceedings and a lack of knowledge about what will happen when she does give birth – where will she be living and what is planned for the baby?
  5. The Local Authority must therefore look at the options that arise and file proper evidence in relation to them. The case will have to come back before me later this week when I will have to give further directions as to how that will be achieved. It is deeply frustrating that a case such as this has to exceed the timescales provided by section 32 of The Children Act 1989 and that should be recorded as having been caused by systemic failure by the Local Authority

 

 

There is also some pending litigation in this case as to whether when the child was originally removed from the parents by police protection, whether that was in breach of the families human rights – it being really settled law that where removal of a child is being contemplated it should be a decision of the Court unless there are exceptional and compelling reasons why the removal cannot wait for a Court hearing.

 

 

A witness talking over the lunch adjournment

I don’t often write about ancillary relief cases, but this one

 

JE (Husband) v ZK (wife) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B87.html

threw up an issue that we all trot out to witnesses on a daily basis and when I asked on Twitter about six months ago where you can find that actual rule written down, nobody was entirely sure.

When a witness is part way through their evidence, and the case comes to a break (either at the end of the day, or lunch), the witness is generally warned by the Judge “You should not discuss the case with any one, and you are still under Oath”

The still under Oath part must be right, since when the witness resumes, they do not have to take the Oath again.  Therefore, during that break in the evidence, the witness is still bound to tell the truth, the whole truth and nothing but the truth – technically, if the witness goes for a haircut and the hairdresser does that thing with a mirror where they show you the back of your own head, rather than the stock response of   :- nod “mmm, that’s great thanks” the witness ought to answer “I have no idea why you show me that, what is the point? Whatever you’ve done, it is too late to fix, and I don’t care what the back of my head looks like”

 

[Even worse, if you are still under Oath, and your new partner asks you “does my bum look big in this?”, you could be in for a world of trouble. Best to not talk to anyone at all]

The not discussing the case with anyone makes perfect common sense (which is unusual in law).  If you could talk about your evidence with someone whilst you were in the middle of giving it, they could be influencing what you say, or giving you tips as to how to do it better.  And if someone else in the case saw the witness talking to their lawyer or another party, they might well SUSPECT that this is what was happening, even if it wasn’t. So best not to do it.

The hard bit is finding where that rule is actually written down, and what the Judge is supposed to do about it.

 

Here, what happened was that the original Judge heard evidence that the husband, having given part of his evidence and then needing to come back over lunch, had been seen in the Court waiting room talking to his colleague NC (his colleague was also someone whom the husband had been renting accommodation from AND someone who was said to owe the husband £15,000, so it COULD be said that the conversation might have a bearing on financial matters)

The husband’s evidence was that he had asked NC about “Ironman” competitions and personal trainers, and nobody disputed that.

 

The District Judge had found that the father was in contempt, and said in his judgment

Is it relevant? I can hear being said! Well, yes, for this is the same man who remortgaged 141 Kings Road after having said through his solicitors that there were no grounds for saying that he was going to. Like that, his behaviour at the lunchtime was unacceptable’.

Now, importantly, this was a hearing where a financial order was made, concluding the financial arrangements. The District Judge was now in a pickle, because whilst saying that it was ‘relevant’  it clearly wasn’t conduct that could legitimately be taken into account for the purposes of the Matrimonial Causes Act.

The District Judge then made a clarifying note

In his clarifying note at B26 the District Judge said that he did not take the husband’s conduct in speaking to NC into account in his conclusion and that he ‘would have thought that was clear. It just had to be mentioned, it as so blatant’.

 

Part of the husband’s appeal was that the judgment was thus blurred about whether or not this issue had weighed on the judicial determination of finances.

 

Dealing with the appeal, His Honour Judge Wildblood QC said this:-

  1. Quite plainly, that conversation between the husband and NC had absolutely nothing to do with the correct outcome of the financial remedy applications. It was a complete irrelevance, as far as the solution to the case was concerned. It certainly was not conduct that the court could possibly take into account when deciding upon the correct outcome. It had no relevance under any of the other factors under section 25 of The Matrimonial Causes Act 1973 and cannot be salvaged by reference to ‘all the circumstances of the case’ in s 25(1) of The Matrimonial Causes Act 1973.
  2. I accept that the District Judge does not then tie in the finding that this issue was ‘relevant’ when later explaining his conclusions. At B15 he says that he is departing from quality bearing in mind the wife’s need for her to provide a home for the children. Further, at B6 he says: ‘there are two aspects of the husband’s affairs which I take into account within all the circumstances of the case and which make me satisfied that my decision is appropriate. First the dissipation of assets referred to in paragraph 4 above and, secondly, the opaque business relationship with Mr Clarke’. Although there are obvious difficulties with that past passage to which I must return, he does not say that the ‘contempt’ finding is relevant in that later passage.
  3. The difficulty is this. If a judge says that something is relevant in the sort of strong terms used by the District Judge he must mean what he says. A judgment has to be capable of being understood on its face and a party to the proceedings must be able to understand the methodology of the court. It seems highly likely that, at the time that he wrote the judgment, the District Judge did regard this issue as relevant to how the capital should be divided (because he said so himself at B15). I do not accept Ms Allen’s clever submission that he meant ‘Is it relevant for me to mention it?’ at B15; that interpretation does not fit in with the context of what he was saying. He associated it with the husband’s conduct in re-mortgaging the property at Kings Rd [B15] and, later took that remortgage into account at B16. The reality is that the District Judge was making findings of conduct and saying that he treated them as relevant. He was incorrect to do so and a clear statement in a judgment that something is treated as relevant cannot be cured by a clarifying note.

 

 

[This Judge was more sanguine about the incident itself than the DJ had been

 

iii) The finding of contempt was inappropriate and unnecessary to the exercise that the District Judge had to perform. The husband was wrong to speak to NC over lunch having been warned not to do so but the conduct complained of (speaking about personal trainers and an Ironman competition) had nothing whatsoever to do with the outcome of the case but was described by the District Judge as ‘relevant’ to it. I know the Gloucester waiting area well having appeared there as an advocate myself in my 27 years at the bar, and can well imagine what occurred (and what did occur happened in the full view of the lawyers and was not remotely surreptitious).   ]

 

His Honour Judge Wildblood QC, with some reluctance, had to allow the appeal and discharge the financial order that had been made. I say with reluctance, because the Judge had earlier expressed substantial dismay that two people who had once been in love had spent a “Scandalous” amount of money in ligitation

 

  1. The District Judge said that the costs were scandalous. I agree. The total that has been spent in legal costs now is as follows:
    Wife’s costs before the District Judge 62,171
    Husband’s costs before the District Judge 28,799
    Husband’s appellate costs 12,849.26
    Wife’s appellate costs (at least) 20,000
    Total 123,819.26
  2. This is not a complex case. It involves a home, a working husband who is effectively a sole trader, a few modest assets, considerable liabilities, two children and a depressed wife. For money to have been wasted on such disproportionate costs is truly scandalous. Further, these parties have two children – what sort of example do they set their children when they spend so much of the money that should be directed to their children’s welfare on blinkered and self validating litigation?
  3. I am particularly critical of the level of this wife’s costs. They are double those of the husband and nothing that I have seen gets anywhere near justifying that. I have myself witnessed two wholly unnecessary applications being brought by the wife: a) for transcripts of all of the evidence before the District Judge to be ordered at the husband’s expense for the purposes of the appeal, an application which I did not allow and b) a full legal services application, when the correct application should have been for a partial release on a stay which, when I suggested it, was agreed on the evening before a hearing of the legal services application brought by the wife and only after considerable cost expenditure (W’s claimed costs £3875.70). Further, I consider that money has been wasted on obtaining expert evidence about the suggested value of the husband’s business when that capital value was abandoned (rightly) at trial and was never going to have the sort of relevance originally suggested. That expenditure on costs took place against the backcloth of strong complaint made by the husband before the District Judge about the wife’s costs expenditure (see A1 – no trial bundle, no open offer, no updating disclosure and a late production of her s 25 statement that had been prepared three months before the hearing started but was filed seven days before the hearing started).
  4. The above remarks must be before any judge assessing costs in this case and I ask that there is very careful scrutiny of the costs that are being claimed by the wife’s legal team. It cannot be right that this level of cost expenditure occurs in a case of such modest assets. The costs claimed are about 36% of the total assets held, according to the District Judge by the parties. The burden that this now creates upon the parties, especially the wife must be immense.
  5. The District Judge found that the total pot of capital in the case was £345,686

 

Towards the end of the judgment, HH J Wildblood QC set down a marker for future litigation conduct

86….I wish to make it plain that, if I find any more money is being wasted by this wife on costs, I will impose costs sanctions – if she, or the husband, pursues any more pointless or unmeritorious issues I will reflect that in a costs order (and I say that without prejudice to any arguments and applications that may be advanced about existing cost expenditure). It seems to me at least highly possible that past dissipation of assets (which in a big money case can be of obvious importance) may be regarded as totally overshadowed now with the exigencies of the current very limited financial circumstances of these parties with the true focus of this case now being on the limited issues that I have set out above – especially relevant will be these questions: i) Where are these people to live and ii) what incomes are these people to have?.

  1. Although I am not in any way deciding the point now, I foresee that the husband will have a difficult task in contending that this wife should face a time limit to any order for periodical payments particularly if it involves a s28(1A) bar but even without such a bar.
  2. I intend that the above issues must be adhered to. There will be no more profligate expenditure on legal costs. To that end I wish to record that any District Judge assessing the costs of either party from this point on until conclusion of the rehearing should disallow that parties’ costs insofar as the costs of any party (from this point onwards) exceed £7,500 unless a) any party has made submissions to me that I should revise that figure or b) the judge carrying out the assessment considers that an extension beyond that figure was genuinely necessary.
  3. I strongly recommend now that the parties make every effort to resolve their differences without the need for the rehearing to take place.
  4. I reserve the costs of the appeal until conclusion of the rehearing. Both of these parties know what their own financial circumstances are and, with the level of costs that she has incurred, the wife should know about her tax credit position (and, if she doesn’t she needs to find it out hurriedly). Although I do not know what the husband’s income is, he does. If it were to be shown on fresh evidence that the District Judge was correct about his income, that would be bound to have an impact on the orders for costs that I would make.

Local Authority, go and sit in the naughty corner

 

We don’t seem to go more than about a week without some Local Authority or other getting a judicial spanking, and here’s another.

 

[I probably need to create a new Category on the website of  ‘judicial spanking’. No sooner said than done. If you did type ‘judicial spanking’ into Google and have arrived here, then I apologise, and I hope that you weren’t doing it on HMCS computers…http://www.theguardian.com/law/2015/mar/17/three-judges-removed-and-a-fourth-resigns-for-viewing-pornography-at-work ]

 

TM and TJ (children : Care Orders) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B83.html

 

Fundamentally, these complaints are about the Local Authority turning up to the Issues Resolution hearing, without its final evidence being in order, so that nobody really knew what their plan was and certainly hadn’t been able to respond to it.  It also touches on an issue dear to my heart, where LA “A” who are running the case, decide at the last minute that LA “B” should have a Supervision Order for these children and expect that authority to agree to this without knowing any of the background.

 

 

    1. On 12th March 2015 the Bristol Magistrates ordered that the case should be made ready for a preliminary which is called an ‘Issues Resolution Hearing’ (‘an IRH’). The intention of that kind of hearing is to identify the issues that remain between the parties and see whether they are capable of being resolved without the need for a full final hearing. It is not just a ‘directions hearing’ because Practice Direction 12A of The Family Procedure Rules 2010 (which is well known to family lawyers) provides that, at the IRH:
    • The court identifies the key issues (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
    • The court considers whether the IRH can be used as a final hearing.
    • The court resolves or narrows the issues by hearing evidence.
  • The court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing.
  • The court gives final case management directions.
  1. If, by the time of the IRH, the Local Authority has not filed adequate evidence, it means that the whole purpose of the IRH is negated. Thus the magistrates ordered that, by the time of the IRH, the Local Authority should have filed its final evidence including its assessment of the parents. The Local Authority had been ordered to file its final evidence (including all assessments) by 15th June 2015, the parents had been ordered to file position statements by 22nd June 2015 and the guardian had been ordered to file a position statement by 23rd June 2015. There was to be a meeting of advocates on the 16th June but that had to be abandoned because the Local Authority’s final evidence had not been filed. The court was notified that there were delays. Some final evidence was filed by the Local Authority by 22nd June 2015 although the mother’s solicitor did not receive any of the final evidence until the morning of 25th June 2015.
  2. On 25th June 2015 this case was referred to me by the Magistrates. The parties and their legal teams had all been at court since 1 p.m. that day. I knew nothing of the case before it came in front of me late that afternoon. There were the following reasons for that referral: i) All parties accepted that the Local Authority had not filed adequate final evidence. The Local Authority itself presented its case on the basis that the assessments that it had conducted were inadequate and could not be relied upon.ii) The care plan proposed that the children should go to live with the father in the east of England under a supervision order to a Local Authority in that part of the country. There was no input from that other Local Authority and there was no indication of how that authority might support the father if the children did go there. That authority was first notified of the suggestion that there should be supervision orders in its favour (and also of the hearing on 25th June 2015) on 19th June 2015. Before the email that was sent on the 19th June, that authority had no knowledge of the case at all. It is not surprising therefore that that authority did not consider that it could participate in the hearing on 25th June; it has never seen the papers in this case.iii) There was no adequate evidence of the arrangements that the father would make if he were to care for the children there. In particular, the father’s plan, if he does move to the east of the country, is to be assisted by his aunt in the care of the children. There is no evidence from her; there is no more than a ‘viability assessment of the aunt’ that was filed on 17th April 2015. Although the agency social worker who dealt with the case before leaving is thought to have spoken to the aunt before the care plans were filed, there is no record of any such discussion.iv) There had been no adequate assessment of the mother. She opposes the suggestion that the children should live with the father and wishes to care for them herself. There was an assessment of the mother that was carried out in November 2014 but this was not a parenting assessment and was carried out when the children were already in foster care. There had been a previous assessment of her in January 2014; this was a parenting assessment and was completed at a time when the children were still with her; however, that assessment was underway at the time of the birth of the second child and expressly was not an assessment of the mother’s ability to care for two children. There simply was no parenting assessment of the mother within the proceedings and there was no assessment of her ability, as a parent, to care for two children. That is despite these proceedings having been running now for very nearly six months, with the children in foster care.v) Because the Local Authority had not put forward any adequate evidence or proposals it meant that the parents did not know what case they had to meet. Even now I do not have any idea what the Local Authority recommends for these children.vi) The root cause of the problem lay in the fact that the previous social worker, who was an agency worker who had been employed in January 2015, had been charged with the responsibility of writing assessments of the parents, had said that she had done so and then left her temporary employment with the Local Authority without fulfilling that responsibility properly, I am told by the Local Authority. The new social worker had only been involved in the case for three weeks prior to the IRH on 25th June and, quite understandably, did not have the knowledge upon which to write fresh assessments.

    vii) Given the omissions in the Local Authority assessments I was told that it would take 14 weeks for the current social worker to complete assessments, given her case load and summer leave. The alternative, I was told, was that an independent social worker could be instructed to report by the 14th August. The result now is that the Local Authority will have to pay from public money for an independent social worker to be employed to do the job that a social worker, employed by the authority, should have done.

    viii) Given the shortage of time, the final hearing therefore could not be sustained at the beginning of July and another date would have to be found.

    ix) The work of the guardian was materially impaired. How could she advance recommendations when she did not know what the Local Authority proposed.

 

 

The case had to be adjourned, and an independent expert had to be appointed to conduct the parenting assessments that the Local Authority hadn’t managed to do, and the LA had to pay for that.

The Judge, obviously being very critical of these failings, said this towards the end of the judgment:-

  1. I understand the difficulties that the Local Authority faces and criticisms from the bench do little to repair the problems. Indeed criticism can simply add to the recruitment difficulties that Local Authorities face. From the time of my first speech as Designated Family Judge in this area I have stressed that there are four alliterative concepts that I wish to drive forward – i) a collaborative approach amongst the many professions and institutions involved in the family justice system; ii) Proper communication between those involved in that system; iii) a recognition of the need for changes in practice and iv) a commitment to the people who really matter – the children, family members and professionals who are obliged to turn to the family court system when there are family and personal difficulties that cannot be resolved consensually.
  2. But I would like to make these points:i) If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.ii) Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.iii) Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.iv) If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.
  3. In this court area there has been a recent and considerable increase in the number of cases that are not meeting the 26 week statutory deadline. Of 181 public law cases there are 49 cases that are now ‘off track’. That means about 27% of our cases are exceeding the 26 week deadline. This has got to stop. Many people have worked extremely hard to improve upon the performance of this area and we are not prepared to see that slide away from us now. This type of poor case performance is unnecessary and is damaging to the system as a whole.
  4. There are reasons why some cases may need to exceed the 26 week deadline. For instance there are cases involving complex issues of fact (e.g. where there is an allegation of a serious offence having been committed), cases which involve large and complex family dynamics and cases involving complex medical issues. This is not such a case. There are far too many cases like this one where the issues are straightforward and where delay is manifestly harmful to the children concerned. The only reason why this case has been so delayed is inefficiency.
  5. If three days of court time are lost in this way it may well not be possible to fill those days with other work where this sort of thing happens so close to a final hearing. Not only are adjournments plainly contrary to the welfare of young children, they also cost a lot of public money and mean that very valuable court time is being lost. There is now immense pressure for every hour of court time to be used to its very fullest advantage and if one case is neglectfully prepared, as this one has been, it means that other cases and, other children and other parties suffer. It also means that public money is being used to fund the inefficiency of those people who do not engage in the system properly. It is perhaps commonplace but, nevertheless I do observe that the Local Authority that contends that the mother has not ‘co-operated with professionals’ has, itself shown a distinct and at least commensurate lack of co-operation with the court.
  6. I am therefore adjourning this case to an IRH before me in September and will list a final hearing, again before me, as soon as possible afterwards. I will also try to call the case in for review once the report of the independent social worker has been obtained. I will release this judgment on BAILII. I know that it will be picked up at least by the local press and I consider that people in South Gloucestershire need to know how their Local Authority is functioning.

 

I think that there’s a lot of powerful and impressive stuff in this judgment. The ‘four C’s’ approach of Collaborative, Communication, Change and Committment is a damn fine philosophy.

I had a long quibble about whether the passages in the judgment that say that there are ‘far too many’ expert assessments in Bristol Courts and that the Courts must ‘crack down on them’ were somewhat blurring the lines between the statutory requirements and judicial impartiality on applying the requirements to the facts in an individual case, and Judges in their role of being spanked for their poor performance on statistics.  But I think on re-reading that HH Judge Wildblood QC does (just ) enough to put this marker on the right side. (just)

 

So, instead,this (unconnected to HH J Wildblood QC who uses plain English where possible):-

 

Bearing in mind that coming across an impenetrable allusion in judgments is an occupational hazard  (“I thought I had seen a white leopard”  “As in the famous quotation by Lord Wellington  [quotation not supplied]”  “contumelious” and so forth),   I think that we do rather better than America.  As you may have heard, in the gay marriage case in the US Supreme Court, the words ‘apple-sauce’ ‘arrgle-bargle’ and ‘jiggery-pokery’ were used, but this Judge goes even further

http://blogs.wsj.com/law/2008/02/04/the-linguistic-talents-of-judge-bruce-selya-2/

 

 

  • Defenestration. Don’t walk past an open window if Selya is inside writing an opinion: He is liable to defenestrate anything and everything. Items thrown out the window in Selya opinions include speedy trial claims, punitive damages awards, arbitral awards, claims of co-fiduciary liability and laws that unduly favor in-state interests. The latter, Selya has noted, “routinely will be defenestrated under the dormant commerce clause.” 
  • Philotheoparoptesism. Philotheoparoptesism refers to the practice of disposing of heretics by burning them or boiling them in oil. Another judge challenged Selya to include this word in a decision, which resulted in its sole reported usage (in secular courts, at least). For the record, Selya declined to consign a misguided prosecutor “to the juridical equivalent of philotheoparoptesism.”
  • Repastinate. To repastinate means to plow the same ground a second time. When considering appeals that raise previously decided issues, Selya and his colleagues have come down firmly and repeatedly on the side of “no repastination.”
  • Sockdolager. A sockdolager is a final, decisive blow. Selya’s published opinions deliver almost 60 sockdolagers, which is more “sock” than one finds in the decisions of the rest of the federal judiciary.
  • Thaumaturgical. The 1st Circuit takes a dim view of magical arguments, or what in one opinion Selya called “thaumaturgical feat[s] of rhetorical prestidigitation.”

 

 

Defenestration I knew, due to the ‘Defenestration of Prague’ and thaumaturgical I knew, because I love magic. The others, not a scooby.

Of these words, I found that only one of them appeared in Bailii law reports – three times in all.  http://www.bailii.org/ew/cases/EWCA/Crim/2009/649.html

 

In R v Johnson 2009, I think the Court of Appeal use it wrongly, when they describe a burglar leaving a building .As a matter of inference, he left the premises by means of defenestration .

I think that defenestration involves throwing something out of, or being thrown out of. I don’t think jumping or climbing out counts.

The second one Downing v NK Coating Limited 2010 http://www.bailii.org/nie/cases/NIIT/2010/07397_09IT.html fails for the same reason, but it does bizarrely involve the Court having to think about a lab assistant who left his office by climbing out of a window, thus leaving a urine sample unattended and potentially able to be tampered with.

And Ormerod and Gunn  is more of an essay (an interesting one) and once again, is referring to cases of people jumping out of windows, albeit to escape a threat of assault. It also talks about our old friend, Wilkinson v Downton 1887 http://www.bailii.org/uk/other/journals/WebJCLI/1997/issue3/gunn3.html

 

So I haven’t found the term being used in its proper sense. The challenge is on.

 

It appears that the English Courts are fonder of throwing things out of windows then they are in magic, ploughing, boiling people in oil [glossing over the Middle Ages law reports], or whatever the heck sockdologing is…

 

 

[Ha! In an unwitting irony, it turns out that one meaning of sockdologer is to determine something in a decisive and final manner. Which is clearly something that the English Courts aren’t interested in doing.  I honestly didn’t know that when I wrote the previous sentence. ]

Minnock judgments (part 2) and a different judicial approach

Well, firstly, I’m pleased that the child has been found. And I’m not going to speculate about the future outcome of the case.

 

But I thought that people who have been interested might like to see the next four judgments.

https://www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethan-freeman-williams-2-judgments/

 

They are the bottom four (beginning 12th June)

The 12th June judgment is unusual, in that it doesn’t read as a case where the Judge was being asked to decide an issue or make an order. Rather, he is helpfully setting out for those involved that if there is a commital application (where a person might get sent to prison) they are entitled to free legal advice and representation and what the magic words are. He then goes on, largely for the benefit of the Press and public to set out how the Courts make decisions about where a child lives, what factors come into account, the representation that the parents have had, and what factors the Court would take account of in the future, stressing that what the Court wants is to make sure that the child has a proper relationship with both parents. It is almost a judicial press release.  I’ve not seen that happen before, but I think in a case with so much media attention and public interest, it is actually a really sensible thing to have done and I hope that future Judges consider it.  If you wanted to understand what the legal background was to the case, it is all there.

The next judgment is describing that the child is safely returned, and explaining that the mother’s plan in the case was to use the Press to gain sympathy for her cause and to thwart the decision of the Court.  People may have their own view as to whether she was justified or not, but if you have a strong view, I’d recommend that you read that judgment to see if it remains the same. The really remarkable thing about this judgment is that at the end, the Judge allowed members of the Press to ask him questions directly and answered them.

I’ve never seen that happen in a family case before, but it seems to me a remarkably sensible approach. It must surely result in more responsible, balanced and nuanced reporting that the Press had the chance to ask questions directly of the Judge.  I applaud it.

The third (private hearing 15th June) sets out that the future decisions in the case need to be made without public spotlight, although a judgment will be published after the case is over, and allowing father to provide a short statement to the press.

 

And the fourth (and so far final) is a purge of contempt (by the partner of the maternal grandmother) for his part in the press campaign and more importantly in lying about the child’s whereabouts. For non-lawyers a purge of contempt is where a person who has been sent to prison for breaking court orders goes before the same Judge to express remorse and regret and ask for his sentence to be reduced or ended. In this case, the man was released from custody.

 

The Judge did ask, in his judgments, for the Press to refrain from speculation about where the child might live and whether mum would get to see him again and how that would work, and I’d therefore ask people to do the same in comments.

But what do people think about the Judge’s approach to openness in the case ? Very fast publication of the judgments, allowing the Press to come in, delivering a judgment that explained all of the balancing factors and principles, and allowing the Press to ask him questions? I think it is all very new, and the law is generally terrified of innovation, but we may come back to look on this case as a watershed in the family Courts not merely paying lip-service to the idea of transparency but really engaging in the process of explaining to the Press and public what is happening.  And balancing that with keeping really private things private.

 

The Minnock judgments are up

This case has been in the news this week.  What little we know from the public domain is that a mother was involved in court proceedings and the Court ordered that the child go to live with father, and that mother instead took the child and went on the run with him. She has contacted the Sun, who ran a story and now the Daily Mail.

http://www.dailymail.co.uk/news/article-3120750/Ethan-needs-home-t-bear-Mother-run-son-3-says-s-thought-handing-in.html

I’m not going to comment much on the story, because it is still a live issue before the Courts, but given the extent of feeling about the case, I think it is helpful for people to see what the Court judgments say on the case.

 

https://www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethan-freeman-williams-2-judgments/

There are 3 judgments, on the 8th June, 9th June and 11th June. You can find them all at that link.

 

The 8th June judgment is probably the most helpful in terms of understanding the background of the dispute between mother and father and why the Court decided that a change of home from mother to father was warranted.  (Bear in mind though that all three of these judgments are about efforts to find the child, and aren’t the judgment that sets out the full facts in the private law case deciding where the child should live and making conclusions about the allegations in the case. That isn’t yet published. It would be very helpful to understand things, but I can understand that whilst the child is missing why it might be thought that it should not yet be published)

 

I am sure that people will have very strong views and that those views may well be polarised. Let’s all hope though that the child is okay. Regardless of the rights and wrongs of the case, this must be a very difficult and worrying time for all of the real people involved.