Tag Archives: keehan j

Adoption rates in freefall

Posted on May 15, 2015 by suesspiciousminds

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)

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.

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.

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?

11 Comments

Posted in adoption, case law and tagged adoption case law, adoption statistics, his honour judge dodds, independent, keehan j, northamptonshire and ds 2014, Re B, re b-S, re r, the independent, the president. Bookmark the permalink.

Gilded cage – junior edition

Posted on April 1, 2015 by suesspiciousminds

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.

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.”
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’.
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.
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.

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.
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.
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.
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.
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.
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 2^nd 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:

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.)

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.
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.

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.
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.
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.
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.
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?
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?
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.
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.
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.
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
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.
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.

Comments Off on Gilded cage – junior edition

Posted in case law and tagged can a parent consent to deprivation of liberty?, cheshire west, deprivation of liberty, disabled child, DoLS, gilded cage is still a cage, inherent jurisdiction, keehan j, re d a child deprivation of liberty 2015. Bookmark the permalink.

Unfortunate and woeful – Local Authority failings

Posted on February 3, 2015 by suesspiciousminds

This is a High Court case in which the Judge (Keehan J) was very (and rightly) critical of the Local Authority, including criticism that when they were asked for explanations of their conduct prior to and during the proceedings those explanations were not satisfactory and amounted to not much more than attempts to defend the indefensible.

Northamptonshire and DS 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html

The case ended with a child, DS, being placed with his maternal grandparents in Latvia.

It began, as cock-ups so often do, with a section 20 agreement. There were some legitimate concerns that DS would be at risk in the care of his mother and his mother was asked to agree to place him in ‘voluntary’ foster care. This happened when he was 15 days old.

The Local Authority did not properly think about care proceedings until five months later, and even worse than that, having decided that care proceedings were the right thing to do, did not then issue them until five months after that.

The care proceedings were plagued by delay, most if not all being ascribed to the Local Authority, ending up with a child spending nearly two years in foster care when there were grandparents who were eventually able to care for him.

The Guardian and mother issued claims for Human Rights damages on behalf of the child, and the LA by the time of the final hearing were accepting that they had violated the child’s human rights in all of these human rights claims:-

(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

(b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights. *

(c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights.

(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights.

(e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights.

(f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.

*you don’t often hear of article 13 rights, but it was a good call in this case:-

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

There wasn’t an effective remedy until the LA issued the care proceedings that should have begun in February at worst, but instead started in November.

A package amounting to £17,000 was agreed by the Local Authority and approved by the Court.

Looking at some of the particular criticisms made by the Court:-

Inexperience of the worker and delay in issuing

I cannot begin to understand why an inexperienced social worker who was not familiar with care proceedings was allocated as a social worker for a 15 day old baby. I do not understand why it took until August to provide her with support or why senior managers did not intervene in this case. It is wholly inexcusable for a local authority to take three months to decide to issue care proceedings in respect of a very young baby and then a further five months to issue care proceedings. The fact that the parents are Latvian and that close family members lived abroad, provides no explanation less still an excuse for the extraordinary delay in this case.

The changes in social worker

I appreciate that social services’ departments have difficulties recruiting and retaining social workers but it is deeply worrying that over the course of these proceedings DS has been allocated no less than eight different social workers. It is evident to me that neither the social workers, nor the senior managers at Northampton Children’s Services Department had DS’s welfare best interests at the forefront of their minds. Worse still they did nothing to promote them. Their chaotic approach to this young baby’s care and future life was dismal.

The section 20 agreement

The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.

Whether the s20 ‘consent’ was really meaningful consent

On 30 January the local authority concluded that DS was at risk of harm in the care of his mother and secured her agreement to him being placed with foster carers. I question how effective that consent was when it was sought without the mother having the benefit of an interpreter.

And overall

The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.

None of this is good. It is, in fact, deeply bad.

Critics of the family justice system, and there are many, are entitled to point to a case like this and say that this is what goes on. The parents in this case, and the child in this case, were badly let down by professionals and there were systemic failures to put things right.

It is only a small crumb of comfort that this was a case in which the Judge dealing with it was prepared to be tenacious and forensic about those failures, with a view to preventing them happening to other unfortunate families.

As the Judge says at the end

I trust that the events of the first 23 months of DS’s life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so.

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Posted in case law and tagged compensation, criticism of section 20, delay, human rights, inexperienced social worker, keehan j, local authority failings, northamptonshire and ds 2014, section 20. Bookmark the permalink.

Defying the Court of Protection – is there such a thing as committal in Court of Protection?

Posted on February 2, 2015 by suesspiciousminds

MSAM v MMAM 2015 is a Court of Protection case tackling something for the first time.

In this case

http://www.bailii.org/ew/cases/EWCOP/2015/3.html

Mrs MMAM is 76. Her health deteriorated and she was living in parlous conditions at home. Following assessments, it was felt that she lacked capacity to make decisions for herself and was unable to remain in her own home.

The Court of Protection considered the case and made the following declarations on 20^th February 2014 :-

“It is hereby declared pursuant to S.48 of the Mental Capacity Act 2005 that: it is lawful and in the First Respondents best interest to continue to reside and receive care at X residential home and any deprivation of her liberty occasioned by residing there is approved by the Court pursuant to S.4 A16 of the Mental Capacity Act 2005.”

On 1^st April 2014, MMAM’s grandson attended the X residential home and removed her from that home, the manager of the home believing that he had no legal authority to prevent this.

It is important to note that she was then removed to Saudi Arabia, and also important to note that MMAM’s son (MSAM) had been a party to the Court of Protection proceedings and had not been challenging the plan at that hearing.

On the 1st April 2014 Mrs MMAM left the jurisdiction. I have been told she is currently residing in Saudi Arabia. On the morning 1st April the Second Respondent (Grandson) took Mrs MMAM from the X road residential home. He did so with the compliance of the manager who believed that he had no legal basis to prevent such a course. He was apparently told that Mrs MMAM was going with her grandson to the Saudi Arabian Embassy. She was taken there and her travel documents were provided which appeared to have enabled her to be booked on the very next available flight from London to Jeddah which left that evening. The grandson purports to outline the events of that day in his statement dated the 13th May. I say without hesitation that I found his account to be self serving and disingenuous. The description of what is said to be Mrs MMAM’s behaviour on that day bears absolutely no relationship to anything I have read about her in any other document. At paragraph 8 the grandson states

“We took a taxi to the Embassy arriving just before 10am, my grandmother, without entering security, had found the way to the meeting ahead of me. Once I had introduced her, I left her to discuss her affairs as I had understood from my father I should not participate in discussing the case with officials and her in any detail. A few hours went by, I was summoned and asked to accompany my grandmother to a place where food was given to her and then we were taken to a rest facility. Little later someone from the embassy came to take her and I was told to return home and that they would contact me as required.”

If that was indeed in any way accurate and Mrs MMAM had been left on her own at the Embassy, in my view, she would have been, on the basis of everything I have read, confused and probably rather frightened. The statement is entirely unconvincing. In the paragraphs that follow any aspiration to credibility is lost, if not abandoned.

“That night the manager from X road called me regarding my grandmother, I said she must still be with the embassy staff if she wasn’t back at X road. Someone from the Local Authority also contacted me, he asked me whether I felt she was safe or not? I told them I believe she was and would contact them if I heard anything. I then received a call to let me know that my grandmother was safe, ‘not to worry’ and I relayed the message to staff…. the next day I heard news that my grandmother was in Saudi Arabia.”

Later he states:

“The manner and speed of her repatriation has taken me by surprise. I do not want to speculate on the matter but I’m aware the situation has pleased my grandmother and family. Perhaps with the benefit of hindsight, the time constrained medical condition made the embassy action inevitable; though I do not believe any of the people aware of my grandmother’s appointment with the embassy expected it and I certainly did not.

‘I would like to thank the court for its measured consideration and on behalf of both myself and my grandmother I want to express our gratitude to Judge Batton, the staff of X Road and the doctors. I am eternally grateful to found, in all of them, definitely the living personification of the oath undertaken by each of them.”

The picture presented is a complete fabrication. This old, sick, largely incapacitous lady further burdened by an ‘abnormal belief system’ would simply not have been able to function effectively or autonomously in the way the grandson asserts. It is clear from the above passages that the grandson was acting entirely on his father’s instructions. That is the dynamic of their relationship which I have observed for myself in the courtroom at previous hearings. The reference to “the time constrained medical condition” sadly relates to the fact that Mrs MMAM is suffering from metastasised bowel cancer. The statement requires recasting in reality. Mr MASM and his son have plainly colluded to defeat the declaration made by this court. Mr MASM has done so notwithstanding that he acquiesced to the declaration made and drafted in the terms that it was. He was the applicant in this litigation. In my judgement he has acted with cynical disregard to the objectives of this process and, in the light of the declarations drawn, it must follow that his actions are entirely inconsistent with the best interests of this vulnerable and incapacitous woman, who is of course his own mother. The reasons for this planned deception are not immediately clear, but I draw from this history and from the actions of these two men that their motivation is likely family’s financial self-interest. It seems to me that if Mr MASM had genuinely believed that his mother’s interest did not lie in her remaining in the residential unit for the reasons Dr Arnold said then he had every opportunity to put those conclusions to the assay by cross examination. He chose not to do so despite being represented by counsel.

The legal question then arose :-

Was this action a breach of the Court of Protection’s declaration and authorisation of Deprivation of Liberty?
And if so, what are the sanctions for such a breach

Within the law relating to children, these sort of actions have been going on for a long time, and it is settled law that a breach of a Court order can lead to an application for committal for contempt of court, and to imprisonment if the breach can be proved to the criminal standard of proof. But this is new to Court of Protection cases.

Though this case raises important issues of law and practice it must be emphasised that conduct of the kind seen here is rare, indeed in my experience it is unprecedented. Many of the litigants who come before the Court of Protection are at a time of acute distress in their lives, as a cursory glance at the case law of this still fledgling court will show. The issues could not be more challenging, not infrequently they quite literally involve decisions relating to life and death. Inevitably, some litigants do not achieve their objectives neither wholly nor in part but they respect the process. More than once I have observed that the importance to a family of being heard in decisions of this magnitude matters almost as much as the outcome itself. Sometimes the medical and ethical issues raised are such that NHS Trusts seek the authorisation of the court to endorse or reject a particular course of action. The court ultimately gives its conclusion by declaration both in relation to lawfulness and best interests. The terms of these declarations often cannot and indeed should not seek to be too prescriptive.

Keehan J reviewed the powers of the Court of Protection to enforce its orders (and note the criticisms of the LA for its ‘supine’ response)

The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014) All this said the Court of Protection jurisdiction is limited to the promotion of ‘the purposes of’ (my emphasis) the Mental Capacity Act 2005 (MCA) and, it follows, the appropriate order may be, from time to time, to direct the Deputy or some other person to take proceedings of a different kind in another court where the objectives fall outside the remit of the MCA.

Finally, of course, the court may direct penal notices to be attached to any order, warning the person of the consequences of disobedience to the order i.e. that it would be a contempt of court punishable by imprisonment and or a fine (or where relevant sequestration of assets). An application for committal of a person for contempt can be made to any judge of the Court of Protection by issuing an Application Notice stating the grounds of the application supported by affidavit in accordance with practice directions. (COPR 2007 makes additional provisions). In addition to this the court may make an order for committal on its own initiative against a person guilty of contempt of court which may include misbehaviour in the face of the court.

Initially the Local Authority considered that it had been comprehensively thwarted by Mr MASM’s unilateral actions. In a response which I considered to be supine, they advance no opposition to Mr MASM’s application to withdraw the proceedings. I was roundly critical of that reaction. Mrs MMAM had been rescued from squalor and neglect. I have been shown photographs of her previous living conditions. Her grandson, the man who negotiated what he calls her “repatriation” was living in the same house as his grandmother whilst her circumstances had reduced to the parlous conditions that I have described. In addition, Mrs MMAM lacked capacity in relation to medical, welfare and litigation decisions. Moreover she was in addition gravely ill physically. Local Authority’s simply have to absorb the extent of their responsibilities in these challenging cases. Vulnerable adults must be protected every bit as sedulously as vulnerable children. I emphasise that it is the safeguarding obligation that is similar- I do not suggest that vulnerable adults and children should be regarded as the same. Accordingly, I asked the Local Authority, the Official Solicitor and Mr MASM to reflect on the questions identified in paragraph 13 above.

Rather interestingly, both the LA and the family were submitting to the Court that the Court of Protection’s power in terms of making a declaration of best interests was a narrow one, limited to making a declaration of what was in MMAM’s best interests and not to making a prohibitive order.

If the declaration of interests was looked at in that way, the Court had not, and could not, make an order that prohibited the family removing MMAM and thus there was no order that could amount to a contempt of Court or a committal for contempt.

The Official Solicitor took a different view (and placed reliance on amongst others, a case called Long Wellesley, involving wardship and an MP removing his daughter from wardship without permission)

The Official Solicitor distils from these authorities the following propositions, namely that where:

i) an application was issued in the Court of Protection specifically seeking the Court’s permission to remove P from the jurisdiction;

ii) the court was seized of the matter;

iii) the court declared on an interim basis that it is in P’s best interests to live at a certain address within the jurisdiction;

iv) it follows that a party, with knowledge of the application and court’s orders would commit a contempt of court by removing or organising for the removal of P from the jurisdiction without the court’s permission.

It is contended that this amounts to a contempt of court, even when no injunctive order has been made. In essence the argument is:

i) the principles of wardship and parens patriae should apply to the Court of Protection, given the supervisory and protective nature of the Court of Protection’s jurisdiction, and P should be protected as would a ward of court and/or because;

ii) such a person would be deliberately treating the declaratory order of the court as unworthy of notice.

So, the question is :- is a declaration of best interests something that if a person knows of it and thwarts it, a contempt of Court? Or is that only the case if the Court has the power to, and decides to, make an order that is prohibitive in nature and clear on the face of the order what a breach would be and what the consequences of breach might be.

That is, the difference between an order that says:-

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk

And

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk and her son and grandson shall not remove her from that property nor instruct others to do so. [and when sent to her son and grandson, the order also says “you must obey this order. If you do not, you may be sent to prison for contempt of court”]

You don’t often have cases in family law (or Court of Protection) where the litigation about the Spycatcher book is important, but in this one, it was an important part of the judicial reasoning as to what the status of a declaration of best interests was.

[It is a fascinating analysis, but beyond the scope of this piece – if you are interested in the fine detail, the judgment is well worth reading]

Drawing the strands of the case law, the legal framework and the agreed facts together, the following points emerge:-

i) The Court made clear personal welfare decisions on behalf of an incapacitated woman which every party agreed to be in her best interests;

ii) Breach of Court Orders even in the absence of a Penal Notice may nonetheless potentially be a contempt where there is a wanton disregard for the court’s decision;

iii) Some case law also suggests that in the exercise of the parens patriae any action hampering the objectives of the court is an interference with the administration of justice and therefore a criminal contempt see RE B(JA) (an infant) 1965 CH1112 at P1117:

‘any action which tends to hamper the court in carrying out its duty [to protects it’s ward] is an interference with the administration of justice and a criminal contempt’

If that third point applied to vulnerable adults, then a contempt of court could arise in circumstances where a person just hampered or interfered with the best interests decision, rather than in circumstances of the second point (wanton disregard for the Court’s decision)

The Official Solicitor was arguing in relation to that third point that in terms of safeguarding vulnerable adults and safeguarding children, the same principles applied in full. Keehan J was more guarded

Addressing the Official Solicitor’s argument in relation to actions hampering the exercise of the parens patriae I do not consider that the jurisdiction I am exercising here equates seamlessly with the exercise of the parens patriae or wardship jurisdiction in relation to children. Nor do I consider that Munby J intended to go so far in Re SA (supra). Whilst both jurisdictions require there to be a sedulous protection of the vulnerable, there is a paternalistic quality to wardship which does not easily equate to and is perhaps even inconsistent with the protection of the incapacitous adult, in respect of whom capacity will or may vary from day to day or on issue to issue. There is in addition, the obligation to promote a return to capacity wherever possible. The Court of Protection has a protective and supervisory role but wardship goes much further, it invests the judge with ultimate responsibility. The child becomes the judge’s ward. There is no parallel in the Court of Protection and it would be wrong, in my view, to rely on this now dated and limited case law (identified by Mr McKendrick) to permit this Court to reach for a power which is not specifically provided for in the comprehensive legislative framework of the Mental Capacity Act 2005.

The law in relation to children has also moved on from the landscape surveyed by Lord Atkinson in Scott v Scott [1913] AC 417, particularly since the inception of the Children Act 1989, drafted of course, with ECHR compatibility in mind. Lord Atkinson’s description of a ‘paternal and quasi domestic jurisdiction over the person and property of the wards’ has little resonance for practitioners for whom ‘family life’, protected under Article 8 of the ECHR, is evaluated by analysing competing rights and interests, where the autonomy of the child is also afforded great respect. Unsurprisingly and partly in response to the range of these principles the scope and ambit of wardship has reduced very considerably (Section 100 Children Act 1989 repealed Section 7 of the Family Law Reform Act 1969, the route by which the High Court had derived its power to place a ward of court in the care, or under the supervision of a Local Authority). Whilst Mr McKendrick is entirely right to draw this line of authority to my attention, the position in relation to wardship is, to my mind, largely anomalous, predicated as it is on the somewhat artificial premise that the court represents the Sovereign as parens patriae and cannot therefore be resolving contested issues as between the parties in an non adversarial arena (see Arlidge, Eady and Smith on contempt (4 edition) (Para 11-338). Mr McKendrick put much emphasis on the judgment of Munby J in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 84. In particular he referred me to par 84:

“As I have said, the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions.”

It is important to emphasise that Munby J whilst emphasising the similarity of the two jurisdictions ‘for all practical purposes’ also notes the essentially different, indeed unique, nature of the wardship jurisdiction, later in the same paragraph:

“The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult.”

Keehan J decided that ultimately, the third point did not apply to vulnerable adults, and that despite the family’s conduct being entirely inimical to MMAM’s welfare and wellbeing, what was needed for a contempt and a committal remedy in Court of Protection cases was an order drawn in a prohibitive way with a penal notice. Keehan J decided that the Court of Protection had powers under s16 Mental Capacity Act 2005 to make such orders arising from their declaration of best interests

Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual’s welfare. There may, in simple terms, be a ‘second best’ option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard.

Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be ‘defiance’ of a ‘declaration’ nor can there be an ‘enforcement’ of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother’s best interests. The course he took was not a ‘second best’ option but one entirely inimical to his mother’s welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings.

As a result, there was no legal power, from the orders that were in placed, to lodge a committal notice or to commit the family to prison for their actions. All that Keehan J could do was to criticise them for their actions and order that they pay the costs of this hearing (which were probably considerable, given the amount of legal research that was needed – once people get into reading Spycatcher and 1831 cases about dubious MPs http://hansard.millbanksystems.com/lords/1831/jul/19/privilege-case-of-mr-long-wellesley not to mention the entire law of contempt, wardship and penal notices, the costs do mount up)

He also suggested that the LA should probably think very hard about whether it was sensible for the son to remain MMAM’s deputy with powers over her financial affairs.

As for more general guidance

Such guidance as I can give can only be limited:

i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the ‘making of orders’ as well as ‘taking decisions’ in relation to P’s personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so;

ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court;

iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate;

iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable;

v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting (supra).

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Posted in case law, committal, court of protection and tagged breach of a best interest decision, committal, court of protection, declaration of best interests, deprivation of liberty, keehan j, mental capacity act, mmam v msam 2015, msam v mmam 2015, penal notice, power to attach penal notice in Court of Protection, removal by family member from Dols, removal to saudi arabia. Bookmark the permalink.

Child Sexual Exploitation (Birmingham injunction case)

Posted on December 16, 2014 by suesspiciousminds

This case, in which Keehan J made wide-ranging injunctions against a number of men who he was satisfied had been involved in grooming children for nefarious purposes, made the news. I have been waiting for the judgment for the following reasons :-

1. This remedy, if it stands up, is a better approach than placing victims of child sexual exploitation in secure accommodation (locking up the victim)

2. The precise methodology was not in the press reports, particularly in the use of the inherent jurisdiction not only to protect AB, the subject of the application, but all children under 18. Is this lawful, and if so, how?

[On the latter point, the Inestimable Martin Downs has written persuasively over at the UK Human Rights blog

Inherently Uncertain: Is there authority for that? Questions over Birmingham’s Grooming Injunctions

particularly on whether there are difficulties in using the inherent jurisdiction to achieve something for which Parliament has laid down a statutory mechanism for (albeit one with different tests) ]

Birmingham City Council v Riaz and Others 2014

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

Here are the injunctions that Keehan J made (I have italicised the bits that I consider problematic)

From the time this order is served upon X until the date specified in this order X Must Not:

a. contact AB by any means, in person and or through any third person whether by way of face to face contact, telephone (mobile/landline/facetime/skype etc.), text messages, MSM, blackberry, chatrooms, or other social media whether or not such contact is invited in the first instance by AB

b. seek the company or be in the company of AB whether or not invited to do so in the first instance by AB

c. approach AB in any manner, whether in public, on the street or other public areas such as parks, in private addresses open to certain members of the public such as any food outlet, retail outlet, café, public house, bar, hotel, club, nightclub etc, on public transport, in or at any premises associated with a sporting or entertainment activity or in any private residence, whether or not invited to do so in the first instance by AB

d. follow AB in any location public or private

e. approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.

f. pass on details for AB for example name, location, address, telephone numbers at which she can be reached or the names of other persons through whom she can be contacted save as directed by the police or order of the Court.

g. incite, encourage or facilitate the introduction of AB to any other male.

h. incite or encourage any other male to seek any form of contact with AB

i. cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

And is bound by such order until 18^th August 2015.

There isn’t really much doubt that the High Court has power under the inherent jurisdiction to make all of those injunctions about AB, the subject of the application. The issue is, are the bits in italics stretching the inherent jurisdiction too far?

I appreciate that for many readers, their reaction might be the same as mine was initially – they are grown men who shouldn’t be hanging around with teenagers anyway, they should be stopped.

As a matter of morals and ethics, I probably agree. I’m no fan of what these men are said to have done.

Legally speaking though, this is very widely drawn, and is it a proper use of inherent jurisdiction? Long-time readers might know of my disquiet when judges trot out that old saw about the powers of inherent jurisdiction being theoretically limitless.

It is a long and detailed judgment, but the passage that deals with whether there is power to make the order is very short.

The inherent jurisdiction of the High Court “may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits” Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23.
The use of the inherent jurisdiction has been substantially curtailed by the provisions of s100 Children Act 1989. A local authority may not apply for any exercise of the court’s inherent jurisdiction with respect to children without the leave of the court: s100 (3) Children Act 1989.
The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:

1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –

a) orders to restrain publicity;

b) orders to prevent an undesirable association;

c) orders relating to medical treatment;

d) orders to protect abducted children, or children where the case has another substantial foreign element; and

e) orders for the return of children to and from another state.
In Re M and N (Minors) [1990] 1 All ER 205 at 537, Waite LJ said:

“the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages”.
I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

The Court applied the civil standard of proof here – in fact, as is plain from the judgment, the police were unable to seek prosecutions on this case and the criminal standard of proof would not have been made out. It might surprise family lawyers, who think that the civil standard of proof was put to bed with Re B, to know that for other civil proceedings the debate rages on.

For serious allegations, and particularly where the consequences are serious, there is authority – Haggar for one, suggesting that the civil standard of proof approaches the criminal standard.

These men have been named and reported in the Press as predatory paedophiles or at least grooming with that sort of end in mind. And on the balance of probabilities rather than that higher test. Is it the right standard of proof, given the serious consequences that must have had for them?

Readers may be interested in the judgment as it relates to publicising the men, but that’s outside the scope of my interest for today, and others are better placed to write about it.

The “Riaz” route is an option for Local Authorities, and the Judge praised the Local Authority for their hard work and creative thinking. Is it robust? That would probably have to wait for a judgment in a case where the challenge to (a) powers and (b) standard of proof is more vigorously raised.

(Or heaven forbid, a committal application for breach, when the validity of the original order might be tested more fiercely)

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Posted in case law and tagged birmingham city council and riaz 2014, child sexual exploitation, cse, inherent jurisdiction, injunctions under inherent jurisdiction, keehan j, riaz. Bookmark the permalink.

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