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Towards and untowards

 

This is a decision in an application for committal, and is a salutary lesson in the importance of precision in drafting.

 

London Borough of Wandsworth v Lennard [2019] EWHC 1552 (Fam) (14 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1552.html

 

The father in the case was aggrieved at the social workers dealing with his child, and as a result of the way in which he expressed his feelings, an injunction was made.

It had this wording, which seems unexceptional and unproblematic and I make no criticism of the drafting here (but we shall see that it becomes very important)

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour towards Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

I am now going to reprint that, with the critical word (for the purposes of this committal application) highlighted

“IT IS ORDERED THAT:

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour TOWARDS Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

 

 

What was alleged in this case (and please note it is important that the Court HAVE NOT gone on to determine whether these things are true) is that

 

 

  1. on 13 February 2019 Mr Lennard accepts that he attended Wandsworth Town Hall, whereat he “let his frustration get the better of me and I am truly sorry and remorseful about my behaviour towards the two staff members”. The behaviour to which Mr Lennard refers in his first, and in his second statements before this court, is alleged by the two staff members referred to, Gladys Etiobho, in an affidavit dated 28 March 2019, and Nathan Ojiekhudu, in a statement dated 9 May 2019. It can be summarised as follows:
  2. i) Mr Lennard barricaded Gladys Etiobho and Nathan Ojiekhudu in a room by using his body and refused to allow them to leave.

ii) Mr Lennard became verbally abusive and stated he would not permit Gladys Etiobho and Nathan Ojiekhudu to leave the room until he could see Grace Okoro-Anyaeche.

iii) Mr Lennard made threats of harm towards Grace Okoro-Anyaeche stating that he would “wait outside and snatch Grace because I want answers” and that he “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.

iv) Mr Lennard is said to have made similar threats to Gladys Etiobho and Nathan Ojiekhudu.

v) When informed that the Police would be called, Mr Lennard himself called the Police and said he had “two hostage workers and if you don’t come now I don’t know what might happen” and proceeded to give the address of Wandsworth Town Hall.

vi) Mr Lennard then allowed Gladys Etiobho and Nathan Ojiekhudu to leave the room but made them wait in the reception area.

 

 

The father says that he did use foul language towards Gladys and Nathan, detained them in the room for ten minutes and regrets what he did.

 

But DID HE BREACH the injunction?

Well,  at first glance,  saying that he  “would body snatch Grace at the car park and have a body map on the floor and going to burst her head open”.  if proven  (and the Court would need to hear from the three people present, one who says it wasn’t said, two who say it was) would appear to be using threatening behaviour towards Grace. It is aimed very obviously at her.

But Grace was not present. She obviously now knows what has been said, and that must be frightening and distressing.  But the injunction doesn’t say “about”  or “aimed at” it says “towards”

 

Initially, one might think that there’s no real difference between those formulations, but actually, for it to be legally ‘towards’ someone, they have to hear it.

 

 

  1. In support of this submission, Mr Wauchope relies on the case of Atkin v Director of Public Prosecutions (1989) 89 Cr App R 199. That case concerned two Customs and Excise officers, accompanied by a bailiff, who attended the defendant’s farm to recover outstanding value added tax. Whilst two Customs officers conducted their business inside the farmhouse the bailiff waited outside in the car. The car was parked in the farmyard where the bailiff was unable to hear any of the conversation in the farmhouse. When the Customs officers ascertained from the defendant that he was unable to pay the VAT due they informed him that the bailiff would have to enter the farmhouse to distrain on his goods. The defendant replied that, “If the bailiff gets out of the car he’s a dead un.” No threats were made to the two officers. The bailiff did not hear the words spoken by the defendant. The defendant was convicted by the magistrates of using threatening words towards the bailiff and appealed by way of case stated.
  2. At p 204 the Divisional Court in Atkin recounted the submissions it heard in respect of the meaning of the “used towards another person threatening words”:
    1. “In this Court, Mr. Murray on behalf of the defendant, has highlighted the phrase in section 4(1)(a) ‘used towards another person threatening words.’ He submits that the plain and natural meaning of that phrase is that the threatening words have to be addressed directly to another person who is present and either in earshot or aimed at as being putatively in earshot. The phrase does not equate with ‘used in regard to another person’ or ‘used concerning another person.’ He submits that approached in that way the phrase here clearly related to the use of the words within the house to those who were in earshot.”

Later at p 204 the Divisional Court went on to observe as follows in light of the submissions made on behalf of the defendant:

“We were referred to decisions of different divisions of this Court in previous cases, Parkin v. Norman [1983] Q.B. 92 and Masterson v. Holden [1986] 1 W.L.R. 1017. We have not found those citations particularly helpful as they were both concerned with an earlier Act, the Public Order Act 1936. The 1986 Act in sections 4 and 5 supersedes section 5 of the 1936 Act. The wording in the new Act is quite different. The phrase ‘uses towards another person’ is entirely new and the construction of section 4 is therefore not assisted, in my judgment, by considering decisions of this Court in regard to the construction of an earlier statute. This statute has, we are told, not been construed by any court and the phrase “uses towards another person” has not been found by counsel in any other statutory provision which would give any helpful indication as to its true meaning in this context. So the exercise is one of purely looking at the wording of the section and deciding what the plain and natural meaning of the words is, bearing in mind that if there were any doubt that doubt would have to be resolved, since this is a penal provision, in favour of the appellant. In my judgment the submissions made by Mr. Murray are correct. The phrase “uses towards another person” means, in the context of section 4(1)(a) ‘uses in the presence of and in the direction of another person directly.’ I do not think, looking at the section as a whole, the words can bear the meaning ‘concerning another person’ or ‘in regard to another person.'”

  1. My attention was drawn to no other authorities or materials on the question of the meaning of “towards” in the context that is before this court.

 

 

[So here, the word ‘towards’ is significant, and for those reasons the application for committal was dismissed. It may seem a technical point, but for something as serious as committal the technical stuff matters and is essential. The benefit of the doubt, on something where someone might be sent to prison goes in the favour of that person. For ‘towards’ in an injunction, the person being protected needs to be present.  If the injunction instead said ‘shall not make in the presence of any person threats about’ then this would have been capable of being proved as a breach]

 

 

  1. Having given careful consideration to the matter, and in the context of the alleged breach in question being the use by Mr Lennard of verbal abuse, I conclude that I favour the narrow interpretation of the word “towards” in this context and take Parker J’s order to mean that Mr Lennard is prohibited from using offensive, foul, threatening words or behaviour in the presence of and in the direction of Grace Okoro-Anyaeche. Conduct such as, for example, Mr Lennard publishing his abuse on social media and Grace Okoro-Anyaeche thereafter reading the same, or posting a letter to her with the same result, would be caught in these circumstances. However, verbal abuse by Mr Lennard direct at Grace Okoro-Anyaeche when she is not present will not. On the local authority’s single pleaded allegation, the court here is concerned here with words spoken about, but in the absence of, Grace Okoro-Anyaeche.
  2. I take the view I do on the proper interpretation of the word “towards” in these circumstances primarily by reason of the fact that a breach of this injunction carries with it penal consequences. On the one hand, I must, of course, be conscious of the protective function of injunction, and that that protective function argues for a broad, purposive application of its terms. The court grants an injunction to provide protection and relief in circumstances where it is satisfied that such protection and relief is merited. However, against this, the injunction carries with it very serious penal consequences and can, within the current context, result in the imprisonment of the person bound by the injunction for a period of up to two years. The long list of procedural requirements that I set out at the beginning of this judgment further illuminates the strict approach the court takes to the examination of breaches that can result in a term of incarceration.
  3. Within this context, and again accepting I am not engaged in an exercise of statutory construction, I bear in mind the words of Lord Justice Taylor in Atkin at p 204 that where the exercise is one looking at wording and deciding what the plain and natural meaning of the words is, in circumstances where the provision in question is a penal provision any doubt is to be resolved in favour of the person subject to that penal provision. Once again, it is the meaning of a provision with penal consequences with which the court is here concerned, namely the order of Parker J dated 6 July 2018 with its attached penal notice.
  4. Within this context and having regard to the terms of the order made by Parker J, it seems to me that given the type of conduct alleged in the single allegation of contempt, namely verbal abuse, in order to find a breach, the conduct in question needs to have occurred in the presence of, and to have been directed at the person protected by the injunction. I accept this is a narrow interpretation rather a broad, purposive interpretation of the word “towards” and that this construction may be said to reduce the protective efficacy of the injunction. However, I am also clear that the penal consequences of the injunction argue against extending the effect of the injunction to words that were not spoken in the presence of the person protected by that order.
  5. I am reinforced in this view by examining the nature of the behaviour that caused Parker J to make the injunction of 6 July 2018 in the first place, namely the alleged behaviour of Mr Lennard directed towards those named in the injunction. Whilst it may be the case that spoken words will be passed on, once again given the penal consequences of the order there would be obvious difficulties in committing a person to prison on the basis of words that they had spoken being passed on by a third party to the person protected by the injunction who was not themselves present.

 

 

The Judge did go on to say that he would hear submissions about whether the injunction and the wording in it should be varied

 

  1. Given the conduct that has been admitted by Mr Lennard in his statements before the court, I will hear submissions on whether the terms of the current injunction should be extended either in their ambit, their duration or both.
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An answer to an important question you didn’t know you had

 

 

 

The High Court in Re A Father v SBC 2014 have answered a very important question, albeit one that probably hadn’t fluttered across most people’s consciousness

If a child is at home under a Care Order, and the Local Authority want to use their powers to remove, can the parents obtain a s8 Human Rights Act injunction to stop them?

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/6.html

 

[All underlining, as ever, as mine for emphasis]
As the High Court points out, the remedy ordinarily for a parent if the LA want to remove a child once a Care Order has been made is either an application to Discharge the Care Order or a judicial review, neither of which are that easy to get off the ground. And an application to discharge the care order won’t stop the LA removing in the interim.

The parents in this case made their application to discharge the care order, but knowing that the Local Authority proposed to remove the child before the case would be heard also made an application for an injunction under s8 of the Human Rights Act that would have prevented the removal.

They referred to the decision of the Court of Appeal in Re H (Children) 2011, in which a Judge granted an interim care order but ruled that removal of the child under that order would be a breach of the child’s article 8 right to private and family life. The Court of Appeal upheld that and said further that if the Judge had gone on to make the section 8 HRA injunction prohibiting removal there would have been jurisdiction for her to do so. This was, a very short judgment and the s8 HRA issue is dealt with very briefly, and in of course the context in that case that the Judge had already decided that it would be a breach of the child’s human rights to remove the child.

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1009.html
The Court in this case at first instance refused to make the injunction and did not consider that it had jurisdiction to do so, given that the LA were exercising a lawful power.
In his judgment, DJ Goddard recorded that the local authority had confirmed that the situation was not an emergency, although the problems were escalating. The judge continued:

“Father applied to discharge the order of 7th November 2012 and he is entitled to make an application and be heard on it. I do not feel that it is improper of me to give my view on the likelihood of success of this application as it plays on my decision. In my view, it is extremely unlikely that he will succeed to discharge the order.”
The judge then recorded that he had suggested that an injunction was the appropriate remedy and referred to the case or Re H. He then continued

“I am being asked to glean the arguments from Re H and apply them to this situation, to import injunctive relief rights into this case to prevent D being removed tomorrow. I have tremendous sympathy for the parents. D has lived with them since birth, they both have difficulties, and they have received lots of support. They were both properly represented and both have consented to the order of 7th November 2012. They never appealed this order. What I am being asked to do by the father’s solicitor, who argued very strongly for the parents, is to, in effect, go behind that order.
In the absence of the local authority agreeing to give some breathing space and time, I cannot go behind that order. In some ways I wish I had the power to do so. I wish I could persuade the local authority to grant further breathing space as there is no emergency event which has precipitated the local authority wanting to take D tomorrow. They say that the progress they hoped for 15 months ago has just not happened. In the absence of me being able to persuade the local authority to agree to such a window, I cannot grant injunctive relief. There will still be a hearing to deal with the application to discharge. My present view is the father’s application will not be successful.

With a lot of reluctance, I have to dismiss the application for an injunction. I cannot see that I can do anything else. In practice, in accordance with the order of 7th November 2012, and in line with the care plan, D will be removed tomorrow.”

He therefore refused the application for an injunction and also refused an application for permission to appeal. He granted the application for a recovery order under s.50.

On appeal, the High Court, in the form of Baker J, took a different view on the Court’s jurisdiction to make a s8 injunction in these circumstances, and went back to remarks that the House of Lords had made in the notorious ‘starred care plan’ case

It follows therefore, as confirmed by Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan).[2002] UKHL 10 [2002] 1 FLR 815 paragraph 49, that

“if a local authority conducts itself in a manner which infringes the article 8 rights of a parent or child, the court may grant appropriate relief on the application of a victim of the unlawful act.”
It is true that Lord Nicholls added, at paragraph 62:

“one would not expect proceedings to be launched under s.7 of the HRA 1998 until any other appropriate remedial routes have first been explored.”

 

Baker J made it plain that jurisdiction to make a s8 HRA injunction existed and could have been used in this case (pointing out that the other remedial routes theoretically available weren’t appropriate)

 

 

 

In this case I have sympathy for the district judge. It was he, not any of the parties, who first suggested that injunctive relief might be the appropriate remedy. He was then referred to only one case – Re H, supra – which is a brief report of an appeal against a circuit judge’s decision that she did not have jurisdiction to grant an injunction under s.8 HRA to restrain the local authority from removing a child under an interim care order. Before the Court of Appeal, the local authority conceded that the judge had misdirected herself. As a result of that concession, the court did not consider the jurisdiction in any detail. I do not think that the district judge in this case would have derived much assistance from that authority. He was then told that the parties had agreed that there was jurisdiction in the case before him to grant an injunction. Immediately afterwards, however, counsel for the local authority asserted that no injunction should be granted because removing the child would not be unlawful as human rights had been considered at the time the care order was made and upon the making of that order the responsibility for the child was removed from court and placed with the local authority. With respect to counsel then instructed for the local authority, that is not an accurate summary of the law. In fairness, I should record that she too was at a disadvantage having had no notice of an application for an injunction prior to the hearing.

In the circumstances, it was perhaps not surprising that the district judge concluded that he did not have the power to stop the local authority removing D. But in reaching that conclusion, he was in my judgment plainly wrong. He did have the power to grant an injunction, as has been clear since the House of Lords decision in Re S: Re W, supra.

It is extremely unfortunate that he was led into this error because it seems clear that, had he realised that he had the power to grant an injunction, he would have done so. Up to that point, D had always lived with his parents. The local authority had conceded that the circumstances did not amount to an emergency, and the judge said that he wished that he had the power to order the local authority to “give some breathing space and time”.

Baker J also drew together some observations of other Courts on the onerous decision-making process for a Local Authority in this type of situation (see particularly his reference to Re G below)

At paragraph 45 of Re G, Munby J spelt out the local authority’s obligations in clear terms:

“In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.”

 

 

and also brought Re B-S et al to bear on the process – which is something that none of the previous authorities about LA exercising powers under a Care Order had been able to consider, as it hadn’t existed at the time.

 

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.
In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

 

A lot of very important stuff there (as you can probably tell, because I’ve underlined nearly all of it)

1. The same threshold that applies to removing a child under an Interim Care Order (that the child’s safety requires immediate separation) applies to removal from home under a Care Order (unless you go through the process below)
2. The LA have to conduct the full-blown Re B-S analysis of the pros and cons of each option
3. The child should stay at home whilst that exercise is carried out – unless his safety requires immediate removal
4. The parents must be fully involved in the assessment and analysis process and their views taken into account – it almost reaches the point, pace Re G, of the LA holding something akin to a Meeting Before Action (how the funding would be triggered to get the parents legal representatives able to attend is a bit tricky)
5. A Court can make a s8 HRA injunction to prevent the removal if the parents challenge the removal and want the status quo to remain pending litigation of a discharge of care order application.

6. We don’t get to this bit just yet, but it is vital – unless the removal is because the child’s safety requires immediate separation, if an injunction is what it will take to make the LA desist from their plan of removal, an injunction SHOULD be made

 

As was pointed out to Baker J, care orders with children at home had been a fairly rare and unusual circumstance, but with these two factors :-

(a) The 26 week deadline meaning that cases are finished at an earlier stage and with residual doubts; and
(b) The Court of Appeal’s decision in Neath Port Talbot

The number of such cases has gone up and is likely to continue to go up. As the number of children at home under Care Orders go up, the number of children whom the Local Authority seek to remove under a Care Order goes up too. So this issue affects more and more children as time passes.

With that in mind then, the High Court gave guidance on how Courts should address such care plans in future (this stuff is HUGE)
To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

 

(Read the last bit again – the presumption is that the injunction should be granted UNLESS the LA are able to show that circumstances that would justify an immediate removal are made out)

I think that there is an argument that current Care Orders at home ought to be read as though that 14 day notice period save for emergencies is implicit in the care plan, given this authority. In all future cases, it needs to be explicit, and this is an issue that all professionals need to be alive to.
Funding is an issue for parents (compounded in this case because the father had been represented through the Official Solicitor in care proceedings, and thus making a HRA application on his own was clearly something that was beyond him, and he had been fortunate in having lawyers who were prepared to assist him pro-bono whilst waiting for the O/S to pick the case up.

this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

This problem is compounded in this case because of the learning difficulties of the parties and in particular the father. I have made observations in other cases about the obligation on all professionals in the family justice system to address the particular difficulties experienced by parents suffering from learning difficulties – see Kent CC v A Mother and others [2011] EWHC 402 (Fam) and Wiltshire Council v N [2013] EWHC 3502 (Fam). A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child.

On the basis of evidence at present available, it seems plain that the father lacks capacity to conduct litigation and therefore needs to be represented by a litigation friend. Such are the demands on the Official Solicitor’s time and resources that there is inevitably a delay in his deciding whether or not to accept instructions, and the fact that the father is not entitled to public funding adds to the complications. In this case, I hope that the Official Solicitor will give urgent consideration to accepting the invitation to act as litigation friend. The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.

I have drawn these concerns to the attention of the President of the Family Division. It may be that he considers that they are of sufficient importance to bring to the attention of the Family Justice Board and others responsible for the family justice system.

 

(As we know, the exceptional circumstances in which funding might be given under LASPO involve cases where failure to provide funding would result in a person’s human rights being breached – the High Court here have set up a situation in which the child’s article 8 rights would be breached, and given illustrations of how vital it is that parents are represented to fight those – as we know from Airey v Ireland, it is not sufficient for the State simply to say that the State has given a person rights, if the person can’t actually access them or exercise them. This is setting up a judicial review for the future, I suspect)

 

A key question here is, where does this leave Neath Port Talbot? If the major feature of a Care Order over a Supervision Order is the power for the LA to remove the child (or that implicit threat) and the power/threat is neutered, what on earth is the value of having a Care Order at home (other than duration – a Care Order can last until the child is 18, whereas a Supervision Order is limited to one year at a time, up to a maximum of three years)

For any Local Authority, they might as well have a Supervision Order and issue fresh care proceedings if they want to remove, as opposed to having a neutered Care Order.

 

An important case – I expect it to feature in the next view from the President.