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

 

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).
  2. In my judgment what one draws from Popi M and Nulty Deceased is that:
  3. 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

 

https://suesspiciousminds.com/2012/05/04/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)

 

https://suesspiciousminds.com/2014/02/07/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.
  2. 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.
  3. 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.
  4. 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.
  5. 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

 

 

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.
  2. 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.
  3. 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.
  4. 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.
  2. 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.
  3. 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.
  4. 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.
  2. 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.
  2. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

 

 

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

 

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…

I have a warrant for your arrest… oh, no I don’t.

 

This must be every lawyer’s worst nightmare, to confidently tell a Judge that he has jurisdiction to do what you are asking for and be wrong, and worse yet to have that judgment published as precedent that others rely on and then have the Judge have to publish a retraction judgment.

 

Al-Baker v Al-Baker 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3725.html

 

From the much-loved by this site Mostyn J.

Here, where a husband in ancillary relief proceedings had been declared to be guilty of contempt of court and ordered that he be imprisoned for nine months as a result, but was in another European Country, counsel for the wife  (NOT Mr Todd QC who was representing her in this hearing, NOT him, someone else) had asked Mostyn J to issue a European arrest warrant, so that the husband could be arrested abroad and brought back to this country for punishment.

 

  1. On 27th October 2015 I gave a judgment in this case ([2015] EWHC 3229 (Fam)), where I found the husband to be guilty of contempt of court and sentenced him to nine months’ imprisonment. During the case counsel then appearing for the wife applied to me to back my committal order with the issue of a European arrest warrant.
  2. In para.10 of my judgment I said this:

    “The wife is proceeding on advice that this is a sensible way of advancing her claim and it is not for me to question that. It has been asserted that this being a sentence of nine months it would be open for this court to request that a European arrest warrant be issued. That would have the effect of detaining the respondent anywhere within the European Union and having him brought to this court if the European arrest warrant procedure is available. I confess that when I first read this I was surprised that it was being asserted that the arrest warrant procedure was available as it was my belief (it is fair to say not based on much education) that the European arrest warrant was confined only to what can strictly be described as criminal offences and a civil contempt was not in that category. However, Mr. Calhaem has placed before me the Council Framework Decision of 13th June 2002 on the European arrest warrant and Surrender Procedures between Member States of which Article 2.1 states:

    ‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’

    The use of language for “acts punishable by law” would certainly embrace a custodial penalty imposed for contempt of court and, recognising I have only heard only one side, I am satisfied in these circumstances that the sentence I have awarded is properly to be backed by a request for a European arrest warrant and I will complete the necessary annex form when the order is made.”

  3. That passage shows my initial surprise that it was suggested that the issue of the warrant was a legitimate course. As it happens, it was, in fact, a completely illegitimate course. The decision of the Supreme Court of R v O’Brien [2014] UKSC 23 confirms, first, that a European arrest warrant can only be sought by an appropriate person and that counsel for the wife would not constitute such an appropriate person and, secondly, that the scheme does not act to encompass civil contempts, even if they result in a sentence of imprisonment.
  4. It is a matter of some surprise to me that this recent decision from the highest court had not been alighted upon by those representing the wife when they made the application that they did. This has resulted in me giving a judgment which is legally incorrect and which, for all I know, may have led other people in other cases to have applied for a European arrest warrant following a finding of contempt. So I take the opportunity today to correct my previous judgment so as to delete para.10 and to confirm that the European arrest warrant procedure is not available in contempt proceedings.

 

We don’t really get to learn whether the European Arrest Warrant was ever acted upon, but if it had been, the Court could have been on the hook for a wrongful imprisonment claim.

 

The other thing of interest in this judgment was the long-time favourite issue of this blog – perjury.

 

In particular, whether a person who is found to have lied in their statement has committed perjury. Mostyn J thinks not.  [Unless it is an affidavit or sworn statement]

 

 

  1. In the skeleton argument produced for this hearing, at para.24, it is said this:

    “It is clear from H’s statement of 16th April 2015 (D45) that H has perjured himself in relation to his alleged business dealings in Dubai. He says within that statement (see paragraph 84 at D68) that he does not own property in the Emirates and, in correspondence, has never owned any. This is clearly incompatible with the evidence produced from the wife’s Dubai lawyers in their affidavit at D88. H has lied”.

  2. The material to which I am directed by that passage is contained in a statement made by the husband which was verified by a statement of truth under Part 17 of the Family Procedure Rules. The statement itself was not sworn. To make a false statement, as opposed to a false affidavit, is not perjury. This was by design of those who framed the Civil Procedure Rules which have been mirrored by the Family Procedure Rules. To file a false statement is a contempt of court but it is not perjury. To file a false statement can lead to an order for civil committal for up to two years, but it cannot lead to criminal proceedings for perjury. Arguably it could lead to criminal proceedings under the Fraud Act but it cannot lead to criminal proceedings for perjury.

 

 

I think that Mostyn J is quite right here, though I was slightly surprised when I first read it. The wording of the offence from the Perjury Act 1911 is here

 

If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

 

A statement which is signed, even with the Statement of Truth, is not a sworn statement, for the purposes of the Perjury Act 1911.

If the author of the statement repeats the lie during oral evidence, where they ARE giving SWORN evidence, the offence would be committed.

I am now pondering whether this is captured during the standard opening question in Evidence in Chief  “Can you confirm that the contents of your statement are true and accurate to the best of your knowledge and belief?”

If you say yes to this, and there is a lie in your statement, has that answer amounted to perjury, or does the offence only arise when the question about the particular matter is put to you and you lie in answer.

 

In any event everyone, lying to the Court is wrong, mmmm’kay?

 

mmmkay

 

 

 

The wife then made an allegation that the father had committed perjury in his Form E, which is of course a sworn statement and was asking that the police be notified of the offence of perjury. As Mostyn J pointed out, whether or not the father was lying in the Form E was a matter that was disputed and still to be litigated within the ancillary relief proceedings.  It would not be a Mostyn J judgment if we did not learn a new word in it, and here it is “pendency” – in the state of being pending and specificaially with litigation whilst it is still ongoing and not concluded .  (I’m not entirely sure myself what ‘in the pendency of the litigation’ adds to the alternative wording of ‘whilst the litigation is ongoing’ but such is life)

 

 

  1. However, it is the wife’s application, pursuant to what appears on the face of her notice of application, that at this stage, during the pendency of the case, there should now be a reference to the police of her allegation of perjury. This is, to my belief, wholly unprecedented. Mr. Todd is constrained to agree that he cannot identify any case in the ancillary relief field where there has been a reference to the police of perjury or fraud during the pendency of proceedings. Moreover, under the comparable jurisdiction which is incorporated in CPR 31.22(1), which requires the court’s permission to reveal disclosed documents to any third party, Mr. Todd has been unable to identify one case where there has been a reference to the police of fraud or perjury during the pendency of the proceedings, where the very allegation that is sought to be referred to the police is in issue in those proceedings.
  2. In my judgment, this application has been made prematurely. It seems to me that the motive is to replace the pressure of the European arrest warrant with a different kind of pressure to try and bring the husband, who is steadfastly not engaging in the proceedings (he is not negotiating, to my knowledge, or making proper disclosure), to heel in order that the case can be adjudicated fairly. But that is not a proper motive for seeking what, in my mind, is a premature reference to the police. In my judgment, it would be wholly wrong for this court to refer these matters to the police in advance of its judgment on those very matters and for these reasons the application is dismissed.
  3. However, I want to make it clear, when dismissing the application, that I am not in so doing preventing the wife from making a comparable application once judgment on her main claim has been rendered. No question will arise of issue estoppel or other abusive of conduct on her part. If, following the giving of judgment in this case and the making of findings, the wife nonetheless thinks it is appropriate to invoke the criminal justice procedures then it will be open to her to make a fresh application in the terms of her application of 4th November 2015.

 

I always love that Mostyn J is not averse to using footnotes in his judgments, and there is one here which I’ve not encountered before [the second].

 

  1. LATER
  2. Mr. Todd applies for permission to appeal. Under FPR 30.3(7) permission to appeal may only be given where (a) a court considers the appeal would have a real prospect of success or (b) there was some other compelling reason why the appeal should be allowed. In my judgment, an appeal would not have a real prospect of success. It would have no prospect of success at all. Furthermore, I cannot identify any other compelling reason why the appeal should be heard. The fact that there has never before been a case in the annals where a reference has been made during the pendency of proceedings to my mind hardly supplies a compelling reason why an appeal should be heard. To my mind, the empirical evidence suggests quite the opposite, that this is an appeal which should not be heard. LATER STILL
  3. Although para 1 of this judgment makes it perfectly clear on a natural reading that counsel who “then” appeared on 27 October 2015 was not the same as counsel who appeared on this occasion, and although a reading of the first judgment referred to there would have confirmed this to be the case, Mr Todd QC is highly insistent that this is spelt out in this judgment. I am doubtful that the clarification procedure extends to requests for editorialisation for counsel’s personal reasons, but this additional paragraph has that effect.

 

 

Bickering (or the ever decreasing circle of life continues)

[Grateful to @dilettantevoice for highlighting this case to me on Twitter]

 

You may recall the Court of Appeal taking Mostyn J to task for taking them to task for taking him to task.

https://suesspiciousminds.com/2015/10/22/ever-decreasing-circles-court-of-appeal-take-mostyn-j-to-task-for-taking-them-to-task-for-taking-him-to-task/

 

Well, none of you thought that it would end there, did you?

Re CD 2015

http://www.bailii.org/ew/cases/EWCOP/2015/74.html

An exceptionally tricky case, and one absolutely can’t underestimate just how difficult a job High Court Judges have to do. This one involved a woman with very severe mental health problems, who after she stabbed herself in the stomach, the hospital found that she had tumours in her stomach that needed to be removed. Although the woman was detained under the Mental Health Act, the power to perform treatment against a person’s will under that Act is really confined to treatment for their mental health, and this was a physical treatment. As the woman would be under anesthetic at the time, the High Court has previously ruled that this would be a deprivation of liberty.

A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161

Additionally, there’s the complication of some wording in the Mental Capacity Act which suggests that a deprivation of liberty can only be dealt with under the Mental Health Act if the person is detained under the Mental Health Act.

 

 

  • he confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to. I recently have had to grapple with this in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31. The confusion arises from the highly ambiguous and double negative laden terms of para 3(2) of Schedule 1A to the MCA 2005. This states:

 

“P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes”

 

  • In this case CD is P. “Ineligible” means ineligible to be deprived of liberty by the 2005 Act. The “authorised course of action” is the surgical removal of the ovarian masses. The “relevant regime” is the MHA regime whereby CD is compulsorily detained in a mental hospital. So, for our purposes, para 3(2) reads:

 

“CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes.”

 

  • Mr Auburn rightly says that there are two ways of reading this which give rise to directly contradictory results. The first is in a pitilessly literal way, as argued by Mr Matthewson. It is this: if the surgical removal of the ovarian masses is not in accordance with a requirement of the MHA regime whereby CD is compulsorily detained in a mental hospital then CD is ineligible to be deprived of liberty by the 2005 Act. It isn’t, he says, so she is ineligible and so the necessary orders have to be made under the inherent jurisdiction of the High Court. The problem with this interpretation is that it gives rise to a result directly contrary to the intention of the statute and to the express terms of the Code of Practice, as I explained in Re A at paras 10 – 14 (accepting the submissions not only of Ms Butler-Cole but also of Ms Dolan, on that occasion instructed by the Official Solicitor).
  • The alternative interpretation, which I adopted in Re A, and which I maintain to be correct is this: if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn’t (obviously) so she isn’t ineligible. As I said in Re A this is plainly what the scheme of section 16A and Schedule 1A intends and the matter is conclusively confirmed by paras 4.50 and 4.51 of the Code of Practice. In my judgment it would be ridiculous if the whole case had to leave the Court of Protection with its statutory powers and enter the High Court exercising common law inherent powers by virtue of a pedantically literal reading of para 3(2).
  • The orders which I make will be made by me sitting in the Court of Protection under powers granted by Parliament in the MCA.

 

 

Mostyn J is utterly and completely right here, the wording of this piece of the legislation is ghastly (double-negatives are really not something that you want in a piece of legislation anywhere, particularly about something so serious) and it has left a serious lacuna in the law.  And you know how High Court Judges tend to solve lacunas in the law – that’s right, the ‘theoreticaly limitless powers of the inherent jurisdiction’  [Though not here, Mostyn eschewing Baker J’s inherent jurisdiction solution to say instead that the power must really remain under the MCA]

 

A very tricky case, and almost all of what Mostyn J says in the judgment is careful, apposite and fair.

Unfortunately, this passage decides to resurrect the quarrel with both the Supreme Court in Cheshire West, and the Court of Appeal

 

In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated “even if Cheshire West is wrong, there is nothing confusing about it”. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court’s test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated “anyone who deals with this day by day knows this is confusing”. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that “there is nothing confusing” about the test. I do not accept the criticism that my approach to these cases is “distorted” by my “passionate” and “tenacious” belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court’s test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse

 

 

I think that there IS an argument about whether Baker J’s decision in Re A (that the surgical procedure amounts to a deprivation of liberty) actually meets the test in Cheshire West – I think that one can argue it either way and a strong case can be made for if a Court has declared that the procedure is in P’s best interests despite a lack of consent that the patient has had sufficient safeguards and an additional authorisation of a Deprivation of Liberty isn’t necessary.

It is also quite right that we now have a definition of deprivation of liberty which is utterly unworkable in practice due to resource implications (as we have seen, if every LA issued every deprivation of liberty application that they need to on the wording of Cheshire West, the Court would spend the next five years dealing with this years cases, and so on), and that the MCA on this particular issue is badly in need of reform. Such reform not likely to hit us until 2017 at best.

 

But the Rule of Law is the Rule of Law.  Whatever one might think of the Cheshire West test (and personal opinions and critiques of it are perfectly valid – it wasn’t a unanimous decision on all issues in the Supreme Court itself), the test has been set and it is now to be applied.  In the first of the two examples, it is really plain that the absence of resistance from P if they lack capacity is neither here nor there, that’s not a legitimate part of the test. After all, that was the very issue in Bournewood that led to the development of the MCA in  the first place. The latter question of whether you assess whether a person is being deprived of their liberty by looking at their physical characteristics has been squashed by the Supreme Court.

[There IS , I think an argument about whether someone who is physically prevented temporarily from getting up to leave – under anaesthetic for example, or that they have a broken leg that will heal, meets the Cheshire West test. But that’s for a Judge to determine when they are faced with an application of the test to those particular facts]

 

It is a fine line between a Judge being free to criticise the law when it is resulting in unfairness and staying out of politics and just applying the law as it is to the facts of the case.

I’m aware that I am being hypocritical here – because I do think that Judges can and should speak out when the law at present is unfair and makes unreasonable outcomes when it is applied.  Because when Mostyn J and others have attacked LASPO, I’ve supported and applauded them. That is a law whose application is currently unfair (particularly the Legal Aid Agency’s approach to granting exceptional funding where human rights require it, but ignoring when Judges tell them that this particular case would breach a person’s human rights if funding were not given).  I also disagree with LASPO itself, but I’m stuck with it unless and until Parliament changes it. So, am I just as unreasonable as Mostyn J considers the Court of Appeal to be – given that I’m happy for him to critique and attack the law when I agree with him, but criticise him when I think the law is right?

Damn, I’ve painted myself into a corner here.

 

Perhaps what we need is a case with the citation Mostyn J v Court of Appeal  (to be decided in the Supreme Court)

Ever decreasing circles – Court of Appeal take Mostyn J to task for taking them to task for taking him to task…

 

Readers of the blog may be familiar with Mostyn J’s continuing battle to have the Supreme Court change their mind about the deprivation of liberty test set down in Cheshire West, and failing that to simply disagree with their decision at every opportunity.

In this particular case, Rochdale had asked Mostyn J to authorise a care plan for a person lacking capacity that clearly amounted, on the Cheshire West test to a deprivation of liberty.

At the first hearing, Mostyn J told everyone that Cheshire West was nonsense (politely and judicially and intellectually, but that was the gist) and that the person was not being deprived of their liberty and thus there was no need to authorise it.

The case was appealed, and rather unusually, by the time that it got to the Court of Appeal EVERYONE agreed that the Mostyn J judgment should be overturned and that the person was being deprived of their liberty. The Court of Appeal approved a consent order to that effect but did not give a judgment explaining why Mostyn J had been wrong  (perhaps wrongly thinking that where everyone agreed the Judge was wrong and that he had gone against a clear Supreme Court decision with which he did not agree but was not able to distinguish the instant case from, that it was somewhat plain)

 

 

It went back to Mostyn J to authorise or not, the deprivation of liberty. However, he declined and took everyone, including the Court of Appeal to task and said that a consent order without a judgment was not binding on him. And thus did not reach the point of authorising the deprivation, but instead set down a hearing to be conducted by himself as to whether there was a deprivation of liberty at all.

Incredibly bravely (but rightly), the parties appealed THAT, and the Court of Appeal determined it.

[Previous blog on Round 3 of this peculiar litigation is here   https://suesspiciousminds.com/2015/03/16/mostyn-powers/  ]

 

So, by way of catch-up here, in this one case, Mostyn J disagreed with the Supreme Court, then when the Court of Appeal disagreed with him, he disagreed with them. And now the Court of Appeal disagree with him again.

In the midst of all of this, are some real people with real problems to resolve, and a lot of taxpayers money being spent.

KW and Others v Rochdale MBC 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1054.html

 

The Court of Appeal pull no punches whatsoever. In fact I understand that this was very much what it looked like when the Master of the Rolls removed his gloves after the judgment

 

 

The Master of the Rolls does not have to go through the metal detectors en route to the Court room

The Master of the Rolls does not have to go through the metal detectors en route to the Court room

 

But first, the technical part of the appeal – if the Court of Appeal approve a consent order overturning the decision of the original Judge but don’t give a judgment, is the case actually overturned? (I understand that this is actually one of the lesser known and unpopular Zen koans)

 

The grounds of appeal from the second judgment

 

  • The principal ground of appeal is that the judge misinterpreted the consent order when he said that the Court of Appeal had not decided that KW was being deprived of her liberty.
  • We accept that (i) nowhere does the order explicitly state that there was a deprivation of liberty; and (ii) the use in para 2 of the order of the words “to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such liberty is hereby authorised” might suggest that the court was not deciding that the restrictions were in fact a deprivation of liberty. But read in their context, that is clearly not the correct interpretation for at least two reasons. First, para 2 must be read in the light of para 1, which governs the whole order. Para 1 states that the appeal is allowed. The remaining paragraphs set out the court’s directions consequential upon the allowing of the appeal. When read together with section 6 of the notice of appeal, the order that the appeal was allowed necessarily involved the court deciding that KW’s care package does involve a deprivation of liberty. The words “to the extent that” etc are perhaps unfortunate, but they cannot detract from what allowing the appeal necessarily entailed. These words were derived from para 11 of the Model Re X Order which had been published on the Court of Protection website and which practitioners had been encouraged to use. We were told by counsel that this form of words is not universally used. We understand that the form of words more often used is along the lines of: “P is deprived of his or her liberty as a result of arrangements in the Care Plan and these are lawful”. This is undoubtedly preferable to the earlier version.
  • Secondly, para 2 must also be read in the light of the consequential orders set out at paras 3 to 5 of the consent order. The reviews there provided for are clearly reviews of the kind contemplated where there is a deprivation of liberty.
  • It follows that the judge was wrong to hold that it had not been decided by this court that KW was being detained by the state within the terms of article 5. The appeal must, therefore, be allowed.

 

Was the consent order made ultra vires?

 

  • Was the judge right to say that the Court of Appeal took “a procedurally impermissible route” so that its decision was “ultra vires”? It is important that we comment on this statement in view of the general importance of the point and the fact that the judge’s comments have apparently given rise to considerable degree of public interest. We acknowledge that, despite these comments, the judge did say that the rule of law depends on first instance judges “complying scrupulously with decisions and orders from appellate courts”. And, as we have said, that is what he purported to do.
  • An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700, [2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. Such an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order: M v Home Office [1993] UKHL 5; [1994] 1 AC 377 at 423; Isaacs v Robertson [1985] AC 97 at 101-103. It is futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason.
  • In any event, the judge was wrong to say that the consent order was ultra vires because it was made by a procedurally impermissible route.
  • The issue turns on the true construction of para 6.4 of PD 52A. Rule 52.11 provides that the appeal court will allow an appeal where the decision of the lower court (a) was wrong or (b) was unjust because of a serious procedural or other irregularity in the proceedings of the lower court. It is concerned with the “hearing of appeals” which is done by way of a review or, in certain circumstances, a re-hearing. What is envisaged by rule 52.11 is a hearing which leads to a decision on the merits. To use the language of the first sentence of para 6.4 of the practice direction, this is what an appellate court normally does when allowing an appeal.
  • The use of the word “normally” in this sentence presages a departure from rule 52.11 in specified circumstances. The word “normally” followed by the use of the word “however” in the following sentence makes it clear that what follows specifies the circumstances in which the court may depart from the norm. The second sentence states that the court may set aside or vary the order of the lower court without determining the merits of the appeal, but only if (i) the parties consent and (ii) the court is satisfied that there are good and sufficient reasons for taking this course. That such a decision will be made on paper is clear from the heading to para 6.4 and the words of the third sentence. It is true that the second sentence speaks of setting aside or varying the order under appeal, whereas the first sentence (faithful to rule 52.11) speaks of allowing an appeal. But we do not consider that there is any significance in this difference of language. Rule 52.10 provides inter alia that the appeal court has power to “(2)(a) affirm, set aside or vary any order or judgment made or given by the lower court”. These words are picked up precisely in para 6.4 which sets out the powers that the appeal court has when allowing an appeal.
  • The appeal court, therefore, has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. What are good and sufficient reasons? The answer will depend on the circumstances of the case, but we think that it would be helpful to provide some guidance. If the appeal court is satisfied that (i) the parties’ consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point.
  • At para 14 of his judgment, the judge said that, where a merits based decision has been reached at first instance which all parties agree should be set aside on appeal, para 6.4 requires there to be a hearing and a judgment. He added: “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise”. We disagree. Para 6.4 does not require a decision on the merits in every case where there has been a decision on the merits in the lower court. There is no reason to restrict in this way the wide discretion conferred by para 6.4 to allow an appeal by consent without a hearing followed by a decision on the merits. The words “good and sufficient reasons” are very wide. Further, we reject the notion that the judge whose decision is under appeal has any entitlement to a decision on the merits. In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest. The interests of the judge are irrelevant.
  • We accept, however, that there will be cases where it may be in the interest of the parties or the public interest for the court to make a decision on the merits after a hearing even where the parties agree that the appeal should be allowed. Mostyn J referred to cases in the field of family law. For example, in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 27, [2009] 2 FLR 922, the parties by consent asked the court to allow an appeal, set aside the order below and make a revised order. Thorpe LJ said:

 

“5. A short disposal might have followed but for our concerns that the judgment below had already been reported …..and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.

6. Accordingly, we decided to state shortly why we had reached a preliminary conclusion that the appeal, had it not been compromised, would in any event have been allowed.”

 

  • The fact that the decision of the lower court in that case was causing difficulty led the appellate court to conclude that there were not “good and sufficient reasons” for departing from the normal procedure of conducting a hearing and giving a decision on the merits.
  • An example from a different area of law is Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] [EWCA] Civ 185. The lower court had held that a certain patent was invalid. Following the issue of appeal proceedings, the case was settled. The Court of Appeal was asked to make a consent order for the restoration of the patent to the register without deciding the merits of the appeal. The court decided that it had to hear the merits on the grounds that, for a patent to be restored to the register, what was needed was a decision reversing the order for revocation and showing that the previous decision was wrong. Here too (but for a very different reason), the appellate court considered that a decision on the merits was needed.

 

 

 

But you aren’t here for the technicalities. You want to see what happened with that boxing glove and the horseshoes.

 

 

  • Mostyn J’s first judgment did not raise any issue of law. It is true that his criticism of Cheshire West (what he describes in para 20 of the second judgment as his “jurisprudential analysis”) raised a question of law. But this question has been settled by the Supreme Court relatively recently. The judge’s analysis was, and could be, of no legal effect. It was irrelevant. Indeed, he purported to apply Cheshire West to the facts of the case. The basis of the appeal was that he had failed to apply Cheshire West to the facts properly. The public interest in the first judgment has focused on his criticisms of Cheshire West. Unlike Bokor-Ingram, the decision of the lower court in the present case should have caused no difficulty for practitioners or judges in the field. It was a decision on the facts which, with benefit of the advice of counsel and solicitors, the parties agreed was wrong. The Court of Appeal must have taken the view that the parties had advanced plausible reasons for contending that the judge’s decision was wrong, so that there were good and sufficient reasons for allowing the appeal without deciding the merits. In our view, it was clearly right to do so.
  • This litigation has an unfortunate history. The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time. We regret to say that it is the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that “the law is now in a state of serious confusion”. Even if Cheshire West is wrong, there is nothing confusing about it.
  • In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge,
  • For the reasons that we have given, this appeal is allowed.

 

 

Missing boy and cancer treatment

 

The news that the parents of a child have taken him abroad for cancer treatment and that the Courts here are dealing with the case have echoes of the Ayesha King case which was such big news last year.  I wrote at that time about some of the legal issues about when a parent can decide to reject medical advice about their child

https://suesspiciousminds.com/2014/08/31/parents-deciding-not-to-go-ahead-with-cancer-treatment/

 

 

The Press reports about this particular child are in most of the newspapers today – here’s an example from the Guardian   (I picked up today that I always tend to use the Guardian for these, but they don’t sponsor me.Yet)

 

http://www.theguardian.com/society/2015/oct/07/boy-needing-urgent-surgery-for-cancer-disappears-from-home-in-england

 

The judgment from Mostyn J is available, and people may want to read it

Re JM (a child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2832.html

 

The boy is 10 years old. His parents are originally Polish but have lived here for two years. Very tragically, the boy JM has a very rare and aggressive cancer on the right hand side of his jaw. The medical advice is that it should be removed. If it is not removed soon, then JM will suffer an agonising and painful death.

 

 

  1. The operation would be lengthy, lasting up to 12 hours. There is a 2% risk of mortality or morbidity in the operation. It would involve harvesting skin and bone from his leg in order to rebuild the removed jaw bone. The result would be that J may be affected by lameness in future. He would need false teeth inserted in the lower right quadrant of his mouth. As he grows his face may develop a lop-sided appearance. He may suffer from chewing problems and need to be on a softish diet in the long term. Above all of this is the estimate that he has a 55% – 65% chance of survival for 5 years. Therefore there is a 35% to 45% chance of a fatal cancer re-emerging in that period. This might be at the same site or elsewhere in the body, most likely the lungs. All of these statistics are based on adult patients. It is not known whether they are equally applicable to children as the incidence of this disease in children is so rare that there is insufficient data on which to found empirical conclusions and predictions. There are only a handful of children in this country with this cancer. Dr X has treated five or six in 16 years of practice.
  2. I have seen photographs of a child who underwent this surgery. The facial swelling before the operation is very pronounced indeed. It is huge. At present J’s swelling is about a third of that size. The photographs post-operation show extensive skin grafts under the jaw. J may be able to escape skin grafts. The child in the photographs does not appear greatly disfigured, although the result of the operation is clearly noticeable.
  3. There is no doubt that the proposed surgery carries serious risks. However in the very clear opinion of Dr X they are risks which should be taken given the awful alternative. In her oral evidence she stated:

    “I would be hopeful of a young boy growing into a very able teenager. So far he has not had major organ toxicity and, depending on his engagement and motivation, I would have an expectation that he will be walking, running – Mr. Z has put in his statement not playing football, but I think that he means competitively. I mean, he will be able to kick a ball around. So I would expect, externally, that he will look and feel like most teenagers. He will have a scarred face and there is a worry that there will be asymmetry of his face as he grows older. He will be engaged with my team and the surgical team as he grows up, so he still will be medicalised, because he will be caught up in routine surveillance, which goes on for years; so we check out his lungs and do a clinical assessment every two months for the first year, every three months for the next year, every four months for the next year, every six months after that, and then annually, so he will be engaged in his medical outcome, so that makes him different, perhaps, from some of his peers, but, going back to my general clinics of those who survive, then some people find this whole process, actually, is a constructive outcome rather than a destructive one.

    Now, there are outliers of that. There are people who are very challenged by their cancer experience, who find it difficult to re-engage with their peers and who have ongoing psychological problems, but I would counter that with – so that may happen with other traumas in other walks of life. The only benefit to J, though, is that he will be in a very medicalised system that would hope to be able to support and manage problems that he brings to our attention. I would be very hopeful, if he survives, that his outlook is reasonable.”

 

 

The parents did not agree to the surgery, and nor did JM (though of course at aged 10 his views aren’t determinative)

  1. J’s parents do not consent to the operation. Neither does J. He has written to me to say “I don’t want the operation and there is not 100% [chance] to survive after the operation”. To Dr X he put it more graphically. He screamed out: “I don’t want to have it, because I don’t want to have a foot in my mouth”.
  2. J’s parents prefer to seek to treat him with Chinese medicine. The practitioner has not treated a cancer like this before and his technique is to treat the whole body to seek to promote overall wellness. The evidence before me is that even in China, where the use of Chinese medicine is widespread, surgery is the standard treatment for a cancer of this kind.
  3. J’s parents have explained to Dr X why they do not consent to the operation. She told me:

    “They are very frightened and fearful of what their son will blame them for when he grows up, that they worry that he will be so disfigured that he will blame them for allowing the operation to go ahead. That is one of their stated words. But they have not heard that the prospect of him growing up is completely remote, completely impossible, if they do not have surgery. …It is not that I have not tried to say that, and I have been very explicit, but there is a difference between hearing the words and processing the words. …That is one of their issues. I think that they have struggled with the consent process.”

 

The hospital can’t carry out the surgery if the parents don’t consent, unless the Court authorises it. Hence the hospital made an application to Court. The parents would have been able to attend that hearing and make their arguments, but did not attend.  Of course, in the Ayesha King case, the parents favoured a particular form of treatment proton beam therapy, which wasn’t available in the UK but was a form of treatment that was recommended in other countries for cancer treatment. Here, note that not even in China would this form of cancer be treated by “chinese alternative medicine”

 

The Judge weighed up the issues and the parents known objections and the child’s views very carefully, and came to the conclusion that the only option for JM was for this surgery to occur.  We now know that the child has been removed from the country – possibly to Poland, possibly to China.

You may be asking whether it really should be up to the Polish courts to decide, if the parents are from Poland and that’s where they are physically located there – if they disagreed with English doctors and decided to go back home, what’s it to do with the English Courts? Well, Mostyn J did explicitly deal with this

 

  1. It is possible that J is now in Poland. On 17 September 2015 when these proceedings were commenced J was habitually resident here in England. Therefore under Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility this court had jurisdiction over him at that time in relation to the matter of parental responsibility then in controversy namely his medical treatment. Since then it is possible (but unlikely) that with joint parental authority his habitual residence has changed to Poland. If so, it may be that courts here do not have jurisdiction to determine where or with whom he should live. As things stand at present however the evidence is that J remains habitually resident in this jurisdiction.
  2. However, there is no doubt that this court is seised of the specific issue of J’s medical treatment. Therefore under Article 19 the Polish court must decline jurisdiction in relation to this matter in favour of this court. I have explained that implementation of my primary decision will require a further hearing before me. If J is now permanently in Poland it may be that it would be appropriate for that aspect to be remitted for decision by the Polish court under Article 15

[It stays with the English Courts for now – if the parents have genuinely moved permanently to Poland, then an application can be made to transfer the case to the Polish Courts]

We will have to see how this story develops. And just as with the Ayesha King story, your heart absolutely goes out to the family who are in the middle of an absolute nightmare and just hope that a resolution can be reached.

 

[Mostyn J being Mostyn J, he still managed in the midst of all this to explain that if the imposition of treatment is on a 16 or 17 year old, the application ought properly to be made solely under the High Court’s inherent jurisdiction and not to a family Court under the Children Act and  hence

Note 1 It is for this reason I think that Ian McEwan’s excellent novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion, is in fact incorrectly titled.

 

which leads me to think that at either a book club or some cocktail party, someone has made the mistake of asking Mostyn J what he thinks about Ian McEwan’s novel and has wished twenty minutes later that they hadn’t.  I LOVE Mostyn J, in case you didn’t realise. His judgments always contain something extraordinary and marvellous.  I know that Ian McEwan read a LOT of judgments when he was researching his novel. If he still keeps up with them, he may be pleased to (a)  be in one, and (b) have received a positive book review.  I suspect he’ll be content with the title of “The Children Act” rather than “The Inherent Jurisdiction of the High Court”   ]