Tag Archives: president

FGM – an important authority

Posted on January 14, 2015 by suesspiciousminds

The President has given judgment in care proceedings where alleged Female Genital Mutilation was the sole issue

Re B and G  (Children ) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/3.html

Being the first reported case on this issue, it is significant anyway, but I think the President really comes into his own when he is giving a judgment of this kind  (I’m less keen on Views and Practice Directions and model orders, but this sort of thing he excels at)

It is going to be worth holding in mind that B was male, and G female. This will become important later on.

Firstly, and importantly, one should note that the Court found that the allegation that G had been subjected to Female Genital Mutilation was not proven, and thus did not happen. This despite two experts who examined G reaching that conclusion.

A lay person might well think that the factual issue of whether or not a procedure to remove a part of the body happened would be fairly straightforward, it turned out not to be.

The medical professionals in the case were criticised by both the parents advocates and ultimately by the Court.

  1. Mr Myers and Mr Ekaney invited me to accept Professor Creighton’s evidence. Mr Myers suggested that Dr Share’s evidence demonstrated the lack of awareness and training within the medical profession on the issue of FGM. Despite being a respected and experienced consultant community paediatrician with expertise and extensive experience in conducting child protection investigations, she openly and honestly admitted to having made significant errors in her reports. Mr Ekaney made similar points, questioning her expertise, whether clinical or forensic, in FGM cases. In relation to Dr Momoh neither pulled their punches. Mr Myers submitted that both her report and her oral evidence were “well below the standard required of an expert witness”. He described her evidence as “confused, contradictory and wholly unreliable” and submitted that I should attach no weight at all to her evidence on scarring. Mr Ekaney characterised her oral evidence as “unclear, dogmatic and unreliable”.
  2. It is unavoidable that I make findings about the expertise and reliability of the three experts.
  3. Dr Share is an experienced and highly regarded consultant community paediatrician but did not put herself forward as having particular expertise in FGM. She very candidly admitted that her initial findings were wrong and that she had changed her mind even after the second examination. In giving oral evidence she was an entirely honest, open and frank witness. The critical question is how reliable a witness she was in terms of what she thought she had seen when examining G.
  4. I regret to have to say that Dr Momoh merited all the harsh criticism expressed by Mr Myers and Mr Ekaney. Whatever her expertise in relation to FGM in pregnant women, in relation to young children it was extremely limited. Her inability in the witness box to provide explanations for matters that cried out for explanation was striking. Her report dated 23 April 2014 was a remarkably shoddy piece of work. A report that says, without further explanation or elaboration, and this is all it said, “It appears that [G] has been subjected to some form of FGM as her vulva does not appear normal”, is worse than useless. In my judgment her report and her oral evidence were well below the standard required of an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory.
  5. In contrast, Professor Creighton merited all the encomiums she received from Mr Hayes, Mr Myers and Mr Ekaney. She was the only one of the three with real experience of FGM in a paediatric context. Her evidence, both written and oral, was clear and measured; it did not change; it was delivered with authority; it carried conviction.
  6. I make every allowance for the fact that Dr Share and Dr Momoh examined G with the naked eye, Dr Share twice, whilst Professor Creighton did not, but I nonetheless find it quite impossible to rely upon their evidence as reliably establishing, even on a balance of probabilities, that G had been subjected to FGM.
  7. The fundamental problem is that, on their own evidence, neither Dr Share nor Dr Momoh has been able to give a clear, accurate or consistent account of what it is they thought they were seeing when examining G:

    i) Dr Share began off thinking that what she had seen was the removal of tissue, that is, FGM WHO Type I and possibly Type II; she ended up thinking that what she had seen was a scar, FGM WHO Type IV.

    ii) Dr Momoh recorded missing tissue; she also ended up thinking that what she had seen was a scar.

  8. An equally significant problem is presented by the fact that Dr Share and Dr Momoh disagree about the features of the scar they both say they saw. Dr Share described it as “curved” and “raised”, Dr Momoh as “straight” and not raised. As Mr Ekaney observed, they cannot both be right.
  9. Another significant problem is presented by the difficulties both Dr Share and, in much greater measure, Dr Momoh had in explaining the content of Dr Momoh’s notes of their joint examination.
  10. For all these reasons, and having regard also to all the other troubling aspects of their evidence to which I have drawn attention, I find it quite impossible to rely upon Dr Share’s and Dr Momoh’s evidence as establishing the local authority’s case. I am not persuaded of the presence of the scar which is now the only feature relied upon by the local authority in support of its allegation of FGM.

 

The President went on to give some specific guidance for the medical assessment process

i) There is a dearth of medical experts in this area, particularly in relation to FGM in young children. Specific training and education is highly desirable. As Professor Creighton explained (Transcript pages 23, 27-28), there is an awareness problem and a need for more education and training of medical professionals, including paediatricians. In answer to my question, “presumably we need more paediatric expertise than we have at present?” (Transcript page 29), she said “Yes, definitely”. She told me (Transcript pages 28-29) that there are at present only 12 specialist FGM clinics throughout the country, of which six are in London, and that her clinic at University College Hospital is the only specialist paediatric FGM clinic in the country.

ii) Knowledge and understanding of the classification and categorisation of the various types of FGM is vital. The WHO classification is the one widely used. For forensic purposes, the WHO classification, as recommended by Professor Creighton (Transcript page 2), is the one that should be used.

iii) Careful planning of the process of examination is required to ensure that an expert with the appropriate level of relevant expertise is instructed at the earliest opportunity. Wherever feasible, referrals should be made as early as possible to one of the specialist FGM clinics referred to by Professor Creighton. If that is not possible, consideration should be given to arranging for a suitably qualified safeguarding consultant paediatrician to carry out an examination recorded with the use of a colposcope so that the images can be reviewed subsequently by an appropriate expert.

iv) Whoever is conducting the examination, the colposcope should be used wherever possible.

v) Whoever is conducting the examination, it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. If an opinion is expressed in relation to FGM, it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed, which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely, by reference to what is recorded as having been observed.

I heard on the radio this morning criticism that despite many reported cases of FGM there had not yet been a criminal prosecution – this case perhaps illustrates that it isn’t going to be as easy to prove to a criminal standard whether it occurred as the press and public might think.

The Local Authority having not proved their central allegation (that G had been subjected to FGM) they were also not able to prove that there was a likelihood of this in the future, and thus threshold was not proved and no orders were made. Although the family had probably spent 6 months or so under suspicion with substantial impact upon them.

Of wider impact, however, are the President’s observations on two points.

Firstly, does FGM if proven, amount to significant harm?  (One might think that this is a no-brainer, but the President had to consider the cultural issues and the fact that male circumcision is something that does not routinely trouble anyone, let alone the Courts; and thus if FGM was the sole issue how would significant harm for the male child B be established IF G had been subject to FGM? Also, remember that the significant harm test includes a component of “not being what it would be reasonable to expect a parent to provide”  – so if FGM is part of the parents cultural matrix, are they being unreasonable?)

It is quite a long analysis, paras 54-73, so I’ll skip to the conclusion (but it is worth reading in full)

  1. Moving on to the second limb of the statutory test, Mr Hayes submits that in assessing whether the infliction of any form of FGM can ever be an aspect of “reasonable” parenting, it is vital to bear in mind that FGM involves physical harm which, it is common ground, has (except in the very narrow circumstances defined in section 1(2)(a) of the Female Genital Mutilation Act 2003, not relevant in a case such as this) no medical justification and confers no health benefits. The fact that it may be a “cultural” practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So, he submits, it can never be reasonable parenting to inflict any form of FGM on a child. I agree.
  2. It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two.[2] FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.
  3. I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with section 31 of the Children Act 1989; male circumcision without more will not

 

The next key proposition was that the LA involved had been saying that if the allegation that the parents had been involved in FGM relating to G, the appropriate care plan would be adoption of both B and G.  The Judge expressed doubts as to that as a general proposition. But one can see the real problem – it might be justification to adopt the female child but it obviously can’t be justification to adopt the male sibling, and that leads to splitting the siblings.  And the obvious point that once the FGM has been carried out, the horse has bolted – the parents can’t carry out that form of abuse on the child in the future, so future harm is non-existent.  [In the absence of evidence about harsh treatment or neglect in other regards]

 

  1. Since in the circumstances the point was only briefly explored in submissions, I propose to say very little about it. No generalisations are possible. Much will obviously depend upon the particular type of FGM in question, upon the nature and significance of any other ‘threshold’ findings, and, more generally, upon a very wide range of welfare issues as they arise in the particular circumstances of the specific case. Arriving at an overall welfare evaluation and identifying the appropriately proportionate outcome is likely to be especially difficult in many FGM cases.
  2. There are two particular problems. The first is that once a girl has been subjected to FGM, the damage has been done but, on the evidence I have heard, she is unlikely to be subjected to further FGM (though of course female siblings who have not yet been subjected to it are likely to be at risk of FGM). How does that reality feed through into an overall welfare evaluation? The other problem is that, by definition, FGM is practised only on girls and not on boys. In a case where FGM is the only ‘threshold’ factor in play, there will be no statutory basis for care proceedings in relation to any male sibling(s). Suppose, for example, that the FGM is so severe and the circumstances so far as concerns the girl are such that, were she an only child, adoption would be the appropriate outcome: what is the appropriate outcome if she has a brother who cannot be made the subject of proceedings? Is her welfare best served by separating her permanently from her parents at the price of severing the sibling bond? Or is it best served by preserving the family unit? I do not hazard an answer. I merely identify the very real difficulties than can arise in such a case. In cases where there are other threshold factors in play, balancing the welfare arguments as between the girl(s) and the boy(s) may be more than usually complex, particularly if FGM is a factor of magnetic importance.
  3. The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.
  4. I add a final observation. Plainly, given the nature of the evil, prevention is infinitely better than ‘cure’. Local authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. And, as I have already said, the court must not hesitate to use every weapon in its protective arsenal if faced with a case of actual or anticipated FGM. An important tool which lies readily to hand for use by local authorities is that provided by section 100 of the 1989 Act. The inherent jurisdiction, as well as all the other jurisdictions of the High Court and the Family Court, must be as vigorously mobilised in the prevention of FGM as they have hitherto been in relation to forced marriage. Given what we now know is the distressingly great prevalence of FGM in this country even today, some thirty years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, I suspect, if not the first one of only a handful of FGM cases that have yet found their way to the family courts. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil but they have an important role to play and a very much greater role than they have hitherto been able to play.

I’ll repeat para 77, because it is key

The only further comment I would hazard is that local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption.

I’ve never had an FGM case so I haven’t had cause to think about it in this amount of detail, but being honest with myself, I think I would have considered that (a) it would be easy to prove (b) I wouldn’t even have questioned whether it crossed threshold and (c) adoption would have been in my mind. So, this case is helpful in getting practitioners (and even Judges) to look at the situation in more detail.

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Re D (part 2) a damp squid

Posted on January 7, 2015 by suesspiciousminds

 

 

The President’s judgment in Re D  (part 2) is up.  The blog post about part 1 is here:-

Everyone really ought to read Re D

Re D is the case in which parents had a care order at home, the LA removed under the Care order, there was no legal aid to challenge that decision despite father lacking capacity to instruct a solicitor. Then the LA lodged an application for a Placement Order, and as it was not joined up with care proceedings, there was no legal aid for THAT either.

Father’s legal team were not only acting for free, but they had to write the Official Solicitor an indemnity that if a costs order was made against the O/S they would pay it. Which is above and beyond.

So Part 2 is all about whether Legal Aid would be granted for the father under s10 LASPO (exceptional circumstances) and if not, what would happen.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/2.html

 

Annoyingly, as keeps happening before the President, the Legal Aid Agency eventually blinked and granted funding, thus avoiding a judgment that might declare that s10 LASPO as being practiced is incompatible with article 6.  So we don’t get a valuable precedent because there was no live issue to try. Grrrr.

 

However, note that the public funding granted here is still subject to an ongoing merits review  (that’s NOT what happens in care proceedings – even if your case looks hopeless you are still entitled to have a lawyer fight it for you)

 

The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows:

“The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place.

The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications, whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”

 

So it could be that if all of the professional evidence is against the parents, they will have no legal aid to have lawyers to challenge and test that evidence at a final hearing, although what is at stake is adoption.

 

The President has strong views about this (though note that parents routinely don’t get lawyers to help them on applications for leave to oppose the making of adoption orders, which also feels pretty shabby to me)

I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:

“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”

A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.

 

The really sad thing about this case is encapsulated by the mother

  1. This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
  2. I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:

    “The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”

    They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?

 

Hear hear.

Equally, it can’t be a decent solution to this situation that we have to get a case before the President before the Legal Aid Agency will blink and see sense. He can’t hear all of them.

The annexe is shocking- it has taken nine months of wrangling to sort out legal aid for something that most people would assume was automatic.

I completely agree with the position of the ALC (Association of Lawyers for Children) and ADCS  (Association of Directors of Childrens Services)  – parents facing an application for a placement order should get non-means, non-merits public funding regardless of when the application takes place.

 

…the ALC makes these two assertions:

    1. “Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
    1. Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”
  1. I draw attention to two of the points made by the ADCS. The first is that:

    “From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings

    In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.”

     

    [For the benefit of pedants, yes, I know it is ‘squib’, but I like that particular eggcorn. Actually, this case isn’t quite as damp as it appeared when I first read it, because there’s a rap over the knuckles for LASPO here, although it doesn’t end up being the declaration of incompatibility that many were hoping for]

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Re R – is B-S dead?

Posted on December 18, 2014 by suesspiciousminds

 

That’s the Court of Appeal case that we’ve been talking about all week.  It happened to come in time for my deadline for my Family Law column, so my analysis of it is over there.

 

I know not all of you read Family Law, so here is the link.

 

In very short terms, the Court of Appeal layeth the smackdown on those people who were pushing, stretching and exagerrating Re B-S to be an authority for “leave no stone unturned, climb every mountain, ford every stream – till you avoid adoption, that’s B-S’s dream”.   BUT  Re B, and Hale’s formulation stands – the President specifically says that Courts can’t make a Placement Order unless satisfied that Lady Hale’s formulation applies, and every single bit of content in Re B-S still applies.  In a nutshell, Re R says to advocates, don’t take bad points and don’t appeal on flimsy technicalities based on your notion of what a post Re B-S judgment looks like.

 

http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back#.VJLA_3vzOud

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Everyone really ought to read Re D

Posted on November 3, 2014 by suesspiciousminds

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

Click to access re-child-d.pdf

Please read Allan’s excellent piece here

If the State wants to take your child, be prepared to represent yourself!

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case … where one party is publicly funded … it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.”

I continued (para 19):

“May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me – I’m not going to put the solution up online to tip off the LAA as to the loophole though]

 

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Committal for harassment

Posted on October 10, 2014 by suesspiciousminds

 

In the matter of an application by Gloucestershire County Council for the committal to prison of Matthew John Newman

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3136.html

 

This is a judgment given by the President. There are, I think, three interesting aspects to this judgment. Aside from him quoting the very famous remark about freedom of speech not extending to the freedom to shout “fire!” in a crowded theatre.   (which is my favourite joke in Rozencrantz and Guilderstern Are Dead)

 

 

  1. The penal notice should be on the face of the order

 

 

So far as material for present purposes, rule 37.9(1) of the Family Procedure Rules provides that:

 

“a judgment or order to do or not do an act may not be enforced … unless there is prominently displayed, on the front of the copy of the judgment or order … , a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

 

Neither the order of 16 May 2014 nor the order of 16 July 2014 complied with this requirement. In the order of 16 May 2014 the penal notice appeared at the end of the order on the second page. Although the order of 16 July 2014 contained, prominently displayed, the statement on the front of the order that “A Penal Notice shall be attached to paragraphs 1 and 2 of the injunctive consent order”, the penal notice itself was set out, just before the text of the injunctions, on the third page of the order.

 

Paragraph 13.2 of PD37A provides that “The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.” I was satisfied that no injustice would be caused to Mr Newman by waiving these defects. In the one case, the penal notice was prominently displayed at the end of a short, two page, order which also contained a recital that Mr and Mrs Newman had “previously received legal advice as to the implications of breaching the terms of this Order.” In the other case, the father was present and consented to the grant of the injunctions. He cannot by that stage in the proceedings have been in any doubt as to the consequences of breach.

 

Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD37A. I might add, for the benefit of the doubters, that this surely serves only to demonstrate the need for the family justice system to adopt, as I have been proposing, the use of standard forms of order available to all in readily accessible and user-friendly templates.

 

I would have two brief points in relation to this – the first is that the President is making use of the term ‘user-friendly’ in relation to the standardised court orders which bears no relation to any accepted definition of the phrase that I have ever seen used. If ten people in the country (outside the MOJ or designers of the form) can be found who say that these forms are a pleasure to use, then I will cheerfully withdraw my remark. I don’t expect to be taken up on that.

 

The second is that the reason the penal notice doesn’t appear on page one of the order is PRECISELY because the template form doesn’t put it there.

 

Be warned people – if you are drafting an order with a penal notice, screw where the stupid form wants you to put the penal notice and put it on the front page. Everything else can be moved down.

 

  1. Harassment of social workers (although the Judge says that harassment of members of the family was worse)

I turn to ground (ii), the allegation that Mr Newman has been guilty of “harassing” employees of the local authority. The allegation is based on the contents of fourteen emails sent to various of the local authority’s employees (who I will refer to respectively as R, J, K, L and V) between 17 July 2014 and 18 August 2014 inclusive and a message sent on 18 August via facebook to the mother of another of these employees. I set out in the Table annexed to this judgment the dates and recipients of each of these email messages and, in full, the text of each message exactly as sent. The facebook message was sent on 9 August 2014 to the mother of another social worker, Kimberley H. The message read “This is what Kimberley does.” Attached to the message were newspaper articles about social workers who boast about removing children.

 

Mr Newman admits the authorship of each of these messages, and does not dispute that each of the emails was sent to one or more of the class of persons referred to in paragraph 5 of the order of 16 May 2014. The only question is whether Mr Newman’s conduct amounted to “harassing” within the meaning of paragraph 5. Mr Jenkins submits that it did. Mr Newman says that what he did was neither intended to be nor did it in fact amount to harassing.

 

What the word “harassing” means in paragraph 5 of the order of 16 May 2014 is a matter of construction, and therefore a matter of law. Whether, in the light of that meaning, what Mr Newman did amounted to harassing is a matter of fact and degree. I adopt the same approach as commended itself to the Court of Appeal in Vaughan v Vaughan [1973] 1 WLR 1159 when considering, also in the context of committal, the meaning of the word “molesting” when used in an injunction. All three judges had recourse to the dictionary.

 

“Harassing”, like “molesting”, is an ordinary English word and there is nothing in the order of 16 May 2014 to suggest that it was being used in any special sense, let alone as a term of art. It is to the dictionary that I accordingly turn. The Oxford English Dictionary provides, in addition to a number of more antique meanings, an apt definition of harass which, in my judgment, reflects what the word harassing means when used in this order:

 

“To subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.”

Whether emails constitute harassment will, of course, depend upon the circumstances, in particular the number and frequency of the emails, their content and tone, the persons to whom and more generally the context in which they are sent. Here we have fourteen emails sent in a little over four weeks. On one day (9 August 2014) there were three. Initially, R seems to be singled out; then the emails are sent to a wider group of people. There is a pervading tone of menace: the personalised attacks (“How do you sleep at night?”, “If you have kids ask yourself what would you do to keep them”); the threats (“I have everything ready to completely ruin everyone who stands against us”, “people’s names … spread all over the world along with their pictures”, “set things right before they go terribly wrong”, “Soon your tyranny will end”, “Soon all your names will be appearing on a newspaper”, “someone, someday will be held accountable”, “unless you wish to put your career on the line”, “Hope you are looking forward to an early retirement”, “The revolution is coming are you ready”); the threatening count down; and the repeated unwarranted demands that X is returned.

 

In my judgment this was quite plainly harassment, not just pestering but psychological intimidation. It was deliberate. It was intended to achieve, by the making of unwarranted demands accompanied by menaces, the return of X to his parents notwithstanding the orders of the court. It is a bad case.

 

The facebook message sent to Kimberley H’s mother is, from one point of view, even worse. What aggravates the contempt is not so much the actual message, which in comparison with some of the others is comparatively innocuous; it is the fact that it was sent to Kimberley H’s mother. For someone in Mr Newman’s position to extend his campaign to a member of his primary victim’s family, whether partner, child or, as here, parent, is despicable. It is deliberately putting pressure on his victim by attacking their nearest and dearest.

 

 

Accordingly, I am in no doubt at all, I find as a fact, and to the criminal standard of proof, that Mr Newman is in breach of paragraph 5 of the order of 16 May 2014 as alleged by the local authority.

 

 

  1. The President goes back to Re J, and reminds us that whilst he was permissive, even welcoming of people publishing their stories (if not identifying the child) and even been critical of Local Authorities and professionals, there was still a line that people should not cross

 

 

In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523, a case that attracted much attention at the time, I articulated, not for the first time, two points which in my judgment are and must remain of fundamental, indeed constitutional, importance.

 

The first (para 36), was the recognition of “the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system.” I added that the same goes, of course, for criticism of local authorities and others.

 

The second (para 38), was the acknowledgement that the “fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar.” I added that a much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism, for “Society is more tolerant today of strong or even offensive language.” I summarised the point (para 80): “an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented … nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be.”

 

I stand by every word of that. But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.

 

The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.

 

There is freedom of speech, a right to speak. But this does not mean that the use of words is always protected, whatever the context and whatever the purpose. As Holmes J famously observed in Schenck v United States (1919) 249 US 47, 52:

 

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

 

Freedom of speech no more embraces the right to use words to harass, intimidate or threaten, than it does to permit the uttering of words of menace by a blackmailer or extortionist. Harassment by words is harassment and is no more entitled to protection than harassment by actions, gestures or other non-verbal means. On the contrary, it is the victim of harassment, whether the harassment is by words, actions or gestures, who is entitled to demand, and to whom this court will whenever necessary extend, the protection of the law.

 

I do not wish there to be any room for doubts or misunderstanding. The family courts – the Family Court and the Family Division – will always protect freedom of speech, for all the reasons I explained in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523. But the family courts cannot and will not tolerate harassment, intimidation, threats or menaces, whether targeted at parties to the proceedings before the court, at witnesses or at professionals – judges, lawyers, social workers or others – involved in the proceedings. For such behaviour, whatever else it may constitute, is, at root, an attack on the rule of law.

 

I emphasise, therefore, that Judge Wildblood was perfectly justified in granting the injunction in paragraph 5 of the order of 16 May 2014. Such orders can, should, and no doubt will, be made in future by the family courts when the circumstances warrant. I should add, moreover, that the protection of the law is not confined to the grant in appropriate circumstances of such injunctions. Harassment is both a criminal offence and an actionable civil wrong under the Protection from Harassment Act 1997. And, quite apart from any order of the court, it is a very serious contempt of court to take reprisals after the event against someone who has given evidence in court.

 

I do not want anyone to be left in any doubt as to the very serious view that the court takes of such behaviour. In appropriate cases immediate custodial sentences may be appropriate. And deterrent sentences may be justified. The court must do what it can to protect the proper administration of justice and to ensure that those taking part in the court process can do so without fear.

 

 

 

The Court have not sentenced Mr Newman yet, and it is worth noting that one of the alleged breaches – that he put a mobile phone in his son’s bag was dismissed.

 

I deal first with ground (i), the alleged breach of paragraph 1 of the order of 16 May 2014. This, it will be recalled, forbad Mr Newman from “taking any steps to ascertain the whereabouts of [X] and/or foster placement, including using [his] mobile phone or laptop GPS positioning systems.”

 

The evidence in support of the allegation of breach was two-fold. First, there was evidence from one of the social workers who had supervised contact between Mr Newman and his son on 5 August 2014 that, following this contact, a mobile phone of unknown ownership was found in the bottom of X’s changing bag. Second, there was evidence that, when a key on the phone was touched, it began intermittently sounding what was described as a siren alarm tone and the front screen of the phone displayed the following text:

 

“! Help ! I lost my device! Can you please help me get it back? You can reach me at 000000 newman1985@hotmail.co.uk Blow me fucker, give me my son back”.

 

That is the extent of the factual evidence, though in his affidavit the local authority’s team manager says that “This action could be considered as an attempt to locate X or to intimidate his prospective adopters, carers or involved Children’s Services staff.” Be that as it may, the relevant allegation in relation to this incident is not of intimidation, only of breach of paragraph 1 of the order of 16 May 2014.

 

There was a clear prima face case that Mr Newman had deliberately placed the mobile phone in X’s changing bag, but despite hearing what Mr Jenkins had to say, I remained unpersuaded that there was even a prima facie case against Mr Newman that his actions had, within the meaning of paragraph 1 of the order of 16 May 2014, involved him “taking steps to ascertain the whereabouts of” either X or the foster placement. It was hardly to be imagined that the only people likely to pick up the phone – either a social worker or foster carer – would be so obliging as to contact Mr Newman and volunteer the information. And if the concern, as indeed the order itself would suggest, was that Mr Newman was using the phone itself in such a way (eg as a tracking device) as to reveal the relevant location, then that is not something, in my judgment, that could properly be inferred in the absence of evidence – and there was none – demonstrating how the phone could be used in that way. Absent such evidence there was, in my judgment, not even a prima facie case against Mr Newman.

 

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Fraud unravels everything – Rapisarda v Colladon part 2

Posted on October 7, 2014 by suesspiciousminds

 

 

 

 

I’ve been eagerly awaiting this judgment. This is part 2 of the case involving the Queen’s Proctor and an alleged systematic fraudulent obtaining of 180 divorces (some decree nisis, some decree absolutes)

 

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/09/rapisarda-v-colladon-italy.pdf

 

I wrote about part one here https://suesspiciousminds.com/2014/05/09/the-pages-of-the-most-extravagant-french-novel/

 

That judgment was all about whether the Press could report what had been going on, because there are historic statutes aimed at preserving the decency of Victorian breakfast tables stopping the Press reporting the details of divorce cases (they can report the financial settlements, but not the divorce itself).

 

The President did one of his very clever conjuring tricks to resolve that and allow the case to be reported.

 

Part 2 is about whether there had been this systematic fraud. According to the case, the allegation is that many divorce petitions were lodged, all using the same address in Maidenhead for the petitioner, as a means of allowing the divorce to be obtained in England, when the petitioners really lived in Italy. This was so that the divorces could be progressed more quickly.

 

(Yes, for inexplicable reasons, our divorce system is more efficient than the Italian one. I shudder to think about that)

 

In 179 of the cases (I shall deal separately with the other case, La Marca v Prestieri BY12D00274, where an address in Epsom was given as the petitioner’s residence) the address given for the petitioner or the respondent, as the case may be, was identical: Flat 201, 5 High Street, Maidenhead, SL6 1JN. I shall refer to this as “Flat 201”. The address given for the other party – and these were different addresses – was in each case in Italy, except in one case1 where an address in Germany was given for the respondent. In the majority of the 179 cases in which Flat 201 was given as the address it was said to be the petitioner’s address; in a small minority of cases – in 37 of the cases I think – Flat 201 was said to be the respondent’s address.

 

I suppose that it is theoretically possible that there really have been 179 different women living in this one flat in Maidenhead, all of whom coincidentally happened to be getting divorced at around the same time. It doesn’t seem all that likely though.

If those decrees were obtained by fraudulent means, then they would all be set aside

 

Moynihan v Moynihan (No 2) [1997] 1 FLR 59.

 

the well-known words of Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702, 712:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever … ”

 

 

“A decree absolute is generally considered to be good against all the world. It is an order ‘in rem’. However, if it has been obtained by fraud, there is a fundamental defect. In this case, I have no doubt that Lord Moynihan’s divorce petition was deliberately framed in a way which was calculated to deceive the court. All the subsequent representations and submissions which were made to the court were vitiated by fraud. He wished to obtain a divorce. He wished to do so even if his wife objected to it, as I believe she did or would have objected, if only on financial grounds. He quite deliberately set out to deceive the court. His affidavit verifying the petition was false, and in swearing it he committed perjury. He perverted the course of justice and succeeded in obtaining a decree. It is a gross case. The inevitable consequences to all are serious. I have no doubt that I should set aside and declare null and void the decree absolute and the decree nisi and dismiss the petition.”

 

 

Moynihan v Moynihan is a pretty saucy case in any event.

24.  It was, like this, an application by the Queen’s Proctor for the setting aside of a decree absolute of divorce obtained, so it was said, by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The fraud as found by Sir Stephen had various strands: The particulars set out in the petition were false in a number of material respects; the affidavit in support of the petition, in which the petitioner swore that everything stated in his petition was true, was perjured; the statement of the proposed arrangements for the child of the family, filed with the petition, was wholly misleading; the petitioner subsequently falsely told the court that the child had died when he knew full well that he was still alive; the acknowledgement of service purportedly signed by the respondent wife (and in which she purportedly admitted the adultery alleged in the petition) was false.

  Specifically, the petitioner falsely asserted an English domicile when he was in fact domiciled in the Philippines. His case on this point was supported by perjured evidence, what Sir Stephen called “deliberate lies”:

“In order to deceive the court into accepting jurisdiction in his divorce suit, he told quite deliberate lies. He persisted in and added to the lies when the registrar at Tunbridge Wells County Court required confirmation and further elucidation of the domicile position. Those lies enabled the court to accept jurisdiction and to proceed to deal with the divorce suit.”

25. Sir Stephen continued:

“However, this was not his only deceit of the court. I am satisfied on the balance of probability that neither the respondent wife nor the co-respondent was served with the petition. Lord Moynihan arranged for false acknowledgements of service to be returned to the court, and yet a further deception related to the child of the family”.

His conclusion was damning:

“I find that there was a clear, deliberate and sustained deception of the court by Lord Moynihan … Lord Moynihan unfortunately was a man accomplished in fraud and indeed in forgery.”

 

 

You don’t that often come across a case where a Judge gives a peer of the realm that sort of kicking (it is, of course, rather easier to do so when the peer is dead)

 

 

The President sums up the law as it relates to fraud, perjury and divorce petitions as follows :-

29. So far as material for present purposes I can summarise my conclusions on the law as follows:

i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;

ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;

iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;

iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.

As will become apparent, it is the third of these propositions which is determinative in this case.

 

 

 

The President then gets stuck into the facts – as outlined, the same address appears in 179 of the petitions, giving jurisdiction in England.

 

Except in one case, which I shall deal with separately, Rapisarda v Colladon AL11D00099, issued in the Altrincham County Court on 16 February 2011, there is no reason to believe that either the petitioner or the respondent, as the case may be, whose address was stated to be Flat 201 had ever resided in England or Wales.

 

Be that as it may, it is certain that none of them can ever have resided at Flat 201. On 28 August 2012, police officers of the Thames Valley Police executed a search warrant in relation to Flat 201. The evidence of one of the officers who executed the search warrant, Detective Sergeant Steven Witts of Thames Valley Police, whose witness statement is dated 4 March 2014, confirms that Flat 201 was not a residential property or, indeed, a property capable of occupation. It was in fact a mail box, mail box 201, one of a number of mail boxes located in commercial premises. As the investigating officer in charge of the police investigation, Detective Sergeant Jonathan Groenen, mordantly commented in his witness statement dated 29 October 2013, “It is not possible for 179 applicants or respondents to reside at this address.” Indeed, given the dimensions of the mail box it is clear that not even a single individual, however small, could possibly reside in it.

 

 

In short, it is clear beyond any sensible argument that in each of these 179 cases the assertion that the English court had jurisdiction to entertain the petition was founded on a lie, the lie that either the petitioner or, in some cases the respondent, resided at Flat 201. To put it plainly, the English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition.

 

 

(I cannot express how much I love the “given the dimensions of the mail box it is clear that not even a single individual, however small, could possibly reside in it” line. )

 

 

Now, if you know about divorces, you will know that an affidavit has to be sworn at some point. The affidavits in many of these cases were ostensibly sworn before a solicitor in Reading. So, were these Italian petitioners flying over to Reading to lie when swearing their affidavit? Were the solicitors in on it?

 

The affidavit purported to have been sworn by the petitioner on 27 April 2011 before a solicitor. Opposite the words “Sworn at” there appear, seemingly affixed by a rubber stamp, what purport to be the name and the postal and DX addresses of a firm of solicitors in Reading. The name and addresses are those of a firm of solicitors that does indeed exist. I should add that similar affidavits appear in the court files of most of the other cases before me.

 

42.There are, I suppose, a number of possibilities: that the affidavit was in fact sworn as it purports to have been (unlikely, given that this affidavit resembles many others in the cases I am concerned with and that it is fanciful to imagine that large numbers of Italians, who there is no reason to believe lived in this country, should have made the journey to Reading); that someone in the solicitors’ office was colluding in the conspiracy; that the solicitors were the innocent victims of impersonation; or that the solicitors were entirely innocent, had nothing whatever to do with the affidavit and are themselves yet another victim of this fraudulent conspiracy. I am entirely satisfied that this last alternative is in fact the truth. Interestingly, and revealingly, Reading County Court was not one of the many county courts used by the architects of this fraud.

 

43.In the course of their investigations, police officers from Thames Valley Police visited the solicitors’ offices in Reading on two occasions, Detective Sergeant Witts in August 2012 and Detective Sergeant Groenen in March 2014. The police received every possible assistance from the firm’s employees, including from the senior managing partner. Detective Sergeant Groenen in a further witness statement dated 3 April 2014 is very clear. He is, he says, “satisfied” that the various persons named in these affidavits“were not employees of [the firm] and had no association with the real firm. In my view, the firm’s name has been used falsely by those responsible for drafting the affidavits, without the knowledge or permission of anyone at the firm.”

 

Wow.

 

I suppose if you have no scruples at all, that’s not that hard to do. You pluck a solicitors firm out of the air, and swear affidavits pretending to be a solicitor from that firm.

 

Do we get any information about where and how this fraud was being orchestrated?

 

 

44. In one of the cases, Rapisarda v Colladon AL11D00099, there is direct evidence of how the relevant affidavit came into existence. This is one of the cases in which it was said that it was the respondent who resided at Flat 201. The petitioner, Agata Rapisarda, was said to reside in Italy. For reasons which will become apparent in due course, I will need to go into this particular case in more detail. For the moment I need refer only to the petitioner’s affidavit, again in Form M7 and filed in accordance with rule 2.24(3), purportedly sworn on 19 April 2011 before the same person who, eight days later, purportedly witnessed the petitioner’s signature in Gargiulo v Armani AF11D00099. I have evidence from the petitioner, which I have no hesitation in accepting. She made a witness statement dated 25 October 2013 and gave oral evidence before me on 9 April 2014. Until she came to London in April 2014 to give evidence, she had never been in this country. She has never been to Reading. She accepts that it is her signature on the affidavit but says that she was in Italy, in Verona, when she signed it. The solicitor’s details were not there when she signed the document. She thought that most probably the other parts had also not been completed. Whatever the reality in relation to that last point, it is quite clear from her evidence, which I accept, that this purported affidavit was never sworn by the petitioner as it purports to have been sworn.

 

45.In fact and in law, the purported affidavit in Rapisarda v Colladon AL11D00099 was no such thing; it was a forgery, deployed by the fraudsters to deceive the court. If it was an affidavit, then, like the purported affidavit in Gargiulo v Armani AF11D00099, it reeked of perjury. Either way the court was being deceived, the administration of justice was being perverted.

 

 

So, who is behind all of this? Who is “The Napoleon of Criminal Divorce”?

 

The moving spirit of the operation in Italy was someone calling herself Dr Frederica Russo (email div@fredericarusso.com; fax 06-233237081 or 06-233237080). I have no idea whether that is her real name. The emails in both the Rapisarda file and the Rodrigues file pass from and to her. Some of the parties mention having spoken to her on the telephone (+39 347 8535829, 00448445853857, 3408903115), but no-one records ever having met her. The total cost of the service she was providing seems to have varied: €4,050 in Meola v Danesi EX11D00570, €3,750 in Rapisarda v Colladon AL11D00099, and €4,700 in Diaferio v Rodrigues TS10D00587. Payment was made by instalments to an account in the name of Anita Colucci. Some of the parties believe this to be another name for Dr Russo.

 There is mention of the involvement of an entity called Nolton Company Service and of a company, Russo Legal Service Limited (of which Dr Russo “portrays herself as the director”) registered at Companies House under number 08519986, both located at Office 5, 105 London Street, Reading RG1 4QD, which I shall refer to as “Office 5”. This is in fact another mailbox. One of the parties says, “Mrs Russo cooperates in these divorce proceedings with Mr Francesco Galatà, via Carduzzi, 1 Sarzana (SP), Italy, with his office in via Camponesto 3 Sarzana (SP) Italy.” Another refers to “Russo and her partner Francesco Galata.”

 The investigations by Thames Valley Police revealed that the Flat 201 mailbox was owned by a company which also owned the Office 5 mailbox. Both were rented by Mr Galata. The police investigation also established that Nolton Consultants Limited, a company registered at Companies House under number 3244763, appeared to have some involvement with the Flat 201 mailbox, though it was not clear to the police how Nolton was connected with Mr Galata. On 29 October 2012, Detective Sergeant Witts spoke to Mr Galata on the telephone. Mr Galata, who said he was in Italy, stated that he charges £120 per hour “to assist lawyers in Italy with facilitating divorces across the whole of Europe.” The officer added, “He became vague when regarding how his post box in Maidenhead was linked to the divorce petitioners”.

 

(I bet he bloody did)

I really want to email Dr Frederico Russo, but I am trying my best to resist that temptation.

 

In the words of Jimmy Cricket, “come here, there’s more”

 

In some cases letters sent by the court to the mailbox at Flat 201 in 2013 addressed to one of the parties were returned under cover of a letter from Nolton Consultants Company Services, giving an address at 65 Via XX Settembre, 19038 Sarzana (SP), Italy (telephone +39320 233 3476). So far as material for present purposes these letters said:

“We are the registered owners of the address “Flat 201, 5 High Street, Maidenhead SL6 1JN”; any mail sent there is forwarded

to Italy fortnightly where our office staff then processes and forwards all the items received to the due addressee,

Our business includes receiving, processing and forwarding parcels and correspondence on behalf of our clients.

… We are hereby returning your letter for the following reason:

The addressee is no longer our client”

 

The Rapisarda file contains an email from the petitioner to Dr Russo dated 23 February 2011 saying (I quote the translation) “I received what I enclose, what should I do?” Cross-referring to the court file this would seem to be a reference to the notice of issue of the petition dated 16 February 2011 sent to the petitioner by Altrincham County Court and notifying her that a copy of the petition had been posted to the respondent on 16 February 2011. On 28 February 2011 Dr Russo sent the petitioner an email, seemingly referring to the acknowledgment of service to be signed by the respondent, seeking her assistance in obtaining his signature, and saying “only to be signed, not to be completed”. (The court file shows that the completed acknowledgment of service was received on 14 March 2011.) I heard evidence about this from the respondent (see further below). He accepted that it is his signature on the acknowledgement of service but said that the form was otherwise blank when he signed it. I shall return below to consider this in more detail. For the moment two obvious questions arise: Why was Dr Russo seeking the assistance of the petitioner, resident in Italy, in obtaining the signature of the respondent, then supposedly living in England at an address known to Dr Russo? And what is the significance of the instruction to “sign” but not “complete” and, indeed, of the fact that the respondent signed a blank form? In relation to the latter point, an email from the petitioner to Dr Russo dated 7 April 2011 says “I received the document which is attached. Please let me know what to do.” Examination of the court file would suggest that this refers to the court’s notice dated 24 March 2011 of its receipt of the respondent’s acknowledgement of service, enclosing with it a form of request for directions for trial (special procedure) and a form of the appropriate affidavit to be sworn by the petitioner. Dr Russo’s response to the petitioner the same day was “Do not reply because … to avoid errors we fill forms”.

 

55.I interpolate that similar instructions are referred to in information supplied by parties in other cases: “just to sign the documents already filled in … that would be sent to us … without adding anything besides the signatures”; “JUST sign where indicated, because all that was necessary to indicate in those documentations would be added later by the Doctor and/or her staff”; “She told us that we wouldn’t have had to do anything, just sign the papers where she indicated in a facsimile.”

 

56.Turning to the Rodrigues file, it includes one particularly interesting exchange. Dr Russo’s modus operandi was to send her clients a document setting out the steps in the process and a questionnaire seeking relevant information. The information was then embodied in a document referred to as “La base del divorzio” sent to the parties by email for their approval. In this case it was emailed to the respondent from div@fredericarusso.com on 7 September 2010, with a covering message from Dr Russo. It gave the petitioner’s address as “England”, said that the parties had lived together at an address in Italy until 6 October 2008, and that (I quote the translation) “from 7-10-2008 [the petitioner] has had an address in England.” On 8 September 2010 the respondent emailed Dr Russo, saying “You (I don’t know who) have confused dates and addresses … The … corrections are given below.” He set out the petitioner’s address as being in Ravenna in Italy and said that the parties had lived together at that address from the date of the marriage, 28 September 2008, until 30 August 2010. Dr Frederica Russo replied by email the same day:

“If we wish to obtain the divorce judgment as “by consent as the spouses no longer live together” I must write as follows (devo scrivere in questo modo) … from 7-10-2008 [the petitioner] has had an address in England.”

 

57.The respondent’s comment on this, in a statement dated 5 December 2013, really says it all:

“I knew this divorce process was not honest from the day I was sent a draft from the mediator hired by my ex-wife” – it is clear from the context he is here referring to Dr Russo – … “My concern was not bogus residency, as I did think she would actually move to England to start the process, but I worried about the fact that we had not been living apart for two years immediately before applying, as stated on the draft and apparently required by law.”

 

58.I add one final detail. The petitioner in another case who was alleged to have resided at Flat 201, says “Doctor Russo has not … indicated that it was necessary to be RESIDENT in England or in Wales … The Doctor has never given any hint of the need of going personally to England”.

 

 

 

I am LOVING this case, and having found our villain, we are about to (perhaps for the first time in reported case law history) identify as our hero a beleaguered member of Court staff. And I am delighted that the President names her – it is Julie Farrah of Burnley County Court. Well done Julie.  (and hurrah for DJ Conway too, for sending staff out to visit Flat 201 and see that it was a mailbox uninhabited by Italian distressed wives)

 

The problem was first identified in late February 2012 by an eagle-eyed member of the court staff at Burnley County Court, Julie Farrah, who spotted that in two files, both involving Italian parties, the address was the same and that it was in Maidenhead (which is in the south of England, whereas Burnley is in the north-west). She brought it to the attention of District Judge Conway, who contacted a colleague in the Slough County Court (located near to Maidenhead). He arranged for a member of the court staff there to visit Flat 201, which revealed that there was no residential accommodation there. When this was reported back to District Judge Conway on 1 March 2012 she immediately notified both her local Designated Family Judge and the Queen’s Proctor. Later the same day her concerns were escalated to the relevant Family Division Liaison Judge and by him to the office of the President of the Family Division, at that time Sir Nicholas Wall. On 22 March 2012 the President’s office circulated a message asking courts to stay all such cases, without reference to the parties, pending investigations by the Queen’s Proctor and the police

 

 

This is all leading inexorably to these decrees being set aside

 

 

What does the evidence establish? I have set it all out, and need not repeat the details. The materials before me, when read in conjunction with the relevant court files, establish, and I find as a fact, that:

i) In each of these cases the assertion that the English court had jurisdiction to entertain the petition was founded on a lie, the lie that either the petitioner or, in some cases the respondent, resided at Flat 201. The English court was deceived; it was induced by fraud to accept that it had jurisdiction to entertain the petition.

ii) In the Class 2 and Class 3 cases the application to proceed in accordance with the special procedure was supported by the filing of what purported to be an affidavit but was, in fact and in law, a forgery, deployed by the fraudsters to deceive the court. (The parties are here impaled on the horns of a dilemma: if it was an affidavit, then it reeked of perjury; if it was not in truth an affidavit it was a forgery. Either way the court was being deceived, the administration of justice was being perverted, whether by perjury or by forgery.)

 

It is quite clear that in each of these cases the English court was being deceived. Importantly, that deception went not just to what I have called the court’s jurisdiction to grant a decree; more fundamentally it went also to the court’s jurisdiction to entertain the petition.

 

 

 

There were very few of the 180 cases where the petitioner or respondent came to Court to try to persuade the Court that they had indeed been genuinely living in a mail box in Maidenhead and that they had sworn an affidavit in Reading before a solicitor who did not exist. That’s not a huge surprise.

 

Of one who did try, it didn’t go so well

 

 

I have to say that I am sceptical as to whether, even on his own evidence, the respondent can establish that he was ever habitually resident in this country. But even assuming that he can, I am persuaded by Mr Murray that it cannot avail either the respondent or the petitioner. The fact remains that in this case, as in all the others, the English court was deceived into believing that, in this case, the respondent lived at Flat 201, and the decree nisi and decree absolute were procured by the use of a purported affidavit which, like the others, was in fact and in law a forgery. As Mr Murray succinctly puts it, the fact is that the false address was presented to the court. On that ground, as Mr Murray submits, the Queen’s Proctor is entitled to the same relief in Rapisarda v Colladon AL11D00099 as in the other cases.

 

95.Quite apart from that, there are other difficulties in Ms Villarosa’s way. The use of the wrong address was not, as Ms Villarosa would have it, a “mistake”; it was deliberate. Moreover, even if I could in some way cure this defect in the petition it is far from clear that this could, without more ado, retrospectively cure the process culminating in the decree nisi and the decree absolute. And in any event, Leake v Goldsmith [2009] EWHC 988 (Fam), [2009] 2 FLR 684, a very different case, does not assist Ms Villarosa, nor do two other cases to which reference was made, S v S (Rescission of Decree Nisi: Pension Sharing Provision) [2002] IDS Pensions Law Reports 219 and Kearly v Kearly [2009] EWC 1876 (Fam), [2010] 1 FLR 619.

 

96.Ms Villarosa submits that the petitioner and the respondent were innocent parties, who did not collude or in any way take part in whatever fraud may have been committed by Dr Russo or Nolton. I am prepared to assume in their favour that they were taken advantage of by others who were intent on making money dishonestly at their expense. But their plea of innocence will not wash. On the petitioner’s own account, she must have realised that there was something distinctly odd about the affidavit she was being asked to sign. So far as the respondent is concerned his (admitted) signature to the acknowledgment of service faces him with a dilemma from which he cannot escape. If, as he says, he signed the form in blank, then he must take the consequences. If, on the other hand, it had been completed when he signed it, how can he explain the fact that his address is shown immediately below his signature as Flat 201 and not, as he had notified Dr Russo by email on 1 February 2011, his true address in Bromley?

 

 

 

How would we stop this sort of fraud happening again? Other than cloning the marvellous Julie Farrah (who I hope has received a promotion or some sort of bonus)

 

The fraud in these cases was, I have no doubt, facilitated by rules which, as explained in paragraphs 2 and 10 above, enabled the architects of the fraud to spread the issue of 180 petitions very thinly across no fewer than 137 different county courts. For reasons unconnected with what this case has uncovered, that facility is shortly to be very drastically curtailed. As I explained in my recent View from the President’s Chambers: The process of reform: an update [2014] September Fam Law 1259, 1262, Her Majesty’s Courts and Tribunals Service is, with my active support, proceeding to centralise the handing of divorce petitions, concentrating this work in a limited number of locations where petitions will be issued and all special procedure divorces will be processed. I anticipate that by this time next year there will be fewer than twenty, possibly as few as a dozen, places at which a divorce petition can be issued.

 

100.This alone, however, will probably not be enough to prevent such frauds. There is no need for me to set out each of Mr Murray’s helpful suggestions, but there are two which I can usefully mention. One is that both the petition for divorce and, in special procedure cases, the notice of application for decree nisi should require the completion of a statement of truth in a specified form next to a prominently displayed warning of the penalties for untruth. The other is that part of the process in the court office for issuing a divorce petition should include a search of the court’s FamilyMan system to identify whether the address(es) given in the petition have been used in other cases. Each of these suggestions, it seems to me, merits careful consideration, though until such time as the court has up-to-date IT systems (which could no doubt be programmed to identify automatically any relevant addresses) I recognise that implementation of a standard search procedure will no doubt have resource implications.

 

 

I loved this case. It might not have huge legal implications (although I suspect if you are an Italian couple living in a flat in Maidenhead, your divorce might take a bit longer to get issued), but what a fantastic human interest story. I think there’s a good documentary in that.

 

 

 

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Go directly to the Ninth Circle of Hell, do not pass Go

Posted on August 28, 2014 by suesspiciousminds

 

Dante, in his travel guide to hell, sets out the various circles of hell and those within them. Within the ninth and final circle reside for all eternity four sorry individuals, exemplars of the worst that the world has ever had to offer (Dante’s work was written prior to certain unpleasant world leaders of the 20th century, and our current Lord Chancellor, so it may be in need of an update)

Those individuals are Cain, Athenor of Troy [betrayed his city to the Greeks], Ptolemy son of Antabus [invited people to a banquet and killed them] and finally Judas Iscariot.

We can now add to that circle of hell, a further group of terrible sinners, and one will not be surprised to learn that they are going to be local authority lawyers.

This arises from the President’s decision sitting in the High Court, in Re W (Children) 2014 [2014 EWFC 22]

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/22.html

 

The President has not yet found a power within the Family Procedure Rules to banish local authority representatives to the deepest circle of hell, but it is only a matter of time and generous interpretation. After all Rule 4.4 of the FPR 2010 sets out that the Court has powers to o)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective and that pretty much seems to cover it.

And if that unbridled power is not enough, surely the inherent jurisdiction is the answer. If only I had known during my law exams that “The Court could use the Inherent Jurisdiction” is a valid answer to 90% of questions, I could have skipped all that revision.

I will come onto the offence that has provoked such ire in a moment, but the case is yet another of the ones where the Local Authority are late filing their evidence (the social worker was off sick – how dare a human being suffer from an illness that affects the Almighty Timetable) and allows the President to use his favourite word contumelious.

(I have my own suspicion that the President once put that word down in Scrabble and was robustly challenged, and since that time has been working to revive its popularity so that this will never happen again)

Of course on a 26 week window, there is not time for slippage, and of course if the Local Authority is late, that causes a knock-on for the other parties and will mean the case not being ready for IRH at week 20. And yes, over a period of time Court orders about filing have unpleasantly become vague aspirations rather than hard deadlines. I am in agreement with the President that this is a bad thing. I also agree that something must be done.

I’m not against restoring the principle that if an order says 4th March, it means on 4th March the parties have that document in their hands, not that the author of it starts thinking about writing the document on 4th March. Court deadlines need to go back to being deadlines (and not in the Douglas Adams sense “I love deadlines, I like the whooshing sound they make as they fly by”)

And of course, if there is slippage in the timetable, the Court must be told and be able to call the case back in. I think that the President’s idea that a Court order authorising the delay must be obtained for a 15 minute delay does not work in the real world.

A real world that has some Courts in England answering correspondence in June that was sent to them in February, that has Court staff so beleaguered and overworked that the remedy is to lock the doors of the Public Counters and not let the public in. Where sending an email to the Court service is akin to dropping a message in a bottle into the ocean – one hopes it will reach its destination but it would be unwise to put money on it. A real world where if every time a person was going to be 15 minutes late filing a document a Judge would have to consider an application and grant it and get an order typed and posted out to all of the parties. A real world where, you know, human beings get sick, and they aren’t always able to tell you the day on which they will no longer be sick and can produce their document.

In principle, one can agree that delay in filing on time is bad and the mindset needs to change. And that if there is delay, the Court must be alerted to that and given the opportunity to adjust the timetable. The President points out in Re W that there is not only no power for the parties to agree a revised timetable amongst themselves they are expressly forbidden to do so.

Indeed, such agreements are forbidden by FPR 4.5(3):

“Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties

In accordance with and deriving from the court’s powers under FPR 12.24, the standard form of case management order, use of which is mandatory, spells out (as did Judge Rutherford’s order in this case) the consequence of failure to comply, namely the obligation on every party to “immediately inform the Court if any party or person fails to comply with any part of this order.”

Practitioners may have found, as a result of Re W and guidance being given to CAFCASS, that there is now a semi-official policy that the parties should inform on anyone who has the temerity to be late filing a document. The reader will of course recall that one of the major planks of the Family Justice Review was that none of the professionals or agencies working in family justice trusted each other, and what could be more conducive to rebuilding that trust than encouraging the parties to inform on each other for wrong-doing?

Deep breath.

Now, the egregious offence. The “Go to Hell” offence

Compounding its earlier defaults, Bristol City Council also failed to comply with paragraph 7.4 of PD27A:

“Unless the court has given some other direction or paragraph 7.5 applies” – this relates to hearings listed before a bench of magistrates – “only one copy of the bundle shall be lodged with the court but the party who is responsible for lodging the bundle shall bring to court at each hearing at which oral evidence may be called a copy of the bundle for use by the witnesses.”

Bristol City Council had lodged a duplicate bundle, marked ‘Witness Bundle’, and moreover in relation to a hearing where there was no suggestion that oral evidence might be called.
Yes, the President was actually annoyed that the Local Authority DX-ed a witness bundle to Court rather than the advocate carrying it to Court. That is strictly verboten and the Local Authority outraged the Court by defying the Practice Direction. And the witness bundle didn’t end up being necessary, which is a double-fault.

I am perplexed that at a time when the profession is in melt-down, when public funding has been withdrawn from the most deserving, when solicitors are being laid off due to cuts, when the public are being locked out of Public Counters, when the family justice system is under siege by the Press, that anyone could find the time to be annoyed that a superfluous witness bundle had arrived at a Court.

If you have a witness bundle that you don’t need, you can just send it back, you know? It doesn’t require a bomb-disposal unit to remove it from the premises. It is just a lever arch file.

But this is now law, and the President has said in Re W that Local Authorities who breach the law can be ‘named and shamed’ in public judgments, be ordered to pay for the costs of that naming and shaming. If you DX a witness bundle to Court rather than carrying it there, then you are technically liable for those sanctions. And if you avoid them from the trial judge, you might still get hit with them if the case is appealed (one hopes that the witness bundle irregularities in and of themselves don’t amount to an appeal, but frankly, who knows any longer?)

This is symptomatic of the problem – professionals have been drowned with rules, practice directions, guidance, case law, consultations, Views. One could spend so long establishing the exact precise procedure for doing anything that the task itself takes five times as long.

If you reach the point where you are regulating everything to microscopic level, then the sensible useful rules get lost within the morass of rules and guidance for things that never needed to be regulated. Who honestly CARES how a witness bundle gets to the Court building as long as there’s a witness bundle in the Court room if one is needed?

This seems to be a climate where if one says “red tape” the response is not “well, we need to cut that down” but rather “What, precisely, is the shade of red being used?” and “What, precisely is the width of the tape? Does it comply with Practice Direction 19B Dimensions of commonly used objects?”

By way of illustration – if you are playing Monopoly, there are a few problems with the game. It takes too long, for one thing. And for another, the last part of the game is only fun for the winner and miserable for everyone else. So, let’s appoint the President to tweak the rules to fix those problems.

Well, now we have a game of Monopoly where :-

if you’re buying Bond Street you need to submit a full-blown mortgage application with supporting documents

if you’re putting a house on Mayfair you need to seek planning permission, consult the local community and submit detailed architectural plans (making sure that you are familiar with the building regulations)

if you want to buy the Waterworks there should be a privatisation fully compliant with EU procurement rules and the opportunity for shares in the Waterworks to be offered at a preferential rate to certain key stakeholders first.

There is a prescribed period of time for shaking the dice, rules about what portion of the dice has to land on the board for it to be considered a null throw and whether it is permissible to whisper “Don’t be a six” to the dice in the pre-throw procedure.

And heaven help anyone who wins second prize at a beauty contest.
Has all of that fixed either of the problems we set out to resolve? Or has it made the game even slower and even more miserable for everyone involved?

Sadly, although we have a choice with “Monopoly President’s Edition” simply not to get it out of the cupboard and play it, we don’t have the same choice with care proceedings.

 

 

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CSI : President

Posted on June 23, 2014 by suesspiciousminds

 

A decidedly quirky case in which the President (not for the first time and  probably not for the last), does something unique. Kudos throughout to Mr Roger McCarthy QC, who navigated some very tricky law to find one of the great loophole solutions to what appeared at first to be an insoluble problem.

 

Re Z (Children) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1999.html

 

Within care proceedings involving several children, an issue arose as to whether a man, X, was the father of those children. X said that he was, but he refused to undertake a DNA test that would have settled it. Now, there’s quite a bit of legal authority about the Courts being able to draw an inference from a refusal to participate in a DNA test  (indeed, one of those authorities was one of my own cases).  But it has always felt a bit unsatisfactory, the Court ends up deciding on a “legal basis” who a child’s parent is, or is not, based on non co-operation, but the live possibility exists that X (or others like him) is being awkward and objectionable for other reasons than that the test would go against them – i.e that if you actually did the test, you would find out the truth rather than making a guess based on a person’s unwillingness to take the test.

 

The Court can’t compel an adult to give a DNA test (in fact, as a matter of law, the Court doesn’t really have much power to compel an adult to do anything in care proceedings – they can make an order that if breached can send the adult to prison, and they can compel the adult to attend Court and to give evidence, but that’s about it. Everything else is about there being consequences and adverse inferences if you refuse to do something)

i.e the Court can say “If you don’t give a hair-strand test, it might be inferred that you are still using heroin”  but they can’t say “you WILL give a hair-strand test because the Court says that you must”

 

So, the Court can’t make X give a DNA test. That seems to be the end of it.

 

Except that in this case, X is a serving prisoner, and as part of the criminal investigation and trial, X gave a DNA sample. The issue then, was whether the Family Court could order that the existing DNA sample, held by the police, could be put to this purpose, even in the teeth of X’s objections.

X’s position

 

  • X’s position is hard to understand. He asserts that he is the children’s father, yet he refuses to do the obvious thing which would establish that, namely agree to DNA testing. Being anxious to understand his stance, I asked his counsel, Ms Rebecca Mitchell to put it in writing. This she did:

 

 

“[X] opposes the application made by the Guardian in its entirety. He does not agree to paternity testing for the children and he does not agree to provide a DNA sample in any form.

[X] believes that he is the father of all the children and the children believe he is their father. He does not therefore believe that a paternity test is required.”

He appears to be saying that he knows best.

 

  • The situation is an odd one. More usually a refusal accompanies a denial of paternity. In such a case the court may readily draw an adverse inference: see Re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463. But what is the court to do if, as here, the refusal accompanies an assertion of paternity? That is a matter which I do not have to decide and, not least because it could arise later in this litigation, it is better that I say nothing about it.

 

 

 

As the President outlined, there are some competing interests here – the child’s right to know who their real parents are, X’s right to keep his medical and genetic material confidential, the balance between material obtained for criminal proceedings and for care proceedings, and lastly, what PACE (Police and Criminal Evidence Act 1984) has to say about DNA samples and how they can and cannot be used after being provided to the police.

 

 

The legal framework

 

  • The issue I have to determine, which is important and thus far unresolved, lies at a number of intersections. First, there is the intersection between the conflicting rights and interests of X and of the children. Secondly, there is the intersection between the conflicting rights and interests of X and of the public authorities responsible for his arrest and prosecution. Thirdly, there is the consequential intersection between the family justice system and the criminal justice system. And, fourthly, there is, as we shall see, the intersection between Part II and Part V of the Police and Criminal Evidence Act 1984 as amended (PACE). If it is the last of these which is ultimately determinative of the question I have to decide it is necessary first to consider the others.

 

 

 

  • It is convenient to start with the rights and interests of the children. They have a right (I put the matter descriptively rather than definitively) to know who their father is. That has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, 59, Lord Hodson said that:

 

 

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth … it must surely be in the best interests of the child in most cases that paternity doubts should be resolved on the best evidence, and, as in adoption, the child should be told the truth as soon as possible.”

In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:

“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”

It is recognised in Strasbourg law as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.

 

  • From the children’s perspective their interests are best served by the ascertainment of the truth, whatever that truth may be. As I said in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):

 

 

“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”

 

  • X, on the other hand has the right (again I put the matter descriptively rather than definitively) to keep his medical and genetic data confidential. That has long been recognised in our domestic law. It is also recognised in Strasbourg law as an ingredient of the rights protected by Article 8, indeed, a “vital principle” of “fundamental importance”: see Z v Finland (1998) 25 EHRR 371, para 95, and MS v Sweden (1999) 28 EHRR 313, para 41. Moreover, if there is to be disclosure of such data which entails an interference with the right to respect for private life, then that interference will be justified only if there are what in Z v Finland, para 103, the Court referred to as “effective and adequate safeguards against abuse”. What those safeguards should be will, no doubt, depend upon the particular circumstances.

 

 

 

  • In the specific context of DNA samples and profiles the Strasbourg Court emphasised in S and Marper v United Kingdom (2008) 48 EHRR 50 paras 70-75, the highly personal nature of such material, the sensitivity of the substantial amounts of unique personal data contained in such material, and the possibility, bearing in mind the rapid pace of developments in the field of genetics and information technology, that genetic information might in future be deployed in novel ways or in a manner which cannot be anticipated with precision today. The Court described DNA material as being among the special categories of sensitive data attracting a heightened level of protection.

 

 

 

  • In domestic law the balance between these various interests is struck in different ways. Where paternity is in issue in a family court, the balance is defined by Part III of the Family Law Reform Act 1969, a statutory scheme which abrogates any power to direct the taking of a sample under the inherent jurisdiction: In re O (A Minor) (Blood Tests: Constraint), In re J (A Minor) [2000] Fam 139, 151. Unless he is himself a child, the father cannot be compelled to provide a DNA sample: see section 21(1). The only remedy for such a refusal is provided by section 23(1), which enables the court to “draw such inferences, if any, from that fact as appear proper in the circumstances.” It is X’s refusal to give his consent in accordance with section 21(1) that has given rise to the present application.

 

 

 

  • It is clear from the illuminating account of the history set out by Ward LJ in In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 98-101, that the policy underlying Part III of the 1969 Act had little if anything to do with the protection of personal medical data (let alone with DNA, the unforeseen forensic use of which in 1969 still lay in an unimagined future). Rather the policy derived from the undoubted fact that, at common law, the process of taking a blood sample without consent involves an attack on the integrity of the individual’s body – an assault – and the view of the Law Commission in its 1968 Report on Blood Tests and the Proof of Paternity in Civil Proceedings that it would not be acceptable to public opinion in general or to the medical profession in particular to exert physical compulsion in order to obtain blood samples.

 

 

 

  • In the context of the criminal justice system the balance is struck very differently. Part V of PACE enables DNA samples to be taken in certain circumstances without consent but provides stringent safeguards in relation to their use. Specifically, Part V prohibits use of such samples except as specifically permitted by Part V. I shall return to the relevant provisions of PACE below.

 

 

 

  • Where Part V of PACE prevents the use of a DNA sample in circumstances where the Family Court would wish to have access to that sample, or information derived from it, in a case where paternity is in issue, PACE trumps the needs of the Family Court. Neither the Family Court, nor the High Court in exercise of its inherent jurisdiction, can order the release or use of DNA material in circumstances prohibited by PACE: see Lambeth London Borough v S, C, V and J (by his Guardian) [2006] EWHC 326 (Fam), [2007] 1 FLR 152, and Lewisham London Borough Council v D (Police Disclosure of DNA sample to local authority) [2010] EWHC 1239 (Fam), [2011] 1 FLR 908.

 

 

 

{My goodness, we have finally found a problem that the inherent jurisdiction can’t solve – remember the regular claim that inherent jurisdiction is a power that has no theoretical limit. Well here’s one. If Part V of PACE says no to something, the inherent jurisdiction has to slink off with its tail between its legs}

 

We also get into the Human Tissue Act 2004, which makes it an offence to use DNA samples without lawful authority.

 

What specifically was the President being asked to authorise?

 

The facts

 

  • The facts that bear on the issues I have to decide are very shortly stated. X murdered the children’s mother. In the course of his attack he wounded her. Evidence at X’s criminal trial referred to the mother’s wound as “bleeding”. There was also evidence that X had cut his wrists, which were also bleeding, with a knife. Various samples of blood were taken from the crime scene and submitted for analysis. A sample of blood from the knife was also analysed. A sample of the mother’s blood was obtained during the post mortem examination of her body and analysed. A comparison of the various samples showed that two of the samples taken from the crime scene matched the mother’s DNA profile. The remaining samples from the crime scene did not match the mother’s DNA profile and were therefore each from a person other than the mother.

 

 

The order sought

 

  • The application before me is by the children’s guardian, whose stance is supported by the local authority but opposed by X. It is also opposed by the two interveners, the Metropolitan Police and the Secretary of State for the Home Department.

 

 

 

  • The relief sought by the guardian has been refined during the course of the hearing. In its final form, what is sought is an order that:

 

 

“1 The Commissioner for the Metropolitan Police shall provide to the … Local Authority a photocopy/scanned copy of the DNA profiles for each and every individual whose blood was found at the crime scene of the murder of [the mother] and a photocopy/scanned copy of the DNA profile in respect of the blood taken at [her] post mortem … (“copies”) provided that any copies in relation to an individual other than [the mother] shall remain anonymous.

2 The copies obtained by virtue of paragraph 1 above may be used for the purposes of (a) comparing the respective DNA profiles with one another and reaching any appropriate conclusions, (b) comparing the respective DNA profiles with the DNA profiles of each of the … children and reaching any appropriate conclusions and (c) reaching a conclusion as to whether any of the DNA profiles, and if so which, is of a person who is related to any of the … children and of demonstrating the nature of that relationship. Upon receipt by the Local Authority the copies shall only be used for these purposes and shall be returned to the Commissioner at the end of the appeal period from the substantive hearing, or if an appeal is instituted, at the date of determination of any appeal.”

 

  • It is important to be clear as to what is not being sought. I am not being asked to direct the disclosure of any DNA sample (only DNA profiles); any exhibit or original DNA profile (only copies or scans); any DNA profile derived from a DNA sample which a person has provided on a voluntary basis; any DNA profile derived from a DNA sample taken from a person under some statutory provision or power; or, except in the case of the mother, the DNA profile of any identified person. Nor am I being asked to direct the disclosure of any DNA profile with a view to proving that a man who denies paternity is a father (for X asserts that he is the father). It is also important to note the proposed safeguards. I am not being asked to direct the disclosure, use or retention of any DNA profile for any purpose beyond that defined in the order.

 

 

 

  • I emphasise the fact that I am not being asked to direct the production of any exhibit or the original of any profile. The Metropolitan Police is, understandably and appropriately, concerned that there should be no risk by contamination or otherwise to the integrity of any of the exhibits from the criminal proceedings or any of the original profiles. To understand the importance of preserving the integrity of such materials, against some future day when they may need to be put to some at present unforeseen and even unforeseeable use, one has to look no further than the eventual resolution in 2002, by the DNA testing of the original trial exhibits, of the question of whether or not the man who had been executed in 1962 for having committed the A6 murder was in act guilty: R v Hanratty [2002] EWCA Crim 1141, [2002] 3 All ER 534.

 

 

 

Okay, this is very clever and elegant. It would be unlawful to take a DNA sample provided by X in criminal proceedings and make use of it in care proceedings (and the inherent jurisdiction would be helpless). But, what the family Court can do is ask for the police to provide details of the DNA found at the crime scene, in the blood present at the scene which was not that of the victim.  We know, to the criminal standard of proof that the DNA samples of the blood at the scene will be the victim’s and the person convicted of the offence (namely X), because if there was some other unexplained person’s blood at the scene, X wouldn’t have been convicted.

 

So we know that the crime-scene DNA is going to be a match to X’s DNA, although it is NOT a sample that he provided which would be covered by Part V of PACE.  If you test the children’s DNA and look at the crime scene DNA profile, and the result says that the crime-scene DNA is unrelated to the children, then by inference you are sure that X is not the father, and vice versa.

That’s so clever that if they do another series of Silk they should use it as a plotline.

 

But, clever as it is, does it stack up, or is it a breach of Part V of PACE or the Human Tissues Act?

 

The issues

 

  • There are three issues. First, does what is proposed offend section 45 of the Human Tissue Act 2004? Second, is what is proposed prohibited by Part V, specifically section 63T, of PACE? Third, if not, what order should I make?

 

 

The issues: section 45 of the Human Tissue Act 2004

 

  • It is common ground, and in my judgment correctly so, that what is sought does not offend section 45, essentially because what is proposed to be done does not satisfy the criteria in section 45(1)(a). Ms Samantha Broadfoot, on behalf of the Secretary of State, suggests that section 45 is nonetheless relevant for two reasons.

 

 

 

  • First, because she says it demonstrates the clear intention of Parliament that a person should not be subject to having his or her DNA analysed except where either (i) the material held is “excepted material” under section 45(2) or (ii) it is to be used for an “excepted purpose” in accordance with section 45(1)(a)(ii). The establishment of paternity, as she correctly observes, is not an “excepted purpose”. To that, the short answer in my judgment is that what matters is what Parliament effected by the language it chose to use. Ms Broadfoot accepts, as she has to, that section 45 is not directly applicable to what is proposed in the present case.

 

 

 

  • Secondly, she says, but for the happenstance of the existence of DNA profiles deriving from crime scene samples, the only way to obtain the information sought by the guardian would be by obtaining and handing over X’s DNA profiles without his consent, something not permitted either by PACE or by the Family Law Reform Act 1969. That no doubt is so, but, putting the point robustly, so what. Either section 45 applies or it does not, and here it does not.

 

 

 

  • I shall return to these points when considering, if it arises, the question of how I should exercise any discretionary power I may have.

 

 

[I am keen to be able to use this ‘putting the point robustly, so what’  line of argument in due course, and when a Judge pulls me up on my use of language to simply smile and say that I am borrowing from the President]

 

The issues: section 63T of PACE

 

  • Mr Roger McCarthy QC on behalf of the guardian submits that the answer on this point is clear. Neither the samples taken from the crime scene nor the samples taken post mortem from the mother’s body were “taken from a person under any power conferred by this Part of this Act”. Nor were they “taken by the police, with the consent of the person from whom they were taken”. So section 63T has no application, whether in relation to the samples themselves or in relation to the DNA profiles derived from them. The samples taken from the crime scene were seized in accordance with the powers conferred by section 19, which is in Part II of PACE, not Part V. Moreover, no consent was either required or given to the taking of the crime scene samples. So far as concerns the post mortem samples, they were not taken under any power conferred by Part V of PACE, they were not taken with the mother’s consent – no such consent was required – and they were in fact not taken from a “person” within the meaning of that word as it is used in the relevant provisions in Part V, because, as Mr McCarthy points out, the normal and ordinary meaning of the word “person” is a living person: R v Newham London Borough Council ex p Dada [1996] QB 507.

 

 

 

  • I add, for the avoidance of doubt, that Mr McCarthy accepts, as in my judgment he has to, that if and to the extent that any of the materials he seeks are caught by Part V of PACE, this would be an absolute bar to the relief he seeks.

 

 

 

  • Ms Broadfoot submits that a DNA sample or profile derived from a crime scene sample seized under Part II of PACE which has been matched to a DNA sample or profile taken under Part V of PACE may not be ordered to be disclosed for paternity purposes because the disclosure of the Part II sample would, as she puts it, involve the collateral (and prohibited) use of the Part V sample, in breach of section 63T. I agree with the proposition and the conclusion but it rests on an unspoken assumption which is at odds with what is sought in this case.

 

 

 

  • Ms Broadfoot says that crime scene samples and the profiles derived from them are of limited use on their own as they cannot identify any particular person. DNA, she says, only becomes significant for identification purposes once compared with that of a known person. She amplifies the point by postulating a case where samples at a crime scene produce 15 different DNA profiles. After 14 persons have been eliminated from the inquiry, the remaining man is convicted. A paternity issue arises and the guardian seeks the DNA profile from the crime scene relating to the convicted man. The only way, she says, the police can identify his DNA profile from the other 14 is by matching it to the Part V sample. This involves a use of the Part V sample (see section 63A(1)), which is not permitted for paternity purposes.

 

 

 

  • The short answer to all this, as Mr McCarthy points out, is that, whatever might be needed in another case, there is no need in this case to compare anything with a Part V sample, and that is not what he is proposing.

 

 

 

  • Evidence, entirely independent of any samples or DNA profiles, demonstrates that the blood at the crime scene in all probability includes both the mother’s blood and X’s blood. The unidentified DNA profiles obtained from those samples can, without reference to any other samples (whether obtained under Part V of PACE or, post mortem, from the mother’s body), be compared with the DNA samples obtained, pursuant to the order already made by Hogg J, from the children. If those unidentified DNA profiles identify two persons as being parents of the children, then that will, without more, establish X’s paternity. If those unidentified DNA profiles identify one person as being a parent of the children, then it will be necessary to compare the relevant profile with that obtained from the mother’s post mortem sample to establish whether it is hers or, by elimination, X’s.

 

 

 

  • Mr McCarthy submits that Ms Broadfoot’s submissions entirely miss the point of this application, which makes no reference to and is not in any way dependent upon any Part V sample. As he says, none of the examples given by Ms Broadfoot have anything to do with the factual basis upon which the guardian’s application is mounted. With brutal simplicity, he summarises his case as follows: The guardian’s case is simple. No reference is made to any Part V samples; no reference is made to any comparison with any Part V sample; no disclosure is sought of any Part V sample (or, I might add, anything derived from a Part V sample). Section 63T, he submits, does not apply.

 

 

 

  • I agree with Mr McCarthy.

 

 

 

  • Ms Tina Cook QC on behalf of the police seeks to avoid these difficulties by submitting that section 22(2) of PACE provides what she calls clear guidance as to what articles “seized” in accordance with section 19 can be retained for, and this, she says, does not include allowing others to use DNA samples or DNA profiles. It would, she suggests, be bizarre if such samples could be disclosed for a purpose not provided for by the retention provisions.

 

 

 

  • The short answer to this, in my judgment, is two-fold. In the first place, the relevant materials have in fact been retained and, moreover, in circumstances where it is impossible to suggest that such retention has been improper, let alone unlawful. Secondly, the particular purposes specified in section 22(2) are explicitly said to be “without prejudice to the generality” of section 22(1), which permits retention “so long as is necessary in all the circumstances”.

 

 

 

  • In my judgment there is nothing in Part II of PACE or Part V of PACE to prevent my making the order Mr McCarthy seeks.

 

 

 

I don’t know the President personally, and have only come to know him through his judgments, but at this point, given that he has established that there is a very very clever and cunning and unique legal mechanism that can be used to achieve an outcome, I would bet most of my internal organs that he is about to go on and decide to exercise his discretion to use said mechanism.

The issues: a balancing exercise

 

  • Having got thus far in the analysis, the starting point is clear. There is no insuperable statutory obstacle to the order the guardian seeks. Nor is there any public policy or other insuperable obstacle created by the mere fact that the material sought is in the hands of the police: Marcel and others v Commissioner of Police of the Metropolis and others [1992] Ch 225. There is, therefore, no absolute bar. The exercise is accordingly the familiar one of balancing the various competing interests, both public and private.

 

 

 

  • I start with the obvious and compelling point that DNA, and the information derived from it, demands a high degree of protection and that any use of it without the subject’s consent requires the imposition of robust and effective safeguards. The decision of the Grand Chamber in Marper is eloquent on the point, and not just in the passages to which I have drawn specific attention. And I readily accept the point made by Ms Cook and Ms Broadfoot of how important it is that public confidence in the system for taking, storing and using DNA samples and profiles is maintained.

 

 

 

  • Ms Broadfoot identifies the following factors which, she submits, in the circumstances of the present case argue against my making the order Mr McCarthy seeks:

 

 

i) First, she says that disclosure here would undermine the integrity of the national DNA database. There is, for the reasons I have already explained, no question of any damage to the integrity of the information on the database. Her concern is with the potential loss of confidence if the public came to believe that samples provided for one purpose could be used for wholly different purpose, thus seriously undermining the ability to detect crime. Individuals might no longer be prepared to come forward. Part of the response to public concerns about the database is to ensure that it is kept confidential and seen to operate in the least invasive manner possible. This entails, she says, that the data is retained securely and that there are strictly observed limits as to who may use the data and for what purposes.

ii) Secondly, she submits that, as a matter of principle, information gathered and retained for one purpose (the detection and prevention of crime) should not be permitted to be used for a different purpose (proving paternity) absent express statutory provision to that effect. Any widening of those purposes should result only from the operation of the democratic processes.

iii) Thirdly, she submits that it is “highly significant” that the exceptions to what she calls the “blanket ban” in section 45 of the Human Tissue Act 2004 do not include testing for paternity purposes.

iv) Finally, she makes a ‘floodgates’ point, suggesting that success in this application would pave the way for “many” such further orders in a “range” of cases. She points to what she says is the “breadth” of the guardian’s submissions and suggests that it is very difficult to articulate a coherent set of principles which would govern the circumstances in which discretion should be exercised so that it is confined to a very limited pool of cases.

 

  • I see the force of all this, but these concerns have to be seen in context. The fact is that nothing which is here proposed offends any statutory prohibition and in that situation the principle in Marcel is significant. The fact is that I am not being asked to do anything with material provided voluntarily by anyone. The fact is that the order which Mr McCarthy seeks is very narrowly drawn and includes very clear limitations and safeguards. The fact is that granting the order in this very unusual case – unusual not because of the horrific circumstances of the mother’s murder but because no recourse of any kind is needed or sought to any Part V material – is not of itself going to open the floodgates. As Mr McCarthy says, it is almost impossible to see how anything more than a very small number of cases could result from an order of the kind sought in the circumstances of this case. The reality, as it seems to me, is that the floodgates argument here is an argument against ever making an order in any case, even where statute is not determinative.

 

 

 

  • Moreover, there are powerful countervailing arguments. In the first place there are the interests of the children, to which both the guardian and the local authority draw attention and which, they say, should be preferred in the circumstances. In addition to all the usual arguments based on a child’s right to know their paternity, one cannot ignore the enormous implications for these children of what happened to their mother. Their futures will be indelibly marked by it. They need to know if the man who murdered their mother, the man who they believe to be their father, is in truth their father. As Mr Matthew Stott on behalf of the local authority points out, because X is not named on their birth certificates, the local authority has at present sole parental responsibility for the children. Moreover, as he also points out, Hogg J has already, in making orders under section 21 of the Family Law Reform Act 1969, determined that it is in the interests of the children that the truth, whatever it may be, should out. I agree with Mr Stott that the material being sought is vitally important for the ongoing care planning for the children. I agree with him that in light of the circumstances of their mother’s death it is fundamentally important for the children to have the opportunity to understand their family history and ascertain their familial identity. It will, as he says, have an enormous impact on their emotional welfare, now and into the future. As Mr McCarthy asks rhetorically, how can the children’s life story work start, how can therapy or counselling be arranged, how is the children’s psychological integrity to be preserved, if the paternity issue is not resolved?

 

 

 

  • In these circumstances the balance, in my judgment, comes down in favour of the children. The criminal justice policy arguments are weighty, though in the circumstances of this case significantly less weighty than Ms Broadfoot would have me accept. The interests of the children are compelling. There are likely to be few other cases in which an order can sensibly be sought without having recourse – prohibited – to Part V material or material the use of which is prohibited by the Human Tissue Act 2004. The order I propose to make will be subject to stringent limitations and safeguards.

 

 

 

  • I emphasise that my decision is confined to the forensically unusual circumstances of this particular case. Every case where an application is made for access to DNA samples or profiles requires the most anxious scrutiny and an intense focus on the specific facts and circumstances of the particular case. Even if there is no statutory prohibition of what is sought, an order is never to be had just for the asking. There will be cases where the policy arguments put forward by Ms Broadfoot will be found to weigh heavier in the balance than I have found in this case – a case which is not merely forensically unusual as requiring no recourse to Part V material but one where the children’s claims are unusually compelling.

 

 

As the President points out, the issue will probably never come up again (much like our recent fun case about whether diplomatic immunity for personal affairs applies after death in office) but it makes the case particularly recherche for law buffs.

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journalist’s right to private and family life with her source

Posted on May 2, 2014 by suesspiciousminds

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

 

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the  Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive.  The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

 

If you want to skip to the chorus, it is HEARING THREE heading

 

Hearing one

The first judgment, 26th February 2014   was decided by Russell J.  http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C.  (These allegations are all disputed by G)

This is the judge’s summary

 

  • In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

 

 

 

  • The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

 

 

 

  • The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

 

 

 

  • All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

 

 

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

 

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

 

G had a degree of dementia. She was assessed by an Independent Social Worker  (underlining mine)

 

 

  • Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

 

 

 

  • On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

 

 

 

  • G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

 

 

There was also an expert, Dr Lowenstein, who reported.  Again, underlining mine for emphasis

 

 

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

[The Court of course, did not HAVE to consider Dr Lowenstein’s evidence at all, since it had been obtained without leave of the Court, but they did so]

 

Russell J’s conclusions on G’s capacity were these

 

  • In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

 

 

 

  • The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

 

 

 

  • There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

 

 

 

  • I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

 

 

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

 

[Everything that the Judge decided is very hotly contested by those lobbying on C’s behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

 

Hearing two

 

This was before Cobb J on 26th March 2014   http://www.bailii.org/ew/cases/EWCOP/2014/959.html

 

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported.  G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

 

  • I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

 

 

 

 

  • Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

 

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

 

  • Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

 

 

 

 

  • This approach was supported by the Official Solicitor in all respects.

 

 

 

 

  • Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

 

 

 

 

  • It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

 

 

 Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

 

  • I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

 

 

 

 

  • There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

 

 

 

 

  • As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

 

 

 

 

  • On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

 

 

 

 

  • Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

 

 

 

 

  • On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

 

 

 

 

  • There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

 

 

 

 

  • There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

 

 

 

“She said reporters are always at her home or phoning her“.

 

That said, she added:

 

“She said she wants people to know what is happening to her and that it has gone all around the world already.“

 

And

 

“I asked her if she remembered the name of anyone she had spoken to. She said she did not.“

 

  • I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

 

 

 

 

  • It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2nd May.

 

 

  • I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

 

 

 

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

 

  • I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

 

 

 

“were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G’s home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

 

 

  • For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

 

 

 

 

  • I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

 

 

Again, this is all hotly contested, but the judgment has not been appealed

 

Hearing Three

 

This one was before the President, on 1st May 2014  http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the  Mail on Sunday, in any trouble?  And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

 

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

 

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair.  All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

 

  • On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

 

 

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

  • As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

 

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend.  [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander – the Judge has said it, nobody has appealed it, so the issue is settled]

 

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

 

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn’t want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn’t have an article 8 right to access to G. It is more complex than that, I’ve reduced it to a manageable form because there are real people reading this blog]

 

The big stuff then – should ANL be made a party?  Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

  • Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

 

 

 

  • The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

 

  • But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

 

 

 

  • In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

 

 

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

 

  • The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

 

 

 

  • Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

 

 

 

  • Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

 

 

 

  • As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

 

 

 

  • Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

 

 

 

[That’s very considered and dense stuff – basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn’t that here.  ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don’t have a legitimate interest in the argument between G, C and the Local Authority.  They might be interested IN IT, but that’s not the same thing]

 

  • ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

 

 

 

  • In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

 

 

 

  • Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

 

 

 

  • The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

 

 

 

  • Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

 

 

 

  • I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

 

 

 

  • In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

 

 

 

  • I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

 

 

 

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it.  IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest.  Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said.  That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective.   They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity.  It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

 

 

 

 

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