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The Re W rehearing (placement with grandparents versus adoption order)

Posted on December 6, 2016 by suesspiciousminds

 

You might remember the Re W case – in which the Court of Appeal surprised most family lawyers by saying that in care/adoption there was no presumption in favour of the birth family – maybe you remember the situation in which some of the brightest minds in the country talked vividly about see-saws for what seemed like an eternity.  You might also remember it as the case where one of the plans for moving the child from prospective adopters to grandparents was to engineer a chance meeting in a park and just have the grandparents leave the park with the child and the adopter leave without the child ?  Oh yeah, that one.

 

https://suesspiciousminds.com/2016/07/29/re-w-no-presumption-for-a-child-to-be-brought-up-by-a-member-of-the-natural-family/

 

This time round it is  Re Adoption : Contact 2016    (which is a pithy title, but it is rather like Orson Welles calling his film “Citizen Kane – it’s a sledge”  or  M Night Shyamalan calling his  “The Sixth Sense – Bruce is a ghost”.    I mean, it’s really obviously not called Re A : Return to grandparents 2016, so the judgment lacks that vital component of suspense)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3118.html

 

 

 

The fulcrum is positioned dead centre   – no party starts with any advantage before the evidence is heard  (either the family on “nothing else will do”  OR the prospective adopters on “status quo”)      [At least, that’s the position in law TODAY….  over the last three years adoption law has developed a habit of tilting this way and that like well a see-saw]

 

 

18.There is no presumption in this case one way or the other; the fulcrum is positioned dead centre. I apply a straight welfare test. Significantly, I note that there is no right or presumption in favour of a placement of A within her natural family; at [71] of [2016] EWCA Civ 793 McFarlane LJ said:

 

 

 

 

“The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.”

 

He added at [73] that the phrase “nothing else will do” (from Re B [2013] UKSC 33):

 

 

“… does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs”.

19.Equally, there is no presumption in favour of a ‘status quo’, notwithstanding the powerful words of Ormrod LJ in D v M (Minor: Custody Appeal) [1982] 3 All ER 897, recently cited in Re M’P-P [2015] EWCA Civ 584 at [67]. That said, important in the welfare evaluation is the fact that A has been in her prospective adoptive home for approximately 4/5ths of her life. As the Court of Appeal said at [65] ([2016] EWCA Civ 793), the welfare balance to be struck must inevitably reflect these particular circumstances, which of course are different from the circumstances when the placement order was made. The balance at the placement stage naturally would have tilted towards a family placement if relatives had been assessed, as these grandparents would probably have been, as being able to provide good, long term care for a child within their family.

 

 

 

 

You may recall that this was the case where the Court of Appeal expressed hope that the case might not be an ‘all or nothing’ and that the child might have a relationship with both sets of important people, so contact was an important aspect  (again you’ve guessed that from the  “Rocky – he wins in the end” title   *     – actually Rocky doesn’t win at the end of the first movie, common misconception.  Even now, many of you are saying  “Of course he does, he wins the title”  – nope, he wins in Rocky 2. All he really wanted to do was go the distance with Apollo Creed – the Master of Disaster, which nobody else had ever done. And he did that. But lost on points. Nobody remembers that)

 

Okay, so THIS guy also remembers the result of the fight.

Okay, so THIS guy also remembers the result of the fight.

 

From the first four Rocky movies  (I cannot accept the later ones as part of canon), the fights we actually see Rocky have, his record is Loss, Win, Draw (with Hulk Hogan), Loss (Clubber Lang), Win (Clubber Lang), Win (Ivan Drago).  It’s not that great.  His win rate is 1:1.  He won 1 fight for every fight that he didn’t win.  To put that in context, Herbie Hide won ELEVEN times as many fights as he lost.  Yes, I am claiming here that Herbie Hide would have had a chance against Rocky.  Even Audley Harrison had a win rate of 5:1.

 

I’ve digressed.  Back to law.

46.Direct and indirect contact: When they first made their application, Mr. and Mrs X had agreed to indirect contact taking place between A and the birth parents once per year, albeit not to include photographs, gifts or celebration cards. This stance was, at least in part, attributed to the standard preparatory pre-adoption training which they had received, where this is described (according to Mrs. Gaskin) as the ‘norm’. Over the course of this protracted litigation, and particularly recently, their position has changed in significant respects. They told the adoption social worker:

 

 

 

 

“When we first thought about the adoption process, we did not envisage direct contact with any birth family. However, with circumstances as they are, we see the advantages of contact with siblings. We think the challenges are the emotional aspect but in time [this] will get easier”.

 

And more recently still in their written evidence:

 

 

“We are also very aware of the importance of [A] having some knowledge of her birth family and importantly some relationship with her siblings. Whilst we have acknowledged to the experts our commitment to some level of direct contact if that is felt in the best interests of [A], we do not wish such contact to be disruptive to her continued placement with us, or confusing to her in her development and security. The purpose of the direct contact needs to be carefully considered and the contact tailored to that end”.

 

Mr. X augmented this in his oral evidence, speaking for himself and his wife:

 

 

“We would like A to have contact with the [birth] family if possible… We do genuinely understand the pain… If the chance of contact is available, then this needs to be explored for us and for A so that she can have the right to know her birth family and have a good life.… It’s not about the adults, it is about the children. We have to put her needs first. Happy to do the contact; it would be great for A and her brothers; hopefully we can have a bond (with the paternal grandparents); we can ask them for advice and go to birthday parties…”.

47.I was quite particular in my attempts to establish whether Mr. and Mrs. X felt pressurised by their rather vulnerable situation to agree an arrangement with which they did not feel entirely comfortable; having listened to Mr. X in his oral evidence, and having read and heard the evidence of those with whom they have spoken frankly about this issue away from the court room, I was satisfied that he and his wife genuinely had come to appreciate the benefit to A in there being direct contact between A and her birth family. Mrs. Gaskin spoke of them as people with integrity (see below); from all that I could see and read of them, I concur.

 

 

The ISW, Ms Gaskin said this on the issue of contact :-

 

 

“Mr. and Mrs. X have suggested that initially they feel they could cope with four times per year, rising to six times in the light of positive progress. Of course in time, Mr. and Mrs. X would be the final arbiters of the frequency and duration of contact, and they would make this decision on the basis of [A]’s needs. I am of the view that they are people of integrity and truly want what is best for [A]. They are very clear that they believe that [A] should have a relationship with her birth family and this is something that they have always considered to be the case… They believe that it is important for [A]’s emotional well-being in the long term that she has a relationship with her brothers and paternal family.”

 

61.The obligation on me to consider “whether there should be arrangements for allowing any person contact with the child” (section 46(6) of ACA 2002) is accentuated in this case by the real prospect (accepted by the prospective adopters, as in A’s interests) of direct contact between A and her birth family post-adoption. This indeed adds a new and important dimension to this difficult case. The proposal to introduce a relationship between an adopted child and her birth family after adoption by way of direct contact is in my own experience unique. I was not at all surprised to hear from the adoption team manager that it was unprecedented in this authority’s experience, and in the experience of Barnardo’s (with their wealth of adoption knowledge) whom they consulted on the issue. This proposal reflects the resourcefulness of all those involved – coupled with the creativity of the professionals, and the selflessness of the proposed adopters – to divine an outcome for A which best meets her needs. As I have indicated above, if contact were to happen in the way proposed, it would be likely to play a highly material part in neutralising A’s possible sense of rejection by her birth family, while remaining in the Xs care, at the stage of her development when she is considering more maturely the difficult issues around her identity.

 

 

That is a very unusual amount of contact for prospective adopters to be proposing, and it was clear that everyone had taken on board the hope of the Court of Appeal, which is good to see.  (

 

 

 

 

Discussion and Conclusion

52.No one can doubt the colossal pressure which this litigation has heaped on the prospective adopters and the paternal grandparents over a sustained period of time, and through two rounds of litigation; while commendably uncomplaining about the legal process, it is reasonable to conclude that they have found the repeated forensic scrutiny of their lives unacceptably intrusive, and the uncertainty as to the outcome unbearable. Doubtless each of them has had to develop strategies of self-preservation to protect themselves from the outcome that A is not ultimately to be in their care. All the adults will have found it hard to be assessed and reassessed, but I sensed that each recognised why this needed to happen; to their great credit, and I believe A’s ultimate benefit, they have all engaged fully.

 

 

53.I have listened with great care to the evidence. I was impressed by the ability of Mr. X and the paternal grandmother to reflect generously and sincerely their concern for the other in these difficult circumstances; they all strike me as people of integrity with a deep respect for family. I have been struck by the thoughtfulness of those professionals who have endeavoured to chart these very uncertain waters. I was greatly assisted by the high quality of professional expertise in this case, in a way which, it is clear, Bodey J was not. Mrs. Gaskin described how she had “agonised” over the assessment – “this has been one of the most difficult cases I have had to deal with”. Dr. Young offered appropriate and helpful expert advice; the Children’s Guardian’s report was one of the best of its kind I have seen. She for her part observed that “this has been one of the most testing and difficult cases that I have been asked to report on in my 29 years of practice as a Social Worker…”.

 

 

54.A is, and has been, at the centre of my decision-making. I do not propose to repeat my description of her set out above; it is sufficient for me to record at this point that she has in my judgment had her global needs met in a safe and secure way for the whole of her life thus far; her security and her attachments have enabled her to explore, socialise, and master developmental stages confidently and appropriately. A has attached to Mr. and Mrs. X whom, according to Dr. Young, she identifies as her secure attachment figures.

 

 

55.I am satisfied that both sets of applicants have something genuine and valuable to offer A now and throughout her life. I am of course influenced in reaching my conclusion by the fact that A is securely attached to Mr. and Mrs. X, whom she regards as her parents, and is embedded in their family whom she has come to know as her natural relations. She will have little knowledge or recollection of any life which is different; the continuity and high level of care which she has received has nurtured a strong sense of security with these primary attachment figures. I am influenced too by the knowledge that the paternal grandparents, rightly described by the Guardian as “child-centred people”, are currently raising their grandson with evident love and skill; that they would – I accept – have been more than likely to have been favourably assessed to care for A had they been considered over two years ago, and had that been so, then A would be living with them now. Their belief that A would be best placed in their care is both sincere and passionately held. If A is placed with the grandparents, she would have the considerable additional benefit of being raised in a household with one of her siblings, and in close proximity to the other.

 

 

56.I am equally satisfied that risks are attached to each outcome for A. In evaluating the respective cases, it has been necessary to make some informed predictions about the future, conscious of my obligations to consider the issues by reference to A’s whole future life. In the home of the Xs, there is a clear and identifiable risk that A will feel, perhaps strongly, a sense of rejection when she comes in due course to realise that her brothers are cared for within the birth family, and she is not. This may have significant implications for her sense of identity and self-esteem. This risk, if it materialises, will not arise for a number of years. If it does, it is likely to be moderated by a number of factors, including:

 

 

 

  1. i) That A and the Xs have developed a secure attachment over the last 24 months, which it is reasonable to expect will continue to grow and consolidate; this will operate as an inherent protective defence against disruption of placement;

 

  1. ii) The ability and willingness of the Xs to be open with A about her adoptive status as she is growing up; Dr Young believed that the “key” is in how Mr. and Mrs. X support A to make sense of her status, and advocated adoption ‘talk’ with her from an early age;

 

and

 

iii) The introduction and maintenance of a direct relationship between A and her birth family, namely siblings and other relatives, through contact.

 

57.The risks of medium-term or long-term damage to A by her making her primary home with the paternal grandparents flow directly from the consequences of a move. No question is raised about short-term harm; it is assessed as being inevitable. The professionals spoke of the serious possibility of medium-term and long-term emotional and psychological damage to A by the traumatic severing of the secure attachments which she has formed with the Xs, with the consequent risk of disruption to her placement if these risks materialise and are not adequately addressed. Dr. Young opined that “a significant move such as this at this stage of her development will have a significant detrimental impact on her, of which the long term consequences would be uncertain, and thus any decision must proceed with this knowledge in mind” (emphasis by underlining added). While I am satisfied that there would be no shortage of love, and willingness on the part of the paternal grandparents to assuage the evident hurt for A in the event of a move, which may help A to some extent, the ability (or inability) of the adults around A to address the risk of deeper damage would be affected by a combination of the following factors:

 

 

 

  1. i) A real possibility that A simply does not forge attachments, let alone secure attachments, with new carers, having suffered the traumatic severance of secure attachments with the Xs; there is limited optimism that she will be able to deploy her “an internalised blueprint” (see [27] above);

 

  1. ii) Helplessness on the part of any of the adults around her to explain, in language which a 2½ year old will understand, why this change has been foisted upon her;

 

iii) The lack of experience on the part of the paternal grandparents to deal with the sophisticated and complex challenges facing A in these circumstances, and the evidence, which I accept, that they somewhat underestimate those challenges;

 

and

 

  1. iv) A possible adverse reaction by J to the arrival into the family home of A, and by A who would no longer be an only child in placement, and the risk that the grandparents may be overwhelmed by having to cope with challenging behaviour from A and/or J, or that A will become withdrawn and this will not be detected.

 

The risks of long-term damage are likely to be exacerbated (though in what ways, and to what extent it is difficult to assess confidently) by the fact that none of the transition plans are deemed by the experts to be in A’s best interests. The least bad alternative, which the experts reluctantly favoured among them, would involve summary (and so far as A is concerned unplanned) removal from the Xs care. It is hard to imagine, as Mr. Richardson emphasised, how an infant will react to having lost all her emotional and practical reference points overnight.

58.I should say at this stage, that I was extremely impressed with the way in which the Xs have already displayed many of the qualities which the professionals would advocate in order to mitigate the risk of harm if A were to remain with them; they have prepared a thoughtful, child-friendly, life-story book for A which I have seen, which identifies honestly and in age-appropriate terms who are the key people in her life – birth parents, foster parents and prospective adopters all featuring with explanations of their roles and importance to A. They have maintained contact with the foster carers who looked after A for her first seven months, allowing A to develop a real appreciation of her life-journey; I felt that this ability to embrace wider aspects of A’s life would be likely to carry through into an ability to involve the birth family in A’s life. They have developed in their own adoption ‘journey’ to a position of accepting direct contact between A and her birth family. The risk that A may develop a sense of rejection may be further mitigated by it being explained to her as she grows older – when the language would then be available to explain what has happened to her in a way which an adolescent will understand – that the difference between her situation and her brothers is not about her, but about the context and circumstances in which they each respectively began their lives.

 

 

 

 

 

64.In reviewing the competing options for A I have of course considered the proportionality of the outcomes proposed, particularly where one outcome, namely adoption, involves the creation of a new legal identity for A, and the court’s affirmation of a permanent, enduring relationship between her and a couple with whom she has no blood ties. Drawing all of these powerful factors together, I have reached the clear conclusion that it is in A’s best interests that she should live with Mr. and Mrs. X, where she has established solid, loving, and secure emotional foundations; from that ‘secure base’ she will be able in a wider and more general sense (as she did in a more limited and specific sense when Dr. Young visited her home earlier this year) to explore the world, and importantly with confidence explore and embrace new relationships, including those with her birth family. This outcome is the one which, looked at in the round, is most likely to contain and mitigate the risk of harm which is feared (section 1(4)(e)), and permit A to preserve and enjoy all of the important relationships in her life, including those with the people who she has come to know as her parents, and her birth grandparents and siblings. This outcome most faithfully promotes “the likelihood of” the continuation of important relationships for A and the “value to [A] of [them] doing so” (section 1(4)(f)(i) ACA 2002).

 

 

The Judge decided that there should be contact at least twice per year but that given that the prospective adopters were in agreement, there should not be an order.

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Risk-taking and the Court of Protection

Posted on January 18, 2016 by suesspiciousminds

 

I’m always interested in Court of Protection cases that drill down into the key principles of autonomy v safeguarding – the dilemma between whether someone should be free to make decisions that an onlooker would consider to be bad or dangerous, or whether the freedom to make such mistakes is how we learn and grow. Of course, in law, the principle consideration is whether the person has capacity to make the decision – which does not necessarily mean that they understand every nuance of it and have weighed it up like Mr Spock – in daily life, we all make decisions without necessarily giving each and every one much thought.

This case also has important things to tell us about just how rotten a society we live in where someone with autism can be exploited on television for a cheap laugh because they don’t have a great singing voice, and even worse that there are sick men in our society who see someone fragile on television or social media and try to exploit them sexually.

Re Z and Others 2016

http://www.bailii.org/ew/cases/EWCOP/2016/4.html

 

Z is a 20 year old woman who is autistic. There was a time when she was very focussed on becoming a celebrity and wanted to become a singer. As a result, she appeared on the auditions for a television talent show (the show is not named, but readers are not ignorant and can probably narrow it down to one of two or three).

 

 

  • Z attended mainstream school, and told me (I am not sure how reliably) that she had obtained a number of GCSEs. She reported that she had many friends at school, although contemporaneous records in fact show her to have been rather isolated and a loner. After school she went on to train in the field of beauty therapy at a local education college, but her passion has always been, and is, music; Z keenly wishes to be a singer. In 2012, Z appeared in a televised talent show; it was not a success. Sadly she now regards the experience as humiliating and she is embarrassed by her performance. She dropped out of college and became depressed. A referral was made to CAMHS. She started to display risky behaviours; her performance was available to view on the internet, and she was deluged with contacts through web-based social media, mainly from men. She met with some of those who contacted her, some of whom allegedly abused or exploited her. She became sexually disinhibited, and some of her sexual experiences were believed to be non-consensual. Over a period of time, Z received support from SECOS (Sexually Exploited Children’s Outreach Services); although she appeared to show some insight into the risks of her behaviours, it became apparent that she did not always apply this insight or learning into practice, and continued to place herself at risk. The last evidence of this kind of risky behaviour with men now goes back to 2013 or (at the latest) 2014.
  • In 2013, Z was assessed by a clinical psychologist who concluded that she did not have a diagnosis of learning disability, and she retained capacity to make decisions about social contacts.
  • Like many young people, Z occupies her time on different forms of social media. Unlike many, at one time she removed all the privacy settings on her account, and was alleged to post up provocative material about herself. It was said (though she denied it, and I make no finding about it) that she had at one time sent naked photos of herself over the internet for money. For a time, though in my judgment to a much lesser degree now, she craved publicity for her singing, and was focused on becoming a celebrity.

 

 

  • In the January 2015 interview, it appears that Z demonstrated a good degree of insight into the debacle of her talent show audition, indicating that she would decline further opportunities for a repeat for the time being (“not at the moment, I don’t think I’m ready”). She showed a realistic, if not cynical, view of why men had shown such interest in her following her television appearance (“it’s obvious, men wanted sex with me…”). She denied inappropriate use of social media (“I have kept away from social media … I don’t want to go back to square one”), showing an understanding that people contacting her through social media “might be a risk to me”.
  • Dr. Rippon considered that Z showed interest in fame and celebrity status to an “unusual” degree. Dr. Rippon considered that Z had misinterpreted the talent show judges’ comments, and had formed a misguided appreciation of her impressive progression through the audition stages (as a possible object of ridicule rather than through talent). Dr. Rippon was concerned about Z’s “difficulty in processing information particularly that of an abstract nature”, and was of the view that

 

“… during the course of the proceedings, [Z] would struggle to be able to understand the evidence, either in written or verbal form, that is given in Court, process this information and use it to instruct her counsel appropriately. I also do not believe that [Z] would be unable (sic.) to think through the consequences of the instructions which she is providing to her solicitor or understand the risks to herself of any instructions given”.

 

and again later, the Judge describing Z’s presentation in Court and in her evidenc

 

She showed insight into her dismal talent show audition (“it was overwhelming … my nerves seemed to overtake my vocals… it was vocally bad”). She discussed the way in which she had been exploited by men who had contacted her, saying that there was a “bad light” around her at that time

 

The issue for the Court in this case was whether there should be a declaration as to Z’s capacity to

 

i) Choose her residence;

ii) Make contacts with others;

iii) Deal with her care;

iv) Litigate in these proceedings.

 

It was clear that Z had capacity to consent to sexual intercourse – she understood the mechanics of the activity, understood that pregnancy could result and how to mitigate against that and understood the risks of sexually transmitted diseases and how to protect herself.

We have dealt with this issue before as to whether a person who has capacity to consent to sex has the capacity to put him or herself in the position with a potential partner who might pose a risk to them of taking that risk.  Most dramatically in this piece

 

https://suesspiciousminds.com/2014/04/30/lets-find-you-a-nice-young-man/

 

where the Court of Protection were trying to put in place a regime for a man who wanted to have homosexual sex and had capacity to consent to it, but no real understanding of how to weigh up a partner as to whether they would meet his needs or treat him violently and badly.  Re A Local Authority v TZ no 2 2014

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

(and I personally think that the CoP got themselves in a tremendous pickle in that case, with good intentions, but ending up with a regime that was utterly unworkable for a real person)

 

 

In this case, the Judge had to weigh up whether Z had capacity in relation to those issues, the dominant one being in making decisions about friendships and relationships

 

  • The Local Authority was perfectly justified in initiating proceedings in June 2014, at what was a very low point in Z’s life when her self-destructive behaviour was posing a significant threat to her well-being, and her capacity to process key decisions was significantly in question. I am inclined to the view (this is not, for obvious reasons, a finding) that she probably did lack capacity to make decisions on the matters under review at that time. However, having reviewed the contemporaneous material with care, and on the evidence available to the court at this hearing, I have reached the conclusion, on a fine balance, that the local authority has not rebutted the presumption of Z’s capacity in relation to the matters under review in this case, at the present time.
  • There is no dispute in this case that Z does suffer from an “impairment of … the mind” within the meaning of the MCA 2005, namely her autistic spectrum disorder, with a secondary component being her learning difficulty. The issue as to her capacity focuses in this case on the functional element of the test. At the heart of the dispute is the assessment of Z’s ability to ‘use or weigh’ information (section 3(1)(c)) about risk to herself, and her ability to keep herself safe in independent living, and in her social contacts. Only if I were to find that Z is “unable” (section 3) (and I emphasise ‘inability’ rather than ‘impairment’ – see again [15] above) to process information relevant to risk (in the ways defined in section 3(1)) could I find her incapacitous in relation to the matters in dispute. As the wording of the statute makes clear, the point in time at which I must capacity is to be tested is now (i.e. “at the material time”).
  • In order to determine Z’s capacity, it is not necessary for her to use or weigh every detail of the respective options available, merely the salient factors (see CC v KK and STCC: [12] above). In this case, it is apparent to me that Z does indeed understand the essential implications of living at home or living independently; as indicated above, Z acknowledged the benefit of having some “guidance” on living independently. She recognised that she would reasonably expect to be allocated a flat, and was able to distinguish between the ‘good’ areas and ‘bad’ areas of town in which to live. I am (perhaps unlike Dr. Rippon) sufficiently persuaded that Z recognises at a material level the benefit of third party support in the event that she is to live on her own. She showed insight into the possible loneliness of living independently; she felt that one of the downsides of leaving home is that she will lose the benefit of having her mother’s “shoulder to cry on” when things are getting her down. She has an outline knowledge of her financial circumstances, and currently appears able to perform basic budgeting. She seems aware that her life is easy now, as all the bills are paid, and she is cared for; I felt that she recognised that she would be giving these comforts up if she were to move. Overall, I am satisfied that Z is able to ‘use or weigh’ the evidence relevant to the matters set out by Theis J in LBX v K and L (see above) at [14].
  • In relation to social contacts, Z needs to be able to weigh up the risks of associating with strangers, particularly those whom she meets through the internet – something which she says that she has indeed learned to deal with through experience. Dr. Rippon acknowledged that, other than with A, there was no evidence of Z making contacts through social media which were of any concern. The fact that she has rejected any ongoing support or care from Dimensions is not evidence in itself that she lacks the capacity to decide on its usefulness. She has articulated her reasons: she does not feel that she currently needs the package, and she feels that the workers are constantly talking about the past not the future, and they ‘talk down’ to her.
  • Dr. Rippon expressed the view in November 2014 (see [29] above), that with time and increased maturity, Z’s ability accurately to assess risk may improve; it is my view that the evidence now available (December 2015) indicates that time and increased maturity, and the benefit of learning from experience, have indeed had that effect. There is no real issue but that 2015 has been a period of relative stability for Z; she has engaged (to a limited extent at least) with the support which is provided for her through Dimensions, and even within the limits of that work, she has impressed the workers with her display of increased maturity. In 2014, Dr. Rippon advised that it would be sensible to re-assess Z’s capacity in “two to three years time”, plainly contemplating a potential future change in capacity, but timescales of this kind are notoriously difficult to gauge, and in my view the evidence appears to have revealed change rather sooner.
  • While it may have been that Z showed an “unusual” degree of interest in fame and celebrity in the past (to some extent in 2014, when first interviewed by Dr. Rippon), and a limited appreciation of the quality of her talent-show performance, I do not find that she continues to hold or display these views. More recent discussions (including her evidence in court) reveal a good degree of awareness of the deficiencies of her performance, and a more realistic appraisal of her quest for fame. At the hearing before me, she impressed as someone who was more than just aware that “people should treat you with respect”, apparently mindful that people had not done so in the past. Dr. Rippon expressed scepticism in her 2014 report about Z’s ability to understand the evidence which was to be given in Court, process this information and use it to instruct her counsel appropriately; this scepticism was I believe misplaced. Z showed a good level of attention to the evidence, gave instructions to her solicitor and counsel, and – even on Dr. Rippon’s own view – answered questions in evidence better than she had during the three previous interviews.
  • Dr. Rippon entirely fairly observed that young adults are generally able to learn from negative experiences, and use this to support their future decision making. She felt that Z had failed to do this; I do not agree. Z’s behaviour in 2013 and 2014 was, I am prepared to accept for present purposes, intensely destructive; I accept Z’s own assessment that she has at least to some extent “learned how to make decisions”. I accept that she has changed, and I was impressed with her own assessment that “… everything has happened for a reason. It made me stronger and made me more mature” (see [30] above).
  • Dr. Rippon indicated that she would be looking for Z to develop and display insight, that she is not putting herself in risky situations and is understanding of other people’s motives; the trip to Brighton to stay with A was risky to some extent, but not more than usually risky for a young person who is in love, and who has met the object of her affections a number of times on home territory before heading off to see her at her home. Moreover, when the Brighton trip became intolerable, she left.

 

 

 

The Judge here recognised that capacity can fluctuate, and that there had been a time when Z had lacked capacity to keep herself safe but had learned from those experiences and now had the capacity to make decisions for herself about who she wanted to spend time with. Will she make the right decision every time? Probably no more than you or I have always made the right decision about friendships or relationships. Getting things wrong is part of life. If you never get these things wrong, you never have the life-enriching experience of getting them right and finding a true friend or a soul-mate or both.  It isn’t for the Court to worry about outcome or to wrap a person in forensic cotton wool – if they have the capacity to make a decision, then they are free to make it, even if you think they are likely to make some bad ones along the way.

 

 

  • As indicated at the outset of this judgment, some risk-taking in adolescents and young adults can be perfectly healthy, such as in sporting activities, or artistic and creative pursuits, travelling, making new friends (including internet dating and friendship groups), or entering competitions. Healthy risk-taking helps young people to learn. Some adolescent risk-taking can be unhealthy and dangerous – casual sexual relationships, unprotected sex, driving too fast on the roads, excessive consumption of alcohol, consumption of non-prescribed drugs, dealing with anger and confrontation. These forms of risk-taking are inherently unwise and unsafe. In dealing with risk issues in relation to a young person in the context of assessment under the MCA 2005, it is necessary to separate out as far as is possible the evidence which indicates that second category of risk taking (unhealthy, dangerous, unwise) from that which reveals or may reveal a lack of capacity. As Lewison LJ said in PC v City of York (above) “adult autonomy” includes the freedom “to make unwise decisions, provided that they have the capacity to decide” (see [64]).
  • Lewison LJ also referred in the same case (PC v City of York) to the need for a “solid evidential foundation” on which the judge’s decision as to capacity can rest. In this case, as I have earlier mentioned, Mr O’Brien invites me to ‘infer’ a continued existence of risk, and Z’s inability to ‘use or weigh’ information relevant to such risk. An inference can barely be described as an evidential foundation, let alone a ‘solid’ one.
  • I have not found this a particularly easy decision, in the main, because more than a year had passed between the filing of the principal evidence and the hearing. Moreover, I am conscious that I am differing in my conclusion from Dr. Rippon, who in many ways was an impressive and helpful witness and who, as I have indicated above (see [52]) also found the case “incredibly difficult”. In differing from Dr. Rippon, I remind myself that her role and mine are distinct: the expert advises and the court decides. While the opinion of an independently instructed expert in a case such as this is “likely to be of very considerable importance” (Baker J in PH v A Local Authority [2011] EWHC 1704 (COP)), as indeed I find her evidence to be, the decision as to capacity is a judgment for the court (see Re SB [2013] EWHC 1417 (COP)), weighing the expert evidence against my findings on the other evidence. I consider that Dr. Rippon may well have been right in her assessment as to Z’s capacity over a year ago (November 2014), but in my judgment, the passage of time and Z’s greater maturity, coupled with some support from Dimensions and enhanced self-esteem through her music, Z appears to have matured, learned from her mistakes, and developed sufficiently in her capacity to make relevant decisions, and keep herself safe. While the Brighton trip illustrates some unwise decision-making, in fact its greater significance lies in its revelation to me (in contrast to Dr. Rippon) that Z had developed sufficient ability to ‘use or weigh’ information which indicated risk, and insight into the consequences of her choices. In the way she described the visit when giving her unsworn evidence, it is apparent that she was alert throughout the trip to the potential hazards (i.e. the events which made her uncomfortable) and when the relationship with A appeared to be deteriorating badly, she took the appropriate step, entirely independently, of returning home.
  • I have conscientiously cautioned myself against considering outcome when determining Z’s functional ability; I repeat this point, as I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward. It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future; but this would be unprincipled and wrong. I am satisfied in any event that Z currently has a reasonably fulfilling life, which enjoys; she has a loving relationship with her mother who currently cares for her well and who, I hope, could be encouraged to do so for a while longer while Z grows further in maturity and confidence.
  • That is my judgment.

 

If you are wondering, this decision and Re TZ are not in conflict, because the Judge here was satisfied that Z had capacity to make the decisions, whereas in Re TZ the Court was satisfied that TZ did not have the capacity to assess risk for himself  (though had capacity to consent to sex) and thus tried to construct a workable framework in his best interests that would allow him to express his sexuality and desire whilst keeping him safe.  Whether you think that they did so successfully is a matter of opinion….

 

 

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forced sterilisation

Posted on February 5, 2015 by suesspiciousminds

I normally canter through a judgment, picking out the salient bits, but I think this one really needs to be read in full to appreciate it. It would not be fair for me to look at individual passages.

This is a follow-up to this piece

https://suesspiciousminds.com/2014/07/08/barbecue-tongs-and-police-being-given-power-to-force-entry-to-a-home/

 

In which Cobb J, sitting in the Court of Protection, gave a ruling that a caesarean section was in a woman’s best interests and even that the police could force entry. It was a very unusual case.

This follow up is the same Judge, in the same Court, considering whether the woman, who lacked capacity to make decisions for herself, should be sterilised without her consent. And again whether there could be powers to forcibly enter her home, remove her and take her to hospital.  The Court do decide that these things are in her best interests.

There’s no getting away from this, the fact that a Court even have these powers makes anyone feel uncomfortable.  Critics of the system have the right to say that this feels wholly and utterly wrong, no matter how carefully it is explored.  It does end up smacking of eugenics, and the nasty side of eugenics at that. Even thinking for a minute about how terrifying it must be for this woman when the police knock down her door and she is taken to hospital for surgery she doesn’t want and doesn’t understand makes your flesh crawl.

My personal take is that I think Cobb J gives a very careful and thoughtful judgment and tries to balance the competing factors.  Parliament have given the Court of Protection this authority to make such decisions, and if they have to be made, doing it in the way Cobb J has done is the best way to do it. I think he is also right to set out that this is a truly exceptional case, with truly exceptional facts – all efforts to engage and develop the woman’s understanding about the health risks to her of further pregnancies were unsuccessful, and the health risks are life-threatening.  But we have sadly seen that unique and exceptional cases do sometimes end up being used in ones that are slightly less so, and on and on until authorities bear little resemblance to the original case.

 

The Mental Health Trust and DD 2015  http://www.bailii.org/ew/cases/EWCOP/2015/4.html

 

Even if you end up disagreeing with Cobb J’s decision (and I think you’re perfectly entitled to – this is one of those really moral and ethical arguments) please do him the courtesy of reading the judgment first. It must be a thankless job having to make decisions like this.

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“If you ever go across the sea to Ireland”

Posted on April 3, 2013 by suesspiciousminds

 A discussion of two cases dealing with parents who fled to Ireland to avoid pending care proceedings. We are having a curious burst of the Higher Courts dealing with similar issues coincidentally in batches, and this is another example.

The longer judgment is in  Re LM (A Child) 2013, a High Court decision determined by Mr Justice Cobb

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/646.html

and the shorter is a Court of Appeal decision

 Re OC and OE (Children) 2012 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/162.html

 

In the Court of Appeal case, the Local Authority had concerns about the children, though probably not sufficient to warrant removal, and the mother fled to Ireland with them. The LA sought Interim Care Orders and a return to the jurisdiction. The Court of Appeal agreed that the English Courts had jurisdiction and that making orders compelling the return of the children to the jurisdiction was correct, but reminded themselves, that the status quo prior to the move to another country ought to be restored, and that the Judge had erred in making Interim Care Orders and sanctioning removal of the children in the absence of (a) the parents being there to oppose and (b) the LA demonstrating that the grounds for removal were made out.

 

I felt for the LA lawyer,  “their advocate frankly conceded to the judge that he was not operating in legal territory familiar to him”   and of course, LA lawyers don’t tend to be specialists in international law. If we were, we would wear much more expensive shoes, and work shorter hours.

 The Re LM case is probably more interesting.  Justice Cobb sets out the background here

 

  1. In June 2012, AM (hereafter “the mother”), then in an advanced stage of pregnancy, travelled with her husband, MM (hereafter “the father”) to the Republic of Ireland. In the following month, she gave birth to a baby girl (“LM”). LM is the mother’s fourth child. The mother’s older three children have been the subject of public law proceedings in this country, and are subject to public law final orders, all in kinship placements away from the mother.
  1. At this hearing, in London, the mother told me that she and her husband made that journey to Ireland “purposely to avoid my child [i.e. the baby] being stolen” by the local authority who had taken proceedings in relation to her older three children. It is common ground that this local authority would indeed have issued care proceedings in relation to the baby, had the mother remained in their area.
  1. The mother went on to tell me that “unfortunately” their plan has “backfired.”

 

The plan backfired, because the authorities in Ireland issued their equivalent of care proceedings, and the child was placed in foster care. Having fled there only to avoid care proceedings, the parents had no real interest in staying or living in Ireland – the mother came back to England [although to a different LA than the one she had been living in, and which was 200 miles away] , the father for work purposes moved to Scotland. That obviously had a huge impact on their contact.

 

It was therefore the mother’s application for the proceedings relating to the child to be brought into the English jurisdiction.

 

The High Court went on to identify the main aims of the judgment, and one of them is particularly noteworthy (I know that the ‘flee to avoid proceedings’ is a common school of thought on the internet, and Ireland has been a popular choice – proximity, no language barrier, and their constitutional opposition to adoption being key factors in this. In this case, it seems that it was discussion on the internet that led mother to make that decision to flee to Ireland )

 

  1. This judgment serves two principal purposes:

i) It discusses the legal and practical complications arising in seeking to achieve a transfer of jurisdiction in these circumstances;

ii) It seeks to provide solutions in the instant case, to achieve the move of LM to this jurisdiction in the near future, and the transfer of care proceedings to this Court, initially to the Family Division of the High Court.

  1. This judgment further serves to highlight how futile, and potentially damaging to the infant child, was the course which the parents embarked upon in June 2012. I am advised that there are other parents who have considered leaving this jurisdiction (and indeed been advised by campaigning groups to do so, as the mother indicated she had been) to avoid public authority intervention in their lives, and to achieve some juridical advantage through process in the Irish Courts. Quite apart from the fact that the parents themselves in this case apparently soon came to realise that this was not a good solution for LM or themselves, this judgment will underline how effectively the Courts of England and Wales and the Courts in Ireland, and the public authorities in each State, are able to co-operate to achieve the transfer of a child, and the public law proceedings concerning that child under the Council Regulation (EC) 2201/2003 of 27th November 2003 (hereafter ‘BIIR’), where it is demonstrated to be in the interests of the child to do so. The approach of the English Courts and the Irish Courts appears to be similar; the Irish Constitution exhibits no intention to establish Ireland as a sanctuary for families from other jurisdictions: see the Irish Supreme Court’s decision in Nottinghamshire County Council v B [2011] IESC 48 (at paragraph 72, per O’Donnell J.).

 

[The Irish case is worth reading, and I had not encountered it before. It sets out the very interesting analysis of the Irish constitutional situation with regard to adoption, particularly adoption of children of MARRIED couples http://www.bailii.org/ie/cases/IESC/2011/S48.html    which would probably be an entire article on its own. There certainly has been a school of thought, which this judgment corrects, that the Irish Courts and authorities could not and would not sanction a return of a child to a jurisdiction where adoption was a possible consequence of that return. It is rather more complex than that, and at the very least, the Irish courts would need to be satisfied that the risk of adoption was a very real and proximate one, rather than a possibility ]

The procedure is another Article 15 of Brussels II one [you may remember my recent blog on the Slovak case where the Slovak authorities used it to take over proceedings that were very advanced in the English Courts]

 

https://suesspiciousminds.com/2013/03/22/ambassador-with-these-brussels-2-applications-you-are-really-spoiling-us/ 

For that reason, I won’t set out all of the principles again. (Phew)

 

  1. At this hearing, on the matters relevant to and consequent upon the Article 15 transfer request, the position of the parties is as follows:

i) The mother: The mother initially proposed, and continues to support, a transfer of the proceedings to this jurisdiction, stating that it is clearly in LM’s interests that such a transfer should be effected. Towards the conclusion of her submissions, she appeared to suggest that her agreement to the Article 15 transfer was in fact conditional upon the receiving authority being identified as Y County Council rather than X County Council. I note the mother’s position in this regard and discuss it further below. That her acceptance of transfer is said to be conditional on the identification of a specific local authority as applicant in this country is of no real consequence, given that effective transfer relies on ‘acceptance’ by one party only to the Irish proceedings; in the instant case, the HSE has indicated its unconditional acceptance.

ii) The father: By letter dated 6th March 2013 from the father’s Irish solicitors, I was advised that he “continues to support his wife’s Article 15 request and consents to the transfer of the public law proceedings in their entirety to the jurisdiction of England and Wales. Our client is content that his position be confirmed by Counsel on behalf of the HSE to the English court on 12th March 2013.” In fact the father attended, from Scotland, for the second day of this hearing and confirmed that he supported the transfer but (corresponding to the position of his wife) wished me to identify the proposed applicant authority as Y County Council;

iii) The HSE: The HSE unconditionally ‘accepts’ the transfer and supports the court taking effective steps to achieve transfer of the proceedings to this jurisdiction; it invites me to be satisfied that it is in the best interests of LM that the proceedings are so transferred; the HSE is neutral on the identification of the appropriate ‘receiving’ authority;

iv) The Guardian ad Litem in the Irish proceedings: The Guardian, by letter dated 11th March 2013, confirms that it is her opinion:

“that the application being made is in the interests of [LM] and should be proceeded with as a matter of urgency ….”

The Guardian expresses her concern that “a transition plan” should be devised to achieve the physical transfer of the infant LM to this jurisdiction ideally to “a long term placement …. should the decision outcome of care proceedings in England and Wales be that [LM] remain in long term State care”. She supports a transition plan “strictly on the basis that” LM is placed in the care of a specific local authority (she had proposed X County Council) and recommends that a Guardian ad Litem be appointed for LM.

And then

 

  1. The request for transfer under Article 15 was further predicated upon a conclusion that it is in LM’s “best interests” for the transfer to be made to this court. It is suggested on behalf of HSE that the best interests test is amply satisfied by a combination of the following factors, in summary:

i) LM is British; her parents, siblings and kinship carers are British.

ii) LM has no family in Ireland. Her only connection with Ireland is that she is physically present there because of a tactical international move made by the mother to avoid the jurisdiction of the English courts.

iii) The mother is now in this jurisdiction and has indicated a wish to remain here. Were LM to be returned to this jurisdiction, this would render easier the facilitation of contact between her and her mother. Assessments of family relationships will be more effective if mother and daughter can be seen regularly together;

and

iv) The background history of LM’s older half siblings originates entirely in the area of X County Council; this evidence is likely to be important in any determination of LM’s future care

 

 

[You will note that HSE, who are the Health Service Executive of Ireland, were agreeing to the transfer of jurisdiction, thus showing comprehensively that the theory that Irish authorities are constitutionally bound to stand guard over parents who might run the risk of their children being adopted and ensure they are not removed, doesn’t work in practice, much as the “freeman of the land” devices don’t actually work in practice]

The case then got into a consideration of which of the two local authorities in England (the one mum had fled from, or the one in which she was now living) would be responsible for the new proceedings.

 I won’t repeat any of that argument, as the authorities are all well known, but I did like Justice Cobb’s asides here

 

The hopes of Thorpe LJ in the Northamptonshire case that the statutory sub-sections could provide “a simple test” to be “operated by the court in what should be the unlikely event of dispute, to determine which Local Authority is to be responsible for the care plan and its implementation” (p.891A) have not entirely been fulfilled, as the subsequent case-law demonstrates. What he hoped would be a “rapid and not over sophisticated review of the history to make a purely factual determination” (p.890G ibid.) in any given case has equally proved forlorn.

 

 

On the facts of the case, the Court found that the designated authority was the one that mother had originally fled from and that she had not become ordinarily or habitually resident in the new one (she was effectively sofa-surfing)

 

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