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Bone marrow transplants and struck off doctors

 

 

 

 

This is a very peculiar Court of Protection case, decided by the President.  Very peculiar is a massive understatement, to be frank.

SW, Re [2017] EWCOP 7 (12 April 2017)

http://www.bailii.org/ew/cases/EWCOP/2017/7.html

 

As the acronyms are a bit confusing, I’ll give us a cast list

 

 

SAN – a man who has cancer. It is said that he needs a bone marrow transplant to save his life, as a result of this.

 

SW – SAN’s adopted sister, and a woman about whom it is alleged lacks capacity to make decisions in her own right.

 

Son – the son of SW, who does have capacity, and who applied to Court for a declaration to be made that SW undergo surgery in order to donate bone marrow to SAN and that the surgery be undertaken by the next two members of our cast.

Dr Waghorn – a surgeon, who coincidentally is the husband of SW and the father of Son. He has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

Dr Jooste – another surgeon – a family friend and colleague of Dr Waghorn. He too has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

 

The intention is that Dr Waghorn and/or Dr Jooste would carry out the transplant surgery.  By the way, don’t assume that SAN is keen on having this surgery. Or even that Son, Dr Waghorn or Dr Jooste have recently asked him if he wants it or consents to it.

 

 

Are you a dreadful cynical hard-bitten creature? Are your internal alarm bells going off loudly and causing dogs in your vicinity to bark furiously at the hellish clamour that was produced by the ‘relinquished his membership with the GMC’ bit?

 

 

This is the size of dog that is proportionate to how loudly my ‘WARNING’ alarm bell is ringing

 

(If Amazon suddenly get a spike in DVD orders for that film, I should get a cut. If you haven’t seen it,     ch-ch-ch-ch-check it out)

The Judge explored that a little further

 

6.In fact, both Dr Waghorn and Dr Jooste have had their names erased from the Medical Register following determinations by different Fitness to Practise Panels of the Medical Practitioners Tribunal Service, the one, in the case of Dr Waghorn, on 26 July 2013 and the other, in the case of Dr Jooste, on 17 February 2014. In each case the Panel’s findings make for very disturbing reading.

 

 

7.In relation to Dr Waghorn the Panel said this

 

“The Panel accepts that the matters before it relating to patient care arise from the treatment of one patient. However, they represent such a wide-ranging and serious set of clinical failings and such a cavalier and uncaring approach to patient safety that, even viewed in isolation, they demonstrate misconduct that is fundamentally incompatible with the practice of medicine. That misconduct is compounded by the fact that it occurred with foreknowledge of the wholly inadequate conditions under which Patient A was to be treated and it involved the criminal offence of carrying on a hospital without registration with the CQC. The misconduct is also exacerbated by Dr Waghorn’s breaches of the conditions that had been put in place to prevent any repetition and by his dishonesty in trying to disguise the extent of his subsequent work at the same clinic.”

 

In fact, as appears from the Panel’s determination, Dr Waghorn had been convicted at the City of Westminster Magistrates’ Court on 9 June 2011 of an offence contrary to section 11(1) of the Care Standards Act 2000 of carrying on an Independent Hospital without being registered in respect of it under Part II of the Act.

8.In relation to Dr Jooste the Panel said this:

 

 

 

“Dr Jooste is a risk to patient safety …

 

The Panel also considers that there is a risk to patient safety in Dr Jooste’s unwillingness to accept or comply with the authority of his regulator, in that he seems not to acknowledge any restriction or control on his practice and will not be called to account. Dr Jooste has behaved in an outrageous manner in his conduct towards the Interim Orders Panel and witnesses and in the entirely unmeritorious applications he has made to the High Court.

 

The Panel has received no evidence of any mitigating factors …

 

The panel has concluded that suspension would be wholly inadequate to mark the seriousness of Dr Jooste’s misconduct or to protect public confidence in the profession.

 

… The Panel has rarely encountered a doctor to whom so many of the indicative criteria for erasure apply. In short, Dr Jooste’s misconduct is fundamentally incompatible with his continued registration as a doctor.”

 

 

What is your prediction, at this point, as to whether the President is going to allow two doctors with this record to perform surgery on a woman with no capacity (who happens to be the wife of one of them…) ?

 

Yeah, me too.

 

To echo erstwhile comedian and labelled-welly-wearer Jimmy Cricket, come here, there’s more

 

9.As appears from his application form and the attached Annex E, the son made the application as SW’s attorney under a Lasting Power of Attorney (Health and Welfare) purportedly executed by SW on 18 October 2014 and registered on 9 January 2015. He had also been appointed SW’s attorney under a Lasting Power of Attorney (Property and Financial Affairs) purportedly executed by SW and registered on 17 June 2015. SW’s signature on the first of these documents had been witnessed by Dr Waghorn. The certificate declaring that SW understood what she was doing and was not being pressurised was given by Dr Jooste on 23 October 2014, who described himself as SW’s “friend for 10 years.” Both Dr Waghorn and Dr Jooste were described as “Dr” though each had by then been struck off.

 

There had also been litigation in the Court of Protection involving not SW as the vulnerable person but SAN

On 8 December 2014, Newton J gave judgment in the Court of Protection in proceedings (COP12599814) relating to SAN and the proposed treatment of his condition, in which Dr Waghorn appeared on behalf of SAN apparently pursuant to a lasting Power of Attorney (Health and Welfare) granted on 5 September 2013.

 

 

11.So far as material for present purposes, what Newton J said was this:

 

 

 

“… in order for the Court to exercise jurisdiction, in the Court of Protection, there has to be evidence that the patient does not have capacity …

 

The short [point] here is that all the evidence, in fact, points the other way. In fact there is absolutely no evidence that he lacks capacity at all, indeed quite the reverse. My attention has been drawn to the letter dated 16th October 2014 from Dr Bray which makes it clear that Dr Hunter, who is the consultant haematologist who is currently treating [SAN], is sure that he has full capacity regarding the decisions concerning his own health, but did not wish to pursue those other treatments.

 

Enquiries both of the insurers, and the legal advice by the medical group confirm that [SAN] has capacity, there is therefore no need for any best interests decision involving his power of attorney. In fact, Dr Bray spoke to [SAN] and he made it very clear that he did not wish for this matter to be pursued at that time and would like things left as they were. That point of view was reiterated by [SAN] himself as recently as Thursday of last week, when enquiries were made on behalf of NHS England. He made it plain that he was currently in remission, that he did not wish for the treatment to be pursued, and that he did not wish there to be court action.

 

Dr Waghorn feels that that very acutely, not least because of his expertise as a doctor, but also I have no doubt because of his concern and affection for his brother-in-law, he is deeply anxious that his brother-in-law simply does not grasp the full effect and indeed understanding of (A) his illness, and (B) what may be done to alleviate or assist him. And that is a point to which Dr Waghorn has repeatedly returned. But, counsel has pointed out, it seems to me correctly that that is for those are dealing with matters or treatment, and it is not for me in arrangement without first being able to establish lack of capacity …

 

It is a short point. As I explained to Dr Waghorn, in order for the Court to deal with the matter I have to have jurisdiction: there is no reason to believe, that he does not have capacity, as the lawyers or doctors understand it. His own treating clinician believes that he has capacity, she having treated him for some time. It is clear, as I understand the evidence, that he has consented to and understands his medical condition and the treatment options, as is plain from the papers. [SAN] himself does not agree that he lacks capacity: he believes that he has capacity to make decisions about his medical treatment and does not, in fact, agree with this application being made. The practitioner who spoke to him as recently as last week also considered, that he also did not lack capacity.

 

Therefore, whilst I understand the position in which Dr Waghorn has found himself, in my judgment I do not think, and indeed I am entirely satisfied that I do not have the jurisdiction to make any decisions in relation to [SAN’s] medical condition and treatment. I have no jurisdiction because there is no evidence that he does not have capacity, even on an interim basis (indeed quite the contrary).”

 

A company then sought to judicially review the NHS decision in this case not to allow surgery. Coincidentally, two directors of that company were Dr Waghorn and Dr Jooste. That application was dismissed on 9 June 2015 by Hayden J as being “totally without merit.” The judge observed that “The claim is at best vexatious, nor is it presented in any coherent or logical manner.”

The President remarks :-

13.There is a common thread to all three sets of proceedings, the purpose in each case being to obtain from the court relief facilitating or enabling Dr Waghorn and/or Dr Jooste to carry out an allogeneic bone marrow transplant from SW to SAN.

 

Dr Waghorn sought to involve the Anthony Nolan charity as interveners. Unsurprisingly, they declined. In much the same way that I would decline an invitation to “Tequilla-Fueled Sword Swallowing for Beginners, followed by candlelight dinner with Katie Hopkins and Eric Pickles”

 

 

 

15.Dr Waghorn sought to enlist the interest, and indeed involvement as intervenor in the present proceedings, of the well-known Anthony Nolan charity. On 28 February 2017 he received this stinging rebuff:

 

 

 

“… I would like to underline that we do not want to be involved in this case.

[Almost word for word what I said to Katie and Eric, btw. Well, actually, my response had certain rhyming qualities with the description of these two doctors in the title of the blog post…]

 

Anthony Nolan’s position is that allogeneic stem cell transplantation should be provided by registered specialist transplant physicians in an accredited NHS or accredited private transplant centre setting.

 

As such we do not want to be involved in this case in any way.

 

Please do not contact us again about this case.”

 

Dr Waghorn’s riposte was to threaten the writer of that letter with a subpoena to attend the hearing on 3 March 2017 – a threat which appears not to have been carried through.

 

 

The Judge then considers the position of SW, noting that the evidence as to her capacity or lack thereof was rather deficient. Her IQ was now around 78, having been previously about 90. That isn’t of itself, suggestive of a lack of capacity.

 

25.Quite apart from the issue of SW’s capacity, there are three particularly striking features of this application:

 

 

 

 

  1. i) First, there appears to have been, so far as I can see, and I pressed the son on this point, no discussion or consultation with SW about this application. I was told nothing about her wishes and feelings. What are they? More fundamentally, there seems to have been a wholesale failure to have regard to the fundamentally important principle in section 4(4) of the 2005 Act, requiring, “so far as reasonably practicable, [a decision-maker to] permit and encourage [SW] to participate, or to improve [her] ability to participate, as fully as possible in any act done for [her] and any decision affecting [her].”

 

  1. ii) Secondly, there appears likewise to have been no discussion or consultation with SAN about his wishes – a particularly egregious omission given everything Newton J had said as recently as December 2014. All the son could say, in answer to my probing, was words to the effect that ‘obviously he will agree because no-one wants to die.‘ Even as a general proposition this is not without its difficulties; in the present case it does not begin to address the obvious questions flowing from Newton J’s findings. This omission is also very significant for another reason for, according to the son’s skeleton argument, allogeneic bone marrow transplantation carries “a significant risk of mortality” for the donee.

 

iii) Thirdly, the application is put before me by the son explicitly on the basis that those with “clinical responsibility” for SW are two individuals who, although this was concealed from me, have in fact both been struck off the medical register, and that the relevant “treatment” is to be provided by one of these two struck off doctors. A prudent judge probably never says “never”, but I find it impossible to conceive of circumstances where the Court of Protection would ever contemplate authorising treatment of a kind referred to in PD9E (and this is such treatment: see PD9E, para 6(b), following Re Y, pages 116-117) where the treatment is to be given by a doctor who has been struck off.

26.A curious observation at the very end of the son’s skeleton argument, makes me wonder what, and who, are really driving this application. He is SW’s son, and puts himself forward as making the application as her attorney, yet he says of the declaration he seeks:

 

 

 

“If granted, such a Declaration will enable the public to obtain these life-saving, and curative treatments, from family members – not only for haematological cancers such as leukaemia, lymphoma and myeloma but also for solid tumours, with minimal residual disease, such as metastatic breast, colon & pancreas.”

 

Is there some wider agenda at work here, and, if so, whose agenda is it?

 

 

I like “a prudent Judge probably never says Never”

 

 

 

As we all suspected, the application was dismissed, leaving just issues of costs and anonymity in any published judgment

 

33.As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.

 

 

34.The application must be struck out.

 

 

35.There remain two other matters I have to decide.

 

 

36.The first relates to costs. The HTA seeks costs which it invites me summarily to assess in the sum of £7,671.

 

 

37.As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. In saying this I make clear that I attribute no responsibility at all to the son for the previous litigation; but his conduct of the present proceedings is of itself more than adequate justification for ordering him to pay the costs. The amounts claimed are, in my judgment, plainly reasonable, and he has not sought to challenge any of the individual items or amounts. He says that he is “at this present moment” unable to afford the costs, praying in aid the fact that the Jobseekers Allowance he was previously receiving terminated in January 2017. That may be, but inability to pay is not, of itself, any answer to an otherwise appropriate order for costs and, in all the circumstances, I see no reason why he should not be ordered to pay the costs, and in the amount claimed. Impecuniosity does not provide immunity from the normal consequences of forensic folly.

 

 

38.As against Dr Waghorn and Dr Jooste, the question is not quite so simple because they, of course, were not applicants in the proceedings. But, and it is a very significant but, they each sought to be joined as a party and expressed themselves as consenting to the application; without any challenge on their part, they were put forward by the son as having clinical responsibility for SW; as I have already described, they seemed throughout the hearing to be making common cause with the son; and Dr Waghorn himself sought relief from the court. In these circumstances, and having regard to the principles expounded in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2004] 1 WLR 2807, and Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17, to which Ms Khalique referred me, both Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs.

 

 

39.I shall, therefore, order the son, Dr Waghorn and Dr Jooste to pay the costs, summarily assessed, in the sum of £7,671.

 

 

40.The remaining matter relates to the reporting restriction order. There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour. I appreciate that the effect of naming Dr Waghorn may make it a matter of simplicity for anyone minded to do so to put names to both SW and SAN, but for reasons which will be all too apparent they also need to be protected, for example if there were to be any further attempt to embroil them in litigation. The balance is properly held, in my judgment, by varying the reporting restriction order so as to permit the naming of Dr Waghorn and Dr Jooste while continuing to forbid the naming of SW, SAN and the son.

Reading the will

 

Of all of the various duties that one might imagine the President of the Family Division to have, being in charge of whether the late Princess Margaret’s will should be unsealed and opened to find out whether an individual is her illegitimate child (said individual having ABSOLUTELY NO evidence) is not one I had in mind.

Yet we learn today that it has happened not once, but twice.

 

Re Benmusa 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/494.html

 

This new judgment is short enough to set out in full

Sir James Munby, President of the Family Division :

 

  • I have before me, as President of the Family Division, an application by Malika Benmusa dated 6 March 2017 and received by the court on 9 March 2017.
  • The application was made on a Form N244. In answer to question 3 on the Form, What order are you asking the court to make and why? the applicant has said “To apply to unseal the will of the late Princess Margaret.” In answer to question 5, How do you want this application dealt with? she has placed a v against the words “without a hearing.” In answer to question 10, What information will you be relying on, in support of your application she has placed a v against the words “the evidence set out in the box below.” That reads as follows (I set out the manuscript exactly):

 

“My name was changed as a child as my date of birth, I belive around the age between 3 to 4 years old. My mother did not consent to this, but later on found out. I belive that both names are in the will. And it is explained. My father was in charge of my mother will, but failed to give me what is rightfully mine. So I belive this has been taken out of his hands and put back to the president of the Family Division (Sir James Munby.)”

Below that the applicant has signed the usual statement of truth.

 

  • The practice in relation to the sealing of royal wills, and the actual events surrounding the sealing of the will of HRH Princess Margaret, Countess of Snowdon, who died on 9 February 2002, were explained by the then President, Sir Mark Potter P, in Brown v HM Queen Elizabeth the Queen Mother and others [2007] EWHC 1607 (Fam), [2007] WTLR 1129, paras 6-10, and, on appeal, by Lord Phillips of Worth Matravers CJ, giving the judgment of the Court of Appeal, in Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others [2008] EWCA Civ 56, [2008] 1 WLR 2327, paras 4-8. The circumstances in which a royal will might be unsealed, and the process by which and the persons by whom such an application might be made, were considered by the Court of Appeal in Brown, paras 35-48.
  • The will of HRH Princess Margaret is contained in a sealed envelope which bears the following inscription:

 

“HRH PRINCESS MARGARET

(ORIGINAL WILL)

SEALED PURSUANT TO THE ORDER DATED 19th JUNE 2002

NOT TO BE OPENED WITHOUT LEAVE OF THE PRESIDENT”

I have personally examined the envelope, but I have not opened it. I have not read the will of HRH Princess Margaret nor do I have any idea as to its contents.

 

  • I have no hesitation in concluding that I should strike out the applicant’s claim. My reasons for doing so are shortly stated. The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor identify in any intelligible way either any link with HRH Princess Margaret or any link with her will. The applicant has not identified the grounds or the source or sources of the various beliefs upon which she relies. In short, her application is hopelessly defective.
  • The application is, accordingly, struck out.

 

 

 

The linked cases are more detailed, and set out the last time that this happened.

 

In that case, Mr Robert Brown alleged that he was the illegitimate son of Princess Margaret and that her will would prove it.  It was perhaps unfortunate that the only material evidence he had in this regard was his birth certificate, showing that the two people who brought him up were registered as his parents. If that proves it, then I myself am now ninth in line to the throne, I fancy.

 

  • In his affidavit of some 26 pages the Plaintiff states at the outset (at paras 1.1 and 1.2) that the purpose of his application is to identify whether the Royal wills make any provision for or concerning an illegitimate child, he having an interest in the matter because he claims that he is the illegitimate child of Princess Margaret.
  • As part of the matters relied on in support of that claim, he produces a Kenyan birth certificate signed by Cynthia Joan Brown (nee Lyall) in which she names herself as his mother and states that he was born in Nairobi in Kenya on 5 January 1955, his father being Douglas Richard Brown, a builder by occupation. The relevant Kenyan Ordinance (No 2 of 1928 dated 9 June 1928), exhibited to the affidavit of the executors’ solicitor, Mr Bridges, states its purpose as being “to Provide for the Notification and Registration of Births and Deaths and Other Matters Incidental Thereto”. It makes clear that the registration of the birth of a child in Kenya was compulsory (section 8(1)) and that the provision of false information or particulars was a criminal offence (section 20).
  • In law a birth certificate is prima facie evidence of all matters required by statute to be entered in the certificate: see re: Stollery [1926] Ch. 284 at 310 and Jackson v Jackson & Pavan [1964] P. 25 at 30. The birth certificate is thus prima facie evidence that the Plaintiff’s mother was Cynthia Brown. Furthermore, it is clear from the rest of his affidavit, that the Plaintiff accepts that Cynthia Brown, now deceased, recognised and brought him up as her own child. Curiously, he makes no reference to Douglas Richard Brown, named as his father in the birth certificate save, in passing, as follows. He states that he does not accept for the purposes of his application that his birth certificate is an accurate record on the grounds that such date is inconsistent with an entry in the ‘Births’ section of the Times of 7 January 1955 which gave his birthday as the 6 (not the 5) of January which, he adds, is also that recorded in the hand of “D R Brown” in his tax return for the year 1955. Nonetheless, in exhibited correspondence with the Treasury Solicitor, he refers to Douglas Brown as ‘the name of the gentleman that ‘raised’ me’; and in a letter addressed to Buckingham Palace in 2002 (see para 33 below) he makes reference to aspects of his upbringing by Douglas Brown. Thus it does appear that the Plaintiff was brought up by Cynthia and Douglas Brown (both now deceased) as their own child.
  • At paragraph 42 of his affidavit the Plaintiff states:

 

“I have not been told that I am the illegitimate child of Princess Margaret, or even that I was adopted. It is a conclusion I have arrived at be [sic] deduction.”

At paragraph 2, he explains that process of deduction as follows:

“[M]y conclusion that I am the illegitimate child of Princess Margaret is based upon a jigsaw of personal recollections, events, circumstantial evidence, conversations, reactions and extensive research.”

 

  • None of the matters subsequently set out at length remotely constitutes evidence supportive of the Plaintiff’s claim.
  • At paragraph 2.3 the Plaintiff asserts in respect of Princess Margaret that “there could have been a hidden pregnancy.” In support, he states that Princess Margaret was reported as ill with a “rattling cough” during the “early days of 1955” and that “photographs suggest a growing waistline compared with the elfin waist of 1954”. He also refers to the record of a Privy Council meeting held on 5 January 1955, ostensibly to discuss measures to be adopted in the face of a threatened rail strike, and states that “Examination of the reports and subsequent events of the rail strike left me unconvinced that the reason for the Council meeting was the strike.”
  • At paragraphs 4.1 to 4.4 of his affidavit he relies on his ‘Personal Outlook’ or ‘Instinct’ as being ‘the key element and driver’ of his claim, citing a sense of not belonging to the family environment in which he was brought up and refers to instances of members of his family in England having appeared reticent in responding to his enquiries about his origins. At paragraph 4.5 he describes the relationship of his ‘mother’ with his siblings as having been closer than with himself

 

 

 

The Court of Appeal (I think very kindly) had this to say about the foundation of his claim.

 

This belief is without any foundation and is irrational. It is, however, held in good faith

 

If you listen closely, you can hear a thousand conspiracy theories fermenting about this sealing of the will.

I think best left sealed up, in case the will establishes that James Delaney has no legitimate claim on Nootka Sound. You don’t want to upset James Delaney…

 

“I have a use for you”

Pre-flight checklist

 

I found quite a lot of Re F (Children) 2016 to be fairly stodgy porridge, eaten in the Scottish style with salt rather than sugar. That is to say, that whilst it would no doubt have been very good for me, I didn’t enjoy it much and spent most of my time with it pushing it around rather than actually consuming it.

It was Hague Convention proceedings, and I can’t actually face discussing the facts or the decision, which I’ll provide a link to if you are keen to read it.

There were two diamonds in it though, and as they were delivered by the President, expect to see him quoting them in future judgments approvingly and building upon them.

The first was in relation to criticisms about what was missing from the judgment of the original trial Judge. One might expect that the President, who after all authored Re B-S and the call to arms for judgments to show their working and be robust and leave no stone unturned, might get vexed by things being missed out of a judgment, but that of course was BEFORE the Court of Appeal got drowned in appeals and sick to the back teeth of appeals where the decision itself seemed okay but the judgment didn’t tick all of the boxes.

So we have a Court of Appeal shift in emphasis (this has been building over the last two years, but this really does put down a marker.  Don’t come to us on the basis of absence of ‘show your working’ unless the sums are also clearly wrong). I mean, it isn’t often that the Court of Appeal (still less the President) leans on a quotation from Mostyn J to demonstrate a point.

 

Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.”

 

 

Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?

Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?

 

I’m totally in favour of judgments focussing on a robust analysis of the evidence and laying that evidence alongside the law, and setting out how the decision is reached, rather than the current model I see SO often in the Bailii reports of “If I namecheck and quote from every relevant authority, it will be assumed that I had those principles in mind, so I don’t actually need to show how I applied them, I just need to put in 10 pages of boilerplate that will bore the parties to tears, just to be a boilerplate bullet-proof vest against an appeal”

[I only started seeing those AFTER the Re B-S guidance, but correlation is not causation 😉 ]

 

And thus on appeals, Piglowska is back in favour, as opposed to the ‘can I find fault with the judgment’ approach that we had for a year or so post Re B-S

 

 

  • The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

 

“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann’s phrase, the court must be wary of becoming embroiled in “narrow textual analysis”.

 

 

The next point, touching on the recent case of Re E, where the Court of Appeal flagged up that the Supreme Court’s decision that there was no presumption, rebuttable or otherwise, that a child ought not to give evidence, did not seem to have filtered through to Courts and lawyers on the ground.

 

As the appeal had already been rejected, the President acknowledged that nothing turned on what he was about to say, but the word “Obiter” is not carved into his heart in Times New Roman 12 point font for nothing…

 

Because, as I have said, nothing ultimately turns on any of this, I can take matters fairly shortly, in large part merely identifying the relevant authorities without any elaborate citation.

 

And then

 

 

  • The starting point is, of course, Article 12(2) of the United Nations Convention on the Rights of the Child and Article 11(2) of Council Regulation (EC) No 2201/2003, commonly referred to as BIIA, both of which identify the obligation on the court to ensure that the child is given the opportunity to be “heard”. Next I refer to the well-known passage in the characteristically prescient judgment of Thorpe LJ in Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011, paras 28-29, culminating in his observation that “judges have to be … alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings.” Thorpe LJ returned to the same theme in Re G (Abduction: Children’s Objections) [2010] EWCA Civ 1232, [2011] 1 FLR 1645, para 15, a case where (see paras 20-21) Thorpe and Smith LJJ themselves met the child, a 13-year old girl, and again in Re J (Abduction: Children’s Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457, paras 33, 42.
  • Well before then, in In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, paras 57-61, the House of Lords had indicated that merely enabling the child to meet the judge might not be sufficient. Having observed (para 59) that “children should be heard far more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done”, Baroness Hale of Richmond continued (para 60):

 

“There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face-to-face interview with the judge.”

I add another possibility, the child giving evidence but without being joined as a party: see Cambra v Jones (Contempt Proceedings: Child joined as party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, paras 10, 14.

 

  • The Supreme Court returned to the topic, this time in the context of care proceedings, in In re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12, [2010] 1 WLR 701, holding that there is no longer a presumption, or even a starting point, against children giving evidence in family proceedings. In In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038, the Supreme Court considered whether a 13-year old girl, T, should be joined as a party to Hague proceedings. Reversing this court, it held that she should.
  • Next, I should refer to In re M and others (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26, [2016] Fam 1, para 155, and, more particularly, to In re D (A Child) (International Recognition) [2016] EWCA Civ 12, paras 41, 44, 47, 48, where the obligation of the court to ensure that the child is given the opportunity to be heard and “the right of the child to participate in the process that is about him or her” were said to be fundamental principles of universal application, “reflected in our legislation, our rules and practice directions and our jurisprudence” and where it was said that “the theme of the case law is an emphasis on the ‘right’ of participation of those ‘affected’ by proceedings.”
  • Finally, I refer to the very recent decision of this court in Re E A Child) [2016] EWCA Civ 473, paras 46-48, 56-63, and, in particular, McFarlane LJ’s acid observation (paras 48, 56) that Baroness Hale’s judgment in In re W “would seem to have gone unheeded in the five or more years since it was given” and that “the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact.”
  • It is apparent that in relation to all these matters there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change. Moreover, and I wish to emphasise this, the process of change continues apace.
  • In April 2010, “Guidelines for Judges Meeting Children who are Subject to Family Proceedings” were issued by the Family Justice Council with the approval of Sir Nicholas Wall P: [2010] 2 FLR 1872. In December 2011, and following the decision of the Supreme Court in In re W, the Family Justice Council issued Guidelines, endorsed by Sir Nicholas Wall P, on “Children Giving Evidence in Family Proceedings:” [2012] Fam Law 79. More recently, the whole topic, with other related matters, has been considered by the Children and Vulnerable Witnesses Working Group which I established under the Chairmanship of Russell and Hayden JJ in May 2014. Their interim report was published in July 2014 (see [2014] Family Law 1217) and the final report in February 2015 (see [2015] Family Law 443). The Family Procedure Rules Committee is currently considering the extent to which, given limited resources, the recommendations of the Working Group can be fully implemented. Whatever the outcome of that discussion, it is plain that the further changes in our approach to these matters which are now widely acknowledged require to be implemented, and sooner rather than later.
  • One thing is quite clear: that proper adherence to the principles laid down in In re W will see ever increasing numbers of children giving evidence in family proceedings.
  • One of the drivers for this is the point which this court emphasised in In re KP (A Child) (Abduction: Rights of Custody) [2014] EWCA Civ 554, [2014] 1 WLR 4326, paras 53, 56, namely, that a meeting between the child and the judge is “an opportunity: (i) for the judge to hear what the child may wish to say; and (ii) for the child to hear the judge explain the nature of the process;” that the “purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say;” and that if “the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.” The corollary of this is that, quite apart from all the other drivers for change, there are likely for this reason alone to be more cases in future than hitherto where the child either gives evidence, without being joined as a party, or is joined as a party.

 

 

Heavy hint being dropped there that the Court of Appeal are itching to get their hands on an appeal where a Judge has refused to hear from a child, and that there’s a judicial speech already drawn up to deliver on it. Consider yourselves warned.

 

Yet more IVF misery due to clinic mistakes with paperwork

 

You write one up, then another one appears.

 

Again the President, again Miss Deidre Fottrell QC, again failure by an IVF clinic to get the paperwork right in an IVF process and meaning that the parents need to go to the High Court to get their legal status as parents sorted out.

 

And again, a hospital trust being pretty unsympathetic and feeble in how they picked up the pieces. (“Oh parents, there are some pieces. Mind how you go. No, we’re not picking them up.”   Actually, that sarky summary seems to be an improvement on the bedside manner employed in this particular case, where a doctor rang them up to tell them that one of them was not the child’s legal parent, and didn’t offer them an appointment or even explain it in more detail in a letter. Cheers for that.)

 

Re N 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1329.html

 

Here’s the mistake itself

 

The issue

  1. Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y did not sign a Form WP. Both of them signed a Form IC, though it was not in precisely the same form as the Forms IC I have had to consider in previous cases. The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
  2. I can take the matter quite shortly. The only material difference between the Form IC used in this case and the other Forms IC which I have previously had to consider, is that X’s declaration was in these terms:
    1. “I am not married to [name] but I acknowledge that she and I are being treated together and that I will take appropriate action to become the legal father of any resulting child.”

Below this there was the following Note:

“NOTE: The centre is not required to obtain a partner’s acknowledgement in order to make the treatment lawful, but … it is advisable in the interests of establishing the legal parenthood of the child.”

  1. Whatever might otherwise be the effect of the words “I will take appropriate action …” there is, on the facts of this case, no problem, because X subsequently signed the Form PP.
  2. In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.

 

And here is what the President said about the emotional strain on the parents and the clinic’s approach

 

 final matter

  1. I have drawn attention in my previous judgments to the devastating impact on parents of being told by their clinic that something has gone ‘wrong’ in relation to the necessary consents (see In re A, para 69, Case G, para 31, and Case I, para 28). I commented (Case G, para 32) that these were situations calling for “empathy, understanding, humanity, compassion and, dare one say it, common decency, never mind sincere and unqualified apology.” In both Case G and Case I, I was very critical of those clinic’s behaviour in this respect. Here again, unhappily, the clinic’s response fell far short of what was required.
  2. In the present case, X and Y were similarly affected as had been the parents in other cases. X, who received the initial telephone call from the clinic, says he “cannot describe the shock I felt.” “It is impossible to describe what it feels like to be told so baldly over the telephone that the child you believed you were the legal parent of was not your legal child.” He was initially unable to contact Y. When she got home “I was beside myself; I was not crying but I was distracted, shaking and unable to function at all.” The impact on him was graphically illustrated by the fact that he was unable to remember either the name or the telephone number of the doctor who had telephoned him. Y remembers the “shocking state” X was in when she got home. In her statement, she voiced her anger that “a doctor should think it reasonable to ring someone up and give them such terrible news over the phone and then not back up the news with an offer of an appointment to discuss the issues in person, an offer of counselling and not to confirm the advice in writing.” By the time there was further communication, about a week later, X and Y had lost all confidence in the clinic and decided to seek their own legal advice.
  3. The contrast with other events, before and after, is poignant and telling. X recalls how “I quite literally burst into tears when I found out [Y] was pregnant.” And the intense emotion, the enormous joy, the immense happiness with which X and Y reacted in court as I announced my decision was the most powerful and moving indication which it is possible to imagine of all they had had to go through.
  4. Unhappily, they did not receive from the clinic the support they were entitled to look for. The clinic declined to meet X and Y, as they wished. The clinic was tardy in confirming, though eventually it did, its unqualified assurance that it would pay their reasonable costs. Even worse, and despite earlier correspondence in which they had sought disclosure, the solicitors X and Y instructed had to make an application to the court before the clinic finally disclosed the relevant records.
  5. In F v M and the Herts and Essex Fertility Centre [2015] EWHC 3601 (Fam), Pauffley J was, as it seems to me with every justification, unsparingly critical of the behaviour of the clinic in that case after their mistakes had been discovered. Referring to guidance issued by the HFEA following the judgment of Cobb J in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, Pauffley J observed (para 14):
    1. “The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern.”

I repeat what I said I have said previously (Case G, para 33), I agree with every word of that. Pauffley J went on to criticise in particular the tardiness of the clinic in that case in disclosing the relevant patient files to the parents.

  1. What is required in all these cases, I emphasise, is immediate, full and frank disclosure by the clinic of all the relevant files as soon as they are requested by the parents. Legal professional privilege apart, which can hardly apply to the original medical files, there can be absolutely no justification for refusing such a request.
  2. I have now had the experience of watching too many parents in these cases sitting in court, as they wait, daring to hope for a happy outcome. The strain on them is immense. If the process is delayed because of obstruction on the part of the clinic, that is shocking. The original administrative incompetence in these cases is bad enough; to have it aggravated by subsequent delay, prevarication or obstruction on the part of the clinic merely adds insult to injury. Ms Fottrell, on instructions, tells me that her clients were shocked and upset by the clinic’s conduct and experienced great distress and anguish in the weeks and months following the initial telephone call. I am not surprised. The only mitigation is that when the clinic came to file its evidence, the “person responsible” who made the statement adopted a more seemly and appropriate stance, expressing “sincere apologies” for the clinic’s error and for its effect on X and Y.

 

 

And hooray, this time there were consequences

 

The clinic must pay X and Y’s reasonable costs in full: both the costs of the solicitors they originally instructed and who obtained the order for disclosure of the documents, and the costs of the solicitors they subsequently instructed to bring their substantive claim to court.

Ticking ALL the boxes

 

Another one of the cases where due to failures in completing the paperwork with IVF treatment, one of the parents did not acquire the legal parental responsibility that they should have acquired, leading to painful and possibly expensive Court proceedings.  The failure in this particular case, leading to the parents to have to make an application in the High Court and get Deidre Fottrell QC  to represent them, is that the Clinic failed to make sure that the form when completed had shown a tick in the right box to indicate consent.

 

So, in this case, whilst a tick in a box may be quite continental, double-checking is a mum’s best friend.  I’m here all week, try the chicken.

The President identified these problems first in

A and Others (Human Fertilisation and Embryology Act 2008)  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2602.html

 

https://suesspiciousminds.com/2015/09/11/ivf-and-declarations-of-paternity-major-cock-ups-in-ivf-clinics/

 

The individual cases have kept rumbling on, and the High Court has been rather scathing from time to time of the mess that the Hospital management / legal department have been handling things.

For example here :-

 

https://suesspiciousminds.com/2016/01/24/striking-ineptitude-from-an-organisation/

 

This particular decision is Re J 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1330.html

 

Following IVF treatment provided by a clinic at Guy’s and St Thomas’ NHS Foundation Trust, which is and was regulated by the HFEA, Y gave birth to their child. X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that he is, in accordance with section 36 of the 2008 Act, the legal parent of the child. Y is wholeheartedly supportive of X’s application. 

In this case, the failure was not a failure to use the right forms, or indeed to ensure that the parents had signed them, but here, that the parents had failed to put what the judgment calls a “v”  (but I think must be a tick) in the right box.

 

The issue

  1. Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y signed a Form WP. There is no problem with the Form PP. The problem arises because when Y signed the Form WP, which otherwise was properly completed, she omitted to place a v in the box in section 3 opposite the text “I consent to my partner (named in section two) being the legal parent of any child born from my treatment.” The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
  2. I can take the matter quite shortly. This case is not unlike Case I where, as I said (para 21):
    1. “a v was inserted in the wrong place and, as it were, against the wrong piece of text. It was, as [counsel] submits, a simple undetected clerical error. In the circumstances, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.”
  3. That there has been a mistake in this case in the completion of the Form WP is obvious, for the very purpose of completing the form is to give the consent indicated by the placing of a v in the relevant box. And it is plain what was meant. After all, Form WP is headed “Your consent to your partner being the legal parent.” What did Y think she was doing when she completed and signed the Form WP, if not to give her “consent to [her] partner being the legal parent”? The answer is obvious: by signing the Form WP she intended to and believed she was giving that consent. The only defect in the completed document is, as was the defect in Case I, a simple undetected clerical error. In the present case, as in Case I, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.
  4. In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.
  5. A final matter
  6. On the same day as she signed the defective Form WP to which I have referred, Y, at the invitation of the clinic, also signed another Form WP to ‘correct’ an error which, she was told, had been made in the Form WP she had signed some years before in connection with earlier successful IVF treatment. The earlier Form WP had been wrongly dated. What ensued was quite remarkable, as the clinic committed itself to – blundered into – what, were these matters not so sensitive and grave, one might be tempted to call a comedy of errors. First, the suggested ‘error’ in the earlier Form WP was quite immaterial for, as I noted in In re A (para 78), “the precise date is not material; what is vital is that the form was signed … before the treatment.” Secondly, it is quite clear that a mistake in a Form WP (or for that matter a Form PP) cannot be corrected retrospectively after the treatment by the signing of a substitute form. Thirdly, precisely the same error (the omission of the v in the box in section 3) appears in each of the two Forms WP signed by Y on this occasion. Fourthly, one might have thought that the clinic, having, as it thought, detected an error in the earlier Form WP, would have been more than careful to ensure that each of the new Forms WP was correctly completed. Not a bit of it!
  7. The lack of understanding of the critically important legal framework with which it had to comply, and its seemingly lackadaisical failure to ensure proper completion of the new Forms WP in the face of what it believed to be its previous error, cast a sadly revealing light on the managerial and administrative failings of a clinic which one really might have thought would have been able to do better.
  8. Not for the first time I am left with the feeling that the medical staff in these clinics, who seem to have been given the responsible for ensuring that all the necessary medical and legal consent forms were properly completed, wholly failed to appreciate the critical need to ensure that the legal consent forms were properly, indeed meticulously, completed. I repeat what I said in In re A (para 111):
    1. “the approach to checking that the Form WP and the Form PP have been fully and properly completed is surely just as important, and demands just as much care, attention and rigour, as would be demanded in the case of a legal document such as a contract for the sale of land, a conveyance or a will – indeed, in the context of parenthood, even more important.”

These administrative failures, which have been so characteristic a feature of every one of the cases I have had to consider, unhappily seem indicative of systemic failings both of management and of regulation across the sector. I can only hope that what all this litigation has revealed will by now have led to very significant improvements in understanding and practice.

 

Sadly, I suspect that it is only going to be when the Hospitals are hit with compensation claims or costs orders that things will improve.

 

Important case regarding learning difficulties

 

It is a Presidential pronouncement, and a long one. So expect it to be cascaded to all Judges and Courts in the next few days.

To be honest, a case that makes the President say this:-

 

  • This is by some margin the most difficult and unusual care case I have ever had to try.

 

is going to be worth a read. It is really difficult.  Just as when many of us read Re B, we felt that the circumstances described by the Court of Appeal and then the Supreme Court didn’t seem to justify a finding that threshold was met and that adoption was the correct outcome, this one made me feel deeply uncomfortable. I don’t think that I agree with the eventual conclusion, though to have decided the case otherwise would have caused a huge shift in the legal approach to such cases.

 

I’m afraid that it is long. And I am also afraid that in my attempts to condense what is a very long judgment into manageable size, some of the nuance and detail will be lost. There is no real substitute for reading the whole thing.

Re D (A child) (No 3) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/1.html

 

This case has appeared in the blog many times.  It is the one where a child was placed at home with parents, who had some learning difficulties, under a Care Order in 2012. The Local Authority then removed that child and placed the child in foster care. So initially it was key case law about the principles in law that apply to a removal of a child under a full Care Order. The LA then decided that their plan was adoption and made an application for a Placement Order. It then took many months of arguing about the lack of availability of legal aid for the parents (and lawyers not only working for free but signing indemnities that if cost orders were made against the Official Solicitor that they would guarantee to pay them out of their own pocket. Doesn’t quite fit with the conspiracy narrative that parents lawyers don’t try…)

It is the plaintive case where the mother cried out during one hearing that nobody seemed to be talking about her child at all, that all of the attention was on regulations and LASPO and fripperies, when what was surely important was the child. Quite so.

Anyway, this is the decision about whether the child should live with the parents, or be made subject to a Placement Order and hence go on to be adopted.

It raises some really challenging philosophical questions – and not ones of idle curiousity but ones that go to the heart of how such cases should be run.

 

  1. Were the things that happened to this child a result of parental deficiency, or were they frankly things that could happen to any child and any parent, but they were pathologised because of the parents known issues?
  2.  Were the failings here attributable to the parents, or the support provided?
  3. Is there such a thing in law as reparative care, or is insisting that a child needs higher than good enough care simply a social engineering argument in disguise (topical, given the proposed reforms to adoption)
  4. Is a parent with learning difficulties treated differently (or discriminated against) than a parent with physical disabilities?
  5. Is a plan that involves extensive professional support and carers really harmful to a child, or is it the sort of thing that happens all the time with children whose parents are very rich?

 

I’m going to steal the arguments in relation to each of these from the submissions of Deidre Fottrell QC  and Sarah Morgan QC contained in the judgment, because the day that I can write something that is better than the way Deidre or Sarah puts it is the day that I’ll be closing up the blog to spend quality time with my Pulitzer Prize.

 

 

  • Ms Fottrell, who it must be remembered acts on behalf of the father but also takes instructions from the Official Solicitor, expresses their deep concerns about what, with every justification, she calls the “notable deficit” in the support being given to the family by the local authority in relation to its failure to provide the father with the adult support services to which, as it eventually conceded, the father was entitled. As she submits, this impacted on the family in two ways: first, the father has not had the support he required, and thus continued to struggle with day to day tasks for himself; and, secondly, this meant that the mother was overburdened by being required to support him – which must have impacted on her ability to look after D. This is not, Ms Fottrell says, a small point, for it undermines the local authority’s case that the parents were fully supported when D was living at home. It is not enough for the local authority to assert that it was committed to D remaining at home and that it provided support. The key issues, she says, are (i) whether the local authority offered the right support and (ii) whether it was entitled to expect, as it did, that the support could be reduced and eventually withdrawn. Her answer to each is clear: No.
  • Ms Fottrell identifies what she suggests are two fundamental flaws at the heart of the local authority’s case. First, she says, there is an inherent contradiction given that the nature of the parents’ learning disabilities is, as she puts it, inherent and unchanging, a fact known to everyone when the original order was made: so the need for ongoing support on an indefinite basis underpinned the care plan approved the court in November 2012. It is therefore, she submits, unfortunate and somewhat harsh for the local authority and the guardian now to be saying that the parents have failed to ‘improve’ their parenting. She suggests that this goes to demonstrate either that the support envisaged was not provided to the extent required or that the local authority’s expectations of the parents were either unclear or unrealistic.
  • Secondly, she challenges the assertion that D needs better than good enough parenting: it is, she says, circular and dangerous and runs the risk of a parent with learning difficulties being held to a different and more onerous standard. It would, she suggests, exclude a parent with learning difficulties who requires support from being able to parent their child if the child also has learning difficulties. She points to what Gillen J said in Re G and A and observes, correctly, that the court has to comply with both Article 8 and Article 14 of the Convention. It cannot be right, she says, for the court to sanction a local authority’s intervention in the family life of a parent with disability in a way which would be discriminatory under Article 14. Moreover, as she points out, there is a positive obligation on the State under Article 8 and that, she submits, in a case such as this, imposes a broad obligation to provide such support as will enable the child to remain with his parents.
  • More generally, Ms Fottrell aligns herself with the submissions put forward on behalf of the mother, to which I now turn. Before doing so, I should mention two other important points made by Ms Fottrell. She challenges the assertion that the parents need support round the clock – a proposition, she submits, not made out on the evidence. And she points out that D has never suffered any physical injuries. Insofar as there are said to have been what can be characterised as ‘near misses’, she poses the question: Are these the kind of incidents, familiar to every parent, where the reaction is ‘there but by the grace of God …? Or were they, in truth, disasters waiting to happen where by some miracle nothing did happen?
  • In conclusion, Ms Fottrell submits that, with the right package of extensive support provided by a combination of Mrs P and the professionals, the parents will be able to care for D safely and appropriately, as the court had intended in November 2012

 

 

  • Ms Morgan and Ms Sprinz acknowledge that the mother has had her difficulties with MB and the foster carers and they do not shy away from some of the things the mother has said about professionals. But they urge me to remember the context. What after all is a parent likely to think about the social worker who has advocated the removal of her child or about the foster carer who is doing what the parent herself wants to do? And they urge me to accept TG’s appraisal of the mother as someone who can – and, they say, will – work with professionals if they are there to assist, support and advise, rather than to assess and monitor, and who treat her as an adult and a mother rather than, as she perceived it, as if she is “stupid.”
  • Moving to the heart of the case, Ms Morgan and Ms Sprinz challenge the assertion that the level of support the parents need carries with it the danger that people other than the parents will in truth be bringing D up and acting as his parents. There are, they suggest, two aspects to this: Is this really the case? And, even if it is, to what extent does it matter? In relation to the second point they caution against the risk of making a value judgment (as opposed to coming to a judgment) if it is, in truth, based upon no more than the circumstances in which the particular parent – these parents – come to need help. They submit that what matters is that the child has a clear and secure knowledge of who his or her parents are. The fact that some parents either need or choose to have assistance with the way in which their children are brought up does not, they say, alter that.
  • Here, as they rightly say, the parents need help. But how, they ask, do these parents, with their particular difficulties, differ from the parent physically disabled by Thalidomide, or the parent who is blind, or a parent with a brain injury as distinct from a learning disability, who may not be able to see or to react quickly to some risk to which their child is exposed. What such parents need, they submit, is that a reasonable adjustment is made for the deficits in their parenting which arise from their own inherent difficulties rather than from neglect or failure or indifference. The fact that such adjustments are made, and that such parents may be receiving a high level of help and support, does not, they say, mean that they are not bringing up their children. Why, they ask rhetorically, should it be any different for these parents with their difficulties?
  • They suggest that the true approach is best illustrated by those parents who choose to have assistance, for example, parents working long hours who employ a live-in nanny not merely to look after the children while their parents are at work but also to help with the daily beginning and end-of-day routines, or parents who send their children away to boarding school (and will therefore not see their children for days or possibly weeks on end), or the parents moving in circles where, even today, there is a domestic staff cooking the meals and where the children may eat separately from their parents. No doubt, they say, in all these cases the parents hope for continuity throughout the child’s childhood, but, as they point out, that is not the real world. Nannies move on, staff change, teachers leave, so the children are exposed to differing professionals providing care for them at differing stages during their childhood.
  • The point, they say, is that if one steps back and considers not the circumstances which bring about this help with or delegation of parental care but the experience of the child in these various examples it does not differ markedly, if at all, from what D’s experience would be under his parents’ proposals – except that he would probably have rather more parental care. They stress that these are not flippant points. They are made to underline the submission that it is easy to criticise, easy to buy into the notion that there is a way in which parents in care proceedings are expected to take sole unassisted responsibility for parenting and that if they do not or cannot then it is not good enough.
  • Ms Morgan and Ms Sprinz conclude with two further submissions. They reject the guardian’s approach that the parents will need 24 hour wrap-around support. That is not what the mother is seeking, nor is it what she, or the father or D need. Finally, they suggest that there has been an undue emphasis on risk, particularly in relation to D’s safety. Quite apart from the fact that all the incidents relied upon predated the local authority’s volte face, they point out that risk cannot be eradicated from children’s lives, although of course it can and should be reduced. They urge a sense of proportion: of course, a child can fall and poke himself in the eye with a dinner knife, but so too with a pencil, a crayon or a toy. The parents can learn to manage by modelling, which the mother, they say, will accept and learn from. Moreover, as they point out, risks change through time: road safety with a small child becomes internet safety with an older child; bath-time is hazardous for a very small baby but the risk diminishes over time to nothing for the older child. The parents, they urge, with proper training and support will be able to manage the changing risks. The mother, as they point out, has changed in her view of D’s needs and limitations. Earlier on, she was unwilling to accept that there was anything wrong or that he had any difficulties; in her evidence, she was able to acknowledge that that this was not so, saying that “it’s on both sides of his family, so it’s not that surprising.”
  • With proper support, they submit, D’s parents will be able to care for and look after him adequately. They point out that whoever looks after D will need help and support. They urge me to be rigorous in my Re B-S analysis, carefully evaluating and balancing the benefits to D of returning to his home to be looked after by devoted parents who love him very much and who have done and always will do their very best to care for him, accepting him and loving him as he is, against what they suggest are the unknowns and perils of adoption, particularly for a child with D’s characteristics. My assessment of what the parents propose for D must, they submit, be based upon the full support package proposed, that is, with input from A+bility, the local authority, other professionals and Mr and Mrs P. Adoption, they say, is not a panacea. I should be cautious about accepting the local authority’s rather sanguine view as to the ease with which suitable adoptive parents will be found – a view based, they suggest, on a limited understanding by that part of the local authority of D’s particular needs and complexities. They urge me to feed into my evaluation the risk that D may not be adopted and thus end up remaining in foster care.
  • At the end of the day, as they rightly observe, it is not my task to find a ‘better’ family for D if, in truth, his parents, with proper support and assistance, can provide him with good enough parenting. I must be vigilant not to countenance social engineering.

 

 

Okay, to be fair, I have not also quoted from the counter submissions from the Local Authority and the Guardian, who make a series of very good points also. But the argument is challenging nonetheless.

I felt when I was reading the judgment that the President was very drawn to the spirit of these arguments, and there’s a passage where he makes it explicit that he was striving to reach a conclusion that would have returned D to his parents care.

 

 

  • Ms Fottrell, Ms Morgan and Ms Sprinz join in submitting that, with the benefit of the right package of extensive – what they accept will need to be very extensive and intensive – support, with all the right input from A+bility, from the local authority and other professionals and from Mr and Mrs P, the parents will be able to provide D with adequate care, today, tomorrow and well into the future, indeed throughout the remainder of his childhood.
  • In response, the local authority and the guardian make three essential points, with each of which I am, sadly, at the end of the day, driven to agree:

 

i) The first is that the proposed package will simply not work, is simply not sustainable for as long as it would have to be maintained in place to meet D’s needs. Despite the best intentions of the parents, they have, the mother in particular, great difficulty in accepting guidance, advice or support when it does not fit in with their own views. The experience of what happened between November 2013 and March 2014 is, unhappily, an all too likely predictor of what will happen again. I am driven to conclude that the parents – through absolutely no fault of their own – will simply not be able to maintain over the ‘long haul’ the effective working partnership with the support team which is essential if the package is not to collapse.

ii) The second is that, even if the package can somehow be maintained, the gap between what the parents can offer D and what he needs is very large indeed and, sadly, in my judgment, simply too large to be capable of being bridged by even the most extensive support package. I refer, without further citation, to what I have already set out (paragraphs 145-149). I am driven to this conclusion after the most careful consideration of all the evidence, including, of course, the important evidence of Mrs P, which points in the other direction.

iii) The third is that even if a sustainable package could be devised which was in one sense capable of bridging the gap, it would not in fact be promoting D’s best interests. His parenting would, in reality, become parenting by his professional and other carers, rather than by his parents, with all the adverse consequences for his emotional development and future welfare identified by MB, by Ms Randall and by the guardian.

 

  • In relation to this last point I must, of course, address the powerful and perceptive submissions of Ms Morgan and Ms Sprinz (paragraphs 116-119). There is much in what they say with which I agree. And in many cases their analysis would indeed point in the direction to which they would have me go. But at the end of the day the outcome will always be case specific, dependent upon the particular, and often, as here, unusual, facts of the particular case. In the present case there are, in essence, two reasons why on this point I am unable to follow Ms Morgan and Ms Sprinz. The first is that this is only one of three quite separate reasons why, as I have said, no sustainable and effective package can be devised – so this particular point is not, in fact, decisive. The second reason flows from their submission (paragraph 116) that what matters is that the child has a clear and secure knowledge of who his parents are. But that, in the light of what MB, Ms Randall and the guardian have all told me, would at best be very questionable here.
  • I confess that I have struggled hard to try and find some proper basis upon which I could conscientiously have come to a different conclusion. But at the end of the day, and for all the reasons I have given, I am driven, however reluctantly and sadly, to the conclusion that D must be adopted. I am satisfied that ‘nothing else will do’; that D’s welfare throughout his life requires that he be adopted; and that his parents’ very understandable refusal to consent to his adoption must be dispensed with.

 

In effect, the President’s decision was that adoption was the right outcome for the child because it was not possible to devise any plan that would work to keep the child at home with the parents and have his needs met, partially because of the scale or what was needed and partly because the parents understandable issues with professionals would cause any such plan to break down.

 

On the reparative care point (for a particular child can the LA say that the parenting required is higher than ‘good enough’ because of the child’s needs) the President says this:-

 

 

  • Finally, the question of whether D needs ‘good enough’ parenting or ‘better than good enough’ parenting. There is, I think, a risk of this becoming mired in semantics. The reality is clear and simple. As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments.
  • Ms Randall went on to express the view that in these circumstances D will require ‘better than good enough’ parenting in order to achieve his potential (paragraphs 76, 82). Although this is a conventional way of expressing it, the real point surely is this. What is required is parenting which is ‘good enough’, not for some hypothetical average, typical or ‘normal’ child, whatever that means, but for the particular child and having regard to that child’s needs and requirements. Where, as with D, the child has needs over and above those of other children of his age, then what is ‘good enough’ for him may well require a greater level of input. D, in my judgment, plainly will. That is the point, and that is what is relevant, and in this case highly relevant. The descriptive label is merely that, a convenient form of professional shorthand. I make clear that in coming to this conclusion and in expressing myself in this way I have very much had in mind and taken into account Ms Fottrell’s submissions.

Somewhat side-stepped so as to preserve the principles of “good enough” parenting, but stressing that it must be “good enough” for this particular child with these particular needs.

 

 

  • Standing back, I return to the questions I posed at the outset: Given that these are parents who the local authority, the guardian and the court agreed in November 2012 were able to provide their son D with good enough parenting, given that that conclusion was endorsed by the local authority on 3 February 2014 after careful evaluation and in the light of a very careful core assessment completed as recently as 29 January 2014, What has happened? What has changed? Why is the local authority now proposing, and why am I agreeing to, something so radically different?
  • The answer, in my judgment, is to be found in a telling phrase used by the guardian and a question posed by Ms Fottrell. As long ago as November 2012 the guardian had described the local authority’s plan as “courageous”. The sad reality is that it turned out to be too courageous. Ms Fottrell, as we have seen, posed the question of whether the reason D was removed in March 2014 was because the necessary support had not been provided by the local authority or because the local authority’s expectations of the parents had turned out to be unrealistic. In my judgment it was the latter. Despite the very intensive support provided by the local authority, it gradually became apparent, contrary to everyone’s hopes and expectations, that the parents were not able to manage. Matters came to a head in March 2014 when, in effect, if one wants to put it this way, MB admitted defeat and realised that her, and her colleagues’, hopes and expectations were not going to be, in reality could not be, achieved.
  • This, as I said at the outset, is a desperately, indeed, a wrenchingly, sad case. D’s parents are devoted to him and have always wanted to do, and have done, their very best for him. They would never harm him, and have never done so. They are not in any way to blame. They are not to be criticised. It is not in any sense their fault. They have struggled against great odds to be, as they would want to be, the best possible parents for D. But ultimately it has proved too much for them. Their own difficulties are simply too great. My heart goes out to them.

 

 

The President also imports some new principles / approaches into English law, by borrowing from a decision in an Irish Court.

 

 

  • This leads on to the profoundly important of observations of Gillen J, as he then was, sitting in the Family Division of the High Court of Justice in Northern Ireland, in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5. So far as I am aware, his decision has never been reported, but the transcript is freely available on the BAILII website.
  • Gillen J referred to a number of papers and reports, including “Finding the Right Support”, a research paper from Bristol University’s Norah Fry Research Centre funded and published by the Baring Foundation in 2006. He continued:

 

“A reading of these documents leads me to set out a number of matters which I feel must be taken into account by courts when determining cases such as this involving parents with a learning disability particularly where they parent children who also have a learning disability.”

He then set those matters out in eight numbered paragraphs. Although lengthy, they are so important that they require quotation in full. Accordingly, I set them out in an Annex to this judgment. I respectfully agree with everything said by Gillen J. I commend his powerful words to every family judge, to every local authority and to every family justice professional in this jurisdiction.

 

David Burrows and I will probably ponder for aeons as to whether this is actually binding on anyone, and whether it actually forms part of the decision or is simply part of the President’s stylistic approach to judgments whereby they are part judgment, part speech, part policy initiative and part a Practice Direction without a consultation process. But for non geeks, it is a pretty simple message. Follow this stuff, or else.

 

 

  • Extract from the judgment of Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5:

 

“(1) An increasing number of adults with learning difficulties are becoming parents. The Baring Foundation report records that whilst there are no precise figures on the number of parents with learning difficulties in the population, the most recent statistics come from the First National Survey of Adults with Learning Difficulties in England, where one in fifteen of the adults interviewed had children. Whatever the figure it is generally recognised that their number is steadily rising and that they represent a sizable population whose special needs require to be adequately addressed. The Baring Foundation report refers to national policy in England and Scotland committing government to “supporting parents with learning disabilities in order to help them, wherever possible, to ensure their children gain maximum life chance benefits.” Nonetheless the courts must be aware that surveys show that parents with learning disabilities are apparently more likely than other parents to have their children removed them and permanently placed outside the family home. In multidisciplinary jurisdiction such as the Family Division, it is important that the court is aware of such reports at least for the purposes of comment. It is important to appreciate these currents because the Children Order (Northern Ireland) 1995 places an emphasis on supporting the family so that children can remain with them and obligations under disability discrimination legislation make public services accessible to disabled people (including parents with learning difficulties). Moreover the advent of the Human Rights Act 1998 plays an important role in highlighting the need to ensure the rights of such parents under Articles 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms (“the Convention”).

(2) People with a learning disability are individuals first and foremost and each has a right to be treated as an equal citizen. Government policy emphasises the importance of people with a learning disability being supported to be fully engaged playing a role in civic society and their ability to exercise their rights and responsibilities needs to be strengthened. They are valued citizens and must be enabled to use mainstream services and be fully included in the life of the community as far as possible. The courts must reflect this and recognise their need for individual support and the necessity to remove barriers to inclusion that create disadvantage and discrimination. To that extent courts must take all steps possible to ensure that people with a learning disability are able to actively participate in decisions affecting their lives. They must be supported in ways that take account of their individual needs and to help them to be as independent as possible.

(3) It is important that a court approaches these cases with a recognition of the possible barriers to the provision of appropriate support to parents including negative or stereotypical attitudes about parents with learning difficulties possibly on the part of staff in some Trusts or services. An extract from the Baring Foundation report provides a cautionary warning:

“For example, it was felt that some staff in services whose primary focus was not learning difficulties (eg in children and family teams) did not fully understand the impact of having learning difficulties on individual parents’ lives; had fixed ideas about what would happen to the children of parents with learning difficulties and wanted an outcome that did not involve any risks (which might mean them being placed away from their family); expected parents with learning difficulties to be ‘perfect parents’ and had extremely high expectations of them. Different professionals often had different concepts of parenting against which parents were assessed. Parents’ disengagement with services, because they felt that staff had a negative view of them and ‘wanted to take their children away’ was also an issue, as were referrals to support services which were too late to be of optimum use to the family – often because workers lacked awareness of parents’ learning difficulties or because parents had not previously been known to services”.

(4) This court fully accepts that parents with learning difficulties can often be “good enough” parents when provided with the ongoing emotional and practical support they need. The concept of “parenting with support” must underpin the way in which the courts and professionals approach wherever possible parents with learning difficulties. The extended family can be a valuable source of support to parents and their children and the courts must anxiously scrutinize the possibilities of assistance from the extended family. Moreover the court must also view multi-agency working as critical if parents are to be supported effectively. Courts should carefully examine the approach of Trusts to ensure this is being done in appropriate cases. In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents. Their competences must not be judged against stricter criteria or harsher standards than other parents. Courts must be acutely aware of the distinction between direct and indirect discrimination and how this might be relevant to the treatment of parents with learning difficulties in care proceedings. In particular careful consideration must be given to the assessment phase by a Trust and in the application of the threshold test.

(5) Parents must be advised by social workers about their legal rights, where to obtain advice, how to find a solicitor and what help might be available to them once a decision has been taken to pursue a care application. Too narrow a focus must not be placed exclusively on the child’s welfare with an accompanying failure to address parents’ needs arising from their disability which might impact adversely on their parenting capacity. Parents with learning disabilities should be advised of the possibility of using an advocate during their case eg from the Trust itself or from Mencap and clear explanations and easy to understand information about the process and the roles of the different professionals involved must be disclosed to them periodically. Written information should be provided to such parents to enable them to consider these matters at leisure and with their advocate or advisers. Moreover Trusts should give careful consideration to providing child protection training to staff working in services for adults with learning disabilities. Similarly those in children’s services need training about adults with learning disabilities. In other words there is a strong case to be made for new guidelines to be drawn up for such services working together with a joint training programme. I endorse entirely the views of the Guardian ad Litem in this case when she responded to the “Finding the Right Support” paper by stating:

“As far as I am aware there are no ‘family teams’ in the Trusts designated to support parents with a learning disability. In my opinion this would be a positive development. The research also suggests that a learning disability specialist could be designated to work within family and childcare teams and a child protection specialist could be designated to work within learning disability teams. If such professionals were to be placed in the Trusts in Northern Ireland they could be involved in drawing up a protocol for joint working, developing guidelines, developing expertise in research, awareness of resources and stimulating positive practice. They could also assist in developing a province-wide forum that could build links between the Trusts, the voluntary sector and the national and international learning disability community.”

(6) The court must also take steps to ensure there are no barriers to justice within the process itself. Judges and magistrates must recognise that parents with learning disabilities need extra time with solicitors so that everything can be carefully explained to them. Advocates can play a vital role in supporting parents with learning difficulties particularly when they are involved in child protection or judicial processes. In the current case, the court periodically stopped (approximately after each hour), to allow the Mencap representative to explain to the parents what was happening and to ensure that an appropriate attention span was not being exceeded. The process necessarily has to be slowed down to give such parents a better chance to understand and participate. This approach should be echoed throughout the whole system including LAC reviews. All parts of the Family justice system should take care as to the language and vocabulary that is utilised. In this case I was concerned that some of the letters written by the Trust may not have been understood by these parents although it was clear to me that exhortations had been given to the parents to obtain the assistance of their solicitors (which in fact was done). In terms therefore the courts must be careful to ensure that the supposed inability of parents to change might itself be an artefact of professionals ineffectiveness in engaging with the parents in appropriate terms. Courts must not rush to judge, but must gather all the evidence within a reasonable time before making a determination. Steps must be taken to ensure that parents have a meaningful and informed access to reports, time to discuss the reports and an opportunity to put forward their own views. Not only should the hearing involve special measures, including a break in sessions, but it might also include permission that parents need not enter the court until they are required if they so wish. Moreover the judges should be scrupulous to ensure that an opportunity is given to parents with learning disabilities to indicate to the court that something is occurring which is beyond their comprehension and that measures must be taken to deal with that. Steps should also be taken throughout the process to ensure that parents with learning disabilities are not overwhelmed by unnecessarily large numbers of persons being present at meetings or hearings.

(7) Children of parents with learning difficulties often do not enter the child protection system as the result of abuse by their parents. More regularly the prevailing concerns centre on a perceived risk of neglect, both as the result of the parents’ intellectual impairments, and the impact of the social and economic deprivation commonly faced by adults with learning difficulties. It is in this context that a shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully and why their children should often be taken into care. At its simplest, this means a court carefully inquiring as to what support is needed to enable parents to show whether or not they can become good enough parents rather than automatically assuming that they are destined to fail. The concept of “parenting with support” must move from the margins to the mainstream in court determinations.

(8) Courts must ensure that careful consideration is given to ensuring that any decision or judgment is fully explained to such parents. In this case I caused a copy of the judgment to be provided to the parties at least one day before I handed it down to facilitate it being explained in detail before the attendance at court where confusion and consternation could be caused by a lengthy judgment being read which the parents could not follow at the time.”

[I’m rather struck by the underlined words in paragraph 4   In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

Although threshold had already been established in this case when the original Care Orders were made, it does appear that the worst thing that happened to D whilst he lived with his parents before being removed and a plan of adoption approved was that there was an occasion when mother closed a kitchen drawer not knowing that D’s finger was in the way, giving him a swollen and no doubt quite painful finger.  Hmmmm.

The Judge had this to say about that

  • First, the question of D’s physical safety. It is important both to keep this in perspective but at the same time also to understand the real focus of the local authority’s concerns. I start with two obvious but important points. The parents have never done nor, I am satisfied, would they ever dream of doing anything to harm D. And the fact is that, with the sole exception of the occasion when his finger was trapped in the drawer – something that could happen to any child in the care of the most attentive and careful if momentarily distracted parent – D has never suffered any physical harm while in their care. Moreover, the specific incidents to which the local authority understandably draws attention are none of them, viewed in isolation, anything particularly out of the normal; indeed, probably familiar, if we are honest about it, to any parent. On occasions, children do escape. On occasions they find things which may cause them injury if they fall over. On occasions they make more or less perilous journeys up or down potentially dangerous staircases. On occasions parents, in exasperation, throw things.*
  • I should add that I reject any suggestion that the parents have ever been other than caring and diligent in making sure that D receives appropriate medical treatment whenever the need arises. I accept the mother’s explanations as to why, and in my judgment quite reasonably, she took the view that D did not need medical attention after his finger was trapped in the drawer. Whatever she may have said to TG, and the words TG reports are capable of more than one meaning, I reject any suggestion that this was a deliberate attempt by the mother to cover up. She would, I am confident, always have put her child’s safety first. That is simply the kind of mother she is.

[*Expect to see Re D a child No 3 2016 turn up in responses to thresholds for all manner of similar issues over the next few months. This seems to be judicial authority for it being okay to throw things in exasperation and will no doubt be pleaded as such]

He does, however, say that the evidence was that the parents could not properly anticipate risks

 

  • So what is the real focus of the local authority’s concern in relation to safety? Looking to the various views expressed by A+bility (paragraph 52 above), by MB (paragraph 61), by TG (paragraphs 67-70), and by Ms Randall (paragraphs 78-79, 81), all of which are to much the same effect and point in the same direction, and which I have no hesitation in accepting, the problem is a group of difficulties the mother has: in anticipating possible risks (particularly if they are novel); knowing how to react quickly and effectively in the face of potential hazard; not always being able to anticipate or control D’s actions; not being able to transfer past experiences or training into practical precautions next time round (as TG put it, progress ‘in the moment’ tended not to be carried through over time); not being able to bring her theoretical awareness of risk to bear effectively when confronted with a live situation; and not being able to multitask in situations where she might be distracted from her focus on D. TG’s description (paragraph 67) of the contrast between the mother’s fluent explanations and her inability to translate this into practical terms is striking and illuminating, as indeed is the whole of TG’s evidence on the issue of danger.
  • In my judgment, these are very real and very worrying concerns. The cumulative weight of all the professional opinion on the point is compelling in identifying and evidencing just why the professionals are, and in my judgment rightly, so concerned. Not just for the here and now but also for the future, as D, who Ms Randall describes as a child with little sense of danger, becomes more challenging and finds himself exposed to new and different forms of danger.

 

Again, hmmm. In all the time that D lived with the parents (and remember, against a backdrop of the LA REDUCING the practical support to the family), this failure to anticpate risk led to just one injury, a pretty innocuous one.  Have we really here ensured that:-

In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

And I have to ask myself, rhetorically, whether the Judge who decided Re A, would have countenanced within a threshold that a child’s finger was accidentally caught in a drawer that mother was closing IF THE MOTHER DID NOT HAVE LEARNING DIFFICULTIES and that was being used as evidence that her difficulties made her a poor parent?

 

 

 

 

We’ve gone on holiday by mistake

 

 

The outcome of the President’s case involving parents who were found, with their four children (aged between 20 months and 7 years old) around the border between Turkey and Syria, with the suspicion that they intended to cross the border and join up with the conflict going on in Syria.

 

I wrote about the initial decision here, in which the President set out a detailed routemap for recovering such children and bringing them back into the jurisdiction

https://suesspiciousminds.com/2015/05/21/isis-and-children-being-taken-to-syria/

 

At that time, there were competing explanations

 

(a) The parents had become radicalised and sought to join the conflict in Syria, potentially with ISIS and thus exposing the children to significant danger

or

(b) the parents explanation, that they were on holiday in Turkey as a family, with no sinister motives at all.

I note that the family had travelled to this holiday in Turkey by way of ferry from Dover, and then by public transport all the way, and did so without telling anyone.  Perhaps that’s to avoid detection and suspicion (option a) or perhaps the family really like buses or are afraid of flying, and have a strong sense of privacy (option b)

In any event, one would now think in retrospect that holidaying with a baby and 3 young children near the Syrian border was something of a mistake.

 

The next bit of the hearing is to look at what should happen next.

 

Re M (Children) No 2  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2933.html

 

The outcome of this hearing is that the children are all at home with their parents, under no orders at all, and the children’s passports have been returned.

 

Now, there’s always been a background residual concern that in the concerns about radicalisation and terrorism that a wholly innocent family could be caught up and subjected to what must be a terrifying process. So if that is what has happened here, that would be hugely newsworthy.

Equally, if option (a) is what actually happened, and the family have subsequently satisfied a Court that they are safe now, that would be hugely newsworthy.

 

Annoyingly, we can’t be 100% sure of either option. The Court do not set out what findings, if any, were made about the children’s time near the Syrian border in Turkey.  It may be that the Court was not asked by any party to make such a finding, or that the parents made concessions. We just don’t know.

The closest we come is this :-

 

At a further hearing on 2 June 2015 I directed the appointment of an independent social worker, Ms RT, to address matters which, understandably, the guardian did not feel qualified to address, in particular the question of whether the parents can care adequately for the children and prioritise their needs, having regard to their religious beliefs and in circumstances when their allegiance to those beliefs could compromise the safety of the children. Ms RT’s report is dated 16 August 2015. It is a detailed, impressive and compelling piece of work. Because the family’s identity is in the public domain, I do not propose to go through the report in any detail. It is enough for me to quote one brief passage:

It is my assessment that the intervention of the state has been a wakeup call for this couple … It is my assessment that their current beliefs do not pose a risk or will compromise the safety of their children … [They] are good parents and they are able to care for all their children. I see no reason whatsoever to remove the children from their care.”

The local authority and the guardian accept that conclusion and the analysis that underpins it. So do I.

 

It doesn’t feel ideal that we have to infer from one sentence fragment in a judgment  ‘that this has been a wakeup call for these parents’ that the more likely explanation for the children’s presence near the Syrian border was a malign one, not a benign one.

 

But, one could also read it that the ‘wake-up call’ is that the parents now realised that Syria was a dangerous part of the world and that their holiday to Turkey was ill-advised and they would never make that sort of foolish mistake again.

I know which reading I think is right, but the problem legally is that an allegation that the parents had planned to take their children into Syria is an allegation that needs to be proven – the parents don’t have to prove their innocence. In the absence of a clear finding, then it didn’t happen.

 

The order says

 

  1. Having regard to all that material, and all the other evidence before me, I had no hesitation in agreeing with the course proposed by the local authority, endorsed by the guardian and agreed by the parents. Accordingly, at the final hearing on 5 October 2015 I made an order in the following terms:

    “UPON the court receiving the independent assessment of RT dated 16 August 2015 and the position statements of the applicant local authority and children’s guardian, the contents of which recommend the discharge of the wardship orders currently in place on the basis that the identified risks are manageable under child in need plans and ongoing cooperation by the respondent parents with the applicant local authority

    AND UPON the parents agreeing in full to the terms of this order

    AND UPON the court indicating that a brief anonymised judgment will be handed down in writing on a date to be notified

    BY CONSENT IT IS ORDERED THAT:-

    1 The wardship orders first made in respect of the subject children on 4 May 2015 and renewed thereafter on 8 May 2015 are hereby discharged.

    2 The order dated 8 May 2015, requiring the applicant local authority to retain the parents’ and children’s passports to the order of this court is hereby discharged, whereupon the local authority has agreed to return the said passports to the parents.

    3 There be no order as to costs save for detailed public funding assessment of the respondents’ costs.”

  2. It follows that the proceedings are now at an end. I leave the final word to the parents, who say, and I accept, “wish to put the incident behind them and concentrate on being the best parents for their children, with the continued support of their family and friends.”

 

 

Again, that order sets out that there are identified risks, but doesn’t actually identify them. Are those ‘identified risks’ that the parents had planned to take the children into Syria but have now come to their senses, or that the parents are the worst holiday planners since Withnail?

 

"Are you the farmer?"

“Are you the farmer?”

 

Perhaps the people involved in the case know definitelively what happened, but given the importance of such cases nationally, particularly if these parents were exonerated from suspicion, it might have been rather important to actually spell it out.

 

[It may be that the fudge here is because unusually, the identity of the family is known, and they have to live within their local community, but the ambiguity isn’t helpful if they were actually exonerated and considered by a Court to have actually just taken a really badly located holiday.]