Tag Archives: mostyn j

Stay with me ! Stay applications, some further guidance

Posted on January 5, 2023 by suesspiciousminds

A stay, for my non-lawyer readers, is where a Court makes a decision (say for example that the child should have contact with the father twice per week) and one party wants to appeal the order and asks the Court for an order that pending the appeal the Court’s decision should not take effect.

Up until today, the best guidance on the legal tests for stays and process had been the Mostyn J decision in NB v London Borough of Haringey 2011

https://www.bailii.org/ew/cases/EWHC/Fam/2011/3544.html

First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.’

Mostyn J encountered a stay application again in this case, Re HH (A Child :Stay of Order pending appeal) 2022 and expands on that guidance

https://www.bailii.org/ew/cases/EWHC/Fam/2022/3369.html

In this case, the Court at first instance had reached a decision that a father should have unsupervised contact for one hour twice a week. The contact had been stopped for 2 years. The mother sought to appeal that order and sought a stay of the order about contact.

As Mostyn J points out, whereas in a money case the money can be paid and then paid back if the appeal succeeds in an appeal about resuming contact if the contact happens before the appeal can be heard, that can be difficult. If the contact is happening before the appeal takes place it could materially affect the outcome of the appeal or the benefit of it.

Mostyn J says that when the Court is considering the application for stay at the same time as permission to appeal, the NB principles, derived from a case called Wenden in the Hong Kong Courts (so Mostyn J calls them the Wenden principles) should apply.

He says that in a case where the Court is asked to determine a stay application BEFORE the permission to appeal application is resolved, it is not practicable to consider the last point – the prospects of the appeal succeeding – because that’s treading on the toes of the permission to appeal application.

He says further that in such circumstances, the Court should consider granting a stay UNTIL the permission to appeal application can be dealt with, if the appeal is not fanciful and the order taking place would irreversibly extinguish the purpose of the appeal (i.e as here where the issue was the resumption of contact between a child and a parent)

Where the issue is whether a parent should have direct contact to their child the refusal of an interim stay, resulting in such direct contact taking place, in effect decides the very subject matter of the appeal. In this case, whatever I may think about the reasonableness of the mother’s stance, and the likelihood of her being awarded PTA, it is an undeniable fact that without an interim stay pending determination of PTA, the viability of mother’s proposed appeal is pre-emptively extinguished.
Therefore, if that would be the consequence, the court should normally award such an interim stay. It should not be seen as being of the same character as a full stay of execution awarded at the same time as the grant of PTA. Such a full stay should only be awarded if the Wenden Engineering principles are satisfied. By contrast, the award of an interim stay pending determination of PTA should be seen more in the character of a suspension of the order under appeal, doing no more than holding the ring pending that determination. It should not be seen as establishing any precedent for, or any indication as to the outcome of, the full stay application.
I emphasise that the appeal court should only award an interim stay pending the decision on PTA where (a) the grounds of appeal are not fanciful and (b) implementation of the order pending the PTA decision would irreversibly extinguish the viability of the proposed appeal. If this latter criterion is not met, because, for example, conditions can be imposed to ensure that any implementation of the order in the meantime can be effectively reversed, then the appeal court should leave the question of a stay to the judge determining the PTA application.
Where such an interim stay is awarded the court should give directions to bring the PTA application before the court at the soonest opportunity. Further, I would suggest that in such circumstances the appeal court should allow the respondent to the appeal to make submissions in writing under FPR PD 30A para 4.22 as to whether PTA should be granted and/or a full stay of execution awarded.

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Pitiless detail

Posted on August 1, 2022 by suesspiciousminds

This is an interesting High Court decision delivered by Mostyn J, about the need (or not) for a fact finding hearing when the parent concedes that threshold is met.

That’s always a bit of a vexed question, so any case on the point is always interesting.

In this case, the mother was in agreement that her child, her second child, be made the subject of a Care Order and a Placement Order and agreed that threshold was crossed. The Local Authority considered that the threshold concessions she had made were ‘anodyne’

Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought

In very broad and overly-simplistic terms, the mother was accepting a lot of described content in the threshold but not accepting that it amounted to FII or that she was a person who had or was likely to inflict FII (Fictitiously Induced Illness , or where a person manufactures medical symptoms in another so that they have to receive medical treatment)

The Local Authority sought a 5 day fact finding hearing.

Mostyn J considered the general legal principles and the specific family law principles, arising from two Court of Appeal cases – Oxfordshire County Council v DP & Ors [2005] EWHC 1593 (Fam) and Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192, [2021] 4 WLR 106 

The fundamental difference between the two cases is that Oxfordshire did not have within its list of factors to consider the ‘different child’ issue (i.e there’s no direct advantage for Child A of resolving the factual background, but if the parent goes on to have another child, Child B, there might be advantage to having that factual dispute resolved rather than having to go back and litigate the contentious issues some time later). As Mostyn J points out, that is because those issues had been specifically litigated in earlier authorities and explictly rejected – that the case is dealing with Child A only, and should not look into the future about a Child B who does not even exist.

Wheres Re H-D H and C does specifically include the ‘different child’ issue as a reason why a fact finding might be necessary

“The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.”
(Emphases added)

(That also includes what Mostyn J categorised as the ‘whole truth’ issue – the benefit to Child A of having the fullest possible picture of what had or had not happened to lead to them being in care or adopted)

Mostyn J considered that as the proper relevant authorities had not been cited in Re HD H and C, that he should consider himself bound by Oxfordshire, but not by Re HD H and C which was possibly an erroneous expansion of the authorities in a way that conflicted with them whilst having not grappled wiht them.

Mostyn J h says that a Judge dealing with this sort of issue should stay strictly within Oxfordshire’s guidance and will not go wrong, and that if Re HD H and C is to be considered the guidance in that needs to be reworked, which he helpfully does at para 37 (all bold is Mostyn J’s addition)

“(i) When considering the welfare of the child, the effect on the child’s welfare of an allegation being investigated or not is relevant.
But the significance to the individual child of knowing the whole truth cannot, of itself, be a main purpose of the investigation.
(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
(iv) The evidential result relates only to the case before the court.
Its potential utility in a future case about another child cannot, of itself, be a main purpose of the investigation.
Similarly, the public interest in the identification of perpetrators of child abuse cannot, of itself, be such a purpose.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact-finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.
(ix) Above all, the court must be satisfied that a fact-finding hearing is necessary.
This means that the court must be satisfied that the findings, if made, would produce something of importance for the welfare decision.”

Mostyn J went on to consider the facts of the case.

The threshold document sets out in pitiless detail why it is said that VW poses a risk of serious harm to IW were he to be entrusted to her care. In summary it alleges:
A: VW has experienced abusive and neglectful parenting throughout her childhood.

B: The resulting mental and emotional instability has resulted in an itinerant unstable lifestyle, and emotional and mental health issues.

C: VW has extensive, serious and enduring psychiatric, psychological and emotional difficulties. She suffers from: (a) somatic symptom disorder, (b) factitious disorder, and (c) malingering.

D: VW has an extensive history of deliberate self-harm spanning from the age of 12.

E: Since the age of 13, VW has frequently and repeatedly been detained in secure accommodation.

F: VW hoards medication and conceals sharp implements so she can continue to deliberately self-harm, even whilst under hospital care or detention.

G: In December 2020 whilst detained under section 2 of the Mental Health Act 1983, VW floridly self-harmed.

H: From her early teenage years VW has abused alcohol and various illicit substances including cocaine, crystal meth, magic mushrooms, ecstasy, and cannabis.

I: VW has an extensive history of presenting at numerous hospitals throughout the country with wide-ranging complaints as reflected in nearly 20,000 pages of medical records.

J: VW falsifies signs and symptoms in order to mislead and manipulate medics.

K: VW is dependant on opioids.

L: On repeated occasions during her pregnancy with IW, VW deliberately and surreptitiously self-administered insulin in order to manipulate her blood sugar levels and thereby factitiously induced a state of hypoglycaemia.

M:. VW’s psychiatric and psychological difficulties and behaviours are enduring, and by virtue of them, any child placed in her care is at risk of serious physical and emotional harm.

N: VW’s first child, AW, was the subject of care proceedings in which it was found that AW’s life-threatening collapse on the 28 January 2017 was consistent with dihydrocodeine poisoning and that the dihydrocodeine present in AW’s system was due to VW, who gave dihydrocodeine to AW.

O: VW’s vulnerability and underlying issues have led her to form a series of damaging, controlling, emotionally and, on occasions, physically abusive relationships with men and to place herself at risk.

In her witness statement of 15 July 2022 VW made extensive, but far from complete, admissions in relation to the contents of the threshold document. Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought”.
I emphatically reject these descriptions. VW’s admissions were extensive. She admitted a large number of the concrete facts alleged against her. So, for example, she accepted that she had self harmed by cutting herself; by swallowing razor blades; by overdosing even when in hospital; by tying ligatures around her neck; by threatening to jump off bridges or in front of trains; by self harming in relation to food; by abusing cocaine; and by her extraordinarily high number of hospital attendances. She accepted that from a young age she was involved in abusive relationships. She accepted the findings made by Recorder Bugg. She accepted that she cannot care for IW.
Mr Garrido QC described her admissions as accepting the underlying facts but disputing the professional label. Therefore, while she admits much of the conduct that led the experts to conclude that she suffered from FII, she disputes that diagnosis. In my opinion to have a state trial about professional labelling or nomenclature would be the height of futility.
In the Stockport case Thorpe J refers to the very considerable emotional and psychological cost to parents in accepting advice that leads to the conclusion of the case without a hearing. I can completely understand VW’s instinctive reluctance to condemn herself as being a sufferer of mordantly described psychiatric conditions. In my opinion it was brave and sufficient for her to make the admissions that she did in relation to concrete facts. Those concrete facts have been analysed by the experts and they have rendered their diagnostic opinions, which are uncontradicted

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ICE CREAM – I thought part 2, but it turns out part 1

Posted on May 20, 2021 by suesspiciousminds

Three years ago, in the pre-Covid times which now seem like a lifetime ago and that if you watched TV footage from 2018 everyone would be wearing kipper ties and dressed in maroon and brown, Mostyn J published a judgment about an application to discharge a Care Order.

It was one of those judgments that made the press

Boy, 8, was taken off mum by social workers who said ‘she had not taken him for ice cream’ – Mirror Online

And the case itself

GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018) (bailii.org)

(which does indeed feature ice-cream’, but of course it was not the reason for the removal – but it was one of the only concrete examples of the mother failing to meet the child’s emotional needs that the social worker was able to give in evidence, and Mostyn J was perfectly right to be scathing about the weakness of that evidence)

Ms Tommason-James was asked to identify her best example of the mother failing to meet L’s emotional needs. Her response was that until prompted by the local authority mother had not spent sufficient one-to-one time with L and had failed on one occasion to take him out for an ice cream. This struck me as utterly insubstantial criticism, and indeed it must have struck the legal representatives of both the local authority and the guardian in the same way because this was not put to the mother in cross-examination by either of them. A further criticism in this vein was that the mother had failed to arrange for L’s hair to be cut in the way that he liked. Again, this is obviously inconsequential, and again it was not put to the mother in cross-examination. A yet further criticism was that on one occasion the mother allowed L into the house of Mr S, the father of A and K. The local authority’s case is that Mr S represents a risk to L, although this has not prevented them approving the placement of A and K with him. On the occasion in question the mother had gone up to Mr S’s house to get some money for A, and L was allowed to visit the downstairs lavatory while the mother was talking to Mr S outside the front door. How this is supposed to represent a failure by the mother to meet the physical or moral needs of L is completely beyond me. It does seem to suggest that objectivity and disinterested fairness is not being applied to the mother.

And I was SURE that I’d written about it, but I can’t find it. It had all the ingredients of something I would have written about – Mostyn J judgments are always worth a write-up, the ice-cream thing, the media coverage, a scathing attack on attachment theory. But I can’t find the piece, and I have to assume that I just didn’t do one.

The significance of the case, legally was this:-

In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests

 

and the judgment was also highly critical of attachment theory and expert evidence about attachment theory

First, the theory, which I suppose is an aspect of psychology, is not stated in the report to be the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct. Indeed, I asked the advocate for the guardian whether he was aware whether a student could undertake a degree in attachment theory, or otherwise study it at university or professionally. Mr Hussell was not able to answer my question. Therefore, it does not satisfy the first criterion for admissibility as expert evidence.
Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant’s survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults.
For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.
In her executive summary Cathy Webley says:
“On balance, I feel that the risks to L of a return home at this stage are too high and that he should have the opportunity to consolidate the evident progress he is making in his settled foster placement. My conclusion may have been different if L’s foster placement was unsuitable or was in danger of disrupting. However that is not the case. L is happy, settled on making secure attachments in the way that his care plan was designed to achieve. L is more resilient than he was but he remains more vulnerable than most children. I would be concerned about disrupting him again and moving him into an uncertain future with his mother.”
This opinion is based on supposed expert evidence, but it seems to me to be no more than a standard welfare officer recommendation, and one that does not place any weight at all on the principle of proportionality, or on the right to respect for family life, as explained by me above, let alone on the positive duty of the local authority to take measures to achieve a reunification of the blood family. Indeed, it is noteworthy that on page 15 of her report the very first matter relied on by the independent social worker against the mother’s case is in these terms:

“L has been told he will be staying long-term with [the foster parents] and has made an emotional investment in his new family. He would undoubtedly find separation for his foster family, whom he has learnt to love and trust, distressing, even if he appeared outwardly happy.”
If L has been told that he will in effect be staying permanently with his foster parents then that would be a major dereliction from the positive duty imposed on the local authority to seek to take measures to reunify this family. I cannot see how this factor can be relied on first and foremost by the independent social worker.

I cannot say that this so-called expert evidence has assisted me in reaching the decision I must make.
In my judgment, in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind.

It sometimes feels as though the Court of Appeal have a To-Do list which includes ‘keep an eye out for any case that comes before us where we can overturn an old Mostyn J judgment that we disagree with’ – of course they don’t. I’m being snarky – but I’ve seen quite a few cases now where the Court of Appeal allow an appeal from a different Judge and use as their decision-making framework an explicit overruling of a legal principle set out in a Mostyn J case, and it is pretty rare to see that happen with other Judges.

However, here the Court of Appeal were hearing an appeal about an application to discharge a Care Order where the Judge at first instance had been taken to the Mostyn J decision and applied it.

TT (Children) [2021] EWCA Civ 742 (20 May 2021) (bailii.org)

The Court of Appeal say in the early part of the judgment, when explaining why the appeal had been given permission

The mother sought permission to appeal, which I granted in part on 25 March 2021. In doing so, I noted that it was doubtful that any of the grounds of appeal had a real prospect of success, but that there was a compelling reason for the appeal to be heard as it offered an opportunity for this court to consider the correctness of the decision in GM v Carmarthenshire County Council

The Court of Appeal with reference to Carmarthenshire said this:-

In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests. For the reasons given later in this judgment, these statements are not correct and should not be followed.

The reasons later begin at para 39

  1. I lastly turn to the decision in GM v Carmarthenshire. In that case a 5 year old child was taken into care in mid-2015 and a care order was made in February 2016. In August 2016, the child’s mother applied to discharge the care order. In November 2017, Mostyn J adjourned the application and directed that there should be a six month contact regime of a kind that he described as conventional in a private law dispute. At the final hearing in May 2018, by which time the child was 8¾ and had been with the foster carers for 2½ years, he granted the mother’s application. He described the local authority’s objections to the child returning to his family as inconsequential and trivial and he replaced the care order with a supervision order.
  2. The decision is clearly one that could have been taken on the basis of established principles, but Mostyn J instead approached s. 39 of the Act as if it was untrodden ground. At paragraphs 3 to 9 of his judgment, he developed a series of propositions based on In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, Re B, and the Strasbourg authorities. In the course of this, he observed that:
  3. In their submissions in the present case, Mr Taylor and Mr Lord agree that this analysis is incorrect. In brief, they note that it does not refer to previous authority on the subject of the discharge of care orders. They submit that it is misleading and unhelpful to suggest that “something close to” a threshold applies to decisions about the discharge of care orders. The construct of a ‘near-threshold’ is imprecise, does not fit into any statutory framework, and distracts from a full and balanced welfare evaluation and proportionality check. Care orders exist in a wide range of circumstances and the approach to applications to discharge must be broad and flexible. The implication that there is a presumption in favour of discharge in anything other than exceptional circumstances is not right. The overall analysis is not sustained by any of the six decisions cited above, indeed it conflicts with them.
  4. With respect to Mostyn J, I agree with these submissions. I would only repeat that the reference in paragraph 198 of Re B to a “very strict” test arises, as Baroness Hale stated, in cases involving the “severing of the relationship between parent and child”. In the great majority of cases where there is no plan for adoption, there will not be a severance of this kind, and references to a “very strict” test or to “nothing else will do” are not applicable to an application for a care order, still less on an application to discharge such a care order.
  5. I would also add that the irrelevance of thresholds to decisions under s. 39 is seen in ss. (5), which allows for the making of a supervision order without proof of threshold.

In relation to the comments made by Mostyn J about attachment theory begin at paragraph 36.

  1. An independent social worker instructed with the permission of the court, had provided a report that referred to the child’s attachments. Mostyn J was critical of this evidence (paragraphs 16-21), and he described attachment theory as “only a theory” and “a statement of the obvious”. At paragraph 17 he stated his understanding that attachment theory is not the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct and that it therefore does not qualify to be admitted as expert evidence, and he concluded:
  2. In making these observations, Mostyn J did not refer to other authority about attachment theory. In fact, the subject of attachment and status quo was considered in Re M’P-P (Children) [2015] EWCA Civ 584 at paragraphs 47-51. In that case, where a birth family was seeking to recover children from prospective adopters, McFarlane LJ stated:
  3. McFarlane LJ returned to the topic in Re W (A Child) [2016] EWCA 793, a case in which a child had been with foster carers who were interested in adopting:
  4. The issue of attachment theory does not directly feature in this appeal, but I refer to it because it was addressed in GM v Carmarthenshire. It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s. 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred in the two preceding paragraphs make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand.

The test for determining discharge of care order applications is therefore reset to Re S 1995 – has the parent shown that the order for discharge is better for the child than continuing with the status quo.

“159. I am now going to turn to the relevant law. The long-established test I have to apply is within section 1 of the Children Act 1989, the paramountcy of the children’s welfare. This was confirmed, for example, in the early case of Re S [1995] 2 FLR 639, Waite LJ at 634 making it clear that a parent does not need to establish that the threshold criteria no longer exists. That decision was followed in Re C [2009] EWCA Civ 955 and it has not been doubted since.

  1. There is a burden on the applicant to show that the order – that is discharge – is better than not making the order. That follows from section 1(5) of the Children Act. It might be said that that is an evidential burden on the applicant. In the case of Re MD and TD [1994] FL 489 [sic – the citation is from Re S] it was said that “the previous findings of harm would be of marginal reference and historical interest only and the risk to be considered would normally focus on recent harm and appraisal of current risk”. Of course, every case is different and the extent to which a previous finding is historical in the sense of no longer relevant or less relevant will vary case by case.

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“But so what?” diplomatic immunity part 3 – smokey IS the bandit

Posted on May 28, 2020 by suesspiciousminds

 

You might remember, just before everyone’s world changed forever, that there was a case about alleged child abuse where the father had diplomatic immunity and the Court decided that the legal provisions in relation to that meant that an Interim Care Order to remove the children could not be made.

 

Diplomatic immunity and care proceedings take 2

 

Well, things have developed.

 

A Local Authority v AG 2020

https://www.bailii.org/ew/cases/EWHC/Fam/2020/1346.html

 

The cast list in this is impressive. If you were doing a family law version of Kenneth Branagh’s Murder on the Orient Express, you couldn’t go far wrong with this list.  (A few honourable exceptions are missing, of course, but it is a sparkling list of extremely good lawyers.  If I’d been there, I’d have taken my autograph book…)

 

Basically, since the 20th March judgment, the Secretary of State invited the diplomats home country to withdraw his diplomatic status, they refused, but said that they all had to come home as soon as lockdown allowed it.

 

On 2 April 2020 D (18) sent an email to the local authority social worker attaching a photograph of a bloody wound to the back of his head. He explained that his father inflicted this with a shoe. He sent a further email attaching a video of the wound. In that video an adult can be heard shouting in the background.

iv) On 6 April 2020 the Secretary of State informed the foreign government that, in accordance with article 9(1) of the Vienna Convention on Diplomatic Relations (“VCDR”), the father and his dependent family members (including the mother and all of their six children) were personae non gratae and were required to leave the UK at the first opportunity. That first opportunity was on 18 April 2020 via the outbound leg of a charter flight arranged for the purpose of bringing British nationals home from the foreign country.

v) On 7 April 2020 the local authority social worker was able to speak to D who said that it was horrible living at home with his parents as they are both verbally and physically abusive; that he had decided to leave the home soon with his sister E; and that they planned to seek asylum.

vi) On 8 April 2020 I transferred the care proceedings and the claim for a declaration of incompatibility to the High Court and joined the Secretary of State as a party to the proceedings.

vii) On 9 April 2020 D and E (18) left the family home and sought asylum.

viii) On 11 April 2020 N (17) and A (14) also left the family home and sought asylum.

ix) On 14 April 2020 I held that by virtue of article 9(2) of the VCDR the family was to be given a reasonable period of time to leave the country; that period had not yet elapsed; and that accordingly diplomatic immunity continued to endure.

x) On 16 April 2020 a certificate pursuant to section 4 of the Diplomatic Privileges Act 1964 was issued by the Foreign & Commonwealth Office recording the diplomatic exchanges mentioned above.

xi) On 18 April 2020 the parents, together with G (9) and S (5), returned to their homeland on a repatriation flight.

xii) On 20 April 2020 I made an interim care order in respect of A and gave directions for the hearing of the permission issue.

xiii) On 18 May 2020 I heard the permission issue and reserved judgment. I granted the local authority permission to withdraw the care proceedings in respect of G and S. I gave directions for the final disposal of the care proceedings in respect of A.

 

The issues in this particular case were resolved – the children are all out and safe, but there was an application to declare the Diplomatic Privileges Act 1964 as incompatible with the Human Rights Act 1998 (in relation to the inability to protect children whose parents are diplomats).

 

This case doesn’t resolve that, but it does decide the pre-fight – should there even be a fight on the principle given that it isn’t necessary in the individual case.

 

It being a Mostyn J judgment, it gathers up the relevant law on ‘academic’ claims and sets it out clearly and briskly.  If you could afford him, Mostyn J would be a very good author for “Insane Legal Complexities Made Simple”

  1. Up until 1999 the law set its face against hearing any academic claim: see the decisions of the House of Lords in Sun Life Assurance Co. of Canada v Jervis [1944] AC 111, 113-114; and Ainsbury v Millington (Note) [1987] 1 WLR 379, 381. In the latter case Lord Bridge stated that it was a fundamental feature of the judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.
  3. However, in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450, the House of Lords stipulated an exception to this absolute rule. Lord Slynn of Hadley stated at 456-457:
    1.  “My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in Rule 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

  1. Although I have had cited to me many subsequent authorities, all of them seem to me to be no more than illustrations of the Salem principle. This is straightforward. The court should exercise its discretion to hear an academic application in the public law field with caution. It should only hear such an application where there is a good reason in the public interest to do so.

 

  1. Lord Slynn gives as an example the situation where a discrete point of statutory interpretation arises which does not involve detailed consideration of facts and where a large number of similar cases are anticipated. In such circumstances there will be little difficulty in deciding that there is a good reason in the public interest to hear the academic claim. That seems obvious. However, I do not deduce from that illustration a rule that a good reason in the public interest for hearing the claim can only be shown if a large number of cases would be thereby affected. It all depends on the context.
  3. In this case it is certainly true that there have not been many reported cases of proceedings under Part IV of the Children Act 1989 involving the children of serving diplomats. But so what? If the resolution of the academic issue helps to protect even one such child in peril, then that surely is a good reason in the public interest to hear it.

 

That’s stirring stuff, and if my chair wasn’t a swivel one with wheels, I’d be climbing on it to punch the air and shout “Captain My Captain” like Dead Poets Society.

 

So, there will be a hearing about whether the provisions are incompatible with the HRA.  Nobody knows how that will go.  The Secretary of State has been joined, and there’s a significant Government interest in not futzing with the provisions of what diplomatic immunity mean  (they have to think about their own overseas diplomats, international relations and all sorts of things that I absolutely don’t think are as important as making sure children aren’t beaten, but we have different jobs and different hats)

 

Wait and see how the argument goes.

 

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Diplomatic immunity and care proceedings take 2

Posted on March 19, 2020 by suesspiciousminds

 

I have previously written about the intersection of diplomatic immunity and care proceedings here.  (I mean, it is just nice to write the word ‘immunity’ without the word ‘herd’ in front of it this week…)

 

Care proceedings and diplomatic immunity

 

In that case

A Local Authority v X and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/874.html 

 

an allegation that a woman who worked for X High Commission had hit a child 40 times and shaved the head of another.  Knowles J decided in short that:-

  1. Diplomatic immunity ends 31 days after the position ends
  2. If there is diplomatic immunity, it means that there can’t be an arrest or prosecution
  3. But if the behaviour is outside of the diplomats professional functions, a civil case (such as care proceedings can be brought)
  4. Making of an ICO is not a breach of the child’s diplomatic immunity in relation to detention
  5. It isn’t possible, however, to commit a parent with diplomatic immunity to prison for breach of a Court order

 

 

In this case, Mostyn J was deciding a case in which the allegation was that the father, who was a diplomat, and the mother, had assaulted their six children with a belt and in relation to one child had hit her with a broken chair leg and that child had partially lost sight in one eye.   This being a Mostyn J judgment, it is carefully reasoned and gives a very interesting potted history as to diplomatic immunity, including this very specific recital to the first statute on the point

 

“Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Mattueoff, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty’s good friend and ally, by arresting him, and taking him by violence out of his coach in the publick street, and detaining him in custody for several hours, in contempt of the protection granted by her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other publick ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable.”

 

It’s not quite as niche as Handel’s Naturalisation Act 1727 which applied to just one individual, but that is still a niche introduction

https://en.wikipedia.org/wiki/Handel%27s_Naturalisation_Act_1727

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2020/18.html

A Local Authority v AG 2020

The Local Authority sought Interim Care Orders, and the parents argued (without getting into the facts of the case that diplomatic immunity meant that civil proceedings could not be brought)

Mostyn J disagreed with the decision of the former President Lady Elizabeth Butler-Sloss in Re B 2003 and Knowles J in Re A Local Authority v X 2018 and that the diplomatic immunity did prevent civil proceedings being brought.  He cited the decision of the Supreme Court in In Reyes v Al-Malki & Anor [2017] UKSC 61, [2019] AC 735   (a case dealing with alleged race discrimination and employment law of a staff member of a Saudi diplomat. )

 

 

In essence, the only thing that could be done was to write to the FCO and ask them to liaise with the relevant country.

As discussed recently in the case about vaccinations, where a High Court Judge refers to an authority by another High Court Judge and disagrees with it, the law then shifts to be the latest decision  (unless and until another High Court Judge or a more senior Court disagrees with it).

Therefore, at the time of writing, diplomatic immunity means that child protection proceedings cannot be brought and the issue of whether or not the conduct occurred within the course of those professional duties does not arise.

 

I would anticipate an appeal in this case.  I don’t know which of Knowles J or Mostyn J is right   – I might possibly have my own view (legally, as indicated Mostyn J is now right and the relevant authority on the point) but it needs a Court of Appeal decision to let us know.

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Dingoes ate my decree absolute

Posted on August 1, 2019 by suesspiciousminds

 

Well of course they didn’t.  But in this case, decided by Mostyn J, a man who got divorced in 1997 and wanted to remarry asked the Court for a copy of his decree absolute. The Court had a look and declared that it was being economical with its visibility.

 

His former wife was asked whether she had a copy, and she replied that she might have one, in storage.  Having moved to Australia, the storage unit was 1000 kilometres from her home, so it wasn’t a small favour to ask.

 

As Mostyn J stated, the Court have duties to keep the divorce papers

  1. Specifically:
    1. a. The original file appeared to have been totally destroyed in about 2013 notwithstanding that the agreed HMCTS record and retention policy, agreed by the President of the Family Division, is that the contents of divorce files are stripped and destroyed 18 years after the date of the final order (or resolution of any subsequent complaint) but that several key pieces of paperwork are retained longer, one of which is the Decree Absolute which is kept for an additional 82 years (thus ensuring it is kept for 100 years in total).

b. A search for the original file in the TNT archive storage depot in Branston yielded no trace of it.

c. The Office for National Statistics stated that they had checked their stores and all paper Decree Absolutes from 1997 had unfortunately been destroyed. Nor had they retained a microfiche copy of this Decree Absolute[1].

d. The Decree Absolute team at the Central Family Court was not, despite extensive searches, able to identify the Decree Absolute on the central index maintained pursuant to the Family Procedure Rules, rule 7.36(1) or its predecessor the Family Proceedings Rules 1991, rule 2.51(3). It would appear that the original Decree Absolute was either never sent in early 1997 to Somerset House for entry on the index, or that it was lost in the post.

On any view, this is an extraordinary series of unfortunate mishaps.

 

As luck would have it, HMCS funded the trip to the storage facility, and the ex wife’s copy was there. So the Court gave a declaration certifying it to be a true copy, and the man was able to remarry.

 

  1. It is therefore necessary for a declaration to be made by the High Court to put the position on a footing as close as possible to that which would obtain had the file not been destroyed and the original Decree Absolute lost.
  2. In Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 2 FLR 1181, [2017] 2 FCR 130 Sir James Munby P confirmed that the High Court possessed an “inherent declaratory jurisdiction”, in that case to declare whether or not the father’s conduct in abducting the children to Nigeria amounted to a criminal contempt of court. In Mazhar v The Lord Chancellor [2017] EWHC 2536 (Fam), [2018] 2 WLR 1304 Sir Ernest Ryder SPT was of the view that the power to grant declarations was statutory in origin. In Bank Of New York Mellon, London Branch v Essar Steel India Ltd [2018] EWHC 3177 (Ch) Marcus Smith J likewise identified the source of the power to grant a declaration as being statutory; he identified section 19 of the Senior Courts Act 1981. That provides at section 19(2)(a), as did its predecessors, that “there shall be exercisable by the High Court all such other jurisdiction as was exercisable by it immediately before the commencement of this Act”. Thus, there was vested in the High Court all the powers exercisable by the common law courts and the courts of equity prior to the enactment of the Judicature Acts. Those powers clearly included the power to grant declarations, which had originated in the Court of Chancery. I think this is what Sir James Munby P was referring to when he spoke of the High Court possessing “an inherent declaratory jurisdiction”. Plainly, the fact that for some reason CPR rule 40.20 is not replicated in the Family Procedure Rules does not detract from the clear existence of the declaratory jurisdiction.
  3. The cause here was automatically transferred to the Family Court at Willesden on 22 April 2014 by virtue of article 2 of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956.
  4. I order that the cause is transferred to the High Court for the purposes of exercising the declaratory jurisdiction. Immediately following the making of the declaration the cause will be transferred back to the Family Court at Willesden.
  5. I am fully satisfied on the material before me, and I so declare, that:
  6. a. the document produced by the respondent is an authentic and accurate copy of a certified copy of the original Decree Absolute; and

b. the marriage of the petitioner and the respondent was, as shown by the copy of the certified copy of the decree absolute, dissolved on 29 January 1997.

 

Not a sterling endorsement of the Court’s record-keeping abilities. Nor is there any part of the judgment indicating that the legal costs that the husband incurred because the Court failed in its responsibilities would be paid for by HMCS

Power v Vidal 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2101.html

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Magical sparkle powers (repeat to fade)

Posted on October 8, 2018 by suesspiciousminds

 

The quirky case of Mostyn J and the using magical sparkle powers to place a child in quasi secure accommodation under inherent jurisidiction (child met test for secure but no secure beds) but wait, the child is consenting to their detention, has come up for appeal

 

Original blog here (and yes, I super simplified the issues in that quick summary)

Magical sparkle powers, secure accommodation and consent

 

The appeal is here

 

Re T (A Child) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2136.html

 

In the Mostyn J case, the Judge decided that whilst a valid and enduring consent could block the Court’s use of the inherent jurisdiction (and perhaps s25 Secure Accommodation), what he was presented with was not in fact a genuine and enduring consent. The young person had capacity to agree to their detention, but the Judge thought that is was not a consent given with the intent of honouring it (which may be supported by the evidence of said young person escaping from the secure unit shortly afterwards)

 

The Court of Appeal decided that Mostyn J was wrong, though not for the reason the appeal was brought. The appeal was saying ‘don’t add that ‘enduring’ component to consent’  and the Court of Appeal said that in a secure accommodation or quasi-secure accommodation setting, lack of consent of young person wasn’t required and thus their giving consent did not prevent a Judge making the order or using the inherent jurisdiction.

In effect, Mostyn J had been persuaded that consent was more significant than it in fact was, and it wasn’t necessary to add the gloss that he applied to reach the right outcome.

 

The technical bits follow in bold, skip if you like – there’s better stuff after that of a wider interest

 

Discussion: Is a lack of valid consent a pre-requisite to the exercise of the inherent jurisdiction authorising restriction of the liberty of a young person?

  • Although the point is now conceded for the purposes of this appeal, it is helpful to record brief reasons why the Appellant’s concession on the question of whether a lack of valid consent is a pre-requisite to the exercise of the inherent jurisdiction to restrict liberty was correctly made.
  • On the basis of the ECtHR and domestic case law, and on the basis of the statutory scheme for secure accommodation in CA 1989, s 25 and SSW(W)A 2014, s 119, it is clear that, whilst a lack of valid consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Art 5, lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person’s liberty. That conclusion is established on the following four bases:

 

a) The consent, or otherwise, of the young person is not a relevant factor in the statutory scheme;

b) There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person;

c) To hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation;

d) It would also mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.

(a) The statutory scheme does not require lack of consent

  • The consent, or lack of it, of the young person who is the subject of a secure accommodation application is not a factor to which reference is made in any part of the statutory scheme under CA 1989, s 25 or SWW(W)A 2014, s 119. The statutory scheme has been held to be compatible with, and not in breach of, ECHR Art 5.
  • The fact that ‘consent’ is not a factor in the statutory scheme, in contrast to the requirements of Art 5 when determining whether there has been a deprivation of liberty as established by the second element of Storck, points up the essential difference between the two processes. Section 25 and s 119 are concerned with the authorisation of the placement of a child in secure accommodation: “… a child … may not be placed … in accommodation … for the purpose of restricting liberty (“secure accommodation”) unless …”. By s 25(2) and s 119(2) regulations may ’empower the court from time to time to authorise a child to be kept in secure accommodation’ for such period as the regulations may specify. Where the statutory criteria in s 25(1) or s 119(1) are satisfied the court ‘shall’ or ‘must’ ‘make an order authorising the child to be kept in secure accommodation’ (s 25(3) and s 119(3)) – see Re M (Secure Accommodation).
  • The effect of a court order under s 25 or s 119 is, therefore, to ‘authorise’ the applicant local authority to keep the subject child in secure accommodation. The effect of authorisation under s 25 is most clearly demonstrated by s 25(5A) which spells out the effect of a secure accommodation order for a placement in Scotland:

 

(5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child’s liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section. [emphasis added]

  • In contrast to a sentence of imprisonment passed by a criminal court, a local authority is not required to restrict the liberty of a young person who is the subject to a secure accommodation order; s 25 and s 119 do no more than establish a system for the authorisation of such placements. The statutory scheme is therefore focused upon whether or not the factual circumstances are such as to be sufficiently serious to justify restricting liberty.
  • The welfare of the child, whilst relevant, is not the paramount consideration for a court when determining an application for a s 25 or s 119 order (Re M (Secure Accommodation Order) [1995] 1 FLR 418). The judgment of Butler-Sloss LJ (as she then was) in Re M justifies reading in full, but the reasons supporting her conclusion, with which Hoffmann LJ and Sir Tasker Watkins agreed, included the following:

 

a) Section 25 sits within Part 3 of CA 1989 which is structured to cast upon the local authority duties and responsibilities for children in its area, including those who are being looked after.

b) The general duty of a local authority under Part 3, which is to safeguard and promote the child’s welfare, is not the same as the duty of a court under CA 1989, s 1 to afford paramount consideration to the child’s welfare.

(b) No domestic authority requires there to be a lack of valid consent

  • Save possibly for the decision of Keehan J in Local Authority v D to which I will now turn, and, of course, Mostyn J’s decision in the present case, this court has not been taken to any authority for the proposition that a lack of valid consent is a necessary jurisdictional pre-requisite before the High Court may exercise its inherent jurisdiction to authorise restriction of liberty. The role of the High Court, in holding as closely as possible to the scheme of s 25 and s 119 in these cases, is that of determining whether a local authority is to be authorised to restrict liberty.
  • This court was told that, in the present case, since the making of the order in March, the regime at the second placement has been relaxed so that the appellant now spends over three hours each day of ‘free time’ with the expectation that the amount of free time will increase by 30 minutes each week. The relaxation of the regime was a matter within the discretion of the local authority under the structure of the order made by Mostyn J who, rather than requiring restraint, had simply sanctioned its use.
  • In like manner to the effect of a secure accommodation order, an order under the inherent jurisdiction in these cases does not itself deprive a young person of his or her liberty, it merely authorises the local authority (or those acting on their behalf) to do so. This distinction was, unfortunately, not made sufficiently clear by Keehan J in Local Authority v D when he summarised the issue before the court (at paragraph 9) in terms of determining whether or not C was deprived of his liberty. With respect, the issue in such cases is, rather, whether the court should give a local authority the authority to deprive a young person of their liberty should they consider that that is necessary. In the event, Keehan J’s determination turned on the different basis that, because of the agreement of the young person it was not necessary for the court to give such authority to the local authority at that time.

 

(c) The different perspectives of Article 5 and an application for authorisation

  • This further consideration also points to the same overall conclusion. A determination that a person has or has not been deprived of their liberty in breach of Art 5 will often be a retrospective evaluation of the individual’s current and past circumstances. In that regard the question of whether or not they have or had consented to the restrictive regime is likely to be an important element; one cannot normally be said to be deprived of liberty when one has freely agreed to the relevant regime. This is in contrast to the court’s role under s 25 and s 119 or under the inherent jurisdiction, where the court’s perspective is normally prospective, determining whether circumstances exist that justify a local authority placing a child or young person in accommodation for the purpose of restricting their liberty.

 

(d) The purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.

  • The need for an order authorising a local authority to place a child in the equivalent of secure accommodation derives from two factors. The first, and fundamental aspect, is to ensure that the absence of available secure accommodation does not lead to the structure imposed by s 25 being avoided. The terms of s 25 should be treated as applying to the same effect when a local authority is placing a child or proposing to place a child in the equivalent of secure accommodation. When viewed from this perspective, it is clear that a local authority cannot invest itself with the requisite authority and that a child’s agreement or consent cannot authorise such a placement. Neither the local authority nor a child/young person can authorise what Parliament has decided only the court can authorise.
  • The second factor derives from Article 5. The court’s authorisation means that if the authorisation is used for the purposes of depriving a child of their liberty the legal requirements of Article 5 will also have been fulfilled: see Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526. The court will necessarily have determined that the child’s welfare justifies, or even requires, him/her being deprived of their liberty for the purposes of maintaining the placement in the secure accommodation.
  • Drawing these matters together, once it is seen that the court’s power under s 25 / s 119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear. The fact that any consent may or may not be ‘valid’ or ‘enduring’ on the day the order is sought, or at any subsequent point, or that a ‘valid’ consent is later withdrawn, is irrelevant to the scope of the court’s powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court. The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5. But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.
  • This approach, where the question of whether or not an Art 5 deprivation of liberty occurs depends upon the facts on the ground at a particular time and is not necessarily required by, or created by, the court order but by the act of those caring for the child under the court’s authorisation, accords with the ECtHR jurisprudence summarised at paragraph 23 and onwards above.

 

Further, the need for there to be an absence of valid consent before the Storck criteria are established, does not mean that the presence of an apparently valid consent prevents the circumstances from amounting to a deprivation of liberty (see De Wilde, Ooms and Versyp, Storck para 75 and Buzadji). In terms of domestic authority, paragraphs 23 to 31 of MM and PJ could not be more clear – “where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty”. In like manner, it is to be recalled that the court in De Wilde stated:

“Finally and above all, the right to liberty is too important in a “democratic society” within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it” [emphasis added].

Conclusion

  • It inevitably follows from the above analysis, and from the Appellant’s concession, that Mostyn J’s initial misgivings were well-placed but that he was unfortunately drawn into a legally erroneous position by accepting that it was necessary for the court to find a lack of valid consent before it could grant the local authority’s application. In the circumstances any question of the judge being correct in adding the gloss of ‘enduring’ to this non-existent jurisdictional requirement falls away.
  • I should make clear that this case does not concern the placement of children in other than the equivalent of secure accommodation. Different considerations will apply when an application is directed towards, and only directed towards, a deprivation of liberty. In that situation, subject to De Wilde, the question of whether or not the subject of an application to authorise the deprivation of liberty of a young person under the inherent jurisdiction is in agreement with the proposed regime may form part of an evaluation of whether such authorisation is necessary. Local Authority v D is an example of a case where the judge concluded that the young person’s stance rendered a court order unnecessary.
  • Conversely, as referred to above, once the court has authorised placement in secure accommodation or its equivalent, it may properly be considered that the matter can be left to those who are authorised to operate the care regime on a day to day basis and, as in the present case, they may work with the young person in a flexible manner using their powers of restriction or deprivation when necessary, but relaxing them when it is safe and appropriate to do so. Such issues are fact-specific to each case and are not matters of jurisdiction.
  • The Appellant’s appeal, as it had become by the close of argument, is now no more than a challenge to the judge’s discretion and could only succeed if this court were to be satisfied that the judge was wrong to grant authorisation to the local authority notwithstanding the apparent consent of the young person. There is no basis for holding that Mostyn J was ‘wrong’ to authorise restriction of liberty in this case. Indeed, as the judge himself observed, the breakdown of the placement so soon after the January order had been made vindicated his determination on that occasion; it also justified the making of a further order in respect of the new placement.

 

 

The Court of Appeal also made broader comments about the chronic and acute lack of beds for children who present with these difficulties, and the inherent unsuitability of using the inherent jurisdiction as a sticking plaster for the lack of bed space.

 

  1. This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act, 1989, s 25 (CA 1989).
  3. Official figures published by the Department for Education[1] show that, as at 31 March 2018, there were some 255 places in secure children’s homes in England and Wales. These places are taken up either by young people sent there through the criminal justice system or under CA 1989, s 25 secure accommodation orders. As will be explained more fully below, a child who is being looked after by a local authority in England or Wales may only be placed in secure accommodation in a children’s home if that home has been approved for such use either by the Secretary of State in England or the Welsh Government in Wales. This court understands that, in recent years, there has been a growing disparity between the number of approved secure children’s homes and the greater number of young people who require secure accommodation. As the statutory scheme permits of no exceptions in this regard, where an appropriate secure placement is on offer in a unit which is either not a children’s home, or is a children’s home that has not been approved for secure accommodation, the relevant local authority has sought approval by an application under the inherent jurisdiction asking for the court’s permission to restrict the liberty of the young person concerned under the terms of the regime of the particular unit on offer.
  5. Despite the best efforts of CAFCASS Cymru (this being a case concerning a Welsh young person), it has not been possible to obtain firm data as to the apparent disparity between the demand for secure accommodation places and the limited number available, nor of the number of applications under the inherent jurisdiction in England and Wales to restrict the liberty of a young person outside the statutory scheme. The data published by the Department for Education referred to in paragraph 2 simply measures the occupancy rate within the limited number of approved secure places without attempting to record the level of demand.
  7. This court has been told by counsel, on a broad anecdotal basis, that each local authority may, on average, make an application for a restricted liberty declaration under the inherent jurisdiction in one case each year. If that is so then, across England and Wales, the total number of such applications would be in the region of 150 per year. The understanding, again anecdotal, of judges hearing these cases is that that figure is probably a very substantial under-estimate; for example, in one week recently a medium-size court outside London heard five such applications. Again, by way of example, Mr Justice Holman described the situation in one week in the High Court in 2017 with a tone of wholly appropriate concern in A Local Authority v AT and FE [2017] EWHC 2458 (Fam):
    1. “5. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction.  This week I have been sitting here at the Royal Courts of Justice as the applications judge.  This case is about the sixth case this week in which I have been asked to exercise the inherent jurisdiction of the High Court to authorise the deprivation of liberty of a child in similar circumstances.  There are two yet further similar cases listed before me today.

6. Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week.  Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children.  This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

  1. It is plainly a matter for concern that so many applications are being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. The concern is not so much because of the pressure that this places on the court system, or the fact that local authorities have to engage in a more costly court process; the concern is that young people are being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament

 

The need for precision about the sort of restrictions that a children’s home can place on children and the need for training, inspection and monitoring of homes that are authorised to do so sprang out of the Pindown scandal, and the ingredients are in place for us to slide back into those sorts of dreadful abuses that began with good intentions but got so far removed from how the State ought to be dealing with its most vulnerable children. I hugely applaud the Court of Appeal here – the lack of secure beds is an accident waiting to happen.

 

The wider issues and the need for scrutiny

  • Before concluding this judgment, I return to the concern (referred to in paragraph 5) that so many young people are now being placed in secure accommodation outside the statutory scheme laid down by Parliament in units which, by definition, have not been approved by the Secretary of State as secure children’s homes. Whilst the High Court has a duty to consider such cases and must come to a decision taking account of the welfare needs of the individual young person, in the wider context the situation is fundamentally unsatisfactory. In contrast to the Secretary of State, the court is not able to conduct an inspection of the accommodation and must simply rely upon what is said about any particular unit in the evidence presented to it. In like manner, where a local authority, as is typically the case, is looking to place a young person in a bespoke unit a great distance away from their home area, the local social workers must make decisions at arm’s length and, it must be assumed, often without first-hand detailed knowledge of the particular unit.
  • The wide-ranging and powerful submissions of the ALC raise issues which are beyond the compass of this appeal but nevertheless deserve consideration in other places. The ALC identifies the following four key questions arising from the fact that a parallel system now exists under the inherent jurisdiction with respect to the secure accommodation of young people who would otherwise fall within the statutory code:

 

i) What is the impact, if any, on children of there being in use two parallel processes?

ii) Is there a disparity in the adherence to due process obligations or in the safeguarding a child’s access and participation in court decisions between these two processes?

iii) Is there a disparity in the practical protection afforded to children through the two processes which may result in arbitrary unfairness?

iv) What are the effects on the Convention Rights of children and the protection of their Article 5 and 6 rights of having two processes and in particular when does the ECHR case of Storck apply?

  • In the circumstances, a direction will be made that a copy of the judgments in this case is sent to each of the following: the Secretary of State for Education, the Secretary of State for Justice, the Chair of the Education Select Committee, the Chair of the Justice Select Committee, the Welsh Government and the Commissioner for Children.

 

 

Having ended the blog proper, two bits of shameless self-promotion (I say shameless, but I’m scarlet and writhing with shame as I type, honestly)

 

  1.  I am on the shortlist for Legal Commenter of the year at the Family Law Awards.  I’ve won this before, so I didn’t want to campaign for it, feeling that the goodness should be shared. But it was amazing to be nominated, and the words said were very kind.  My readers should vote, if they can spare a minute, and if you want to vote for me that’s very sweet (but don’t feel obligated to do so)  . Voting ends on Friday 19th October, so there’s time if you want to.   https://www.familylawawards.com/ehome/familylawawards2018/vote
  2.  As this blog is about Secure Accommodation, a plug for my book In Secure, which is fiction and set in a secure accommodation unit with ten children – there’s magic, adventure, romance, shocks and scares. It’s Tracy Beaker with Tentacles basically. If you haven’t read it yet, I’d love you to read it. You can get a e-book for 99p and the gorgeous paperback for eleven quid.  If you have read it, please put a review on Amazon, it makes a huge difference. https://www.amazon.co.uk/Secure-Andrew-Pack/dp/1911586947/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=1539007741&sr=8-2

 

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Mostyn J gets dissed by Court of Appeal despite not being the Judge in the case being appealed

Posted on July 26, 2018 by suesspiciousminds

 

Re A Children 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1718.html

Long-time readers will have been enjoying the regular frank exchange of views and pleasantries between Mostyn J and the Court of Appeal, but this is a new one.  The Court of Appeal in this case overturned a Judge who had been following Mostyn J’s guidance in a High Court case and therefore had the opportunity to say that Mostyn J was wrong as a sideswipe.

 

Did they resist this?

Reader, they did not.

 

  1. In A County Council v M & F, upon which the judge relied, Mostyn J having set out passages from Re B (and Baroness Hale’s confirmation of Re B found in Re S-B [2010] 1 All ER 705, SC,) went on:
    1. “16. Thus the law sets a simple probability standard of 51/49, but the more serious or improbable the allegation the greater the need, generally speaking, for evidential “cogency”. In AA v NA and Others [2010] 2 FLR 1173, FD, I attempted to summarise these principles at para 24:

17. Thus, it is clear that in all civil proceedings P cannot be set higher than a scintilla above 0.5. The various judicial statements that a more serious charge requires more clear evidence is not an elevation of P > 0.5. The requirement of evidential clarity is quite distinct from an elevation of the probability standard. Were it otherwise, and, say, an allegation of rape or murder of a child made in civil proceedings required P to be set at > 0.6 then one could end up in the position where a court considered that P in such a case was, say 0.51 but still had to find that it did not happen; when, as a matter of probability, is was more likely that not that it did. This would be absurd and perverse. P must always be set at > 0.5 in civil proceedings, but subject to the proviso that the more serious the allegation so the evidence must be clearer.”

  1. With the greatest respect to the erudition of Mostyn J’s arithmetical approach to the application of the ‘simple balance of probabilities’, I do not agree that it represents the appropriate approach, and it seems to me that this passage had, in part, led the judge to decide that, in order to determine whether the local authority had discharged the burden of proof to the necessary standard, he had to adopt the same approach. As a consequence, the judge mistakenly attached a percentage to each of the possibilities and thereafter, added together the percentages which he attributed to an innocent explanation and before concluding that, only if the resulting sum was 49% or less, could the court make a finding of inflicted injury

 

Perhaps envisaging a ‘says who?’ response to their very polite (if you are not a lawyer) ground and pound of Mostyn J, the Court of Appeal pre-empt this

 

  1. In A County Council v M & F Mostyn J had drawn on the shipping case of The Popi M ( Rhesa Shipping Co.S.A. v Edmunds, Rhesa Shipping Co.SA v Fenton Insurance Co Ltd) [1985] 1 WLR 948 HL,(Popi M) as an example of ” the burden of proof coming to the rescue”[18]. Lord Brandon, in his celebrated passage in Popi M, in declining to apply the dictum of Sherlock Holmes to the effect that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth” said:
    1. “The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated

  1. Recently (and after A County Council v M&F), in Nulty Deceased v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 Lord Justice Toulson (as he then was) considered the use of an arithmetical approach to the standard of proof. Having first considered Popi M he went on:
    1. “33. Lord Brandon concluded, at 957, that the judge ought to have found simply that the ship owners’ case was not proved.

34. A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] UKHL 23, [2007] 1 WLR 1325, at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination “leading to no more than a conclusion regarding the least unlikely cause of loss”, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise.

35. The civil “balance of probability” test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a “preponderance of the evidence”. In the British Commonwealth the generally favoured term is a “balance of probability”. They mean the same. Sometimes the “balance of probability” standard is expressed mathematically as “50 + % probability”, but this can carry with it a danger of pseudo-mathematics, as the argument in this case demonstrated. When judging whether a case for believing that an event was caused in a particular way is stronger than the case for not so believing, the process is not scientific (although it may obviously include evaluation of scientific evidence) and to express the probability of some event having happened in percentage terms is illusory.

36. Mr Rigney submitted that balance of probability means a probability greater than 50%. If there is a closed list of possibilities, and if one possibility is more likely than the other, by definition that has a greater probability than 50%. If there is a closed list of more than two possibilities, the court should ascribe a probability factor to them individually in order to determine whether one had a probability figure greater than 50%.

37. I would reject that approach. It is not only over-formulaic but it is intrinsically unsound. The chances of something happening in the future may be expressed in terms of percentage. Epidemiological evidence may enable doctors to say that on average smokers increase their risk of lung cancer by X%. But you cannot properly say that there is a 25 per cent chance that something has happened: Hotson v East Berkshire Health Authority [1987] AC 750. Either it has or it has not. In deciding a question of past fact the court will, of course, give the answer which it believes is more likely to be (more probably) the right answer than the wrong answer, but it arrives at its conclusion by considering on an overall assessment of the evidence (i.e. on a preponderance of the evidence) whether the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen)”.

  1. I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the “fact in issue more probably occurred than not” (Re B: Lord Hoffman).
  3. In my judgment what one draws from Popi M and Nulty Deceased is that:
  5. i) Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence.

ii) Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances.

iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.

  1. In my judgment the judge fell into error, not only by the use of a “pseudo- mathematical” approach to the burden of proof, but in any event, he allowed the ‘burden of proof to come to [his] rescue’ prematurely.

 

I’m sure that Mostyn J is delighted by the dismissal of his P>0.5 formulation as ‘pseudo-mathematical’

 

The case they were talking about is one I wrote about here

 

A County Council v M and F 2011

 

but for my part, the more troubling one, where the mathematics (or pseudo-mathematics) applied to the balance of probabilities directly affect the outcome is here  (three years later, building on Re M and F  and building on the Popi shipping law case but overlooking the Nulty civil negligence about a fire and electrical engineering  law case)

 

Mostyn-tacious – a judgment that makes your temples throb

 

Anyway, the soup and nuts of both of them is that Mostyn J looked at a variety of explanations, malign and benign for incident X and then ascribed percentages to them, and saying whilst the malign explanation might be more likely than not than any individual benign explanation, he was instead totalling up the chance he had ascribed to each of the benign explanations and deciding that he could not say that the chance of malign explanation was higher than all of the possible benign explanations added together.  So what he was doing was saying  ‘There are 3 explanations. I think that the most likely of those three is that mother did this.  But if I ascribe percentage possibilities to each option, I might still decide that the two alternative explanations add up to more than 50%, so I’m not able to say that mother did this’

 

Anyway, the Court of Appeal say that the Court should not get into such esoteric exercises and simply say that on the balance of probabilities what do they say is the more likely than not explanation for event X.  Which is good news for anyone who doesn’t want to take a course in probability theory.

 

This case is desperately sad, even by care proceedings standards  – a ten year old girl is found dead. The police assume accidental strangulation by falling off a bunk and getting trapped in decorative netting. Poppi Worthington style errors are made in the investigation, and then evidence comes to light suggesting that the ten year old had been sexually assaulted (there is talk of DNA being present in intimate areas) and concerns then arise that the ten year old either hung herself intentionally or was killed  (deliberately or unintentionally as part of choking).  That obviously had massive implications for the other five children of the family.

At final hearing, the Judge concluded that the evidence that the girl was sexually assaulted was made out, but he could not say who perpetrated the assault  (there’s some odd wording about why the LA were refused their request to call the police officer who analysed the DNA samples) and whether it might be member of extended family or an intruder.  The Judge found that despite some conflicting expert evidence about causation of the death  (the medical research is that accidental strangulation happens rarely and to much much younger children) he was not able to make a finding that the malign explanation outweighed each of the possible benign explanations. Threshold was not met, the other five children went home.

The Court of Appeal concluded that

 

  1. In my judgment the judge fell into error, not only by the use of a “pseudo- mathematical” approach to the burden of proof, but in any event, he allowed the ‘burden of proof to come to [his] rescue’ prematurely.
  3. In my judgment the judge had failed to look at the whole picture. Not only did he fail to marry up the fact that S sustained two sets of injuries (one of which was fatal) but the judge, faced with the incontrovertible evidence in relation to the genital injuries, carried out no analysis of the available evidence in order to see whether an accident (for example) was a likely cause. Whilst in other circumstances I might have identified, or highlighted by way of example, certain evidence which I believe merited consideration by the judge, given my view that the appeal must be allowed and the matter remitted for rehearing, it would not be appropriate for me to comment further.
  5. Only if, having carried out such a comprehensive review of the evidence, a judge remains unable to make findings of fact as to causation, can he or she be thrown onto the burden of proof as the determinative element.
  7. In my judgment, in this most difficult of cases and in the most trying of circumstances, the judge failed to carry out such an analysis before relying on the burden of proof. This, when coupled with the erroneous conclusions of the judge in respect of the genital injuries and his failure to give those injuries any weight when considering whether S died as a consequence of an inflicted injury, must, in my judgment, lead to the appeal being allowed and the order set aside.
  9. I have considered with a deal of anxiety whether the case should be remitted given the lapse of time and that the family are reunited. I have however come to the unequivocal conclusion that it must. If S was killed other than by accident or suicide, it happened in that household and no one has any idea how or in what circumstances it came about. This is not a case, tragic and serious though that would be, where a child may have been shaken in an understandable momentary loss of self-control by an exhausted parent. This was a 10 year old child, and if it was the case that her death was caused by some unknown person strangling her with a ligature, the risk and child protection issues in respect of her surviving sister and brothers cannot be over stated. Traumatic though a fresh trial would be, it cannot be viewed as other than a proportionate outcome if, as they say is their intention, the local authority pursues the case.

 

That’s obviously a dreadful state of affairs either way.  Either something awful and malicious happened to this ten year old, in which case children were wrongly returned to the care of the parents  OR it didn’t, and having secured the return of their five surviving children having been under awful suspicion the parents have to go through it all again.  That’s unbearable however it turns out.

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Magical sparkle powers, secure accommodation and consent

Posted on April 19, 2018 by suesspiciousminds

 

 

These are two intricate judgments about the same child, where two different and unusual points of law collide.

 

  1. For a while now, because there are not enough Secure Accommodation beds for the children who need to be placed in them, the High Court has been asked (and is often granting)  approval for the child to be placed in a unit that is NOT approved for Secure Accommodation and giving all of the powers for the child’s liberty to be restricted, using the Court’s inherent jurisdiction – or what I like to call magical sparkle powers. (I think this is a public enquiry waiting to happen – there are very good reasons – google Pindown – for why Parliament set up a very restrictive statutory regime for how children can be deprived of their liberty, with training and inspection regimes to safeguard those children. Others take a pragmatic view that these children need to be somewhere safe and contained and as we don’t have enough Secure Units, we have to do something, and the High Court are doing their best with the resources we have)
  2. The deprivation of liberty for children as a result of their circumstances short of the secure accommodation regime, where the Court of Appeal and High Court have found that parents can consent to the arrangements and that capacitious children can consent to the arrangements too. So that an authorisation under the inherent jurisdiction is not necessary, because it is being done by consent.

 

What appeared before Mostyn J was a young person for whom the grounds for Secure Accommodation were clearly made out, but there was no bed in a Secure Unit. He was being asked to approve a different form of home to use those powers, BUT it was argued that the young person was consenting to that regime, and so a declaration by the Court for use of inherent jurisdiction was not necessary.

 

The way that Mostyn J approached it was to think about the quality of consent – was it temporary or enduring?

 

A Local Authority v SW and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/576.html

 

Mostyn J firstly sets out his approach when looking at authorising secure accommodation with a lowercase s, under the inherent jurisdiction. I wholeheartedly agree – I’d rather we weren’t doing it at all, but at least this is making efforts to safeguard these very vulnerable children.

 

  1. Since the enactment of the Act that scheme appears to have functioned tolerably well until recent times, when an unhappy phenomenon has arisen, and that phenomenon is that there had not been sufficient authorised places made available under this section. When I say “authorised places” I am talking about places that have been authorised by regulations made pursuant to subsection (7), which allow the Secretary of State to prescribe which places may provide secure accommodation. In recent times, a phenomenon has arisen, as I have said, whereby insufficient places have been made available to meet the demand for children to be placed in secure accommodation. Therefore, a mirror procedure has been devised by the High Court which has authorised placements in secure environments for children in places not authorised pursuant to the regulations made under section 25 of the Children At. And this is such a case. There is no suitable place to accommodate a child pursuant to an order under section 25 of the Children Act (or its Welsh equivalent) apparently available anywhere in the country, even in Scotland.
  3. There have been a number of authorities as to the scope of the power of the High Court under an inherent jurisdiction to make these alternative mirror arrangements. In my opinion, lest the democratic process is to be subverted by judicial activism, it is important that, so far as is practicably achievable, that mirror orders made under the inherent jurisdiction conform as much as possible with the prescriptions within section 25 and its subsidiary regulations. Were the court to devise an alternative scheme that deviated significantly from the terms of section 25 (or its Welsh equivalent) there would, as I have said, be a danger of criticism of judicial activism in conflict with a Parliamentary directive.
  5. Therefore, it seems to me that if the court is to make an alternative mirror order pursuant to its inherent jurisdiction, it should strive to ensure that, in the first instance, it is not longer than 3 months, and that each subsequent renewal is for no more than 6 months. Further, it should be satisfied initially and on each renewal that the criteria within section 25(1) are met. I am not saying that the court is imprisoned within the four corners of the terms of section 25(1). To coin a phrase, it should not have its liberty so deprived, but there should be endeavours made by the court that, so far as possible, it should be satisfied that the statutory criteria are met. Were that not so, then there would be, by judicial activism, established an alternative scheme which perhaps might have lower standards than that which Parliament has decreed should apply where the liberty of a child who is the subject of a care order is deprived.
  7. The compliance of section 25 with the European Human Rights Convention and the Human Rights Act was considered by the Court of Appeal in the famous case of Re K [2001] 1 FLR 526. In that case it was held that a secure accommodation order is indeed a deprivation of liberty within the meaning of article 5 of the Convention, but it is not incompatible with the Convention where it is justified under one of the exceptions in article 5(1). For example, where the order is for the purposes of educational supervision. I should say here that education within article 5(1) plainly is not to be read as being confined purely to scholastic instruction, but must be given, for the purposes of the construction of that provision, a wider definition. Re K was decided 17 years ago, and since then there have been (as is well known) significant developments both in the Strasbourg Court and domestically in the interpretation of the scope and meaning of article 5. Famously, in Storck v Germany [2005] 43 EHRR 96 it was held that in order for article 5 to be engaged three criteria must be met: namely, that there must be an objective component of confinement in a particular restricted place for a not negligible length of time; secondly, there must be a subjective component of lack of valid consent; and, thirdly, there must be an attribution of responsibility to the state. Thus, there must be a non-consensual detention at the behest of the state. This formulation was approved by the Supreme Court in the Cheshire West case [2014] UKSC 19 at para 37.

 

He then turns to the issue of consent

 

  1. The second limb of the formulation requires there to be a lack of valid consent. An interesting question arises, which is relevant to the decision that I have to make, as to whether this requirement has to be demonstrated when an application is determined under section 25 of the Children Act 1989. The notes to the Red Book state that the consent of a young person to the making of a secure accommodation order is not required. The citation for that is Re W (a child) [2016] EWCA (Civ) 804. But that does not really answer the question that I am now posing, which is that if the young person who is the subject of an application under section 25 consents to the application, can the order in fact validly be made? Because in order for there to be a deprivation of liberty, there must be, as the Strasbourg Court has said, present the subjective component of lack of valid consent. So one can see a curious catch-22 arising, which is where the local authority consider that a child should be placed in secure accommodation, and the child through his representatives realises that the case against him or her is very strong, if not overwhelming, and consents to it, that the act of consent in fact prevents the order being made. That cannot be an acceptable construction of the provision, in my respectful opinion, and it is for this reason that consent, or lack of consent, never features in applications under section 25, and that, as Miss Edmondson has eloquently explained, in many cases the applications for these orders are disposed of by consent.
  3. So this gives rise to the question whether there must be demonstrated lack of valid consent if the application is being made under the alternative mirror procedure pursuant to the inherent jurisdiction. If the issue of lack of consent is not a requirement under the statutory procedure, and if, as I have suggested, it is important that the alternative mirror procedure conforms as much as possible to the statutory procedure, it is hard to see why there should be an imputation of the lack of consent requirement into the alternative procedure. However, I am persuaded by Mr Laing that all the authorities under the alternative procedure have emphasised strict compliance with the Strasbourg jurisprudence on article 5. Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative procedure, that it does have to be satisfied of the presence of a lack of valid consent. It may well be that in a case in which an application is being made under section 25 (or under its Welsh sibling) the court will have to consider the point that I have spent some time describing, and whether there does in fact, since the arrival of the Strasbourg jurisprudence to which I have referred, lie latently within section 25 an insoluble catch-22.
  5. So I proceed on the basis that in order for the order to be made today, the 3 components have to be present. There is no dispute as to the first and the third. The question is as to whether the second is demonstrated in circumstances where there is active consent by the child with whom I am concerned to the placement in question.
  7. This matter was considered by Keehan J in the decision of A local authority v D [2016] EWHC 3473 (Fam) (otherwise known as Re C). It has to be said that in that case the conduct of the children concerned was very much of a lower level of concern to that which I am concerned with. However, Keehan J decided clearly that the child in question could give a valid consent. Moreover, he decided at paragraph 58 that once he was satisfied that valid consent has been given, the fact that he may withdraw that consent at some point in the near future does not negate the valid consent he gave nor does it negate the legal consequences of that consent. I have considered this judgment carefully, and I take from it that the concept of consent does not necessarily mean hearing the words “I do”. There must be an authentic consent, and this much is accepted by Mr Laing who represents the child. As he put it, he must say it and mean it. The consent in question must be an authentic consent, and it must be an enduring consent. This means that the court will have to make a judgment as to whether the consent is going to endure in the short to medium term, or whether it is a merely evanescent consent. If the court is satisfied by the history that the consent in question is merely evanescent and is not likely to endure, then, in my judgment, that is not relevant consent for the purposes for which I am concerned. This is, to my mind, to state the obvious. So the court can only make the order in question if it is satisfied that there is a lack of valid consent in the way that I have described it: authentic, and likely to endure.

 

(The bits in italic are the parts that probably lead to the decision being appealed.  For my part, I think that Mostyn is right. We can’t predict whether consent will be withdrawn, but where the history is very clear that it is a temporary consent that the young person can’t maintain, that’s a factor to be taken into account.  Put bluntly, if a Local Authority are looking to have the power to stop a young person leaving a children’s home because they have a history of running away, how much force does the young person saying “okay, I agree that I can’t leave… but if I change my mind and try to, you’ve got to let me” actually have?)

 

On the facts of the case Mostyn J decided that the consent being proffered by the child was not authentic and likely to endure and he made the inherent jurisdiction declarations.

Permission to appeal was then given by Jackson LJ. The child absconded from the unit, and the case came back to Court. And if there was ever a daunting prospect in advocacy it is appearing before Mostyn J on a case where he knows you have just appealed him.  His approach to such things is not sanguine. It is more akin to striking an Edwardian gentleman about the face with a white silken glove. In short, it’s on.

 

Like Donkey Kong.

 

So, part 2

 

A Local Authority v SW part 2  2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/816.html

 

  1. That decision of mine has been appealed and permission to appeal was granted by Peter Jackson LJ on 19th March 2018 under the second limb, namely that there were compelling reasons for an appeal to be heard. I have noted that in the skeleton argument in support of the proposed appeal, an analogue in relation to the consent to sex was made; similarly, an analogue with the formation of a commercial contract was made. It will be for the Court of Appeal to decide whether these analogues have any relevance at all to the consent which, is in fact, in play. I would point out that a person at the age of the child with which I am concerned cannot consent to sex or form a contract, so the relevance of those analogues at the moment presently escapes me.
  4. In my judgment, the view that I took that the consent in question has to be found to be both authentic and enduring is well borne out by the subsequent events. I cite from the witness statement made by a social worker on behalf of the Local Authority dated 16th March 2018. At para.10 it says this:
    1. “On 3rd March 2018, [name redacted] went out for a walk without permission at 16.45 following becoming agitated at the home and staff followed her. A staff member [name redacted] has reported that she maintained contact with [name redacted] through text messaging and met up with her again in McDonald’s at 17.40. [Name redacted] reports to [name redacted] that she was upset about her younger brother staying at his mother’s house when he was not supposed to. On her return, [name redacted] went into her bedroom, the following day staff reported that [name redacted] was pacing back and forth in her room, asking for a paracetamol for a headache. [Name redacted] reports that [name redacted] unusual behaviour continued, leading her to request a room search. [Name redacted] became aggressive towards staff whilst in her bedroom when staff asked her to do a room search. They describe that her eyes were like saucers and could possibly have been under the influence of a substance. [Name redacted] used a plastic plaque to harm herself, was hitting out at staff with it and making verbal threats that she would, “Fuck them up”. The staff reported that [name redacted] calmed down quickly after the incident. Police attendance had initially been requested and when the police arrived, [name redacted] became agitated again and upon search of her, a mobile phone with Internet use fell out of her bra. Upon a search of the room, nothing further was found. [Name redacted] was admitted to hospital following the incident of self-harm, where she had superficially cut her wrists. At the hospital, she was seen by CAMHS and they concluded that she had no further self-harm intent and no suicidal ideation and were happy for her to be discharged. She was discharged back to [name redacted] on 6th March 2018 at 2.00 p.m…

12. On 6th March 2018, following being discharged, [name redacted] left her accommodation at about 5.00 p.m. and was reported missing to the police. She was found by the police smelling of alcohol, having hallucinations and was aggressive. She was refusing to be monitored and was very agitated and was given two milligrams of Lorazepam to calm her down. Ambulance staff transported her to hospital on 7th March 2018 at 5.00 a.m. where [name redacted] reported to hospital staff that she did not remember what had happened, was given alcohol and sweets and reported to have had anal and oral sex with one man who she did not know. [Name redacted] refused to go to the [name redacted], a provision to offer urgent and follow-up care to people who have been sexually assaulted but agreed to a hepatitis B vaccine, bloods and sexual health tests. [Name redacted] was given three weeks preventative medication for HIV.”

  1. Three days after that, the placement of the child completely broke down and she was moved to a new placement in the Midlands. She is content and compliant at that placement. Everyone hopes that this new placement will represent a success for her and that improvements can be made in her mental rehabilitation.
  4. The consequence of this is that the order that I made authorising her detention at the previous placement has been overtaken by events. That order will therefore be discharged and replaced by a fresh order made by me today. The consequence of that is that the order in respect of which permission to appeal has been granted by Peter Jackson LJ no longer exists and that appeal becomes redundant. However, in view of the fact that I intend to adopt the same legal reasoning in respect of this fresh placement will, no doubt, lead the child to seek permission to appeal this new order, notwithstanding that the point of this exercise entirely escapes me.

 

At this point, I like to pause and imagine the charged atmosphere should Mostyn J and Peter Jackson LJ find themselves in a slow lift together at the Royal Courts of Justice, with perhaps the “Girl from Ipanema” as elevator hold music playing in the background.

 

So, the order that was being appealed is no more, so the appeal has to end (it is an appeal of an order, not a decision – though the Court of Appeal do fluctuate quite wildly on whether they champion this point or completely ignore it – see the various decisions about findings of fact).  Mostyn J recognises that this judgment is also likely to be appealed (though he is on even firmer ground in deciding that the young person’s consent is not enduring, the point of law as to whether that’s necessary if capacity and consent are both present remains)

 

  1. On the last occasion in my judgment I held that the consent, as I have said, can only be found to exist where it is authentic and enduring. That I was correct in that determination is demonstrated by the subsequent events. Notwithstanding that the child on the last occasion expressed to me, seemingly authentic consent, subsequent events show that within a relatively short period of time, that consent was not genuinely expressed because the events which I have set out occurred.
  4. For these reasons, I am satisfied once again, even more satisfied than I was on the previous occasion, that the deprivation of liberty declaration should be given, granting the Local Authority the powers and protections which I have mentioned in my previous judgment.
  7. I have asked, if I were not to make this declaration, what position would the Local Authority and, indeed, the child be left in? She would not be in a position of formal state detention with the powers and protections that attach to that. She would, on the face of it, be free to leave her present placement, although the consequences would be that she would then become an officially missing person and the Local Authority could summon police assistance to bring her back to base, but there will be nothing to prevent her leaving again almost instantly, a situation that is almost too absurd to contemplate as a consequence that the law intends to apply.
  10. For these orders, therefore, I make an equivalent order to the one that I made on the last occasion in relation to this new placement. For the avoidance of any doubt and in anticipation of an application for leave to appeal, I refuse leave to appeal on the same basis that I did on the last occasion, namely that I see no prospect of an appeal succeeding and, with all due respect to Peter Jackson LJ, I can see myself no compelling reason for the appeal to be heard.
  13. I will authorise the bespeaking with expedition of a transcript of the judgment I have just given at public expense.

 

(Bespeaking, by the way, doesn’t refer to speech – it isn’t a posh way of saying, “speaking”, it means to order in advance. It is like Captain Picard saying “Make it so”)

 

Mostyn J had raised in the first judgment the issue of whether consent could block a Secure Accommodation application, if it were not for his test of whether the consent is authentic and enduring.  If it were not for the particular construction of s25, that would be a powerful point.  If the ‘no order principle’ applied to s25, consent from the young person would be sufficient to block the order, and then the young person could immediately withdraw the consent and walk out of the placement. Assuming no criminal offence was being committed, nobody could stop the child (it is arguable that the LA could use the 72 hour provision if they had not already done so, but only arguable)

 

However, section 25 is constructed in such a way that it is not at all clear that s1(5) applies

1 (5)Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

That would mean that the Court should not make a Secure Accommodation Order if the child is consenting.

 

BUT

 

s25 (4)If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.

 

And those two sections are in conflict.  After nearly 30 years of the Act, we don’t actually know whether s1(5) applies to a section 25 order.  I would always have said that it didn’t, but it is less clear since the Human Rights Act. Since a Court making a Secure Accommodation Order not only has to think about article 5, but also article  8 – is it proportionate and necessary?  And I think consent might come into play on necessity.

 

In conclusion then, I agree with Mostyn J’s decision and rationale. I disagree that there’s no value in an appeal. It is not usually desirable to have an appeal on a decision that you think is right, but it would be nice to have clarity and backing.  Particularly given that a lot of Secure Accommodation applications are heard before the Magistrates and having to decide whether consent blocks Secure Accommodation order might be better if they have some very clear judicial guidance.

 

 

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Court can EXTEND a Supervision Order after the original has run out

Posted on June 29, 2016 by suesspiciousminds

 

I disagree myself, but I’m not a High Court Judge, so my view doesn’t count.

For me, you extend something that currently exists, and if it no longer exists then you are applying for a new one not extending it.  You can extend the Victoria line, but you can’t extend Atlantis High Street.  You can extend Wayne Rooney’s contract at Manchester United, but you can’t extend Cristiano Ronaldo’s contract at Manchester United.  The word means ‘to add to something to make it bigger or longer’  or rather, it means that in plain English, but it doesn’t in law.

Anyway, I’m wrong about that, because the High Court has ruled on it.  If you let your Supervision Order lapse and no longer have one, you can still make an application to extend it.

 

A Local Authority v D and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1438.html

 

 

 

  • Having considered very carefully the very helpful skeleton argument of Mr. Lamb, which sets the case out, to my mind, conclusively, I am satisfied that the court’s power to extend a supervision order pursuant to Schedule 3, para.6(3) of the Children Act 1989 does not depend on the supervision order which is sought to be extended to be current or, for that matter, for an extension to have been made prior to the expiration of the existing supervision order.
  • In my judgment, an application to extend can be made properly after the supervision order has run out, so to speak, and there are, in my judgment, very good policy reasons why the statute should be interpreted in that way. These are set out in para.5.19 to 5.22 of Mr. Lamb’s skeleton argument. As he rightly says, supervision orders are entirely child-focused and will only be extended if it is in the child’s best interests. There are practical benefits, as he rightly says, to local authorities and to parents of an interpretation of the statutory words, which would enable the local authority to monitor the children’s progress whilst the supervision order has not run out without the need to rush back to court, and he rightly says, in para.5.21, the three-year limit to the extension of a Supervision Order prevents families having a sense of lingering uncertainty. So there are strong policy reasons for reading down of the words of the statute to permit the application to be made after the order has run out. Indeed, there is nothing in para 6(3) to suggest to the contrary.

 

 

So I am of the clear view, following the line taken by the President in Re X [2014] EWHC 3135, which was concerned with the seemingly unextendable term of six months referred to in s.51(1)(c) of the Human Fertilisation and Embryology Act 2008, that that should be read down in a way which is consistent with the interests of children as well as human rights. So following that line I reach the clear conclusion that I do and, in so doing, I am conscious that I am making a decision at variance with the obiter dictum of Lord Justice Thorpe in the decision of T v Wakefield Metropolitan District Council [2008] EWCA Civ 199, where, at para.20, he, in giving his guidance, was clearly of the view (although the point that I have to decide had not been argued before him in any depth) that the application for extension in fact had to be not only issued before the expiration of a current order but heard before the expiration of a current order. I have to say that I do not agree with that approach in the slightest.

 

(I am with Thorpe LJ on this, but as I’ve said, my view doesn’t matter a jot. Words now mean exactly what Judges choose that they mean neither more nor less, a la Humpty Dumpty. Apologies to those who have ever practised law in Birmingham, for whom the Humpty Dumpty metaphor might well bring about an episode of Post-Traumatic Stress, if they have had the ‘treatment’ )

 

Neither the King's Men nor the King's Horses are excluded from the pool of perpetrators

Neither the King’s Men nor the King’s Horses are excluded from the pool of perpetrators

 

I’m also grumpy because Mostyn J uses the same magic trick that the President used when he ‘interpreted’ s54(3) of the HFEA 2008 “the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”  to mean that they didn’t. Presumably rewriting the word ‘must’ in the statute to mean ‘can, but it’s not like they HAVE to, or anything’  and I didn’t like that decision either.

In the normal run of events, not much is going to turn on whether a Local Authority who want a new Supervision Order after the first one ran out have to apply for a fresh Supervision Order (though they have to reprove threshold there) or extend it (where they DON’T have to reprove threshold, the existence of the previous one is sufficient).  It saves the LA a few quid in the issue fee, the Order gets made or doesn’t get made, no big deal.

Although if a Local Authority obtain a Supervision Order on a 1 year old, and that lapses when the child is 2, Mostyn J’s decision here means that the LA CAN apply to extend that Supervision Order when the child is 11.  And they won’t have to demonstrate that threshold is proven, because you don’t need to do that for an extension. If they made a FRESH application, 10 years after the original threshold was found, they’d have to prove that threshold was met – they could point to the 10 year old threshold, but it wouldn’t be determinative.  Of course, the LA in EITHER scenario might have a hard job persuading the Court of the NEED for an order…

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