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Tag Archives: keehan j

Suspended sentence for woman who saw her son “too often”

 

I read this story on ITV news way back in December 2015, and it took 20 seconds of googling to suggest that there might be more to it than the headline suggested.

http://www.itv.com/news/2015-12-15/suspended-sentence-for-woman-who-saw-her-son-too-often/

 

Because the woman in question had a previous history in the family Courts, that history being that she turned up with a report from a psychologist that she had in fact forged, by writing it herself and the named psychologist knew nothing about it. And that she went to prison for perverting the course of justice. That’s pretty unusual, even in the circles of contentious private law proceedings.

 

This matter has a very long and very sad history with continual court proceedings stretching over almost the entirety of X’s life. The mother was made the subject of a previous s.91(14) order at the conclusion of proceedings before Mrs. Justice Macur, as she then was. After that order had been made, the mother sought permission from Mrs. Justice Macur to make an application in respect of X. In support of that application, she filed what purported to be a report from a psychologist. When it was checked, it was discovered that that document was a forgery and the psychologist named denied any knowledge of ever writing any such report. Criminal proceedings were instituted against the mother for perverting the course of justice, during the course of which she was convicted and sentenced to a term of imprisonment of nine months. That was in or about October 2012. The mother was still serving that sentence when the matter came before me in May 2013.

 

That of course doesn’t mean that she wasn’t the victim of injustice THIS time around, but it does mean that you might be somewhat cautious about taking her word for it.

Anyway, the committal judgment is now finally up.

Y v Najmudin 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3924.html

 

The contact order provided for supervised contact, seven times a year.

Having heard evidence over a number of days both from the parties, from the children’s guardian and expert evidence, I concluded that it was in the welfare best interests of X that his contact with his mother was very restricted, that it should take place, as I have set out, seven times per year in a contact centre, and it had to be professionally supervised. That was because I was satisfied that the mother had lied to me throughout the course of the hearing in 2013 and that she had and would, if permitted to have unsupervised contact, cause emotional and psychological damage to her son.  

 

The mother breached that order by making her own arrangements to see her son, clandestinely and without the knowledge of the father. She was not taking up her sessions at the contact centre, because she was making her own arrangements.

Evidence

  1. The mother in her evidence asserts matters have changed. X is more mature and he is older and he is old enough to make decisions for himself. That may be the case, but the fact that this mother chose to tell this child about this hearing and talked in detail about the evidence, in my judgment amply demonstrates that the circumstances that I found in my judgment in 2013 have changed not one jot.
  2. She may no doubt love her son, but it appears, in my judgment, that she remains incapable of assessing and putting his welfare best interest first. In addition, she did not at any time, despite regular email communication with the father, either (a) tell him that she was meeting X; or (b) ask his permission to see X. At no time, the mother concedes, did the father in fact agree to change the contact arrangements as set out in the order of 3 May. In her evidence, the mother tells me that she could not remember the terms of the order made in May 2013; that she did not know that by seeing X as she did in the street that she was acting in breach of my order. I, without any hesitation, entirely reject that account from the mother. I am satisfied so that I am sure that she knew full well what I had ordered and what were the restrictions on her contact, but she has chosen, in my judgment, deliberately once more to flout the court’s order and to ignore it.
  3. She takes the view that X is old enough to make his decisions and if he asks to see her, then whatever there may be in a court order is completely irrelevant. Well, she is wrong. She, by taking the actions that she has, has put X in an immensely difficult position. The father tells me, and I accept that X has said to him that he loves his mother and he would like to see his mother, but he would like to see her in the supervised contact centre. The mother tells me that when she sees X he is pleased to see her. I have no doubt being a loving child that he would do that. But the father tells me that by the time he gets home, it is plain that X feels uncomfortable, worried and concerned about these chance meetings, knowing that they are not taking place as the court has ordered; knowing that they have not taken place as he would wish. The mother, in my judgment, has put X in an extremely difficult position. She has quite deliberately chosen not to tell Mr. Y about these meetings, nor to seek his permission. All of those facts demonstrate to me that the mother knew precisely what it was that she could and could not do by the court order, but she chose to breach it.
  4. Furthermore, I am reinforced in coming to that view in terms of the adverse effect on X because I accept the evidence from Mr. Y that X has taken now to taking different routes home from school in order that he may try and avoid seeing his mother in those haphazard meetings in public. I accept that evidence. I am also concerned to hear it because it demonstrates very eloquently the conflict that this young man feels about the circumstances that his mother has caused him to be in.
  5. On the totality of all the evidence that I have heard, I am satisfied so that I am sure that the mother has breached the order of 3 May 2013 and, in particular, para.6, on each of the occasions set out in the schedule of findings sought by Mr. Y. In respect of those matters, where the mother was either not sure whether she had seen X on a particular date, or said that it was in fact her partner, Mr. Z, for example, who went to the father’s home on Wednesday, 15 April, I unhesitatingly reject those explanations and I find as a fact that the mother has met with X as set out in that schedule.
  6. Accordingly, I am entirely satisfied that the mother is in breach of that order and she is in contempt of court and she now falls to be punished for that contempt. I will consider what punishment I should impose at 2 o’clock after I have heard anything Dr. Najmudin may want to say in mitigation of her breaches of the order as I have found.

 

Child in care wanting parents to have no information or involvement

 

This issue has to be one of the most Frequently asked questions that I get as a Local Authority lawyer  – “Little Frank is in care and he doesn’t want his mum to know X,  do I respect Frank’s wishes, or respect the duty in the Act that parents are to be consulted with about major issues?”

 

[Very often this comes up in relation to contraception, pregnancy etc, but also sometimes just that the young person wants no information about themselves to be communicated by the Local Authority to their parent]

 

In this case, PD v SD & Another 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/4103.html

 

Keehan J was faced with a child who had been born a girl, named HD, who had changed her name to PD and wished to change her identity to male.  He was 16 years old, and had been adopted at the age of 6. Things had become difficult and unworkable, and PD was in voluntary care under section 20 of the Children Act 1989.   PD was going on to have assessment and assistance from the Tavistock about his gender identity. He did not want his adoptive parents to be involved or given any information.

It became as stark as this :-

So strongly held are his views that Ms. Morgan QC told me he would even wish his parents not to be notified if he were required to receive emergency medical treatment. The depths of his wishes are conveyed by his view that if he suffered a serious accident and underwent emergency surgery he would not want to wake and find his parents at his bedside.

 

Meanwhile, his parents were still hopeful of a reconciliation and wanted to be involved in PD’s life in some capacity.

 

  1. THE LAW
  2. It is agreed by all parties that I have a jurisdiction to grant the declaratory relief sought by P.
  3. By virtue of s.8(3) of the Family Law Reform Act, P, now aged 16, can give valid consent to medical and surgical treatment.
  4. If P was not provided with accommodation by the local authority and was not a looked after child, the local authority would not be obliged to consult with or give information to P’s parents.
  5. Since he is a child looked after by the local authority, it is obliged by s.22 and s.26 of the Children Act 1989 to consult with and give information to the parents. Section 22 provides:

    “Before making any decision with respect to a child whom they are looking after or proposing to look after the local authority shall, so far as it is reasonably practicable, ascertain the wishes of-

    (a) the child;

    (b) his parents;

    (c) any person who is not a parent of his but who has had parental responsibility for him; and

    (d) any other person whose wishes and feelings the authority consider to be relevant regarding the matter to be decided.”

    There are further obligations in a similar vein imposed by the provisions of the Care Planning, Placement and Case Review (England) Regulations 2010.

  6. The Article 8 Convention rights of P and of his parents are engaged. I take particular account of the decision of the European Court of Human Rights in Yousef v Netherlands [2003] 1 FLR 210, that where there is a tension between the Article 8 rights of the child, on the one hand, and the parents, on the other, the rights of the child prevail.
  7. In the case of Re C (Care: Consultation with Parents not in Child’s Best Interests) [2006] 2 FLR 787, Coleridge J decided it was not in the best interests of the subject child for the local authority to consult with or give information to the father. In his judgment he expressed the view that it was only in very exceptional circumstances that such an order would be appropriate. The factual matrix of that case was very different from the circumstances of this case.
  8. In my view, rather than considering whether the facts of the case are very exceptional, although in my judgment the facts of this case are very exceptional; I should instead focus on the competing Article 8 rights of P and of his parents.

 

 

There were three major relevant pieces of caselaw – it won’t surprise anyone to know that one was Gillick. The second was Naomi Campbell’s privacy case, setting out that a person’s medical records and medical treatment is private. The third is one precisely on point as to when a young person acquires the right for their medical treatment to be kept confidential from a parent.

 

  1. In the case of Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112 Lord Scarman said, at 185(e):

    “The rights of a parent exist primarily to enable the parent to discharge his duty of maintenance, protection and education until he reaches such an age as to be able to look after himself and make his own decisions.”

  2. Baroness Hale, in the case of Campbell v Mirror Group Newspapers Limited [2004] 2 AC 457 said at p.499:

    “It has always been accepted that information about a person’s health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor/patient relationship but from the nature of the information itself. As the European Court of Human Rights put it in Z v Finland [1997] 25 EHRR 371:

    “Respecting the confidentiality of health data is a vital principle in the legal system with all the Contracting State parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in health services generally. Without such protection those in need of medical assistance may be deterred from revealing such information of a person and intimidate nature as may be necessary in order to receive appropriate treatment and even from seeking such assistance, thereby endangering their own health and, in the case of transmittable diseases, that of the community.””

  3. I was referred to the case of Regina on the Application of Sue Axon v Secretary of State for Health [2006] EWHC 37 (Admin). During the course of judgment Silber J said, at para.64:

    “It is appropriate to bear in mind that the European Court of Human Rights attaches great value to the rights of children. Furthermore, the ratification by the United Kingdom of the United Nations Convention on the Rights of the Child in November 1989 was significantly showing a desire to give children greater rights. The ECHR and the UNC show why the duty of confidence owed by a medical professional to a competent young person is a high one and which therefore should not be overridden except for a very powerful reason. In my view, although family factors are significant and cogent, they should not override the duty of confidentiality owed to the child. It must not be forgotten that this duty was described in Z v Finland as a vital principle in the legal system of all Contracting Parties to the Convention.”

    Then at para.127 he said:

    “I am unable to accept Mr Havers’ contention that by permitting a medical professional to withhold information relating to advice or treatment of a young person on sexual matters, the Article 8 rights of the parents of the young person were thereby infringed. In considering this issue, it must always be remembered first, that in Z v Finland the European Court emphasised the significance and compelling nature of a patient’s Article 8(1) right to confidentiality of health information as explained in paragraph 63 above. A similar approach was adopted in MS v Sweden, in which it is said at page 337 in paragraph 41 “respecting the confidentiality of health data is a vital principle in the legal systems of all Contracting Parties to the Convention”. Although these cases deal with the position of an adult there is no good reason why they could not apply to protect the confidentiality of health information concerning a young person, especially because, as I have explained, that a duty of confidentiality is owed to a young person by medical professionals.”

    Finally, at para.130 to para.132 he said:

    As a matter of principle it is difficult to see why a parent should still retain an Article 8 right to parental authority relating to a medical decision where the young person concerned understands the advice provided by the medical professionals and its implications. Indeed, any right under Article 8 of a parent to be notified of advice or treatment of a sexual matter as part of the right claimed by Mr. Havers must depend on a number of factors, such as the age and understanding of their offspring. A parent would not be able to claim such an Article 8 right to be notified if their son or daughter was, say, 18 years of age and had sought medical advice on sexual matters, because in that case the young person is able to consent without parental knowledge or consent for the reasons set out in paragraph 1 above. The reason why the parent could not claim such a right is that their right to participate in decision making as part of the right claimed by Mr. Havers would only exist while the child was so immature that his parent had the right of control as was made clear in Gillick. In my view, any Article 8 right of the kind advocated by Mr. Havers must be seen in that light so that once the child is sufficiently mature in this way the parent only retains such rights to family life and to be notified about medical treatment if, but only if, the young person so wishes. Indeed, whether there is family life and hence a right to family life of a particular family is a question of fact. The European Commission on Human Rights has explained the existence of family ties depends upon the real existence and practice of close family ties. It is not clear why the parent should have an Article 8 right to a family life where first the offspring is almost 16 years of age and does not wish it, second where the parent no longer has a right to control the child for the reasons set out in the last paragraph and third where the young person, in Lord Scarman’s words, “has sufficient understanding of what is involved to give a consent valid in law”. There is nothing in the Strasbourg jurisprudence which persuades me that any parental right or power of control under Article 8 is wider than in domestic law. Parental right to family life does not continue after the time when the child is able to make his own decisions. So parents do not have Article 8 rights to be notified of any advice of the medical profession after the young person is able to look after himself or herself and make his or her own decisions.”

  4. I respectfully agree with Silver J’s analysis of the law and of the relevant legal principles.

 

There were therefore two competing Article 8 rights to balance, and the Court considered that they were to be balanced in favour of the young person, who was 16 and capacitious and understood the issues involved and had made his decision that he did not want his parents to be given that information.  [I think there’s an argument that this rather reverses Coleridge J’s decision in Re C – rather than becoming exceptional that a Local Authority respect a child’s wishes not to share information with a parent, it seems to become the norm if the child is capacitious and expressing a view not to share the information – though this was, and is, of course an exceptional case]

 

  1. DISCUSSION
  2. The situation in which P and the parents find themselves is extremely difficult for each party. The parents struggle to understand P’s position, feelings and his decision about his gender. He struggles to understand their complete lack of support and understanding. The upshot is that he, at 16 years of age, has decided to completely disengage from family life with them.
  3. On the basis of the authorities I have referred to above, that is a decision he is perfectly entitled to reach and is one which this court must respect.
  4. There is no issue that P should be afforded privacy in respect of his medical treatment. In any event, I am entirely satisfied that he is entitled to respect of his privacy on these matters as a matter of law.
  5. I am pleased to learn that the parents, having expressed a willingness to engage with the Tavistock Centre throughout, will continue to seek guidance and support from the same. I am sure that will be extremely helpful for them. It may well help them to come to an understanding of why P finds it so distressing when they have referred to him as H.
  6. Like the parents, I very much hope the time will come when a reconciliation is effected between P and the parents. In my judgment, however, the surest way of seeking to secure that outcome, is to respect P’s current wishes and feelings.
  7. When balancing P’s Article 8 rights against those of the parents I am entirely satisfied the balance falls decisively in favour of P’s Article 8 rights. At the age of 16, having decided to disengage from his family in the very sad circumstances of this case, it is for P to decide what, if and when any details about his life are given to his parents. I have taken particular account of the genuine and sincere conviction with which P has expressed his views and wishes. It would, in my judgment, be wholly contrary to (a) his welfare best interests, (b) his Article 8 rights and (c) any hope of a reconciliation being effected for the court to override his views and permit or require the local authority to provide information about P to his parents.
  8. Accordingly, I propose to grant declaratory relief as sought by P.
  9. I know that this decision will be a source of real disappointment and distress to the parents. I hope, however, they will understand the reasons for my decision in the fullness of time.

 

[Another way of looking at it, not considered within this judgment, is whether the LA are capable of complying with the section 22 duty to consult with a parent where the young person is Gillick competent and objects, because of the provisions of the Data Protection Act and that the subject has rights about how their information, particularly sensitive personal information such as this is processed]

 

Very sad case, where you have to feel for everyone involved, and just hope that for all of them what must be extremely difficult and painful now may result in less pain and hardship in the future.

And the office boy kicked the cat

You don’t often get law reports of Interim Care Order hearings, especially now that the senior Courts have finally stopped tinkering with the wording/putting a gloss on the statute / clarifying and refining the law. This one was a High Court decision, and the Judge (Keehan J) was investigating delay in issuing.

Big practice note for everyone – because this is High Court and we all need to follow it :-

 

The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.

 

[If I may suggest – draft the bloody statement before the birth, and add to it, rather than start writing it after the baby is born. I know nobody wants to do that, just in case they win the lottery and are able to quit their job and avoid writing the statement, but seriously – have it ready in draft in advance. Babies have a nasty habit of arriving at a time that is least convenient]

 

Nottingham City Council v LW and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/11.html

You can get the tone of how this case is going to go from this very early paragraph.

A birth plan was prepared. It is not, however, worth the paper it is written on because, as it now transpires, it was ignored by everyone connected with the local authority

 

The mother had had a previous child who had been the subject of care proceedings. In fact, it looks as though those proceedings might have been ongoing into at least the late stages of pregnancy, because those proceedings were issued in May 2015. The judgment doesn’t say that the proceedings had actually ended by the time that the new baby was born in January 2016.  (It ought to have ended, on the 26 week rule, but to quote Neil Gaiman “Intent and outcome are rarely coincident”

 

 

  • The hospital, where LW was born on 16 January, notified the social workers of her birth on Monday 18 January.
  • It then took the social workers until 21 January to place the papers before the local authority’s solicitors for consideration of the issue of care proceedings. It took a local authority solicitor until 28 January to issue care proceedings and to apply for an ‘urgent’ interim care order.
  • The local authority’s application, interim threshold criteria and social work statements in support were not served on the parents’ respective solicitors nor on the children’s guardian and her solicitor until about 12.30pm on 28 January. The case was called on before me at 3pm, there being no justices, district judge or circuit judge available to hear the matter at such short notice.

 

It is hard to see an excuse for a hearing taking place in a rush on 2 1/2 hours notice when the baby had actually been born 12 days earlier.

It is not therefore a shock that the Judge wanted to hear from the Director of Children’s Services and the Head of the Legal Department as to why this had happened.  [For my part, I can’t say I’m happy that the legal department tried to throw one of the secretaries under the bus. I would NEVER EVER do that to any of the hard working people in my office who do so much to make things run smoothly and well.]

 

 

The Director of Children’s Services said this:-

 

 

“….I would like to offer my sincere apologies to the court for the delay in issuing proceedings. I understand this caused a number of challenges for those responsible for allocating court time and to all the parties involved who represent the parents and others involved in this case.

In this particular case, I understand however that there had been ongoing communication with the parties legal representatives about the Local Authority’s intention to issue proceedings.

I believe all parties worked on the premise that issuing should take place once all the paperwork including statements from health colleagues had been submitted and the social worker statement had been amended to include the new information from the hospital in relation to father’s alleged overdose, the withdrawal symptoms of baby and the anonymous referral received following LW’s birth. This contributed to the delay in issuing.

I fully accept that the ideal course of action would have been to issue proceedings as soon as possible after the first working day following the birth, namely the 18th January and the Local Authority could have filed a statement making it explicit that further information had come to light which required immediate investigation and seek the court’s permission to submit an updated statement once these investigations had taken place. Again, the social worker statement could have included information reported by health colleagues, making it clear that health colleagues would be required to submit statements as soon as possible following the lodging of the care application.

Furthermore, the Local Authority will ensure that team secure emails are checked on a frequent basis by the team’s Business Support Officer or the team’s duty social worker so they can alert managers when important documents have been received. This will prevent documents “sitting in the inbox” when social workers/ case holders are absent from work due to sickness or annual leave.

Again, please accept my apologies for this delay. The staff involved in this matter take their roles very seriously and did work hard to produce all the materials required by the court, as expeditiously as possible. However, we have all learnt from this experience and will ensure that issuing is done in a timely manner. The staff involved also offer their sincere apologies for the delay and did not wish to cause the court and parties any offence. They were working hard to gather all the necessary evidence and ensure all parties had full and up to date records of recent events. Again the team recognises the need to issue proceedings as soon as possible following the birth of the baby and will ensure this message is shared across their team…..

….LW’s half-brother is currently subject to care proceedings on the basis of concerns arising from domestic violence. The pre-birth assessment of LW concluded that the risks remained as the mother had not changed or accepted the concerns, but instead minimised the domestic abuse and impact this would have on her as yet unborn child’s development and safety.

A Legal Planning meeting was held on the 16th December 2015 chaired by a Children’s Social care service Manager with legal advice and support from the Team leader of the Local Authority’s Children and Adults Legal Team. The decision to issue proceedings was then ratified by me as Head of Service for Children’s Social Care.

It would be usual practice to issue proceedings on the day of birth and I have investigated this matter to try and ascertain why in this case, proceedings were not issued until the 27th January, 8 working days following LW’s birth. I met with the Team Manager, SD, and her covering Service Manager on Friday 29th January and with the Children and Adults Legal Team Leader on Monday 1st February in order to review events and determine reasons for this delay. I set out below the key events as they unfolded and which contributed to the delay in issuing proceedings….”

It isn’t great that the social work team took five days (less working days, obviously) to produce their statement, given that all concerned knew that the intention was to issue proceedings and that a baby would be born in January. Having said that though, having the statement ready on 21st January would still have allowed for a hearing on notice, and the delay of seven days to get the application issued once the statement was prepared is hard to understand.   [The longest and toughest part of issuing an application is of course the social worker writing the statement. The actual application is a horrible soul-crushing bout of tedium, but it really doesn’t take that long. In one dreadful day in December, I did three of these in a morning]

So what did the legal department have to say?  Well, as indicated earlier, they threw the lowest paid person in the room under the bus.

“On 19th January 2016, Legal Services were updated by the social worker following her hospital visit to see mother, father and the baby. The social worker advised there had also been an anonymous referral to the hospital made the previous evening stating that the mother had used opiates throughout her pregnancy. The hospital had also expressed concerns about the baby’s health and they would be undertaking a Rivers chart assessment as they were concerned the baby was experience withdrawal symptoms. I refer to the statement of TN for an explanation regarding what the Rivers Chart assessment is.

In light of the recent information, the social worker needed to update her statement and this was sent to Legal Services on 21st January 2016. By this point there were and had been some difficulties between the social worker and hospital in obtaining medical information regarding LW’s withdrawal and also the father’s overdose. Legal services confirmed that they would assist in seeking this information from the hospital.

On Friday 22 January the hospital emailed over a midwife’s report to the social worker’s team secure email. Unfortunately as the social worker was off sick on Monday 25th January, this statement was not picked up by the social worker until Tuesday 26th January, when it was forwarded on to Legal Services. Unfortunately the allocated solicitor was not in work on the 26th as she works part-time so the first that the solicitor saw of both the midwife’s report and the final paperwork from the Social Worker (the chronology) was on Wednesday 27th January, when the matter was issued. As the hospital was not pressing for discharge until the end of the week the Court were notified with the application that the matter could wait until Friday 29th January for listing if that would assist the Court…..

…the final updated social worker documents were received by Legal on 26th January and the case was issued with the court during the afternoon of 27th January and the court was advised that a hearing the following day was not necessarily needed and the matter could wait until the day afterwards, namely Friday 29 January if that would assist the Court. In the meantime the hospital emailed over further health evidence, a second midwife report and chronology, once again to the chronology, once again to the social worker until the morning of 28th January and then passed on to Legal Services.

The court duly issued the matter during the afternoon of 27th January and listed the case to be heard before a District Judge at 2pm on Thursday 28th January2016. The allocated solicitor left instructions with the team legal secretary to inform CAFCASS and also provide them with copies of the local authority application and also to counsel who would be representing the Local Authority on 28th January.

Unfortunately, the team secretary did not file and serve the Local Authority’s application on the Parent’s solicitors at the same time. I apologise on behalf of the Local Authority for their regrettable oversight. To give this error some context, due to an unexpected absence and vacancies within the secretarial team, the secretary was working on her own that day in a secretarial team which usually consists of four secretaries and was inundated with work. She is very sorry for the problems her oversight caused.

It is also further regrettable that it was not noted that the parents’ solicitors had not been served with the Local Authority’s application until late in the morning on 28th January. It was immediately rectified but unfortunately this was less than two hours before the hearing. Once again I apologise on behalf of the Local Authority for this delay. The Local Authority has been made fully aware of the dissatisfaction expressed by Mr Justice Keehan who heard the matter on 28th January and has not taken this matter lightly. There has been a full review into the circumstances surrounding the issue of this matter both by legal Services and also Children’s Services.

It is accepted that there has been a delay in the issuing of this matter and no disrespect was intended to the court and parties. It is hoped by providing a chronology in respect of what has happened in the conduct of the matter since the birth of LW that Mr Justice Keehan and the court can be reassured that this matter was continually worked and as a result of the critical new information and concerns around events that took place around the birth of LW involving the father’s suspected overdose and also the anonymous referral that the mother possibly had been using opiates through pregnancy that such concerns had to be rigorously investigated and also further evidence adduced in order for the Local Authority to rely on this, particularly, as the Local Authority’s Care Plan was to seek an Interim Care Order with removal of LW from her parents’ care.

In addition, the Parties solicitors were updated as regards progress with the matter. Sadly for LW the hospital had concerns that she maybe experiencing withdrawal symptoms and the hospital were obviously keen to keep her in hospital for monitoring. LW also suffered a seizure on 25th January. Therefore, any delay in the matter being heard before the court had thankfully not caused any inconvenience to the hospital.

Nevertheless in reviewing this matter I accept that should this scenario happen again in the future the appropriate course of action would be for the matter to be issued at the earliest possible opportunity following the baby’s birth. There would then be liaison with the court around further evidence being sought by the Local Authority to assist the court as to how urgently the matter needed to be listed, particularly as in this scenario the Local Authority were seeking an interim Care Order and removal which was and is still to be contested by the parents. The Team Leader for the Children and Adults legal team will ensure that the team is fully aware of the need to take this approach in future cases….”

Hmmm. I’m struggling with the Judge’s opening summary, where he says that the social work documents were with legal by 21st January, because the legal chronology here says 26th January.

The Judge accepted the apologies, but still felt that there was some egregiously poor practice here – and indicated that as there were some failings here which were not unique to this authority but things that happened too often in cases, it was worth highlighting them. In particular, he was concerned at the practice of delaying issuing an Interim Care Order application because a hospital was willing to keep a child for a longer period than would usually take place.  (It is fairly usual to seek an ICO in 4 or 5 days after birth, to allow the notice period and the hospital be asked to keep mother and baby together in the hospital with mother’s agreement.  The Court can’t always accommodate that, and this is particularly an issue where those 4 or 5 days would encompass a weekend, or worst still a Bank Holiday weekend)

I also note that having accepted the Local Authority apologies, the Judge did still take them to task for being a serial offender in late applications, and also ordered them to pay the costs.

[I can’t help but note that Keehan J was a lot harder on this authority than he was on the one in last week’s case who sought an injunction effectively labelling a man as a sexual exploiter of children having got the wrong man…]

Local Authority – Failings and Poor Practice

 

  • In my experience the errors made in this case are not an isolated example nor is the factual matrix of this case either unique nor even exceptional: on the contrary this case is fairly typical of the type of case in which local authorities propose or plan to seek the removal of a baby at birth. Thus, what principally concerns me is that such fundamental and egregious errors should be made in, what may colloquially be termed, ‘a run of the mill case’. In paragraph33 below, I consider what steps should be taken by a local authority when it plans to seek the removal of an unborn child immediately or shortly after his/her birth.
  • Before I do so, I wish to make certain observations on the flawed approach apparently endorsed by both the senior children’s services manager and the local authority’s senior lawyer in this case. First, both made reference to the willingness of the hospital to keep the baby as an in patient pending the issue of care proceedings. Plainly the period of time for which a hospital is prepared to keep a new born baby as an in-patient, either on medical or welfare grounds, maybe a material consideration for a local authority on the timing of the making of an application for an interim care order, but must not place too great a reliance on these indications or assurances. The fact that a hospital is prepared to keep a baby as an in-patient is not a reason to delay making an application for an interim care order. The following should always be borne in mind:

 

a) a hospital may not detain a baby in hospital against the wishes of the mother or a father with parental responsibility;

b) the capability of a maternity unit or a hospital to accommodate a healthy new born child may change within hours, whatever the good intentions of the unit or hospital, depending upon the challenging demands it may be presented with;

c) the ability to invite the police to exercise a Police Protection Order, pursuant to s 48 of the 1989 Act or for a local authority to apply for an Emergency Protection Order, pursuant to s.36 of the 1989, are, of course, available as emergency remedies,

d) but such procedures do not afford the parents nor, most importantly, the child, with the degree of participation, representation and protection as an on notice interim care order application;

e) the indication of a maternity unit as to the date of discharge of a new born baby should never, save in the most extraordinary of circumstances, set or lead the time for an application for an interim care order in respect of a new born child.

 

  • Second, where the pre birth plan provides for an application to be made for the removal of a child at or shortly after birth, it is neither “usual” nor “ideal” practice for an application for an interim care order to be made on the day of the child’s birth, rather it is essential and best practice for this to occur.
  • Third, once it is determined by a local authority that sufficient evidence is available to make an application for an interim care order, on the basis of the removal of a new born child, the availability of additional evidence from the maternity unit or elsewhere, must not then cause a delay in the issue of care proceedings; the provision of additional evidence may be envisaged in the application and/or provided subsequently.
  • The local authority should have adopted good practice and the following basic, but fundamental, steps should have been taken:

 

a) The birth plan should have been rigorously adhered to by all social work practitioners and managers and by the local authority’s legal department;

b) A risk assessment of the mother and the father should have been commenced immediately upon the social workers being made aware of the mother’s pregnancy. The assessment should have been completed at least 4 weeks before the mother’s expected date for delivery. The assessment should then have been updated to take account of relevant events immediately pre and post delivery which could potentially affect the initial conclusions on risk and care planning for the unborn child;

c) The assessment should have been disclosed, forthwith upon initial completion, to the parents and, if instructed, to their solicitors to give them an opportunity, if necessary, to challenge the assessment of risk and the proposed care plan;

d) The social work team should have provided all relevant documentation, necessary for the legal department to issue care proceedings and the application for an interim care order, no less than 7 days before the expected date of delivery. The legal department must issue the application on the day of birth and, in any event, no later than 24 hours after birth (or as the case may be, the date on which the local authority is notified of the birth);

e) Immediately upon issue, if not before, the local authority’s solicitors should have served the applications and supporting documents on the parents and, if instructed, upon their respective solicitors.

f) Immediately upon issue, the local authority should have sought from the court an initial hearing date, on the best time estimate that its solicitors could have provided.

 

  • If these steps had been followed in this case, unnecessary delay and procedural unfairness would have been avoided.

 

Conclusions

 

  • The local authority was inexcusably late in making an application for an interim care order. The consequences of this contumelious failure were that:

 

i) The parents’ legal representatives were served with the application and supporting, albeit deficient, documentation only some 2-3 hours before the hearing;

ii) The court was unable to accommodate a 1 day contested hearing for an interim care order before a circuit judge, a recorder or a district judge until some days hence;

iii) The parents legitimately wished to have a fully contested interim hearing with the benefit of oral evidence to cross examine the social worker and the guardian and to enable the parents to give oral evidence;

iv) The hospital was ready to discharge the child and, for wholly understandable reasons was unwilling and unable to care for the baby for a further prolonged period;

v) The stance of the hospital and the principal, but unchallenged, evidence of the local authority was that the baby would be at risk of suffering significant harm if she were discharged into the care of either the mother and/or the father;

vi) Accordingly and acting in the best welfare interests of the baby, as advised by the children’s guardian, the court had no choice but to make an interim care order in favour of the local authority on the basis of a plan to place the baby with foster carers; but

vii) On the basis that the local authority, at whatever cost and inconvenience to itself, would arrange contact to take place five times per week between the child and her parents.

 

  • I am in no doubt that the parents in this case have been done a great dis-service by this local authority. It may well be that the outcome would have been the same whatever the length of notice that they and their respective legal advisors had had of this application; that is not the point. It is all a question of perceived and procedural fairness.
  • The actions of this local authority, in issuing an application for an interim care order so late in the day, have resulted in an initial hearing before the court which, I very much regret, is procedurally unfair to the parents. Of equal importance, it is unfair to the children’s guardian who was only appointed on the morning of the issue of this application. The fault for this unfairness lies squarely at the door of this local authority.
  • I am in no doubt that if this application for an interim care order had been issued timeously by the local authority then the hearing before me on 28 January 2016 could have been an effective contested hearing.
  • In the premises I have no hesitation in concluding that the costs of this abortive hearing should be borne by the local authority. Accordingly I shall order the local authority to pay the costs of all of the respondents to be assessed if not agreed.
  • This local authority is, I am told and accept, a ‘serial offender’ in issuing late and ‘urgent’ applications for care proceedings and/or interim care orders in respect of new born babies. Save in respect of clandestine pregnancies and/or births, I simply do not understand why this local authority issues proceedings so late and so urgently. In this case it was a most spectacular and contumelious failure.
  • The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.
  • Given that in the vast majority of cases a local authority will be actively involved with the family and/or aware of the pregnancy and the estimated date of delivery, I cannot conceive how such a requirement places an unreasonable and/or disproportionate duty upon a local authority. Further it is likely that a local authority’s failure to act fairly and/or timeously will be condemned in an order for costs.
  • In this case the local authority wholly and unreasonably failed the child, her parents and the children’s guardian.

 

 

Mistaken identity

 

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

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

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

Birmingham City Council vand SK 2016

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

 

 

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

 

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

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

 

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

 

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

 

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

And so it has proven

 

London Borough of Redbridge v SNA 2015

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

 

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

 

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

He refutes any notion of sharp practice by Keehan J

 

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

 

 

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

 

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

 

 

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

 

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

    Sexual risk orders (England and Wales)

    122A Sexual risk orders: applications, grounds and effect

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

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

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

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

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

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

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

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

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

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

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

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

    (7) Such an order—

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

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

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

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

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

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

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

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

 

 

 

Anonymity for victim of child sexual abuse/exploitation

 

The High Court considered an application to extend a Reporting Restriction Order on a 17 year old, AB, which would expire when she became 18 to be throughout her life.

 

Birmingham City Council and Riaz 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1857.html

AB was the victim in a high-profile case of child sexual exploitation – you may remember it as the one where Keehan J, in the High Court, made an order that the adult males suspected of having abused AB would be (a) subject to orders preventing them from being around children and (b) named and shamed, so that the press were able to report their names and print photographs alongside a story that they were men who had targeted and groomed children for sexual purposes.

 

Remember that in that case, there had been no criminal trial and was never likely to be, and that the men had not gone through a process of contesting the allegations and having the Judge decide whether they were true.  Just that on the civil standard of proof the evidence was such that an order preventing them from harming other children was appropriate.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

The Local Authority, Birmingham applied to extend the Reporting Restriction Order on AB for her whole life. They argued that AB was a victim, that any story about the case could be told without her name, that she had been a child and deserved protection not press exposure and no doubt that if the result for AB of having told her story and made her allegations was that she was made notorious and everyone who met her would know for the rest of her life what happened to her, that would deter other victims.

The Press were not arguing that they wanted to name her, but were concerned about a precedent emerging.

When looking at the case, Keehan J identified that as a result of s78 of the Criminal Justice and Courts Act 2015, Criminal Courts had the power to make orders saying that the name of a victim or a witness could be subject to an order that it not be reported.  There is also an authority of the Court of Appeal JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 that permits such orders being made to preserve the anonymity of children who receive financial settlements.  Again, that makes perfect sense – if you receive compensation for something terrible in your childhood, why should everyone that you meet in your life get to know all the personal details?

 

With this sort of case, it is more tricky.

As was put to Keehan J, an order preserving the anonymity and identity of an adult [other than as the result of Court of Protection or care proceedings/adoption] has happened in three cases in English legal history.

The cases are all pretty notorious – Mary Bell, Thompson and Venables, and Maxine Carr.  It is no small thing to add a name to that list.

On the pro side of things, I’d probably argue that those were all people who did something wrong (and where a child died as a result – Maxine Carr having the lowest culpability), whereas  AB was a victim. Why on earth should a victim get less protection than a person who was responsible to some degree for the murder of a child?

On the con side, the three cases above involved a CHANGE of identity.  The press and public knew who Mary Bell and the others were, and indeed photographs were available. The press can publish those photographs even now. The public wasn’t being told that they couldn’t know that Mary Bell had killed a child, they just couldn’t know her new identity.

 

I’m struggling to be balanced here, since for me the case for AB to have anonymity for life is overwhelming, but I can see that it is establishing a precedent  (and just with the inherent jurisdiction cases, there’s a later danger that such a precedent in a deserving and solid case can be later used to advance the jurisdiction further and further away)

Mr Dodd, for the Press Association  (given a tricky brief) did pretty well with it

  1. Mr Dodd submits that the court should proceed cautiously before filling in a lacuna left by Parliament. He referred me to paragraph 20 of the opinion of Lord Steyn in the case of Re S(FC) (A Child) [2004] UKHL 47 where he said:

    “20. There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.”

  2. Of particular note is the caveat entered by Lord Steyn to the courts creating further exceptions to the general principle of open justice “except in the most compelling of circumstances”. 

 

 

Keehan J considers matters in a very thorough manner and it is an exemplary judgment  (whilst I think that some of the analysis in the initial Riaz case is not as rigorous as I would have hoped, given the serious nature of what was being done there and the likelihood that the approach would be used in other later cases, I can’t fault this judgment)

 

  1. Discussion
  2. I entirely accept the high importance accorded to the general principle of open justice. It was because of the considerable public interest in the issue of CSE that I directed the matter to be heard in open court in October 2014 and thereafter.
  3. The mere fact that there are only three reported cases of lifelong anonymity being granted in civil/family proceedings, should not deter me from undertaking my primary task which is to undertake a rigorous analysis of the competing Article 8 rights of AB and the Article 10 rights of the press and broadcast media.
  4. It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.
  5. What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.
  6. AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.
  7. I accept the Press Association and the Times do not wish to identify AB, but their approach does not bind and may not reflect the approach of other members of the press or broadcast media or those who use social media sites.
  8. I take account and accord considerable weight to the serious adverse consequences for AB if she were to be identified as a victim of CSE in the press, broadcast media or on social media sites. I accept the opinions and conclusions of the social worker and the psychologist. AB remains a very vulnerable young woman. In my judgment adverse publicity about her as a victim of CSE is likely to have a serious deleterious effect on her emotional and psychological well being.
  9. I have earnestly reflected on this difficult issue of whether I should grant a RRO to afford AB lifelong anonymity. I have taken account of the high priority accorded by Parliament and the courts to the protection of victims and especially to young people.
  10. I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.
    1. I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.

 

 

 

 

A happy(ish) ending to a sad story

On 1st January 2014, a little boy was rushed to hospital. He was seven months old at the time and had stopped breathing. The hospital examined him and found that he had bleeding inside his brain (what is called a subdural haematoma) and bleeding in his eyes (what are called retinal haemorrhages).  Those things are commonly associated with a child having been shaken.  Older readers may recall the trial of Louise Woodward, an English girl acting as a nanny in America, who was on trial for murder as a result of a baby who died with those presentations.

The hospital at the time made a diagnosis that the boy had suffered injuries to the brain as a result of having been shaken. The Local Authority issued care proceedings (very quickly) and the Court went on to hear the evidence and make the decision.

 

Re N (a minor) 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/54.html

The issue in the case was quite simple  (although the evidence involved in proving it is very complex)

1. Did this child stop breathing and mother then shook him (too hard) in an understandable attempt to revive him?

or

2. Did one of his parents pick him up and shake him, causing the injuries?

 

What happened in this case, when the finding of fact hearing took place, is that the lead medical expert wanted to know more detail about the parents evidence about the night in question, and having done so, gave his opinion that what they described was wholly consistent with explanation 1, which is what they said had happened.

At the end of the evidence, when the Local Authority were making their submissions, they indicated that they were in agreement that what had happened was version 1 – what the parents had said. The Judge told them that he agreed and that they were right to have accepted that.

 

At the outset of this fact-finding hearing the local authority invited the court to find that N had been the subject of an abusive non-accidental injury at the hands of one or other of his parents. Having listened to all of the evidence, in particular that of the Consultant Paediatrician Dr Cartlidge, I was told at the beginning of submissions this afternoon that the local authority had modified its position and now accepted that this was an ill-advised resuscitative shake by the mother of N in circumstances which I shall describe in a moment. I indicated that I wholly agreed with the assessment and conclusions of the local authority, and I applaud the local authority for taking the very realistic and sensible course that it has taken in this case

 

 

The Judge set out that the hospital were right to have acted as they did, and so were the Local Authority

Accordingly, whilst I in no way criticise the hospital for the approach that they took suspecting non-accidental injury, and in no way criticise the local authority for initiating the child protection procedures that it did making N the subject of a care application and placing him in foster care, I am entirely satisfied, particularly on the basis of the evidence of Dr Cartlidge but also on the basis of the evidence of the parents, that this was an accidental injury. The mother may have been ill-advised to shake, but she did it with no malicious intent, quite the reverse, she did it because she thought she was helping her son. Both the mother, with the benefit of hindsight, and the father in the course of their evidence said words to the effect that the mother may have over reacted in terms of the vigour with which she shook N. Given that I accept that this was a resuscitative shake, it is being too critical in my view to criticise the mother for failing to judge to a nicety that which she did in the extreme panic which I accept she was in at that time. So accordingly I find that N’s injuries resulted from an innocent but ill-advised resuscitative shake by his mother in the early hours of 1 January 2014

 

That innocent action, though it had terrible consequences for N, was not something that amounted to threshold, and so N would return home to his parents.

The reason why it is only happy(ish) rather than happy, is that the judgment on this case did not get delivered until the end of November 2014 (published today), and so N was living apart from his family for around eleven months whilst this all got sorted out.  That seems a dreadfully long time.  This is the other side of the coin in the 26 week debate – I grouse all the time about how 26 weeks can be unfair to parents, but if you were these parents, you would really want the case to be finished as soon as possible, because they did nothing wrong but had to live apart from their sick child until the Court could hear the evidence and the truth emerge.

 

It isn’t really clear from the judgment why it all took so long, but these cases are not easy to deal with. Experts have to be identified and to report, all the records have to be tracked down, where the case is in the High Court it can be difficult to find the time for long hearings. It all adds up.

I don’t know whether anyone has ever done follow-up studies on the impact of children on being apart from their family for this sort of length of time and then successfully rehabilitated.  We tend to just walk away thinking of the happy outcome, but it must be really hard for everyone involved to adjust. This young boy of course now has life-altering consequences from his tragic injury, and that’s hard in itself; but you also have two parents who love him who missed out on 11 months of his 17 month life.  Will that just repair itself, or will there be knock-on effects on the family for years to come?

 

I hope not, and I wish them all well.

 

adoption and payments

A and Another v Local Authority 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4816.html

 

This is a short judgment by Keehan J, involving a case where a couple who wanted children had entered into a private arrangement with a woman who had been pregant and considering termination. They agreed that the couple would have the child and later adopt the child.

 

(That is a criminal offence, since it is prohibited for individuals to arrange adoption between themselves, it has to be done through an authorised agency UNLESS the High Court approve it in advance. I remain mystified as to how anyone asks the High Court for that approval without committing the offence first, since you would be unable to be either Person A asking Person B if they might be willing to enter into an arrangement about adoption, or Person B offering to enter into such an arrangement. So you’d have to be Person A going to the High Court saying  “I’ve no idea if Person B is up for letting me adopt their unborn baby, but is it alright if I ask them?”  That might seem like a rather scattergun approach to finding a baby to adopt, since it might take until Person Q before you find someone who with no prior discussion says “Yes, that would be fine”)

 

s92 Adoption and Children Act 2002 (1)A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).

(2)The steps are

(a)asking a person other than an adoption agency to provide a child for adoption,

(b)asking a person other than an adoption agency to provide prospective adopters for a child,

(c)offering to find a child for adoption,

(d)offering a child for adoption to a person other than an adoption agency,

(e)handing over a child to any person other than an adoption agency with a view to the child’s adoption by that or another person,

(f)receiving a child handed over to him in contravention of paragraph (e),

(g)entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,

(h)initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),

(i)causing another person to take any of the steps mentioned in paragraphs (a) to (h).

 

and then s93 clarifies that taking those steps is an offence, punishable by a £10,000 fine or up to six months imprisonment

 

93 Offence of breaching restrictions under section 92

(1)If a person contravenes section 92(1), he is guilty of an offence; and, if that person is an adoption society, the person who manages the society is also guilty of the offence.

(2)A person is not guilty of an offence under subsection (1) of taking the step mentioned in paragraph (f) of section 92(2) unless it is proved that he knew or had reason to suspect that the child was handed over to him in contravention of paragraph (e) of that subsection.

(3)A person is not guilty of an offence under subsection (1) of causing a person to take any of the steps mentioned in paragraphs (a) to (h) of section 92(2) unless it is proved that he knew or had reason to suspect that the step taken would contravene the paragraph in question.

(4)But subsections (2) and (3) only apply if sufficient evidence is adduced to raise an issue as to whether the person had the knowledge or reason mentioned.

(5)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding £10,000, or both.

 

The police in this case decided to take no action.

[If you are wondering why this is adoption and not surrogacy, it is because the couple who were going to care for the child had no biological material involved in the conception – surrogacy is where the child is concieved with genetic material from at least one of the people who are going to be caring for the child]

The next issue was that the prospective adopters had given the birth mother money.  In this case a loan of £5,000.  (If you want to imagine me doing Russell Harty style air quotes around the word loan, feel free) and that loan was paid back (same again) although many of the repayments were in cash and there was no proof of that.

Again, it is a criminal offence to make payments to someone in order to facilitate adoption of a child.

95 Prohibition of certain payments

(1)This section applies to any payment (other than an excepted payment) which is made for or in consideration of”

(a)the adoption of a child,

(b)giving any consent required in connection with the adoption of a child,

(c)removing from the United Kingdom a child who is a Commonwealth citizen, or is habitually resident in the United Kingdom, to a place outside the British Islands for the purpose of adoption,

(d)a person (who is neither an adoption agency nor acting in pursuance of an order of the High Court) taking any step mentioned in section 92(2),

(e)preparing, causing to be prepared or submitting a report the preparation of which contravenes section 94(1).

(2)In this section and section 96, removing a child from the United Kingdom has the same meaning as in section 85.

(3)Any person who

(a)makes any payment to which this section applies,

(b)agrees or offers to make any such payment, or

(c)receives or agrees to receive or attempts to obtain any such payment,

is guilty of an offence.

(4)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding £10,000, or both.

 

As the Judge explains, there are very good public policy reasons why the law prohibits a person who wants a child paying someone to hand over that child to them for adoption – it would be a very easy thing for a rich person to exploit a poor mother in that scenario

There are very strong public policy considerations against permitting monies to be paid for the handing over of a child or for the adoption of a child. There are very strong public policy considerations against permitting privately arranged adoptions. The reasons for those are all too obvious. On occasions the court is aware that privately arranged adoptions have taken place in circumstances which are wholly inimicable to the welfare of the child concerned.

 

In this case, the prospective adopters had been caring for the baby for nearly a year and caring for the baby well. The professionals involved were of the view that the adoption order they were applying for should be made, as were the baby’s biological parents.

 

The Judge explained

However, whilst criminal offences may or may not have been committed, either by arranging a private adoption or making payments, there is no provision in the 2002 Act which sets out that such offences are a bar to the court going on and nevertheless approving and making an adoption order; that is because the ultimate consideration for the court is the welfare best interests of the child.

 

The Judge went on to make the adoption order.

 

Clearly the right thing to do in this case.

With unlawful payments made under adoption, AND excessive payments made under Surrogacy Arrangements, the Court is more and more taking a welfare-centred approach that any illegal actions can be cancelled out by the benefit of making the orders sought. Does this have the effect of watering down the protection offered to vulnerable mothers (particularly mothers living in poverty and in countries where £5000 is a huge amount of money) ?   All that is happening to people who want a baby who make unlawful or even criminal payments is that they get a smack on the wrist (sometimes not even that) and the Court still makes the orders.

 

Very difficult. Nobody wants to make an example of people just for the sake of it or to move the baby from carers who clearly loved the child and were doing a good job and had been ignorant of the law; but if there’s no consequence in practice for breaking the law what’s the point of having it?

 

My admittedly limited research hasn’t turned up any prosecutions for offences under section 93 or section 95 of the Adoption and Children Act 2002. And whilst you might think that this is because the Act has provided a deterrent and so people aren’t committing the offences, this case shows that it isn’t the case. It is more that you simply can’t concieve of either a jury convicting someone like this or a Judge removing the child from them.

 

Adoption rates in freefall

I’ve been asked if I would write about the story in the newspapers this week about adoption rates going down and the blame being placed on some high profile case law decisions. This is the first time that I have ever received a request, so I should oblige.  [If anyone’s future request is that I write about my love of Jaime Lannister, or that Joe Hill’s Locke and Key is the best comic series since Grant Morrison’s run on Doom Patrol, then for those, it’s on like Donkey Kong]

 

The Painting that Ate Paris (Doom Patrol)

The Painting that Ate Paris (Doom Patrol)

 

Locke and Key - this is what happens when you use the Head key to look inside your own mind

Locke and Key – this is what happens when you use the Head key to look inside your own mind

 

 

So, here is the Independent piece – there’s a startlingly similar one in the The Times, but you need to pay Rupert Murdoch money to look at it. The choice is yours.

http://www.independent.co.uk/news/uk/home-news/adoption-rates-in-freefall-after-court-ruling-leaves-children-languishing-in-unsuitable-homes-10245614.html

 

This piece is very knowledgeable about family law and case law – more than you’d expect from a journalist. The fact that two newspaper articles with the same cases turned up this week makes me suspect a press release was involved.  The same piece appears on the BBC website.

 

Let’s have a look at it bit by bit.

The number of children being put forward for adoption has plummeted over the past year following a series of court rulings that have left local authorities frightened of removing them from birth families.

Child welfare experts are worried the decline will mean more children suffering in unsuitable and unsafe homes. It also means agonising delays for parents approved for adoption who now find no children are available.

The number of children signed off for adoption fell from 1,550 in the summer quarter of 2013 to 780 in the same period last year, down almost 50 per cent.  

 

Okay, well firstly, whilst one feels for an adopter who is waiting for a child, the family justice system isn’t, and shouldn’t be, prioritised to deliver children to adopters. The idea is that the family justice system tests fairly whether a parent can be helped to care for their child, with adoption being the last resort. Secondly, “Signed off for adoption” is not only a very ugly expression, it is hard to put a proper meaning on it. Does it mean “The Agency Decision maker decides that adoption is the plan the social worker should recommend to the Court”?  or does it mean “A Placement Order is made”?

As the Department for Education hasn’t published (yet) the statistics that is getting all of these newspapers up in arms, it is a bit difficult to tell. The thrust of the article suggests that the drop in figures is that Local Authorities are too scared to ask for adoption, so the assumption is that the drop here is in the number of APPLICATIONS for Placement Orders (i.e a social worker recommending to the Agency Decision Maker that adoption should be the plan and the ADM agreeing) – that in itself could be that social workers are asking the Agency Decision Maker less often, or that the Agency Decision Maker is saying no more often, or both.

That in turn could be because the thrust of the Re B, Re B-S et al decisions made social workers look harder and more carefully at whether adoption really was the right plan for a child – could more be done to support a parent, could those grandparents who are not ideal be good enough? Really hard to guage that from statistics – you’d need to have a look at a pile of actual cases and compare the sort of cases that were ending up with adoption in 2013 that are now ending up with parents or grandparents.  It is also difficult to know whether that’s a bad thing anyway. If the trend is to be more willing to work with parents or grandparents who are not perfect, but could be helped to be good enough, that could be a perfectly laudable aim. We might not know whether that greater willingness to give things a try was a long overdue adjustment or a bad mistake for a few years – the real test will be whether those attempts broke down.  At the moment, we can’t even tell if that’s what happened.

Certainly Local Authorities aren’t taking any less care proceedings than they used to. The latest CAFCASS statistics show that the number of applications is continuing to go up – 18% up on this time last year.

I honestly don’t think, and the recent clarifications from the Court of Appeal make this clear, that the caselaw ever meant that children should be “suffering in unsuitable and unsafe homes”. If the Court considers that the alternatives to adoption are unsuitable and unsafe, then adoption is going to be the outcome. Nothing has changed there. I also don’t think that social workers have decided to leave children “suffering in unsuitable and unsafe homes” as a result of Re B, Re B-S et al, rather than asking for adoption as the plan. What might have changed is that it is no longer enough to just assert that an alternative is ‘unsuitable’, but you have to evidence it. I don’t consider that a bad thing.

 

Next

But in November 2013 the President of the Family Court, Sir James Munby, made a ruling that left many local authorities convinced they must try every extended family member before putting a child up for adoption. The judge said that six-month targets for adoptions should not be allowed to break up families unnecessarily and that grandparents and other extended family members should be considered before placing children for adoption.

It had been hoped that a second ruling last December from the same judge, clarifying he had not changed the law in the original judgment, would curb the freefall in adoption numbers. But instead further rulings from Sir James and other judges have exacerbated the problem.

 

The first case is Re B-S  – and you can read my post about that case here https://suesspiciousminds.com/2013/09/17/this-is-some-serious-b-s/    – it was undoubtedly a big case, telling social workers, Guardians AND Judges that decision-making on adoption cases had gotten very sloppy and that the argument to justify making such a serious order needed to be clearer, stronger and more analytical. It was no longer enough to parrot stock phrases about why a child needed to be adopted – a proper comparison of the pros and cons of EACH option tailored for the individual child needed to take place. It is really hard to see much wrong with Re B-S. If anything, it should have been said years earlier. There’s nothing in it to suggest that a Court should leave a child ‘suffering in an unsafe and unsuitable home’

 

The scond case is Re R – and you can read my post about that case here https://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  – that clarifies that some of the more outlandish claims that lawyers had pushed to extremes about Re B-S – that it was a “climb every mountain, ford every stream, follow every river – before you make a Placement Order” case was not right, but that everything I just said above was still right, and the Supreme Court’s formulation that “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”  was still bang on right.

 

Next – let’s have a look at these further confusing rulings

In January Sir James granted an appeal in a case in Liverpool where three children were taken away from a mother with a history of drug and alcohol abuse who was given no opportunity to prepare a case.

The President of the Family Court ruled that the “ruthlessly truncated process” employed by the earlier judge in the case – who had admitted he was motivated by a desire to embrace family justice reforms designed to encourage adoption – was “unprincipled and unfair”.

 

Well, that’s the His Honour Judge Dodds case, where he made Care Orders at the very first hearing (i.e in week one) in order to beat the week 26 target, even though nobody in the case had asked him to do that and there was no final evidence filed by anyone. That’s not a warning to Judges not to make adoption orders – that’s basic common sense that a Judge who behaves in a way that is utterly unfair is going to get overruled. Nobody with any common sense looked at that case and felt that it had worrying implications for adoption cases, or that it meant that children should be ‘suffering in unsuitable and unsafe homes” –  If you read this piece and think “Well, I don’t know why the Court of Appeal had any problem with what the Judge did” then I’m not sure I can help you. https://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

 

What’s the next ‘confusing’ ruling?  (I wasn’t in any way confused by the last one) – this one apparently had a “similar chilling effect on Local Authorities desire to expedite adoption cases” as the His Honour Judge Dodds one did.  (not that it should have done – the Dodds one wasn’t even about adoption)

 

Another case decided in January is understood to have had a similar chilling effect on local authorities’ desire to expedite adoption cases. Mr Justice Keehan ruled that Northamptonshire County Council had made “egregious failures” in its handling of the case of a baby taken into care without proper assessments of the mother or the maternal grandparents in Latvia. The baby was eventually placed with his maternal grandparents.

I wrote about that one too – you may pick up a slightly different tone from the title of the piece https://suesspiciousminds.com/2015/02/03/unfortunate-and-woeful-local-authority-failings/

This was just an old-fashioned Local Authority f**k-up. Sorry to anyone involved, but that’s what it was. This wasn’t a case where Local Authorities read it and it had a chilling effect on them, making them think “gosh, if social workers are getting told off for this exemplary work, then we may as well pack it in and let children suffer in unsuitable and unsafe homes” – it was one that you read and thought “If you f**ked up as royally as that, you are going to get the judicial ass-whupping that they got”.   There’s nothing in that case that would make anyone think “well, I really think in my heart of hearts that this child should be adopted, but because the law has done something weird and stupid, I guess I’ll have to leave the child to suffer in an unsuitable and unsafe home”

[Yes, I’m hammering home that phrase, because I think it is seriously misleading]

If there are Local Authorities, or social workers (and I really doubt it) that took the His Honour Judge Dodds decision and the Northamptonshire decision and interpreted them as ‘adoption is even harder to get now’  rather than ‘if you really screw something up, expect not to get away with it” then these articles are doing a great public service in correcting that total misapprehension and interpretation of the law.

Anything else?

 

No, there are no other “chilling” or “confusing” cases cited.  That’s a shame, because one could make a case for the President’s decision in Re A fits the bill far better than the two examples they have chosen.  https://suesspiciousminds.com/2015/02/17/a-tottering-edifice-built-on-inadequate-foundations/

 

For a start, it is a case where a Local Authority asked for adoption and didn’t get it – and walked away with nothing but a flea in their ear. More than that, it is a case where what looked like perfectly decent threshold criteria (the concerns that a Local Authority have to prove exist in order to get an order) was torn to bits by the Judge. And finally, it had principles and issues which affected all cases, not just the particular one being decided (unlike the two examples that were used), and there is a distinct possibility that that bar was raised, making Care Orders (and hence indirectly Placement Orders and hence adoptions) more difficult to obtain, since it is now harder to prove that the threshold is met.

But once again, the law is not saying that children ought to suffer in unsuitable and unsafe homes. It is saying that where a Local Authority says that a child should live somewhere else, they need to produce proper evidence and analysis to show WHY their home would be unsuitable and unsafe. Re B-S and Re A are not saying that adoption isn’t the right outcome for some children, but they are saying that where the State (whether that be a social worker or a Judge) is taking a child permanently away from a parent, the least that society can expect is that they both work very hard and have proper evidence and reasons for why that has to happen.

Perhaps when the stats do come out, the adoption figures really will have ‘fallen off a cliff’, just as the article claims.  Perhaps that is because social workers, lawyers, Agency Decision Makers and Judges are paralysed by chilling and confusing case law. But it might be that the numbers were too high before, and proper scrutiny of the evidence and proper analysis of what is really involved has meant that we aren’t placing children for adoption unless the proper tests are met.

 

Sometimes, an initial look at something can make you chilled and scared, and even want to throw stones. But a longer more detailed careful consideration can make you realise that Jaime Lannister kicks ass y’all, and that a Lannister always pays his debts.

 

Plus, he has a gold hand. A hand made of gold. What's not to like?

Plus, he has a gold hand. A hand made of gold. What’s not to like?

Gilded cage – junior edition

 

Those of you who follow deprivation of liberty cases will be aware that the landscape is markedly different after the Supreme Court in Cheshire West.  Just how different remains to be seen, as individual cases come before the Courts and are tackled.

 

Keehan J was faced with a difficult concrete example of the uncertainty following Cheshire West in

 

Re D (A Child :Deprivation of liberty) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/922.html

 

This case involved a boy, not quite sixteen, with considerable difficulties.

D was born on 23 April 1999 and is 15 years of age. He was diagnosed with Attention Deficit Hyperactivity Disorder at the age of 4, with Asperger’s Syndrome at the age of 7 and with Tourette’s syndrome at the age of 8.

 

He had been admitted to hospital for psychiatric treatment as a result and is just about to be discharged into a residential care setting. He had been on a locked psychiatric ward for 15 months. This is obviously a very high-end example.

 

In this case, as a result of the Cheshire West decision, there was considerable dispute about whether D was being deprived of his liberty and whether his parents consent to this was sufficient to allow this or whether a DoLs authorisation was required.

The hospital trust considered that DoLS authorisation was required and that to conclude that D’s parents had the right to consent to D being deprived of his liberty was too broad a view of PR.

The Local Authority considered that D’s parents were consenting, and thus this was not a deprivation of liberty in the DoLS sense.

  1. The Applicant Trust submits that the circumstances in which D lives at Hospital B satisfy the first limb of the Cheshire West test namely:

    “the objective component of the confinement in a particular restricted place for a not negligible length of time.”

  2. Further the Trust submits that D’s parents cannot consent to his placement at Hospital B because such a decision, to consent to what would otherwise amount to a deprivation of liberty, falls outside the ‘zone of parental responsibility’.
  3. Accordingly, the Trust submits the appropriate course is to seek the court’s approval of D’s placement under the inherent jurisdiction of the High Court.
  4. The local authority adopts a diametrically opposed stance. It submits that the circumstances of D’s placement do not amount to a deprivation of liberty. Further, it submits that the decision of D’s parents to consent to his placement at Hospital B falls within the proper exercise of parental responsibility. Accordingly what might otherwise constitute a deprivation of liberty does not do so because the second and third limbs of the test in Cheshire West are not satisfied namely:

    ” (b) the subjective component of lack of valid consent; and

    (c) the attribution of responsibility to the state”.

This has substantial implications – all disabled children who are receiving care from the State and whose liberty is being restricted (in order to keep them safe) on the Trust’s interpretation of Cheshire West would need to have that deprivation of liberty authorised – even if the parents were consenting. The real bad news there is that for people under 16, the Mental Capacity Act 2005 doesn’t cover them and such deprivation of liberty would have to be authorised under the Children Act 1989.  Which means, to spell it out, placing all of those disabled children in Secure Accommodation.

 

Which also means making Court applications. Which also means the residential homes that are caring for these disabled children needing to go through the registration process to qualify as Secure Units.

 

It is an interpretation of Cheshire West which does make logical sense from the judgment, but which has immensely worrying consequences. Not least that the Secure Accommodation provisions might well not be met for these children and the alternative would be that carers at the residential units would thus have no power to restrict the children’s movements  (for example, not being able to stop them from running into the road)

 

[I note that Keehan J in this case specifically rules that the High Court can authorise deprivation of liberty for children under the inherent jurisdiction. I’m really rather dubious about that. I know the inherent jurisdiction is a magic bullet for every situation with almost limitless powers, but to use it to sidestep s25 Secure Accommodation provisions seems to me to have real difficulties with s100 – particularly s100 (4) (a) which bars granting leave to a Local Authority to make an application under the inherent jurisdiction if there is a statutory order the LA could apply for instead, and s100 (4) (b) which says that leave can’t be granted unless the Court is satisfied that significant harm would result to the child otherwise. Would anyone ever appeal it? probably not. ]

 

Any Local Authority lawyer dealing with deprivation of liberty or disabled / disturbed children is really really nervous about how this case is going to turn out. It is a big test case.

Here’s the practical arrangements for D, to consider whether they amount to a deprivation of liberty

Dr K describes D’s life at Hospital B as follows:

“D is residing on X one of the two buildings which make up the adolescent service. Each building is a six-bedded unit. Each young person has their own bedroom, and shares bathroom and living areas with the other patients. There is a school room attached to each building, and all the students receive full time education provided from a special school outreach service.”

“D’s unit is staffed 24 hours a day.

It has a locked front door. D does not leave the ward without a staff member or his family accompanying him. He has been offered opportunity to undertake small tasks by himself, such as emptying the bins, but he says he is scared. Unescorted leave would be considered as part of his treatment package to see how he fares.

D has his own bedroom, which he can access whilst he is on the unit at his leisure. He shares a bathroom and residential areas within the building.

D is on general observations. This means that he is checked on every half an hour or so. However, D seeks out contact with staff more regularly within that time and this means that he is under direct observation on a much more regular basis. I am of the view that he is under constant supervision and control.

His school is integral to the building. He goes off site for all relevant school activities such as, to music sessions on site, and to activities which take place in the community, such as shopping and cafes. He leaves the unit on a daily basis, accompanied by staff.

He is independent in his self-care, and requires minimal support for this. He eats a varied diet independently, and is able to vocalise his preferences.

Attempts to engage him in more serious conversation unnerves him, and he will try to deflect the subject, or directly challenge the person, by telling them that he is not happy. I am of the view that this is reflected in the anxiety he has shown around his discharge. My team will need to manage this carefully within the discharge process.

When out in the community, D is supported one-to-one. He has stated that he would be anxious to go out on his own, and prefers to be accompanied by staff. On occasion he has to be reminded about his behaviour when out, as he might stare and pull faces at strangers. He has been encouraged to do some tasks independently, such as emptying the bins outside, but he has stated that he was too anxious to do it by himself and so he is accompanied when doing this.”

 

That does seem, from Cheshire West, to be deprivation of liberty, and indeed Keehan J found it to be so, and all parties accepted that those circumstances did amount to a deprivation of liberty following Cheshire West.

In the ultimate analysis counsel for the Trust and counsel for the local authority accepted that the circumstances in which D was accommodated amounted to a deprivation of liberty subject to the issue of consent to the placement.

On the facts of this case I am wholly satisfied that D lives in conditions which amount to a deprivation of his liberty. He is under constant supervision and control. The fact that D enjoys residing in the unit in Hospital B, that he is comfortable there and readily seeks out and engages with members of staff are irrelevant factors when considering whether there is a deprivation of liberty. So too are the facts that the arrangements have been made in his welfare best interests and have been, and are, to his benefit. A gilded cage is still a cage.

 

The issue then, was whether the parents could consent to D’s liberty being deprived in this way.

  1. Mr Cowen, on behalf of the local authority sought to contend that:

    i) Cheshire West did not apply to those cases where the young person concerned was under the age of 16 years;

    ii) in such a case the decision in Cheshire West, that the disability or mental disorder of the young person concerned was irrelevant to the question of whether there was a deprivation of liberty, did not apply; and

    iii) the court should prefer and apply the ‘relative normality’ test propounded by the Court of Appeal in P and Q.

  2. I do not accept any of those propositions. The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but ‘the starting point should be the same as that for everyone else’, per Baroness Hale: Cheshire West at paragraph 45.
  3. The majority in Cheshire West decided that what it means to be deprived of liberty is the same for everyone, whether or not they have a physical or mental disability: per Baroness Hale in Cheshire West at paragraph 46.
  4. I accept the essential ratio of Cheshire West does not apply to the circumstances of this case. Nevertheless, in my view, the acid test definitions of a deprivation of liberty apply as much to D as they did to the subjects of the appeals in Cheshire West.
  5. In the premises I do not accept the local authority’s third submission that I should reject the approach of the Supreme Court in Cheshire West and apply the Court of Appeal’s test of ‘relative normality’. I do not understand the logic of the submission that I should hold that the decision of the Supreme Court does not apply to the facts of this case but then resurrect and apply the test propounded by the Court of Appeal which was expressly rejected by the majority of the Supreme Court.
  6. The essential issue in this case is whether D’s parents can, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (ie the 2nd limb in Cheshire West is not satisfied).

 

That’s quite dense, so I’ll walk you through it. The argument was that Cheshire West, being a Mental Capacity Act case, doesn’t strictly apply to minors. The Judge said that this was right, but that the Supreme Court’s acid test as to what sort of restrictions amounted to a deprivation of liberty DID apply also to children, and that the Local Authority’s argument that the restrictions in place for D were the sort of restrictions that a child like D would have (relative normality) was exactly the decision reached by the Court of Appeal in Cheshire West that had been rejected.

When considering whether D’s liberty had been deprived, his physical or mental disabilities were not a relevant factor  – they might well be relevant when later considering whether those restrictions were the right thing for him but not at the stage of considering whether they amounted to a deprivation of liberty.

The argument that children like D need these restrictions, so they aren’t a deprivation of liberty in the way that they would be for a child who didn’t have D’s issues was completely rejected by the High Court.

The sole issue was whether the parents could exercise parental responsibility to CONSENT to those restrictions, thus making the deprivation of liberty one that was effectively consented to, and thus not a breach of Article 5.  IF the parents could consent, then there would not NEED to be a court order or declaration to justify the article 5 breach, since the restrictions would be by consent and the breach would fall away.

 

Mr McKendrick for the Trust set out the arguments for why the Trust considered that the parents could NOT consent.  (I have to confess that in reading this, much as I want the LA to win this argument and so much rides on it, I was thinking that Mr McKendrick’s points were right)

48. Mr McKendrick reminds me that Dr K does not consider D to be Gillick competent to consent to his residence, treatment or care. He referred me to the provision of the new MHA Code of Practice which comes into effect on 1 April 2015. Paragraphs 19.47 – 19.48 provide:

      1. 19.47 An additional and significant factor when considering whether the proposed intervention in relation to a child or young person is a restriction of liberty or amounts to a deprivation of liberty is the role of parental control and supervision. Practitioners will need to determine whether the care regime for, and restrictions placed on, the child or young person accord with the degree of parenting control and supervision that would be expected for a child or young person of that age. For example, whereas it is usual for a child of under 12 years not to be allowed out unaccompanied without their parent’s permission, this would not usually be an acceptable restriction on a 17 year old. Account also needs to be taken of the particular experience of the child or young person. For example, a younger child who has been caring for their parent, including shopping for the household and/or accompanying their parent to medical appointments, might not be used to being prevented from going out unaccompanied.
      1. 19.48 Prior to the Supreme Court’s judgment in Cheshire West, case law had established that persons with parental responsibility cannot authorise a deprivation of liberty. Cheshire West clarified the elements establishing a deprivation of liberty, but did not expressly decide whether a person with parental responsibility could, and if so in what circumstances, consent to restrictions that would, without their consent, amount to a deprivation of liberty. In determining whether a person with parental responsibility can consent to the arrangements which would, without their consent, amount to a deprivation of liberty, practitioners will need to consider and apply developments in case law following Cheshire West. In determining the limits of parental responsibility, decision-makers must carefully consider and balance: (i) the child’s right to liberty under article 5, which should be informed by article 37 of the UNCRC, (ii) the parent’s right to respect for the right to family life under article 8, which includes the concept of parental responsibility for the care and custody of minor children, and (iii) the child’s right to autonomy which is also protected under article 8. Decision makers should seek their own legal advice in respect of cases before them. (Chapter 26 provides guidance on the use of restrictive interventions.)
  1. The Trust submitted that D’s parents cannot consent to a deprivation of his liberty in Hospital B for 11 reasons: i) D has the same Article 5 ECHR rights as an adult and the same definition of deprivation of liberty applies to him as it does to adults;

    ii) D has a mental disorder, he is deprived of his liberty pursuant to Article 5 (1) (e) – see Cheshire at paragraph 6, per Baroness Hale: “Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL”;

    iii) D has been resident on a locked psychiatric ward for fifteen months;

    iv) D can only leave that ward with adult 1:1 supervision;

    v) whilst his parents consented to his placement, such consent much be seen in the context they could not accommodate him at their home;

    vi) he does not lead a life of relative normalcy;

    vii) D is fifteen and shortly will be afforded the protection of the MCA to authorise and review any deprivation of liberty occasioned by being deprived of his liberty at Hospital B (by way of application of s. 4A MCA, given Schedule A1 would not apply to him until he is 18);

    viii) to rely (effectively solely) on parental consent, when D’s parents cannot accommodate and care for him (and have no or other limited options for their son) is an insufficient safeguard to protect D’s Article 5 ECHR rights;

    ix) parental consent over a period of fifteen months, as means of review and safeguard, is not compliant with Article 5 (4);

    x) it is out with the reasonable zone of parental control to authorise the deprivation of liberty for such a prolonged period of time and is inconsistent with a child’s Article 5 ECHR right;

    xi) hospital clinicians remain uneasy about caring for and depriving a child of his liberty, given the length of time and given his age, with only authority provided by way of parental consent.

  2. The Trust concludes its submissions as follows:

    The applicant recognises there may be cases where parents can authorise the deprivation of liberty of a younger child for a shorter period of time, in a hospital setting. The applicants are not certain the concession approved by the court in RK is correct. Indeed it seems clear parents can authorise the first stage of the deprivation of liberty test (i.e. they can deprive, rather than just restrict, the liberty of their children, at home) but that such deprivation is not an Article 5 deprivation of liberty, because it is not attributable to the state. Each case ultimately must be considered on its facts (however unpalatable such an approach may be in respect of public resource considerations).

    Whilst the applicant (in many ways) would gratefully submit that D is not deprived of his liberty, it does not consider it is appropriate for a public body to interpret the law in a manner disadvantageous to the protection of a vulnerable child’s rights. Whilst the applicant would readily adopt a “pragmatic approach” as identified by Gross LK in RK, the applicant submits the preferred conclusion, on the facts of these proceedings, is that D is deprived of his liberty, such deprivation is attributable to the state and his parents cannot provide valid consent.

 

Powerful stuff.

Here comes the decision.

  1. When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
  2. An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.
  3. The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
  4. The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.
  5. I acknowledge that D is not now cared for at home nor ‘in a home setting’. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise?
  6. Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in D’s best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents’ role to make informed decisions about their son’s care and living arrangements?
  7. I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in D’s life or that of his family.
  8. I accept the position might well be very different if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter.
  9. The position could not be more different here. D’s parents have regular phone calls with him. They regularly visit him at the unit. Every weekend D has supported visits to the family home. He greatly enjoys spending time at home with his parents and his younger brother.
  10. In my judgment, on the facts of this case, it would be wholly disproportionate, and fly in the face of common sense, to rule that the decision of the parents to place D at Hospital B was not well within the zone of parental responsibility. Conclusions
  11. I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents’ consent to his placement there.
  12. I am satisfied that, on the particular facts of this case, the consent of D’s parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the ‘zone of parental responsibility’. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement.

 

So whilst for D, a gilded cage is still a cage and one doesn’t take into account his disabilities, whether or not his parents are able to consent to him being in that cage is a decision that CAN take into account his disabilities.