Tag Archives: president

Nods and becks and wreathed smiles

Posted on October 17, 2017 by suesspiciousminds

In this case, the President of the Family Division deals with the thirty-fifth case where a fertility clinic had failed to complete the paperwork properly, meaning that people who thought they were a child’s legal parents were not, and had to go to Court at considerable stress and expense to put this right.

Re P, Q, R, S,T and U 2017
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2532.html

(This episode of Sesame Street is brought to you today by far too many letters)

The clinic in question sent letters out to the people who had conceived a child with flawed paperwork, following the realisation and reporting of the first such case Re A 2015

12.No-one before me seeks to justify, either in terms of their tone or in relation to their legal content, the letters sent out by Dr X on 15 March 2016. I also have concerns about the form of letter sent out on 28 April 2016. My concerns relate to (i) the focus on “clarifying” the parent’s “intention” and (ii) the indication that a statement “clarify[ing] what your intention was … may not give you legal certainty or resolve any potential problems with legal parenthood” (emphasis added). The point is very simple. Although “intention” is a necessary it is not a sufficient condition for acquiring parenthood. For, as I very recently observed, in Re the Human Fertilisation and Embryology Act 2008 (Case AK) [2017] EWHC 1154 (Fam), para 20, it is the presence or absence of consent in writing – and, I should emphasise, such a consent given before the relevant treatment – which is ultimately determinative:

“As In re A demonstrates, the ultimate question is whether X has, within the meaning of sections 44(1)(a) and 44(2) of the 2008 Act, “given … a notice [in writing .. signed by [X]] stating that [X] consents to [X] being treated as the parent of any child resulting from treatment provided to [Y].”

Moreover, the word “may” was, it seems to me, insufficient in circumstances which surely demanded plain words rather than “Nods, and becks, and wreathed smiles.”

You do have to admire a Judge who, whilst admonishing someone for not using plain words, throws in a bit of Milton poetry containing the word “becks” which is not in wide circulation other than when referring to German lager. A beck, in this context is a gesture designed to attract attention (as if you were trying to catch the eye of a waiter) and is where we get the expression “At his beck and call”

The line before “Nods, and becks, and wreathed smiles” in the poem is “Quips and cranks, and wanton wiles” which I am going to claim as an accurate description of my site. If only I were launching it today, I’d have that as the tag-line.

“Cranks” in the Milton poem, means ‘clever or fanciful speech, whims, caprice’ and not what you thought I meant.

Oh, also “wreathed smiles” just means to have a big smile on your face – I had originally taken this to be a sinister or thin-lipped smile because of the negative connotation that wreath has now, but I guess it is more in the laurel wreath or Christmas wreath sense rather than a funeral wreath.

I am beginning to think that Milton is not the best source for plain speaking that everyone can readily understand…

As ever, I am ashamed that I did not have a proper classical education. If I had, then I too would scatter allusions to Homer and Milton around as though this was commonplace on the Clapham omnibus. The only Milton I was exposed to in my school days was on the last day of term when we were allowed to bring in Ker-Plunk by Milton Bradley Games. [Tin-Can Alley was the best thing for someone to bring in, because there was a rifle that shot light at toy tin cans, making them jump into the air. Awesome-sauce. I only really know Milton now from the ‘better to serve in Heaven than to reign in Hell’ line and that only from Neil Gaiman’s Sandman)

Anyway, what emerged in the case was a practice of patients being asked to sign declarations kept by the clinic that they MEANT to be joint parents, and thus avoiding the need to go to Court AND more importantly that the HFEA was wrongly passing on to clinics this suggestion.

The President was rightly not in the slightest bit keen on that, and stressed that this practice emerged AFTER Re A, which clearly demonstrated that Court orders were required to fix the mess caused by these clinics.

13.My real concern is that there appears to be an impression in some quarters that the kind of problems which have characterised all the many cases which I have had to deal with – Re the Human Fertilisation and Embryology Act 2008 (Case AK) was the thirty-fifth such case in which I have given judgment – can sometimes be resolved appropriately without obtaining an order of the court. This, in my judgment, is a highly problematic, indeed dangerous, view. I need briefly to explain why.

14.I venture to repeat at this point what I said in in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, para 3:

“The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation … is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?”
15.Legally the issue has the potential to arise – possibly, I emphasise, years or even decades in the future – in a variety of contexts. Family lawyers will of course be alert to the risk of future breakdown in the parental relationship, perhaps triggering private law proceedings under the Children Act 1989 in which the precise legal status of a parent may be challenged. But we need also to be aware that the existence or otherwise of the legal relationship of parent and child may become relevant in the future in relation to such matters as citizenship and nationality or – and possibly decades in the future when both parents are dead and therefore unable to give evidence – in relation to matters of succession and inheritance.

16.In what is now a long line of cases involving applications for parental orders in accordance with section 54 of the 2008 Act, Theis J has emphasised the importance of the need for such orders. There is, of course, a significant difference between the two types of case, because whereas a parental order has, as has been said, a “transformative” effect, and creates legal rights, the declaration granted in the present type of case is, as the word suggests, merely declaratory of existing legal rights. But that does not mean that there is no advantage to be gained by obtaining such a declaration. Far from it: a declaration of status granted by the High Court after appropriately stringent investigations, and after, as is invariably done, notice of the proceedings has been given both to the Attorney General and to the Secretary of State, has an effect in law and reality which far transcends any purely private transaction or agreement between the parents. To adopt, mutatis mutandis, some words used by Theis J in J v G [2013] EWHC 1432 (Fam), para 28, quoting from the parental order reporter in that case:

“A parental order allows the reality for [the children] to be formalised now and bestows a sense of finality and completeness. It closes the door on official challenges to the intended parents’ authority and paves the way for the future without … further anxiety.”

Similarly, a declaration puts matters on a secure legal footing. It affords both child and parent lifelong security. It puts beyond future dispute, whether by public bodies or private individuals, the child’s legal relationship with the parent as being, indeed, his legal parent.
17.There is one final matter to which I need to draw attention. The witness statement filed on behalf of the HFEA by Nick Jones, its Director of Compliance and Information, included the following:

“Ms Walsh [she was the Senior Inspector who, with colleagues, undertook the inspection of the clinic in March 2016] has set out in her statement the facts and circumstances surrounding Care Manchester’s ill-advised decision to try resolving the parenthood issues by getting patients to sign a declaration. As Ms Walsh has said, we were not aware that the clinic intended doing this until after they had already sent out a number of those declarations to patients. Whilst we were not aware of Care Manchester’s intentions to use this declaration, following the judgment in the Alphabet case [In re A] we had been informed by a number of clinics that on legal advice, they were asking a small number of patients to complete declarations.

These clinics told us that some patients had, having been fully informed of the potential consequences and impact of the consent failings, said that they did not wish to go through any legal process in order to become the legal parents of their own children. Understandably, some patients were affronted at the suggestion that they were not legally the parents of their children. In such cases, a small number of clinics informed us that on legal advice, they had asked these patients to complete a declaration. These clinics and a legal advisor acting for several clinics, told us that the purpose of this declaration was to record the intentions of the couple at the time of their treatment, that is, a way of confirming that at the time that the couple had treatment, and notwithstanding any anomalies in their consent forms, they had intended to have treatment together and for both to be the legal parents of the children born from such treatment.

Clinics told us that this was a measure their legal advice suggested they put in place in order that in the future, should these couples separate, for example, and have to grapple with issues around the custody and care of their children, the clinics would have these signed declarations which could be relied on at that time, albeit with uncertainty as to the status of such a declaration. Whilst I expressed some concern about such an approach, and felt unease, I was assured the clinics did so on the basis of legal advice, and then only in those cases where patients had said that they did not wish to go through a court process in order to become the legal parents of their children. Having advised clinics to take their own legal advice, and now having done so, I felt we were not in a position to question that advice. Similarly, not having any method of communicating with this group of patients directly and also taking it on trust and good faith that the legal advice was sound and that clinics were acting in the interests of their patients, we felt we could not question the clinic’s approach and the decision these patients had taken to sign declarations.”
18.For reasons which by now will be apparent, Mr Jones was, as it seems to me, well justified in having those concerns and feeling that unease. But I am bound to say that it seems, and not merely with the priceless benefit of hindsight, unfortunate that the HFEA was not more questioning of what it understood was the advice being given at a time, I emphasise, after I had given judgment in In re A. I appreciate that the HFEA was not privy to the detail of any of that advice, but in the light of its understanding, as explained by Mr Jones, of what advice was being given, it might be thought that alarm bells should have been ringing and that the HFEA should have been more questioning, both privately and more publicly, as to the appropriateness and wisdom of the advice it understood was being given. I do not suggest that the HFEA should necessarily have commissioned legal advice itself on the point, but might it not have been better if it had circulated guidance to clinics, setting out what it understood to be happening, stressing that it was for individual clinics to obtain such legal advice as they might think appropriate, but saying that it did have concerns about the appropriateness of the advice which it understood certain clinics had received and perhaps briefly explaining why.

Comments Off on Nods and becks and wreathed smiles

Posted in case law and tagged fertility clinic, HFEA, president, president of the family division, re p q r s t and u 2017. Bookmark the permalink.

Bone marrow transplants and struck off doctors

Posted on April 12, 2017 by suesspiciousminds

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:

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].”

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.

5 Comments

Posted in case law, court of protection and tagged bone marrow transplant, Dr Jooste, Dr Waghorn, president, president of the family division, Re SW 2017. Bookmark the permalink.

Revoking adoption and IVF mistakes (again)

Posted on September 13, 2016 by suesspiciousminds

The President of the Family Division has been at the forefront of the litigation about IVF clinics that managed to make a mess of the paperwork such that people who fully intended to both be legal parents of a child conceived in that way have ended up not being legal parents and having to go through cost and emotional turmoil. Purely due to failures in using the correct forms. It is a trivial mistake, but one (as you can see from this piece) has huge emotional consequences and cost for those involved.

Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273 (Fam) (13 September 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2273.html

The President notes that there are approximately 90 cases of such anomalies, where due to failure with forms and paperwork parents who intended in good faith to become legal parents of the child they were conceiving with help of the clinic did not actually become the legal parent.

In this case, when the parents were told of the mistake, the child had not yet been born.

17.When told by the clinic of the mistake which had been made, X and Y were, to use X’s word, “devastated.” Y was at home – in fact she was far advanced in her pregnancy with C2 – when Barts telephoned:

“They told me that I was not [C1’s] legal parent … I rang [X], instantly, I was sobbing. I could not believe what I had been told. Fortunately [she] was very close to home. When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [C1’s] mummy. This still remains very raw.”

X remembers Y telephoning:

“[She] called me, [she] was sobbing and I could barely make out what she was saying.”

The legal advice they got at the time (which was probably right at the time – or at least what most lawyers would have said was the only answer) , before Theis J found the alternative route) was that there would have to be an adoption.

18.X and Y were told both by the clinic and by the solicitors they instructed – not those involved in the present proceedings – that the only solution was for Y to adopt C1. I have referred on previous occasions to how utterly inappropriate adoption is as a remedy in cases like this: see In re A, para 71(vii), and Case I, para 24. However, as I observed in Case I, para 23, my impression is that this erroneous view, shared at the time both by the HFEA and by the clinics whose actions I have had to consider, and, I might add, by many family lawyers, was based on assumptions, derived from Cobb J’s judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, which were widespread until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.

19.Y accordingly made an application to the Family Court to adopt C1. X and Y found the adoption process – and I can well understand why – very intrusive, very hurtful and a total invasion of their privacy. Y’s account is telling: “I felt I was stared at and judged. I felt that everyone analysed us.” But more fundamentally, as X put it, “the whole adoption process felt wrong.” Y’s anguished words are heart-breaking:

“I feel like a piece of me has been taken away from me. I cannot even start to explain the pain it has brought to us all. We tried our hardest to do things properly and yet it’s like I no longer feel like I am [C1’s] mummy. I was [C1’s] mummy but now I am [C1’s] adoptive mummy. We do not want [C1] to be different to [C2] … We feel disappointed and let down by Barts. We planned our family carefully. We want [C1’s] parenthood to be what it should have been. Adoption is not what we wanted.”

X’s words are equally raw:

“It broke my heart when I had to hand in [C1’s] original birth certificate. I am so upset that [C1] now has a different status as an adopted child. [C1] is now different to [C2], when [this] should not have been.”

20.The report of the adoption social worker prepared for the adoption proceedings contains this important passage:

“This application is quite unique.” After setting out the circumstances, the writer continued: “The couple have sought legal advice and have been advised that the only way to remedy this is for [Y] to formally adopt [C1]. The couple have found this situation extremely distressing and in all honesty do not want this process. However they want everything for [C1] to be proper and legal and for [Y] to be recognised legally as [C1’s] parent, as was always intended.”

21.In due course – this was all in 2014, before Theis J had given her important judgment – the District Judge made an adoption order. It was not a happy occasion for X and Y. In her report prepared for the present proceedings, C1’s guardian records their feelings:

“The description of that day was very emotional. “There were lots of other couples there celebrating. It was a special day for those families. It was a miserable day for us, a defeat, a horrible occasion.””

Having learned of the newer approach of the Family Courts, to fix the deficiencies in the process and make declarations of parentage which would achieve the legal status as the child’s parents without adoption, the couple sought advice and made an application to revoke the adoption order.

As readers of the blog will know, that’s a very rare application, and less than a handful of such cases have ever succeeded. Most reported attempts have failed.

22.The guardian’s report is insightful, empathetic and humane. It is a powerful and moving exploration of what has gone wrong:

“[The adoption] was an unwelcome, unwanted and intrusive process but one in which [Y] and [X] felt compelled to participate for they wanted legal certainty for [C1] and were told they had no other options. They are now, understandably, further distressed to learn that other remedies may have been available to them. They are seeking a Declaration of Parentage and a revocation of the adoption order. I unequivocally support their applications.

… The adoption application was made with great reluctance. Particularly cruel was having to hand in the original, and very precious, birth certificate. “We are private people. It was horrible having to talk to strangers about such a personal part of our lives. It was like being public property.” [Y] talked about being asked to leave the room by the Cafcass Reporting Officer who witnessed [X’s] consent. She described sitting in the kitchen and crying.”

23.The guardian comments that at no point in the process did anyone raise any queries about the unusual background circumstances or ask whether there might be a different route to securing parenthood for C1. She continues:

“[C1] now has a new birth certificate and a new status as an adopted child – something [Y] and [X] now know to be completely unnecessary, having been made aware that an alternative could have been made available to them … [They] feel a level of stigma about the adoption and an acute awareness of [C1’s] difference to [C2]. They are concerned that [C1] will worry about why [C1] was adopted and [C2] is not. They are concerned about how to explain this … They are upset and angry on [C1’s] behalf – and anyone hearing their account cannot help but be moved. “We are honourable, honest people. We believed the system and we did what we were told.” They are disappointed that other professionals at the time did not question the adoption process or suggest they seek alternative advice. They feel as if the adoption was entered into under false pretences. I consider their sentiments are both understandable and entirely justified and that [C1] should not have been adopted.”

24.Recognising that revocation of an adoption order is “a most unusual step”, the guardian is nonetheless unequivocal in her recommendations:

“However, from [C1’s] perspective, I can identify absolutely no need or justification for an adoption order, given that a realistic alternative would certainly have been pursued at the time had the parents received different legal advice … On [C1’s] behalf, I have no hesitation in recommending that the court revoke the adoption order and replace it with a Declaration of Parentage – the latter order being one that will equally meet [C1’s] welfare needs and interests. It will afford [C1] the permanence and security that all children should have, and will give effect to the legal relationship that had always been intended when the parents had the fertility treatment. It will remove the unnecessary stigma of [C1’s] status as an adopted child and afford [C1] parity with [C2].”

The guardian concludes with the hope that the original birth certificate be returned, this document having, as she says, “enormous significance” for X, Y and C1.

25.I wholeheartedly agree with the guardian’s observations and unequivocally accept her recommendations. For all the reasons she gives, C1’s welfare demands that the adoption order be revoked. Common humanity to X and Y demands the same. They have suffered very greatly from failings in the ‘system’. In the circumstances I have described, to deny them the relief they seek would seem an affront to justice. But does the law enable me to make the desired order? In my judgment, it does.

26.I have been taken to the authorities: see In re F(R) (An Infant) [1970] 1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182, In re F (Infants) (Adoption Order: Validity) [1977] Fam 165, Re M (Minors) (Adoption) [1991] 1 FLR 458, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 (affirming Re B (Adoption: Setting Aside) [1995] 1 FLR 1), Re K (Adoption and Wardship) [1997] 2 FLR 221, Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, Re PW (Adoption) [2013] 1 FLR 96, Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, and PK v Mr and Mrs K [2015] EWHC 2316 (Fam). See also, in relation to the revocation of a parental order made under section 54 of the 2008 Act, G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286.

27.There is no need for me to embark upon any detailed analysis of the case-law. For present purposes it is enough to draw attention to a few key propositions:

i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption) [2013] 1 FLR 96, para 1.

ii) The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, paras 11-12.

iii) However, “The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances””: Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 14, “public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so.”

iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378).

v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.

28.I bear in mind, also, two important observations that appear in the authorities. The first is the observation of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, page 251:

“The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.”

The other is that of Hedley J in G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, para 33:

“the adoption authorities show that the feelings of an injured party are not germane necessarily to consideration of an application to set aside. The hurt of the applicants in both In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 … and Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, was immeasurably greater than here and it availed them nothing.”

29.The present case is unprecedented, indeed far removed on its facts from any of the previously reported cases. The central fact, even if no-one recognised it at the time, is that when Y applied for the adoption order she was already, not merely in fact but also in law, C1’s mother. It follows that the entire adoption process was carried on while everyone, including the District Judge, was labouring under a fundamental mistake, not, as in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, a mistake of fact but a mistake of law, and, moreover, a mistake of law which went to the very root of the adoptive process; indeed, a mistake of law which went to the very root of the need for an adoption order at all. The entire adoption proceeded upon what, in law, was a fundamentally false basis.

30.Flowing also from this is that the consequence of an order revoking the adoption order will in this case be fundamentally different from in any of the other cases. There will be no uprooting of C1 from one set of parents and return to another set of parents; C1 will remain, as hitherto ever since birth, with the same people, the people who, to C1, as also to X and Y, are and always have been C1’s parents in every sense of the word, parents emotionally, psychologically, socially and legally. X and Y always intended to be, and in law always were, C1’s parents.

31.To make an order revoking the adoption order, as I propose to do, will not merely right a wrong; it will recognise a legal and factual reality and put an end to a legal and factual fiction, what Ms Fottrell rightly described as a wholly contrived position. And it will avoid for the future – and this can only be for C1’s welfare, now, into the future and, indeed throughout life – all the damaging consequences to which X, Y and the guardian have drawn attention. As Ms Fottrell put it, C1’s welfare will be better served by restoring the status quo ante and setting aside the adoption order. I agree. I can detect no convincing argument of public policy pointing in the other direction; on the contrary, in this most unusual and highly exceptional case public policy marches in step with justice to X, Y and C1; public policy demands that I make the order which so manifestly is required in C1’s best interests.

5 Comments

Posted in adoption, case law and tagged 2016 EWHC 2273 (Fam), case o (HFEA) 2016, declaration of parentage, failures of IVF clinic, IVF, overturning adoption order, president, revoking adoption order, sir james munby. Bookmark the permalink.

Important case regarding learning difficulties

Posted on January 18, 2016 by suesspiciousminds

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.

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?
Were the failings here attributable to the parents, or the support provided?
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)
Is a parent with learning difficulties treated differently (or discriminated against) than a parent with physical disabilities?
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?

11 Comments

Posted in adoption, assessment of risk, case law and tagged 2016 EWFC 1, can a parent meet the needs of this particular child, good enough parenting, learning difficulties, learning disabilities, president, president of the family division, re d a child no 3 2016, reparative care. Bookmark the permalink.

The ISIS flag is apparently not a red flag

Posted on December 18, 2015 by suesspiciousminds

The President has published his judgment in one of the “are parents taking children to join up with ISIS?” cases

This one he has previously given judgment on, and ruled that at an interim stage the children should return home to parents with the parents wearing electronic tags. The mother, and two other adult relatives, were arrested when attempting to board a flight to Turkey with their four children.

https://suesspiciousminds.com/2015/07/30/syria-children-and-electronic-tagging/

This one is the fact finding hearing, as to what the mother’s motivation was.

Re X (Children) (No3) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

First, let me recount the mother’s position at previous hearings (underlining mine for emphasis)

The mother’s case
An order made by Peter Jackson J on 22 April 2015 recorded the mother’s position as follows:

“The mother disputes that the threshold criteria is crossed. She says that she was intending to travel to Turkey with the children for the purposes of a legitimate family holiday. She says that although she understands why the Local Authority has intervened, her wish is for the children to be returned to her care as quickly as possible or for them to be placed with a member of their family. Once the children have settled in their current placement, she would also like to have increased contact with them so that this takes place more than twice per week.”
The mother disputed the local authority’s case as set out in the original Scott Schedule. Her position, as encapsulated in her response to the local authority’s allegation in paragraph 69 (paragraph 78 in the final Scott Schedule), was that “I am a practising Muslim. I do not regard myself as a radical fundamentalist and have no links or contacts with ISIS militants.”
The finding of fact hearing was at that stage listed to start before me on 29 June 2015. Shortly before, the mother’s counsel, Mr Karl Rowley QC, circulated a position statement on her behalf. This set out her position in relation to the findings sought by the local authority as being that:

“she does not seek to oppose the making of a finding that she was intending to attempt to enter Syria and live in territory governed by the Islamic State. That is not to say that she accepts the truth of the allegations but she does not wish to resist the making of findings on the balance of probability. In these circumstances she does not require cross examination of the local authority witnesses and does not wish to give evidence herself.”
That radical shift in her position gave rise to a certain amount of discussion in court when the hearing began on 29 June 2015. It was left that she would prepare and file a statement. The statement was circulated the next day, 30 June 2015. It represented another radical shift in her position. She acknowledged that she had not been fully open with the court and professionals. Her case now, in short, was (judgment, para 13) that:

“she had travelled to Turkey to meet up again with, and possibly marry, a man” – I shall refer to him as H – “she had met in this country collecting money for Syrian refugees and whom she understood to be a doctor in Turkey. She denied any intention of travelling to Syria and said “I do not agree with or support or favour anything ISIS do … and have no wish to be involved with ISIS in any way.””
That remains her stance.

The Local Authority therefore had to seek findings [again, underlining mine for emphasis]

The local authority’s case
As I have mentioned, the final version of the Scott Schedule is dated 17 October 2015 and now runs to 80 numbered paragraphs. Much of this sets out the “agreed context”. Paragraphs 13, 16-20, 22, 24-27, 32, 34b, 36-37, 39-44, 46-48, 51-53, 55, 57-76 and 78-80 contained the findings sought by the local authority which were disputed by the mother. In his final submissions, Mr Simon Crabtree on behalf of the local authority made clear that it no longer sought findings in relation to paragraphs 13-18.
The local authority’s case has seven strands, which can be summarised as follows. In support of its overarching case, the local authority relies upon what it asserts were:

i) The mother’s acquaintanceship with various individuals who, it is alleged, had travelled via Turkey to Syria in 2014 to take up arms with ISIS militants (paragraphs 19-27).

ii) Lies the mother told the children’s schools on 27 February 2015 about the reasons for their forthcoming absence from school (paragraphs 28-33).

iii) The fact that when stopped at the airport on 2 March 2015 the mother gave a false address (paragraphs 36-37).

iv) The fact that the family’s luggage, when searched at the airport, was found to contain a number of suspect items (paragraphs 39-48); as it is put (paragraph 39), “a large number of items^[1] not normally associated with any family holiday.”^[2] It is asserted (paragraph 48) that “There is a striking similarity between the items contained in the … luggage and a list of items a known ISIS operative asked a British recruit to bring to Syria with him (and in connection with the same the said recruit was found guilty of possessing items of use to terrorists).”

v) The fact that, when her house was searched, the items found included (paragraphs 76-77) “ISIS flags” and ‘to do’ lists, written by the mother, “which indicated that the writer of the list was moving and not intending to return.”

vi) The fact that the mother lied to the police when being asked the purpose of their trip (paragraphs 49-55). She described (paragraph 51) “a multi-faceted trip involving a combination of an adventure holiday, culture, sight-seeing and relaxation.”^[3]

vii) The fact that the mother’s most recent account, as I have summarised it in paragraph 10 above, is a lie (paragraphs 56-65).
This last part of the local authority’s case is further elaborated as follows:

i) It is said that she met no man in the circumstances she described or at all (paragraph 62). She has (paragraph 63) “manifestly failed to provide any tangible evidence as to his existence and cannot even produce a photograph of him, any contact details or even one of the electronic communications which she claims passed between them.” Furthermore (paragraph 64), “In so far as that man is not a point of contact she had in Turkey for another reason, he is a figment of her imagination.”

ii) As a separate point, it is said (paragraph 59) that, if her account was true, “it would reveal a mother who was unable to place her children’s needs before her own and that she was prepared to sacrifice her children’s stability, all they knew and their relationship with their father so that she could fulfil her own desire for a relationship with a man she hardly knew.” Furthermore (paragraph 60), if it was true “the extent of her intended folly is revealed by the fact that this man has literally disappeared without trace and left the mother unsupported at a time she needed it most.”

iii) It is alleged (paragraph 65) that “She has in essence, weaved this account around the notes secreted in the children’s underwear to try to explain away the manifest inherent improbabilities in her first version of events at the eleventh hour and in the face of a growing realisation that no Judge would on the totality of the evidence believe that first account.”
The local authority’s case is summarised as follows (paragraphs 66-74):

“The reality is, the mother, her own mother and her brother had no intentions of remaining in Turkey.

They intended to travel with the children from Istanbul to the Turkish border with Syria.

Once they crossed the border into Syria, they intended to join up with ISIS militants and to supply them with items of use to the group’s combative activities.

In all probability, they also intended to meet up with those … who had already travelled … to Syria via Turkey.

In essence, the mother’s plan was to take these children to a war zone.

As such, she knowingly and intended to place the children at risk of significant harm.

The sole purpose and intention was … to cross the border into Syria and take up arms with ISIS militants and/or live in the Islamic caliphate ISIS claims to have established in the region for the foreseeable future.

[Neither] she nor [her brother] had any intention of returning to [her house].

That is why she suddenly found the money to buy the above electronic equipment which with one exception she financed on credit in February 2015 and why [her brother] paid for the trip using a £12,000.00 loan.”
In conclusion, the local authority asserts (paragraphs 78-80) that:

“In short, the mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause.

Although she is arguably entitled to have whatever view she chooses, she is not however entitled to place her children at risk of significant harm or even death in furtherance of such a cause.

In furtherance of her aims and objectives, [she] is and was prepared so to do and to lie with impunity to conceal her real intentions and motives.”

Bearing in mind the two underlined passages, you may be surprised to learn that the President ruled that the threshold was not met, and the children are now living with mother under no statutory orders at all.

I have to say that mum’s counsel did a blinding job, but it is still a surprising outcome, on my reading.

What about the ISIS flag though?

Thirdly, he submits that the local authority has failed to show that the material recovered from the mother’s home was indicative of her holding such views or being sympathetic to ISIS. The flag is one that has been adopted by ISIS, but it contains the shahada and seal of the Prophet Mohammed, both of which, he says, are important symbols which all Muslims share. The local authority, he correctly points out, has failed to adduce any evidence to disprove the proposition that the flag predated the al-Baghdadi Caliphate, and the mother’s case that she received it from a bookshop some 12 years ago as a gift has not been seriously challenged.

[See, I’m NOT a Neo-Nazi, I’m just a collector of flags designed by dentists…]

Although the President was not satisfied with mother’s account, the burden of proof was on the LA and he was not satisfied that they had made out their allegations

The first point to be made is that, on her own admission, she is, even if she cavilled at the appropriateness of the label, a liar. The contrast between her original case, as I have summarised it in paragraph 7 above, and her revised case, set out in paragraph 10 above is obvious. If elements of her first story have been carried forward into the second, the two are nonetheless so fundamentally different that one or other must be essentially untrue. This is not mere suggestio falsi et suppressio veri; it is simply the telling of untruths, in plain terms lying. The notes to the schools were, on any basis, and wherever the ultimate truth in relation to the trip may lie, false to the mother’s knowledge. Mr Rowley characterises them (paragraph 66) as “ill-advised”. I cannot, with respect, agree. They involved the deliberate uttering of falsehoods. I am also satisfied, and find as a fact, that the mother did indeed give a false address when questioned by DS SH. And the allegations she made in the witness-box against the police were, in my judgment, and I so find, utterly groundless. On matters of fact I accept the evidence of each of the police officers. I cannot accept Mr Rowley’s submissions on the point (paragraph 68).
As we have seen, the mother put herself forward at the hearing as now being completely open, honest and frank. Was she? I am not satisfied that she was. I am unable to accept what she is now saying merely because she is saying it. Some of it may be true. About much of it I am very suspicious. Some of it may well be, in some cases probably is, untrue. But the fact that I am not satisfied that the mother was telling the truth, the fact that I am very suspicious, does not mean that I find everything she said to be a lie. And, as I have already explained, the fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
Be all that as it may, the plain fact is that the mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I am not satisfied that she is being now.

….

So where, at the end of the day, am I left? There are four key matters, in my judgment, which preponderate when everything is weighed in the balance, as it must be:

i) The mother is a proven liar. The mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I not satisfied that she is being now.

ii) H (if that is his true name) is someone known to the mother and who has some connection with Turkey. The mother has wholly failed to persuade me, however, either that she met H in the circumstances she describes, or that their relationship was as she asserts, or that the role (if any) he was to play in Turkey was as she says. I am unable to accept her as being either a reliable or indeed a truthful witness. The mother, in my judgment, has not proved her case in relation to H.

iii) The mother is an observant Muslim, but the local authority has been unable to prove either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist.

iv) The luggage contained a significant number of items which cry out for explanation in circumstances where the only explanation proffered by the mother is tied to her story about H which, as I have already explained, I am unable to accept.
It is for the local authority to prove its case. The fact that the mother has failed to persuade me of the truth of her case, in particular in relation to H, does not, as I have already explained, absolve the local authority of the requirement that it prove its case. And, for reasons I have explained and which Mr Rowley appropriately relied on, I must be careful to remember the Lucas point when I come to consider the inferences I can properly draw from the fact, to the extent I have found as a fact, that the mother has lied. The fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion. At the end of the day the question is whether in relation to each discrete part of its case, the local authority has established on a balance of probabilities, applying that concept with common sense, the proposition for which it contends.
Standing back from all the detail, and all the arguments, there are, at the end of the day, two factors of particular importance and which, unhappily, point in opposite directions. The mother, for her part, has not proved her case in relation to H, with the consequence that the only explanation she has proffered for the presence of various significant items in her luggage falls away. The local authority, for its part, has not proved either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist. Weighing these and all the other matters I have referred to in the balance, I am left suspicious of what the mother was really up to but I am unable to conclude that the local authority has proved any part of its case as set out in paragraphs 66-73 and 78-80 of the Scott Schedule.

It is very difficult to successfully appeal a finding of fact (the Court of Appeal vacillate from time to time as to whether you even CAN – because technically you appeal an order, not a judgment. In this case, the President did make an order – because he made NO order on the care proceedings or Wardship application, so the LA can appeal that). The Court of Appeal are very mindful that on a finding of fact hearing the Judge has the advantage of hearing all of the evidence and seeing the demeanour of the witnesses, so are reluctant to interfere.

Having said that, I’d appeal the hell out of this one. The order (which one presumes would have the effect of removing the electronic tags) is stayed until 18th December (oh, today), so we will soon find out whether an appeal has been lodged.

There’s a lot in the judgment about the contents of the luggage – the President kindly sets out the matters in a footnote. As indicated above, the President was not satisfied with either the mother’s account (of either a holiday, or that her new boyfirend H had wanted these things) or that the LA had proved that these matters amounted to evidence that mother intended to join up with ISIS

Note 1 Including, it is alleged, 9 battery powered or other powered torches, 4 hand-wound torches, 3 solar charger units or power-packs, 4 emergency blankets, 3 new and 2 used rucksacks, 5 mobile phones in excess of the 3 mobile phones chargers carried by the group as a whole, unused computer equipment comprising 6 machines (including 3 identical Samsung devices) and 5 chargers, 3 unused sim cards, 5 Multi-tools devices and power converters etc, what is described as “a large quantity of substantially if not entirely new size ‘large’ and ‘extra-large’ outdoor clothing including coats, waterproof bottoms, breathable t-shirts, gloves and so on”, what is described as “a large amount of medication and panty-liners and tampons”, and “telephone numbers, e-mail addresses and passwords … found on pieces of paper secreted in the children’s underwear in one of the suitcases.”

Note 2 It is further said (paragraph 42) that “By contrast, the luggage did not contain outdoor clothing of a sort which might have been associated with an adventure or camping holiday for (amongst others) 4 children”, (paragraph 43) that “Although there was a large quantity of large and extra-large outdoor clothing there was bar one piece, an absence of such clothing in sizes that would fit any of the children and in particular, X1”, and (paragraph 44) that “Those and most of the other supposedly camping equipment was or appears to be completely new.”

14 Comments

Posted in assessment of risk, case law, international and tagged appeal, electronic tagging, isis, president, radicalisation, re X children no 3 2015, sir james munby, stay, taking children to syria. Bookmark the permalink.

Tag, you’re it

Posted on August 6, 2015 by suesspiciousminds

A follow-up from last week’s case involving a decision that children whose parents were suspected of intending/attempting to take them to Syria to a war zone should be at home with the parents, with the parents being electronically tagged to prevent a recurrance.

You may remember that during that piece, I expressed some reservations about how the scheme would operate and who would pay for it.

Well, part two of

X and Y (children) No 2 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

raises that particular question and then doesn’t answer it.

The answer is, that in THIS PARTICULAR CASE but not other future ones, the Ministry of Justice agree to pay.

By the time the matter came on for hearing before me on 3 August 2015, Mr Alex Ustych, on behalf of MoJ, was able to tell me on instructions that it would take approximately a fortnight to put all the arrangements in place for GPS tagging. He was also able to say that, having considered its position further since filing its submissions, MoJ was willing, if I took the view that there should be GPS tagging, to meet the cost in this case without having recourse to any of the parties for any payment.
That, as he made clear, was entirely without prejudice to MoJ’s position as I have summarised it in paragraph 2 above, and is not to be treated as a precedent in any future case. In particular, the fact that MoJ is willing in this case to agree to meet the cost does not mark any departure from its fundamental position that the court has no power to order MoJ or NOMS (or, I assume, EMS) to bear the cost of providing GPS tagging.

You may have picked up the not comforting crumb that it will take a fortnight to get the tagging sorted out.

So what about future cases? Well, it seems fairly plain that the MOJ would at the very least want to have an argument about it, and as we learned from the Court of Appeal decision about whether the President’s suggestion that the MOJ/HMCS should pay for costs of a litigant where article 6 would be breached (no statutory power, so no thanks) they might well win there.

Can the costs be split between the parties? Well, if you were a solicitor for the parents or child, there’s no way on Earth that you are writing that cheque without the Legal Aid Agency agreeing. And I am certain that they won’t. Putting a tag on a parent can in no way be construed as an assessment of the parent. What are you assessing? Whether they will run away if there is an electronic device that prevents them from doing so?

If you want an expert to assess that, I am available to conduct the assessment. It will be a very fast turnaround, and my report will consist of the words, “No, they won’t. I don’t know what they will do when you take the tags off”

So, that leaves the good old Local Authority. Well, what’s sauce for the MOJ goose is sauce for the gander too. Please find me the statutory power that allows the Court to order the Local Authority to pay for electronic tagging. I don’t mind waiting.

I’m afraid that the very next Local Authority who have to go to Court because children in their area have been involved in an attempt to take them to Syria are going to have to go through this entire argument all over again.

And I will add in another argument – it is still really unclear what would happen if one or both of the parents does not consent – is there a proper statutory basis for an interference with their article 5 rights? It is probably easier if both refuse, because then the children just can’t be placed with them, but if one says yes and the other says no? tricky.

If you WANT to enter into this arrangement, the President does set out a very useful template order.

4 Comments

Posted in case law, international and tagged article 5, electronic tagging, isis, president, re x and y children no 2 2015, sir james munby, syria, who pays for electronic tags. Bookmark the permalink.

Syria, children and electronic tagging

Posted on July 30, 2015 by suesspiciousminds

In what has been a challenging month, I have to confess that my heart sank right into my boots when I saw Sir James Munby, President of the Family Division, had published a judgment about Emergency Protection Orders. I’m still recovering from Re X, his last major contribution to this legal domain, and that was nine years ago.

But Re X (children) and Y (children) (Emergency Protection Orders) 2015 http://www.bailii.org/ew/cases/EWHC/Fam/2015/2265.html

[Weird, the link doesn’t seem to be working. Try again

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2265.html ]

is not actually about expanding the fourteen point guidance into a two-hundred and nine point guidance, so you can read on without fear or dread.

Note, I am lying. This is a judgment from the President. Have you ever seen a judgment from the President that made a Local Authority lawyer happy? If I wrote the Top Ten list of case-law that had made my job harder, the President’s fingerprints would be on seven of them – going right back to seven days a week contact. This does not buck that particular trend.

It is one of the cases where a family are accused/suspected/found (delete as relevant to the particular case) of trying to take their children out to Syria to join up with ISIS (or whatever David Cameron thinks that we should call them this week), and what the State can do about it.

At the moment, this responsibility rests on the shoulders of Social Services and the Children Act 1989, and Parliament is more than welcome to produce some proper legislation that takes that off us and gives it to someone else, any time now.

A lot of this case is very factual about the circumstances, and I daresay that it will be very helpful to all the LA’s who are making applications to Court about such families.

[I have always wondered where the families go after that EPO. If a Court has ruled that you intended to take your child into a warzone and join up with terrorists and removes the child, what sort of assessment gets you the child BACK at the end of the final hearing? Aren’t the EPOs basically determinative of final outcome? Well, that was the thrust of this case, whether there was some sort of arrangement that would allow the children to be back in the parents care with some form of cast-iron guarantee that they would not leave the jurisdiction. The important thing to remember here is that the Court had not conducted a finding of fact hearing about the parents intentions and plans and thus what risk the children were at – they had just determined that there were REASONABLE grounds to believe that the children were at risk of significant harm requiring interim protections]

However, the President would not be the President if he didn’t try to stretch the law a bit, and so that’s the point of interest. [Occasionally, the President’s approach to the law reminds me of the year at school where all of us were given a brand new white plastic ruler to replace the wooden ones – the rulers were each labelled “Helix – Shatterproof” , an ill-thought out boast, which led to all of us industriously breaking them that very morning to demonstrate that they were not in fact Shatterproof. I say ill-thought out, but of course, the school had to get on to Helix and order another 250 that same day, so for Helix it was a profitable claim]

Thinking about the cases over the intervening weekend, it occurred to me to think about the possibility of electronic tagging. Accordingly, on 5 July 2015 I sent the following email:

“I am sending this email to the advocates in both … cases. Please make sure that it is communicated as soon as possible to all concerned.

It has occurred to me to wonder whether in these cases it may be appropriate to consider the making of electronic tagging orders: see Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, and Re A (Family Proceedings: Electronic Tagging) [2009] EWHC 710 (Fam), [2009] 2 FLR 891 (setting out a form of order).

Could counsel please consider this possibility.”

This time there are precedents (though fairly obscure ones, which I had to go and read). They relate of course to the powers under the Child Custody and Abduction Act 1985. Those powers aren’t exactly delineated to require someone to submit to electronic tagging, but in the modern era of law as they don’t say that they DON’T give that power, it could be interpreted thus

5 Interim powers.

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

Of course here, though, there is not an application before the Court under the Convention. These are EPO applications, governed by the Children Act 1989. It is beyond my working knowledge to consider whether an attempt by the persons who hold PR (when there are no Children Act 1989 orders) could find themselves foul of the Child Custody and Abduction Act 1985 (if everyone with PR agrees that the children will go to Syria, who are the children being abducted FROM?). It would be different if the Court had made Children Act 1989 orders, or were seised with such an application, since there’s authority to say that the Court can go on to make orders compelling the children’s return to the jurisdiction.

Anyway, let’s see what the President does with the idea of electronic tagging.

It is worth noting that the parents were keen on the idea – because it was obviously their best shot of having the children returned to their care – this being a case where the Court had not found any evidence that the children had been exposed to radicalisation. So the Court did not have to consider whether there was power to impose it on the family. (Mr Rowley and Miss Woodward were counsel representing the parents)

Mr Rowley and Miss Woodward take as their starting point the fact that, the precipitating events apart, the parents are, in other respects, good parents who are bringing up their children lovingly and well. Although it would seem that all the children are doing as well as might be expected in foster care, there is no doubt that they are missing their parents very much and that they are, in consequence, suffering harm. In these circumstances Mr Rowley and Miss Woodward question both the necessity and the proportionality of the children remaining in foster care. Their safety, both physical and emotional, can, it is submitted, properly be met while the children remain at home; their safety, whether physical or emotional, does not necessitate their remaining in foster care.
In the final analysis, say counsel, my task is to evaluate the risk of harm deriving from the possibility of flight and balance that against the undoubted harm the children are suffering because of continued separation from their parents. Given the adequate safeguards against the risk of fight which they assert can be put in place, the balance, they submit, comes down in favour of returning the children to their parents.
Both local authorities are clear that they feel unable to exercise the parental responsibility vested in them by the interim care orders unless the children remain in foster care. That being so, Mr Rowley and Miss Woodward say that the appropriate order is, in each case, an order discharging the interim care orders, making the children wards of court, and placing them in the care and control of their parents, subject, however, to a raft of stringent protective orders.
What Mr Rowley and Miss Woodward propose is in each case an order containing: passport orders in the usual wide-ranging form and an all-ports alert; injunctions restraining the parents removing the children from the jurisdiction and requiring them to live with the children at a specified address; and provisions for the monitoring of the parents and the children by a combination of unannounced visits by the local authority, regular reporting to a specified police station or local authority office and, in the case of the parents, electronic tagging. It is proposed that the order should include a provision requiring the parents to swear on the Quran that they will abide by each and every provision of the order and that the order should spell out the consequences (including but not limited to committal for contempt of court) in the event of any non-compliance.
There is no need for me to consider whether I would have power to impose such orders on unwilling or recalcitrant parents, for all the parents here are willing to submit to whatever restrictions, including electronic tagging, I think it necessary to impose for the safety of the children. That said, I am inclined to agree with the views expressed by Singer J in the passage from his judgment in Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653 , para 46, which I refer to below.
Mr Rowley and Miss Woodward realistically accept that, however stringent the protective measures which might be put in place, there will always be some risk that the parents will be able to flee with the children. But they counsel me against being too concerned by remote or fanciful possibilities. An order the court makes is not, they submit, to be measured by the standard of certainty or infallibility but by reference to what Mr Rowley called real-world possibilities. Judged by that standard, he says, the risk is slight indeed, in reality reduced to an effective nullity if the parents are, as they propose, subjected to GPS electronic tagging (as to which see below).
To get the children to Syria, he says, the parents would: have to cut the tag (thereby triggering an immediate alarm), having made arrangements to travel immediately to a point of exit from the United Kingdom; have to evade detection while in transit there; have to evade detection at the point of exit despite their being in a family group, the all-ports alert, and publicity about them being on the run; have to be able to pass through the immigration controls of a second country without detection; and have to be able to cross from that country (or some third country) into Syria. Whilst he accepts the possibility that the parents have the connections and means to achieve all this, Mr Rowley disputes that there is any evidence upon which I could reasonably infer it.
More tellingly, perhaps, Mr Rowley makes the point that if the parents do indeed have the means to achieve this, the children are not safe in their foster placements. For if they have the resourcefulness and determination postulated by the local authorities and the guardians, the parents would by the same measure be able to track the children down and abduct them. The reality, he suggests, is that nothing short of actual incarceration of the children would ensure the complete eradication of all risk of their being removed to Syria. In truth, he says, the local authorities and the guardians are prepared to countenance a level of risk in the present placements while requiring from the proposed placements with the parents the certainty that all risk has been eradicated.

Mr Rowley (and no doubt Miss Woodward) go high up on my list of people who have been able to develop a compelling argument from unpromising beginnings. They manage to make the parents position sound completely reasonable and the Local Authority’s anxieties utterly unreasonable. In an atmosphere where the pulbic concern about terrorisim and children going to Syria could not be higher. That takes some skill. One has to remember, of course, that the Court had not conducted any finding of fact hearing about the circumstances and intentions of the parents in making those trips or plans for the trips.

To Local Authority lawyers, I’m sorry that I wrongly suggested that you could read this judgment without dread. Of course you know what is about to happen now.

The law, even the criminal law in the days of capital punishment, has never adopted a standard of absolute certainty or infallibility. So the mere fact that there is, as Mr Rowley and Miss Woodward accept, some risk that the parents will, if so minded, be able to flee with the children, the fact that it is no doubt possible to construct hypothetical scenarios of how they might achieve this, is not determinative of the question I have to decide. That question, in the final analysis comes down, in my judgment, to two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?
Given the potential consequences if the parents, being minded to flee with the children, were able to achieve their objective, it seems to me that what the court needs is a very high degree of assurance, albeit falling some way short of absolute certainty, that the protective measures put in place will be effective to thwart any attempted flight. This is ultimately a matter for judgement and evaluation, in relation to matters, in particular those dealt with DS Y, DS Z and Mr Fearnly, which I am in as good a position to assess as any of the social workers or guardians, none of whom can bring to this particular exercise in evaluation either professional training or (as they all accepted) any previous experience of any remotely comparable case. Accordingly, I have to come to my own conclusion, though obviously feeding into my overall evaluation the expert views of the social workers and the guardians as to the impact on the children of their continuing separation from their parents.
At the end of the day, and having given the matter the most anxious thought both during and since the two hearings, I have concluded that the comprehensive and far-reaching package of protective measures proposed by Mr Rowley and Miss Woodward does provide the necessary very high degree of assurance that the court needs, that I need, if the children are now to be returned to parental care. Taking into account all the points pressed upon me by those opposing such an order, I am at the end of the day persuaded by Mr Rowley and Miss Woodward that I should make the orders they seek, and essentially for the reasons they have articulated.
I accept that there is some degree of risk of successful flight. I cannot go quite as far as Mr Rowley when he asserts that it is reduced to an effective nullity by the protective measures he proposes, but taking a realistic view, though not forgetting that we are here in the realm of unknown unknowns, my considered assessment is that the degree of that risk is very small, indeed, so small that it is counter-balanced by the children’s welfare needs to be returned to parental care. I should add, to make plain, that in relation to their welfare (leaving flight risk on one side), the benefits all of these children will derive from being returned to their parents clearly, in my judgment, outweigh any and all of such contrary welfare arguments as have deployed by the local authorities or the guardians. Conclusion
I shall therefore make orders essentially in the terms proposed by Mr Rowley and Miss Woodward. The orders will contain the additional provisions proposed by Mr Crabtree and Mrs Crowley. The orders will spell out that nothing is intended to prevent the police exercising any powers which would otherwise be available to them, including, in particular, their powers under section 46 of the Children Act 1989. I invite counsel to consider two further matters: whether the proposed oaths on the Quran should be sworn before a notary or an imam, and what, if any, provisions should be included in the orders to enable the relevant local authority to remove the children in an emergency if there has been some breach of the order and there is no time to apply even by telephone tothe duty judge. I am inclined to think that the local authorities should have that power, but strictly confined to circumstances of emergency and subject to an unqualified obligation to make an application to the court immediately

The judgment then goes on to set out the protocol for such matters. It will, I’m sure, calm the nerves of every social worker who is now going to be driven to leave children like this at home under the protection of their parents wearing electronic tags that the tagging system is provided by Capita, whose record is flawless.

I am perhaps missing what actually stops these children’s uncles or cousins taking them to Syria if it is the parents who are tagged? Yes, the parewnts would be stuck her to face the music, but how great a feature is ‘fear of the consequences’ a major inhibitor to terrorism? I have always rather missed how one is to stop these things happening if the parents book a package holiday to Turkey and then just travel onwards once they are out there. Are we going to stop all families going to Turkey on holiday? Or only those who are on some sort of Watch list? And if only those on the Watch list, given that social workers don’t have access to that, how are they supposed to intervene?

Whilst of course, it can’t be imposed on a parent, I’m sure they will be queuing up to agree to it.

The judgment of course does not set out who will be paying for the tagging and monitoring, but we all know that it will be the Local Authority (or under what power the Court is apparently imposing this expense on the LA – it will be the theoretically limitless powers of the inherent jurisdiction, if anyone ever challenges it)

I wonder how any parent facing an ICO hearing for neglect, or consumption of alcohol will feel, knowing that they too are meeting the same “Reasonable grounds to believe” test as parents of this type, but that parents suspected of taking their children to join a warzone will keep them at home with electronic tags, whereas they may be separated from their own children.

Where exactly is the bar for removal under Interim Care Order, if a case like this isn’t over it?

And if tagging works in the interim, what stops these children being tagged for the remainder of their childhood at final hearing, even if the allegations are proven to be true?

29 Comments

Posted in assessment of risk, case law, fact finding and tagged child custody and abduction act 2005, children being taken to syria, electronic tagging, emergency protection order, interim care order, president, president of the family division, separation of child and parent, sir james munby, syria, tagging of children, wardship, x and y 2015. Bookmark the permalink.

Local Authority lawyers should grow a pair

Posted on July 10, 2015 by suesspiciousminds

This post contains 95 per cent of your Recommended Daily Allowance of Sarcasm and 119% of your Recommended Daily Allowance of Dopiness

Well, it isn’t quite put like that, but it isn’t far off. I appreciate that for a substantial amount of my compatriots, it isn’t even biologically possible.

You see, it turns out that the adoption statistics are our fault. We all knew that there was about to be a blame game (heaven forbid that anyone should even consider whether the direction of travel might be a good thing, or a bad thing or a neutral thing before embarking on the blame exercise), but it turns out that the finger points at Local Authority lawyers, who, as I say, are going to be told to ‘grow a pair’

[Even though I speculated today that the next judicial edict would be that the LA final evidence must be written in iambic pentameter and rather than being typed, the social worker would have to sew it using cross-stitch, this rather surprised me. “It turns out that the Bayeux Tapestry was really just contact notes”… I fully anticipate that Dallas PD will be questioning all Local Authority lawyers about JFK shortly]

Martin Narey, Adoption Czar (or is it Tsar? I can never remember, but it always does remind me that the career trajectory of Czars and Tsars, both in historical leader sense and in political oversight sense hasn’t been that stellar) has given a speech at the Association of Directors of Children’s Services.

He is thus talking to the uber-bosses of all social workers, the capo del tutti capi of social workers.

Whilst I’m not the largest flag-waving champion of Mr Narey, and I’m unlikely to ever make his Christmas card list, I will give credit where it is due. He has put that speech up online, so that people can read it. He didn’t HAVE to do that, so good on him for doing it.

Flag is going back in the cupboard now.

Adcs speech july 2015 from Sir Martin Narey

It isn’t really surprising that he opens with a discussion about the adoption statistics. To be fair (oh, flag coming back out), if you’re the Adoption Czar and there’s a big political drive to get adoption numbers up, then when they absolutely tank, you’re BOUND to want to do something about that. If you don’t, then you’re sort of redundant. Probably literally as well as figuratively.

Mr Narey refers to the drop being a result of two major Court decisions, Re B and Re B-S, and reminds us all that he helped to produce a Myth-Busting document that picked up a lance and slew the dragon of misconception, so these adoption figures should recover, thanks to his intervention.

He talks about the number of ADM decisions for Placement Orders to be sought going down 52% last year, and he says this (If I’m crabby here, it is only PARTLY because I can’t cut and paste from his slides and have had to type the whole thing out. Only PARTLY)

“But these are not as a result of the Courts rejecting Placement Order applications in vast numbers. The drop is overwhelmingly explained by a drop in Local Authority Placement Order applications. They have dropped from 1,830 to 910, a decrease of almost exactly half.

Unless you believe that all those adoption decisions you made last year were not in the interests of those children, I urge you to ensure that your social workers and lawyers have not lost their nerve, and the President’s exhortation that you must follow adoption when that is in the child’s best interests is followed. If current figures do not recover, then over time, we shall see adoption numbers drop back very substantially indeed.

I don’t think adoption can ever be suitable for other than a minority of children in care. But I think that minority is probably more than 5,000 or just 7% of the care population”

Well, where to start?

As an argument “Unless you believe that all those adoption decisions you made last year were not in the interests of those children” so get out and make some more – ideally 50% more , leaves a lot to be desired. Firstly, it is an emotive appeal. Secondly, saying ‘If you think all those cases where you recommended adoption, you were right’ inexorably leads to ‘a lot of the ones where you didn’t, you must be wrong’ is some strange use of logic that I’m not familiar with. Of course ADMs who make a decision that adoption is the right plan for a child do so believing that this is in the best interests of the child. But why on earth should that mean that they were wrong with those that they rejected?

That’s like saying “remember all those times you bet on Red in the casino and you won? Well, forget about the times that you bet on Red and lost, or you bet on Black and won, clearly betting on Red is the right approach. Go heavily into Red. “

Next, if you think that Local Authority lawyers have lost their nerve, then you need to get out in the trenches with us. There has NEVER been a harder time to be a Local Authority lawyer. I don’t say this to garner sympathy (I know that many of my readers think that lawyers, and LA lawyers in particular, are the devil incarnate – they are wrong, it is just me), but it is the truth. It is breathtakingly offensive to say that we have lost our nerve.

Nor have social workers.

Perhaps the Adoption Tsar doesn’t know that actually, a lawyers’ job is to give advice but take instructions. We don’t EVER say to a social worker that they can’t put forward a plan of adoption or ask the Agency Decision Maker to approve that plan. We tell them whether or not such a plan is likely to succeed in Court, and we tell them what the strong and weak points of their case is, and we give them advice on what they can do to improve the weak points and how to present their evidence in the way that the Courts now require.

What we do not do, is advise the ADM “you should approve adoption here” or “this isn’t an adoption case”. Even back in the days of Adoption Panel, where a lawyer sat in the same room as the Panel when they made the decision about whether it was an adoption case or not, we didn’t get to make any representations about it or to vote. Our role was, and still is, limited to giving advice on any legal issues that arise, not to advise the ADM on the merits or otherwise of the case.

Mr Narey’s argument here is presumably, theat if Local Authorities had asked the Court to make 1,830 Placement Orders after Re B-S, the Court would have made them. (And perhaps if we’d asked for 4,000, the Court would have made them too).

The reason the adoption statistics dropped was because we were stupid and didn’t understand Myth-Busting ! (TM) or because we were too timid to ask the question – social workers and Local Authority lawyers have been metaphorically teenagers who want to ask someone out but end up not being able to get a word out when we are near the subject of our affections. What Mr Narey is saying to us is “Hey, that person you like is TOTALLY into you, and they would TOTALLY say yes if you asked them to go to the pictures with you”

It is of course telling that with that 52% drop in applications for Placement Orders, I have not heard of a SINGLE case where a Judge seized of all of the facts and evidence, said to the Local Authority “I cannot believe that you are putting forward a plan that doesn’t involve adoption here, I really think that you should reconsider” , or given judgments that say “none of the options put forward for this child are sufficient to safeguard their well-being, and I adjourn the final hearing so that matters can be reconsidered”

I think that it is interesting that whilst this speech makes great play of the President’s decision in Re R, and even quotes from it approvingly, it misses out two really major elements of Re R.

The first is this one:-

in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.’

[And to save you flipping back to Re B, that, precisely, is THIS

para 198: “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”

para [215]:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.” ]

If a Judge makes a Placement Order without engaging with that test, the judgment will be deficient. If a Local Authority present their case without striving to meet that test, their evidence will be deficient.

The Court of Appeal in Re R also made it plain that all of the stipulations laid down in Re B-S about the quality of the evidence, the need for robust and rigorous child-specific analysis of all of the realistic options and the Court not proceeding in a linear manner still stand.

The second omission is of course,

On 11 November 2014 the National Adoption Leadership Board published Impact of Court Judgments on Adoption: What the judgments do and do not say, popularly referred to as the Re B-S myth-buster. This document appears to be directed primarily at social workers and, appropriately, not to the judges. It has been the subject of some discussion in family justice circles. I need to make clear that its content has not been endorsed by the judiciary.

I have set out before, here, what the Court do and do not say in Re R http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back

As I said in that piece, the ‘myths and misconceptions’ that the Court of Appeal were slaying were the ones that nobody actually believed were right – even the lawyers advancing those claims that “Re B-S means that if the positives and negatives aren’t set out in tabular form, adoption must be rejected” didn’t actually believe what they were saying. (It’s one of the advantages of being a lawyer, you don’t have to believe what you are saying in order to say it…)

Mr Narey is quite right that the Court of Appeal are clear that where the only option that will meet a child’s needs is adoption, that’s the order that should be sought, and the Court will adjudicate on it. If the social worker thinks that of all of the realistic options, adoption is the only one that can meet the child’s needs, then they can and should go to the ADM to seek approval of that plan. And likewise, if the ADM thinks that, then they can and should approve the plan. And likewise, if the Court conclude that, they can and should make the adoption order.

That is encapsulated by this passage

‘[44] … Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.’

If a social worker, or an ADM think that this test is made out, then there’s no reason at all why they shouldn’t put forward a plan of adoption. It might be that when the evidence that lead them to think that is tested in the burning crucible of cross-examination, it is found wanting, but that’s how litigation works.

I can’t help but note that Mr Narey in his speech quotes a section of the President’s judgment from Re R [what he doesn’t do is quote all of the bits in italics are a key part, which rather change the meaning if you ENTIRELY miss them out]

It is apparent, and not merely from what Miss James and Miss Johnson have told us, that there is widespread uncertainty, misunderstanding and confusion, which we urgently need to address.

[41] There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’, that ‘adoption is a thing of the past.’ There is a feeling that ‘adoption is a last resort’ and ‘nothing else will do’ have become slogans too often taken to extremes, so that there is now “a shying away from permanency if at all possible” and a ‘bending over backwards’ to keep the child in the family if at all possible. There is concern that the fact that ours is one of the few countries in Europe which permits adoption notwithstanding parental objection is adding to the uncertainty as to whether adoption can still be put forward as the right and best outcome for a child.

[42] There is concern that Re B-S is being used as an opportunity to criticise local authorities and social workers inappropriately – there is a feeling that “arguments have become somewhat pedantic over ‘B-S compliance’” – and as an argument in favour of ordering additional and unnecessary evidence and assessments. It is suggested that the number of assessments directed in accordance with section 38(6) of the Children Act 1989 is on the increase. It is said that when social worker assessments of possible family carers are negative, further assessments are increasingly being directed: “To discount a kinship carer, it seems that two negative assessments are required.” There is a sense that the threshold for consideration of family and friends as possible carers has been downgraded and is now “worryingly low”. Mention is made of a case where the child’s solicitor complained that the Re B-S analysis, although set out in the evidence, was not presented in a tabular format.

[43] We are in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice ‘on the ground’, but they plainly need to be addressed, for they are all founded on myths and misconceptions which need to be run to ground and laid to rest.

[44] I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.

I appreciate, space is at a premium and when you’re giving a speech you don’t necessarily want to quote great chunks of a judgment, but when you quote as selectively as this, you are turning a passage in a judgment that is saying that where really ridiculous arguments about Re B-S are being used, those are fallacies into something which suggests that Re B-S says nothing of any consequence at all. It is just plain misleading.

Ignore for a moment the “nothing else will do” formulation (although, as outlined above, it is still good law, just not in the ludicrously over-literal way that the Court of Appeal were initially using it). These are the other changes in child protection law and adoption law since Re B.

1. The test for an appeal Court is now whether the Judge was “wrong” and not whether the Judge was “plainly wrong”. That is a substantial change, and makes the risk of being appealed in a judgment notably higher.

2. The Court can no longer proceed on a linear analysis. They MUST look at the pros and cons of each option. This is not a small thing. Prior to this decision, the process was always “look at parent, if no, then look at family member, if no then adoption is all that is left, ergo the ‘last resort’ element is satisfied, it is the last resort because there isn’t anything left”. If a Local Authority are making a case for adoption, they have to not only show the flaws in the other options, but that the benefits of adoption outweigh the FLAWS in adoption. That requires social workers to fully engage and grapple with the benefits AND flaws of adoption both in general and for a particular child. If the Adoption Leadership Board want to tackle a single issue, rather than Jedi-hand-waving that ‘this law hasn’t changed, you may go about your business’, training that better equips social workers to do this and proper impartial and evidence-based research about those benefits and flaws would be a damn good start.

3. The rigorous analysis and evidence required as a result in Re B-S is still required.

Let’s look specifically at the example of social work analysis on why adoption was right for a child that the Court of Appeal tore to bits in Re B-S

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

Prior to 2013, that wasn’t only the sort of thing that you’d see in a social work statement explaining why adoption was the right outcome for a child, it was actually one of the better ones. Prior to 2013, I’d have put that in the top 10% of attempts in a social work statement to explain the benefits of adoption. This was an A minus attempt.

Let’s look at what the Court of Appeal said

With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

I’ll say it again, because this is important. A formulation that I would have put in the top 10% of analysis that I’d been seeing pre 2013 was DESTROYED by the Court of Appeal as being completely inadequate. An A minus attempt was given an E. Whether or not Re B-S changed any legal tests, it certainly raised the bar massively for the standard of evidence and analysis required.

4. The test for leave to oppose adoption was dramatically reduced. Prior to Re B-S, such applications were rare and also very easy to shut down. All you needed was to quote Thorpe LJ in Re W “However, it cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that permission will be granted after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application.” and draw the Court’s attention to the facts of Re P, where parents who had gone on to have another child and keep that child, with no statutory order, hadn’t been sufficient to get them leave to oppose. Now, the test is substantially reduced. In particular, these two elements from Re B-S.

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

and

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

5. As we have seen, more leave to oppose applications are being made, and more have been granted. We also see that the Courts have given judgments in cases where adoption applications have been successfully opposed. To date, the reported cases are where a parent has been able to show that another family member could care for the child instead of prospective adopters who have had the child for 13-18 months. Such a decision would have been unthinkable in 2012, but they are happening now. What that means is that if a Court is being invited to make a Placement Order, and the LA are inviting the Court to do so, they have to have good, cogent evidence as to why family members are not suitable instead. If they don’t get that exercise right first time round, then the child will pay the price when at an adoption hearing 15 months later, the Court may be removing the child from adopters and placing with those family members.

All of those things, and Lady Hale’s formulation are real things. It does nobody any favours to ‘jedi-hand-wave’ them out of existence, particularly by chopping up a quote from a judgment so that a person reading it would think that the Court of Appeal had said:-

There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’… those impressions are based on myths and misconceptions

when those three little dots are missing out all of the actual substance.

Parliament has created a statutory power of adoption. The tests have been laid down in the Act. The Courts have interpreted how those tests are to be delivered in practice. The Lady Hale formulation in Re B is the test that the Courts will be working towards. To pretend otherwise is misleading.

It does remain the case that where a Local Authority can show that none of the other options before the Court can meet the child’s needs, adoption is an option that they can legitimately pursue.

It’s disengenous to pretend that people didn’t understand that. If social workers and lawyers and ADMs hadn’t grasped that, then there would have been NO applications for Placement Orders. The numbers went down because the difficulty in obtaining a Placement Order from the Court went up.

If the social workers, lawyers and ADMs had ‘held their nerve’ in 2013 and made the same number of Placement Order applications, then the Court would have rejected them in huge numbers. Maybe they all should have done, and let it become the Court’s problem.

Two years later, the same might not still be the case. Firstly, the over-literal over-prescriptive appeals seem to have died down a bit. Secondly, social workers have got more used to the rigorous standards that are required in terms of their evidence and are better equipped to present their evidence to those standards.

13 Comments

Posted in adoption and tagged adoption, adoption statistics, lady hale, leave to oppose adoption, martin narey, mythbusting, mythbusting again, nothing else will do, opposed adoption, president, Re B, re b-S, re r 2014, sir james munby. Bookmark the permalink.

Adoption and American immigration

Posted on June 22, 2015 by suesspiciousminds

I have been waiting since Re B-S for one of these cases to come up, and it finally has.

Where a family member is put forward to care for a child, and that family member lives in America, the net effect of American immigration law is that in order to be able to get the child into the country to live with that family member, you’d need an adoption order. Nothing less than that would do for American immigration authorities. BUT, does that amount to ‘nothing else will do’ for the English family Court?

Re S and T (children) 2015 looks at that issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1753.html

Much of the case also involves the horrid rigmarole because in order to apply for an adoption order in England, the prospective adopters need to be habitually resident in England or Wales AND to have had a home in England for 10 weeks before the application. (In practice, this is an utter nightmare in any case where the relatives are American, as it just causes logistical problems that don’t arise in any other country). So if you are interested in those matters those are in the early parts of the judgment, and it shows you the tangle that the process can become.

But my real interest is in the analysis of whether the US immigration requirements of ‘adoption or you’re not coming in’ amount to ‘nothing else will do’

This case is made more complex because they were initially private law proceedings brought about because the father removed the children to Pakistan, their mother later died of cancer, and it seems that the children have been actually living in America since July 2014 (as a result of a ‘holiday’ order made by Singer J, permitting the children, who were wards of Court, to go and stay with their maternal great aunt and great uncle for a defined period of time. It is the great aunt and great uncle who applied for an adoption order under s84 Adoption and Children Act 2002, with the intention of later applying for an adoption order under US law.

[There are complicated technical reasons why they had to do it that way round, but basically if the English Court didn’t make an Adoption Order, they wouldn’t be able to get one in America, and the children wouldn’t be able to live with them]

The father was not consenting to the plan of adoption, and was actively opposing it, and there was no Placement Order (or application for a Placement Order)

The issues: can the father’s consent be dispensed with?
The father opposes the making of any adoption order and any order under section 84 of the 2002 Act. The applicants submit that his consent can be dispensed with. He disputes this.
In my judgment, it is clear that there is nothing in section 84 itself to preclude the court dispensing with the father’s consent. Regulation 11(1)(p) is clear recognition that section 52(1) applies to an order under section 84. Moreover, Form A61, the application form to be used in applications under section 84, contains, in Part 3, para (j), provision for an application to dispense with parental consent. The father’s argument, however, is based on the wording of Articles 4 and 16 of the Convention which, he submits, plainly contemplates that a Convention adoption such as is proposed in this case cannot proceed in the absence of parental consent.
I have set out the relevant passages already, but for convenience I will repeat the critical wording. Article 4(c)(2) provides that an adoption can take place “only” if:

“the persons … whose consent is necessary for adoption … have given their consent freely.”

Article 16(1)(c) provides that the Central Authority of the State of origin “shall”:

“ensure that consents have been obtained in accordance with Article 4.”

Article 16(2) provides that the Central Authority of the State of origin “shall”:

“transmit to the Central Authority of the receiving State … proof that the necessary consents have been obtained.”
The Convention does not contain any provisions identifying what consents are necessary. On a plain reading of the Convention, it leaves it to the domestic law of the State of origin to determine what, if any consents, are “necessary”. This is borne out by paragraph 129 of the Explanatory Report on the Convention drawn up by G Parra-Aranguren:

“The persons whose consent is necessary on behalf of the child are determined by the applicable law: it will usually include … the child’s biological parents.”
English domestic law enables the court to “dispense with” a parent’s consent in accordance with section 47(2)(c) of the 2002 Act if the requirements of section 52(1)(b) are satisfied. Those provisions apply both where the application is for an adoption order and where the application is for an order under section 84: see regulation 11(1)(l). They likewise apply in a Convention case: see regulation 55.
The point is, ultimately, a very short one, incapable of much elaboration, but, in my judgment, where the court has “dispensed” with a parent’s consent in accordance with sections 47(2)(c) and 52(1)(b), that parent’s consent is no longer “necessary” within the meaning of Article 4(c)(2). It is not “necessary” because it has been “dispensed with”. It follows, in my judgment, that the court can in principle, as the applicants contend, dispense with the father’s consent in the present case.

The President having decided that the Court COULD dispense with father’s consent, then had to decide whether it SHOULD.

The issues: should the father’s consent be dispensed with?
The father submits that, even taking all the available material at its highest, there is no basis upon which the court could properly dispense with his consent and that on this ground alone I should dismiss the applicants’ claim here and now.
In short, the father’s case is that, although he has been the subject of many serious findings – a proposition not challenged before me – they cannot be determinative. Indeed, it is said, they are not sufficient, on a proper welfare analysis, to justify the severing of the children’s relationship with him through adoption.
It is properly common ground before me that, if the father’s consent is to be dispensed with, the applicants have to demonstrate that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 , [2013] 1 WLR 1911 , [2013] 2 FLR 1075 , In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146 , [2014] 1 WLR 563 , [2014] 1 FLR 1035 , and Re R (A Child) [2014] EWCA Civ 1625 . As the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33 , [2012] 2 FLR 332 , para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.” The local authority makes the same point when it observes, and I agree, that what might ‘tip the balance’ in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.
Putting the issue into context, there are two striking features of this case. The first is that the local authority, having considered the matter very carefully, has doubts (a) whether the ‘threshold’ in section 31 of the 1989 Act is met and (b) whether, even if threshold is met, it would apply for a care order, let alone a placement order. The second is that, in truth, adoption is being considered here only because of the seeming imperatives of United States of America immigration law. As the local authority puts it, the issue of adoption would certainly not have arisen but for the stance of the United States of America’s authorities. Counsel for the guardian was equally explicit: “It is purely the immigration requirements of the USA which dictate that although the dispute is between family members, a placement with the applicants will require an adoption process.”
I make clear that neither of these factors can alone, or in combination, be determinative. One can, for example, conceive of a case in which “nothing else will do” precisely because of a requirement of foreign immigration law. But they are, nonetheless, very striking features of this case which must, at the very least, give one pause for thought.

The President is saying there that the US immigration requirement for adoption as a pre-requisite for the child living in the country MIGHT amount to “nothing else will do” or it MIGHT not. It isn’t determinative either way, and will depend on the merits and background features of the case. [It appears that with strong reasons why the child can’t live with birth parents and has to live elsewhere, the immigration component might tip the balance, but where the ‘threshold’ component is weak, that it might not]

In looking at what might amount to ‘threshold’ against father, the President identified these matters

What are the matters alleged against the father? They include, but are not limited, to the specific matters found by Sir Peter Singer as set out in his judgment given on 1 October 2014:

i) Domestic violence of the father inflicted on the mother in August 2012 (judgment, paras 28-29): details can be found in the maternal uncle’s statement dated 11 April 2014.ii) The fact that the father removed the children to Pakistan in December 2012 without the mother’s consent (judgment, para 80(i)) – something emotionally abusive of both the mother and the children.

iii) The fact that the father in effect abandoned the children between March 2013 and April 2014 (see paragraph 2 above), though he claims this was on the basis of legal advice he received in Pakistan.

iv) The unlikelihood of the father fostering any kind of relationship between the children and the maternal family (judgment, para 79) – though this is something he now says he will do: see his statement dated 31 October 2014.

v) The fact that the father put forward two bogus documents: a purported will of the mother dated 29 August 2013 and a purported “confession” of the mother (judgment, paras 80(ii) and 80(iii)).

vi) The fact that the father “laid the ground for attempting” to obtain the insurance monies arising out of the mother’s death (judgment, para 80(v)).

I am of course concerned with those matters which are relevant to the children’s welfare. It is hard to see that (v) and (vi), however deplorable, go to that issue.
As against this, the following matters have to be borne in mind:

i) Sir Peter Singer’s finding that the applicants and the children’s maternal uncle “deliberately” did not inform the father of the death of the mother “in order, as they sought, better to advance their own case for the children to remain with the mother’s family and in order to distance themselves from him for reasons which, because of his behaviour, are apparent” (judgment, para 80(vi)).ii) The quality of the contact between the father and the children as demonstrated, for example, by the records of contact sessions on 15, 17, 21 and 23 October 2014

I think that the Guardian’s conclusions are interesting and telling (it is not really a right way to approach the law)

“I do not believe the father can meet the children’s global needs to the extent that [the applicants] can. I have sought in this report to delineate the differences between the father as a potential long term carer for the children in Pakistan and their great aunt and uncle in the USA.

The father’s position is not without merit and this is a finely balanced decision. If there was no one but the children’s father to care for them it is likely that despite his deficits he might be considered good enough. However if there is an alternative, and I accept that the mechanism for achieving an adoption placement for the children in the USA is inchoate, I take the view for the reasons adumbrated within this report, that this is preferable and in the children’s best lifelong interests than living with their father in Pakistan.

I fall back on the aspiration that this Court can do better for these children than place them with their father in Pakistan; it can honour and make possible their mother’s legacy because she knew what was best for her daughters.

That comes very close to (if not actually arriving at) a conclusion that if there were no relatives in America, the children should be with their father, but because the children would have a better life with the relatives in America, adoption is the right plan. That’s precisely the opposite conclusion of Y v United Kingdom 2012 (the case that launched Re B and all that followed it) http://www.bailii.org/eu/cases/ECHR/2012/433.html “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

If the Court were approaching this as a pure ‘beauty contest’ – who comes across better, who might be able to meet the child’s needs better, with whom might the child have a better life, the maternal great aunt and great uncle would have won hands-down. It is decidedly possible that if the great aunt lived in Ilford, not Illinois, and the order was a private law order rather than adoption, that the Court would have gone with that option. There’s no presumption in private family law that a father would beat a grandparent or aunt. Re E-R 2015 for example http://www.familylawweek.co.uk/site.aspx?i=ed144557

But that’s not the approach with adoption.

It clearly isn’t the strongest set of ‘threshold’ or risks that father might pose the children, and the Guardian’s analysis whilst intending to be a reason why the Court should make the adoption order and allow the children to live /stay with their maternal family in America actually makes the legal argument as to why the Court shouldn’t.

In these circumstances, the first question I have to consider is whether, on the evidence currently before me, I could be satisfied that the father’s consent “requires” to be dispensed with (the language of section 52(1)(b) of the 2002 Act) within the principles set out in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 , [2008] 2 FLR 625 , and In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146 , [2014] 1 WLR 563 , [2014] 1 FLR 1035 ; whether I could be satisfied that “nothing else will do.” The short answer is that I could not be so satisfied. I agree with the father that the material at present before the court falls far short of meeting the required standard. Taking the matters I have summarised in paragraph 68 above at their highest, the case for adoption is simply not made out. One really only has to consider what is said in the reports of LB and JP and, equally significant, what those reports do not say.
This being so, the second question is whether the proceedings should nonetheless continue. This comes down to two questions: (1) Is there some solid, evidence based, reason to believe that with further forensic activity – the testing of the existing evidence by cross-examination or giving the parties an opportunity to adduce further evidence – the conclusion might be different? This requires a robust and realistic appraisal of what is possible, an appraisal which is evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. (2) Is there some solid advantage to the children in continuing the proceeding?
In my judgment, there is no basis in the materials currently before the court for any belief that prolongation of the process carries with it any realistic prospect of the court ever being satisfied that the father’s consent requires to be dispensed with, that nothing else will do. The deficit in the existing evidence is simply too great to imagine that there is any realistic prospect of the gap being bridged. And in the circumstances, not least bearing in mind the length of time these proceedings have been going on, far from there being any solid advantage to the children in continuing the proceedings, their welfare requires finality now.
The proceedings should now be brought to an end.
I am very conscious that the consequence of this, in a sense, is that the father wins by default. The children go to him because the only alternative is ruled out because adoption is ruled out. But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33 , [2012] 2 FLR 332 , para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

So the children were to be brought back to England by August, and to go back to the care of their father.

This, I think, is only the second reported case where a child was taken from prospective adopters who had been caring for the child for a significant period of time, and placed with either a parent or family member. The first of course was Holman J’s https://suesspiciousminds.com/2014/12/05/i-would-put-this-as-a-must-read-adoption-case-dynamite/

In that case, the interest of the child being placed with an aunt outweighed that of remaining with prospective adopters, in this one, the interest of the children being placed with dad outweighed that of remaining with prospective adopters who were family members. (Blood is thicker than water, but parental blood is thicker than blood, perhaps)

Of course this one is rather different, since there hadn’t been any Court determination that adoption was the right plan for the child, and the plan of adoption arose solely as a result of US immigration law, but it does show that the Court is willing to implement the philosphy of Y v UK in real life cases and to reach decisions that it feels to me would not have been made in 2011.

Good luck anybody running a case with an American relative in getting the case done within 26 weeks.

2 Comments

Posted in adoption, case law, international and tagged america, american adoption, contested adoption, nothing else will do, president, president of the family division, re b-S, re s and t children 2015, sir james munby, y v uk, y v united kingom 2012. Bookmark the permalink.

Someone had blunder’d

Posted on June 12, 2015 by suesspiciousminds

In these times where every week seems to give family practitioners another raft of guidance to follow, another lecture on how awful we all are for not doing this that and the other and another bout of finger wagging, this case might make some of us happy.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1627.html

In which there was a terrible cock-up, and it wasted a lot of time and money, and was unfair and an apology had to be made. But for once, it was the Court having to say that they got it wrong, rather than wagging fingers at everyone else. Even more sweet because the apology was delivered by the President himself. (Fair play to him, he came out and did it straight)

This was a case where mother was told by Pauffley J to return her child to America forthwith. Mother made an application to appeal. That application came before King LJ as a paperwork request. The mother and her solicitors were told that the application for permission to appeal was refused. A stay had been made to prevent Pauffley J’s order taking effect for 3 weeks, to allow the application for permission to appeal to come before the Court of Appeal for an oral application.

When that 3 week period expired, father applied to the High Court for enforcement of the order (as he was entitled to), because the child had not been returned to America. The case came before the President on 29th May 2015 and the President made a series of orders, including an order to seize mother’s passport.

What the President did not know, and what none of thelawyers knew, was that King LJ had extended the stay to 12th June (at a hearing where mother appeared in person and permission to appeal was refused). Everyone knew that permission to appeal had been refused, but nobody (save the mother and King LJ knew about the stay being extended)

So, at the time that the President was making really serious orders (the tipstaff going out and forcibly taking mother’s passport away from her) on the basis of mother being in breach of Pauffley J’s order, the Court had already granted a stay of that order. The mother was not in breach of the Court order.

Rather embarrassingly, it was the mother who had to notify the Court when she was served with the President’s order, drawn on the basis that she was in breach of Pauffley J’s order that she (and apparently she alone) was in possession of knowledge that King LJ had extended the stay until 12th June and thus she wasn’t in breach.

So far as concerns events after I had made the orders on 29 May 2015, what appears to have happened was this. When the passport order was executed on 31 May 2015, by police officers acting on the authority of the Tipstaff, the mother complained and spoke to the Tipstaff by telephone. He was told by her that the Court of Appeal had granted a stay until 12 June 2015. Quite properly, and clothed with the authority of the passport order I had made, he indicated that my order would nonetheless be enforced. The police officers accordingly seized the mother’s passport.
The Tipstaff communicated what the mother had said to him to Dawson Cornwell in a telephone conversation at about 9.30am on 1 June 2015. Dawson Cornwell emailed the CAO at 10.50am, setting out the history of the matter in appropriate detail, attaching a copy of the order I had made on 29 May 2015, and saying:

“We today spoke to … the Tipstaff. He confirmed that he spoke to the Mother on the telephone yesterday when the officers attended her property. She informed him that it was her understanding that the Court of Appeal had told her that she was to return to the USA by 12 June 2015. We have not been informed of this, nor has our client. Please would you urgently confirm if this is the case?”

They added:

“We should be most grateful to hear from you as to whether the Court of Appeal has indeed set the return date for 12 June 2015.”

Dawson Cornwell received no response from the CAO. Later the same day, and apparently as a result of a request from her, the CAO emailed the mother, sending her a copy of the draft of the order made by King LJ, saying that it was awaiting approval by the judge.

The next day, 2 June 2015, King LJ’s order of 22 May 2015 was sealed. It was emailed to the mother and the father by the CAO at 16.26. That email was not copied to Dawson Cornwell or anyone else. Almost immediately, however, the mother sent the order to the office of the Clerk of the Rules, which helpfully passed it on immediately to Dawson Cornwell. Very promptly, and very properly, Dawson Cornwell emailed the mother’s solicitors the same afternoon a letter saying:

“Given that a stay of execution has been granted by the Court of Appeal, we confirm that we will not seek to enforce paragraph 7 of the Order of the President of the Family Division of 29 May 2105 until 23.59 on 12 June 2015, in the event of your client’s non-compliance with that Order.”

The mother’s solicitors responded by email (by now it was 17.40) saying that they had emailed the letter to their client. On the morning of 4 June 2015 the mother emailed Dawson Cornwell asserting that there was a stay of execution until 12 June 2015.

I have set out the unhappy history of the matter in some detail, but the key fact is stark and simple. When I made the orders on 29 May 2015 I was unaware that King LJ had granted a stay until 12 June 2015. That fact alone, irrespective of how it had come about, necessitated the setting aside of the relevant parts of my order. As the order I made on 4 June 2015 recited, I was:

“setting aside the order … dated 29 May 2015 on the basis of inadvertent non-disclosure of critical information (that being that the Court of Appeal granted the mother a stay of execution of the order of 24 April 2015 until 12 June 2015).”

Paragraphs 7 and 9 of the order of 29 May 2015 were simply inconsistent with the stay.

Had I known of the stay, I would still have been prepared to make the passport order, and the orders consequential upon the passport order, for the basis of that order was the mother’s non-compliance with the earlier order made on 20 March 2015 by the Deputy Judge, and the need for such an order, in all the circumstances, was not affected by the stay. That is why I have not set them aside. Had I known of the stay I would not, however, have been prepared to grant any other relief. It would have been premature to do so while the stay was in force.
I wish to make it absolutely clear that, in my judgment, no criticism of any kind attaches to Dawson Cornwell, Ms Hutchinson or Ms Chaudhry. Given the terms of the email sent by the CAO on 26 May 2015, especially when contrasted with the language of the earlier email sent by Ms Said on 7 May 2015, they were entitled to assume that there was no longer any stay in place. Certainly, when I read that email on 29 May 2015 it never occurred to me that there might be a stay. After all, King LJ had refused permission to appeal, so there could be no question of a stay pending an application to the Supreme Court. And given the critical significance of a stay, any reader of the email from the CAO dated 26 May 2015 was surely entitled to assume that, if a stay had been granted, the news that “permission to appeal is refused” would have been caveated by a reference to the fact that there was nonetheless a stay. Most unhappily, it was not.
There is one further matter I must place on record. On the afternoon of 22 May 2015, King LJ’s clerk had emailed the Clerk of the Rules with the information that King LJ had extended the stay until 12 June 2015. Again most unhappily, the information in that email, which of course was unknown to Dawson Cornwell, was not passed on to me when I was dealing with the matter on 29 May 2015. It did not come to my attention until later in the afternoon following the hearing before me on 4 June 2015.
The mother and J are entitled to an unreserved apology for what has happened. It should not have happened. It did happen. I am very sorry that it did. I hope that nothing similar happens again. Procedures in the court offices will, no doubt, be tightened up in the light of what this most unfortunate case has revealed.

I note that in looking at the reasons why a Court did not know that extremely relevant Court orders on the case had been made which would have transformed the Court’s thinking, it is a shame that the President did not refer to the seminal case of Right Hand versus Left Hand (ex parte Escher) 1854 in which it was held that the Left Hand had no knowledge of what the Right Hand was doing and vice versa.

Perhaps we need a brand new Monopoly card

Court error in your favour. Collect ten red faces!

It is mean of me to gloat. Everyone can make mistakes, even very significant ones like this. We are all human beings, and working under pressure and tight deadlines. The Court, like all of us, is only human.

As Alexander Pope said, “To err is human, to forgive, divine”

So on behalf of those of us who have been getting nothing but lectures and grief from judgments, speeches, Practice Directions and Views about how every tiny thing we do we are doing wrong and the solution is to become more cumbersome, time-consuming and intricate over the last two years, Mr President, we forgive you.

7 Comments

Posted in case law and tagged court error, Court of Appeal, delay in drawing up order, errors in drawing up the order, passport order, president, re j 2015, stay. Bookmark the permalink.

suesspiciousminds

Tag Archives: president

Nods and becks and wreathed smiles

Bone marrow transplants and struck off doctors

Revoking adoption and IVF mistakes (again)

Important case regarding learning difficulties

The ISIS flag is apparently not a red flag

Tag, you’re it

Syria, children and electronic tagging

5 Interim powers.

Local Authority lawyers should grow a pair

Adoption and American immigration

Someone had blunder’d

Follow Blog via Email

Nonsense, family law, sarcasm. Not always in equal proportions

Recent Posts

Follow me on Twitter

Archives

Top Posts & Pages

Categories

Blogroll