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Tag Archives: mckenzie friend

Cross-examining alleged victim without a lawyer

 

Readers may remember a long-running issue about the fact that in crime, an alleged perpetrator of rape is banned from cross-examining the alleged victim whereas we have ended up in private family law of that being something that is not only not banned but cropping up more and more as an issue, because the Government cut legal aid.  Readers might also remember that following a campaign in the Guardian, the Lord Chancellor at that time declared that legislation would be introduced to fix that problem. The draft legislation was drawn up, and then the Government decided to embark on the Greatest Political Idea of All Time TM, in which in order to increase their working majority, they held an election years early and converted said working majority into a hung Parliament.

I’m afraid that I can’t see the draft legislation now for all of the long grass that it is hiding within. Anyone in the Press want to remind the Government that they promised to fix this mess and haven’t?

 

Apologies in advance for pedants – the law report uses McKenzie Friend and MacKenzie Friend completely interchangeably and nobody in the Court of Appeal seems to have corrected this.  It should be Mc, NOT Mac.  /Furiously checks document

This is an appeal where the father in a set of private law proceedings was accused of having raped the mother and he denied it. He did not have a lawyer, but did have a McKenzie Friend. Should the McKenzie Friend have been given rights of audience and allowed to cross-examine the mother?

 

 

Panini McKenzie Friend stickers album – “Got, got, need, got, oh NEEED”

 

(actually, the sticker should have been one of Duncan’s friends, not Mr McKenzie himself….)

 

Re J (Children) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/115.html

  1. There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as “obviously a very experienced Mackenzie Friend”. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.
  2. It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that ‘the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other’. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:
    1. “15. The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.”
  3. The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, “address the court, make oral submissions or examine witnesses”.
  4. The judge refused the application saying:
    1. “19. At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.”

 

 

What ended up happening in the case is that the finding of fact hearing never took place, because of the anxieties the Court had about how the mother could be questioned about these events. By the conclusion of the private law proceedings, the children were expressing very strong views about their father

 

  1. The judge provided an extensive summary of the NYAS worker’s report which recorded that the children were “extremely loyal to their mother” and adamantly against contact. So far as A is concerned the judge said:
    1. ‘A gave [NYAS worker] a statement he had prepared and said no-one had read. He would be delighted to give evidence against his father. Despite what he said, it appeared later in the report that the children, which really means A and B, had written at the suggestion of their mother acting on advice from her solicitor. … What I do note is that A’s statement … even assuming that what A was saying factually was true, is a very disturbing document to read. It has the imprint of his mother’ accusations. However, even allowing for the possibility of him imbibing unquestioningly all his mother had said, he nevertheless presents as an intelligent and fiercely independent young man’.

The judgment continues by describing the content of the statement the force of A’s negative opinion of the father that is expressed within it, before recording the judge’s overall opinion that the statement

‘is an extremely distressing read – I am not sure I have seen such a vitriolic condemnation of a parent by a teenager for many a long year.’

  1. The judge’s detailed summary of the children’s wishes and feelings, as described by the NYAS worker, continued by setting out B’s wishes, which were in line with his older brother. The youngest child, C, was also ‘clear that she did not want to see’ her father. The judge’s account of her wishes includes the following:
    1. ‘She wrote that she wanted all the bad things dad had caused to go away. She wished they had never gone to the refuge and she wished she did not have nightmares about dad. She did not want to see him EVER (ever in capital letters). No-one could drag her kicking and screaming to see her father. On the second visit she was even more emotional and angry.’

 

At the Court of Appeal, the father had the assistance of his McKenzie Friend and the Court of Appeal were complimentary about the help that the McKenzie Friend had given to the Court.

 

  1. For some time now the Court of Appeal has normally granted rights of audience to a bona fide McKenzie Friend. The experience of doing so has been very largely positive in that those McKenzie Friends who have taken on the role of advocate have done so in a manner which has assisted both the court and the individual litigant, as, indeed, was the case in the present appeal. Although it may have become the norm at this appellate level to grant rights of audience, that should not greatly impact upon the altogether different issue of rights of audience at first instance, particularly in a fully contested hearing. Assisting a litigant to marshal and present arguments on appeal is a wholly different task from acting in the role of counsel in a trial.

 

The Court of Appeal recognised the vexed issues that this case threw up.

 

  1. Direct questioning of an alleged victim by the alleged perpetrator has long been considered to be a highly undesirable prospect by family judges. It was contemplation of that process which led Roderic Wood J to flag the problem up in the first place in H v L & R. In Q v Q and in Re K and H, the need to look for alternative acceptable means for cross examination led to the court sanctioning orders against HMCTS. It is clear that the experience of those judges who have felt forced to permit direct questioning from an alleged abuser is extremely negative. In very recent times Hayden J, in Re A (above) has concluded that, following his experience in that case, he is not prepared to contemplate repeating the process in any subsequent case. Hayden J’s clear and eloquent observations deserve wide publication:
    1. ’57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).

58. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

59. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

60. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.’

  1. Hayden J’s words demand respect, both because they come for a highly experienced family lawyer and judge, but also because of the force with which they were expressed following immediately upon first-hand experience of observing an alleged victim being directly cross examined by her alleged perpetrator and despite the significant degree of protection the court had sought to provide for her.

 

 

In deciding whether the Judge was wrong to refuse the McKenzie Friend rights of audience to conduct the cross-examination of the mother, the Court of Appeal decided that he was not

 

  1. In between the option of direct questioning from the alleged abuser and the alternative of questioning by the judge sits the possibility of affording rights of audience to an alleged abuser’s McKenzie Friend so that he or she may conduct the necessary cross examination. The possibility of a McKenzie Friend acting as an advocate is not referred to in PD12J and, as has already been noted, the guidance on McKenzie Friends advises that, generally, courts should be slow to afford rights of audience. For my part, in terms of the spectrum of tasks that may be undertaken by an advocate, cross examination of a witness in the circumstances upon which this judgment is focussed must be at the top end in terms of sensitivity and importance; it is a forensic process which requires both skill and experience of a high order. Whilst it will be a matter for individual judges in particular cases to determine an application by a McKenzie Friend for rights of audience in order to cross examine in these circumstances, I anticipate that it will be extremely rare for such an application to be granted.

  1. For the reasons that were given earlier, if the complaint in Ground ‘B’ is that the McKenzie Friend should have been permitted rights of audience in order to cross examine the mother and A, I do not consider that the judge’s decision is open to challenge on any basis. Such an application should rarely, if ever, be granted. The material before us falls short of establishing that there was a blanket policy in place in Manchester prohibiting the grant of rights of audience to McKenzie Friends to cross examine key witnesses. If the judge’s observations are no more than a report that, from his knowledge, such an application had never been granted in Manchester, then, on the basis of the view that I have expressed, that would not be surprising.
  2. If, on the other hand, the judge can be taken to have refused any rights of audience to the McKenzie Friend, on the basis that the local practice was never to grant any form of rights of audience, then, again for the reasons that I have given, the judge was in error. Each application for rights of audience should be determined on the basis of the specific factors that are in play in the individual case. Rights of audience may be granted for a particular hearing, or for a discrete part of a particular hearing, and a blanket policy of never granting such rights is not supported by the Practice Guidance or generally. Whilst it will be rare for full advocacy rights to be granted at a sensitive fact-finding trial, it may be an altogether different matter to permit a McKenzie Friend to address the court at a directions hearing.

 

The Court of Appeal did, however, find that the Court was wrong not to have resolved the factual dispute between the parties at a finding of fact hearing.  The appeal succeeded on that basis.

 

However, it was a pyrrhic victory, because the Court of Appeal ruled that because the children were still of the same strong views about contact as they had been 18 months earlier they saw no prospect of father re-establishing any contact (the children were now 16 and 11) and did not order a re-hearing.

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Banning a person from acting as a McKenzie Friend

 

This was a case heard by the President to decide whether an order that a Mr Baggaley should be barred from acting as a McKenzie Friend should come to an end or be extended. He concluded, having heard the evidence, that it should be extended indefinitely and Mr Baggaley can thus not act as a McKenzie Friend for anyone else. There had also been a civil restraint order, preventing Mr Baggaley from litigating on his own behalf but that was brought to an end.

 

One of the difficulties that I never anticipated when I started to write this legal blog was that it can be uncomfortable writing about cases that have a bad outcome, or judicial criticism for people that I have some personal knowledge of. The same thing happened the last time that the Court ruled that someone couldn’t be a McKenzie Friend, since I knew them (and liked them a lot, and still do). I do have to call those cases straight down the line and tell you how I see them. But it does make me uncomfortable.

So, full disclosure, I have had some correspondence with Mr Baggaley, and in all of my dealings with him, I found him very fair, very reasonable and committed to helping people who had found themselves on the wrong side of the family Courts. He has never behaved in any way towards me the way that the Court describe him doing in this case.  I’m very sorry that this has happened to him.

Like the previous McKenzie Friend who found herself in difficulties (before the last President) , Mr B was someone who had had their own experience with family justice and had taken that experience and decided to help others. That can’t be an easy thing to do, and there are going to be times when emotions run high in the family Courts. I’m sure both have helped people, and have wanted to do nothing other than help people.

 

A complaint that parents sometimes make about lawyers is that they don’t care enough – that they don’t show their emotion, that they can appear dispassionate. Sometimes though, you can care too much, and show your emotions too much.

What the Court describe here, if it happened (and the President heard the evidence, so is better placed than me to decide on it) shows that emotions got the better of Mr B in that particular case, and I can see why the Court decided the case the way it did. I also feel a lot of sympathy for everyone that got on the wrong side of those heated emotions, because it must have been an awful experience.

As the President says

The court corridor is not the entrance to a nightclub, and those going about their lawful business in a court building do not expect to be treated as if by a ‘bouncer’. An exasperated and out-of-character outburst, especially if apology is promptly offered, is one thing. Mr Baggaley’s behaviour to the Bench at Leicester Family Proceedings Court, however, was quite unacceptable. His subsequent behaviour in the corridor was disgraceful. His treatment of Mr O’Grady at Leicester County Court, if less outrageous, was unacceptable. No-one in Miss Sharratt’s position should have to endure being called a “fucking lying slag.” No doubt barrister’s clerks have to put up with many difficult and on occasions unpleasant telephone calls, but there was no excuse for what Mr Baggaley said to Mr Baldwin.

 

There may be lawyers who are happy about these sorts of cases, as they don’t like the idea of McKenzie Friends. That’s their right.  I happen to have had a lot of discussions with McKenzie Friends since I started this blog, and I’ve found all of them to be intelligent and articulate and passionate people. They often disagree with me, but I happen to think that’s healthy.  I’m sure that just as there are good and bet vets, plumbers, nightclub bouncers, social workers and lawyers, there are good and bad McKenzie Friends, and also that there are good vets, plumbers, nightclub bouncers, social workers, lawyers and McKenzie Friends who happen to have  a bad day or bad week.

What happened here is, in my view, unacceptable, but I take no pleasure in it, and I’m sad that it came to this.

You may want to read it for yourself – you may have a different view to me, and that’s perfectly fine.

Re Baggaley 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1496.html

 

 

Baby without a name / child removed because of father’s aggression towards social workers

 

The Court of Appeal have given judgment in the full Permission to appeal application by these parents from a Care Order and Placement Order decision at first instance.

 

 

Re BP and SP v Hertfordshire 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1524.html

 

 

This case was covered by me when Ryder LJ first gave a judgment on the papers moving it forward to fuller hearing

 

https://suesspiciousminds.com/2014/08/02/we-are-all-unquantified-risks/

 

 

[You might recall, if I jog your memory, that this was the case involving a child where there had been no naming ceremony, and the father had assaulted the social worker – and at the hearing before Ryder LJ the thrust of the argument had been “if the child was removed because the father was a risk to social workers, was that wrong?”

 

If you don’t remember that, you might remember the Telegraph’s report about the case

 

http://www.telegraph.co.uk/news/uknews/10855218/Child-with-no-name-must-be-adopted-judge-rules.html ]

 

These were Ryder LJ’s strong words at that initial permission hearing (but the permission hearing could not ultimately reach a decision because the parents and their McKenzie Friends did not have the court papers from the care proceedings that would be vital in reaching a proper determination of the basis on which orders had been made.

 

These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

 

 

At this hearing, the papers were available, and the application was heard by three Judges. Ryder LJ gives the lead decision, and again reminded everyone that “nothing else will do” is not a legal test or principle.

 

There was no error of law made by Judge Mellanby and Judge Waller was right to dismiss the first appeal. This is not a case in which it can be argued that there was any misapprehension by either judge about what the concept of proportionality might mean and it is perhaps appropriate to remind practitioners and ‘interested McKenzie Friends’ that ‘nothing else will do’ is not a new legal test, rather it is part of the description used by the Supreme Court for the proportionality evaluation that is to be undertaken by the court. The language used must not be divorced from the phrase that qualified it, namely: “the overriding requirements pertaining to the child’s best interests” (see [77] and [215] of Re B (A Child) [2014] UKSC 33).

 

 

 

 

In relation to the father’s main point of appeal, the Court of Appeal encapsulate it like this :-

 

In layman’s terms he was saying: it is not a sufficient reason that my children are permanently removed from my care because I disagree with the local authority and will not co-operate with them.

 

 

Their decision and analysis in relation to this, having seen all of the papers (that were of course not available to Ryder LJ at the previous hearing ) was this

 

 

On the facts of another case that might be a successful submission but that simplistic analysis does not adequately examine the facts relating to this father’s antagonistic behaviour and lack of co-operation. There is of course no general duty on a citizen to co-operate with an agency of the state unless that duty is described in law. That said, these proceedings might not have been taken had father co-operated and it may not be too much of a speculation to say that, given his capabilities to provide support for mother and the children, there may not have been a need for the proceedings to be completed i.e. they may not have been pursued to an adverse conclusion had he demonstrated that he was prepared to act in the best interests of his children.

 

 

The significance of the father’s conduct is not that his children were removed because he had the temerity to argue with the local authority: to put it in that way misses the point. The welfare issue that was legitimately pursued by the local authority was that father’s antagonistic and unco-operative behaviour was indulged in by him to the detriment of his children. By way of examples, the following are relevant:

 

 

  1. father exhibited sustained antagonistic behaviour throughout the proceedings before DJ Mellanby who concluded that his behaviour was likely to continue;

 

  1. the consultant psychiatrist relied upon by DJ Mellanby was of the opinion that father would not change his aggressive behaviour;

 

  1. father had assaulted the social worker in the presence of P in respect of which he has been been convicted and since then he has also been convicted of an offence of threats to kill for which he was sentenced to a term of imprisonment;

 

  1. father was unlikely to be able to manage his behaviour even in the presence of his children;

 

  1. father prioritised his own needs above those of his children:

 

  1. by refusing to engage with the local authority to agree contact with his sons even to the extent of denying B a relationship with him;
  2. by refusing to comply with assessments or engage with the children’s guardian;

iii. caused an unnecessary change of placement for P;

 

  1. father is unlikely to change his behaviour;

 

  1. mother is unable to control father’s behaviour.

 

Given the nature of the positives that the parents demonstrated in the residential assessment and despite the recorded antagonism that he exhibited during that assessment and thereafter, DJ Mellanby gave father ‘one last chance’ in the proceedings relating to P. She did so in response to the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 WLR 563 which had been handed down during the proceedings. In so doing she was being more than fair to the parents. She allowed a further examination of the evidence and of the father’s ability to change in the hope that the parents might provide a realistic alternative to long term placement away from the family.

 

 

Sadly, father failed to act on that opportunity and remained implacably opposed to any child protection mechanism or support that would verify that P was safe. He had refused access to the social work team in October 2012, he refused to engage with further assessment which would have been able to demonstrate that the positives had been carried across into the family home and ultimately when access was again refused in February 2013 it had to be obtained with the assistance of the police. Father’s written submissions to this court highlight the fact that mother would have been left in the care of the children when he was at work and in the context of the opinion that mother could not cope on her own, there was a legitimate child protection interest in the adequacy of the arrangements that the family had put in place once they were at home and no longer in a professionally supported setting.

 

 

There was ample material before both courts to justify the conclusion that the children’s father represented a greater risk to them than the benefit he provided by his capability to support their mother. The welfare evaluation of the parents was accordingly adverse i.e. the detriments outweighed the benefits. To the extent that he was able to argue, as he did at the first permission hearing, that he was an un-assessed risk, that ignores the evidence that was before the court, the father’s refusal to co-operate with assessments and the court’s ability and indeed duty to undertake its own analysis for the purposes of section 1(3) of the 1989 Act. The local authority were able to prove both of their cases and the family was unable to take advantage of such support services as the local authority might have been under a duty to provide because father refused to participate in any arrangement that would have demonstrated the efficacy of the same.

 

 

In any event, it is the parents’ case that they do not need help. They deny that the assault in the presence of P (and indeed the continuing aggression thereafter) would have had any effect on P. They deny that either of the children would be likely to be adversely affected by father’s continuing and uncontrolled aggressive behaviour. They are oblivious to the confusing and frightening effects of father’s conduct. They are unable to see that it was their own failure to co-operate within proceedings when they had access to the court to argue their case and non means and non merits tested public funding to facilitate the same that led to the removal of P. Father’s written submissions to this court continue to assert that father will not deal with social workers.

 

 

 

Against that factual backdrop, the Court of Appeal was satisfied that father’s bare assertion that he might be a risk to social workers but not to his child was not bourne out by the evidence, and thus that limb of the appeal was not successful.

 

The interesting academic argument about whether threshold is met as a result of a parent behaving aggressively to a social worker but not to a child or in the presence of a child, will have to wait for another case.

 

 

A fresh limb of appeal was raised, which was that within pre-proceedings work, an expert had been instructed, and the parents subsequently learned that this expert was on a retainer basis with the Local Authority in that they had agreed to do 20 hours of work with the Local Authority each week for 46 weeks of the year, making them really semi-employed by the Local Authority (not in an employment law sense, but leading the parents to question whether such an arrangement could still result in the expert being considered ‘independent’)

 

A separate issue arose during the first permission hearing that has become the second ground of appeal before this court. That relates to the independence of the psychologist. It transpires that on 4 March 2013 the local authority entered into a form of contract with the psychologist described by them as a ‘retainer’ by which the psychologist agreed to work for an agreed hourly rate and for up to 20 hours a week during 46 weeks of the year. Any work covered by the retainer was to be undertaken with a transparent letter of instruction and the psychologist was expected to act in accordance with the obligations of an expert (see for example, Family Proceedings Rules 2010 Part 25, PD25B 9.1(i)).

 

 

The arrangement enabled the local authority to rely upon independent expert advice that may have been obtained by them pre-proceedings where they needed it to supplement their own social workers and in-house advisors and which would subsequently be respected within family proceedings (in accordance with the guidance given for example in Oldham MBC v GW & Ors [2007] EWHC 136 (Fam) at [24] and [91]). The independence of the expert would enable other parties to join in the instruction if they chose to do so. We are told that the arrangement was revealed to solicitors then acting for the mother and each of the children in a circular letter. The arrangement was not specifically referred to in either of the proceedings concerning P and B.

 

 

The funding arrangement of the psychologist should have been notified to the court and to the parties in the proceedings not just by way of a circular letter that may not have come to their attention. The perception of fairness is very important in proceedings that can involve the permanent removal of a child from a parent’s care. There is a hypothetical conflict of interest that can be implied in the financial arrangements. There is, however, no actual conflict of interest on the facts of this case nor any complaint that the psychologist did anything that could have amounted to a breach of her obligations as an independent expert. Far from it, she was not even cross examined as to any of her opinions or the work she had done. This court has been shown no material that would have warranted cross examination other than the disagreement of the parents with the expert’s ultimate conclusion. The assertion that the error in referring to her as a ‘Dr’ in the letter of instruction or the implication that she was unqualified for the task that all parties agreed is without foundation in that no valid complaint is based on the same. Accordingly, although the situation is regrettable, the manner in which the expert was selected and did her work gives rise to no issue that is capable of undermining the determinations appealed and the alleged procedural irregularity is insufficient on the facts of this case to warrant further consideration.

 

 

Such an arrangement, the Court of Appeal say, could be capable of giving rise to a conflict of interest, and proper transparency needs to take place (not just burying the disclosure deep in the pages of boilerplate Letter of Instruction); but there had not been a conflict of interest in this case – the Court of Appeal noted that there had been no cross-examination of the expert by the parents, who would have been entitled to do so if they challenged the report.

The placement of an adult away from their family

This Court of Protection decision LBX v TT and Others 2014  touches on some important issues. It is a case involving a 19 year old girl, and the decision of the Court that she lacked capacity to make decisions for herself and that it would be in her best interests to continue to live in foster care.

 

 

 

http://www.bailii.org/ew/cases/EWCOP/2014/24.html

 

The background to this is that there were allegations of serious sexual misconduct by her step-father, who awaits criminal trial. The case had been set down for what would have been quite a long and tricky hearing, particularly in the Court of Protection, to determine the truth of those allegations.  Since, if they were not true, the best interests decision would be very different, or potentially very different.

That starts to look like care proceedings, but on a vulnerable adult rather than on a child.

An additional complexity is that whilst mother and probably stepfather would have been entitled to free legal advice to fight the case in care proceedings, that’s not the case in the Court of Protection.

 

The Judge, Cobb J, said this  (MJ is mum, JJ stepfather)

At the outset of the hearing on 7 July, MJ and JJ made an application to adjourn the proceedings to obtain legal advice. They told me that they had been advised that they did not qualify for legal aid (on grounds of means) and did not have funds to instruct a solicitor privately. They had tried, without success, to obtain a litigation loan from the bank. I had been advised at the pre-trial hearing that the Bar Pro Bono Unit could not offer counsel for this hearing.
 

I recognise the considerable disadvantage to someone in the position of MJ and JJ appearing unrepresented in proceedings of this kind; their article 6 ECHR rights are imperilled. However, as there seemed no realistic prospect of MJ or JJ obtaining representation in these proceedings, and given the need to reach conclusions at this hearing, I refused the application to adjourn.
 

I was advised that JJ had solicitors acting for him in the criminal proceedings. I caused a message to be communicated to those solicitors over the short adjournment expressing my hope that they would be able to offer JJ some advice. I was very pleased to see Mr Levy at 2pm appearing on a pro bono basis.
 

On the third day of this hearing, MJ attended court with a McKenzie Friend. I considered it appropriate to allow this gentleman to assist MJ, and in doing so, applied the Guidance offered by the McKenzie Friends Practice Guidance Civil and Family Courts (12 July 2010): this Guidance is said to apply to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates’ Courts. I have assumed, and unless advised to the contrary will continue to conduct hearings in my court on this basis, that it applies to proceedings in the Court of Protection.

 

A further problem was the unwillingness of the police to provide any of the source material, which would have been vital to the conduct of any finding of fact hearing. In the event, the finding of fact hearing did not take place, due to MJ’s position at the hearing on 9th June 2014:-

I arranged a hearing on 9 June 2014 to consider the viability of the fact-finding hearing. At that hearing the case took an unexpected turn; MJ and JJ (who were helpfully represented by counsel instructed by the Bar Council Pro Bono Unit) indicated that they intended to remain together as a couple, irrespective of the allegations &/or the outcome of any trial of the allegations, and did not propose to offer TT a home, now or in the long-term. Specifically, they conceded that:
 

 

i) MJ could not envisage a situation in which she would separate from JJ “even if findings were made against him”. 

ii) TT should not return to live with MJ and JJ; she should remain living with KK (MJ: “we cannot offer her a home”).

iii) That the decision that TT should remain with KK is a “long-term decision” on the part of MJ;

iv) JJ was “is not willing to, and will not, have any contact with TT in the future. Contact is defined as direct and indirect contact and facebook/social media messaging”. He further agreed not to attempt to have any contact.

 

 

Within the case, the Official Solicitor (representing the 19 year old, TT) argued that the Court should still conduct the forensic exercise about the allegations and what happened to this young woman, and went further in suggesting that the Court had a duty to do so.

The Official Solicitor, on behalf of TT, contended that I am under a duty, or, if not under a duty should nonetheless exercise my discretion, to hear oral evidence in order that I can determine a solid factual basis for establishing TT’s best interests orders, even on an interim basis. Mr. McKendrick referred me to Re W [2008] EWHC 1188 (Fam) where McFarlane J held at paragraph 72:
 

“It is important that the planning in the future for these children, particularly C, is based upon as correct a view of what happened to R as possible. It is not in the children’s interests, or in the interests of justice, or in the interests of the two adults, for the finding to be based on an erroneous basis. It is also in the interests of all of the children that are before this court for the mother’s role to be fully understood and investigated.”
He contended that the principles outlined above could be appropriately transported from the Family Division to the Court of Protection. I interpolate here to say, as will be apparent later, that I agree.

The Official Solicitor’s argument was developed further thus:
 

 

i) Section 48 provides jurisdiction to make interim ‘best interests’ orders where it is necessary to make those orders “without delay”; this phrase in section 48(c) imports into the section a degree of expectation that this provision should be used very much as an interim measure; 

ii) While the evidential bar is lower on determination of capacity in section 48(a), there is no qualification to the court’s approach on ‘best interests’; therefore unless the case is urgent, there ought to be a reasonable and proportionate enquiry into best interests;

iii) That I should endeavour to resolve the facts so far as I can at this stage; many of the issues will need to be grappled with at some point in time and it is better to do so while the events are fresher in people’s minds; this hearing was set up for that purpose, and the witnesses are available;

iv) MJ has expressed a wish for unsupervised contact in the future: see §9 above. Indeed, the Official Solicitor observes that the Applicant itself accepts that “it is … foreseeable that [MJ] will seek unsupervised contact in the future, after the conclusion of the criminal trial”;

v) That ‘best interests’ decisions should be made on the most secure evidential footing; this is particularly so where

a) interim orders are expected to last for a considerable period (the criminal trial may not be for many months);
b) interim orders are inconsistent with TT’s expressed wishes (see §95-98 below);
vi) Prolonged interference with TT’s Article 8 ECHR rights for unrestricted contact without a clear determination of facts is not proportionate;

vii) That particular caution is required before the Court proceeds to make determinations largely on the basis of concessions offered by an unrepresented party (MJ), particularly where that party is plainly distressed by the issues.

 

 

As a family lawyer, it interests me that lawyers in the Court of Protection are placing reliance on McFarlane J ‘s (as he then was) decision in the family Court in Re W, which is a decision I wholeheartedly agree with, when the Court of Appeal in dealing with family cases are taking quite the reverse view about finding of fact hearings in family cases.  My support for the latter stance is somewhat less than wholehearted.

 

Cobb J goes on to borrow some principles from family law cases to provide guidance for if and when to embark on a finding of fact exercise in the Court of Protection, and these would now be rules or guidelines to follow in such cases

By analogy with the position in family law, the judge would in my judgment be well-served to consider the guidance of Butler-Sloss LJ in the family appeal of Re B (Minors)(Contact) [1994] 2 FLR 1 in which she said as follows:
 

“There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.”
It is acknowledged that the ‘spectrum’ may now be narrower than that described in 1994 following the revisions to rule 22.7 of the Family Procedure Rules 2010, but the principle nonetheless remains, in my judgment, good.

Butler–Sloss LJ went on to define the questions which may have a bearing on how the court should proceed with such an application (adapted for relevance to the Court of Protection):
 

 

i) whether there is sufficient evidence upon which to make the relevant decision; 

ii) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

iii) whether the opportunity to cross-examine the witnesses for the professional care or other agency, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

iv) the welfare of P and the effect of further litigation – whether the delay in itself will be so detrimental to P’s well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to reach a decision in relation to P;

v) the prospects of success of the applicant for a full trial;

vi) does the justice of the case require a full investigation with oral evidence?
In deciding whether to conduct a fact-finding hearing at all, I consider it useful to consider the check-list of considerations discussed by McFarlane J in the case of A County Council v DP, RS, BS (By their Children’s Guardian) [2005] EWHC 1593 (Fam) 2005 2 FLR 1031 at [24]. Following a review of case-law relevant to the issue he stated that:
 

“… amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
(a) the interests of the child (which are relevant but not paramount)
(b) the time that the investigation will take;
(c) the likely cost to public funds;
(d) the evidential result;
(e) the necessity or otherwise of the investigation;
(f) the relevance of the potential result of the investigation to the
future care plans for the child;
(g) the impact of any fact finding process upon the other parties;
(h) the prospects of a fair trial on the issue;
(i) the justice of the case.”
There is some (but not universal) acknowledgement at the Bar in this case that this list (with modifications as to (a) to refer to the best interests of ‘P’ rather than ‘the child’) provides a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.

 

Those principles are familiar to family lawyers (or at least they were, before the Court of Appeal took its newer position) but are probably fresh to Court of Protection lawyers.

 

The Court decided not to embark on a full-blown fact finding hearing, but did take evidence on some limited allegations which were of particular import. As part of that judgment, the Judge also clarified that hearsay evidence is permissable in the Court of Protection.

 

Hearsay: The factual allegations which I have been required to investigate rely very extensively on what TT has reported to third parties. She has not been called to give evidence at this hearing (no party proposed that she should), and I have therefore had to rely on a range of hearsay accounts, and on records, and interpretations, of her behaviours.
 

Hearsay evidence is plainly admissible in proceedings of this kind; as McFarlane J made clear in LB Enfield v SA [2010] 1 FLR 1836. While ruling (at §29-30) that proceedings in the Court of Protection under the MCA 2005 must fall within the wide definition of ‘civil proceedings’ under section 11 of the CEA 1995, they are civil proceedings before a tribunal to which the strict rules of evidence apply. He went on to conclude (§36) that:
 

“COPR 2007, r 95(d) gives the Court of Protection power to admit hearsay evidence which originates from a person who is not competent as a witness and which would otherwise be inadmissible under CEA 1995, s 5. Admissibility is one thing, and the weight to be attached to any particular piece of hearsay evidence will be a matter for specific evaluation in each individual case. Within that evaluation, the fact that the individual from whom the evidence originates is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child”
In all the circumstances, I guard against accepting without careful consideration of the evidence as a whole, the hearsay evidence of what TT told LT and WT as proof of the substance of what is alleged against MJ; this is particularly so given the unchallenged evidence of Dr Joyce that TT has a “very limited understanding of the oath”.

 

This is, as always with Cobb J, a very detailed and well-structured judgment, and he eventually reaches these conclusions about the declarations sought

 

Conclusions

Having regard to the matters listed above, I propose to make the following orders/declarations:
 

 

i) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to litigate these issues; 

ii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her care and residence;

iii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her contact with others;

iv) For the reasons fully set out above at §28 and §30, I declare that there is reason to believe (section 48 of the MCA 2005) that TT lacks capacity to consent to sexual relations;

v) For the reasons fully set out above at §30 and §105, I declare that there is reason to believe (section 48 of the MCA 2005) that it would be in TT’s best interests for any education about sexual relations to await the outcome of the criminal trial (in which JJ is a defendant);

vi) For the reasons fully set out above at §8(ii), and §100-102, I find that it is in TT’s best interests that she should continue to reside with her foster carer KK (and that I should make this order under section 15 of the MCA 2005);

vii) For the reasons fully set out above at §8(iv), §100 and §104, I find that it is in TT’s best interests to have no contact with JJ (and that I make this order under section 48 of the MCA 2005);

viii) For the reasons fully set out above at §100 and §103, I find that it is in TT’s best interests to have restricted supervised contact with her mother; this order is made under section 48 MCA 2005; I propose that this should be at a frequency of about twice per week, although with a degree of flexibility. For the time being, the contact should be supervised at least until the conclusion of the criminal trial. At the conclusion of the criminal trial, urgent consideration will be required in relation to whether on-going supervision of contact is in SS’s best interests.

 

 

It does raise important questions – not least being that if the Court of Protection is going to develop a jurisprudence of quasi-care proceedings about vulnerable adults then shouldn’t the parents/carers of those vulnerable adults have access to free legal advice and representation to deal with what can potentially be very grave issues and (as here) potentially extremely serious findings against them of sexual misconduct?

We are all unquantified risks

 

This was a permission hearing, Re B and P 2014 heard before Ryder LJ

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1133.html

There were a number of features which made the permission hearing difficult, not least that the parents, their McKenzie Friends and the Court did not have any of the papers from the care proceedings, save for a transcript of the judgment.

So, Ryder LJ listed the case for a rolled-up appeal (the permission application first, and to go on to an appeal if successful)

Why did nobody have the court papers?

Well, the parents were in person, and their solicitors had sent the bundles off to the cost-draftsmen (if you aren’t a lawyer, that will be meaningless, so by way of explanation it means that in order to get paid, the lawyer has to send all of their papers off to a specialist who then draws up the detailed bill to send to the Legal Aid Agency, who then sit on it for nineteen months and then pay an arbitrary amount that bears little relation to the actual bill)

The parents had asked the Local Authority to give them a copy of the bundle and the Local Authority had refused.

Now, the Local Authority weren’t at this appeal hearing, so I don’t know their side of it. It might potentially be that there was felt to be some very good reason why it would be unsafe for the parents to have those papers.  Hopefully it is some legitimate reason and not just being awkward. I suspect if the reason was just ‘it’s not our job’ or ‘why should we do it?’ or ‘get it from your own lawyers’, that’s not going to cut it with the Court of Appeal.

The parents appealed on six points, two of which Ryder LJ kicked out straight away, but he was interested in some of the others.

[From the reported facts of the case, I am reasonably sure that the judgment that was being appealed was Parker J in Hertfordshire
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2159.html – there are SO many similiarities, it would be hard for it to be coincidence. Not least because both cases involve a father being convicted for assaulting a social worker and a dispute about a religious naming ceremony]

 

Mrs Haines, representing the parents as a McKenzie Friend, puts the nub of the case very neatly

The baby’s case depends in large part on the same history that led to the conclusion in relation to the older child, J. J was thriving in his mother’s care and after his removal there was good quality contact with the parents (those facts can be deduced from the judgments that I have). There had been two assessments of the parents’ capability to care for J which were both reasonably positive, the latter assessment being a residential assessment after which the child went to live with the parents under an interim order. So what caused everything to fall apart?

The trigger for the ultimate end position was the father’s aggressive failure to co-operate with the local authority and Cafcass. That led to a police raid on the parents house (described by one of the judges as an unfortunate incident i.e. it was either not necessary or should not have occurred at all or in the way that it did). The raid found nothing amiss but had been prefaced by the father’s failure to permit anyone to discover whether the child was still being appropriately cared for. The father has obdurately put his own dignity and rights before his child’s to the extent that it has ultimately led to the removal of both of his children. One might well ask, and Mrs Haines does on his behalf, is an argument with the agencies of the state, even a violent argument, sufficient to cause one to lose one’s children?

 

 

This is a peculiar one, since despite a previously unfortunate history, it appears from the judgment that assessments were such that the parents were given an opportunity to care for their new child at home and it was the father’s violent outbursts to professionals which led to the shift in plan from placement with parents to adoption.

 

So far as father is concerned, he is described as being an unquantified and unassessed risk. He is regarded as being dangerous and is suspected of having a psychiatric or psychological trait / personality disorder that is not amenable to change. That may be right. This court at least needs to scrutinise the evidence given its importance. He is the essential support for the mother, if the psychological opinion relating to her care capability stands. It is said that he is unable to work with professionals and he has assaulted a social worker and those are conclusions of fact that appear to be very secure – there is a conviction for the latter incident. But does that mean he is unable to support the mother and is he a risk to his child?

A conclusion that someone is ‘unquantified’ as a risk is meaningless. We are all unquantified in the absence of evidence and it is for the local authority to prove its case. He was certainly a risk to professionals but not according to the judges to the mother. Was he a risk to his child? The evidence relating to that is not yet known to this court save that which can be gleaned from the judgments. That suggests that he was condemned as being an emotional risk to his child because he had no insight into how his behaviour with professionals might affect his child. That is circular. If there is no need for professional input because he can provide the support for the mother then his reaction to professionals does not prevent him caring for a child or supporting the mother in that task.

In fairness there is another and potentially important factor. These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

I don’t know yet whether when the Court of Appeal tackle this case in full, with all the papers, and hearing from the other parties, the final outcome will be very different to Ryder LJ’s take, but it certainly raises an important and interesting aspect.

If the sole concern is that a parent is not co-operating with the Local Authority (even violently not co-operating), what is the risk to the child that justifies the State assuming care of the child?

There are some people who are violent to their partner and their child, and that bleeds into their violent outlook on life and approach to professionals. There are people who betray their violent tendencies and nature by the manifestation of their temper, and one learns of the risk that they would pose to others close to them.

But there are some people, maybe not many, but some, who just violently dislike social workers and are not afraid of saying so, but would pose no risk of violence to those around them.

This appeal might answer the question – if you’re not harming your child by doing so, are you entitled to be vile to social workers ?

If it does answer that question, there will be a lot of people interested in it either way.

There are two different perspectives here

(A) That the father was the protective factor against the established problems the mother had in providing care for a child, that he would need support from professionals and how can that support be provided if he is assaulting them physically when they visit?

OR, conversely

(B) If the major problem that the father has only happens when social workers visit, then it is solveable by just not having social workers visit.

It has tricky socio-political consequences, if the Court of Appeal do answer this point (and don’t hold your breath – remember that Re B went to the Supreme Court specifically to resolve the vexed question of emotional harm and completely ducked the issue)

If the Court of Appeal were to find that (A) is the right answer, then parents and campaigners will feel that this is carte blanche for social workers to cultivate a bad relationship with a parent and then rely on that same bad relationship as reason why the child has to be removed.

If the Court of Appeal were to find that (B) is the right answer, does that give a green light for parents to abuse and intimidate social workers?

Which is why I suspect a way will be found to duck the points that Ryder J raises.

[If there was a bet to be had on the outcome of this appeal, the sure thing is “If a parent or their McKenzie Friend asks the Local Authority for a copy of the court bundle to assist in an appeal, the Local Authority MUST provide it” (and probably that the LA must also produce appeal bundles and copies for the Court too) ]

Booker

 

I have just read the latest scandal piece about the family justice system by Christoper Booker.  Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published.  [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn’t any of those – so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story

http://www.telegraph.co.uk/news/uknews/law-and-order/10775631/Costs-ruling-in-family-court-penalises-those-helping-wronged-parents.html

 

Let’s break it down into the core allegations that are made

 

1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.

 

2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled

 

5. That she was then deported to America

 

6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought

 

7. At a hearing in April, at which her McKenzie Friends “could not be present”,  Mrs Justice Simler decided that the case was entirely without merit  (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )

 

7a  That Mrs Justice Simler is “the latest recruit to the High Court team”   [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely.  EDIT  – it does appear that she became a High Court Judge in October 2013, so I stand corrected.]

 

8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000

 

9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.

 

 

I am fairly sure that points 6, 7 and 8 ARE true.  We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing).  You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.

 

Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible.  One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order.  It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad.   That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk

 

Here is the deal

 

If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case.  You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.

 

So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court.  Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.

 

[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that’s probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]

 

 

ADDENDUM

It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012  http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html.

 

There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.

 

My previous piece  https://suesspiciousminds.com/2013/11/01/it-aint-me-babe-it-aint-me-youre-looking-for/   .

 

Mr Booker’s previous column about this woman   http://www.telegraph.co.uk/health/children_shealth/10308803/Deported-imprisoned-and-beaten-for-being-a-parent.html ]

After ten years of war, peace breaks out

The High Court decision in Re J and K (Children : Private Law) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/330.html

Another judgment from Pauffley J – not remarkable on the facts, nor indeed on the law, and I suspect it is one that might not have been published were it not for the transparency guidance. But it is another good judgment, and remarkable in that a set of private law litigation, which began in 2003 and involved 24 court hearings finally ended with agreement.

This opening is worth reading, for a start

This private law dispute demonstrates a number of phenomena. Firstly, that it is sometimes possible to achieve real and substantial progress as the result of the hearing itself. Secondly, that there can be incalculable benefits from the simple exercise of parents giving evidence and, just as importantly, listening to the evidence of others. Thirdly, that proceedings which begin in an atmosphere of adversity may swiftly evolve into an exercise in constructive collaboration. Fourthly, that protracted litigation over children is profoundly harmful to everyone concerned. And fifthly, that the involvement of skilled and insightful professionals – in this instance Miss Wiley, Ms Bushell and Mr Kirkwood – has immeasurable advantages in (a) achieving a better understanding of the genesis of past problems and (b) assisting parents to an infinitely more constructive way of working together for the benefit of their children.

The Judge tried, in this case, to understand, and describe why it was that two loving, caring and kind parents had ended up in a horribly conflicted and contentious bout of litigation that lasted so long. It is worth a read, if you advise parents in this position, or if you are finding yourself in this position. It is possible to get sucked into a fight that neither side really intended – there doesn’t have to be a good guy and a bad guy in family cases. Sometimes everyone is a decent person and a good parent, and a wrong turning just gets made and the case escalates into something nobody wanted.

Why did the problems arise?

    1. So why did things go so badly wrong for this couple such that there was serious and persistent disagreement even although there has never been a valid welfare argument against ongoing contact? Peeling away the layers of mistrust and antipathy has been both painful for the parents but also, I would say, illuminating. In addition, it has been, as Mr Kirkwood so rightly says, cathartic. And the best demonstration of that is the scene he witnessed at lunch time on Wednesday when all the family members were together in the coffee shop, standing around and chatting.

 

    1. To revert to the reasons for the difficulties, I would identify the following as having contributed to the atmosphere of hostility. The twins were alarmingly small when delivered – less than 3 lbs each – and had to stay in hospital for 8 weeks. Their mother had been ill herself in the period prior to their birth. Thereafter, the boys were not physically robust for a couple of years. The mother, entirely understandably, was intensely protective of them as was their closely involved maternal grandmother. It must have been a time of enormous stress and anxiety for the whole family, particularly the mother whose attachment to the babies, of necessity, was of the most concentrated kind.

 

    1. The father felt excluded to an extent though he would say he always did his best to support the mother and his children. During the twins’ first year, the long standing relationship between the parents ended. Doubtless there was disappointment and a sense of loss on both sides. Inevitably, the maternal grandmother would not have been inclined to give the father ‘a good press’ at that time or indeed in the years that followed. Clearly, she had views about his actions in the earliest months of the boys’ lives which were highly unflattering and, I would have to say, very hurtful to him.

 

    1. In the years that followed, the father’s applications to court – his efforts to ensure he played a proper fatherly role in the boys’ lives – were seen as “attacks” upon the mother. Doubtless she was strongly encouraged, by successive CAFCASS officers and judges, to play her part in ensuring the smooth progress of a developing contact routine. Her husband and the children’s father are very different individuals. By trying to do right by her husband, there must have been times when she did wrong by the children’s father. She was criticised for the way in which contact handovers were undertaken at the children’s schools. She complained to various bodies when she believed her behaviour had been wrongly reported as having been confrontational. When a suggestion was made by Cafcass that her actions may have had a psychological or psychiatric component requiring of expert advice, she responded defensively. There was, as it is all too easy to see now, a downward spiral of alarming dimensions.

 

    1. If there was one thing that the parents seemingly failed to do for all of the years they were in dispute, it was that they did not consider the impact upon the other – and the children themselves – of their actions. A prime example of that lack of empathy and its harmful impact was the regularly repeated performance at the children’s schools on a Friday afternoon when the handover was effected. It was easily done; and could, with the benefit of hindsight, have been so straightforwardly avoided as the mother conceded in evidence.

 

    1. For his part, I have no doubt but that the father had not considered the repercussions for the mother and her very respectable, well ordered and closely governed family of repeated court appearances. I am sure they became almost too much for her to bear; and the impact upon the children was a sense that their mother was under attack. They are and were both incredibly loyal to and, said the mother’s husband, fiercely protective of her. He could see though that the boys would have been far better off had they not been inappropriately exposed to the detail of the adults’ dispute.

 

  1. I am hopeful, very hopeful, that for the future similar mistakes will not be made; and that, as Ms Bushell suggested, the mother and her husband will be able to parent the boys authoritatively. There is very little which frightens children more than an absence of appropriate parental guidance and firm boundaries about the things in life which matter most.

I think that it is also worth drawing specific attention to the praise that the Judge gave to Ms Bushell, who acted as the McKenzie Friend for the father.  McKenzie Friends are a bit like Environment Ministers – you only usually know who they are when they are getting told off, but the reality is that 99% of the time they are silently getting on with it and doing very good work.  I have been lucky enough, in the writing of this blog, to come into contact with some very good and thoughful McKenzie Friends, and it is a role that requires all of the qualities praised here by the Judge.

So, it is nice to see a case that recognises that McKenzie Friends can be a powerful force for good and common sense.  (It is also worth noting that the mother’s counsel was acting pro bono – which is a way of masking by clever use of Latin to your clerks and bank manager that you are doing  work for free)

    1. The very last matter for comment is the extent to which each of the parents has been assisted by highly skilled, insightful and intuitive representatives.

 

    1. Ms Bushell has acted as the father’s McKenzie friend. Her background is in social work; her experience of the family justice system as a former guardian is extensive. I had no problem in agreeing that she should perform the role of speaking for the father, asking questions of him and on his behalf. Ms Bushell explained that the father is a shy man who would have encountered considerable difficulty if left to conduct the advocacy on his own. Having seen him give evidence, I agree wholeheartedly with that assessment. He is also, unsurprisingly given what he had lived through, extremely emotional, and would not have managed the advocacy task unaided.

 

    1. Miss Wiley is a member of the Bar with very considerable experience of high conflict private law disputes as well public law Children Act and inherent jurisdiction cases. She enjoys a reputation, deservedly, for diligence, economy, realism and innovative thought. She responded with immense generosity and in the very best traditions of the Bar when she accepted the invitation to act pro bono for the mother. Minor adjustments were made to the court’s sitting time on Wednesday to accommodate another one of her professional commitments in the High Court. Miss Wiley’s questions of her own client as well as of the father demonstrated just how well she understands the dynamics of a dispute of this kind. Her wisdom and emotional intelligence played a very large part in achieving so pleasing an outcome – not just as to the order itself but more importantly as to the shifts in attitude.

 

  1. Both parents were fortunate indeed for the professionalism and legal assistance provided by each of their ‘representatives.’ But of greater significance still, it seems to me, they were in the hands of individuals unafraid to show kindness, generosity and with a desire to help others.