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Cringe

 

This judgment is an appeal, where nobody involved comes out of it well.  There were moments when reading it where it was SO awkward that I felt each individual vertebrae try to leave my body so that they could stop dealing with the level of “awkward! warning awkward!” nerve signals that they were sending hither and thither.

Let us begin by saying that I don’t know ANY of the individuals concerned in the case, and I think in the interests of fairness it is best to read this whole thing on the basis that everyone involved on that day was just having one of those bad days and that succession of individual bad days cascaded and collided into a day so bad that it almost reads as though the Court had been the subject of some form of hallucinogenic gas attack.

A v R & Anor 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/521.html

In very broad terms, this was a private law case, in which father was asking for contact with his 13 year old daughter T – with the sadly too familiar backdrop of a long history of Court dispute and litigation.

A psychologist, Mr Clowry, had been instructed to assess the child. The child had decided not to participate in the assessment. It is fair to say that nobody was enamoured of the report prepared (though it is obviously tricky to do a psychological assessment of a child if you don’t get to meet them).

  1. When the final hearing came before the court on 28 November 2017, it did so initially before a District Judge, for reasons I will come to, before latterly being placed before the learned Judge. As noted above, the order of 15 September 2017 made no provision for statements of evidence to be filed and served for the final hearing on 28 November 2017, nor for the filing and serving of a final report from the Children’s Guardian. In the circumstances, on 28 November 2017, the court was without up to date sworn evidence from the parents or a report from the Children’s Guardian on the issues that fell to be considered at the final hearing. For the reasons I have already set out, the expert report that had been produced the evening before the final hearing to inform the same was deficient by reference to the terms of the letter of instruction.
  2. At the hearing the Mother and the Children’s Guardian argued that the proceedings should be concluded. Both sought an outcome that provided for no order to be made with respect to the time the father spent with T. The Guardian’s Position Statement also urged the court to make an order pursuant to s 91(14) of the Children Act 1989 in respect of the father for a period of 12 months. However, no application had been issued. The father sought permission to instruct a replacement expert or an adjournment of the final hearing to permit him time to make a properly constituted application under FPR 2010 Part 25 for permission to instruct a replacement, with a view to him pursuing his argument for a far greater level of contact at an adjourned final hearing. In any event, the father sought a final child arrangements order that provided for a much greater level of time spent with T than was then taking place. The final hearing was, therefore, contested.
  3. Within this context, the learned judge proceeded, following submissions by counsel initially in front of the District Judge and then before the learned Judge, and contrary to the arguments of the father, to refuse the father’s application for permission to instruct a replacement expert or for an adjournment to allow the preparation of such an application. Further, and contrary to the varied positions of the mother, the father and of the child, the learned Judge proceeded to make a final child arrangements order. The final order made by the learned Judge in respect of the time the father would spend with T reflected the level of contact that was then said to be taking place. Accordingly, the order provided for the father to spend time with T for at least 2 hours once per month, with an additional 2-hour periods during the holidays, together with indirect contact.

 

Those of you who go to Court will be aware that the proceedings are tape recorded. Sometimes if the case is appealed, a transcript of the tape recording is made for the appeal Court. That’s what happened here, so these exchanges are exactly what was said in Court.  Prepare to cringe, and also prepare to have anxiety nightmares over the next few days of everything you’ve ever said in Court.

 

Make it stop, make it stop Prince Adam

 

  1. As I have noted, the final hearing on 28 November 2017 did not initially commence in front of the learned judge on 28 November 2017, but rather in front of District Judge Abigail Smith. The reason for this appears to have been that, whilst the learned Judge had reserved the matter to himself, he was very heavily listed on the day in question and the matter had therefore been placed in District Judge Smith’s list. The matter remained before the District Judge for approximately half an hour. During that time the parties made substantive submissions on the adequacy of Mr Clowry’s report and the proper course of action in respect of the report. The District Judge having expressed “severe concerns” regarding the report of Mr Clowry, counsel for the father, Ms Sarah Cooper, proceeded to make submissions in support of the continued need for expert evidence, a course opposed on behalf of the mother by Mr Persson and on behalf of T by Ms Topping.
  2. It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other. Ms Cooper’s submissions on the fate of Mr Clowry’s report were interrupted by Mr Persson, without demur from the District Judge. Mr Persson was in turn interrupted by Ms Topping, again without judicial demur. Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.
  3. The learned Judge agreed to take the matter and proceeded to hear the case, which had been given a three-hour time estimate, at 2.20pm. As I have noted, in summary the father’s first ground of appeal includes the complaint that the learned Judge had not properly prepared for the hearing. The father also complained before me that the Judge appeared, from his initial comments, to have reached a settled judgment from the outset. The opening statements of the learned Judge, who had had long involvement with this case, form the basis of the father’s contentions in this regard:
    1. His Honour Judge Scarratt: Yes well, I’m sorry you’ve had a bit of wait. The fact of the matter was this morning I had a one-day case with five applications and this three-hour hearing.

Miss Cooper: Yes.

His Honour Judge Scarratt: And so District Judge Abigail Smith’s diary emptied yesterday and I’m afraid this happens. Cases are moved about. Not ideal but as it happens I have finished my five applications and given judgment so I’m, I’m now free to deal this but you’ve really got limited time because I have to be at a meeting at 4 o’clock. I’ve got bundles here, I’ve not looked at them –

Ms Cooper: Yes.

His Honour Judge Scarratt: I mean I’m just going to go on what I know about the case and well I gather Brendan Clowry’s report was a nonsense so Judge Abigail Smith tells me.

Miss Cooper: Certainly the District Judge was not impressed.

His Honour Judge Scarratt: Yes, well I, I’ve, I have looked at that, eating my sandwich at lunch.

Miss Cooper: Yes.

His Honour Judge Scarratt: He’s gone completely off piste.

Miss Cooper: Well it, it is right to say –

His Honour Judge Scarratt: Well he’s gone off piste.

Miss Cooper: Yes.

His Honour Judge Scarratt: I’m putting it to one side and I doubt whether he’ll get paid.

Miss Cooper: Yes, well no doubt —

His Honour Judge Scarratt: So where are we now, that being the case.

Miss Cooper: You Honour, we are at the following bit of the case. What he had done was he had interviewed my client and my client and the mother had paid him quite a lot of money. The mother, I don’t know if you’ve seen, I did a further very short position statement, could I just briefly hand that up because I did it last night once the report had come —

His Honour Judge Scarratt: I mean at the end of the day your client’s got to accept that [T] has had enough. There’s a very poignant note to Mr Gaye, a very experienced Guardian, and last, I don’t think you were here last time.

Miss Cooper: No, I wasn’t your honour.

His Honour Judge Scarratt: No. Well can I tell you and this is the benefit of having me, judicial continuity.

Miss Cooper: Yes.

His Honour Judge Scarratt: That really last time, the application made by the Guardian being repeated today was made last time, but I felt your client should have a chance and that Clowry, who has now thoroughly blotted his copy book, I shan’t be having him again in these Courts, your, and, and I gave the chance for this to happen, but it’s not happened but, but at the end of the day I’ve got a 13 and a half year old girl there who’s saying actually, let’s have the contact, let’s have the drinks and the teas and the lunches or whatever, which have gone on. This is not a case where there’s no contact. So I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents. Does he agree that?

Miss Cooper: No, Your Honour.

His Honour Judge Scarratt: Well, I’m not having a final hearing with this little girl dragged in now. Have you read the letter from her?”

  1. Following this opening exchange, the learned Judge went on to conduct a hearing over the course of the next hour and a half. As I have noted, in his first ground of appeal, the father also contends that during this hearing the learned Judge proceeded to make final orders without any proper consideration of the arguments being advanced by the parties with respect to that issue. Within this context, the father also complains before me in support of his grounds of appeal that the hearing descended into what the father termed a “shouting match“. The genesis of these complaints by the father is apparent from the transcript.

 

Part of the father’s appeal was that the Judge was unprepared for the hearing. Given that he was only doing it because the hearing before the DJ had gone so wrong that it was moved to a different Judge on the same day, it wouldn’t be surprising if the Judge was unprepared.  Nor, given that he candidly says that he hasn’t read the bundle and has read the expert report ‘over a sandwich’ reaching a conclusion that it was ‘nonsense’  would it be surprising for the Appeal Court to agree that the Judge was unprepared.

The conclusion of the Appeal Court is, perhaps, surprising though.

 

  1. I am not satisfied that the father has made out his complaint that the learned judge had not prepared adequately to deal with the matter on 28 November 2017, nor am I satisfied that the father has made out his complaint that the learned Judge pre-judged the matter.
  2. As is clear from passages quoted above, it can perhaps be seen why the father, as a lay person, drew these conclusions from the statements made by the learned Judge at the outset of the hearing. However, with respect to the issue of preparation, whilst the learned Judge indicated he had not looked at the bundles, he had long experience of this matter, having dealt with it on numerous occasions previously. He was therefore well versed in the key issues before the court. Whilst the learned Judge’s announcement that he had read Mr Clowry’s expert report over his sandwich at lunchtime may suggest to a lay party a certain informality of approach, the need for judges to work through lunch in order to get through the work in their extremely heavy lists is the modern reality for judges up and down the country. Within this context, the fact that the learned Judge combined eating and reading is not an indication of a lack of diligence or preparation. Rather, it is quite the opposite. The learned Judge worked assiduously through his lunch break to ensure he had considered the material relevant to the hearing he was about to conduct.
  3. In relation to the father’s complaint that the learned judge had pre-judged the matter, the learned Judge did say at the outset that “I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents“. After asking Ms Cooper whether the father agreed with this analysis, and being told he did not, the learned Judge did respond, “Well, I’m not having a final hearing with this little girl dragged in now“. It is clear from the transcript that the learned Judge also continued, throughout the hearing, to press the then current contact regime as the appropriate outcome.
  4. Within this context, it is the case that the learned Judge expressed himself in robust terms early on during the hearing and I can understand why the father raises this issue before me. However, I also bear in mind that the matter was listed on 28 November 2017 for a final hearing rather than a preliminary case management hearing, at which final hearing the learned Judge was required to adopt an essentially inquisitorial role in pursuance of his duty to further the welfare of the child as his paramount consideration. Within this context, at least on one reading, the learned Judge was simply exploring at the outset of the final hearing the extent of the issues between the parties at the final hearing and inviting the father to consider a reasonable view on the information available to the court. Finally, as Mr Persson points out, upon being told that the matter was contested by the father, the learned Judge did go on to conduct a hearing and to listen to certain submissions from the parties.
  5. In the foregoing circumstances, I am satisfied that it cannot be said that the learned Judge failed to properly prepare himself to conduct the hearing. I am also satisfied that, whilst perhaps falling somewhat closer to the line marking the boundary between a robust, inquisitorial approach and premature adjudication (to adopt the phrase utilised by McFarlane LJ in Re Q) than is often the case, within the context of the case being listed for final hearing, the learned Judge was not guilty of pre-judging matters.

 

And yes, I did contemplate “premature adjudication” as the title of this post, but there’s no way I’m typing THAT into Google Images.

 

The Guardian also gets a rebuke (which might ordinarily be stinging, but in the face of everything else going on in the case is mild) for promising the child that the next hearing would be the last one, which was of course outside of her control and a promise which should not have been made.

 

  1. The email from the Children’s Guardian of 4 October 2017 is, in many respects, carefully drafted. It is of concern however, that the Children’s Guardian also informed T in that email that the learned Judge had “promised” that the proceedings would end on the next occasion. This is not an accurate reflection of what the learned Judge had said and, in any event, is not a promise he could have made, not least having regard to the right of a party to appeal. The email from T of 1 October 2017 appears to have been disclosed to the father’s legal team some time after it was sent, even though it was plainly relevant to the question of expert evidence.

 

MacDonald J is critical of some drafting, in the order authorising the instruction of an expert – where the wording is reminiscent of ‘mission statements’  in that nobody could ever actually believe in or support the opposite

 

  1. The letter of instruction to Mr Clowry is contained in the appeal bundle before me, dated 18 September 2017, which letter provides as follows with respect to the instructions to Mr Clowry:
    1. “Pursuant to the order of His Honour Judge Scarratt dated 15 September 2017, you are instructed to meet with the parties and the child, as set out in your letter dated 25 August, to prepare a report setting out a robust, clinically legitimate and reputable plan of clinical work for the sound and lasting advancing of contact between T and her father.”
  2. Leaving aside the rather peculiar terms in which the instruction is couched (parties to proceedings would hardly wish a report that was not robust, clinically legitimate and reputable), the term “Pursuant to the order of His Honour Judge Scarratt” at the beginning of the instructions to Mr Clowry is a potential cause of confusion. Whilst the letter of instruction limits the instructions to Mr Clowry to the preparation of a “robust, clinically legitimate and reputable plan of clinical work”, the permission given in the order of the learned Judge is in somewhat wider terms, namely “to prepare a report in respect of the time that T should spend with her father.”

 

 

Now the expert.   We remember that the Judge had said he’d gone off piste and his report was nonsense… well, he had been asked to attend, so the Judge got him in.  Oh God, this is hard reading.

 

  1. in the context of the District Judge having expressed “severe concerns” regarding the report of Mr Clowry, and the learned Judge having stated that his report was “nonsense“, that Mr Clowry had “gone off piste“, that he had “thoroughly blotted his copy book” and that the learned Judge would be putting the report aside, and despite strenuous objection from Ms Topping, the learned Judge decided to hear from Mr Clowry, who was invited into the courtroom. His opening gambit to Mr Clowry was as follows:
    1. His Honour Judge Scarratt: Afternoon. Just, just come and sit there for a moment will you. Everyone is thoroughly disappointed with this work you’ve done. When I say everyone, I mean everyone. It not what we asked for at all.”
  2. Notwithstanding the views expressed by the learned Judge during the course of the hearing, and his level disappointment stated directly to Mr Clowry, the learned Judge then proceeded to enquire of Mr Clowry when the work he had been instructed to undertake could be completed if his instruction was continued. Mr Clowry having stated his work would not be possible if T would not agree to see him, the learned Judge also put to Mr Clowry that forcing T to see a psychologist would not work, in respect of which Mr Clowry responded as follows:
    1. Mr Clowry: Well, with respect to the language I think if that were the attitude and the way in which it was manage, forcing putting great pressure on a child but I think encouraging a child would not, might be productive.

His Honour Judge Scarratt: Well to be fair that’s exactly what the Guardian has done in a response, in a, in an email response. He has encouraged her, really, really encouraged her to go.

Mr Clowry: But, I would tend to see situations like that Your Honour not in terms of black and white. Sometimes in a preliminary meeting a child who has never seen psychologist or social worker might, perhaps if I saw the child with the mother, feel then on the basis of evidence having met the person reasonably inclined to continue. If the child is caught up in a very powerful adversarial situation there’s a high probability the child is going to reflect certain of the adult attitudes and opinions. If the child were enabled to meet the psychologist whether it be me or anybody else the child might then be prepared to reconsider. I don’t know, I don’t know the child.

His Honour Judge Scarratt: So you could, you could have a plan of work available by the end of next week could you?

Mr Clowry: Yes, indeed.

His Honour Judge Scarratt: Provided the mother and [T] saw you in the week?

Mr Clowry: Yes indeed Your Honour”

  1. Whilst having heard from Mr Clowry the learned Judge told him that he was “released”, this appears to be a term of art as there is no indication that Mr Clowry was sworn, and no party was permitted to cross examine him. The status of the information Mr Clowry provided to the court is, accordingly, unclear. He did not give evidence and his report was, by common acclaim, considered deficient by all parties. However, at one point during the hearing, and despite the criticisms levelled at the report of Mr Clowry by the Children’s Guardian, Ms Topping was permitted to rely in her submissions on that self-same report as evidence that the father had not reflected on his behaviours, whilst almost in the same breath stating the report was deficient and could not be relied on.
  2. Within this context, it is also unclear what status the learned Judge attached to the report, and to the contribution of Mr Clowry at the hearing when considering his decisions with respect to the instruction of a further expert and with respect to whether to conclude the proceedings. However, immediately before giving judgment the learned Judge said:
    1. His Honour Judge Scarratt: Yes well, I’ll, on the basis no wants to say anything else I’ll, and having now heard from Mr Clowry about what he can and cannot do, I’ll make a decision.”

 

 

MacDonald J, hearing the appeal was very critical of the way counsel had dealt with their submissions. My mental picture is of a Chimps Tea party, where the tea was laced with PCP, re-enacting an episode of Jeremy Kyle, but that may be too harsh.   Like I said earlier, anyone can have a bad day, and this is best chalked off as just being one of those rather than be taken as being representative of how anyone involved generally conducts litigation.

 

  1. During the course of the unstructured and unfocused submissions regarding expert evidence, at times the Judge appeared to be dismissing the question of a further expert out of hand. At other times, the learned Judge appeared to indicate it was an issue he was prepared to decide. The precise ambit of the issue the parties are addressing in respect of expert evidence is only belatedly defined and no party ever got to the point of concluding their submissions on the question of further expert evidence, although Ms Cooper made a valiant effort to conclude organised submissions to the Judge in support of permission for a further expert or a short adjournment to allow the preparation of a properly constituted Part 25 application.

 

  1. At this point, discipline in the hearing appears to have broken down entirely. The father himself begins to make submissions to the learned Judge, Miss Cooper, Mr Persson and Ms Topping continue to make points with little order, structure or focus, and even Mr Gaye enters the arena at one point. All this occurred as the learned Judge continued to propound his view that a final order should be made at the hearing, reflecting the then current level of contact, and sought repeatedly to press the parties to agree to that course of action.
  2. Within the foregoing context, it is of particular note from the transcript that no party was ever able during the hearing to get to the stage of making submissions on the key issue before the court, namely the question of whether, if the court decided to proceed to conclude the proceedings, a final child arrangements order should be made and, if so, the nature and extent of the contact in any final child arrangements order. Whilst counsel were able, up to a point, to make submissions on the question of whether the learned Judge should proceed with the final hearing or adjourn it, the increasingly unstructured nature of the hearing meant that, as conceded by Ms Topping and Mr Persson before me, no party ever reached the stage of making submissions, nor did the learned Judge invite submissions, on what outcome with respect to contact was in T’s best interests if the learned Judge determined, against his initial instinct, that it was right conclude the proceedings then and there. This was the case even though Miss Cooper had made clear on behalf of the father that the matter was contested, and that the father would be seeking more extensive contact in any final order than that then taking place, and even though Ms Topping’s instructions from the Children’s Guardian remained that there should be no order as to contact and an order pursuant to s 91(14) of the Children Act 1989 with respect to the father for a period of 12 months.
  1. In allowing the appeal, it is difficult not to have a good deal of sympathy for the learned Judge. He sought to assist the parties by taking the matter at short notice into an already busy list after the final hearing had already commenced before a different judge. Having done so, the learned Judge tried to further assist the parties by attempting to cut through a protracted dispute between two parents in what, on any estimation, was a long running case involving a young person with her own strongly held views about the way forward.
  2. Within this context, I make one additional observation. As I have already pointed up, the transcript of the hearing demonstrates that the learned Judge was not assisted in his difficult task by the approach of the advocates in this case. Both the transcript of the hearing before the District Judge, and the transcript of the hearing before His Honour Judge Scarratt, record each of the advocates, although counsel for the father a good deal less so, regularly interrupting each other. The net effect of that approach was that, as I have observed, neither judge received properly structured submissions, in the proper order on the points that were in issue between the parties, and no issue was ever fully run to ground. It is quite clear from the transcript why the father chose to describe the hearing as having descended into a “shouting match“.
  3. I am satisfied that this unfortunate situation before the learned Judge materially contributed to the primary reason this appeal has been successful, namely that, before making a final child arrangements order, the learned Judge did not hear submissions on the key issues before the court at the final hearing of the need for a final child arrangements order and the appropriate level of contact between father and daughter if such an order were made.
  4. FPR r 12.21, deals with the order in which a court hears submissions or evidence at a hearing and confers on the court a discretion in that regard. FPR r 12.21 reflects the fact that properly sequenced submissions constitute a vital constituent of a fair hearing. The requirement for submissions to be made in a clearly defined order aims to ensure that each party has a fair opportunity to present their case on the issues that are before the court for determination. A failure by advocates to assist the court in adhering to this requirement is corrosive of that aim. In this case, the reception by the court of properly sequenced submissions was rendered extremely difficult by a concerning tendency on the part of the advocates simply to interrupt each other in an effort to advance their competing submissions. It should go without saying that this mode of advocacy does not assist the court and is to be deprecated.

 

The appeal was allowed, and sent back for rehearing.

 

  1. As I have set out above, the transcript of the hearing makes plain that, notwithstanding that the hearing was contested on the central issue of whether a child arrangements order was appropriate and, if so, what arrangements for contact were in T’s best interests, no party ever got, during the hearing, to the stage of making submissions on those key issues before the court. The increasingly formless and fractious nature of the hearing meant that no party made submissions on the need for an order or the appropriate level of contact before the learned Judge gave his judgment on those central issues, nor did the learned Judge invite such submissions. The substantive submissions made by counsel were limited to the procedural question of whether the learned Judge should deal with the final hearing or adjourn it.
  2. In the circumstances, and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard submissions on the issue of whether to proceed to determine whether to make a final child arrangements order but not on the issue of the merits of a final child arrangements order. Notwithstanding this, in his judgment the learned Judge determined both issues. Accordingly, even if one accepts that the learned Judge was operating within the wide ambit of his procedural discretion in dealing with the final hearing summarily on submissions, he dealt with the matter without hearing submissions on the merits. Even though Ms Cooper had made clear on behalf of the father that the matter was fully contested with respect to child arrangements, and that the father would be seeking more extensive contact in any final order than that then taking place, the father never got to argue that case at the final hearing, whether on submissions or otherwise, before the final order was made.
  3. The consequences of this situation are clear from the learned Judge’s judgment. In examining the judgment delivered by the learned Judge I have, of course, taken into account that it was delivered ex tempore at the end of an extremely busy list and in the context of the considerable burden of other responsibilities that routinely fall to be discharged by a Designated Family Judge at the end of the court day. I note that the learned Judge expressly states in the final paragraph of his judgment that, at “the end of a long and hard day“, he would have wanted to have time to hand down a judgment but that he felt it was important for the parties to know the outcome. One can only have sympathy with that view. Within this context, it is not the job of this court, with the greater time available to it, to undertake an overly fine textual analysis of the learned Judge’s ex tempore judgment.
  4. However, reading the transcript of the hearing and the judgment together, it is clear that the learned Judge was not able to rehearse the father’s substantive arguments on the merits for a greater level of contact in any final order, or indeed the substantive arguments of the Children’s Guardian that there should be no order for contact and an order pursuant to s 91(14) of the Children Act 1989, or the mother’s substantive arguments with respect to the nature and extent of contact moving forward, as he had not heard any of those arguments.
  5. In the foregoing circumstances, I am satisfied that there is force in the father’s complaint that the learned Judge proceeded to make a final child arrangements order without proper consideration of the arguments. Indeed, I am satisfied that, as is clear from the transcript and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard no substantive submissions on the merits of the father’s case, or indeed the case of the mother or the Children’s Guardian before making final orders. Within this context, the learned Judge moved to make a final child arrangements order in a case that remained contested without hearing submissions on the issues at the heart of the case.
  6. I accept that, in line with the judgment of the Court of Appeal in Re C (Family Proceedings: Case Management), a judge is fully entitled to deal summarily with a final hearing in an appropriate case. However, even where the court determines that it is appropriate to deal with the case in this manner, it is equally clear that in doing so, each party must first have a fair opportunity to put their case to the court before the court moves to make final orders. Within this context, even if he or she elects to determine the final hearing summarily following oral submissions, the judge must be careful to ensure, with the assistance of the advocates, that each party has had a fair opportunity to make their respective cases by way of submission on the issues that the court is required, albeit summarily, finally to decide. Issues that may often include, as in this case, whether to make a final order and if so, which order in the best interests of the child. In this case, such an approach was even more important where, as I have noted, the learned Judge did not have the benefit at the final hearing of final witness statements from the parties, nor a final report from the Children’s Guardian, and in circumstances where the expert report that had been considered by the court prior to the final hearing to be necessary to resolve the proceedings justly was deficient having regard to the terms of the letter of instruction.
  7. Within the foregoing context, I am satisfied that the fact that the father, and indeed the other parties, did not have a proper opportunity to put their case to the court by way of submissions on the question of whether a final child arrangements order should be made and if so, what order was in the best interests of the T, before the court moved to make a final child arrangements order, amounted to a serious procedural irregularity. In the circumstances, I am satisfied that the appeal must be allowed on that ground alone.

In which MacDonald J asks the question and answers it in paragraph 1 of the judgment

 

Which is something that I’d like to see more often.

 

The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is ‘no’.

 

In essence, that question arose because the Local Authority had read some of the previous authorities on radicalisation or alleged radicalisation of children to suggest that they ought to be issued as wardship proceedings (which doesn’t get non-means, non-merits legal aid) rather than care proceedings (which do).  That doesn’t feel right, because parents in such cases really do need legal representation.

A scheme so cunning you could put a tail on it and call it a weasel was devised (either nobody invited the LA to simply issue an application for care proceedings so that there would be legal aid for the parents or they did and the LA refused, I don’t know), but anyway an intricate scheme was attempted instead.

As you can see, MacDonald J said no to that.

HB v A Local Authority & Another  (Wardship Costs funding order) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/524.html

 

However, MacDonald J clarified that in his mind, there was no obligation for an LA on a radicalisation case to issue solely in wardship and not in care proceedings.

In the circumstances, I am satisfied that, contrary to the view taken by the local authority, neither Hayden J nor the President have sought to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation.

 

MacDonald J shoots up in the league table of my estimation by also dissecting the much discussed homily that the ‘powers of the inherent jurisdiction/magical sparkle powers are theoretically limitless’

 

I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

 

  • Whilst the inherent jurisdiction is theoretically unlimited, it is, in reality, constrained by proper limits. In London Borough of Redbridge v SA [2015] 3 WLR 1617 Hayden J observed as follows at [36]:

 

“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.”

In R v Central Independent Television Plc [1994] Fam 192 at 207-208 Waite LJ noted:

“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in 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.”

 

  • Within this context, I am satisfied that the limits that are properly imposed on the exercise of the inherent jurisdiction for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages in this case are those that must be applied when considering the nature and extent of the court’s jurisdiction to order a public authority to incur expenditure. As Lord Sumption pointed out in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at [37], courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Imposing the limits that I am satisfied must apply, I regret that I cannot accept the submission of Mr Hale and Mr Barnes that the inherent jurisdiction of this court is wide enough to encompass a power to order a public authority to incur expenditure in order to fund legal representation in wardship proceedings for a parent who does not qualify for legal aid because that parent does not satisfy the criteria for a grant of legal aid laid down by Parliament, notwithstanding the considerable benefits that would accrue to the parent, and to the child, from such funding.

 

 

 

 

 

Now wash your hands

 

The thing that makes family law worthwhile is that every time you think you’ve seen everything, a case comes along and makes you go “nope, not yet.”

This is one of those.

 

 

East Sussex v AG (Finding of Fact) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/536.html

 

This involved an infant, now aged 13 months old, but only a couple of months old when the strange things occurred. He spent time at three different hospitals, and in each of these, he was observed to have very high levels of alcohol in his system – high enough to be potentially life-threatening, and also high levels of anti-histamine.

How did the alcohol get there?

Well, the defence deployed by the parents (chiefly the mother) is that it must have happened through the application of sterilising hand-wash, which contains alcohol. He was in a hospital, parents wanted to make sure he didn’t get any germs, so hand-wash was liberally applied. It must have been that.

 

Mother’s case ended up being that she was rubbing hand-sanitiser into the baby’s arms thirty or forty times per day. That sounds like a hell of a lot – could a baby end up with alcohol levels like these as a result?

Here’s what the expert had to say about it:-

 

  • Whilst considerable time was spent on the validity of Dr McKinnon’s calculations of the amount of alcohol by volume that would be required to cause the levels of alcohol that were found in AG’s system (he having undertaken such calculations in response to being requested to provide an opinion on the likely doses given to AG), the central point made by Dr McKinnon, both in his report and in his oral evidence, is that, absent any evidence to suggest that the analysis of AG’s samples was compromised (and Dr McKinnon was clear that he had no reason to believe that the tests had not been performed satisfactorily), the samples taken from AG showed that he had very high levels of alcohol in his system on three occasions and a level of antihistamine in his system on one occasion.
  • Within this context Dr McKinnon was at pains to emphasise that, with respect to alcohol, the actual readings from the samples taken from AG indicated clearly that AG had been administered significant amounts of alcohol independent of the calculations that attempted to work out the precise doses of alcohol in milligrams required to cause those readings. Dr McKinnon repeatedly emphasised that the alcohol readings obtained from the samples were “extremely” high and, on occasion, the highest he had ever seen, or heard of, in an infant. Indeed, he was aware of no reported cases in which the readings had been higher. Dr McKinnon was clear that this indicated AG had ingested a large amount of alcohol.
  • Dr McKinnon was pressed extensively on the mother’s contention that the explanation for the high levels of alcohol in AG’s system were the result of her alleged use of high levels of hand sanitiser on AG. Accepting that calculations can only be approximate in circumstances where the physiology of individuals varies and the physiology of adult skin is different to that of infant skin, Dr McKinnon was nonetheless very clear that even had the mother used the hand sanitiser at a higher level than she claims, this would still not have been enough to produce the levels of alcohol seen in AG, even assuming a generous level of absorption of alcohol through the skin of an infant of 10% (the level of absorption in adults being between 2.5% and 5%). Within this context, Dr McKinnon also emphasised that the mother states that she used the hand sanitiser over the course of a day and that, accordingly, any alcohol that was absorbed would have begun to be eliminated between applications, further negating the possibility of alcohol from the hand sanitiser accumulating in AG’s blood to the levels seen. Dr McKinnon further stated that for the blood alcohol levels to be caused by AG ingesting hand sanitiser he would have needed to have ingested the equivalent of 44 “squirts” of that substance to reach the highest blood alcohol concentrations seen, ruling out, in his view, accidental ingestion from hands or toys as cause of the levels seen.
  • With respect to the anti-histamine, whilst conceding that anti-histamine can be passed from mother to infant in breast milk, Dr McKinnon noted that the mother had not been breast feeding for a considerable period of time prior to the antihistamine being detected in AG’s system, negating as a possibility that route of administration.

 

 

 

Note the ‘ingested the equivalent of 44 squirts of the hand-sanitiser above” – that’s not had it put on him, that’s ingesting it – swallowing it or such.

 

The Judge considered that possibility very carefully

 

 

  • I am further satisfied that the alcohol and anti-histamine that I have concluded was present in AG’s system and that caused each of the then unexplained episodes was deliberately administered to AG on repeated occasions as opposed to entering his system by way of some species of accidental or inadvertent administration.

 

(i) Hand Sanitiser

 

  • By the conclusion of their oral evidence, both parents appeared to be moving towards accepting that the levels of alcohol found in AG could not have been caused by the application of hand sanitiser to his hands and arms, the father being, ultimately, perhaps more accepting of this than the mother. In any event, I am satisfied that the levels of alcohol found in AG’s system were not caused by the use of hand sanitiser containing alcohol. I have reached this conclusion for two reasons.
  • First, I am not satisfied that the mother is telling the truth in respect of the levels at which she used hand sanitiser on AG whilst he was an in-patient having regard to the following matters:

 

i) The use of hand sanitiser assumed no significance at all in either of the police interviews of the parents conducted immediately after their arrest in May 2016. The mother claims that this was because she was not aware at the time of the interview that the hand sanitiser contained alcohol.ii) The mother’s first statement, directed by the court specifically to address the question of hand sanitiser and dated 14 August 2016, details lower rates of application than those for which the mother now contends, she stating that she first used hand sanitiser on AG on 26 April 2016, using two doses. Specifically, the mother stated “I also put 2 pumps into my hand and wiped it over both of AG’s hands and arms” (my emphasis). She states that she did the same on 28 April 2016. At the Evelina Children’s hospital the mother states that she used hand sanitiser on AG 30 to 40 times per day “at the highest”. Dr McKinnon’s report ruling out the use of hand sanitiser as the cause of the levels of alcohol found in AG is dated 4 November 2016. The mother thereafter filed a second statement dated 25 January 2017 in which she said of her first statement “what I mean is that I used two pumps on the left hand and arm and two pumps on the right hand and arm”, amounting to between 120 and 160 pumps per day. The mother denied that she inflated her account in her second statement to match the emerging medical evidence. However, given the size of the discrepancy between the two descriptions and the fact that the second statement followed the report of Dr McKinnon, I am satisfied that this is evidence of the mother having changed her account of the level of use in response to the conclusions reached by Dr McKinnon.

iii) In circumstances where the mother contends that her use of hand sanitiser on AG continued in the PICU the local authority sought confirmation as to whether members of staff saw the mother use hand sanitiser at the levels she claims whilst AG was on the PICU. By an email dated 25 August 2016, Professor Ian Murdoch, Professor of Paediatric Intensive Care at the Evelina confirmed that medical staff had not witnessed the mother use hand sanitiser on AG. Whilst that confirmation is in the form of an email rather than a statement in the proper form, it is corroborated to an extent by the evidence of the father who stated in his written and oral evidence that he saw the mother use hand sanitiser on only two occasions, stating in cross examination by Mr Bennett that he did not see the mother apply it with the frequency she claimed and did not himself see excessive use. In the circumstances, no person who came regularly into contact with the mother and AG whilst at hospital appears to have seen her using hand sanitiser on AG at the levels she claims.

iv) The clarification contained in her second statement is to the effect that the mother was using high levels of sanitiser from the outset, commencing that use on 26 April 2016. However, this appears to be at odds with a text exchange between the parents in respect of “hand gel” on 28 April 2016. On that date the father texted the mother stating “The reason I told you to use the gel stuff is cos there’s at least four kids in here with pneumonia including rose (sic) in front of us and her mum gave you a cuddle”). The mother replied “Oh ok I’ll make sure I use it a lot then”. In my judgment this exchange is inconsistent with the mother’s evidence to the effect that she was using between 120 and 160 doses a day on AG from 26 April 2016.

 

  • In the circumstances, I am satisfied that the evidence before the court suggests strongly that the mother has sought to construct, after the fact, an account of excessive use of hand sanitiser to seek to explain the high levels of alcohol found in AG’s system. This conclusion is of course also relevant to the question of whether the court can identify who administered alcohol to AG and I deal with this further later in this judgment.
  • Second, and in any event, I accept the expert evidence of Dr McKinnon that even on the revised figures for dosage provided by the mother in her second statement, the level of use suggested by the mother would not result in the levels of alcohol found in AG even if administered all at once and assuming a generous figure for absorption of ten percent to account for an infant’s skin being more porous than the skin of an adult. More importantly, I note again that Dr McKinnon was clear that the manner in which the mother contends she in fact administered the hand sanitiser, namely repeatedly over the course of the day, would not have been able to result in the levels seen because AG would have begun eliminating each dose over time after it was applied, meaning it could not accumulate to the levels seen. On this basis, even assuming a greater absorption than in adults, the use of hand sanitiser at the level contended for by the mother could not result in very high concentrations of alcohol seen. Dr McKinnon was equally clear that the father’s contention that AG might have ingested alcohol by means of hand sanitiser on his (AG’s) hands and toys was not a plausible explanation for the levels of alcohol seen in AG.
  • In the foregoing circumstances, I am satisfied that the high levels of alcohol in AG were not caused by the use of hand sanitiser on him

 

 

 

The Court found that the alcohol and anti-histamine at high levels in the baby’s test results were as a result of him having been administered those substances by one of his parents.

(ii) Human Agency

 

  • There is no evidence before the court of any other accidental or inadvertent mechanism for the administration of alcohol to AG whilst he was an in-patient. There is no suggestion of an organic cause for the levels of alcohol found in AG. In the circumstances, and being satisfied that the levels were not the result of the use of hand sanitiser, I am satisfied that there is no explanation for the administration of alcohol to AG other than human agency.
  • Whilst the father posits the possibility of negligent administration by medical staff or the use of antihistamine as part of AG’s treatment regime that medical staff subsequently failed to record, neither parent seeks to suggest that antihistamine came to be in AG’s system other than by way of the same being administered to him by somebody. On the evidence of Dr McKinnon, it is clear that fact that the mother in the past took antihistamine does not explain its presence in AG in May 2016 in circumstances where the mother had not been breast feeding for a month prior to the antihistamine being detected. There is no explanation before the court for the levels of antihistamine found in AG on 17 May 2016 beyond administration by human agency. I accept the evidence of Dr Ward that the presence of antihistamine in AG’s system indicates that someone administered that substance to him.

 

Perpetrator(s)

 

  • Satisfied as I am for the reasons set out in the foregoing paragraphs that the alcohol and antihistamine found in AG’s system whilst he was in hospital was administered to him at that time by human agency, I turn now to consider the question of who administered those substances to AG. In summary, I am satisfied that the alcohol and antihistamine were deliberately and covertly administered to AG by one or other of his parents or both of them.
  • There is no evidence before the court that alcohol and antihistamine were administered to AG by one of his treating doctors or nurses. As I have already observed, neither parent has sought to suggest explicitly that the alcohol and antihistamine found in AG’s system was administered by a member of medical staff. Further, in my judgment, there is evidence before the court that positively points away from a conclusion that it was one of AG’s treating doctors or nurses who was responsible. Namely, that AG suffered unexplained episodes that I am satisfied were caused by the administration of alcohol and/or antihistamine in three different medical locations that do not share common staff. In my judgment this undisputed fact militates against the possibility that a member of staff was responsible. This conclusion is in my judgment reinforced by the fact that AG’s unexplained episodes ceased immediately upon the parents being arrested notwithstanding that AG remained an in-patient in hospital for a period of time thereafter. Neither parent has sought to allege it was another family member who administered alcohol and anti-histamine to AG and there is no evidence to that effect before the court.

 

 

 

The Judge carefully explained to the parents that it would be in their best interests now to be honest about what had happened.

 

parents who fail to be frank with the court regarding how their child came to suffer harm may often believe that they thereby put themselves at an advantage. In fact, the very opposite is true. The family courts are not concerned with punishment but with the welfare of the child. An early and frank admission by a parent who has harmed their child allows the court to establish accurately what occurred, to direct a fully informed assessment of risk and, in an appropriate case, to formulate and approve a plan for the safe return of the child to the parent, if necessary with a tailored package of support to address the deficits that first led to the harm. Conversely, where a parent or parents make a conscious decision to hide the truth, the court is much more likely to be left in a position where it will be unable to conclude that the parent can safely parent the child in the future. This is especially the case where the court is compelled to conclude (as it is entitled to do) that the harm was caused by one or other or both of the parents but that it is not possible to tell which. In such a situation, additionally, the parent who did not inflict the harm is materially prejudiced by the failure to be frank of the parent who did.

 

CONCLUSION

 

  • In conclusion, I make the findings set out in the Schedule appended to this judgment. I will allow a short period for the parents to consider the findings made by the court and to respond by way of a further statement to those findings. I will then give directions for the welfare stage of this hearing.
  • Finally, for the reasons I have set out, I am satisfied that neither of the parents has been entirely frank with the court. I am satisfied that they have each made a conscious choice to withhold certain matters rather than giving an account of all that they know about the circumstances in which AG came to have extremely high levels of alcohol and levels of antihistamine in his system. Within this context I have had to try and divine what happened to AG in circumstances where his parents have chosen not to assist the court fully with that task. This judgment represents my considered attempt to discharge the duty of the court in those circumstances on the evidence available to me at this hearing. In so far as the mother and the father consider that this judgment does not represent the full picture of what befell AG, the responsibility for that lies solely at their respective doors.
  • There now comes a very important decision for the parents. To adopt the words of Lord Nicholls of Birkenhead in Lancashire CC v B at 588, in the present case AG is proved to have sustained significant harm at the hands of one or other or both of his parents. Within this context, the parents have a choice. They can consider the findings of the court and choose now to provide the information that I am satisfied that they have thus far withheld from the court to ensure that the local authority assessment that will follow this hearing constitutes a fully informed assessment of risk and allows the court the best possible opportunity to determine whether AG can be safely returned to their care. Conversely, they can continue to withhold information from the court and from professionals and increase thereby the risk of the court of having ultimately to conclude that AG cannot be safely returned to their care.
  • That is my judgment.

 

SCHEDULE OF FINDINGS 

  • Whilst an in-patient at the local hospital and the Evelina Children’s Hospital in London, AG experienced repeated unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation.
  • No medical explanation for AG’s episodes was found despite extensive testing being undertaken.
  • Specialist blood tests undertaken on 17 May 2016 identified high levels of alcohol in samples of AG’s blood taken on 27 April 2016, 10 May 2016 and 17 May 2016.
  • Specialist urine analysis undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in AG’s urine.
  • Analysis of a sample of AG’s gastric aspirate taken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in his gastric aspirate on that date.
  • The levels of alcohol found in the samples taken from AG were extremely high and would have caused serious toxicity and could have been potentially fatal to him but for the emergency treatment he received as an in-patient.
  • Each of the unexplained episodes experienced by AG at the local hospital and the Evelina Children’s Hospital in London were caused by AG being administered alcohol and / or antihistamine, including those episodes in respect of which blood and urine testing was not undertaken.
  • Each of the unexplained episodes was caused by the mother or the father or both of them deliberately and covertly administering alcohol and /or antihistamine to AG.
  • In deliberately and covertly administering alcohol and /or antihistamine to AG, the mother or the father or both of them caused AG to be subjected to extensive, unnecessary, uncomfortable and painful invasive tests to try and ascertain the cause of the episodes (including but not limited to MRI imaging, electrophysiology, two lumbar punctures, genetic and metabolic testing and video telemetry) and extensive, unnecessary uncomfortable and painful treatments (including, but not limited to, extensive blood testing, catheterisation, intravenous and arterial cannulation, intubation, mechanical ventilation and the administration of antibiotic, anticonvulsant and anti-reflux medication).

 

 

 

 

Extraordinary case – I’ve never come across anything like it.  Luckily, when it comes to matters of hand-washing within a hospital setting, we have the Marx Brothers to give us a visual demonstration.   (In this scene, Groucho has been pretending to be a physician, Dr Hackenbush. He is about to be unmasked by a real doctor, Dr Steinberg. What follows is a masterclass in stalling for time)

 

 

Jack Russell and lackadaisical assessments

In which a Judge describes family placement assessments as ‘lackadaisical’  and orders fresh assessments with the LA to pay for them. And in which I try, but fail, to avoid the pun of “ruff justice”

Cheshire East Borough Council v PN & Ors (Flawed Local Authority Assessments) [2017] EWFC 20 (03 March 2017)

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/20.html

 

it is a matter of very considerable dismay to the court that it has been necessary, on the second day of this final hearing and having heard the evidence presented by the local authority in support of its case, not only to grant the maternal aunt’s application for a further assessment of her and her partner by an independent social worker, but to direct a further assessment of the paternal great aunt and her husband by an independent social worker, in order to remedy patent defects in the local authority’s assessments caused by social work that has, at best, been lackadaisical and, at worst, is in plain contravention of the applicable statutory guidance and long established good practice.

 

Let us explore further

 

 

There were two assessments – one  was of maternal aunt and her partner, and one of paternal great aunt to care for a baby where there had been findings that the parents had caused him significant head injuries.

 

Problem 1  – although the assessment was of the aunt and her partner, the assessor hadn’t in fact met the partner – she had one short phone conversation with him, whilst he was at work.  AND she just ended the assessment once she knew of the findings, unilaterally.

 

 

 

 

 

19.The assessment conducted by Ms Fallows makes it plain that the assessment was intended to be of both the maternal aunt and her partner, CS (at times incorrectly referred, as I have already noted, to as ‘CN’ in the assessment). Notwithstanding this, Ms Fallows was forced to concede in cross-examination that, apart from a very brief conversation with him on the telephone whilst he was at work, she had not spoken to CS as part of her assessment. It would appear that whilst Ms Fallows had planned to speak to CS (and indeed had cancelled a number of appointments with him) she changed her mind after becoming aware of the outcome of the finding of fact hearing, apparently concluding without discussing the findings with CS (and possibly before she had discussed the findings with the maternal aunt) that the findings made by the court were simply fatal to any proposed placement of PN with the maternal aunt and CS.

 

 

20.Having listened to the evidence of Ms Fallows, I was left entirely unclear why she considered she was justified in drawing such a definitive conclusion without first speaking to CS to establish the extent to which he constituted a protective factor and, accordingly, the extent to which his presence in the household mitigated any concerns Ms Fallows had regarding the maternal aunt’s capacity to protect PN from the identified risk of harm presented by the mother and the father. Whilst it might be the case that CS does not constitute a protective factor, it might also be the case that he does. The point is that Ms Fallows made no professional effort whatsoever to assess the position before reaching her conclusion that the assessment of the maternal aunt and her partner was negative.

 

 

21.In particular, Ms Fallows took no time to explore with CS his understanding of the findings made by the court, his acceptance of those findings, his attitude towards those findings and, in light of the information provided by him, the nature and extent of his ability to protect PN from the identified risk of harm consequent upon the findings of the court, including those in respect of the maternal aunt. This despite the fact that Ms Fallows’ task was to assess the capacity of the maternal aunt and CS to protect PN from harm, including from any person who presents a risk of harm to her. In the circumstances, Ms Fallows assessment of the maternal aunt and her partner contains a patent lacuna and is fundamentally flawed.

 


Call me old-school, but it is rather tricky to assess someone without meeting them.

 

Problem 2  – the key issue in the assessment of great aunt was obviously going to be her  ability to keep the baby safe from the parents. That wasn’t covered in the assessment at all.  The section on risk dealt solely with stair guards, the green cross code and a Jack Russell.   (I am not even kidding)

 

22.The assessment of the paternal great aunt and her partner by Mr Twigger gives the court even more cause for concern and is of extremely poor quality. It comprises little more than a collection of bare statements of fact with virtually no evaluation or analysis, leading to conclusions that are so simplistic and anodyne as to be little more than a statement that the paternal great aunt and her husband have successfully raised children before and would be able to promote PN’s identity.

 

 

23.However, of most concern is the manner in which the purported assessment deals with the key issue when assessing the viability of the placement, namely the ability of the paternal great aunt and her partner to protect PN against the identified risk of harm presented by the mother and the father. In this respect, the relevant part of the initial assessment in November 2016 and the same part of the updated assessment completed following the finding of fact hearing read in the following identical terms:

 

 

 

“Ensuring safety (Describe the applicant’s capacity to protect the child from harm and danger, including any person who presents a risk to them.)

 

[NM] and [HM] would wish to ensure that PN is taught age appropriate life and safety skills as she grows older and matures in their care. From an early age this would include issues such as safety around the home and they would of course ensure that they had the necessary safety equipment in place once PN became mobile. This would incorporate such items as stair gates and plug guards etc. As PN grows older she would be taught basic road safety and personal safety e.g. not talking to strangers and always telling someone where she is going which is what the couple have taught their own children and then grandchildren.

 

The couple have a dog that is a Jack Russell dog. As stated elsewhere in this report [NM] and [HM] have stated that they are aware that PN becomes alarmed by sudden noises and for this reason if their application were to be successful they have suggested that they would be willing to re-home the dog to their nephew who also has a Jack Russell”

 

24.Despite the Form C prompting the need to include harm and danger from any person who presents a risk to them, there is no reference at all in the updated assessment to the plainly identified risk of harm presented by the parents or to any engagement with the paternal great aunt and her husband regarding their response to that identified risk of harm and the manner in which they would propose to ensure PN is protected from such risk. Indeed, the courts detailed findings of fact do not appear to be set out anywhere within the body of the updated assessment.

 

 

25.Of further concern is that the relevant part of the initial assessment in November 2016 and the same part of the updated assessment completed following the finding of fact hearing are in identical terms. Indeed, it is plain that the latter has simply been ‘cut and pasted’ from the former. Within this context, the concern engendered by Mr Twigger’s assessment is heightened still further by Mr Bolt confirming during his oral evidence that the paternal aunt and her husband have not been shown the finding of fact judgment of this court, are not aware of the precise terms of the court’s findings against the mother and the father and that the same have not been discussed with them by the local authority.

 

 

26.In the circumstances, Mr Twigger’s assessment of the paternal great aunt and her husband is wholly inadequate and fundamentally flawed. Whilst Mr Twigger deals with road safety, stairgates and a loud Jack Russell, there is no assessment or evaluation whatsoever of the central question of the ability of the paternal great aunt and her husband to protect PN against the clearly identified risk of harm presented by the mother and the father, nor does any attempt at all appear to have been made to undertake such an assessment. The inevitable result is that there is no assessment of this cardinal issue before the court in relation to those proposed carers.

 

 

See, I told you I wasn’t kidding…

An unmanageable risk

 

 

27.Finally, there were also very real difficulties with the evidence of Mr Bolt when it came to the question of the capacity of the paternal great aunt and her husband to protect PN against the identified risk of harm presented by the mother and the father.

 

 

28.Despite the fact that he claimed to have considered the assessments of both Ms Fallows and Mr Twigger when arriving at his final care plan, Mr Bolt demonstrated a marked inability to recall even basic elements of the contents of those assessments relevant to the question of capacity to protect. In particular, he had apparently not identified the patent and obvious deficiencies in each of those assessments that I have outlined above. Further, he was not able to assist the court with even the most basic information concerning other matters highly relevant to the question of the capacity of the paternal aunt and her husband to protect PN from harm. For example, having revealed that the father had, between his release from a recent custodial sentence and until last Thursday, been permitted by the paternal great aunt and her husband to sleep at their property because the paternal great aunt was not prepared to see the father sleep on the streets, and that the father had not disclosed this information, Mr Bolt was unable to assist the court with answers to the very obvious questions that flowed from that information and which the court would have expected an allocated social worker to investigate.

 

 

29.In particular, Mr Bolt was entirely unable to assist the court with how long the father had stayed with the paternal great aunt and her husband for, whether the paternal great aunt and her husband had volunteered the information that the father had been staying with them or had been discovered allowing him to do so and whether the paternal great aunt and her husband considered it appropriate to allow the father to reside with them when they were putting themselves forward as carers for PN. Mr Bolt’s evidence reached a remarkable nadir when he claimed, in answer to questions put by the maternal aunt regarding number of contacts the paternal great aunt had had with PN (in the context of the paternal great aunt having only recently commenced contact with PN and her husband having had only one contact with PN despite the fact he is retired and does not have work commitments), that it was “not necessary” for him to know the details of how many times the paternal great aunt had had contact with PN since the very recent commencement of that contact.

 

 

30.Accepted good practice in respect of assessments is plainly established by statutory guidance and longstanding good practice. The statutory guidance Working Together to Safeguard Children (HM Government March 2015) sets out at [35] the principles and parameters of good assessment.

 

 

31.These principles and parameters include the need for such assessments to be rooted in child development and informed by evidence, to involve children and families, to adopt an integrated approach, to be a continuing process and not an event and to be transparent and open to challenge. It is self-evident that the need for the assessment to involve children and families and to be informed by evidence will require information to be gathered from all of those adults in the child’s household or in the household it is proposed the child should live.

 

 

32.The three domains of the assessment specified at paragraph [36] of the guidance should be the child’s developmental needs, the parents’ or carers’ capacity to respond to those needs and the impact and influence of wider family, community and environmental circumstances. Once again, it must be self-evident that an assessment of the carers capacity to respond to the child’s needs (including their capacity to respond to the child’s need for protection against an identified risk of harm) must involve contact and communication with each of the carers who are, or it is proposed will be, responsible for meeting the child’s needs.

 

 

33.At [37] the guidance makes clear that the interaction of these domains requires careful investigation during the assessment and that it is important that (a) information is gathered and recorded systematically, (b) information is checked and discussed with the child and their parents/carers where appropriate, (c) differences in views about information are recorded and (d) the impact of what is happening to the child is clearly identified. With respect to the assessment and management of risk, at [47] the guidance further provides that in order to manage risks, social workers and other professionals should make decisions with the best interests of the child in mind, informed by the evidence available and underpinned by knowledge of child development. Overall, Working Together makes clear that the aim of an assessment is to use all the information to identify difficulties and risk factors as well as developing a picture of strengths and protective factors.

 

 

34.Within this context, when undertaking an assessment concerned with establishing capacity to protect against an established risk of harm, in addition to ensuring that an assessment of the carers capacity to respond to the child’s need for protection against an identified risk of harm involves discussions with each of the carers who are, or it is proposed will be, involved in meeting the child’s needs, it is also surely self-evident that the assessment must include a process that ensures that those who are the subject of the assessment of their capacity to protect from risk of harm are aware of what the precise nature of the risk of harm is. Further, it must likewise be self-evident that having been made aware of the precise nature of the risk of harm, each of those being assessed must be the subject of a comprehensive evaluation of their understanding of and attitude towards that risk in order to establish the extent to which they have, or do not have, that capacity.

 

 

35.Having regard to the summary of the deficiencies set out above in respect of each of the assessments, and to the summary of the applicable statutory guidance also set out above, I am entirely satisfied that the assessments completed by Ms Fallows and by Mr Twigger are inadequate and fundamentally flawed. I am further satisfied that, in the circumstances, the assessments do not permit the court to reach a properly informed or fair decision at this final hearing as to which of the placement options before the court best meets PN’s identified welfare needs or, indeed, whether either is capable of doing do. The patent deficiencies in the assessments are such that, the court having heard Ms Fallows and Mr Bolt give evidence and be cross-examined, Mr Haggis on behalf of the local authority has been compelled to concede that the assessments were each insufficient to allow the court to reach a properly informed and fair decision. Notwithstanding the concession made by the local authority I make clear that this is my conclusion in any event having read the assessments and heard the oral evidence to which I have referred.

 

 

36.With respect to the assessment of the paternal aunt and her partner it is plain that the local authority simply decided, unilaterally, that the finding of fact judgment justified it terminating the assessment notwithstanding that that assessment of the couple was plainly incomplete and failed properly to address the key issue with which the court would be concerned at the final hearing. With respect to the assessment of the paternal great aunt and her husband, the assessment is entirely cursory and fails to engage in any meaningful way with the key issue that the court is required to resolve in determining whether the placement can meet PN’s identified welfare needs. It is apparent that, following the outcome of the fact finding hearing, the local authority felt that it could simply take a short cut by terminating prematurely the assessment of the maternal aunt and her partner and by undertaking the most cursory of updating assessments of the paternal great aunt and her partner. That is an entirely impermissible approach in circumstances where the process of assessment must not only constitute a comprehensive assessment of the child’s identified welfare needs and how those needs are best met in accordance with the statutory guidance, but also must be fair and be seen to be fair.

 

 

37.Before the court takes a final decision as to the welfare of a child it must be astute to ensure that the case has been fully and properly investigated and that all the relevant evidence necessary for the decision is in place, both to ensure that the court makes a fully informed decision as to the child’s welfare and to ensure that the proceedings are fair, the former being an aspect of the latter. Having regard to the matters set out above, I am wholly satisfied that the court is not in a position to conclude that the central question of respective capacities of the maternal aunt and her partner and of the paternal great aunt and her husband to protect PN from the identified risk of harm from the mother and father has been full and properly investigated and that all relevant evidence necessary to determine that issue is in place before the court.

 

 

38.Within this context, and with much regret, I am entirely satisfied that it is not possible to conclude the final hearing fairly without further assessment of the maternal aunt and her partner and the paternal great aunt and her husband, in particular as to the central question of their respective capacities to protect PN from the identified risk of harm from the mother and father. In the circumstances I have set out above, those additional assessments are plainly necessary for the court to deal with this case justly. I am further satisfied that the additional assessments should be conducted by an Independent Social Worker and should be funded by the local authority. In light of the patent omissions in the assessments of the local authority as identified above, those who are to again be assessed cannot reasonably be expected to have any confidence in a further local authority assessment. Further, in circumstances where the further assessments are required solely by reason of the local authority having comprehensively failed to discharge its duties I am entirely satisfied that it should pay for the additional assessments that are require in consequence of that default.

 

Keep feeling Vaccination

 

And so the conversation turned, until the sun went down

 

This is a High Court case involving parents who were already in care proceedings, who did not want their child to be vaccinated.  (The decision not to vaccinate was not the reason for the care proceedings, and I think it’s unlikely that it would be considered threshold criteria.)

It helpfully gathers all of the other authorities and principles on vaccination, so although it is a case that turns on its facts (it is not authority for the Court always will or always won’t order vaccination to go ahead), it is useful if it comes up again. It also raises interesting philosophical questions about State intervention and parental autonomy.

 

Re SL (Permission to vaccinate) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/125.html

 

SL was seven months old, and one of four siblings within care proceedings. He was the subject of an Interim Care Order.

 

The local authority now applies under the inherent jurisdiction for a declaration that it is in SL’s best interests for the local authority to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine (hereafter, the ‘Hib’ vaccine) and the pneumococcal conjugate (PCV) vaccine (hereafter the ‘PCV’ vaccine) in circumstances where the mother objects to this course of action.

 

It is something of a law geek pleasure to see that the Dr in the case was a Dr De Keyser, and the advocates in the case would be made of stronger stuff than me if they avoided any temptation to fall into the ‘you say de keyser, I say de Geezer’ dialogue from the Supreme Court article 50 case.

 

The mother’s opposition to the vaccination was because she considered that her older children had suffered adverse reactions to their own vaccinations

 

 

  • The mother’s opposition to SL being given the Hib vaccine and the PCV vaccine is based primarily on adverse reactions to being so immunised that she states that her other children have undergone in the past. Professor Kroll was accordingly also asked to consider whether there is anything in the older children’s medical records that causes him concern regarding SL receiving the disputed immunisations. Professor Kroll, being careful to note that the abbreviated medical records provided to him may not be complete, makes clear that in none of the records he reviewed relating to SL’s siblings detail any significant adverse reaction to vaccination in general or to Hib or PCV vaccination in particular in any of the children. Professor Kroll further opines that even had there been evidence in the medical records of some reaction, this would not, in general, constitute a medical contraindication to vaccinating SL.
  • Within the foregoing context, Professor Kroll concludes that there is no medical reason why SL ought not to have the vaccinations in issue according to the UK immunisation schedule. He further concludes that withholding the Hib and PCV vaccines for SL would mean deliberately maintaining his vulnerability, which is at its maximum given his present age, to two very serious infections which are major causes of infection, including bacterial meningitis. Professor Kroll is clear that whilst not providing total protection, a full course of vaccination provides a “very substantial degree” of protection against these infections. He concludes that, in his expert medical opinion, SL needs to be immunised without delay and to receive booster immunisations at the appropriate time.

 

 

The LA argued that the Court should use their inherent jurisdiction    but they meant “Magical Sparkle Powers TM” to direct that the child should have vaccinations

 

 

  • On behalf of the local authority, Ms Markham QC and Ms Georges submit that the local authority should be given permission to ensure that SL receives the Hib vaccine and the PCV vaccine, the administration of such vaccines being in his best interests. Developing this submission, in particular Ms Markham QC and Ms Georges argue that:

 

(a) The local authority acknowledges the mother’s views regarding the immunisation of SL. The local authority further recognises that the declaration it seeks trespasses on the mother’s Art 8 right to respect for her private and family life insofar as the decision whether or not to immunise a child is ordinarily a function of the exercise of parental responsibility.

(b) On the evidence before the court however, the balance of risk is clear. Namely, the expert evidence indicates clearly that the risk attendant on giving the vaccines to SL are outweighed by the risks of not giving them to him, in particular when regard is had to the likely gravity of the consequences of the former when compared to potential gravity of the consequences of the latter.

(c) Moreover, on the evidence before the court, the decision whether to immunise SL against Hib and pneumococcal infections is not a finely balanced one. Rather, it is plain on the evidence before the court that vaccination is in his best interests.

(d) Had the local authority received further information or evidence suggesting that there was some doubt, or a finer balance with respect to the question of whether SL should receive the vaccines in issue, the local authority may have changed its position. However, no such information or evidence has materialised notwithstanding the directions of the court.

 

The mother’s legal team made these submissions

 

 

  • Ms Connolly QC and Ms Gill made the following submissions on behalf of the mother:

 

(a) Applications for a declaration that it is in the child’s best interests to receive vaccinations are rare. In respect of the decision whether or not to vaccinate a child, parents are accorded a significant degree of autonomy by the State. Ordinarily, a parent in the position of the mother would get to decide whether to have a child immunised as a function of the exercise of that parent’s parental responsibility and would not be brought to court if the parental decision were that the vaccinations should not be given.

(b) The mother relies on three alleged instances of her older children attending hospital following what the mother contends were adverse reactions to immunisation. Whilst the mother has not produced the records associated with these attendances (or, it must be observed, evidence that such records were requested but unavailable), and whilst none of the asserted instances are referred to in the records reviewed by Professor Kroll, she asserts to the court that VL suffered a swollen leg, that DL suffered an ear infection and the CL developed a rash.

(c) The mother’s objections, and the extent to which they are reasonable, must be viewed in the context of the particular matters with which these proceedings are concerned, albeit matters wholly unrelated to the issue of immunisation, and in the context of the SL not being in her care, which factors heighten the mother’s concerns regarding the administration of the vaccines to SL in the context of the alleged adverse reactions experienced by SL’s siblings.

(d) Whilst the consequences of SL catching the diseases, which the respective vaccines are designed to protect against are potentially grave, risk of SL catching the diseases against which the vaccines protect is low, as is the risk that the diseases will have a grave outcome if SL were to catch them.

(e) Within this context, the mother’s considered decision with respect to the vaccination of SL should be respected by the court and the application of the local authority dismissed having regard to the legal principles applicable to that application.

 

On behalf of the child

 

  • On behalf of SL, Mr Tughan QC and Ms Piccos submit that it is plainly in SL’s best interests for the outstanding vaccinations to be given to him. As does the local authority, on behalf of SL Mr Tughan QC and Ms Piccos recognise that a parent is, ordinarily, accorded a significant degree of autonomy by the State in deciding in the exercise of their parental responsibility whether to vaccinate a child. However, in circumstances where there is a dispute between those holding parental responsibility for SL (namely, the mother and the local authority) such that the court is required to determine that dispute by reference to SL’ best interests, Mr Tughan QC and Ms Piccos submit that the evidence before the court indicates that the balance of risk falls firmly in favour of SL receiving the vaccinations on the UK Immunisation Schedule that he has not received to date.
  • With respect to the weight to be attached to the views of the mother, Mr Tughan QC and Ms Piccos submit that the court must consider these views through the prism of the aspects of the mother’s personality identified in the expert evidence in the 2014 proceedings, specifically an obsessive compulsive personality disorder with schizoid personality traits, paranoid personality features and narcissistic personality features.

 

 

I have an unusual position here. My position is that of course children should be vaccinated, and that the scare stories about vaccination lack any proper evidential rigour.  However, my position is also that parents have the capacity to make decisions about their children and their medical treatment even if those decisions are ones that others might consider reckless or stupid or foolhardy. I don’t see that the parent should lose that capacity and have it taken away from them at an INTERIM stage. It might be different if the Court conclude the care proceedings and make final orders meaning that the child will be cared for elsewhere during the remainder of their childhood. But I’d have said that here, autonomy trumps my view that vaccination benefits children, and society.  I would possibly draw a distinction where the child is being denied medical treatment by a parent’s decision which is causing the child pain, harm, suffering or puts their life in danger. But that wasn’t the case here – vaccination would protect the child from a possible future risk, but this child was in no imminent danger.  That’s just my own personal view, which is worth nothing at all, but just to let you know where I’m coming from.

 

The law

 

 

  • As Ms Connolly QC and Ms Gill point out, applications of this nature are rare and there are only a limited number of reported decisions concerning the issue of immunisation.
  • In Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1054, a case which considered a dispute between two parents with parental responsibility within the context of the framework provided by s 8 of the Children Act 1989, Sumner J held that the children concerned should receive immunisations appropriate to their age against the wishes of the mother but in line with the recommendation of the expert medical evidence before the court (which in that case included a report from Dr Kroll instructed by CAFCASS Legal). Sumner J’s decision was upheld on appeal. In in Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1095, Thorpe LJ rejected the repeated categorisation of the course of immunisation as non-essential invasive treatment and considered it to be more correctly categorised as preventative healthcare. Within this context, he observed that:

 

“[16] The apparent freedom of each [parent] to act alone is not, however, unfettered. As Dame Elizabeth Butler-Sloss P said in the case of Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571 at 577D:

‘There is, in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by one parent carer although she has parental responsibility under s 2(7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court. Sterilisation is one example. The change of a child’s surname is another.’

[17] In that case the court held that the circumcision of the child should only be carried out where the parents agree or where a court, in settling the dispute between them, decides that the operation is in the best interests of the child. In my opinion this appeal demonstrates that hotly contested issues of immunisation are to be added to that ‘small group of important decisions’.

[18] Of course where the obligation falls on the court to decide such an issue the court must apply the child’s welfare as its paramount consideration (s 1(1) of the Children Act 1989) and also have regard to the s 1(3) checklist.”

 

  • At first instance in Re C (Welfare of Child: Immunisation) Sumner J made clear that he had had regard to the wide scope for parental opposition to medical intervention in respect of a child, which he summarised as ranging from obvious cases where the objection would be widely regarded as having no validity in child welfare terms to cases where there is scope for genuine debate on the issue. Within this context, Sumner J acknowledged a parent’s right to choose whether they accepted medical advice to have their children immunised and that immunisation was a subject of genuine public debate. Sumner J further made clear that his decision should not be seen as a general approval of immunisation for children and that each case is fact specific.
  • In Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), Theis J considered the issue of vaccinations in the context of children who were the subject of final care orders, where the dispute was between the local authority, who shared parental responsibility under those orders, and the parents with parental responsibility as to whether the children should be vaccinated. Within this context, Theis J proceeded to determine the question under the auspice of the inherent jurisdiction of the High Court. She concluded the children in that case should be vaccinated. Theis J articulated the following applicable legal principles:

 

“[9] There is no dispute between the parties as to the law. Once the inherent jurisdiction is invoked the welfare of the child is the paramount consideration.

[10] The Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 FLR 366 considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson MR said at 370 ‘…The court, when exercising the parens patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless, in the end, the responsibility for the decision whether to give or to withhold consent is that of the court alone.’

[11] In this case the dispute is the exercise of parental responsibility as between the parents and the Local Authority. I have been referred to a number of cases that look at how the parent’s views should be considered by the court. In Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191 Sir Thomas Bingham MR said at 217 B-C:

‘I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can’.

In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502 Butler Sloss P said at 509 that

‘…it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court’s assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent’.

[12] The court also has to carefully consider Article 8 of the European Convention and, in particular, consider whether what is proposed is a justified and proportionate interference with family life.”

 

  • Within the context of the last point elucidated by Theis J concerning rights under Art 8 of the ECHR, Art 24 of the United Nations Convention on the Rights of the Child provides that States parties to that Convention recognise the right of the child to the enjoyment of the highest attainable standard of health and, within that context, imposes on States parties an obligation to pursue full implementation of that right, including the taking of appropriate measures to combat disease.
  • The most recent decision on immunisation appears to be a further decision of Theis J in the case of F v F (MMR Vaccine) [2014] 1 FLR 1328. In that case, Theis J made the following important observation in relation to cases of this nature at [21]:

 

“This is an issue concerning the exercise of parental responsibility that in most circumstances is negotiated between the parents and their decision put into effect. Parents often have to make decisions for children to meet their welfare needs, as Ms Vivian observed that is ‘what parenting is about’. As with many aspects of the exercise of parental responsibility, in particular as children get older, it will often require discussion and explanation by the parents of their decision to their children which may be against their wishes and feelings. This has not been possible in this case as the parents disagree and the court has been asked to step in to make the decision. The court can only make decisions on the evidence that it has in each particular case and by considering the welfare needs of each child. By doing so in this case the court does not in any way dictate how this issue should be decided in other situations; each case is fact specific. This case is only concerned with the welfare needs of these children.”

 

  • Thus, where there is a dispute between those holding parental responsibility (whether as between parents or between parents and a local authority holding a care order) as to whether such a vaccination or vaccinations should take place the court has jurisdiction to determine the dispute. In determining the question before the court, the welfare of the child is the paramount consideration of the court. Within this context, the court must accord appropriate weight to the views of the parent or parents having assessed those views and must exercise an independent and objective judgment on the basis of the totality of the evidence before it, including, but not limited to, the expert evidence.
  • In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order (see A Local Authority v SB, AB & MB) [2010] 2 FLR 1203 and Re Jake (Withholding Medical Treatment) [2015] EWHC 2442 (Fam)).
  • In the circumstances, as in Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), and whilst the C2 application made by the local authority on 21 October 2016 is for an order in existing Children Act proceedings, the application the local authority pursues before this court must in fact be an application for relief under the inherent jurisdiction of the High Court. The local authority requires leave to make such an application, which application for leave is to be considered against the criteria set out in s 100(4) of the Children Act 1989. Being satisfied that the relief sought by the local authority does not contravene s 100(2) of the Children Act 1989 and that the criteria for granting leave to the local authority to make an application under the inherent jurisdiction set out in s 100(4) of the Act are met, I granted permission for the local authority to make an application for relief under the inherent jurisdiction of the High Court.

 

 

 

Decision

 

 

  • I acknowledge Ms Connolly QC and Ms Gill’s submission that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility. Whilst, historically, vaccination was compelled by law under the Vaccination Act 1853 and subsequent legislation, vaccination is not now compulsory in this jurisdiction, the Vaccination Act 1898 having introduced an exception allowing parents who did not believe vaccination was efficacious or safe to obtain a certificate of exemption (introducing the concept of the “conscientious objector” into English law) and the National Health Service Act 1946 having thereafter repealed the compulsory vaccination laws in their entirety. However, I cannot accept Ms Connolly QC and Ms Gill’s submission that, ordinarily, a parent in the position of the mother (my emphasis) would get to decide whether to have a child immunised as a function of the exercise of her parental responsibility.
  • The fact that this court is required to decide whether SL should be immunised is, in this case, a function of a dispute between those who hold of parental responsibility for SL, namely the mother and the local authority (the identity of SL’s father not being known). Where there is such a dispute the court is under an obligation to determine that dispute in accordance with the legal principles articulated above. That determination is not an example of overreaching by the State into an area of parental choice but, rather, is an example of the court discharging its obligation to ensure the welfare of the child is safeguarded in circumstances where those charged with meeting the child’s welfare needs cannot agree on how that end is best achieved. Again, as Theis J noted in Re A, B, C and D (Welfare of Children: Immunisation), in Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191 Sir Thomas Bingham MR said at 217 B-C:

 

“I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can”.

 

  • Thus, the fact that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute between them, and the fact that, accordingly, this issue rarely comes before the court, does not, in circumstances where there is in this case a frank disagreement between her and the local authority as to what is in SL’s best interests, mean that this mother is being somehow singled out as compared to other parents with respect to the issue of vaccination.
  • The fact that parents are ordinarily accorded a significant degree of autonomy when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute does, however, mean that when the issue has to come before the court, the court must accord proper weight to the views of the parent. I have of course given very careful consideration to the mother’s objections to vaccination. It is not difficult to see how the, albeit unrelated, events with which this court is concerned have focused her mind on the potential risks of vaccination to SL’s wellbeing. The mother has decided that those risks outweigh the risks of not vaccinating SL. A parent is fully entitled to make a decision based on their assessment of the likelihood of infection and how severe that infection might be in terms of outcome.
  • However, I must and do have regard to the fact that the mother’s evaluation does not accord with the expert medical evidence before the court. Indeed, that medical evaluation reaches a diametrically opposed view. Whilst welfare is a very wide concept, and whilst the principle of best interests means more than just medical best interests, the unchallenged conclusions of the expert instructed to assist the court on the question of immunisation are, necessarily, a powerful pointer towards what is in SL’s best interests on the question of immunisation. I must also have regard to the fact that, whilst the mother submits that her considered view is grounded in her direct experience of adverse reactions in her other children, she has not in any way evidenced the factual basis she contends grounds her reasoned evaluation of the risks on this basis, despite being given every opportunity to do so. These matters significantly reduce the weight I am able to attach to the mother’s views in respect of the vaccination of SL as against the evidence of the expert.
  • Lastly in respect of the mother’s views, whilst I note the submissions of Mr Tughan QC and Ms Piccos regarding the impact of the expert opinion in the 2014 proceedings regarding the mother’s personality traits, in circumstances where I have not heard evidence on how those matters may impact on the mother’s views on the subject matter presently before the court, I make clear that I have not taken account of those matters when evaluating the mother’s views and the weight to attach to them.
  • Within the foregoing context, having regard to all of the evidence before the court and evaluating the position by reference to the principle that SL’s welfare is the court’s paramount consideration, I am satisfied that it is in SL’s best interests to receive the outstanding Hib and PCV vaccines.
  • Finally, I have, as I must, paid careful regard to the Art 8 right of the mother to respect for her family life. A decision by the court (as a public authority pursuant to s 6(3)(a) of the Human Rights Act 1998) to authorise the immunisation of SL in the face of the mother’s objection, and in circumstances where parents are ordinarily accorded a significant degree of autonomy by the State when deciding whether to have their child immunised as a function of the exercise of their parental responsibility where there is no dispute, constitutes an interference in the mother’s Art 8 right to respect for family life. For that interference to be lawful it must be justified by reference to the terms of Art 8(2). Having regard to the evidence set out above, I am satisfied that the interference in the mother’s right to respect for family life under Art 8 constituted by a decision of this court to authorise the immunisation of SL against her wishes is in accordance with the law and necessary in a democratic society in the interests protecting SL’s health and, accordingly, is a justified and proportionate interference. I am reinforced in this conclusion by the fact that a decision to authorise the immunisation of SL accords with his right to the enjoyment of the highest attainable standard of health under Art 24 of the UNCRC.

 

CONCLUSION

 

  • For the reasons I have given, I am satisfied that it is appropriate in this case to make a declaration under the inherent jurisdiction of the High Court that it is in SL’s best interests for the local authority to be given permission to arrange for him to receive the Hib vaccine and the PCV vaccine and I do so.
  • Finally, I make clear that the decision of the court is not a judgment on whether immunisation is a good thing or bad thing generally. Like Sumner J and Theis J before me, I emphasise that the court is not saying anything about the merits of vaccination more widely and does not in any way seek to dictate how this issue should be approached in other situations. This judgment is concerned solely with an evaluation of one child’s best interests based on the very particular circumstances of this case and on the evidence that is available to the court.
  • That is my judgment.

 

 

I think this case was rightly decided on the law as it stands. I’m not sure I’m happy with the law as it stands. Here we have a position where a parent who is not in care proceedings gets to say yay or nay to vaccinations and their decision will be sacrosanct, but a parent who is in care proceedings (perhaps with allegations of threshold which are not finally proven) does not have that same right.  I think the right thing for the child was to be vaccinated, but I think as ever with magical sparkle powers, the Court does things with the very best of intentions which end up being the foundation for the next step away from autonomy, and the next step becomes foundation for the one after.

 

Like Redbridge under troubled water (a Local Authority takes a kicking case)

 

I know that my readership tends to like a case where a Local Authority gets a good going over from the Judge – some of my readers don’t like social workers (and some with good cause), some are lawyers who represent parents and get exasperated by LA failings (some with good cause) and some are Local Authority lawyers and social workers who need to know what pitfalls might be awaiting them in Court – and some people just frankly enjoy a bit of “thank goodness that wasn’t me”.

If you are one of my readers who works for the London Borough of Redbridge, good morning, and thanks for your support, but you might want to skip this particular blog. It will spoil your coffee and possibly your day.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2627.html

 

London Borough of Redbridge v A B and E (Failure to comply with directions) 2016

 

This was a High Court case heard by MacDonald J.  (By way of context, the LA could have had many far worse High Court Judges for this case, there are some where I would have feared for their survival)

 

Also by way of context, this was going to be the re-hearing of a final hearing, because at the first hearing the LA had filed their placement order late/not at all, and the Recorder had messed it up. At the Court of Appeal hearing, Redbridge had been sternly admonished for their failure to comply with directions or to seek court leave where they were going out of time. So there had already been cock-ups in this case which the LA had been told off for by the Court of Appeal – specifically about late filing of evidence and very very specifically about filing an application for a Placement Order very late.

 

With that context in mind, at an early directions hearing in the re-hearing, MacDonald J made this direction

 

  1. The matter having been remitted to the Family Division, on 28 July 2016 I made a series of directions designed to case manage this matter to a further and third final hearing on 17 October 2016, including:
  1. i) Directions for the filing of (i) the minutes of the LAC Reviews held since March 2016 by 11 August 2016 and (ii) a witness statement from any Police officer who attended the alleged incident on 27 December 2015 by 4pm on 22 August 2016;
  2. ii) A direction that the local authority file and serve (i) a final care plan, (ii) a final witness statement, (iii) a Scott Schedule of facts the court is invited to find and (iv) Schedule of Issues by 4pm on 12 September 2016;

iii) A direction that the local authority issues any placement application by 4pm on 12 September 2016 together with directions consequent thereon;

  1. iv) A direction that the mother file and serve her final evidence and response to the Scott Schedule by 4pm on 26 September 2016;
  2. v) A direction that the Children’s Guardian file and serve her final analysis and recommendations by 4pm on 10 October 2016;
  3. vi) A direction listing the matter for a further Case Management Hearing on 1 September 2016.
  1. On the face of my order of 28 July 2016 I required a recital to be included to the effect that, in light of the history of this matter, it was vital that the local authority adhered to the letter of the regulations and procedural rules that govern its conduct as between the date of that order and the final hearing. A further recital recorded that “All parties are reminded that should any issue arise that may affect the timetabling of this case then they are under a duty to inform the court of the issue and, if necessary, make an application to bring the matter back to court.”
  1. Pursuant to my order of 28 July 2016, the matter again came before me on 1 September 2016 for a further Case Management Hearing. On that date it was apparent that the local authority had failed to comply with parts of the order of 28 July 2016. In particular, the local authority had failed to comply with a number of the case management directions, including a failure to file and serve the minutes of any LAC Reviews that had occurred since March 2016 and a witness statement from any Police officer who attended the alleged incident on 27 December 2015. A further feature of the local authority’s conduct brought to the Court’s attention on 1 September 2016 was the alleged persistent failure by the local authority solicitor with conduct of the case to reply to correspondence from the solicitors instructed by the mother.

 

Despite this litany of non-compliance, no application had been made by the local authority to amend the directions in respect of the above matters prior to the expiry of the time for complying with those directions. Beyond the failures of the local authority articulated in the foregoing paragraph, the trial bundle is in what can only be described as a state of disarray, with key documents missing.

 

There was a directions hearing where the Judge describes himself as ‘expressing himself in excoriating terms’ about the failings, the case came BACK to Court for an explanation and the LA counsel had received no instructions in advance of that hearing….

 

Even today, and after I had expressed myself in what, I have no doubt, can fairly be described as excoriating terms at the compliance hearing last Wednesday, Mr Pavlou attended court this morning without having been able to secure instructions from the local authority as to when the matter would be ready for an adjourned final hearing. In particular, he had been unable even to achieve instructions as to the timetable for a further decision by the ADM. This was notwithstanding the fact that on 1 September 2016 I had directed the local authority to file and serve by 4pm on 14 October 2016 a further decision of the ADM to be taken in light of additional evidence to be filed ahead of the final hearing and not available when the initial decision was made by the ADM

 

Mr Pavlou deserves a very good bottle of Scotch from this Local Authority, it must have been a brief that kept him up at night.

 

In relation to the LA solicitor’s actions, read this and wince.  (I have anonymised the solicitor’s name, the Judge did not)

 

Finally, with respect to the allegation that the local authority solicitor with conduct of this matter has failed to reply to correspondence from the solicitors representing the mother, at the compliance hearing last Wednesday Ms E instructed Mr Pavlou (in a manner audible to the court) that she had responded to each and every email sent and Mr Pavlou advised the court accordingly. However, the signed statement that I have this morning received from Ms E concedes that she has replied to only a little more than 50% of the correspondence sent to the local authority by the mother’s solicitor.

 

(Being fair to Ms E, both of those things are actually possible – if someone sends 2 chasing emails to you saying the same thing and you answer it, you have answered all the correspondence but you have also only responded to half of the individual emails. But still, ouch)

 

Compounding all of this, when the ADM decision WAS produced, it was apparent that the ADM had taken it upon themselves to make decisions about the truth of allegations when those allegations had not been the subject of findings or even sought as findings…

 

Further, and within this context, with respect to the proposed application for a placement order, Ms Maclachlan had little difficulty at the compliance hearing demonstrating that the initial decision of the Agency Decision Maker was flawed to the extent that any application issued on the basis of the ADM decision would readily be open to attack and the decision of the ADM will have to be re-taken. In short, the ADM had taken it upon herself to make findings about the cause and provenance of the aforementioned injuries notwithstanding that the same have not been the subject of forensic investigation or findings within these proceedings. The late service of the ADM’s decision had prevented this fundamental issue being identified earlier and at a time it was still capable of remedy without impacting on the final hearing.

 

{This aspect is a little tricky – as the Court of Appeal have almost banned fact finding hearings, there are many cases where the ADM is charged with making a decision about whether adoption is the plan for the child when there is no Court finding yet about threshold or allegations. The ADM has to take a view on whether they personally are satisfied about threshold, because obviously if they DON’T think threshold is crossed,  how could they possibly decide that adoption is the plan? They must, however, avoid in their analysis and decision making specific comments as to threshold. The best way to think of it, in my mind, is that the ADM is deciding on what the plan for the child should be IF the Court is satisfied that the child has suffered significant harm. Because if the Court don’t find threshold, adoption won’t be the plan anyway. My reading is that in this case, the ADM and the social worker had gone further than just making that assumption that threshold was capable of being proven and in to dealing with specific allegations which were in dispute}

 

It won’t surprise anyone to learn that a costs order hearing is pending, with Redbridge having to show cause why they should NOT pay the costs.

 

Additionally, however,

 

 

  1. Ms Tara Vindis on behalf of the E submitted that this case is one that requires to now be put into ‘special measures‘. That is an apt analogy. Within this context, it is my intention that the local authority will provide a written report to me each Friday morning at 10.00am by way of email to my Clerk confirming the continued compliance with the timetable the court intends to impose. In the event of default on the part of the local authority, the matter will be brought back into the list for a compliance hearing. It is my expectation that the local authority will comply with its heavy duty to obey the directions of the court.

 

 

The Court also made it clear that the parties are forbidden to agree their own timetable and simply notify the Court of it, they actively need permission of the Court to change the timetable. (this approach works if the Court in question are very responsive to communications, not always the case everywhere in the country.  This is not me having a go at Court staff, who would have found it next to impossible to cope with a 40% increase in demand over the last two years even at full staffing, and we know that as a result of austerity, Court staffing levels were cut to the bone way before this surge in demand.  However, you can’t get an application in to adjust the timetable unless you’ve got very speedy communication at every step of the chain. If LA’s actually did what the President suggested and applied for extensions when they thought they were going to be half an hour late in filing a document, they would BREAK THE COURT system. And as LA’s need the Court system NOT TO BE BROKEN – you know, so that the Court can do their job of listing emergency applications, most of them have not followed the ‘apply if half an hour late’ principle)

 

  1. The courts have repeatedly reminded local authorities and those representing them of the following cardinal principles applicable to complying with case management directions made by the court in public law cases:
  2. i) Case management orders are to be obeyed, to be complied with on time and to the letter and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see Re W (Children) [2015] 1 FLR 1092).
  3. ii) Agreements between the parties to amend the timetable set by the Family Court are forbidden by FPR 2010, r 4.5(3). The parties are categorically not permitted to amend the timetable fixed by the court without the court’s prior approval and every party is under a duty to inform the court of non-compliance with the timetable set (see Re W (Children) [2015] 1 FLR 1092). Within this context, writing to the court to inform the court that the timetable has been altered does not amount to seeking the court’s permission. A specific request for prior approval must be made.

iii) The burden of other work is not an excuse for non-compliance with the directions of the court. Whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187).

  1. iv) Casual non-compliance is not an option precisely because further harm will likely be caused to the child (see Re H (A Child)(Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406).
  2. v) Failure by a local authority to comply with court orders causing unnecessary and harmful delay may result in a breach of Arts 6 and 8 and in an award of damages being made against a local authority (see Northamptonshire County Council v AS, KS and DS [2015] EWHC 199(Fam)).

Nepal-ing behaviour (I’m sorry, I’ll just get my coat)

I wrote about part 1 of this curious case where a couple living in Dubai adopted a child in Nepal, then they separated and the Court was having to deal with (a) was this a lawful adoption and if not could it be made lawful and (b) where should the child live

 

https://suesspiciousminds.com/2016/06/29/application-to-dismiss-a-guardian-for-bias/

And as you can see from the title, part 1 was chiefly about the mother’s application that the Guardian was biased (which did not succeed)

 

Part 2 doesn’t disappoint either.  It was heard by Mr Justice MacDonald, who does get interesting cases and does them well.

Re QS v RS & Anor 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2470.html

 

T, the girl adopted from Nepal is now 12 years old. She has been living with one or both of this couple since 2008 and within the 8 years of her time with them, SEVEN have been in profoundly acrimonious court proceedings. It is hard not to think that she might have been better off remaining in Nepal.

 

She was adopted in 2008 by the couple, who were at that time British citizens living in Britain. (Nepal at the time of the adoption was not one of those countries where the UK has an arrangement that makes adoptions from that country lawful if a process is correctly followed. It is now, however. )   The parents then lived for a time in Dubai and then they separated, with the adoptive mother moving back to the UK.

 

As MacDonald J explains, the history of litigation about this child has been horrendous and protracted

 

 

  • The background to this matter is in part contentious. Regrettably, the parents have now been engaged in one form of litigation or another since 2009. Within that context, I made clear to both parties at the outset of these proceedings that in determining the issues before the court I would not be assisted by a detailed forensic exploration of each and every allegation and counter-allegation levelled by the parents over the course of the past 8 years. It is within this context that I begin by examining the background that leads up to the present situation.

 

 

Curiously, although T is 12 years old, she was born (will be born?) in 2062.

 

Yes, you read that date right. 2062.

 

That’s because the Nepalese calendar works differently to ours

It has been possible to further refine the details of T’s early life from documentation that has become available since I gave my first judgment in this matter on 15 October 2015. By the Nepalese Bikram Samvat calendar, on 20 August 2062 T was found abandoned in a temple in Chitwan in the Federal Democratic Republic of Nepal (although I note that other documentation seen by the expert appears to suggest that T was discovered near a bridge in Kathmandu).

 

It does strike me as somewhat peculiar that in our financially challenged times  that the High Court is spending time and legal aid in litigating about a girl born in Nepal, who lives in Dubai and won’t be born for another 46 years….

 

Under the law of Nepal the adoption of T was lawful in Nepal. Following the adoption, the parents took her from Nepal to Dubai, and in Dubai T was granted British Citizenship. If you are thinking to yourself, hang on, what power has anyone in Dubai got to grant British citizenship on a girl from Nepal, you are not alone

 

  • Following their adoption of T the parents moved with her to live in Dubai. Following her arrival in Dubai T was granted British Citizenship. I have had sight of a Certificate of Registration dated the 16 September 2008, registering T as a British citizen. The precise circumstances in which T was granted British Citizenship remain, despite considerable efforts by the parties, unclear. However, the ‘Adoption Guarantee Letter’ dated 5 December 2006 to which I have already referred states the intention to grant British citizenship for T upon her adoption by the parents by way of the discretion afforded to the Home Secretary by s 3(1) of the British Nationality Act 1981. That letter was signed by the British Consul in Kathmandu. Within this context, and in accordance with the intent of the ‘Adoption Guarantee Letter’ T’s Certificate of Registration makes clear that she was registered as a British Citizen by the Home Secretary pursuant to the power conferred by s 3(1) of the 1981 Act on 16 September 2008.

 

 

 

After the parents split up and mother issued her petition for divorce in Guildford County Court, she moved to Sharjah with T. If you were not previously aware that Sharjah was all that close to Guildford, it was news to me also.

There then followed all sorts of peculiarities, culminating with the mother requiring a Royal Pardon AND a Court decision in Dubai that neither the mother nor the father were the legal parent of T, but custody (I use the term that’s in the judgment) was awarded to the father. The mother was then deported and came to England.  The mother in Dubai has no legal rights regarding T and no right to see her.  Also, given the difficulties that she had with the Royal Pardon, entering Dubai places her at risk of a complaint being made and her being detained and prevented from leaving.

 

The Judge remarks upon the mother’s Facebook campaign

 

 

  • One further matter of background requires mention. Following her deportation, the mother commenced a campaign on Facebook, with a Facebook page entitled “Rescue T“. Whilst the mother contends that this site evolved, ultimately, into a blog through which she seeks to assist people in a similar situation to her own, it is plain on the mother’s own evidence that over a significant period of time she placed into the public domain information that concerned matters intensely private to T. The mother also used the medium to address T publically. The father asserts, in evidence that was not challenged, that at Christmas 2014 the mother posted publically the following message to T “he even abandons you for a significant part of the Christmas holiday to go abroad leaving you alone with a maid for days on end. How utterly, incredibly selfish! Again, you best interests are being ignored. I would NEVER, NEVER do this to you!” The father had been compelled to travel abroad to see a dying relative. At the instigation of the mother the case also featured heavily in the press. The father contends he has been vilified on social media and that the mother has given a false account of him to the newspapers.
  • Within the context of the mother’s online activity, the father contends that his efforts to facilitate contact between the mother and T from June 2013 onwards, including the offer of shared holidays in a neutral country provided proper arrangements for T’s passport were put in place and offers to pay for the mother to visit T at Christmas 2013, were met with no response. The father states that he encouraged T to send emails to her mother on special occasions and there are examples of those messages in the bundle.
  • The mother concedes that she did not reply to emails from T wishing her mother a happy birthday in November 2014 and a happy Valentine’s day in February 2015. The mother asserted during her evidence that she could not be sure that the emails were from T although, significantly in my judgment, she later said that she did not reply because this form of communication did not “fit” with her (the mother’s) requests for contact. The mother further conceded that she did not respond to a request from the father that she provide him with T’s vaccination records, following which refusal T had to be re-vaccinated and suffered a dangerous reaction to one of the additional inoculations, leading to her admission to hospital.

 

 

 

 

The Judge carefully explains the process by which an adoption which is not currently lawful in English law can be recognised and legitimised by English law. Care has to be taken, because this child is ordinarily resident in Dubai where court proceedings have made a determination that the adoption is not lawful and that neither mother or father have any legal rights over T and are not her parents. So the Judge has to tread softly.

 

The statutory power is fairly simple

 

 

  • if the court is satisfied that it is appropriate to recognise the foreign adoption at common law the court may, if the requisite conditions are met, make a declaration pursuant to the Family Law Act 1986 s 57, which section provides as follows:

 

57 Declarations as to adoptions effected overseas.

E+W

(1) Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either—

(a) a Convention adoption, or an overseas adoption within the meaning of the Adoption and Children Act 2002, or

(b) an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands,

may apply to the High Court or a county court for one (or for one or, in the alternative, the other) of the declarations mentioned in subsection (2) below.

(2) The said declarations are—

(a) a declaration that the applicant is for the purposes of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 the adopted child of that person;

(b) a declaration that the applicant is not for the purposes of that section the adopted child of that person.

(3) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, the applicant—

(a) is domiciled in England and Wales on the date of the application, or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date.

 

 

A trusty barometer of whether things in law are going to get complicated is where the Judge has to begin their overview of the law with a Lord Denning case, particularly one itself that refers back to a case decided before electricity was something other than an amusing new phenomenon that made dead frogs’ legs twitch and so it proves to be here

 

 

  • The Adoption and Children Act 2002 s 66(1)(e) defines “adoption” as including “an adoption recognised by the law of England and Wales, and effected under the law of any other country”. It has long been established that the recognition of a foreign adoption may be achieved by recourse to the common law. In Re Valentine’s Settlement at 841, a case concerning the recognition of an adoption effected under the law of South Africa, Lord Denning endorsed the observation of James LJ in Re Goodman’s Trusts (1881) 17 Ch.D 266 at 297:

 

“I start with the proposition stated by James LJ in In re Goodman’s Trusts: ‘The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations’. That was a legitimation case, but the like principle applies to adoption. But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v. Holley [1953] P. 246, 257; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794 , C.A. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of country when the adopting parents are domiciled there and the child is resident there.”

Lord Denning concluded further as follows in relation to the circumstances in which a foreign adoption would be recognised at common law:

“Apart from international comity, we reach the same result on principle. When a court of any country makes an adoption order for an infant child, it does two things: (1) it destroys the legal relationship theretofore existing between the child and its natural parents, be it legitimate or illegitimate; (2) it creates the legal relationship of parent and child between the child and its adopting parents, making it their legitimate child. It creates a new status in both, namely, the status of parent and child. Now it has long been settled that questions affecting status are determined by the law of the domicile. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicile of the adopting parent. You do not look to the domicile of the child: for that has no separate domicile of its own. It takes its parents’ domicile. You look to the parents’ domicile only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents’ domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it. That general principle finds expression in the judgment of Scott L.J. in In re Luck’s Settlement Trusts, Walker v. Luck [1940] Ch. 864, 907-908; sub nom. In re Luck, Walker v. Luck, 56 T.L.R. 915; [1940] 3 All E.R. 307 C.A. I think it is correct, notwithstanding that the majority in that case created a dubious exception to it. But it is an essential feature of this principle that the parents should be domiciled in the country at the time: for no provision of the law of a foreign country will be regarded in the English courts as effective to create the status of a parent in a person not domiciled in that country at the time: see In re Grove, Vaucher v. Treasury Solicitor (1888) 40 Ch.D. 216; 4 T.L.R. 762 , C.A. (legitimation by subsequent marriage); In re Wilson, decd., Grace v. Lucas [1954] Ch. 733; [1954] 2 W.L.R. 1097; [1954] 1 All E.R. 997 (adoption). I ought to say, however, that in order for adoption to be recognised everywhere, it seems to me that, in addition to the adopting parents being domiciled in the country where the order is made, the child should be ordinarily resident there: for it is the courts of ordinary residence which have the pre-eminent jurisdiction over the child: see In re P. (G. E.) (An Infant) [1965] Ch. 568, 585; [1965] 2 W.L.R. 1, 11; [1964] 3 All E.R. 977, C.A. The child is under their protection and it would seem only right that those courts should be the courts to decide whether the child should be adopted or not.”

 

  • Within the context of the present case, I also pause to note the dissenting judgment of Salmon LJ in Re Valentine’s Settlement at 852:

 

“It has been suggested that according to the theory of our law no foreign adoption should be recognised unless, at the time it was made, both adopted child and adoptive parent were domiciled within the jurisdiction of the foreign country and that this appeal should be decided accordingly. Our law, however, develops in accordance with the changing needs of man. These have always been ascertained by experience rather than by the rigid application of abstract theory. Experience has shown that there are sound sociological reasons for recognising an adoption in circumstances such as these. Adoption – providing that there are proper safeguards – is greatly for the benefit of the adopted child and of the adoptive parents, and also, I think, of civilised society, since this is founded on the family relationship. It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents. The laws of adoption in South Africa are very nearly the same as our own. The principles underlying them are the same. The whole emphasis is upon the welfare of the child and elaborate precautions are laid down for assuring that the adoption order shall not be made unless it is for the benefit of the child; the consent of the natural parents is required. It is difficult to see why in these circumstances, unless compelled to do so, our courts should refuse to recognise these adoption orders made lawfully in South Africa which conferred nothing but benefits on all the parties concerned.”

and at 854:

“Mr. Templeman, in the course of an exceptionally able argument, emphasised what he described as the danger and absurdity of a childless man and wife being able to go abroad for a short holiday and return the mother and father of three children. It may or may not be absurd but the danger would exist only if the considerations for adoption in the foreign country concerned were quite alien to our own and our courts were obliged to recognise the adoption whatever the circumstances. This is not so, for it is always open to our courts on grounds of public policy to refuse to recognise a foreign adoption even when the domicile of the adoptive father is impeccable.”

 

  • I further note that it is clear that Dankwerts LJ came to his conclusion that he must concur with the judgment of Lord Denning with some reluctance (Re Valentine’s Settlement at 846) and that Lord Denning himself recognised that the observations of Salmon LJ cast doubt on his conclusion that the courts of this country will only recognise an adoption in another country if the adopting parents are domiciled there, stating at 843 that:

 

“I may, however, be wrong about this: because I recognise the force of the opinion which Salmon L.J. will express, namely, that the courts of this country should recognise an adoption in another country if it is effected by an order of the courts of that country, provided always that their courts apply the same safeguards as we do.”

 

 

  • Nonetheless, the common law rule established by Re Valentine’s Settlement is clear and has been applied consistently since 1965. Within this context, pursuant to the Adoption and Children Act 2002 s 49(2) domicile (or, in the alternative, habitual residence) is still a part of “the circumstances we claim for ourselves” when constituting a valid domestic adoption, a valid application for an adoption order under the Act requiring at least one of the couple (in the case of an application by a couple) or the applicant (in the case of an application by one person) be domiciled or habitually resident in a part of the British Islands.

 

 

 

In very broad terms, if another country has similar adoption provisions to ourselves, and we would be prepared to make an adoption order of say Nepalese parents who are domiciled here and who adopt a child, we should do the same if British parents adopt a child in Nepal. The difficulty here, however, is that when the British couple adopted T, they were NOT domiciled in Nepal – they were there purely to adopt a child and had no intentions whatsoever of residing or settling there.  That is not a scenario in which a Nepalese couple could adopt in Britain  (it is perfectly legal in Nepalese law, but their law does not have the domicile element – that the person has to be living in the country where they adopt)

 

 

  • Within the foregoing context, the criteria for determining whether the court should recognise an adoption made in any country outside Great Britain and valid by the law of that country at common law were articulated by Hedley J in Re T and M (Adoption) [2011] 1 FLR 1487 and Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487 as follows:

 

i) Were the status conditions required by English domestic adoption law replicated or fulfilled in the foreign jurisdiction, including the status conditions as to domicile or habitual residence;ii) Was the adoption obtained wholly lawfully in the foreign jurisdiction in question;

iii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept of adoption;

iv) If so, was there any public policy consideration that should mitigate against recognition of the foreign adoption.

 

You can immediately see that whilst the parents can answer yes to (ii) the answer to (i) is going to be no. The Court therefore have to consider how much the concept of adoption in Nepal marries u with the English concept.

 

This is becoming terribly niche, so suffice to say that if you are involved in a case where you need to know the law on a s57 Family Law Act 1986 application to legitimise an overseas adoption, this is the case to find it all in. The Judge DID legitimise the adoption in English law.

 

 

  • In this case I am satisfied that recognition would be manifestly in T’s best interests. Recognition of the adoption at common law would confirm the legal relationship of parent and child that T no doubt assumes exists between her parents and herself. In circumstances where Mr Power is clear that T, as a child adopted from a foreign country with parents who have separated, has an enhanced need for certainty as an adopted child in a trans-racial placement, recognition of her adoption will assist in providing this and will assist T developing and making sense of her identity as she grows older. Recognition will also provide T with greater legal certainty throughout her life with respect to such matters as inheritance rights. I agree with Mr Bagchi’s submission that the balance sheet in respect of recognition contains no entries in the debit column from T’s perspective.

 

 

The Judge then had to consider where T should live and with whom she should spend time. All of this is very fact specific, but there’s one issue of general principle.

If you are ever in the witness box and you are asked whether a parent loves their child, THIS is not necessarily the best way to answer that question

 

 

  • The mother was unable even to acknowledge the father’s love for T, saying that “in as much as he can love her, I imagine he does” and that “it is a domineering and controlling love done within certain conditions“. The mother’s concluded position in oral evidence appeared to be that T was “probably” physically safe in the care of her father but that she was not emotionally safe, claiming “it is damaging for her to remain with her father, in emotional terms“. These firmly held views of the father’s parenting and his physical and emotional care of T are entirely at odds with all of the other evidence before the court.

 

 

 

The Judge considered all of the issues relating to T and made an order that she should live with the father and have contact with the mother, either in the UAE or England.

Disclosure to the security services

 

Well, applications for disclosure of care proceedings to the police is something that we are used to, but an application to disclose papers in care proceedings to the Security Services is something rather new – even if with radicalisation we should have seen it coming.

 

X, Y and Z (Disclosure to the Security Service) [2016]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2400.html

 

In this case which involved not only allegations of radicalisation but also allegations that one of the parents might have deliberately adminstered a harmful drug to the child by way of an intravenous cannula, the Security Services and the police were taking an interest.  There were materials within the care proceedings which were of interest to them and might have assisted in their investigations.

The complicating wrinkle is that whilst we know exactly what happens with documents that are disclosed to the police (the officers in the case read them, they are shared with the CPS and possibly with trial counsel to decide whether there needs to be an application to USE them in the criminal trial), we’re not at all sure what the internal processes of the Security Services are.

And understandably, the Security Services aren’t keen on walking us through their processes and what is involved, particularly to reveal those matters to people they are investigating under terrorism legislation.

The Security Services therefore wanted effective Cate Blanchett to have the documents and make such use of them as they saw fit including sharing them on a ‘need to know’ basis whereas the Court was being urged to not allow such unfettered access.

The compromise that was reached – and the judgment is very helpful on the detail for anyone in this position, was that the papers could be disclosed to the police, the CPS and the Security Services but any onward disclosure by those agencies would have to be with the Court’s permission following an application.

 

The Court set out the principles about how such an application by the Security Services might work (notably whether the parents would be served with it and allowed to attend and make representations)

 

 

  • My decision raises the possibility of the Security Service needing to make an application to this court for permission to disclose the material outside the Service. Whilst such applications are ordinarily straightforward, as set out above, given the nature of the Security Service and its manner of operation, an application in this context presents specific potential difficulties. In particular, the practice of neither confirming nor denying an interest or involvement means that it is unlikely that the Security Service will wish to give notice of such an application in circumstances where, in some situations, simply confirming or denying that an agency is interested in information or seeks information will result in risk that that agency will disclose its interest in, or alert suspects. In addition, the nature of the disclosure sought means that it is likely the Security Service will thereafter wish to adopt a closed procedure. Given the impact of these contentions on the Art 6 rights of the parties, they will need to be the subject of rigorous examination by the court. Within this context, I note that The President’s Guidance recognises that in cases in the family court concerning the issue of radicalisation the court may need to consider the use of closed hearings or special advocates. The Guidance further recognises the need to ensure that the Art 6 rights of all the parties are protected.
  • In seeking to ensure that the Art 6 rights that are engaged are properly protected, as well as fidelity to the common law principles of fairness and natural justice, I further note that both the domestic and European Courts have recognised that proceedings in relation to the intelligence services inevitably raise special problems and might not be capable of being dealt with in the same way as other claims (see Regina (A) v Director of Establishments of the Security Service [2010] 2 AC 1). In the case of R v Shayler [2003] 1 AC 247 Lord Bingham noted as follows in this respect:

 

“The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the court in relation to complaints made under article 10 and other articles under the Convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100–103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45–47; Esbester v United Kingdom (1994) 18 EHRR CD72, 74; Brind v United Kingdom (1994) 18 EHRR CD76, 83–-84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.”

 

  • There is in my judgment no need to set up any new or elaborate procedure to account for the particular difficulties raised by any permission application that may be made by the Security Service. Rather, it is a question of adapting the existing, well established procedure for such permission applications. The key adaptations will be the need to recognise the greater likelihood that the initial hearing will need to be without notice to the parties to the proceedings (although it will remain incumbent on the Security Service in each instance to justify a without notice application by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412) and the possible use thereafter of some species of closed procedure involving the deployment of special advocates when determining the application for permission.
  • As to the applicable principles for determining whether a closed procedure should be adopted (if requested), the Justice and Security Act 2013 s 6(11) provides for the making of a declaration in any proceedings (other than proceedings in a criminal cause or matter) before the High Court that the proceedings are proceedings in which a closed material application may be made to the court. No such provision is made however, in respect of proceedings in the Family Court. Further, the rules of court which govern the determination of an application for such a declaration, and any subsequent closed material application are those set out in the CPR Part 82. By CPR r 2.1(2), CPR Part 82 does not apply to family proceedings and CPR Part 82 is not otherwise incorporated into the FPR 2010.
  • In the circumstances, whilst it would appear possible to transfer family proceedings to the High Court in order to secure for the court a statutory jurisdiction to consider an application for a declaration pursuant to the Justice and Security Act 2013 s 6 that those family proceedings are proceedings in which a closed material application may be made, absent the incorporation of CPR Part 82 into the FPR 2010 there are at present no procedural rules for determining that application or any subsequent closed material application in the context of family proceedings.
  • Historically however, and notwithstanding it being seemingly well-established that the fundamental principle that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party can only be qualified or overridden by statute, and even then only expressly and not by implication (see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 132 and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at [45]), it is clear that special advocates have been utilised on a limited number of occasions in family proceedings to deal with issues of disclosure of sensitive material (see Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048 at [31]-[34] and [112] and BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974 at [13] to [48]). In A Chief Constable v YK and Others [2011] 1 FLR 1493 at [112], whilst declining the use of special advocates in that case, Sir Nicholas Wall observed that “there will be undoubtedly be circumstances in family proceedings in which they are appropriate”. The President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016 contemplates the use of closed hearings and special advocates in family proceedings.
  • In the circumstances (and whilst there may remain an argument to be had as to whether the use of some species of closed procedure in the Family Court is permissible absent express statutory provision for the same, or in family proceedings in the High Court pursuant to the Justice and Security Act 2013 absent any rules of procedure governing the same having been promulgated) at any initial hearing of an application by the Security Service for permission to disclose the court will need to consider, inter alia, the following matters:

 

i) Whether the application for permission is properly made without notice in the first instance. The application should contain brief reasons for seeking to pursue the application initially without notice to the parties by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412;

ii) Whether the Security Service invite the court to determine the application for permission on the basis of a closed procedure utilising special advocates;

iii) Whether the application is appropriate to be dealt with by means of the use of a closed procedure utilising special advocates having regard to the guidance set out in Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048, A Chief Constable v YK and Others [2011] 1 FLR 1493 BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974, the President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016.

iv) Any further directions for the hearing having regard to the court’s decision in respect of the foregoing matters, again having regard the guidance in the authorities and Practice Guidance enumerated at (iii).

 

 

And here’s a photo of Rupert Penry Jones for Spooks fans  (gratuitous, yes, but I’m sure that a Margot Robbie tenuous connection will come up soon enough to balance it out)

 

Richard Armitage was good, but Rupert was THE GUY

Richard Armitage was good, but Rupert was THE GUY

Child questioned on FORTY FOUR occasions about alleged abuse by father

Such abuse turning out to have never happened and having been fabricated by the mother.

 

This is an extraordinary case heard by MacDonald J

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)    

http://www.bailii.org/ew/cases/EWHC/Fam/2016/532.html

It was a private law case, though one threaded through by involvement with social workers, police officers and therapists.  It began when the mother of two children N and S, left TH (the father of S) and moved from Scotland to England.

She then made a series of allegations of abuse by TH, both against her and against the children.

To turn to the paragraph that gave this post its headline

 

78. Namely, that between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS that I will detail later in this judgment, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other and their mother, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N. Five different police officers were involved with interviewing the boys.

 

The Judge notes at the end of the judgment, the comments of the Guardian.

235. The Children’s Guardian attended each day of this fact finding hearing. Having listened to the evidence in this case the Children’s Guardian told the court that she considered this case to be “quite extraordinary“. Surveying the conduct of professionals in this case she concluded that “it is as if a sort of hysteria took over and prevented people from asking certain questions“. I cannot help but agree.

 

To be honest, the case is peppered with judicial despair/horror about what had happened, and I could pluck critical paragraphs from almost anywhere.

But the opening gives you a flavour of where things are going:-

 

  1. This is very troubling case. In Re E (A Minor)(Child Abuse: Evidence) [1991] 1 FLR 420 at 447H Scott- Baker J observed:
      1. “It is disappointing that, despite the passage of time since the Cleveland report, several witnesses had either not read the report at all or, if they had, they ignored its conclusions in many respects. Permeating the whole case is the underlying theme of ‘the child must be believed’. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue”.
  2. Seventeen years later Holman J felt compelled to make similar observations in the case of Leeds City Council v YX & ZX (Assessment of Sexual Abuse) [2008] 2 FLR 869 at [143] as follows:
      1. “I wish only to stress…the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting…Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”
  3. Eight years after the decision in Leeds City Council v YX & ZX and nearly 30 years after the Cleveland Inquiry I have found myself during the course of this hearing asking myself the self-same question as that posed by Holman J.

 

 

And the closing

 

  1. 230. I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.
  2. As I stated at the outset of this judgment, this is a very concerning case. In August 2014 the mother manufactured alarm using a falsified version of past events in an attempt to avoid returning the children to Scotland. Using a combination of emotional pressure, inappropriate exposure to adult discussions and, on occasion, coaching, the mother proceeded to recruit the children to her cause. With the aid of repeated and persistent poor practice by a range of professionals the mother further succeeded in enclosing the narrative she had created within a hermetically sealed bubble, thereby succeeding in preventing professionals carrying out the checks that would have revealed that the allegations that were being made first by the mother, and then by the children required, at the very least, a critical and questioning appraisal. Indeed, by reason of their almost entirely unquestioning approach towards the mother, a number of professionals simply acquiesced to their confinement in that bubble. Had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility.
  3. It is important to recognise that the professional failures I have set out have had consequences. By reason of the failure of the relevant agencies to follow the clear and well established guidance and procedure the children were not only left in a situation where a parent was permitted to persist in conduct that was harmful to their emotional welfare but, by their omissions, those agencies actively contributed to that harm.
  4. Child abuse, including child sexual abuse, exists as a terrible reality in society. Professionals charged with safeguarding the welfare of children must be constantly vigilant. As Ms Lot rightly pointed out to me, professionals are trained to adopt an approach by which they recognise that such abuse can happen anywhere. However, in circumstances where false allegations of abuse are also a reality in society, it is essential that this professional vigilance is allied firmly to the rigorous application of practice and procedure designed to ensure the proper investigation of allegations of abuse if injustices are to be avoided.
  5. Within this context, this case suggests that it is once again necessary to re-iterate the importance of the principles set out at Paragraphs 22 to 52 above. When investigating allegations of child abuse, including allegations of child sexual abuse, it is imperative that all professionals involved adhere to the law and guidance set out in those paragraphs so as to ensure the rigorous and fair investigation of allegations that is the foundation of ensuring the children concerned are safeguarded.
    In terms of detail, the Judge described one of the ABE interviews. Apologies that some of the questions are graphic, but I’m afraid that’s the nature of the allegations. Bear in mind that the ABE guidance is really clear and strong about the need for the account to emerge from the child and the need to avoid leading questions.
      1. 188….DC Hackworthy’s had concluded that S was not suitable for interview. S’s interview on 5 March 2015 took place in the context of him having little notice that it was going to take place, having been removed early from school for the interview, not having eaten and being given snacks prior to the interview, which he consumed during the interview. It is clear from watching the interview that this creates a distraction for S. The items he was given to snack on during the interview were given to him by his mother immediately before the interview commenced and were considered by S to be treats. As with N, at the outset of S’s interview at the outset of the interview DC Glendenning told S that “If you say something really, really interesting she is going to write it down“. DC Glendenning thus, once again, created a cue for S whereby he would know what the “interesting” answers were by watching the officer’s pen.
      2. During the course of his interview S stated that his father had hit him on the arm and had choked him. He said this happened when the mother went to “Nanny S’s” with N but his father said he could not go. S also alleged that his father gave him wine (a new allegation). Later S also alleged that TH punched him in the neck (also a new allegation). Thereafter S repeatedly made clear to DC Glendenning that that is the sum of what had happened he has nothing more to say. From watching the interview it is clear that S is very firm in this regard. Notwithstanding this, DC Glendenning continued to push S to reveal further matters. At this point the interview departed even further from the precepts of the guidance.
      3. After S has stated eight times that nothing else happened DC Glendenning embarked on the following exchange with S:
          1. Q: Right, what about when you are alone with your dad?

A: When I’m alone with my dad he’s been a, he’s been nice but when Grandma was, is here, he’s been nice when, when she isn’t here, she’ he hasn’t been nice.

Q: OK, has your dad ever done anything dirty to you? Dirty, that you didn’t like:

A: Mmm, nothing else.

Q: Nothing else, erm, also its very important today that we find out everything, erm and also we’ve been speaking to your brother and he said some things that your dad did that wasn’t very nice to him, and that were dirty. Had your brother told you about these?

A: No.

Q: As he ever told you anything that your dad did to him?

A: Mmm mmmm, hasn’t seen and I’ve forgot…nothing.

Q: Nothing, are you sure there’s nothing else that’s worrying ye and?

A: There’s nothing else.

Q: Nothing?

A: Mmmmm.

      1. Prior to this point S has not used the word “dirty” at any stage. In seeking to explain why she had introduced this DC Glendenning said in evidence that it was because it was “difficult to get him to open up” and she was trying to put “it” in S’s terms of something possibly sexual. DC Glendenning appeared initially to be unaware of the forensic difficulties created by the interviewer introducing the concept of “dirty” events in the context of S being alone with TH before S had raised the issue in any way. However, ultimately DC Glendenning accepted in cross examination it was wrong to introduce the word. DC Glendenning accepted that S may well have perceived this as her wanting him to say that his father had done something dirty to him.
      2. Notwithstanding that S had again made clear in response to the foregoing questions that nothing else had happened, DC Glendenning still persisted. She next informed S that she was aware that S had said things to Ms Khanom. DC Glendenning conceded in cross examination that she had no note of what it was that S was said to have said to Ms Khanom and, as set out above, that Ms Khanom had no clear recollection. Within this context the following exchange took place:
          1. Q: Can you remember what you told her?

A: I told her the same as I just told you.

Q: Nothing else?

A: I told her a little bit of it but not that much.

Q: I think she says you like to say it in its parts and its part 1 and part 2 when your talking about things.

A: Mmmm.

Q: And that you said that part 1 was dirty, can you, it’s really, really important if you could tell me what part 1 is today and then you don’t need to tell me again, can you tell me what part 1 is? What your dad did?

A: Mmmm, really don’t want to tell that bit.

Q: It’s just.

A: I really I really don’t like telling that bit.

Q: I know you really don’t like telling it but see, N’s been very very brave today and he’s told us part 1 and part 2, what happened to him. And obviously, we want to make sure that your safe and that you’re here safe with your mum so we need to know what [TH] did, so that we can make sure that your nice and safe and make sure if he’s a bad person that nothing else will happen to anybody else, do you understand that? And I know it’s, it’s scary telling strangers about things that happened but it’s very very important that we know, so that we can do the right thing and we can make sure that the bad man is dealt with, do you understand that? And Mihema (sic) told me that you told her, so just, if you just told me just that once, then I can sort, I can make it all sorted.

A: Well mummy told the nurse but I don’t want told her, the nurse parts1.

Q: I know.

A: Mum told that the bad, bad dirty man done it to me.

Q: I know, but it’s good that your mum told us, but we really need you to tell us, so that.

A: Mmmm

Q: So that we know exactly what happened, you only need to tell it once because that’s why the cameras are here cause one you tell it that’s it. And then you can go back and nobody will be annoying you again. Understand it is very very important. Could you just tell me it really, really quickly?

A: Mmm, Mmm, I couldn’t say it that quickly.

Q: Can’t say it that quickly, how about then, we go back, was it, was it in your dad’s house? In the flat?

That pain in your forehead is because you just banged your head on your desk or keyboard, or any solid object close at hand at how terribly leading that interview is. Oh. My. God.

    1. It is difficult to know where to start with respect to summarising what is wrong with the approach by DC Glendenning set out above. Indeed, the passage largely speaks for itself as an example of extremely poor interviewing practice. DC Glendenning’s questions start from the premise that something “dirty” has happened to S, that TH is the perpetrator (pre-cast by the questioning into the role of the “bad person” and the “bad man”), place emotional pressure on S by telling him that N and his mother are “brave” and “good” for telling what happened and that a statement by him is needed to keep others safe and make promises to S that are unjustified (i.e. if he tells it once he will not have to tell it again). In addition, certain of DC Glendenning’s questions were misleading in other respects. In particular, N had not in his interview made his allegations in terms of “part 1” and “part 2”. Finally, it is clear that S has plainly overheard his mother making allegations to a “nurse” that “the bad, bad dirty man done it to me“.
    2. Within this context, DC Glendenning’s was forced to concede during cross examination that she had during this phase of the interview placed grave pressure on a five year old child to make an allegation against his father. DC Glendenning further conceded that following this passage of questioning that S may well have felt he had little choice but to give DC Glendenning what she wanted.

 

And yet, we’re STILL not done with how bad this ABE could get.

    1. Following the exchange set out above DC Glendenning then proceeded to question S in detail starting, as can be seen, from the premise that something has happened. S told DC Glendenning that what occurred had occurred in Scotland, that he was wearing the pirate costume that he was wearing in the interview (which seems unlikely) and that N was not present. S said that his father did “a naughty thing“. When asked what this was S again limited his allegation to “He. He choked me and he hit me and, and he punched me, and and he, he made me drink that wine“.
    2. DC Glendenning tried yet again. Finally, after telling DC Glendenning that he only wanted to talk to one person, after it was proposed that the other officer leaves the room, and after DC Glendenning said “And you can quickly tell me what happened and then that’s it, would that be OK” S stated that TH “asked me to put his willy in my bum“. S went on to state that “he, he only asked though” and “He didn’t try he just asked“. When DC Glendenning asked “did he ever try and put his willy in your bum” S was adamant that he had not.
    3. Still DC Glendenning refused to accept that as the final position and re-introduces Ms Khanom, asking (again without having access to any recording of what S actually said to Ms Khanom) “Right, erm, when you speaking to Mihema (sic) earlier on, she says that your told her that your dad [TH] put his willy in your bum“. DC Glendenning did not seek to explore with S different versions he had given to Dr Haji and Ms Ille. When, at the end of this exchange, DC Glendenning askes S “Have you ever touched his willy?” S replies “Mmmm of course not“. Later in the interview S states that TH “didn’t do anything to mum“.
    4. Following the interview of S DC Glendenning completed an additional comments form. On that form DC Glendenning recorded her impression of S during the interview as being one of child who “appeared nervous, frightened and confused over what was right or wrong“. Within this context, during cross examination regarding the interviews of S and N on 5 March 2015 DC Glendenning conceded that she was concerned during the interviews that both the children had been coached and that that concern never fully left her during the course of those interviews.

 

 

The social work interview with the children took place WHILST the mother was present and in front of EACH OTHER. I apologise if you now have another blinding pain in the head. Sorry.  Pause for a moment, and pop a pillow in front of you. You will still feel the head-desk urge, but you will now have a softer landing.

 

On 8 December 2014 both children were seen by a social worker from Westminster, a Ms Ille. The records demonstrate that the children were repeatedly questioned by the social worker together and in the presence of the mother and in a highly leading manner that paid no heed at all to proper practice.

 

Once again, I am entirely unclear why Ms Ille, a qualified social worker, saw fit to question the children in company of each other and in front of their mother and to allow the mother to participate in that questioning and to reveal her worries and concerns in the presence of the children. Efforts to secure the attendance of Ms Ille for cross examination proved unsuccessful.

 

Have you got that pillow or soft object handy? If not, get it now. Because we’re going back to a bit about the ABE interview that I didn’t dare tell you before.  DEPLOY your pillow now.  Actually, get a second pillow. Use that too. You are seriously not going to believe this.

 

  1. Further, DC Glendenning stated that she realised straight away that N had notes with him. She further stated that she was concerned that it was possible someone had helped him write those notes. In evidence the mother claimed that N compiled these the night before the interview by himself upstairs. She denied that she talked to him about what he should say in the interview. DC Glendenning was clear in her view that the mother had seen the notes prior to the interview and said as much. DC Glendenning was also certain that the mother had known N was writing the notes and had read the notes prior to the start of the interview. DC Glendenning said she was concerned that N had been prepared for the interview.
  2. Notwithstanding her concerns that N had been prepared for the interview, DC Glendenning proceeded to interview N with his notes available to him. DC Glendenning justified this course of action by reason of N being “desperate” to have access to the notes. N’s desperation to have the notes is clear from the DVD of the interview which I have seen. In particular, it is significant that when it became apparent to N that his notes may be removed, N became flustered and gave a confused answer which indicated that his recollection was not firm.

 

You say notes, I say script, let’s call the whole thing off. Yes, let’s…..

 

There’s another social work investigation, but the social worker doesn’t speak to anyone other than mum and the children, having been told by mum that it is too dangerous for the family for anyone who knows dad to be approached. The social worker had to accept that she had approached the case as though all of the allegations were true, and commended mum for taking protective action when closing the case.

 

  1. I have made reference above to the social worker, Ms Salamant. The refuge made a referral to Hackney Children’s Services on 8 September 2014. Hackney commenced a s 47 investigation on 9 September 2015, which assessment was concluded on 23 October 2014. Ms Salamant was the allocated social worker. There were patent deficiencies in her assessment.
  2. The assessment was completed solely based on information from the mother or information for which the mother was the only source and, latterly, on information gleaned from the children at a series of meetings and, in respect of N, an ABE interview. During her evidence Ms Salamant conceded that, in complete disregard of the principles of good practice that I have set out above, she at no point contacted either father of the children or any member of the children’s extended maternal or paternal families and at no point contacted the children’s previous schools or the health services previously engaged with the children. Ms Salamant further conceded that she did not speak to the mother’s new partner, ER, nor sought to carry out police checks with respect to him (notwithstanding that the refuge expressed concern regarding this relationship).[2] Indeed, until told in the witness box Ms Salamant did not know his address or that he too had children.
  3. Ms Salamant’s omissions were grounded in an apparent unquestioning acceptance of the mother’s claim that it was too dangerous to contact the fathers, the maternal and paternal extended families, the children’s former schools and doctors or the local authorities from whose area they had moved for fear that TH would locate the family. Ms Salamant accepted without question the allegations made by the mother that that TH and BC had “colluded” to find the mother’s address in England, that TH was linked to drug dealers, that “someone” may be sent to England to find the family, that TH was seeking to kidnap the children and that her own mother might accept money from TH to disclose the family’s whereabouts. Ms Salamant made no efforts to investigate whether these matters that the mother claimed prevented a full assessment were, in fact, credible. As I have already set out above, each of the assertions by the mother were, it transpires, entirely un-evidenced and, I am satisfied, untrue.
  4. Finally, and as a consequence perhaps of her one dimensional assessment, it was plain to me having heard her in the witness box that Ms Salamant had proceeded at all times on the basis that the allegations made by the mother and the children regarding domestic and sexual abuse were, without question, true. At no point did Ms Salamant interrogate this assumption.
  5. In light of the findings I set out in the Schedule at the conclusion of this judgment, it is sobering to note that when she closed the case on 23 October 2014 Ms Salamant stated that the mother:
      1. “…has taken all the necessary steps to ensure that N and S are safe from harm and has demonstrated a capacity to reflect on her experiences and provide the children with a sense of stability and safety during this uncertain time.”

On behalf of the mother, Ms Krish concedes, very properly, that Ms Salamant’s assessment, when viewed, as it must be, through the prism of the guidance set out in the Cleveland Report and Working Together to Safeguard Children 2015, was fundamentally flawed and lacked even the basic information upon which to base judgments regarding the welfare of the children or the credibility of their and their mother’s allegations.

 

There was a pre ABE meeting in October 2014, and unfortunately, the recollections of the social worker and police officer as to what happened at that meeting do not only fail to match but they are diametrically opposed.

 

  1. As a result of the mother’s report of what N and S had said on 11 September 2014 the children were seen at the refuge by two Police Officers, DC Card and DC Bishop, and Ms Salamant. The account of DC Bishop and that of Ms Salamant as to what N said on this occasion are diametrically opposed. Neither DC Bishop nor Ms Salamant took contemporaneous, or near contemporaneous notes of their conversation with the children. S refused to speak despite encouragement from his mother in the presence of the two Police Officers and Ms Salamant.
  2. Ms Salamant stated in evidence that upon arrival there was a brief discussion between the adults present in the presence of the children. Ms Salamant stated that this was a “general conversation” at which it was explained to the children that police officers present to ensure they were safe and well. Ms Salamant could not however recall the full conversation. DC Bishop said the mother was with the children for the whole of the introductory conversation during which DC Bishop was talking to the children. In contrast to Ms Salamant, DC Bishop estimated that that conversation lasted 15 to 20 minutes. No record of that conversation was made.
  3. With respect to the allegations said to have been made by N, Ms Salamant could not recall what N had actually said nor the context in which he said it. After returning to the office and nearly three hours after the meeting had begun Ms Salamant made an entry in her records, namely that (a) TH had played with S’s privates, (b) TH tried to drown me and gave me “Chinese” burns and (c) he witnessed TH hit his mother. Ms Salamant also recorded that “N made a disclosure stating that [the mother] is isolated and is not in touch with friend and family“. She conceded that N would not have used the form of language in the record she completed and accepted that her recording was wholly inadequate. She further recalled that the mother had made the same allegations as those she ascribed to N and appeared, ultimately, to be uncertain as to whether that which is recorded in her record came from N or from the mother.
  4. Within this context DC Bishop, having also participated in the conversation with N, recorded in her pocket book only that N “stated that his brother’s dad had hurt him when he dropped food on the floor.DC Bishop readily conceded that her notes were very poor. DC Bishop was however very clear in her oral evidence that N made only one allegation. DC Bishop said that she did not hear N say anything about the matters recorded by Ms Salamant in the social work records. In my assessment, DC Bishop was a more reliable historian that Ms Salamant

 

 

Interview by GP

 

(vii) Appointment with Dr Haji on 8 October 2014

  1. On 8 October 2014 N and S were taken to see Dr Haji, a general practitioner. It would appear that at the outset of the appointment the mother gave Dr Haji an account of the family’s background and of the allegations of sexual abuse in the presence of both N and S. The social work entry records that, in front of S, Dr Haji asked N to describe what he had seen TH doing to S and that (in another slightly different account) N is recorded stated that TH “touched S down below and entered him.”
  2. Dr Haji records that S was “unfortunately present” when N pointed to his penis and said he tried to put this into S’s back passage. Within this context, the social work record of this appointment states that at this point, and several times thereafter, S interjected forcefully and said “that’s a lie, that didn’t happen“. Dr Haji’s note records that S shouted that “this had not happened“. Within this context Dr Haji is recorded as having contacted children’s services to express his initial concern that S (given the context I suspect the recording is mistaken and Dr Haji in fact said N) may have been asked to disclose the sexual assault allegation.
  3. I am entirely unclear why Dr Haji saw fit to take a history from the mother of the family’s issues in front of the children. Notwithstanding that it produced several forceful, and forensically significant, denials from S, I am equally unclear why Dr Haji considered it to be proper to permit N recite his allegation concerning the sexual abuse of S in S’s presence

 

 

There were allegations at school, and the procedures there too were not followed

 

  1. The most recent safeguarding training at the school, a copy of which I have also seen, makes clear under that the ‘Cause for Concern Form’ must include exact information, the name of the child and the date. The training makes clear that the teacher receiving the allegation must not ask questions and should not tell carers of concerns unless part of an agreed strategy.
  2. Both Ms Lot and Ms Duggan appear to have failed comprehensively to follow their own school’s safeguarding guidance and training and the accepted good practice with regard to the recording of allegations made by children. In the case of Ms Lot, in addition to not making any written record, she proceeded to question N and informed the mother (apparently in N’s presence) of what he had said. These are in my judgment serious omissions on the part of a teacher fulfilling a child protection role. As a result, the court is left with no accurate record of what N said and no clear idea of when he said it.

 

 

The Judge was satisfied that the father had not abused the children and that the mother had fabricated the allegations. There’s a lot of detail in the judgment about this, if you are sceptical, I’d point you towards reading that. (Being fair, just because the investigative process was flawed does not mean that the allegations were untrue, so you would need to read those passages to be sure).

 

  1. Standing back to survey the broad canvas of the evidence, I am satisfied for the reasons I have given that not only were the allegations made by the mother and the children false, but further that the allegations made by the children were generated by the mother placing unwarranted emotional pressure on the children by herself making false allegations regarding TH and making them known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations against TH.
  2. In the case of Re W (A Child) [2014] EWCA Civ 772 Ryder LJ (as he then was) observed as follows with respect to the significance of parents who make or cause to be made false allegations of physical and sexual abuse:
      1. “Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.”
  3. Within this context, and having regard to the extensive matters set out above, I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.

 

The Judge also outlined that the failure of all of the professionals to follow proper procedures had harmed the children and compounded the emotional harm that the mother was causing them.

 

  1. I am further satisfied on the evidence that the actions of certain professionals in this case breached well-established principles of good practice, actively contributed to the difficulties that I have set out above and materially prejudiced the welfare of both children:
    1. i) Almost all the professionals and agencies involved with the children proceeded on the unquestioning basis that the mother was telling the truth and failed to interrogate that assumption by carrying out basic enquiries. The most acute example of this was the assessment of Ms Salamant. Ms Krish properly concedes that the social worker never really challenged the mother’s account and that the most basic independent professional enquiries were not undertaken. Ms Salamant’s failure to challenge the mother’s account and accept it at face value meant that she permitted the mother to dictate completely the frame of reference for the actions of the local authority and other agencies and meant that mother succeeded in portraying herself and the children as victims of serious physical and sexual abuse when in fact they were not. Ms Salamant’s failure to make enquiries of the fathers, the children’s extended families, the children’s schools, doctors and previous local authorities was particularly egregious in circumstances where such enquiries would have revealed a fundamentally different picture to that being painted by the mother.

ii) A number of professionals failed in their duty to keep accurate records of what the mother and the children were saying. This failure was particularly acute (a) on 12 September 2014 where neither DC Bishop nor Ms Salamant kept accurate records of their meeting with the family, resulting in accounts of what the children said that were diametrically opposed, (b) at N’s school in September and October 2014 where Ms Duggan and Ms Lot failed to make any record at all of the allegations made by N in breach of the schools own safeguarding policy, Ms Lot attempting to pass this failure off as a feature of the case being open to social services and (c) on 29 October 2014 when DS Hackworthy took no notes at all of his pre-ABE interview with N and S. Outside the interviews of the children, not one professional recorded a contemporaneous or near contemporaneous account of what the children said to them.

iii) A number of professionals took it upon themselves to question the children with respect to the allegations outside the regulated confines of an ABE interview. There was a particular failure to follow the guidelines by (a) Dr Haji on 8 October 2014 who proceeded to elicit an account from N in front of S, (b) Ms Lot at N’s school between September and October 2015, who took it upon herself to ask multiple questions of N, (b) Ms Ille on 8 December 2014 who repeatedly questioned both children in a highly leading manner (having never met the children) and (d) Ms Khanom who likewise proceeded to question the children in a leading manner.

iv) There was an apparent failure of agencies to co-ordinate their interventions in respect of the children. The most extreme symptom of this was the number of professionals the children were spoken to by in respect of the allegations. As set out above, between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N with five different police officers were involved with interviewing the boys.

v) For the reasons I have set out above both DC Bishop and DC Glendenning failed to apply, in the case of DC Bishop, Achieving Best Evidence, and in the case of DC Glendenning, the Guidance on the Joint Investigative Interviewing of Child Witnesses in Scotland. The results of this failure are plain from the passages of the interviews set out above. DC Glendenning conceded that the sole purpose of the interviews on 5 March 2014 was “to get evidence of sexual abuse“. DC Glendenning’s conduct of the interviews on 5 March 2014 with N and S represent in my judgment particularly serious examples of poor interviewing practice.

vi) Finally, ahead of any findings of fact being made or criminal conviction in respect of the allegations, CAMHS intervention in this case extended to therapeutic intervention for N by three psychiatric and psychological specialists in addition to group therapy over 29 sessions and for S over six Play Therapy sessions on the basis that both children had been abused in the manner alleged by the mother.

 

 

 

High Court gets into the groove

 

They had style, they had grace

Lots of lawyers in this case

Setright, Verdan, Renton too

Adam Wolanski, we love you

Ladies with an attitude

Fellows that were in the mood

Don’t just stand there, let’s get to it

Write a skeleton, there’s nothing to it

Hague

 

 

The laboured opening may tell you that this piece is about the High Court case in Ciccone v Ritchie (No 2) 2016 involving the singer Madonna, and the film-maker Guy Ritchie, and their son.  [And no, it is not a request for a section 37 report arising from the Judge having had to view the film Castaway that they made together, though that did cause Significant Harm to anyone who saw it]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/616.html

 

I’m going to start with how the Judge ended, because I think it is powerful and moving stuff, with much wider application than just these two celebrities.

  1. Finally, I would say this. For all the interesting legal argument and great learning that is apparent from the admirable skeleton arguments and submissions of leading and junior counsel, at the root of these proceedings (and, I venture to add, the proceedings in the United States) is a temporary breakdown in trust. For all the media coverage, comment and analysis, this is a case born out of circumstances that arise for countless separated parents the world over.
  2. The court should always be the option of very last resort when parents cannot agree matters in respect of their children. Whilst the law provides a mechanism for the resolution of disputes between parents in respect of their children it is but a blunt instrument when compared to the nuanced virtues of calm discussion and considered compromise between those involved, accepting that this latter path can be a hard one on which to embark, and to sustain, in the context of relationship breakdown. It is for this reason that during the course of the proceedings on each side of the Atlantic Judge Kaplan and myself have repeatedly urged the parties to adopt a consensual approach to resolving the matters of dispute between them for the benefit of Rocco.
  3. Within this context I renew, one final time, my plea for the parents to seek, and to find an amicable resolution to the dispute between them. Because agreement is not possible today does not mean that agreement will not be possible tomorrow. Most importantly, as I observed during the course of the hearing, summer does not last forever. The boy very quickly becomes the man. It would be a very great tragedy for Rocco if any more of the precious and fast receding days of his childhood were to be taken up by this dispute. Far better for each of his parents to spend that time enjoying, in turn, the company of the mature, articulate and reflective young man who is their son and who is a very great credit to them both.

 

In terms of points of law, there are some worthwhile passages about transparency – this Court case has attracted a lot of media attention in America, because there are ongoing proceedings in New York (where it seems the Press were allowed to come into the hearings, report what was said and even print a still photograph)  – should this judgment be published at all, should there be anonymisation – how exactly CAN you anonymise a case where there is already so much within the public domain, and where anyone with half a brain can identify who the parties are, even if you gave them just “M” and “F” initials?

I do like that the key American decision on transparency in these circumstances is actually called Anonymous v Anonymous

 

Publication of Judgment

  1. I set out the principles applicable when deciding whether or not to publish a judgment pursuant to the President’s Guidance in my judgment in H v A (No 2) [2015] EWHC 2630 (Fam) and I shall not repeat them in detail here. In summary:
  1. i) The public generally have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their jurisdiction.

ii) Paragraph 19 of the Practice Guidance makes clear that in considering whether to publish a judgment the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, Art 8 (respect for private and family life) and Art 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.

iii) The exercise of discretion concerning the publication of the judgment will be a simple case management decision to be taken at the conclusion of the judgment and following a broad consideration of the applicable principles with basic reasons;

iv) When conducting a balancing exercise between Art 8 and Art 10, the court applies the four propositions identified by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]. In applying what Lord Steyn described as the “ultimate balancing test” of proportionality it is important that the court consider carefully whether the order that is being sought is proportionate having regard to the end that the order seeks to achieve;

v) Within the balancing exercise, the child’s best interests are not paramount but rather are a primary consideration. Those best interests must accordingly be considered first, although they can be outweighed by the cumulative effect of other considerations;

vi) In undertaking the requisite balancing exercises, the impact of publication on the children must be weighed by the court. Whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In particular, in each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child.

vii) When the court is considering whether to depart from the principle of open justice it will require clear and cogent evidence on which to base its decision. Some of the evidence on which the requisite balancing exercise is undertaken will necessarily involve a degree of speculation although there comes a point where evidence is not merely speculative but pure speculation.

  1. With respect to the latter point, and noting the difference in emphasis between the two jurisdictions, in reaching her decision that there were no compelling reasons to close the proceedings in New York Judge Kaplan cited the following passage from the decision of the Appellate Division of the Supreme Court of New York, First Department in Anonymous v Anonymous 158 A.D.2d 296 (1990) as follows:
    1. “The unsupported speculation by her counsel as to the deleterious effect the media coverage might have on the child is simply inadequate to overcome the strong presumption that court proceedings be open to the public.”

 

Publication of Judgments

  1. Balancing the competing Art 8 and Art 10 rights, I am satisfied that my judgment of 3 February 2016 following the hearing on 21 December 2015 and this judgment should be published. I am further satisfied that, in the exceptional circumstances of this case and subject to some limited redaction, the judgments should be published without anonymisation. The reporting restrictions in this case will continue to be governed by the order that I have already made and will apply to the reporting of my published judgments. My reasons for so deciding are as follows.
  2. The starting point in this case must be that it will simply not be possible for the court to produce an anonymised version of the judgments such as to eradicate the risk of jigsaw identification. Given the high level of publicity the world over in respect of this case, to produce a judgment that gives rise to no risk of jigsaw identification would result in a judgment that could not even indicate the dates on which the proceedings were heard. Within this context, and in the very particular circumstances of this case, I accept Mr. Wolanksi’s submission that in light of the level of information already in the public domain concerning this case, it is unrealistic to think that the judgments given by this court could be anonymised to the extent required to ensure the parties were not identified whilst at the same time remaining a means by which what the court has done in this case can be understood by the public at large.
  3. In these circumstances, I am satisfied that the choice for the court is to publish the judgments without anonymisation or not to publish them at all.

 

The key legal issue was whether a party who makes an application under the 1980 Hague Convention then needs leave of the Court to withdraw it.

The Court ruled that there does need to be an application to withdraw and for the Court to grant leave.

 

The Law

Permission to Withdraw

  1. FPR 2010 r 29.4 provides as follows in respect of permission to withdraw an application:
    1. 29.4 Withdrawal of applications in proceedings

(1)     This rule applies to applications in proceedings –

(a) under Part 7;

(b)     under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child or;

(c)  where either of the parties is a protected party.

(2) Where this rule applies, an application may only be withdrawn with the permission of the court.

(3) Subject to paragraph (4), a person seeking permission to withdraw an application must file a written request for permission setting out the reasons for the request.

(4) The request under paragraph (3) may be made orally to the court if the parties are present.

(5) A court officer will notify the other parties of a written request.

(6) The court may deal with a written request under paragraph (3) without a hearing if the other parties, and any other persons directed by the court, have had an opportunity to make written representations to the court about the request.

  1. The question to which this case gives rise is whether FPR 2010 r 29.4 applies to applications in proceedings under the 1980 Hague Convention and, if so, what the test is for giving permission to withdraw in such cases.
  2. As set out above, there is no authority precisely on this point. In respect of proceedings under the 1980 Convention some authorities appear to have proceeded on the basis that permission to withdraw is not required (see AA v TT (Recognition and Enforcement) [2015] 2 FLR 1) and some on the basis that it is required (see Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2008] 2 FLR 351 at [16] setting out the terms of an order made earlier in those proceedings and the recent decision of the President in Re D (Children)(Child Abduction Practice) [2016] EWHC 504 (Fam)). In none of those cases however, was the court requested to consider whether the permission of the court to withdraw was mandated by r 29.4 in this context.
  3. Anecdotally, my (admittedly limited) experience suggests that many practitioners do consider that the permission of the court is required to withdraw applications in proceedings under the 1980 Hague Convention and I have certainly endorsed a number of orders which provide for such permission in cases where an applicant has decided, for whatever reason, not to proceed.
  4. The remaining authorities on permission to withdraw concentrate exclusively on public law proceedings under Part IV of the Children Act 1989 (see Re N (Leave to Withdraw Proceedings) [2000] 1 FLR 134, WSCC v M, F, W, X, Y and Z [2011] 1 FLR 188 and Redbridge LBC v B and C and A (Through his Children’s Guardian) [2011] 2 FLR 117). These authorities make clear that in public law children proceedings, where the threshold is capable of being crossed the test for whether permission should be given for care proceedings to be withdrawn is the welfare of the child.
  5. However, care must be taken in relying on these authorities in the context of the question at issue before this court. First, those authorities were decided under the Family Proceedings Rules 1991 r 4.5 which, as detailed below, differs substantially from FPR 2010 r 29.4. Second, and importantly, the conclusions in those authorities that the question of whether care proceedings should be withdrawn is a question which concerns the welfare or upbringing of a child, and that the test for whether permission should be given is the welfare of the child, are grounded firmly in the fact that the upbringing of the child is the main question falling for determination in such proceedings (see London Borough of Southwark v B [1993] 2 FLR 559 at 572).
  6. It is important to note that the procedural requirement of permission for the withdrawal of proceedings is not limited to cases involving children, either in FPR 2010 r 29.4 or more widely. FPR 2010 r 29.4(1)(a) applies r 29.4 to applications in proceedings under Part 7 of the FPR 2010, namely applications in matrimonial and civil partnership proceedings, and is not qualified as only applying where the application concerns the welfare or upbringing of a child. Accordingly, pursuant to FPR 2010 r 29.4(1)(a) permission is required to withdraw an application for a marriage or civil partnership order governed by FPR 2010 Part 7 notwithstanding the proceedings do not concern the welfare or upbringing of a child. There are also other areas of law where permission is required to withdraw an application in proceedings. For example, under the Insolvency Act 1986 s 266(2) a bankruptcy petition may not be withdrawn without the leave of the court.
  7. Finally, and within this context, when considering both the scope of the application of FPR 2010 r 29.4 and the test for permission under it, it is very important to read FPR 2010 r 29.4 in its proper context. That context includes the fact that the FPR 2010 represents a new procedural code with “the overriding objective of enabling the court to deal with the case justly, having regard to any welfare issues involved” (FPR 2010 r 1.1). The court must give effect to the overriding objective when it exercises any power under the FPR 2010 (FPR 2010 r 1.2(a)) and has a duty to further the overriding objective by actively managing the case (FPR 2010 r 1.4(1)). Pursuant to FPR 2010 r 1.2(b) the court must also seek to give effect to the overriding objective when it interprets any rule.

 

  1. I have come to the conclusion that FPR 2010 r 29.4 does apply to applications in proceedings under the 1980 Hague Convention, governed as they are by FPR 2010 Part 12 Chapter 6 and that, accordingly, the permission of the court is required to withdraw such proceedings. My reasons for so deciding are as follows.
  2. In my judgment this is the plain meaning of FPR 29.4(1)(b). FPR 2010 r 29.4(1)(b) provides that r 29.4 applies to applications in proceedings “under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child“. I am satisfied that r 29.4(1)(b) is to be read disjunctively and that the words “where the application relates to the welfare or upbringing of a child” are intended to qualify only the words “any other Part” and not the words “under Parts 10 to 14“. I am reinforced in this view by the fact that Part 10 to Part 14 of the FPR 2010 deal with a wide range of applications that do not, or need not concern the welfare or upbringing of a child.
  3. Whilst it might be argued that the use of the phrase “any other” in r 29.4(1)(b) demonstrates that Parts 10 to 14 are included in r 29.4 only in so far as they apply to applications concerning the welfare or upbringing of children, if this had been the intention I am satisfied that those who drafted the rules would have said so expressly, rather than leaving it to be implied in circumstances where, as I have said, those Parts also deal with applications that need not, and often will not, concern the welfare and upbringing of children. Further, pursuant to FPR 2010 r 1.2(b) when interpreting r 29.4 I must seek to give effect to the overriding objective in FPR 2010 r 1.1. In my judgment reading r 29.4 in this context further militates against this latter interpretation.
  4. FPR 2010 r 29.4 represents a broadening of the type of applications in respect of which permission is required to withdraw when compared with the Family Proceedings Rules 1991. The previous rules, in the form of Part IV of the FPR 1991, made provision for permission to withdraw proceedings only in relation to proceedings under the Children Act 1989 (FPR 1991 r 4.5). For example, although FPR 1991 r 2.8 permitted the discontinuance of a petition for divorce, judicial separation or nullity before service of that petition, the rules made no provision for the proceedings to be withdrawn following service. By contrast, whilst pursuant to FPR 2010 r 7.9 an application for a matrimonial or civil partnership order may be withdrawn at any time before it has been served by giving notice to the court in writing (reflecting the provisions in FPR 1991 r 2.8), pursuant to FPR 2010 r 29.4(1)(a) following service the permission of the court is required before such an application can be withdrawn. Neither FPR 2010 r 29.4(1)(a) or FPR r 29.4(1)(b), which deals with applications in proceedings where either of the parties is a protected party, are not qualified as only applying where the application concerns the welfare or upbringing of a child.
  5. Within the foregoing context, in my judgment interpreting r 29.4 as including within its scope all of the applications governed by Part 10 to Part 14 of the FPR 2010, as opposed simply to those concerned with the welfare or upbringing of a child, is consistent with the overall aim of the FPR 2010 generally and in particular the aim of FPR 2010 Part 1, which requires the court to actively manage the case so as to further the overriding objective of dealing with it justly, having regard to any welfare issues involved.

 

The Judge recognised and acknowledged that where a party seeks permission to withdraw an application under the Hague Convention, it is next to impossible to conceive of a scenario where the Court would refuse and make them press on.

It would not serve the ends of justice to compel a party to pursue an application under the 1980 Hague Convention that they wish to bring to an end. Indeed, whilst not ruling out such a course of action entirely, it is very difficult indeed to think of a circumstance where the court would compel an applicant in proceedings under the 1980 Hague Convention to pursue an application they have indicated they wish to withdraw. Further, having regard to the overriding objective, there are positive merits in this case to permitting the mother to withdraw her application in this jurisdiction. As I observed during the course of the hearing, at present the existence of parallel proceedings in two jurisdictions, before two judges with two sets of lawyers is introducing unnecessary and unhelpful complexity and hindering attempts at settlement, as well as incurring considerable expense. Accordingly, I give permission for the mother to withdraw her proceedings under the 1980 Hague Convention.

 

Finally, just for style points, I have to give a nod to Mr David Williams QC for this turn of phrase

The mother accepts that the Supreme Court of the State of New York has jurisdiction in this matter. The father made clear during the course of this hearing through Mr. Verdan that he, likewise, accepts that the New York Court has jurisdiction, albeit at the outset of the hearing Mr. Verdan submitted that this court should make certain substantive welfare orders in respect of Rocco. Whilst in his Skeleton Argument Mr. Setright undertook an analysis of the jurisdictional position in this case (including an analysis of habitual residence) and submits that this court should, upon the withdrawal of these proceedings, give certain procedural directions aimed at any future applications made in this jurisdiction, he does not suggest at this time that Rocco disputes the jurisdiction of the court in New York. Within this context, and with respect in particular to orders originally sought by the father, Mr. Williams submitted that it would be wrong for the English court to seek to “park its tanks” (to use his phrase) on the front lawn of the United States by taking any steps beyond those necessary to effect the withdrawal of the proceedings under the 1980 Hague Convention.